ANIL KUMAR vs DELHI DEVELOPMENT AUTHORITY

1 OA No.3616/2024

Central Administrative Tribunal
Principal Bench, New Delhi


OA No.3616/2024


th
This the 25 day of September, 2026


Hon’ble Dr. Chhabilendra Roul, Member (A)


Anil Kumar Verma (Group A)
S/o Sh. K.R.Verma,
Age 63 years
H.No. H-3/5, First Floor, Sector-18,
Rohini, New Delhi-110085.
....Applicant

(By Advocate: Mr. G.L.Verma)

Versus


1. Delhi Development Authority
(Through Vice Chairman)
Vikas Sadan, INA,
New Delhi-110023

2. Chief Accounts Officer,
DDA, Vikas Sadan, INA,
New Delhi-110023.
... Respondents


(By Advocate: Ms. Sriparna Chatterjee with Mr. Manish,
Ms. Purnima Maheshwari)


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ORDER (ORAL)

The instant Original Application has been filed by the
applicant under Section 19 of the Administrative Tribunals
Act, 1985, seeking the following relief:

“(a) To direct the Respondents to make the payment of

entire amount of Rs.7,15,214/- so deducted from the
retirement benefit on the pretext of non-passing of
departmental test in accounts.

(b) To direct the Respondent to place on record entire
Pension file with calculations of dues and also the
recoveries effected.

(c) To direct the Respondent to pay Rs.50,000/- to
Applicant towards compensation for harassment, mental
and financial losses.

(d) To pass any order/directive/relief as this Hon’ble
Tribunal may consider at its discretion just and proper.”

