Service - matter = Disproportionate punishment to the negligence proved - Dismissal orders quashed - directed to pay retire benefits and pension as he was dismissed just 6 days prior to his retirement date = GIRISH BHUSHAN GOYAL APPELLANT Versus B.H.E.L. & ANR. RESPONDENTS = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40954

Service - matter = Disproportionate punishment to the negligence proved - Dismissal orders quashed - directed to pay retire benefits and pension as he was dismissed just 6  days  prior  to  his  retirement  date =

“25(1). No order imposing any of  the  major  penalties  specified  in
      Clause (f), (g), (h), (i) and (j) of Rule  23  shall  be  made  except
      after an enquiry is held in accordance with the rule.
      Proceedings under this Rule may be initiated, for conduct which  lends
      itself to both criminal prosecution as well  as  disciplinary  action,
      not withstanding that a criminal case against the employee in  respect
      of the same conduct is under investigation or trial”.
                                        (Emphasis supplied)


  13. The major punishment which is awarded to  the  appellant  through  the
      order of dismissal dated 18.3.2009, is covered  under  Rule  23(i)  of
      BHEL Conduct Rules considering that the appellant had reached the  age
      of superannuation. 
However, the order of termination does not  mention
      any form of criminal  charges  against  him,  which  is  necessary  to
      attract penalty under Rule 23(i) of BHEL Conduct  Rules  amounting  to
      dismissal from service. 
On the  other  hand,  the  nature  of  charges
      leveled against the appellant was such that he omitted from performing
      his duty of being a responsible vigilant  officer  which  amounted  to
      being negligent as against being an active  participant  in  colluding
      with the  employees  against  his  employer  and  acting  against  the
      interest of the Company.=

In the case of  Surendra  Prasad  Shukla  v.  State  of
      Jharkhand & Ors.[1], at paras 9-10, this Court held as under:

      “9. There was no charge against the appellant that he had in  any  way
      aided or abetted the offence under Section 392 IPC  or  that  he  knew
      that his son had stolen the car and yet he did not inform the  police.
      
The appellant, as we have held, was guilty of negligence of not having
      enquired from his son about the car kept in front  of  the  government
      quarters occupied by him. 
The appellant had served the Government as a
      Constable and thereafter as a Head Constable from 7-8-1971 till he was
      dismissed from service on 28-2-2005 i.e. for 34 years,  and  for  such
      long service he had earned pension. In  our  considered  opinion,  the
      punishment of dismissal of the appellant from service so as to deprive
      him of his pension for the service that he had rendered  for  34  long
      years was shockingly disproportionate to the negligence proved against
      him.=


dismissal order served
      on the  appellant  just  6  days  prior  to  his  retirement  date  is
      exorbitant  and  disproportionate  to  the   gravity   of   misconduct
      particularly, because he was not involved in active collusion with the
      other employees of the Company who were involved in this incident, for
      causing financial loss to the respondent-Company but was negligent  by
      an act of omission. 
We also should not lose sight of the fact that the
      appellant took steps to retrieve the materials which were due  against
      the Bill from the suppliers which rectified  the  error.  
Accordingly,
      the order of dismissal served on him is liable to be  quashed  and  is
      accordingly, quashed.  
However, we cannot lose sight of the fact  that
      his negligence has caused financial loss  to  the  respondent-Company.
      Therefore, keeping at par with the punishment awarded to Sh. B.S. Rana
      on ground of misconduct in terms of demotion  to  lower  grade  for  3
      years as per letter dated 6.6.2011  from  Central  Public  Information
      Officer, we award the similar punishment  of  deduction  of  one  year
      increment on the appellant as per Rule 23 (b)  of  the   BHEL  Conduct
      Rules since the appellant already reached the  age  of  superannuation
      when the order of dismissal was served on him.  Accordingly, the Civil
      Appeals arising out of SLP (C) Nos.30883-30884 of 2012 are allowed.

Answer to point Nos. 2 and 3

  16. Since, we have answered point No. 1 in affirmative while allowing  the
      Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012  and  the
      dismissal order served on the  appellant  is  quashed,  the  appellant
      becomes entitled to all the retiral and pensionary benefits under  the
      relevant Rules for which he is statutorily entitled  to.  
Accordingly,
      the Civil Appeal arising out of SLP (C) No.30877 of 2012 filed by  the
      appellant is also allowed.  
All  the  arrears  in  pension  and  other
      retiral benefits should be paid to him with interest at the rate of 9%
      per annum from the date of  application  till  the  date  of  payment.
      Since, the appellant was terminated from his service just 6 days prior
      to his retirement whereby there was  no  further  possibility  of  any
      increment, his last one year increment is liable to be  deducted  from
      the arrears which he is statutorily entitled to.

  17.  The  appeals  are  accordingly  allowed.  

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOS. 9868-9869 OF 2013
              (ARISING OUT OF SLP(C) NOS. 30883-30884 OF 2012)


GIRISH BHUSHAN GOYAL                        APPELLANT

                                   Versus

B.H.E.L. & ANR.                             RESPONDENTS


                                    WITH

                        CIVIL APPEAL NO. 9870 OF 2013
                  (ARISING OUT OF SLP(C) NO. 30877 OF 2012)



                               J U D G M E N T



V. Gopala Gowda, J.


      Leave granted.


   2. The appellant has filed two separate Civil Appeals before this  Court.
      The Civil Appeals arising out of SLP (C) Nos. 30883-30884 of 2012  are
      filed questioning the correctness of  the  judgment  and  order  dated
      20.12.2010 passed in the Writ Petition No. 129 of 2009 (S/B) and order
      dated 28.6.2011 passed in the Review Application No. 431  of  2011  to
      the Writ Petition No. 129 of 2009 (S/B), whereas Civil Appeal  arising
      out of SLP (C) No.30877 of 2012 is filed against  the  judgment  dated
      22.2.2011 passed in Writ Petition No. 292 of 2009 (S/B)  by  the  High
      Court of Uttarakhand at  Nainital,  urging  various  facts  and  legal
      contentions in justification of his claim.

   3. Through Civil Appeals arising out of SLP (C) Nos.30883-30884 of  2012,
      the appellant challenged the impugned order of the High Court by which
      the High Court dismissed the Writ Petition No. 129 of 2009 and  Review
      Application No. 431  of  2011  filed  by  the  appellant  against  the
      termination Order of his service. Through the Civil Appeal arising out
      of SLP (C) No.30877 of 2012, the appellant claims the  pensionary  and
      other monetary service benefits due to him against  three  decades  of
      service rendered by him which has been  withheld  by  the  respondent-
      Company.

   4. Necessary relevant facts are stated hereunder to appreciate  the  case
      of the appellant and  also  to  find  out  whether  the  appellant  is
      entitled for the relief as prayed in these appeals.

   5. The appellant joined the service of the respondent-Company in 1970 and
      rose to the post of D.G.M. [Deputy General Manager]. He was to  retire
      on 24.3.2009. It is the case of the appellant that four  months  prior
      to his retirement, an enquiry was initiated against him. The appellant
      accepted the charges of negligence on his part and also explained that
      the negligence was a part of  the  chain  system  which  included  his
      superiors as well as his subordinates.

