SURESH KUMAR v. M/O DEFENCE

transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. „Errors" in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal- aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.

2. Brief facts:

2.1 In the present case, the error has been committed by the authoritarian acts of the instrumentality of state in advertisement issued for the post of Librarian, the relevant part of the advertisement is reproduced herein for ready reference:

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2.2 The applicant, fulfilling all the eligibility criteria, applied for the post of Librarian and was called for selection through written examination followed by practical test and interview. Vide telegram dated 29.06.2011 he was informed about his selection subject to the clearance of medical examination and police verification. He was issued appointment letter by respondent No.2 vide letter dated 08.11.2011. Applicant joined on the post of Librarian on 21.11.2011 in the office of respondent No.3 in the pay scale of Rs.9300-34800 (PB-2) with Grade Pay of Rs.4200 and was paid the salary with annual increments till May 2015. He was confirmed on the said post w.e.f. 21.11.2013 through a DPC held on

13.12.2013.

2.3 Vide letter dated 30.04.2015 addressed to one Sh. Sumender Singh under RTI Act, respondent No.2 directed the office of respondent No.3 that the pay scale of Librarian has been wrongly fixed in the pay band of Rs/9300-34800 (PB-2) with grade pay of Rs.4200 and further directed to correct the pay scale of the applicant in the pay band of Rs.5200-20200 (PB-1) with grade pay of Rs.1900 and to effect recovery from the applicant in installments, not more than 25% of the salary to avoid financial hardship.

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2.4 Respondents vide letter dated 29.06.2015 intimated the applicant that his pay will be revised from PB-2 to PB-1 with grade pay of Rs.1900 w.e.f. July 2015 and the excess amount paid as per the pay scale in PB-2 with grade pay of Rs.4200 amounting to Rs.5,63,799/- is required to be deposited by him or the same shall be recovered from him in monthly installments starting from July 2015.

2.5 It is submitted that applicant was appointed as Librarian and as per the VI Central Pay Commission (CPC) Report, as accepted by the Government, the pay scale of the Librarian Officer has been placed in PB-2 with grade pay of Rs.4200, which was duly granted to the applicant, whereas the VI CPC has recommended the pay scale of Library Attendant in the PB-1 with grade pay of Rs.1900. It is further submitted that the duties attached to the post of applicant, i.e. Librarian are different from the post of Library Attendant and carry the duties attached to the post of Library and Information Officer.

2.6 Feeling aggrieved, applicant filed OA No.2475/2015 before this Tribunal for redressal of his grievance. The OA was heard for interim prayer and the interim relief was granted vide order dated 23.07.2015 on the basic premise that the impugned order of recovery has been issued without issuance of any show cause notice to the applicant. During

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the pendency of the OA, respondents issued show cause notice to the applicant, vide letter dated 31.07.2015. This OA was disposed of on 08.09.2015 stating that since the respondents have issued show cause notice dated 31.07.2015 and no final order has been passed on such notice, thus the OA has become infructuous and the applicant will have cause of action only after final order is passed. Relevant part of the order is reproduced below:

"The Original Application is accordingly disposed of with liberty to the applicant to work out his claim for pay fixation when he is adversely affected by the final order yet to be passed by the respondents regarding fixation of his pay. Nevertheless, till such decision is taken and for a period of fifteen days thereafter, the respondents should not make any recovery from the salary of the applicant. The applicant is at liberty to give his reply to the aforementioned show cause notice within seven days from the date of receipt of a copy of this Order."

2.7 The applicant gave detailed reply to the show cause notice on 21.09.2015 bringing out the fact that the 6^thCPC has granted the pay scale of PB-2 with grade pay of Rs.4200 to the post of Librarian and thus the applicant"s pay has been correctly given at the time of appointment and moreover, the post of Librarian is identically situated in the other training centers and school of the respondents are being paid in PB-2 with grade pay of Rs.4200.

2.8 Respondents passed the speaking order dated 12.10.2015 and directed to reduce the pay scale of the applicant to PB-1 with grade pay of Rs.1900 as against pay

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scale of PB-2 with grade pay of Rs.4200 and affected recovery of Rs.5,63,799 and directed the applicant to pay such amount or it shall be recovered from his pay at the rate of Rs.5000/- per month. Hence this OA.

3. The applicant is seeking following reliefs:

"i) Declare the action of the respondents illegal and arbitrary in reducing the pay scale of the applicant in PB-1 with grade pay of Rs.1900/-; and

ii) Quash and set aside order dated 12 Oct 2015; and

iii) Declare that the applicant is entitled to the pay scale in the PB-2 with grade pay of Rs.4200/-; and

iv) Alternatively direct the respondents that the recovery of amount already paid to the applicants with respect to the payment of pay and allowances in PB-2 with grade pay of Rs.4200/- cannot be effected; and

v) To award exemplary costs; and

vi) To pass any other order as this Hon"ble Tribunal deem fit in the interest of justice."