2. Factual Matrix
2.1 The applicant joined the Delhi Development Authority
(DDA) as an Assistant Engineer (Civil) on 08.11.1988. He was
promoted as Executive Engineer on 18.12.2006 and
thereafter as Superintending Engineer on 30.06.2014. After
serving the department for approximately 33 years, he retired
from service on attaining the age of superannuation on
31.01.2021.
2.1 The applicant’s grievance is that the Delhi Development
Authority-respondent deducted a sum of Rs.7,15,214/- from
his gratuity on the ground that he had not qualified the
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prescribed simple accounts test. The applicant contends that
the prescribed examination applicable to his cadre was not
conducted, as required under the relevant departmental
circulars. He further submits that he had submitted a
representation dated 23.03.1989 in this behalf requesting
that the said examination may be conducted or relaxation to
qualify the said examination may be granted. However, no
reply appears to have been issued, as reflected from the RTI
reply dated 27.08.2021.
3. Pursuant to the notices issued, the respondents entered
appearance and filed their reply, to which the applicant has
filed his rejoinder.
4. Submissions by Learned Counsel for the Applicant
4.1 Learned counsel for the applicant submits that the
impugned recovery of Rs.7,15,214/- from the applicant’s
gratuity is arbitrary, unjustified and contrary to law. The
applicant served the DDA for approximately 33 years and
retired on 31.01.2021. Despite his long service, the
respondents deducted a substantial amount from his retiral
benefits on the ground that he had not qualified the
prescribed simple accounts test.
4.2 It is submitted that the relevant departmental circulars
prescribed an accounts examination for the concerned
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engineering cadre, but the examination applicable to the
applicant was not conducted as required. The applicant had
already raised this issue by submitting a representation dated
23.03.1989, requesting the authorities either to conduct the
examination or to grant relaxation. However, the department
failed to provide an effective response. The RTI reply dated
27.08.2021 further indicates that no reply to the said
representation appears to have been issued. Therefore, the
applicant cannot be made to suffer financially for an omission
on the part of the respondent.
4.3 It is further submitted that the respondents have failed
to establish that the examinations relied upon by them were
the prescribed examinations applicable to the applicant’s
cadre and that the applicant was actually afforded a
reasonable opportunity to qualify. Mere reference to certain
examination dates does not, by itself, establish that the
applicable examination requirement was properly
communicated and fulfilled. The respondents must
demonstrate the relevant service rules, departmental
circulars, examination notices and other records supporting
their claim.
4.4 Learned counsel for the applicant further submits that
before effecting recovery to the tune of Rs.7,15,,214/-, no
show cause notice was issued to the applicant to explain his
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position, which is in violation of principles of natural justice.
It is also contended that the applicant retired after putting in
long number of years of service and that no fraud or
misrepresentation has been alleged against him or played by
him. The recovery from his gratuity must, therefore, be
examined in light of the principles laid down by the Hon’ble
Supreme Court in State of Punjab v. Rafiq Masih , (2015) 4
SCC 334 and the applicable DoP&T instructions concerning
recovery of excess payments, particularly from retired
employees. The applicant also relies upon the decision of this
Tribunal in Rajvir Singh Malik v. DDA, OA No.330/2019,
which has attained finality on dismissal of SLP by the Hon’ble
Supreme Court.
4.4 In view of the above submissions, learned counsel for
the applicant prays that the impugned recovery of Rs. 7,15,214
is liable to be set aside and the recovered amount be refunded
with interest to the applicant.
5. Submissions by learned counsel for the respondents
5.1 Per contra, learned counsel for the respondents has
relied upon the judgment of the Apex Court in Chandi Prasad
Uniyal v. State of Uttarakhand & Ors. , AIR 2012 SC 2951,
which upholds recovery of payments made in violation of the
law barring exceptions of demonstrated extreme hardship,
which is not established in the instant case.
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6. Analysis
6.1 Heard learned counsel for both the parties and perused
the material on record.
6.2 The respondents have not demonstrated whether at the
time of giving the increments and promotion any stipulation
was made for recovery of any amount, if the applicant had
failed to pass the requisite simple accounts examination. The
respondents have not also demonstrated that whether the
respondents have taken any undertaking from the applicant
for refund of any amount paid because of the increment or
promotion given to him at the time of sanctioning such
increment or promotional benefits. In absence of such
documentary evidence, the principle laid down in Chandi
Prasad Uniyal’s case (supra) is not applicable.
6.3 When the matter was under consideration in Rafiq
Masih (supra) case, a reference was made to a Three Member
Bench of the Apex Court because of the apparent difference of
opinion expressed on one hand in the cases of Shyam Babu
Verma and Ors. v. Union of India & Ors ., (1994) 2 SCC 521
and Sahib Ram Verma v. State of Haryana , (1995) Supp. 1
SCC 18 and on the other hand, in Chandi Prasad Uniyal
(supra). The order of reference made by two judge bench of
the Apex Court reads as under:
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Excerpts from the Rafiq Masih case, (2014) 8 SCC 883
decided on 08.07.2014 referred to Three Judge Bench:
“1. These batch of matters are placed before us for
authoritative pronouncement on the apparent difference of
opinion expressed on one hand in the cases of Shyam
Babu Verma and Ors. v. Union of India & Ors. (1994) 2
SCC 521 and Sahib Ram Verma v. State of Haryana (1995)
Supp. 1 SCC 18 and on the other hand, in Chandi Prasad
Uniyal and Ors. v. State of Uttarakhand & Ors. (2012) 8
SCC 417. The order of reference made by this Court reads
as under:
"In view of an apparent difference of views expressed
on the one hand in Shyam Babu Verma and Ors. vs.
Union of India & Ors. (1994) 2 SCC 521 and Sahib
Ram Verma vs. State of Haryana (1995) Supp. 1 SCC
18; and on the other hand in Chandi Prasad Uniyal
and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC
417, we are of the view that the remaining special leave
petitions should be placed before a Bench of Three
Judges. The Registry is accordingly directed to place
the file of the remaining special leave petitions before
the Hon'ble the Chief Justice of India for taking
instructions for the constitution of a Bench of Three
Judges, to adjudicate upon the present controversy."