   6. It is further the case of the appellant that it is he who carried  out
      a routine verification of the stock in the month of July-August,  2008
      when he realized that there  were  some  major  discrepancies  in  the
      stocks of tea-leaves and milk powder in the canteen  which  was  under
      his supervision by virtue of being in-charge of the canteen  (HR).  He
      therefore carried out a physical  store  checking  and  a  report  was
      prepared accordingly on 30.8.2008. The appellant thereafter, issued  a
      notice to Sh. B.S. Rana, the in-charge of Canteen Store  Operation  on
      10.9.2008. Since there was no  reply  to  the  aforesaid  notice,  the
      appellant informed the superior  authority  regarding  the  matter.  A
      notice was also sent to the suppliers of  the  tea-  leaves  and  milk
      powder. The suppliers – ‘Gupta & Co.’ and ‘Bombay Sales’ have admitted
      to the discrepancy in supply. They further  admitted  that  the  goods
      which have not been supplied against the Bill were lying with them and
      they were ready to supply the deficient material. However,  after  the
      conclusion of enquiry and six days prior to the retirement date of the
      appellant, he was served with the notice of termination.

   7. It is further the claim of the appellant that his  termination,  which
      is based on the findings of the Enquiry Officer,  is  not  sustainable
      for various reasons.  Firstly,  the  report  of  the  Enquiry  Officer
      nowhere mentions the loss of Rs.35 lakhs caused by the appellant as is
      blamed  against  him.  Secondly,  no  charges   of   embezzlement   or
      misappropriation have been leveled against the appellant either in the
               charge-sheet or anywhere in the  report.  Thirdly,  the  term
      ‘irregularity’ used in  the  Enquiry  Report  has  been,  without  any
      reason, converted to the term ‘malpractice’ in the  termination  order
      served on the appellant. Therefore, it is urged by the appellant  that
      a bona fide mistake has been portrayed as a malicious act on the  part
      of the appellant for extraneous reasons.

   8. It is the further claim of the appellant that his superiors  who  were
      also involved in the chain of  events  have  been  relieved  from  any
      accusation. His juniors were  also  meted  with  minor  punishment  of
      stopping one increment, whereas the  appellant  was  served  with  the
      notice of termination  just  six  days  prior  to  his  retirement  on
      attaining  the  age  of  superannuation  thereby  negating  pensionary
      benefits for which the appellant is legally entitled  to  in  lieu  of
      three decades of service rendered to the respondent-Company.

   9. The High Court vide its judgment  dated  20.12.2010  opined  that  the
      claim of the appellant of being targeted for being  a  whistle  blower
      cannot be sustained since he did not raise this issue when enquiry was
      being held against him. Further, even  if  it  is  presumed  that  the
      appellant was a whistle blower, the same, according to the High Court,
      would suggest that the  appellant  was  aware  of  the  people  taking
      advantage of him to cause financial gain at the cost of  the  employer
      of the appellant. Despite that, the appellant did not produce anything
      on record to prove that he was doing something to protect the interest
      of the employer. Also, regarding the claim made by the appellant  that
      other people against whom the charge of negligence was made  were  not
      proceeded  against,  it  was  held  by  the  High  Court  that  though
      initiating simultaneous disciplinary proceedings against other persons
      involved in the issue may have been  possible,  the  appellant  at  no
      time, made any  request  to  any  authority  to  conduct  disciplinary
      proceeding against him along with others.

  10. In the light of the facts and circumstances of the case, the following
      points would arise for consideration:
   1. Whether the High Court was right in dismissing the appeal filed by the
      appellant against the Order of his dismissal  served  on  him  by  the
      respondent-Company?
   2. Whether the appellant is entitled to the pensionary and other monetary
      benefits which accrued to him against the service provided by  him  to
      the respondent-Company?
   3. To what relief is the appellant entitled to?


Answer to point No. 1

  11. While deciding on this issue, it is pertinent for us to ascertain  the
      responsibility of  the  appellant  against  which  he  has  been  held
      negligent and also his role in the same.
As  per  the  Enquiry  Report
      produced  against  him  which  is  annexed  with  the  appeal  by  the
      appellant, he was held negligent under Rules 5(5) and 5(9) of the BHEL
      Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as
      the “BHEL Conduct Rules”) for being  negligent  while  performing  his
      duty and acting in a manner which is prejudicial to  the  interest  of
      his employer.
The Enquiry Report reads as under:
      “….As in-charge  of  the  canteen  [HR-  Canteen],  it  was  incumbent
      responsibility of Shri G.B. Goyal to conscientious  discharge  on  his
      side responsibility as the irregularities stated above amply prove has
      complicity beyond any shadow of doubt in the sordid  state  of  affair
      present in the canteen operations.


             XXX             XXX              XXX


      Mr. G.B. Goyal  has  admitted  the  charges  leveled  against  him  as
      contained in the Article of charges  as  elaborated  in  Statement  of
      Imputations of Misconduct stating that he had been  negligent  in  the
      performance of his duties in the  capacity  of  overall  in-charge  of
      canteen by placing blind reliance upon his subordinates operating in a
      three tier system of checking and verification”.



  12. From the perusal of the above findings  of  the  Enquiry  Report,  the
      allegation of misconduct of negligence  was  established  against  the
      appellant under Rules 5(5) and 5(9) of the BHEL Conduct Rules.

      It is therefore imperative  to  discuss  the  BHEL  Conduct  Rules  to
decipher if the conduct of the appellant amounts  to  misconduct  under  the
Rules to attract ‘major penalties’ to be imposed upon him  as  mentioned  in
Rule 25 of the BHEL Conduct Rules.
Rule 25 of BHEL Conduct  Rules  reads  as
under:
      “25(1). No order imposing any of  the  major  penalties  specified  in
      Clause (f), (g), (h), (i) and (j) of Rule  23  shall  be  made  except
      after an enquiry is held in accordance with the rule.
      Proceedings under this Rule may be initiated, for conduct which  lends
      itself to both criminal prosecution as well  as  disciplinary  action,
      not withstanding that a criminal case against the employee in  respect
      of the same conduct is under investigation or trial”.
                                        (Emphasis supplied)


  13. The major punishment which is awarded to  the  appellant  through  the
      order of dismissal dated 18.3.2009, is covered  under  Rule  23(i)  of
      BHEL Conduct Rules considering that the appellant had reached the  age
      of superannuation. 
However, the order of termination does not  mention
      any form of criminal  charges  against  him,  which  is  necessary  to
      attract penalty under Rule 23(i) of BHEL Conduct  Rules  amounting  to
      dismissal from service. 
On the  other  hand,  the  nature  of  charges
      leveled against the appellant was such that he omitted from performing
      his duty of being a responsible vigilant  officer  which  amounted  to
      being negligent as against being an active  participant  in  colluding
      with the  employees  against  his  employer  and  acting  against  the
      interest of the Company.

  14.  The consequence of the dismissal order served on him at  the  end  of
      his service tenure not only  results  in  inflicting  disproportionate
      punishment on him in terms  of  bad  name  and  reputation,  but  also
      deprives the appellant of his retiral benefits for which  he  has  got
      statutory entitlement for rendering three decades of  service  to  the
      Company whereas his negligence attracts minor penalty under Rule 23 of
      BHEL Conduct Rules. It is pertinent to mention the observation made on
      this issue  by  this  Court  on  the  premise  of  similar  facts  and
      circumstances. 
In the case of  Surendra  Prasad  Shukla  v.  State  of
      Jharkhand & Ors.[1], at paras 9-10, this Court held as under:

      “9. There was no charge against the appellant that he had in  any  way
      aided or abetted the offence under Section 392 IPC  or  that  he  knew
      that his son had stolen the car and yet he did not inform the  police.
      
The appellant, as we have held, was guilty of negligence of not having
      enquired from his son about the car kept in front  of  the  government
      quarters occupied by him. 
The appellant had served the Government as a
      Constable and thereafter as a Head Constable from 7-8-1971 till he was
      dismissed from service on 28-2-2005 i.e. for 34 years,  and  for  such
      long service he had earned pension. In  our  considered  opinion,  the
      punishment of dismissal of the appellant from service so as to deprive
      him of his pension for the service that he had rendered  for  34  long
      years was shockingly disproportionate to the negligence proved against
      him.