4. Learned counsel for applicant placed reliance on the judgment of Hon"ble Supreme Court titled State of Punjab & ors. vs. Rafiq Masih, Civil Appeal No.11527/2014 and other connected matters decided on 18.12.2014 wherein it is held that recovery from employees belonging to Class-II and Class- IV (for Group-C and Group-D service) is impermissible in law.

5. He also relied on the judgment of Hon"ble Supreme Court in Sahib Ram vs. State of Haryana, 1995 SCC (Supl.)

(1) 18 wherein it is held that it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong

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construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant.

6. Per contra, respondents filed the counter affidavit taking preliminary objection on the question of jurisdiction. The applicant is working under respondent No.3 at Meerut and thus to file the present OA, he has to seek permission of Hon"ble Chairman under Section 25 of the Administrative Tribunals Act, 1985. It is further submitted that the advertisement published in January/February 2011 was issued for the post of Librarian, wherein educational qualification and other details were correctly issued but due to typographical error the pay scale was mentioned as Rs.9300-34800 (PB-2) with GP Rs.4200. The applicant was selected for the post of Librarian by the Board of Officers vide proceedings dated 26.05.2011. After the necessary formalities, the applicant was issued appointment letter dated 08.11.2011 by the MoD (Army) under intimation to the respondent No.3 and he joined as Librarian on 21.11.2011. When the error in pay scale came to notice, the matter was re-examined by the respondents and it was pointed out by the Ministry of Defence (Army), respondent No.2 that the post which had been authorized in respondents No.3 was in the

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Pay Band of Rs.5200-20200 (PB-1) with GP Rs.1900. Accordingly the same was corrected and vide letter dated 29.06.2015 the pay scale of the applicant was re-fixed and it was directed that due to said anomaly wherein a sum of Rs.5.63 lacs (approx.) was to be recovered, being the excess amount paid to the applicant, which amount was to be recovered in monthly instalments. The order 29.06.2015 was challenged by the applicant before this Tribunal by filing OA No.2475/2015, which was disposed of vide order dated 08.09.2015. During the pendency of the OA, on the direction of this Tribunal, respondents issued show cause notice to the applicant. Thereafter, this Tribunal while disposing of the OA observed that since the respondents have issued show cause notice dated 31.07.2015 to the applicant and no final order has been passed on such notice, thus the OA has become infructuous and the applicant will have cause of action only after final order is passed. However, liberty was granted to the applicant to work out his claim for pay fixation. Thereafter, applicant replied to the show cause notice. After considering the reply of the applicant, respondents, in compliance of the Tribunal"s order dated 08.09.2015, passed a speaking order dated 12.10.2015 whereby the pay of the applicant was correctly fixed in the pay scale of Rs.5200- 20200 (PB-1) with GP Rs.1900 and it was also directed that the excess amount paid to the applicant be recovered from his

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by way of monthly instalments amounting to Rs.5000/- per month. It is further submitted that the concept of „Equal pay for equal work" is not applicable to the applicant as the applicant is not doing the same work as is being done in other Stations of Indian Army. The grant of excess salary to the applicant would be in violation of the Recruitment Rules for the said post.

7. Learned counsel for respondents submitted that the case of Rafiq Masih (supra) relied upon by the applicant is not relevant to the present facts of the case wherein it is held that recovery of excess payment from an employee made for a period more than five years before the order of recovery is issued, would be impermissible in law. As in the present case impugned recovery order has been issued within four years of such excess payment, therefore, recovery is justified.

8. Heard Sh. Rajiv Manglik, learned counsel for applicant and Sh. Hanu Bhaskar, learned counsel for respondents and perused the material on record.

9. Analysis:

9.1 It is not disputed that pay scale of the post of Librarian has been placed in PB-1 and PB-2 and the advertised pay scale was PB-2. Based on above promise and expectation, the applicant applied and was selected for said post with PB-2

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scale. The appointment order of applicant was issued vide communication dated 08.11.2011 which reads as under:

"Shri. Suresh Kumar S/o Hukam Singh (Vill ) Hasanpur Chowk Wali Gali,Delhi Road (PS) Sadar Thana

(PO, Teh & Distt) SAHARANPUR

Uttar Pradesh-247 001

APPOINTMENT OF LIBRARIAN IN REMOUNT VETERINARY

CORPS

1. You have been selected as LIBRARIAN on temporary basis in Remount Veterinary Corps. Your appointment is on probation for a period of 02 years.

