UNION OF INDIA AND ANR  Vs GULSHAN RAJ AND ORS

WP(C ) 11015/2020 Page 1 of 4
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 11015/2020

UNION OF INDIA & ANR. ….. Petitioners
Through: Mr. Arun Bhardwaj, CGSC.

versus

GULSHAN RAJ & ORS. ….. Respondents
Through: Mr.M.K. Bhardwaj, Advocate.

% Date of Decision: 06th January, 2021
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T
MANMOHAN , J (Oral)
1. Present writ petition has been filed challenging the order dated
30:
th
“3. The applicants relied upon a judgment in OA
No.497/2015 delivered on 01.08.2017 on exactly similar matter wherein the recover ies were quashed. The judgment
in this OA has also relied upon another judgment in t he case of Shri J.S. Sharma and others Vs. Union of India and another, OA No.363/2012, decided on 05.02.2013, wherein also exactly similar issue was raised and the Tribun al, vide
order dated 05.02.2013, held that no recovery can be made towards the transport allowance already paid. This judgment was challenged by the respondents in the Hon’ble High Court in Writ Petition (Civil) No.5555/2013 decided on 04.09.2013. The or der of the Tribunal was upheld by the Hon’ble High November, 2018 passed by the Central Administrative Tribunal
(here inafter referred to as the ‘CAT’) in O.A.No. 1502/2018. The
relevant portion of the said order is reproduced hereinbelow:- 3, 8
2021:DHC:41-DBWP(C ) 11015/2020 Page 2 of 4
Court. Thus recovery of transport allowance was not
permitted.
xxx xxx xxx
8. I find that the applicants have not misrepresented any
fact, nor was it in their knowledge that they were drawing transport allowance in excess of their entitlement as it was
sanctioned by the respondents only. Hence, I am of the view that their case is fully covered by the judgment of the Hon’ble
High Court in J.S. Sharma (para 3 supra).”

2. After hearing the parties at some length, this Court finds that the
issue involved in the present writ petition is no longer res integra as
admittedly, an identical issue has been decided by this Court against
the appellant on 04
th
“2. The facts in which the present issue arose are that for
commuting between office and residence. Officers of the level of Joint Secretary and above are provided with the facility of staff car on prescribed payment basis (under Office Memorandum No. 20(5) – E.II(A)/93 dated 28th January,
1994). They have the option to switch over to payment of transport allowance, at applicable rates subject to the facility
of staff car being withdrawn. The respondents who were
Group A Officers, were drawing pay at par with an officer of
the post of Joint Secretary. However, the respondents reached that level of pay scale on the grant of non -functional upgrade
(under Officer O rder No. 30/26/2010 -EC-EW-1 dated 3rd
February, 2011). This upgrade was in pursuance of Office
Memorandum (OM) No. AB.14017/64/ 2008 -Estt.(RR) dated
24th April, 2009 of the DoPT, which recommended / directed
such non -functional upgrade. Since the pay grade of the
respondents was at par with that of officers of the level of Joint September, 2013 in Union of India & Anr. Vs.
JS Sharm a & Ors. W.P.(C) No.5555/2013 . The relevant portion of
the said order is reproduced hereinbelow:-
2021:DHC:41-DBWP(C ) 11015/2020 Page 3 of 4
Secretary – as a consequence of the grant of the non functional
upgrade – they were being allowed transport allowances at the
rate of Rs.7,000/- + D.A. from the dates from which the y were
conferred the upgrade.

3. The said allowances were sought to be withdrawn by the
petitioners (by OM dated 23rd September, 2011) on the
ground that it was not payable to officers who were granted
grade pay of Rs.10,000/- under Non-Functional Upgradation
Scheme and that the facility of official car was available only to those who were covered by OM dated 28th January, 1994. The over -payment of the transport allowance was sought to be
recovered from the said officers / respondents herein by way of
individual notices dated 5th October, 2011.

xxx xxx xxx

9. Furthermore, this court is of the opinion that the case of the
grade pay officers falls in the exceptional category – which
exception even the Chandi Prasad Uniyal case recognized the existence of – that would have the benefit of the ratio of Syed
Abdul Qadir (supra):

“57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of
emoluments/allowances if (a) the excess amount was not
paid on account of any misrepresentation or fraud on
the part of the employee, and (b) if such excess payment
was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
“58. The relief against recovery is granted by courts not
because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the
employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases
2021:DHC:41-DBWP(C ) 11015/2020 Page 4 of 4
where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery
of the amount paid in excess. See Sahib Ram v. State of
Haryana [1995 Supp ( 1) SCC 18 : 1995 SCC (L&S)
248] , Shyam Babu Verma v. Union of India [(1994) 2
SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6
SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara
(Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1
SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar (2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 20 00 SCC (L&S) 394].”
10. Having considered the arguments and the facts of the case and the ratio of Syed Abdul Kadir case, this Court finds no reason to interfere with the impugned order. The petition is without merit and is accordingly dismissed. ”

3. Cons equently, following the earlier Division Bench judgment of
this Court in Union of India & Anr. vs. JS Sharma & Ors. (supra) ,
the present writ petition is also dismissed.
4. The order be uploaded on the website forthwith. Copy of the
order be also forwarded t o the learned counsel through e -mail.

MANMOHAN, J

ASHA MENON, J
JANUARY 06, 2021
KA
2021:DHC:41-DB