      10.  We  accordingly,  allow  this  appeal  in  part  and  modify  the
      punishment of dismissal from service to compulsory retirement. The LPA
      and the writ petition filed by the appellant before the High Court are
      allowed in part. There shall be no order as to costs.”



  15. Therefore, in view of the principle laid down by  this  Court  in  the
      above referred case, we are of the opinion that 
dismissal order served
      on the  appellant  just  6  days  prior  to  his  retirement  date  is
      exorbitant  and  disproportionate  to  the   gravity   of   misconduct
      particularly, because he was not involved in active collusion with the
      other employees of the Company who were involved in this incident, for
      causing financial loss to the respondent-Company but was negligent  by
      an act of omission. 
We also should not lose sight of the fact that the
      appellant took steps to retrieve the materials which were due  against
      the Bill from the suppliers which rectified  the  error.  
Accordingly,
      the order of dismissal served on him is liable to be  quashed  and  is
      accordingly, quashed.  
However, we cannot lose sight of the fact  that
      his negligence has caused financial loss  to  the  respondent-Company.
      Therefore, keeping at par with the punishment awarded to Sh. B.S. Rana
      on ground of misconduct in terms of demotion  to  lower  grade  for  3
      years as per letter dated 6.6.2011  from  Central  Public  Information
      Officer, we award the similar punishment  of  deduction  of  one  year
      increment on the appellant as per Rule 23 (b)  of  the   BHEL  Conduct
      Rules since the appellant already reached the  age  of  superannuation
      when the order of dismissal was served on him.  Accordingly, the Civil
      Appeals arising out of SLP (C) Nos.30883-30884 of 2012 are allowed.

Answer to point Nos. 2 and 3

  16. Since, we have answered point No. 1 in affirmative while allowing  the
      Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012  and  the
      dismissal order served on the  appellant  is  quashed,  the  appellant
      becomes entitled to all the retiral and pensionary benefits under  the
      relevant Rules for which he is statutorily entitled  to.  
Accordingly,
      the Civil Appeal arising out of SLP (C) No.30877 of 2012 filed by  the
      appellant is also allowed.  
All  the  arrears  in  pension  and  other
      retiral benefits should be paid to him with interest at the rate of 9%
      per annum from the date of  application  till  the  date  of  payment.
      Since, the appellant was terminated from his service just 6 days prior
      to his retirement whereby there was  no  further  possibility  of  any
      increment, his last one year increment is liable to be  deducted  from
      the arrears which he is statutorily entitled to.

  17.  The  appeals  are  accordingly  allowed.  
The  respondent-Company  is
      directed to pay the pension to which the appellant is entitled to  and
      also the arrears due to him, within eight weeks of the  receipt  of  a
      copy of this order. 
There will be no order as to costs.





                                                ……………………………………………………………………J.


                          [SUDHANSU JYOTI MUKHOPADHAYA]




                                     ……………………………………………………………………J.
                                   [V. GOPALA GOWDA]


New Delhi,
November 1, 2013
-----------------------
                           [1]    (2011) 8 SCC 536

                           -----------------------
                                     15

Service = When the appointment of one person held wrong , the other person can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances = GANAPATH SINGH GANGARAM SINGH RAJPUT … APPELLANT Versus GULBARGA UNIVERSITY REP. BY ITS REGISTRAR & OTHERS … RESPONDENTS = http://judis.nic.in/supremecourt/imgst.aspx?filename=40953

Service matter - When the appointment of one person held wrong , the other person can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances  =
Shivanand challenged the aforesaid selection and appointment in a writ petition filed before the High Court, inter alia, contending  that  Masters’ Degree in Mathematics  will  not  make  Ganpat  eligible  in  terms  of  the advertisement and, therefore, his selection and appointment to the  post  of Lecturer in MCA is illegal.  Shivanand further pointed  out  that  since  he possessed a post-graduate degree in MCA and fulfils  all  other  conditions, he ought to  have  been  selected  for  appointment. =

 Ordinarily,  in  a  case
where the person appointed is found ineligible, this  Court  after  setting
aside such appointment, directs for consideration of cases of such  of  the
candidates, who have been found eligible. 
It is only in  exceptional  cases
that this Court issues mandamus for appointment. 
The case in  hand  is  not
one of those cases where the High Court ought to have issued mandamus  for appointment of Shivanand as Lecturer in MCA. 
Hence, we are of  the  opinion
that the  High  Court  rightly  held  Ganpat  ineligible  and  quashed  his
appointment. 
However, it erred  in  issuing  mandamus  for  appointment  of
Shivanand. 
Accordingly, we uphold the impugned  order  of  the  High  Court
whereby it had set aside the appointment of the appellant herein and direct
that the case of the writ petitioner Shivanand and all other candidates  be
considered in accordance with law.  
However, we  make  it  clear  that  the
selection already made shall be taken to its logical conclusion.

            In the result, we dismiss these appeals  with  modification  in
the direction as aforesaid with cost, which we assess at Rs.50,000/-(Rupees
fifty thousand) only in both the cases, payable by the appellants  in  both
the appeals equally.

                                                         REPORTABLE


                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO. 9866 OF 2013
                        (@ SLP (C) No. 35063 of 2009)

GANAPATH SINGH
GANGARAM SINGH RAJPUT                   …          APPELLANT

                                   Versus

GULBARGA UNIVERSITY REP.
BY ITS REGISTRAR & OTHERS                …      RESPONDENTS

                                    WITH
                         CIVIL APPEAL NO. 9867 OF 2013
                        (@ SLP (C) No. 35173 of 2009)

GULBARGA UNIVERSITY REP.
BY ITS REGISTRAR & OTHERS               …          APPELLANTS

                                   Versus

SHIVANAND & OTHERS                      …       RESPONDENTS


                               J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.


      Ganpath Singh Gangaram Singh Rajput as also the  Gulbarga  University,
aggrieved by the judgment and order dated 19/24th of November, 2009  of  the
Karnataka  High  Court  in  Writ  Appeal  No.  3216  of  2004  quashing  the
appointment of aforesaid Ganpath Singh Gangaram Singh Rajput as Lecturer  in
MCA in the Post-graduate Department of the University, have preferred  these
special leave petitions.

      Leave granted.

      Short facts giving rise to the present appeals are as follows:

      The appellant, Gulbarga University, hereinafter referred  to  as  ‘the
University’, issued notification dated May 22,  1998  inviting  applications
for appointment to various posts including the post of Lecturer in  Masters’
in Computer Application, for short, MCA.  
The  minimum  qualification,  for
appointment to the post of Lecturer and  with  which  we  are  concerned  in
these appeals, is good academic record with at least  55%  of  marks  or  an
equivalent grade at the Masters’ Degree level in the relevant  subject  from
an Indian University or an equivalent degree from a foreign University.

