Hc/Gd Parmanand v. Union Of India & ORS.

$~36 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 14588/2023 & CM APPL. 57980/2023 HC/GD PARMANAND .....Petitioner Through:

Mr. M.K. Gaur, Adv.

versus UNION OF INDIA & ORS.

.....Respondents Through:

Mr. Niraj Kumar, Sr. Central Govt. Counsel with Mr. Rishav Dubey, GP and Mr. Chaitanya Kumar, Adv.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE OM PRAKASH SHUKLA JUDGMENT (ORAL) % 21.07.2025 C.HARI SHANKAR, J.

1.

The petitioner joined as a Constable with the CISF1 on 9 April 1994. He was promoted as Head Constable in July 2017. 2.

On 7 October 2023, the CISF wrote to the petitioner informing him that the date of his first financial upgradation under the Modified Assured Career Progression2 Scheme, which was 9 April 2006 had been cancelled and that as a result, his pay had been refixed at the rate of ₹ 41,600/- p.m. with effect from 1 July 2023. This order was 1 Central Industrial Security Force 2 "MACP", hereinafter

admittedly passed without putting the petitioner on notice or affording him any prior opportunity to represent against the cancellation of his first financial upgradation under the MACP Scheme. 3.

After having unsuccessfully represented to the respondents against the aforesaid recovery, the petitioner has approached this Court by means of the present writ petition praying that the revisitation by the respondents of the date of his first MACP be cancelled and the recoveries made from his salary as a consequence be declared illegal.

4.

We have heard Mr. M.K. Gaur, learned Counsel for the petitioner and Mr. Niraj Kumar, learned Senior Central Government Counsel for the respondent.

5.

The issue is squarely covered by the judgment of the Supreme Court in State of Punjab v Rafiq Masih3. In the said decision, the Supreme Court examined, in detail, circumstances in which recoveries could be made from Government servants of amounts allegedly over paid to them. Para 18 of the judgment sets out specific circumstances in which recoveries were not permissible. The paragraph reads thus: "18.

It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise 3 (2015) 4 SCC 334

the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

6.

In a subsequent judgment in High Court of Punjab and Haryana v Jagdev Singh 4, the rigour of category (ii) in para 18 of Rafiq Masih, which proscribes recoveries from retiral benefits, was toned down in situations in which the retiree, at the time of erroneous fixation of pay, had either been put on notice that, in the event of the fixation being found to be erroneous, recoveries would be effected, or had subscribed to an undertaking to that effect at the time of upward fixation of his pay.

4 (2016) 14 SCC 267

7.

However, no such caveat has been engrafted, by any subsequent decision of the Supreme Court, in respect of the any other categories enumerated in para 18 of Rafiq Masih.

8.

As such, there continues to remain an absolute proscription against recoveries from employees in Group C and Group D posts. 9.

Admittedly, the post of Constable in the CISF is a Group C post and, therefore, no recoveries of any amount even if found to be have been overpaid to him, could be made in law.

10.

That apart, the Supreme Court has in Bhagwan Shukla v UOI5, held that pay once fixed cannot be downwardly refixed without putting the employee on notice and affording him an opportunity of hearing in that regard. No such notice was, admittedly, granted to the petitioner before passing the order dated 7 October 2023, which sought to cancel the date of his first MACP financial upgradation retrospectively over 17 years.

11.

For this reason, too, the order dated 7 October 2023 is unsustainable.

12.

Accordingly, the order dated 7 October 2023 is quashed and set aside. The recoveries made from the petitioner's salary as a consequence thereof are declared to be illegal. 5 (1994) 6 SCC 154

13.

The respondents are directed to refund the said amounts to the petitioner within a period of four weeks, failing which the amounts would carry interest at the rate of 8% per annum. 14.

The writ petition is allowed accordingly.

C.HARI SHANKAR, J.

OM PRAKASH SHUKLA, J.

JULY 21, 2025 AR