ORDER
M. Ramachandran, J. (Vice Chairman)
1. The respondents have by Annexure-2 order on 20.6.2007 informed the applicant that his claim for increments had been duly examined. He had been advised that passing of typewriting test from any other organization excepting Directorate of Training and Technical Education (TTE) was contrary to the instructions stipulated on the subject dated 17.02.1989 and 08.5.2003. Since a person was authorized to draw increments only after passing the test, the applicant would not have been entitled to the increments, and since he had already drawn them, recovery of excess paid was inevitable. Consequently, he was to have received, as of right, only Rs. 3125/- as basic pay, all throughout. By an oversight during the year 2006 he had been drawing Rs. 3500/- having drawn regular increments from 2001. The position was thus being redressed.
2. Challenging the orders, OA 1135 of 2007 had been filed. The application had been disposed of directing the respondents to look into the matter de novo and come up with a speaking order. It is seen that by Annexure-I dated 20.9.2007, the matter was considered afresh and it had been held that the earlier orders did not need any change, and the representation of the applicant on this score was rejected. The O.A. is, therefore, filed inviting adjudication on the merits of his claim, as she maintains that the increments granted were regular and admissible.
3. The applicant had been working as Area Volunteers in the Department of Urban Development. Since he was declared as surplus, he had been redeployed in Grade IV (DASS)/LDC cadre of Govt. of NCT of Delhi by order dated 18.08.2000. He was taken to the Directorate of Health Services. The appointment order indicated that he would be entitled to avail increments only if he passed typewriting test.
4. It so happened that the applicant had been permitted to undergo a six months training of Hindi typing under the Hindi Teaching Scheme. He had passed typewriting test on 9.10.2001, and thereafter was sanctioned increment. He had been drawing pay on a graded scale, until the year 2006. By letter dated 12.9.2006, the Medical Superintendent had informed that the increments sanctioned as per Office Order dated 4.1.2002 are not in accordance with the service department orders and the same are required to be recovered. Evidently, it was not a solitary case as the overpayments were being checked. Consequently, he was advised that for earning increments, it is essential that he was to pass a typing test held by the Directorate of Training and Technical Education. The increments sanctioned had been cancelled.
5. The applicant had represented in the matter and on 15.12.2006, the officiating Medical Superintendent by Annexure-12 had agreed to the request made by him to recall the recovery orders in the following terms:
On representation dated 5.10.06 of Sh. Radha Krishan, LDC, the Director Health Services has directed M.S.SPH to reconsider the matter and recall the recovery orders’ vide his U.O. No. 4907 DHS (HQ) dated 11.12.06.
But this was not a lasting relief. Later on, the impugned orders had been issued whereby the applicant has been divested of the benefit of the increments sanctioned to him.
6. Mr. Sourabh Ahuja, learned Counsel for the applicant, submits that the respondents are in error in adopting this course. He has raised three submissions in support of his contention. When admittedly increments were sanctioned to him by the Governmental authority recognizing the typewriting qualification, a review of the order was not called for. The appointment order only required him of securing a pass in the typing test and when he was duly deputed for training held by the Hindi Department and had passed the test, he should have been entitled and became eligible for the yearly increments. Therefore, there was no irregularity at all. The second submission was that when an order is cancelled, it would not have been possible to sit in judgment over such an order by another officer. The counsel attempts to raise his contentions on Section 19 of the General Clauses Act and submits that when an order is passed by the officiating Medical Superintendent, it was to be recognised as an order passed by the Medical Superintendent when especially it was countersigned by the higher authorities. The settled position, therefore, could not have been unsettled.
7. By yet another argument so as to supplement his contentions, Mr. Ahuja invited our attention to Fundamental Rules 26 and sub paragraph 39 thereof. It was only required of the employee to pass the test as had been done by him, and the insistence for a pass from the test conducted by the Department of TTE could not have been essential, or to be insisted by Government orders. The increments were sanctioned validly and not on any misrepresentation and, therefore, there was no justification to cancel the increments already granted. The Fundamental Rules were to govern the situation. In any case, the increments drawn could not have been directed to be remitted back after years, as it was unjust and expropriatory.