      Shivanand, respondent no. 3 herein, and Ganpath Singh  Gangaram  Singh
Rajput, respondent no. 3 of the writ petition  (appellant  herein),  besides
other persons offered their candidature  for  appointment  to  the  post  of
Lecturer in MCA.  
The appellant claims to have passed the M.Sc.  examination
in Mathematics with  First  Class  with  distinction.   
It  is  an  admitted
position that Shivanand possessed a post-graduate  degree  in  MCA  and  was
eligible in terms  of  the  advertisement.   
The  University,  in  terms  of
Section 53 of  the  Karnataka  Universities  Act  constituted  a  ‘Board  of
appointment’ for selecting suitable candidates.   It  consisted  of  experts
holding high positions in academic field including  a  Professor  each  from
University of Pune, Bombay University and Kuvempu University.  
The Board  of
appointment interviewed the candidates and ultimately made a  recommendation
for the appointment of the appellant, hereinafter referred to  as  ‘Ganpat’,
who admittedly did not have  a  post-graduate  degree  in  MCA,  but  had  a
Masters’ Degree in Mathematics.  
The recommendation so made was  placed  for
consideration before the Syndicate which approved his appointment.

      Shivanand challenged the aforesaid selection and appointment in a writ
petition filed before the High Court, inter alia, contending  that  Masters’
Degree in Mathematics  will  not  make  Ganpat  eligible  in  terms  of  the
advertisement and, therefore, his selection and appointment to the  post  of
Lecturer in MCA is illegal.  Shivanand further pointed  out  that  since  he
possessed a post-graduate degree in MCA and fulfils  all  other  conditions,
he ought to  have  been  selected  for  appointment.   Ganpat  as  also  the
University  resisted  the  prayer  of  Shivanand  and  contended  that   the
expression ‘relevant subject’  used  in  the  notification  would  mean  any
subject which is relevant for the purpose of holding the  post  of  Lecturer
in MCA.  It was contended that Masters’ degree in Mathematics  is  a  degree
in a relevant subject and thus Ganpat  possessed  the  basic  qualification.
While defending the  appointment  it  was  further  contended  that  in  the
syllabus for  MCA,  Mathematics  is  the  core  subject  and,  therefore,  a
candidate having a post-graduate  degree  in  Mathematics  is  eligible  for
appointment as Lecturer in MCA.  It  was  also  pointed  out  that  when  an
expert body like the Board of appointment had  found  that  a  post-graduate
degree in Mathematics is a relevant subject for  the  purpose  of  adjudging
the eligibility and the same having been approved by the Syndicate   of  the
University, a body consisting of  experts,  the  same  was  not  fit  to  be
interfered with by the High Court in  exercise  of  its  writ  jurisdiction.
The learned Single Judge  considered  the  submission,  dismissed  the  writ
petition and upheld the appointment of  Ganpat,  inter  alia,  observing  as
follows:

                  “8…….The use of the word ‘relevant subject’ in relation to
             the qualification for Lecturers’ post is the bone of contention
             between the parties.  It is also Sri. Chandrashekar’s assertion
             that it should relate only  to  a  Master  degree  in  Computer
             Applications and nothing  else,  while,  the  University  would
             contend that it could also mean such of those who have  secured
             a Masters degree in Mathematics.  It is not in dispute that the
             Head of the Department, M.C.A. is held by a person who is  also
             a Ph.D. holder in Mathematics.   It  is  not  in  dispute  that
             Mathematics is also subject which  is  taught  in  the  Masters
             degree  in  Computer  Applications  course.    What   one   can
             reasonably infer from the pleadings  of  the  parties  is  that
             ‘relevant subject’ could mean candidates who possessed  Masters
             Degree in such of those subjects as are offered in  the  M.C.A.
             course.  Mathematics being one of the subjects,  it  cannot  be
             said that Masters Degree in Mathematics  was  not  a  “relevant
             subject” and it was only a Masters in Computer Applications.


                  It would be very unreasonable to hold  “relevant  subject”
             to mean only a Masters in Computer Applications.  It would also
             be irrational to conclude that the non mention of the  specific
             educational qualification for the post of  Lecturer  in  M.C.A.
             could lead to only one  conclusion  that  a  candidate  with  a
             Masters degree in Computer Applications, alone, would meet  the
             requirement.”

      Shivanand, aggrieved by  the  same,  preferred  appeal  and  both  the
parties reiterated the same contentions.  The submission made  by  Shivanand
found favour with the Division Bench of the High Court and  while  doing  so
it observed as follows:

             “28. This is nothing sort of  trickery  and  fraud  on  persons
             applying to the post.  The University had perhaps  deliberately
             or with a design to achieve this result of selecting  a  person
             with post-graduate qualification in Mathematics, though it  had
             called for applications to fill up the post of Lecturer in  MCA
             course.  That is why the action of the University  falls  short
             of the constitutional mandate of the State being in  conformity
             with Articles 14  and  16(1)  of  the  Constitution  of  India,
             affording equal opportunity to  all  eligible  candidates.   In
             fact the method of selection made by adopting  this  procedure,
             is so flawed that it can never pass the test  before  a  Court,
             more so while in exercise of jurisdiction of judicial review of
             administrative action.  We say so far the reason that the  post
             notified for being filled up by the University  in  MCA  course
             should be one with reference to the vacancy and the vacancy can
             only be in a particular subject of the department and cannot be
             generally with reference to the course.”

      Accordingly, the Division Bench of the High Court allowed  the  appeal
and quashed the appointment of Ganpat as Lecturer in MCA.

      Ms. Kiran Suri, advocate appears on behalf  of  the  appellant  Ganpat
whereas the University is represented by  Mr.  S.N.  Bhat,  advocate.   They
contend  that  Mathematics  is  a  relevant  subject  for  MCA  course  and,
therefore, a person holding post-graduate degree in Mathematics is  eligible
for appointment as Lecturer in MCA.  It  is  further  pointed  out  that  in
Gulbarga University, different Mathematics subjects are taught in  MCA  and,
therefore, it cannot be said that a person  possessing  Masters’  degree  in
Mathematics is not eligible for appointment as  Lecturer  in  MCA.   It  has
also been pointed out that as  to  whether  a  particular  qualification  is
relevant or not for holding a post is best decided by the experts  concerned
and, in the present case, Mathematics, having been recognized as a  relevant
subject for MCA course not only by  the  University  but  by  the  Board  of
appointment consisting of eminent academicians  from  various  Universities,
the Division Bench of the High Court ought not  to  have  substituted  their
opinion.  In support of  the  submission  reliance  has  been  placed  on  a
decision  of  this  Court  in  the  case  of  B.C.  Mylarappa  v.   Dr.   R.
Venkatasubbaiah, (2008) 14 SCC 306 and  our  attention  has  been  drawn  to
Paragraph 26 of the said judgment which reads as follows:

             “26. Admittedly, there is nothing on record to  show  any  mala
             fides attributed against the members of the expert body of  the
             University. The University Authorities had also before the High
             Court in their objections to the writ petition  taken  a  stand
             that the appellant had  fully  satisfied  the  requirement  for
             appointment. In this view of the matter and in the  absence  of
             any mala fides either of the expert body of the  University  or
             of the University Authorities and in view  of  the  discussions
             made hereinabove, it would be difficult to sustain  the  orders
             of the High Court as the opinion expressed by the Board and its
             recommendations cannot be  said  to  be  illegal,  invalid  and
             without jurisdiction.”


      Yet another decision on which reliance is placed is  the  decision  of
this Court in the case of Rajbir Singh Dalal (Dr.)  v.  Chaudhari  Devi  Lal
University, (2008) 9 SCC 284 and our attention has been drawn  to  Paragraph
29 of the judgment which reads as follows:

             “29. It may be mentioned that on a  clarification  sought  from
             UGC whether a candidate  who  possesses  a  Masters  degree  in
             Public Administration is eligible for the post of  Lecturer  in
             Political Science and vice versa, UGC wrote a letter dated 5-3-
             1992 to the Registrar, M.D. University, Rohtak stating that the
             subjects of Political Science  and  Public  Administration  are
             interchangeable and interrelated, and a candidate who possesses
             Masters degree in Public Administration is eligible as Lecturer
             in Political Science and vice versa. Thus, this is the view  of
             UGC, which is an expert in  academic  matters,  and  the  Court
             should not sit in appeal over this opinion and take a  contrary
             view.”


