JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the petitioner on the writ petition ignoring the averments made in the counter-affidavit. 2. The brief facts of the case are that the petitioner is an Ex-Service Man of Indian Air Force. He served the Air Force from 27.4.1968 to 30.4.1978 as Radar Operator. Thereafter he got re-employment in Postal Department as a Postal Assistant w.e.f.19.5.1981 in the pay scale of Rs. 260-8-340-10-360-12-420-12-480. 3. On attaining the age of superannuation on 31.8.2005 an order was passed for recovery of an amount of Rs. 2,24,963/- from the retiral benefits of the petitioner on the ground that over payment of pay and allowances w.e.f. 19.5.1981 to 31.7.2005 has been made to him due to wrong fixation of pay on re-employment. The break up of the total amount of recovery of Rs. 2,24,963/- was given below : (A) DCRG Rs. 1,22,600/- (B) Leave Encash- ment GPF Rs. 96,363/- (C) Pay and allowa- nces of Aug. 2005 Rs. 6,000/- 4. Aggrieved by the aforesaid order of recovery, the petitioner moved before the Central Administrative Tribunal Principal Bench, New Delhi (hereinafter referred to as CAT) by means of Original Application No. 1060 of 2006 (J.C. Pandey v. Union of India through Ministry of Communication and I.T. Department of Post, Dak Bhawan-Sansad Marg, New Delhi and three others). The tribunal disposed of the aforesaid original application at the admission stage itself vide judgment and order dated 17.5.2006 directing the respondent to decide the representation of the petitioner with liberty to the petitioner to raise all his grievances before the Senior Superintendent Post Office Meerut Division Meerut, U.P.-respondent No. 4. The petitioner was given personal hearing on 21.6.2006 and his representation was rejected. 5. In the aforesaid background the petitioner again moved original application No. 2170 of 2006 before the CAT challenging the order of recovery as well as the order dated 21.6.2006 passed by the Senior Superintendent of Post Office Meerut. 6. The case of the petitioner before the Tribunal was that since it is question of wrong fixation of pay by the respondents, after his re-employment in the Postal Department and the petitioner was not at all at fault or a party responsible for said wrong fixation of pay, no recovery can be made from him in this regard. 6. The case of the petitioner before the Tribunal was that since it is question of wrong fixation of pay by the respondents, after his re-employment in the Postal Department and the petitioner was not at all at fault or a party responsible for said wrong fixation of pay, no recovery can be made from him in this regard. He relied upon the judgments of the Apex Court rendered in Shyam Babu Verma and others v. U.O.I. and others, 1997(27) ATC 121; Sahib Ram v. State of Haryana, 1995 SCC (L&S) 248 and Gabriel Saver Fernandas and Others v. State of Karnataka and others, 1994(5) SLR 625. Reliance has also been placed on the decision of the Apex Court in D.V. Kapoor v. U.O.I., AIR 1990 SC 1923 and Bhagwan Shukla v. U.O.I. and others, 1995(2) SLJ SC 30. On the basis of the aforesaid judgments the petitioner would argue that it has been held in the aforesaid cases that excess amount erroneously paid to an employee should not be recovered from him if there is no fault or collusion of his in fixation of the wrong pay scale and that in the case of Sahib Ram and Bhagwan Shukla (supra) it has been laid down that neither recovery can be made from DCRG nor retiral dues of an employee could be withheld as is his statutory right. 7. It also appears from the record that no option was called from the petitioner regarding surrender of his Military DCRG nor he himself had given any letter to credit the army DCRG and pension at the time of initial fixation of pay or at any time during his service period and that Audit Officer had checked the service book of the petitioner on several occasions but had not reported anything adverse. As such, it was claimed that for this reason also no amount can be recovered from the retiral benefits of the petitioner. 8. The stand which was taken by the Union of India before the CAT was that the applicant had been re-employed as Postal Assistant w.e.f 19.5.1981 and his pay was fixed at Rs. 372/- in pay-scale of Rs. 260-8-340-10-360-12-420-12-480. 8. The stand which was taken by the Union of India before the CAT was that the applicant had been re-employed as Postal Assistant w.e.f 19.5.1981 and his pay was fixed at Rs. 372/- in pay-scale of Rs. 260-8-340-10-360-12-420-12-480. According to the case of the respondent the service book of the petitioner was submitted to the Director of Accounts (Postal), Aliganj, Lucknow, U.P. by Senior Post Master, Meerut City, Head Office alongwith pension papers of the petitioner; that Sr. Post Master Meerut had been informed by the Senior Accounts Officer (Pension) O/o Director of Accounts, Lucknow vide his letter dated 8.8.2005; that fixation of the pay of the petitioner was incorrect as he had been granted several increments for services rendered in Defence Department and as such his pay fixation was not in order. It was also informed that pay of the applicant was regulated by fixing his pay at the minimum stage on 19.5.1981 i.e. the date of his joining and over payment was to be recovered. 