8. With reference to the counter statement filed, Standing Counsel for respondents submits that the contention as raised in the application is without any merit. It is not as if no opportunity had been given to the applicant to show cause as to why the impugned steps are not to be resorted to. Basically, according to the counsel, the contentions of the applicant are to be rejected at the threshold since it was not a case where he was unaware of the conduct he was to follow. The requirement of passing the prescribed test as a condition for grant of increments was explicit. The Office Order No. 704 dated 18.8.2000 (Annexure-7), which is the appointment order, specifically showed that the concerned official was to be directed to appear in the typewriting test to be conducted by the Department of Training and Technical Education. The requirement for passing of such a test within one year from the date of appointment was specifically gatherable from the order. No substitution of qualification at the behest of the concerned official would have been permissible.
9. Mr. Aditya Chhibber appearing for the respondents also submits that the training in Hindi and passing of the test, could not have been equated to the essential qualification which was pre-requisite for drawl of increments. The Hindi test claimed to have been passed by the applicant, in fact, was a test to acclamatize a person of non-Hindi speaking areas to supply them a working knowledge in Hindi. Applicant, who belongs to the State of U.P. could not have claimed as passing such a test, he had satisfied the requirement of the stipulation in the appointment order.
10. Counsel also submits that reference to the Fundamental Rules was ill advised if not irrelevant. This dealt with a different situation and definitely not relating to grant of increments. The Fundamental Rules and the stipulation, highlighted in the orders dated 17.2.1989 and 8.5.2003 operated in different fields.
11. With reference to Shekhar Ghosh v. Union of India and Anr. it is highlighted that the Supreme Court had issued a direction that rectification of mistakes were to be done appropriately and expeditiously. If the mistake was not rectified, it would have led to a position where an ineligible person could draw Government money without authorization and this would have been objectionable. Counsel also referred to Col. B.J. Akkara (Retd.) v. Govt. of India . When an employee had knowledge that payment received by him was in excess of what was due and wrongly paid, courts were not to grant reliefs against the recovery. Therefore, a recovery and refixation was strictly legal.
12. On a consideration of the submissions as above made by the parties, we are of the view that the applicant has not made out a claim for interference and especially for the grant of reliefs. When his appointment order referred to a precise stipulation, he has to obtain as a condition for claiming increments, he was obliged to acquire such qualifications. Mistake or oversight by his superior officers whereby the employee could gain increments, therefore, was required to be rectified when the mistake was noticed.
13. The applicant may not be able to plead that any principles of acquiescence or estoppel are available when such mistake is corrected. We also do not think that an argument on the basis of General Clauses Act as raised is in any way acceptable. If at all the order indicates that the recovery was kept in abeyance. The order itself indicate that the matter was being looked into afresh. That alone has been done. The specific orders, which are not under challenge, are alone being enforced. This was being followed for a long period as a pre-condition for grant of increments and so long as the applicant has no such qualification. The Fundamental Rules adverted to also have no relevance whatsoever. In fact, the whole rule refers to fixation of pay alone. In the light of the findings as above, we have no hesitation in rejecting the application.
14. Mr. Sourabh Ahuja, however, submits that it was a case where the applicant might have been misled since from 2001 onwards the employee had been granted increments and he was drawing higher pay as a matter of course. Firstly, it would have been difficult to pay back the amount as it would have upset the low paid employee. The more difficult position, counsel points out, is that by being permitted to be complacent, the applicant presently has to appear for a new test. If there was no increment granted in 2001 perhaps he would have gone for the test much earlier, and made effort to secure a pass. The unenviable position, the counsel submits, is that the applicant would be deemed as continuing at the bottom of the scale all throughout the years and can hope for getting the increments only by 2009 as a pass could be secured only by that time and this has jeopardized his career as a whole.
15. There might be hardship but beyond a point it may not be possible for the Court to come to help an individual. Presence of hard facts, by itself does not justify laying down bad law. The courts are not to overlook the rules. Interference, on the basis of sympathy, in the long run may become hazardous. Therefore, it may not be possible for us to suggest that the increments to the employee has to be continued uninterruptedly in spite of the circumstance that he has not passed the obligatory test.
16. However, on the authority of the decision of the Hon’ble Supreme Court (Union of India and Ors. v. Sujatha Vedachalam (Smt.) and Anr. and Shyam Babu Verma and Ors. v. Union of India and Ors. we are of the view that as the applicant has received the higher pay for no fault of his, the excess payment made to him, on the basis of sanctioned increments, however, are not to be recovered. But, however, we uphold Annexure-1 and Annexure-2. Consequently, the applicant will be entitled only to minimum of the pay scale till such time he pass the typing test.
17. Application is, therefore, dismissed but with the observations made earlier. There will be no order as to costs.