      Mr. Naveen  R.  Nath,  advocate  appearing  on  behalf  of  respondent
Shivanand, however, contends that a person holding the post-graduate  degree
in Mathematics is not eligible for appointment as Lecturer in  MCA.   It  is
pointed out that the advertisement was composite and related to  appointment
of various posts in different subjects and, hence, the expression  ‘relevant
subject’ has to be understood in that context.   It  has  been  pointed  out
that the applications were invited  for  filling  the  posts  of  Professor,
Reader and Lecturer in the Department of English, Urdu, Persian,  Chemistry,
   Bio-Chemistry, Applied Electronics, Geology,  Law  etc.,  including  MCA.
According to the learned counsel, the relevant subject in the  advertisement
here  would  mean  the  subjects  for  which  applications   were   invited.
According to him, the Board of appointment misdirected itself in going  into
the question as to whether Mathematics is a relevant subject or not in  MCA.
 Accordingly, he submits that the opinion of the  Board  of  appointment  as
approved by the Syndicate is not that  sacrosanct  so  as  to  deprive  High
Court the power of judicial review.

      We have bestowed our consideration to the rival submissions and we  do
not find any substance in the submission of  the  learned  counsel  for  the
appellant and the authorities relied on are clearly distinguishable.

      Main thrust in the appellant’s contention is that when an expert  body
i.e. Board of appointment consisting of high academicians, has found  Ganpat
eligible and qualified  and  which  has  been  approved  by  the  Syndicate,
another expert body, the High Court ought not to have acted as  a  Court  of
appeal, examined the pros and cons and come to the  conclusion  that  Ganpat
did not possess the requisite qualification.   There  is  no  difficulty  in
accepting the broad submission that academic  issues  must  be  left  to  be
decided by the expert  body  and  the  court  cannot  act  as  an  appellate
authority in such matters.  It deserves great respect. When  two  views  are
possible  and  the  expert  body  has  taken  a  view,  the  same   deserves
acceptance. However, to say that expert body’s opinion  deserves  acceptance
in all circumstances and is not subject to judicial review does  not  appeal
to  us.  In  our  constitutional  scheme  the  decision  of  the  Board   of
appointment cannot be said to be final and absolute.  Any  other  view  will
have a very dangerous consequence and one must remind itself of  the  famous
words  of  Lord  Acton  “power  corrupts   and   absolute   power   corrupts
absolutely”.

      Now we revert to the authorities  of  this  Court  relied  on  by  the
appellants.  B.C. Mylarappa (supra) deals with the appointment to  the  post
of Professor, in which one of the eligibility condition for appointment  was
’10  years’  of  experience  of  post-graduate  teaching’.   The  Board   of
appointment considered  the  selected  candidate  eligible  by  taking  into
consideration his experience as Lecturer and Research Assistant and  in  the
absence of any mala fide, this Court observed that its opinion  is  not  fit
to be rejected.  This would be evident from Paragraph 24  of  the  judgment,
which reads as follows:

             “24. There is another aspect  of  this  matter  which  is  also
             relevant for proper decision of this appeal.  We  have  already
             indicated earlier that the Board of Appointment was constituted
             with experts in this line by the University  Authorities.  They
             have considered not only the candidature of the  appellant  and
             his experience as a Lecturer and Research Assistant along  with
             others came to hold that it  was  the  appellant  who  was  the
             candidate who could satisfy the conditions for  appointment  to
             the post of Professor. Such being the  selection  made  by  the
             expert body, it is difficult for us to accept the judgments  of
             the High Court when we have failed to  notice  any  mala  fides
             attributed to the members of the expert body in  selecting  the
             appellant to the said post.”



      However, this judgment cannot be read to  mean  that  the  courts  are
denuded of the power to scrutinize the experience in a given case  and  come
to a contrary conclusion.  As stated earlier, when the  view  taken  by  the
expert body is one of the possible views, the same is fit  to  be  accepted.
Further, the yardstick would  be  different  when  it  concerns  eligibility
conditions pertaining to  ‘qualification’  and  ‘experience’.   In  case  of
experience it is best known to the expert body in the  field  in  regard  to
the actual work done  and,  therefore,  its  opinion  is  of  higher  degree
deserving acceptance ordinarily.  Hence, in our opinion, this  judgment  did
not fetter the power of the High Court.

      As regards the decision of this Court in  the  case  of  Rajbir  Singh
Dalal (supra), the same is clearly distinguishable. In  the  said  case  the
controversy  which  fell  for  consideration  was  as  to   whether   public
administration is one of the branches of Political Science and in  the  face
of the opinion of  the  expert  body  that  they  are  interchangeable,  the
conclusion of the High Court that they are distinct  and  separate  was  not
approved. This would be evident from the following  passage  from  the  said
judgment.

            “45. As  has  been  pointed  out  by  my  learned  Brother,  the
               University has in its counter-affidavit taken a  stand  that
               Public Administration is one of the  branches  of  Political
               Science  and the Selection Committee  comprised  of  eminent
               scholars had rightly chosen  the appellant for the  post  of
               Reader after considering his academic achievements and  also
               relying upon the view of the University Grants Commission in
               its letter dated  5-3-1992  stating  that  the  subjects  of
               Political   Science   and    Public    Administration    are
               interchangeable and interrelated and that  a  candidate  who
               possesses a  Masters  degree  in  Public  Administration  is
               eligible to be appointed as Lecturer in  Political  Science.
               Similarly,  a  candidate  possessing  a  Masters  degree  in
               Political Science is eligible for appointment to the post of
               Lecturer in Public Administration.


            46. Despite the aforesaid views expressed by the  expert  bodies
               such as the University and the University Grants Commission,
               the High Court has held Public Administration and  Political
               Science to be distinct and separate disciplines.….”

      In the present case, there is no such plea. Here, the plea is that  as
Mathematics is one of the subjects in MCA and, therefore, Ganpat  possessing
Masters’ degree in Mathematics is eligible.  It  is  not  the  plea  of  the
University that Masters’ degree in Mathematics is interchangeable with  MCA.
 Not only this, in the aforesaid case, this  Court  came  to  the  aforesaid
conclusion due to different eligibility criteria prescribed for  appointment
to the post of Reader and Lecturer. It was pointed out by  this  Court  that
in  the  case  of  Reader  the  requirement  was  Masters’  degree   in   an
‘appropriate subject’, whereas for appointment as Lecturer it was  ‘relevant
subject’. Said case related to the appointment of Reader. On account of  the
use of different expressions, this Court came to the conclusion  that  post-
graduate degree holder in Political Science is eligible to be  appointed  to
the post of Reader in Public Administration.  This  would  be  evident  from
paragraphs 48 and 49 of the judgment, which read as follows:

            “48. The recruitment rules followed by  the  University  clearly
               indicate that in order to be  appointed  as  Lecturer  in  a
               particular discipline a candidate must have  a  postgraduate
               degree in the relevant  subject.  On  the  other  hand,  for
               appointment to the post of Reader such a condition  has  not
               been specified.  In  fact,  in  Regulation  2  it  has  been
               generally indicated that no person shall be appointed  to  a
               teaching post in  the  University  or  in  any  institution,
               including  constituent  or  affiliated  colleges  recognized
               under the UGC Act, 1956, or any institution deemed to  be  a
               university under Section 3 of the said Act, in a subject, if
               he/she  does  not  fulfil  the   requirement   as   to   the
               qualifications for the appropriate subject.


