Delhi High Court
Ex-Inspector Sanjay Kumar vs Union Of India And Others on 31 July, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13183/2023 & CM APPL. 52138/2023
EX-INSPECTOR SANJAY KUMAR .....Petitioner
Through: Mr. M.D. Jangra, Adv.
versus
UNION OF INDIA AND OTHERS .....Respondents
Through: Mr. Avnish Singh, SPC.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 31.07.2025
C. HARI SHANKAR, J.
1. This writ petition assails order dated 2 August 2023, whereby
the petitioner’s pay was retrospectively refixed, as well as the
recoveries made from his retiral benefits as a result thereof.
2. The petitioner, who was employed as an Inspector in the Border
Security Force1, retired from service on 7 July 2023.
3. After his retirement, the respondent issued order dated 2 August
2023, downwardly revising his pay scale with effect from 1 July 2009.
As a result, his pay on the date of his retirement, on 1 July 2023,
immediately prior to his retirement, also stood downwardly reversed
1 “BSF” hereinafter
W.P.(C) 13183/2023 Page 1 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
to ₹ 60,400/- per month.
4. There is no dispute that the order dated 2 August 2023 was
issued without any prior notice to the petitioner.
5. Following the issuance of the aforesaid order, the last pay
certificate of the petitioner dated 29 August 2023 was issued,
proposing to effect recoveries from the petitioner.
6. Aggrieved thereby, the petitioner approached this Court by way
of the present petition on 6 October 2023.
7. During the pendency of this writ petition, by order dated 19
February 2025, the respondent reversed the impugned decisions dated
2 August 2023 and 29 August 2023 and revised the pay of the
petitioner as on 1 July 2023 to ₹ 64,100/-. The amounts recovered by
the petitioner were repaid to him after the passing of the aforesaid
order.
8. Mr. Jangra submits that, therefore, the dispute survives at
present only with respect to the petitioner’s entitlement to interest on
the withheld amount from 7 July 2023 till it came to be paid after the
passing of the order dated 19 February 2025.
9. In view of the passing of the order dated 19 February 2025,
there can be no dispute that, in fact, the downward refixation of the
petitioner’s pay by order dated 2 August 2023 was not in accordance
W.P.(C) 13183/2023 Page 2 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
with law. Besides, the such downward fixation without any notice to
the petitioner is in the teeth of the law laid down by the Supreme
Court in the following passage from Bhagwan Shukla v UOI2 and is
ex facie unsustainable:
“3. We have heard learned counsel for the parties. That the
petitioner’s basic pay had been fixed since 1970 at Rs 190 p.m. is
not disputed. There is also no dispute that the basic pay of the
appellant was reduced to Rs 181 p.m. from Rs 190 p.m. in 1991
retrospectively w.e.f. 18-12-1970. The appellant has obviously
been visited with civil consequences but he had been granted no
opportunity to show cause against the reduction of his basic pay.
He was not even put on notice before his pay was reduced by the
department and the order came to be made behind his back
without following any procedure known to law. There has, thus,
been a flagrant violation of the principles of natural justice and the
appellant has been made to suffer huge financial loss without
being heard. Fair play in action warrants that no such order which
has the effect of an employee suffering civil consequences should
be passed without putting the (sic employee) concerned to notice
and giving him a hearing in the matter. Since, that was not done,
the order (memorandum) dated 25-7-1991, which was impugned
before the Tribunal could not certainly be sustained and the
Central Administrative Tribunal fell in error in dismissing the
petition of the appellant. The order of the Tribunal deserves to be
set aside. We, accordingly, accept this appeal and set aside the
order of the Central Administrative Tribunal dated 17-9-1993 as
well as the order (memorandum) impugned before the Tribunal
dated 25-7-1991 reducing the basic pay of the appellant from Rs
190 to Rs 181 w.e.f. 18-12-1970.”
(Emphasis supplied)
10. As such, the order dated 2 August 2023 as well as the PPO
dated 29 August 2023 are quashed and set aside.
11. Mr. Avnish Singh, learned SPC for the respondents, has drawn
our attention to an undertaking which was given by the petitioner on
2 (1994) 6 SCC 154
W.P.(C) 13183/2023 Page 3 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
21 April 2023, which reads thus:
“UNDERTAKING
I, the undersigned am going to retire w.e.f. 07.07.2023 and am well
aware about anomalies in my pay fixation which is under
consideration, so I hereby undertake that, if any recovery or dues
pending against me or arises in future due to re-fixation of pay or
other reasons be deducted from my pensionary benefits like
gratuity, commutation etc. I will not raise any objection and will
not approach any court of law in this regard.
Sd/-
Sanjay Kumar, INSPR (GD)
(Regt No. 021099762″
12. The aforesaid undertaking can be of no avail to the respondent.
13. The judgment of the Supreme Court in State of Punjab v Rafiq
Masih3, in para 18, absolutely proscribes recoveries of payments
allegedly overpaid to an employee in the following cases:
“(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,
3 (2015) 4 SCC 334
W.P.(C) 13183/2023 Page 4 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
that recovery if made from the employee, 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.”