xxx xxx xxx

4. In Shyam Babu Verma's case, this Court while
observing that the petitioners-therein were not entitled to
the higher pay scales, had come to the conclusion that
since the amount has already been paid to the petitioner,
for no fault of theirs, the said amount shall not be
recovered by the respondent-Union of India. The
observations made by this Court in the said case are as
under: (SCC p.525, para 11)
"11. Although we have held that the petitioners
were entitled only to the pay scale of Rs.330-480 in
terms of the recommendations of the Third Pay
Commission w.e.f. January 1, 1973 and only after the
period of 10 years, they became entitled to the pay
scale of Rs.330-560 but as they have received the scale
of Rs.330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect
from January 1, 1973, it shall only be just and proper
not to recover any excess amount which has already
been paid to them.”
(emphasis supplied)
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5. In Sahib Ram Verma's case, this Court once again held
that although the appellant therein did not possess the
required educational qualification, yet the Principal
granting him the relaxation, had paid his salary on the
revised pay scale. This Court further observed that this
was not on account of mis-representation made by the
appellant but by a mistake committed by the Principal. In
a fact situation of that nature, the Court was pleased to
observe that the amount already paid to the appellant
need not be recovered. In the words of the Court: (SCC
p.20, para 5)
"5. Admittedly the appellant does not possess the
required educational qualifications. Under the
circumstances the appellant would not be entitled to
the relaxation. The principal erred in granting him the
relaxation. Since the date of relaxation the appellant
had been paid his salary on the revised scale. However,
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 construction made by
the Principal for which appellant cannot be held to be
fault. Under the circumstances the amount paid till
date may not be recovered from the appellant."
6. In our considered view, the observations made by the
Court not to recover the excess amount paid to the
appellant-therein were in exercise of its extra-ordinary
powers under Article 142 of the Constitution of India
which vest the power in this Court to pass equitable
orders in the ends of justice.
7. In Chandi Prasad Uniyal's case, a specific issue was
raised and canvassed. The issue was whether the
appellant-therein can retain the amount received on the
basis of irregular/wrong pay fixation in the absence of
any misrepresentation or fraud on his part. The Court
after taking into consideration the various decisions of
this Court had come to the conclusion that even if by
mistake of the employer the amount is paid to the
employee and on a later date if the employer after proper
determination of the same discovers that the excess
payment is made by mistake or negligence, the excess
payment so made could be recovered. While holding so
this Court observed at paragraphs 14 and 16 as under:

"14. We are concerned with the excess payment of public
money which is often described as "taxpayers' money"
which belongs neither to the officers who have effected
overpayment nor to the recipients. We fail to see whey the
concept of fraud or misrepresentation is being brought in
such situations. The question to be asked is whether
excess money has been paid or not, may be due to a bona
fide mistake. Possibly, effecting excess payment of public
money by the government officers may be due to various
reason like negligence, carelessness, collusion,
favouritism, etc. because money in such situation does
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not belong to the payer or the payee. Situations may also
arise where both the payer and the payee are at fault,
then the mistake is mutual. Payments are being effected
in many situations without any authority of law and
payments have been received by the recipients also
without any authority of law. Any amount paid/received
without the authority of law can always be recovered
barring few exceptions of extreme hardships but not as a
matter of right, in such situations law implies an
obligation on the payee to repay the money, otherwise it
would amount to unjust enrichment.
*
16. The appellant in the appeal will not fall in any of
these exceptional categories, over and above, there was a
stipulation in the fixation order that in the condition of
irregular/wrong pay fixation, the institution in which the
appellants were working would be responsible for
recovery of the amount received in excess from the
salary/pension. In such circumstances, we find no
reason to interfere with the judgment of the High Court.
However we order that excess payment made be
recovered from the appellants salary in 12 equal monthly
instalments.”