            49.  In my view, the omission in the Regulations cannot be  said
               to be unintentional or a case of casus omissus. In my  view,
               the expression “appropriate subject” was intended  to  cover
               the post of Reader and once the expert bodies had  indicated
               that  the  appellant  who  held  a  postgraduate  degree  in
               Political Science  was eligible to be appointed to the  post
               of Reader in Public  Administration  and  had  been  rightly
               appointed to such post, it is normally not for the courts to
               question such opinion, unless it has  specialised  knowledge
               of the subject.”

                                    (underlining ours)



      This Court did not say that Political Science is the relevant  subject
for appointment as Lecturer in Public Administration.

      Having set the legal  position  in  the  right  perspective,  we  now
proceed to consider the facts of the present case. As is evident  from  the
advertisement, applications were invited for filling up  various  posts  in
different  subjects  including  the  post  of   Lecturer   in   MCA.  
The
advertisement requires post-graduate degree in the ‘relevant subject’.  The
relevant subject would, therefore, in the context  of  appointment  to  the
post of Lecturer, mean post-graduate degree in MCA.
In  our  opinion,  for
appointment to the post of Lecturer, Masters’ degree in the Mathematics  is
not the relevant subject.  The advertisement requires  Masters’  degree  in
‘relevant subject’ and not ‘appropriate subject’.
In the present case, the
Board  of  appointment  has  not  stated  that  post-graduate   degree   in
Mathematics is the relevant subject for MCA but in sum and substance it  is
equivalent to a post-graduate degree in MCA for the reason that Mathematics
is one of the subjects taught in MCA.
This, in our opinion, was beyond the
power of the Board of appointment.  It shall not make any  difference  even
if Mathematics is taught in the Masters’ of  Computer  Application  course.
The learned Single Judge, in our opinion, gravely erred  in  upholding  the
contention of Ganpat and the University that ‘relevant subject’ would  mean
‘such of those subjects as are offered in the MCA course’.
If  Mathematics
is taught in a post-graduate course  in  Commerce,  a  Masters’  degree  in
Commerce would not be relevant for appointment in Mathematics or  for  that
matter in MCA.
There may be a situation in which Masters’ degree in MCA is
differently christened and such a degree may be considered relevant but  it
would be too much to say that a candidate having  post-graduate  degree  in
any of the subjects taught in MCA would make  the  holders  of  a  Masters’
degree  in  those  subjects  as  holder  of  Masters’  degree  in  Computer
Application and, therefore, eligible for appointment.
The language of  the
advertisement is clear and explicit and does not admit any  ambiguity  and,
hence, it has to be given effect to.  Since the appellant  Ganpat  did  not
have a Masters’ degree in Computer Application, in our opinion, he was  not
entitled to be considered for appointment  as  Lecturer  in  MCA.  
We  are
aghast to see that when a candidate possessing Masters’ degree  in  MCA  is
available,  the  Board  of  appointment  had  chosen  an  unqualified   and
ineligible person for appointment in  that  subject.  
Its  recommendations
are, therefore, illegal and invalid.  Natural corollary thereof is that the
University acting on such recommendation and appointing Ganpat as  Lecturer
cannot be allowed to do so and that the Division Bench of  the  High  Court
was right in setting aside his appointment.
In our opinion, an unqualified
person cannot be appointed, whoever may be the recommendee.
We are of  the
opinion that the Division Bench of the High Court was right in holding that
Ganpat was not eligible for appointment of Lecturer in Masters’ of Computer
Application.

      Mr.Bhat and Ms. Suri lastly  assail  the  order  of  the  High  Court
issuing mandamus for appointment of Shivanand as Lecturer  in  MCA.
 It  is
contended that after setting aside the  appointment  of  Ganpat,  the  High
Court should have directed for consideration of the case of  Shivanand  and
such other candidates who were found eligible for consideration. It is also
contended that Shivanand may have the right of consideration but  certainly
not the right of appointment.

            We find substance in this submission.
Ordinarily,  in  a  case
where the person appointed is found ineligible, this  Court  after  setting
aside such appointment, directs for consideration of cases of such  of  the
candidates, who have been found eligible. 
It is only in  exceptional  cases
that this Court issues mandamus for appointment. 
The case in  hand  is  not
one of those cases where the High Court ought to have issued mandamus  for appointment of Shivanand as Lecturer in MCA. 
Hence, we are of  the  opinion
that the  High  Court  rightly  held  Ganpat  ineligible  and  quashed  his
appointment. 
However, it erred  in  issuing  mandamus  for  appointment  of
Shivanand. 
Accordingly, we uphold the impugned  order  of  the  High  Court
whereby it had set aside the appointment of the appellant herein and direct
that the case of the writ petitioner Shivanand and all other candidates  be
considered in accordance with law.  
However, we  make  it  clear  that  the
selection already made shall be taken to its logical conclusion.

            In the result, we dismiss these appeals  with  modification  in
the direction as aforesaid with cost, which we assess at Rs.50,000/-(Rupees
fifty thousand) only in both the cases, payable by the appellants  in  both
the appeals equally.


                                                    ………………………………………………………….J
                                                    (CHANDRAMAULI KR PRASAD)



                                                    ………………………………………………………….J
                                                             (KURIAN JOSEPH)

New Delhi,
November 01, 2013.

                           -----------------------
22

Service matter = Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner = U.T. CHANDIGARH & ORS. …APPELLANTS VERSUS GURCHARAN SINGH & ANR. ...RESPONDENTS = Reported in http://judis.nic.in/supremecourt/filename=40951

Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner =
 if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance
of the mistake must be recovered. 
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake
and in such  an  event,  even  the  appellant  might  have  to  pay  to  the
respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.  =
The respondent was appointed as a Clerk by  the  appellant  Chandigarh
Transport  Undertaking  on  the  quota  reserved  for  ex-servicemen.   
The
respondent had rendered his services to  the  Indian  Army  as  a  Combatant
Clerk upto 31st January, 1990, till the date when  he  was  discharged  from
the Indian Army.
      Upon his appointment as a  Clerk  under  an  office  order  dated  2nd
September, 1992, his  pay  had  been  fixed  and  he  was  paid  his  salary
accordingly. 
Only when he retired in 1997, it was brought to the notice  of
the employer, on getting an audit query, that his salary  had  been  wrongly fixed under the order dated 2nd September, 1992.  
The mistake  committed  in pay fixation had been rectified by an order dated 13th October, 1998. =

 Order 4 of the Orders, being  relevant  for  the
purpose, has been reproduced herein-below:


      “4.   Fixation of pay of re-employed pensions.


      a)    Re-employed pensioners shall be allowed  to  draw  pay  only  in
           prescribed scales of pay for the posts in  which  they  are  re-
           employed.  No protection of the scales of pay of the  post  held
           by them prior to retirement shall be given.






      b)    i)    In all cases where  the  pension  is  fully  ignored,  the
           initial pay on re-employment shall be fixed at  the  minimum  of
           the scales of pay of the re-employed post.


           ii)   In cases where the entire pension and pensionary  benefits
           are not ignored  for  pay  fixation,  the  initial  pay  on  re-
           employment shall be fixed at the same  stage  as  the  last  pay
           drawn before retirement.  If there is no such stage in  the  re-
           employed post, the pay shall be fixed at the  stage  below  that
           pay.  If the maximum of the pay scales in which a  pensioner  is
           re-employed is less than  the  last  pay  drawn  by  him  before
           retirement, his initial pay shall be fixed at the maximum of the
           scales of the re-employed post.  Similarly, if  the  minimum  of
           the scales of the pay in which a  pensioner  is  re-employed  is
           more than the last  pay  drawn  by  him  before  retirement  his
           initial pay shall be fixed at the minimum of the scales  of  pay
           of the re-employed post.   However,  in  all  these  cases,  non
           ignorable  past  of  the  pension  and  pension  equivalent   of
           retirement benefits shall be reduced from the pay so fixed.


      c)    The re-employed pensioner will be in addition to  pay  as  fixed
           under para (b) above shall be permitted to drawn separately  and
           pension sanctioned to him  and  to  retain  any  other  form  of
           retirement benefits.


      d)    In the case of persons retiring before attaining the age  of  55
           years  and  who  are  re-employed,  pension  (including  pension
           equivalent of gratuity and other forms of  retirement  benefits)
           shall be ignored for  initial  pay  fixation  to  the  following
           extent.


