Recovery of excess payment from an employee who obtained benefit by concealment of facts is permissible if employee is not due for retirement within one year; recovery must be in proportionate installments to avoid hardship.

CAV Order

1. The petitioner has filed this petition under Article 226 of the Constitution of India against the order dated 13.08.2024 passed by respondent No. 6/ Chief Engineer (Generation) Dr. Shayama Prashad Mukharjee Power Generation Station, Korba (in short Chief Engineer) wherein the petitioner’s claim for grant of second higher pay scale from 2008 has been declined and recommendation for recovery of excess payment made to the petitioner from 2008.

2. Facts of the case in brief, are that

(A) Petitioner was appointed as a Peon on 27^th April 1985 and thereafter he was promoted on the post of Office Assistant Grade-3 in the year 1990. The petitioner was not promoted within 9 years of service thus he was granted first higher pay scale in the year 1999 as per notification dated 11.01.1997. Again, after 18 years of service, the petitioner was granted second higher pay scale in year 2008. The petitioner had submitted a form on 02.02.2008 for grant of next Higher pay scale, wherein it was clearly mentioned that the petitioner has not completed account training, despite non-completion of account training, the respondent, after conducting DPC, passed an order on 03.10.2008 and granting second higher pay scale to the petitioner.

(B) It is case of the petitioner that in the notification on 19^th July 2005 and its explanation dated 20^th October 2005 there is no requirement for account training for grant of higher pay scale. The respondent has a policy decision allowing the employees three minimum chances to complete their account training programme. The petitioner successfully completed the account training on 25^th August 2023 in his third attempt and the delay in completion was due to the pendency of a Court case related to the training results, which was only disposed of by the Hon'ble Court in the year 2023. The petitioner was promoted to Office Assistant Grade 2 in 2010 after completion of 25 years of service, the petitioner applied for the next higher pay scale on 3^rd March 2017.

(C) Despite the passage of time, no decision was taken on his application by the respondents, then the petitioner submitted a representation on 5^th December 2023 before the respondents. Thereafter on 9^th February 2024, the petitioner was informed that an inquiry had been initiated regarding his eligibility for the higher pay scale granted in the year 2008 which was allegedly obtained without completing of required accounts training, to which the petitioner responded to inquiry on 14^th February 2024. Despite the petitioner's explanation, the respondent issued a recovery order on 13^th August 2024, regarding the eligibility of the petitioner for grant of higher pay scale in the year 2008 and issued recovery order for the alleged excess payment. The petitioner replied to recovery order on 14^th August 2024, but the respondent has not provided any satisfactory reasoning for issuance of recovery order. Hence this petition with a prayer for quashing of the order dated 13.08.2024.

3. The petitioner has filed rejoinder wherein it has been contended that the respondents have misinterpreted the circular as the petitioner has cleared the examination within three permissible attempts, as such there is no justifiable reason for recovery of higher pay scale which was granted to the petitioner in the year 2008.

4. That, the respondents have filed their reply denying allegation made in the writ petition mainly contending that

(A) the petitioner was promoted in the year 1990 as Assistant Grade-III and he was granted first higher pay scale as per policy prevailing in the year 1999 and next higher pay scale in the year 2008 as despite having qualification for promotion he was not promoted. Thereafter, he was promoted as Office Assistant Grade-II in the year 2010. It is further contended that the recovery order dated 3.08.2024 is in accordinance with the circular dated 29.12.2023 based upon circular dated 30.01.1989 as it is compulsory for promotion on the post of Office Assistant Gra