2. The terms and conditions of the post of LIBRARIAN are given in Appx 'A' too this letter. If these terms and conditions are acceptable to you, please report to RVC Centre & College, Meerut Cantt on or before 08 DEC 2011.

3. Your appointment will take effect from the date of assumption of duties as LIBRARIAN in RVC Centre & College, Meerut Cantt.

4. In case you fail to report to RVC Centre & College, Meerut Cantt by due date, the offer of appointment will automatically be deemed as cancelled.

5. You will travel at your own expense and no TA/DA is admissible.

6. Please ack receipt and intimate this office regarding your willingness to accept the job offered.

(YVVSR Murty)

Col

Dir RVS (Pers)"

9.2 It is the case of the respondents that selection to the post of Librarian in PB-2 was erroneous for the location at Meerut. On detecting the error on 30.04.2015, the same is now being rectified by refixation of pay of the applicant in PB- 1 vide order dated 29.06.2015. It is not disputed that post of Librarian exists for both PB-1 and PB-2 level. Further it has

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been contended that the applicant having accepted the error continued to remain on said post at reduced PB-1, thus applicant and department are equally responsible and liable. Hence, the pay scale of Librarian in PB-2 stands rectified and no recovery shall be initiated against applicant qua the payments made in context to PB-1 scale.

10. Barbara G. Kanki in Space Safety and Human Performance , 2018 in Chapter _ Cognitive functions and

"human error" has defined that there are many definitions to human error, though they all have common feature. He further cites (Reason 1990) "Human error" means that something has been done which was: not intended by the actor, not desired by a set of Rules or external observer or that led the task or system outside its acceptable limits. He further quotes when driving a car, changing lanes without signalling may be a violation of the law or of a social norm, but may not only be judged as human error when, after accident, the failure to the signal is deemed as a part of accident event.

Likewise, an operator who follows the nominal procedure, as prescribed, can be judged to have made a human error if ant steps in the procedure are determined to be inconsistent with s specific unexpected condition, after the accident.

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11. Tricky situation has arisen as a result of incorrect mentioning of pay scale of Librarian in the advertisement.

12. The Hon"ble Supreme Court in the case of Buddhist Mission Dental College and Hospital Vs. Bhupesh Khurana and Ors., (2009) 4 SCC 484 wherein it is held as under:

"34. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice.

35. As far as the cross objections filed by the respondents are concerned, we are of the opinion that the appellant institute by giving totally misleading and false advertisement clearly misled the respondents that the institute is affiliated by the Magadh University and recognized by the Dental Council of India."

13. The Hon"ble Supreme Court in the case of M.D., T. Nadu Magnesite Ltd. Vs. S. Manickam and Ors. Legal Crystal, JT 2010 (3) SC 328 11, wherein the doctrine of promissory estoppels, as developed in the administrative law of this country, has been eloquently explained in Kaniska Trading Vs. Union of India (1995) 1 SCC 274 by Dr. A.S. Anand, J, in the following words :

"11. The doctrine of promissory estoppels or equitable estoppels is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not

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be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties."

The above case proves that a promise made by word in the advertisement and the appointment order cannot be allowed to be violated, which is detrimental to one party.

15. The Supreme Court in the case of Madras City Wine Merchants' Association v. State of Tamil Nadu, 1994 (2) SCC 509, held that a legitimate expectation may arise- (a) if there is an express promise given by a public authority; or (b) Because of the existence of a regular practice, the claimant can reasonably expect to continue; or (c) Such an expectation must be reasonable.

16. The Hon"ble Supreme Court in the case of Official Liquidator Vs. Dayanand and Ors., (2008) 10 SCC 1 held as under:

"89. Xxx xxx xxx

"A person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial."

17. It is also noticeable that in the case of Ravi Madanlal Paliwal Vs. State of M.P. and others, 2000 (2) MPJR 222,

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the Hon"ble High Court of Madhya Pradesh at Jabalpur was dealing with the issue wherein it is held as under:

"2. ……. Thereafter, the College issued advertisement in the daily newspaper 'Nav-Bharat' dated 25-6-1989 inviting applications from candidates for filling-up various posts; including the post of Assistant Professor in the department of Physics. As regards the qualification and the salary, the advertisement indicated that - "qualification and salary as per U.G.C. College Code." In pursuance of the advertisement made by the College, petitioner applied for his appointment. In the above case, some persons were appointed not as per the advertisement and the court held that they have to be given salary as advertised."

18. Similarly, the Hon"ble High Court of Gauhati (Shillong Bench) in the case of Rajat Kanti Choudhury and Anr. Vs. State of Meghalaya and Ors., 1999 (2) GLT 18 held that appointment was made as per terms of advertisement which was issued by Government of Meghalaya. The above case also holds that the conditions in the advertisement cannot be violated.