           (i)    In  the  case  of  ex-servicemen  who  held  posts  below
           commissioned officer rank in the Defence Forces and in the  case
           of Civilians who held posts below Group (A) posts at the time of
           their retirement benefits shall be ignored.


           (ii)  In the case of service officers belonging to  the  Defence
           Forces and Civilian Pensioners who hold Group ‘A’ posts  at  the
           time of their retirement, the first Rs.500/- of the pension  and
           pension equivalent of retirement benefits shall be ignored.”


 8.   The respondent had been given an option whereby he had opted  for  the
minimum scale of pay, which was paid to the Clerk  and  therefore,  his  pay
had been rightly fixed as per the option read with Order 4(a) of the  Rules.

the High Court was in error while  allowing
the petition because it is clearly revealed from the option  form  that  the
respondent had agreed to get his pay fixed as per the minimum of pay in  the
pay-scale of the Clerk, the post to which he had been  re-employed.   
It  is
pertinent to note that the respondent has been getting regular pension  from
the Indian Army for his past services rendered to the Indian Army.   
As  per
the provisions of the  Orders  and  as  per  the  option  exercised  by  the
respondent, service rendered by the respondent to the Indian Army cannot  be
taken into account for the purposes of his pay fixation  as  the  respondent
would be getting his pension and there would not be any deduction  from  his
pension or his salary on account of the pension received  by  him  from  the
Indian Army.   
If  nothing  has  been  deducted  from  the  pension  of  the
respondent upon being re-employed and  as the respondent would  continue  to
get his pension and other benefits from the Army for his past  services,  in
our opinion, the High Court was not right  while permitting  the  respondent
to get his higher pay fixed by taking into account the services rendered  by
the respondent to the Indian Army.  
Even from sound common sense, it can  be
seen that for the past service rendered to the Indian Army,  the  respondent
is getting pension and other  perquisites  which  a  retired  or  discharged
soldier is entitled to even after being re-employed.  
The respondent  would,
therefore, not have any right to get any further advantage in the nature  of
higher salary or a higher  pay  scale,  especially  when  nothing  from  his
salary was being deducted on account of his getting pension  or  perquisites
from the earlier employer.


 11.  In view of the aforestated position, in our opinion, the Tribunal  was
absolutely right in coming to the conclusion that  the  pay  fixation  under
the order dated 13th  October,  1998  was  correct  because  a  mistake  was
committed in the earlier pay fixation under the order dated  2nd  September,
1992.


12.   Though a submission had been made on behalf of the respondent that 
no
amount should be recovered from the salary paid to the respondent, the  said
submission can not be accepted because 
if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance of the mistake must be recovered. 
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake and in such  an  event,  even  the  appellant  might  have  to  pay  to  the respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.


13.   For the aforestated reasons, we are of the view that  the  High  Court
was not correct in allowing the writ petition.  We quash and set  aside  the
order passed by the High Court so as to restore  the  order  passed  by  the
Tribunal and give effect to the  pay  fixation  order  dated  13th  October,
1998.  The appeal stands disposed of as allowed with no order as to costs.


                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  9873   OF 2013
                  (Arising out of SLP(C) No.17881 of 2008)



U.T. CHANDIGARH & ORS.              …APPELLANTS


                                VERSUS

GURCHARAN SINGH & ANR.               ...RESPONDENTS



                              1 J U D G M E N T




1 ANIL R. DAVE, J.



1.    Leave granted.
2.    Being aggrieved by the  Judgment  delivered  in  Civil  Writ  Petition
No.7006-CAT of 2003 dated 20th March, 2008 by the High Court of  Punjab  and
Haryana at Chandigarh, this appeal has been filed by the  employer  –  Union
Territory of Chandigarh and others.
3.    The facts giving rise to the present litigation in a nut-shell are  as
under:
      The respondent was appointed as a Clerk by  the  appellant  Chandigarh
Transport  Undertaking  on  the  quota  reserved  for  ex-servicemen.  
The
respondent had rendered his services to  the  Indian  Army  as  a  Combatant
Clerk upto 31st January, 1990, till the date when  he  was  discharged  from
the Indian Army.
      Upon his appointment as a  Clerk  under  an  office  order  dated  2nd
September, 1992, his  pay  had  been  fixed  and  he  was  paid  his  salary
accordingly.
Only when he retired in 1997, it was brought to the notice  of
the employer, on getting an audit query, that his salary  had  been  wrongly fixed under the order dated 2nd September, 1992.  The mistake  committed  in pay fixation had been rectified by an order dated 13th October, 1998.
4.    Being aggrieved by the re-fixation of  his  pay,  the  respondent  had
made several representations but as no change was effected by the appellant-
employer in the pay so re-fixed, the respondent had approached  the  Central
Administrative Tribunal (hereinafter referred to  as  ‘  the  Tribunal’)  by
filing Original Application No.975/CH/2000.
The said OA had been  dismissed
by the Tribunal by an order dated 4th January,  2002.
 Being  aggrieved  by
the order  rejecting  the  aforestated  O.A.,  the  respondent-employee  had
approached the High Court by filing the aforestated petition which has  been
allowed by an order dated 20th March, 2008 and being aggrieved by  the  said
order and judgment, this appeal has been filed by the employer.
5.    The learned counsel for the appellant had explained the  circumstances
in which the appellant was constrained to re-fix pay of  the  respondent  so
as to rectify the mistake committed while passing  the  pay  fixation  order
dated 2nd September, 1992.
The learned counsel had  taken  us  through  the
relevant regulations with regard to pay fixation of  re-employed  pensioners
and had taken us through  the  provisions  of  the  Central  Civil  Services
(Fixation of  pay  of  Re-employed  Pensioners)  Orders,  1986  (hereinafter
referred to as ‘the Orders’) under which pay  of  the  respondent  ought  to
have been fixed.

6.    The learned counsel for the appellant had submitted  that
there  were
several different notifications and orders in relation to the  pay  fixation
of re-employed pensioners, including ex-servicemen.
So as to see  that  all
the orders are available at one place, the  orders  had  been  compiled  and
notified in 1986 so that pay of the  re-employed  pensioners  can  be  fixed
only upon looking at  the  provisions  of  the  compilation  of  the  Orders
instead of looking at several different orders or  notifications  which  had
been issued from time to time.
Thus, according to the  learned  counsel,  a
comprehensive compilation of all the relevant orders, which had been  issued
from time to time and which were operative in 1996 was duly  considered  for
the purpose of re-fixation of the pay of the respondent.