8. In our view, the law laid down in Chandi Prasad
Uniyal's case, no way conflicts with the observations
made by this Court in the other two cases. In those
decisions, directions were issued in exercise of the
powers of this Court under Article 142 of the
Constitution, but in the subsequent decision this Court
under Article 136 of the Constitution, in laying down the
law had dismissed the petition of the employee. This
Court in a number of cases had battled with tracing the
contours of the provision in Article 136 and 142 of the
Constitution of India. Distinctively, although Page 20 20
the words employed under the two aforesaid provision
speak of the powers of this Court, the former vest a
plenary jurisdiction in supreme court in the matter of
entertaining and hearing of appeals by granting special
leave against any judgment or order made by a Court or
Tribunal in any cause or matter. The powers are plenary
to the extent that they are paramount to the limitations
under the specific provisions for appeal contained in the
Constitution or other laws. Article 142 of the Constitution
of India, on the other hand is a step ahead of the powers
envisaged under Article 136 of the Constitution of India.
It is the exercise of jurisdiction to pass such enforceable
decree or order as is necessary for doing ‘complete
justice’ in any cause or matter.

9. The word ‘complete justice’ was fraught with
uncertainty until Article 142 of the Constitution received
its first interpretation in Prem Chand Garg v. Excise
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Commissioner, U.P., AIR (1963) SC 996 which added a
rider to the exercise of wide extraordinary powers Page 21
21 by laying down that though the powers are wide, the
same is an ancillary power and can be used when not
expressly in conflict with the substantive provisions of
law. This view was endorsed by a Nine-Judges Bench in
Naresh Shridhar Mirajkar v. State of Maharashtra, (1966)
3 SCR 744 reiterated by a Seven Judge Bench in A.R.
Antulay v. R.S. Nayak, (1988) 2 SCC 602 and finally
settled in the Supreme Court Bar Association v. Union of
India, (1998) 4 SCC 409.

10. Article 136 of the Constitution of India, confers a
wide discretionary power on the Supreme Court to
interfere in suitable cases. Article 136 is a special
jurisdiction and can be best described in the words of
this Court in Ramakant Rai v. Madab Rai, (2003) 12 SCC
395,

“14. .... It is a residuary power, it is extraordinary
in its amplitude, its limits when it chases injustice,
is the sky itself”.

11. Article 136 of the Constitution of India was
legislatively intended to be exercised by the Page 22 22
Highest Court of the Land, with scrupulous adherence to
the settled judicial principle well established by
precedents in our jurisprudence. Article 136 of the
Constitution is a corrective jurisdiction that vest a
discretion in the Supreme Court to settle the law clear
and as forthrightly forwarded in the case of Union of
India v. Karnail Singh, (1995) 2 SCC 728, it makes the
law operational to make it a binding precedent for the
future instead of keeping it vague. In short, it declares
the law, as under Article 141 of the Constitution.

12. Article 142 of the Constitution of India is
supplementary in nature and cannot supplant the
substantive provisions, though they are not limited by
the substantive provisions in the statute. It is a power
that gives preference to equity over law. It is a justice
oriented approach as against the strict rigors of the law.
The directions issued by the court can normally be
categorized into one, in the nature of moulding of relief
and the other, as the declaration of law. ‘Declaration of
Law’ as contemplated in Article 141 of the Constitution:
is the speech express or necessarily implied by the
Highest Court of the land. This Court in the case of
Indian Bank v. ABS Marine Products (P) Ltd., 2006 5 SCC
72, Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC
381 and in State of U.P. v. NeerajAwasthi (2006) 1 SCC
667, has expounded the principle and extolled the power
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of Article 142 of the Constitution of India to new heights
by laying down that the directions issued under Article
142 do not constitute a binding precedent unlike Article
141 of the Constitution of India. They are direction issued
to do proper justice and exercise of such power, cannot
be considered as law laid down by the Supreme Court
under Article 141 of the Constitution of India. The Court
have compartmentalized and differentiated the relief in
the operative portion of the judgment by exercise of
powers under Article 142 of the Constitution as against
the law declared. The directions of the Court under
Article 142 of the Constitution, while moulding the relief,
that relax the application of law or exempt the case in
hand from the rigour of the law in view of the peculiar
facts and circumstances do not comprise the ratio
decidendi and therefore lose its basic premise of making
it a binding precedent. This Court on the qui vive has
expanded the horizons of Article 142 of the Constitution
by keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court
that changes its complexion with the peculiarity in the
facts and circumstances of the case.