19. Hon"ble Delhi High Court in the case of Mahindra And Mahindra Ltd. vs. Union of India, ILR 1980 Delhi 1232 held that these three petitioners made a representation to the company against the said reduction in their promised remuneration. The court held that the promised salary cannot be reduced under any circumstances. Even a government order cannot reduce the promised salary.

20. The Hon"ble Supreme Court in the case of M. Raja vs Ceeri Educational Society Pilani, Appeal (civil) 4614 of 2006

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held that the appellant had been given the benefit of pay protection. He accepted the same. He had moreover been given also additional benefits. However, the offer of appointment cannot be read so as to extend such benefits in regard to the applicability of the recommendations of the Fifth Central Pay Commission which would come in force in future. The respondents in that sense are right in contending that there being no commitment in that behalf, the question of being bound by the purported commitment did not arise. Revision of pay took place subsequently. It was, therefore, a subsequent development. Rights of the parties are not governed by any statutory provisions. They have to be considered having regard to the terms and conditions contained in the offer of appointment as also the subsequent correspondences of the parties. The matter which was never contemplated by the parties could not have been the subject matter of contract and, thus, could not have been the basis for making a promise. The above case has clearly held that any subsequent DA merger or pay revision (about which both the parties were not having any knowledge on the date of appointment), which are later developments cannot be cited for denying the salary on the date of joining.

21. In the case of Hon"ble Karnataka High Court S R Krishna Vs State of Karnataka and others, WP 32357/2013

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has held that "the selection has been made pursuant to issuance of the notification treating the petitioner as permanent employee of the fourth respondent. Hence for all purpose, he is entitled for salary and benefits payable to the permanent employees. Unless he is heard, no adverse orders could be passed..... Direction is issued to respondent 2,3 and 4 to extend all consequential and monetary benefits to the petitioner with interest at 6 % p.a. from the appointed date."

22. In the case of Mrs. Subrata Borah Chowlek Wife of Chowken Gohain and Mrs. Anima Gogoi Wife of Deepti Kumar Gogoi Vs. The Indian Oil Corporation Ltd., represented by the Chairman and Ors.,

legalcrystal.com/136473 decided on 29.04.2009, Hon"ble High Court of Gauhati held as under:

"19. .... If the respondent-Corporation had acted contrary to the promises made out in the advertisement and the selection, the Court is entitled to find out the reasons thereof.

Xxx xxx xxx

23. .... the respondents acted contrary to such promises and extracted the services of the petitioners in exploitative terms. Xxx xxx xxx

32. In Union of India v. Wing Commander T. Parthasarathi reported in (2001) 1 SCC 158 it was observed by the Apex Court that a substantive legal right cannot be denied to a person merely on some policy decision of the Government or any certificate issued by him acknowledging a particular position which has no legal sanctity. In the instant case, the respondent-Corporation could not place on record any such policy decision warranting appointment of the petitioners contrary to the promises made out to them.

Xxx xxx xxx

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36.....The respondents with their eyes wide open made out the promises to the petitioners for regular appointment and conducted the selection on that basis. At no point of time, they were intimated that their appointment shall be on less than 45 days basis and that they would also not be entitled to service benefits as promised in the advertisement."

23. There is no answer coming forth on following points :-

23.1 Advertisement issued in January/February 2011 for selection to the post of Librarian was in the pay scale of Rs.9300-34800 (PB-2).

23.2 This misrepresentation on behalf of the respondents tantamounts to unfair trade practice or bonafide mistake.

23.3 Based on the said misrepresentation applicant applied at initial stage of his career. Having acted on it the applicant accepted the offer and continued to enjoy the same.

23.4 The error is sought to be rectified after a gap of approximately 4 years by reducing the pay scale.

23.5 No show cause notice has been issued prior to re- fixation.

23.6 The applicant at this stage cannot be made to suffer for no fault of his, as he has also lost chance of getting suitable post at appropriate stage.

23.7 The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal

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promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties.

23.8 Rights of the parties are not governed by any statutory provisions. They have to be considered having regard to the terms and conditions contained in the offer of appointment as also the subsequent correspondences of the parties.

23.9 No fixing up of responsibility upon the erring personal who made such advertisement and continued the said wrong.

24. Conclusion:

In view of the aforesaid discussion, the OA is allowed. The Impugned Order 12.10.2015 is quashed and set aside. Accordingly, the pay of the applicant be refixed and restored in PB-2 and no recovery can be effected from the applicant. The respondents, as per administrative convenience, are

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directed to upgrade the said post of Librarian at RVC Centre & College, VTF, Meerut Cantt. (U.P.) or give a suitable posting to the applicant at PB-2 level at any other location. No order as to costs.

(Manish Garg) (Tarun Shridhar) Member (J) Member (A)

„SD"

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