14. An undertaking given by an employee, from whom recoveries is
proposed, has been regarded, in the judgment of the Supreme Court in
High Court of Punjab and Haryana v Jagdev Singh4, to dilute the
rigour of para 18 of Rafiq Masih in the case of recoveries being made
from pensionary benefits, as in the present case. However, the
undertaking has to be provided by the employee in the first instance,
while opting for the revised pay scale. This is clear from para 11 of
Jagdev Singh:
“11. The principle enunciated in Proposition (ii) above cannot
apply to a situation such as in the present case. In the present case,
the officer to whom the payment was made in the first instance
was clearly placed on notice that any payment found to have been
made in excess would be required to be refunded. The officer
furnished an undertaking while opting for the revised pay scale. He
is bound by the undertaking.”
15. An undertaking taken at the point of making recoveries is,
therefore, of no avail. In fact, the wording of the undertaking, on
which Mr. Avnish Singh places reliance, is also significant. The
petitioner has undertaken not only to raise any objection to the
recoveries but also not to approach any court of law in that regard. An
undertaking which, thus, forecloses legal remedies is, to our mind, ex
facie unenforceable at law. In the realm of contract law, such an
undertaking would be void, as infracting Section 285 of the Indian
4 (2016) 14 SCC 267
5 28. Agreements in restraint of legal proceedings void. — Every agreement, –
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in
respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the
W.P.(C) 13183/2023 Page 5 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
Contract Act, 1872.
16. The undertaking, on the face of it, is provided under
compulsion, if not duress.
17. Even otherwise, Jagdev Singh is clear that the undertaking has
to be given at the time when the erroneous fixation of pay took place
and not at any later point of time.
18. In that view of the matter, the undertaking dated 21 April 2023
provided by the petitioner cannot be cited as a defence by the
respondents.
19. The Supreme Court has held, in S.K. Dua v State of Haryana6,
that an employee is entitled to interest on delayed payment of retiral
benefits:
“13. Having heard the learned counsel for the parties, in our
opinion, the appeal deserves to be partly allowed. It is not in
dispute by and between the parties that the appellant retired from
service on 30-6-1998. It is also undisputed that at the time of
retirement from service, the appellant had completed more than
three decades in government service. Obviously, therefore, he was
entitled to retiral benefits in accordance with law. True it is that
certain charge-sheets/show-cause notices were issued against him
and the appellant was called upon to show cause why disciplinary
proceedings should not be initiated against him. It is, however, the
case of the appellant that all those actions had been taken at the
instance of Mr Quraishi against whom serious allegations oftime within which he may thus enforce his rights, or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto from
any liability, under or in respect of any contract on the expiry of a specified period so as to restrict
any party from enforcing his rights,
is void to that extent.
6 (2008) 3 SCC 44
W.P.(C) 13183/2023 Page 6 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
malpractices and misconduct had been levelled by the appellant
which resulted in removal of Mr Quraishi from the post of
Secretary, Irrigation. The said Mr Quraishi then became Principal
Secretary to the Chief Minister. Immediately thereafter charge-
sheets were issued to the appellant and proceedings were initiated
against him. The fact remains that proceedings were finally
dropped and all retiral benefits were extended to the appellant. But
it also cannot be denied that those benefits were given to the
appellant after four years.
14. In the circumstances, prima facie, we are of the view that
the grievance voiced by the appellant appears to be well founded
that he would be entitled to interest on such benefits. If there are
statutory rules occupying the field, the appellant could claim
payment of interest relying on such rules. If there are
administrative instructions, guidelines or norms prescribed for the
purpose, the appellant may claim benefit of interest on that basis.
But even in absence of statutory rules, administrative instructions
or guidelines, an employee can claim interest under Part III of the
Constitution relying on Articles 14, 19 and 21 of the Constitution.
The submission of the learned counsel for the appellant, that
retiral benefits are not in the nature of “bounty” is, in our opinion,
well founded and needs no authority in support thereof. In that
view of the matter, in our considered opinion, the High Court was
not right in dismissing the petition in limine even without issuing
notice to the respondents.”
(Emphasis supplied)
20. In view thereof, the petitioner’s entitlement to interest on the
amount which was withheld from him for the period from 7 July 2023
till it was paid after the passing of the order dated 19 February 2025
cannot be gainsaid.
21. Accordingly, this petition is disposed of with a direction to the
respondents to disburse interest, at the rate of 8% per annum, to the
petitioner on the amount which was withheld from his retiral benefits
after 7 July 2023 till they were paid after the passing of the order
dated 19 February 2025 within a period of 12 weeks from today.
W.P.(C) 13183/2023 Page 7 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47
22. The respondents are also directed to issue a revised PPO in
favour of the petitioner in the above terms.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
JULY 31, 2025
AR
W.P.(C) 13183/2023 Page 8 of 8
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:02.08.2025
17:35:47