13. Therefore, in our opinion, the decisions of the Court
based on different scales of Article 136 and Article 142 of
the Constitution of India cannot be best weighed on the
same grounds of reasoning and thus in view of the
aforesaid discussion, there is no conflict in the views
expressed in the first Page 25 25 two judgments and the
latter judgment.

14. In that view of the above, we are of the considered
opinion that reference was unnecessary. Therefore,
without answering the reference, we send back the
matters to the Division Bench for its appropriate
disposal.”

6.4 As there is no conflict between the Chandi Prasad
Uniyal (supra) case invoking Article 136/141 and Shyam
Babu Verma (supra) and Sahib Ram (supra) buttressed by
th
Rafiq Masih (supra) case (18 December, 2014), the
principles laid down in Chandi Prasad Uniyal (supra) case
are also valid:
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6.4.1 Following are the principles laid down in Chandi
Prasad Uniyal’s (supra) case:
The amount is recoverable when:
(i) If the excess payment is due to any misrepresentation or fraud
on the part of the recipient (para 9)

(ii) If there is a stipulation in the fixation order that in the
condition of irregular/wrong pay fixation, the institution in
which the employee is working would be responsible for
recovery of the amount received in excess from the salary
/pension.(Para 18)

(iii) When an undertaking is given by the employee that in case
wrong fixation he/she refund the excess payment ( implicit in
Para 18)

6.5 After considering the said guidelines in the reference in
Rafiq Masih’s case (supra), the Apex Court finally have
detailed in paragraph 12 under what situation it is not
permissible to recover the amount paid in excess in the
instant case. Paragraph 12 is reproduced as follows:
“12. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by
the employer, in excess of their entitlement. Be that as it
may, based on the decisions referred to herein above, we
may, as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are
due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment
has been made for a period in excess of five years, before
the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully
been required to discharge duties of a higher post, and has
been paid accordingly, even though he should have
rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee,
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would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of the
employer's right to recover.”

6.6 The instant case falls under Clauses (ii) and (v) of the
said judgment. The respondents have not taken any
undertaking from the applicant at the time of granting any
alleged benefit/excess payment to the applicant at the time of
increment/promotion in absence of passing the requisite
departmental examination. The applicant was supposed to
pass the departmental examination in the year 1990 when a
policy contained in that behalf was framed by the
respondents. However, despite the fact that applicant did not
pass the said examination the respondents continued to grant
him annual increments as well as promotions as and when
became due. There is no allegation that the said amounts
were paid to the applicant on account of any
misrepresentation on the part of the applicant. Hence,
applying the principle of Rafiq Masih (supra) the recovery,
which pertains prior to five years from the date of issuance of
such recovery order, is impermissible.
7. Conclusion
7.1 In view of the above, the OA is allowed. The respondents
are directed to refund the recovered amount of Rs.7,15,214/-
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deducted from the retiral benefits of the applicant on the
pretext of non-passing of departmental test in accounts.
7.2 We find that as the applicant has not approached this
Tribunal in time challenging such recovery, the prayer for
grant of interest on the recovered amount is rejected. The
aforesaid amount shall be refunded to the applicant without
any interest.
8. No order as to costs.

9. Pending MAs, if any, shall also stand disposed of.


(Dr. Chhabilendra Roul)
Member (A)

‘SD’


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