7.    As the respondent had been given appointment on 15th April, 1990 as  a
Clerk on a post reserved  for  the  ex-servicemen,  the  provisions  of  the
Orders were to be looked into  for  the  purpose  of  pay  fixation  of  the
respondent.  
The learned counsel had further submitted  that  while  fixing
the pay on 2nd September, 1992, the appellant did not look into the  certain
provisions of the Orders and  an  option  exercised  by  the  respondent  in
relation to his pay fixation and therefore, incorrect  pay  had  been  fixed
under the order dated 2nd September,  1992.  
By  virtue  of  the  said  pay
fixation, the respondent was given benefit of his past services rendered  to
the Indian Army and accordingly, he  was  also  given  increments  which  he
would have got in the Indian Army.
As a result  thereof,  the  respondent’s
pay was fixed in a higher scale then what he ought  to  have  been  allowed.
As a matter of fact, as per the provisions of  Order 4 of  the  Orders,  the
respondent could not have been given benefit of his earlier services in  the
process of fixing his pay.
Order 4 of the Orders, being  relevant  for  the
purpose, has been reproduced herein-below:


      “4.   Fixation of pay of re-employed pensions.


      a)    Re-employed pensioners shall be allowed  to  draw  pay  only  in
           prescribed scales of pay for the posts in  which  they  are  re-
           employed.  No protection of the scales of pay of the  post  held
           by them prior to retirement shall be given.






      b)    i)    In all cases where  the  pension  is  fully  ignored,  the
           initial pay on re-employment shall be fixed at  the  minimum  of
           the scales of pay of the re-employed post.


           ii)   In cases where the entire pension and pensionary  benefits
           are not ignored  for  pay  fixation,  the  initial  pay  on  re-
           employment shall be fixed at the same  stage  as  the  last  pay
           drawn before retirement.  If there is no such stage in  the  re-
           employed post, the pay shall be fixed at the  stage  below  that
           pay.  If the maximum of the pay scales in which a  pensioner  is
           re-employed is less than  the  last  pay  drawn  by  him  before
           retirement, his initial pay shall be fixed at the maximum of the
           scales of the re-employed post.  Similarly, if  the  minimum  of
           the scales of the pay in which a  pensioner  is  re-employed  is
           more than the last  pay  drawn  by  him  before  retirement  his
           initial pay shall be fixed at the minimum of the scales  of  pay
           of the re-employed post.   However,  in  all  these  cases,  non
           ignorable  past  of  the  pension  and  pension  equivalent   of
           retirement benefits shall be reduced from the pay so fixed.


      c)    The re-employed pensioner will be in addition to  pay  as  fixed
           under para (b) above shall be permitted to drawn separately  and
           pension sanctioned to him  and  to  retain  any  other  form  of
           retirement benefits.


      d)    In the case of persons retiring before attaining the age  of  55
           years  and  who  are  re-employed,  pension  (including  pension
           equivalent of gratuity and other forms of  retirement  benefits)
           shall be ignored for  initial  pay  fixation  to  the  following
           extent.


           (i)    In  the  case  of  ex-servicemen  who  held  posts  below
           commissioned officer rank in the Defence Forces and in the  case
           of Civilians who held posts below Group (A) posts at the time of
           their retirement benefits shall be ignored.


           (ii)  In the case of service officers belonging to  the  Defence
           Forces and Civilian Pensioners who hold Group ‘A’ posts  at  the
           time of their retirement, the first Rs.500/- of the pension  and
           pension equivalent of retirement benefits shall be ignored.”


 8.   The respondent had been given an option whereby he had opted  for  the
minimum scale of pay, which was paid to the Clerk  and  therefore,  his  pay
had been rightly fixed as per the option read with Order 4(a) of the  Rules.
 The learned counsel had further submitted  that  while  allowing  the  writ
petition, the High Court had not considered the aforestated  facts  at  all.
The High Court did  not look into the fact that an option had been given  to
the respondent-employee and his pay had been fixed only as  per  the  option
exercised by him and as per the provisions of Order 4  of  the  Orders.   It
had, therefore,  been  submitted  that  the  view  taken  by  the  Tribunal,
confirming re-fixation of pay was correct and the High Court  ought  not  to
have disturbed the same by allowing the writ petition.  It  was,  therefore,
submitted that the order dated 20th March, 2009 of the High Court should  be
quashed by allowing the appeal.


9.    On the other hand, the learned counsel appearing for  the  respondent-
employee had at the first instance submitted that  the  respondent  was  not
having a copy of the option and  he  was  not  aware  about  the  option  so
exercised.  He had submitted that the pay had  rightly  been  fixed  by  the
order dated 2nd September, 1992 and it ought not to have  been  re-fixed  to
the prejudice  of  the  employee  after  six  years.    He  had,  therefore,
submitted that the view taken  by  the  High  Court  was  correct.   He  had
further submitted that perhaps  the  respondent  might  have  to  make  some
payment  to  the  appellant-employer  as  according  to  the  employer,  the
respondent had been paid more salary on account of incorrect  pay  fixation.
He had also submitted that recovering the salary so  paid  would  be  unjust
and therefore, in any case, nothing should be recovered from the respondent-
employee.


10.   Upon hearing the learned counsel and upon perusal of the  option  form
dated 18-7-1990, in our opinion,
the High Court was in error while  allowing
the petition because it is clearly revealed from the option  form  that  the
respondent had agreed to get his pay fixed as per the minimum of pay in  the
pay-scale of the Clerk, the post to which he had been  re-employed.  
It  is
pertinent to note that the respondent has been getting regular pension  from
the Indian Army for his past services rendered to the Indian Army.   
As  per
the provisions of the  Orders  and  as  per  the  option  exercised  by  the
respondent, service rendered by the respondent to the Indian Army cannot  be
taken into account for the purposes of his pay fixation  as  the  respondent
would be getting his pension and there would not be any deduction  from  his
pension or his salary on account of the pension received  by  him  from  the
Indian Army.   
If  nothing  has  been  deducted  from  the  pension  of  the
respondent upon being re-employed and  as the respondent would  continue  to
get his pension and other benefits from the Army for his past  services,  in
our opinion, the High Court was not right  while permitting  the  respondent
to get his higher pay fixed by taking into account the services rendered  by
the respondent to the Indian Army.
Even from sound common sense, it can  be
seen that for the past service rendered to the Indian Army,  the  respondent
is getting pension and other  perquisites  which  a  retired  or  discharged
soldier is entitled to even after being re-employed.  
The respondent  would,
therefore, not have any right to get any further advantage in the nature  of
higher salary or a higher  pay  scale,  especially  when  nothing  from  his
salary was being deducted on account of his getting pension  or  perquisites
from the earlier employer.


 11.  In view of the aforestated position, in our opinion, the Tribunal  was
absolutely right in coming to the conclusion that  the  pay  fixation  under
the order dated 13th  October,  1998  was  correct  because  a  mistake  was
committed in the earlier pay fixation under the order dated  2nd  September,
1992.


12.   Though a submission had been made on behalf of the respondent that  no
amount should be recovered from the salary paid to the respondent, the  said
submission can not be accepted because if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance
of the mistake must be recovered.
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake
and in such  an  event,  even  the  appellant  might  have  to  pay  to  the
respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.


13.   For the aforestated reasons, we are of the view that  the  High  Court
was not correct in allowing the writ petition.  We quash and set  aside  the
order passed by the High Court so as to restore  the  order  passed  by  the
Tribunal and give effect to the  pay  fixation  order  dated  13th  October,
1998.  The appeal stands disposed of as allowed with no order as to costs.




                                            ……..…………......................J.
                                                              (ANIL R. DAVE)


                                …….........................................J
                                                               (DIPAK MISRA)
New Delhi
November 01 ,  2013.
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