9. The tribunal’s action after considering the cases relied upon by the parties was to dismiss the original application No. 2170 of 2006 vide its impugned judgment and order dated 21st April 2007 holding that in view of the facts and circumstances of the case, it cannot be held that adjustment of the recovery of excess amount, which is not due to the applicant is malafide or in contravention of any rule. Paragraphs 12 to 15 reads thus: “12. In the present case, there is no dispute in regard to the facts. Applicant, being an ex-serviceman, was required to give an option either to retain his military pension, DCRG etc., or to surrender it on joining a civil employment. Since this requirement was not met, and it was found that applicant had not surrendered the military pension, DCRG etc. that he had received from his military service, the excess amount was adjusted against the amount due to him on his superannuation from the Postal Department where he was in civil employment. The memo dated 2.9.2005 (AnnexureA-4) clearly indicates that an amount of Rs. 1,22,615/- is to be credited/recovered from the DCRG of the officer for adjustment of over payment of pay and allowances w.e.f.19.5.1981 to 31.7.2005. The memo dated 2.9.2005 (AnnexureA-4) clearly indicates that an amount of Rs. 1,22,615/- is to be credited/recovered from the DCRG of the officer for adjustment of over payment of pay and allowances w.e.f.19.5.1981 to 31.7.2005. It is thus clearly a case of adjustment of over payment, rather than recovery of an amount as applicant had not yet been paid his retiral dues from which recovery was actually affected. 13. It is also important to highlight the declaration/undertaking (Annexure R-III) dated 5.5.2005 given by the applicant, which reads as follows : “I hereby declare that I will deposit any over Payment/Recovery in any Provisional payment (DCRG Leave Encashment etc.) at Meerut City H.P.O., if pointed out by audit (DAP) Lucknow in the finalisation of pension case and checking of various pay fixation during may service.” 14. The above declaration has been signed on 5.5.2005, whereas applicant superannuated on 31.8.2005 i.e. well before his actual retirement. 15. In so far as recovery from gratuity is concerned, learned counsel for the respondents drew attention to Rule 73 of the CCS (Pension) Rules (Annexure R-IV) which clearly provides for adjustment of any dues which remain outstanding till the date of retirement of Government servant against the amount of retirement gratuity becoming payable to the Government servant on his retirement.” 10. Aggrieved, the petitioner has preferred this writ petition challenging the validity and correctness of the aforesaid impugned order dated 21.4.2007 passed by the Central Administrative Tribunal. It is being challenged on the ground that following citations of the petitioner placed before the Tribunal were not considered in the judgment. 1. State of U.P. and others v. State Public Service Tribunal, 2004(1) UPLBEC 127 . 2. Sahib Ram v. State of Haryana, (1995) SCC (L&S) 248. 3. Shyam Babu v. V.D., (1997) (27) ATC. 4. Gabriel Saver for Namdes v. State of Karnatka and others, (1994) S SLR 625. 5. D.V. Kapoor v. U.I., (1990) ATRSC, 1923. 6. Bhagwan Shukla v. U.I., 1995 (2) SLJ SC 30 11. 2. Sahib Ram v. State of Haryana, (1995) SCC (L&S) 248. 3. Shyam Babu v. V.D., (1997) (27) ATC. 4. Gabriel Saver for Namdes v. State of Karnatka and others, (1994) S SLR 625. 5. D.V. Kapoor v. U.I., (1990) ATRSC, 1923. 6. Bhagwan Shukla v. U.I., 1995 (2) SLJ SC 30 11. The order is also being assailed on the ground that the pay of petitioner was correctly fixed at the time of his re-employment in the postal department on the post of Postal Assistant as he was drawing same scale under the service of Union Government in Air Force: that it had been admitted by the respondents that there is neither any fault of petitioner nor the petitioner was in any way responsible for fixation of scale. Hence, in the circumstances no such excess amount due to alleged wrong fixing of pay could have been recovered from him by the respondent from his retiral dues. The order is also being assailed on the ground that no opportunity whatsoever was afforded to him by the department before passing the said order of recovery. Hence the order of respondents is illegal arbitrary and against the principles of natural justice. No other point has been argued by the learned counsel for the petitioner. 12. On perusal of the record, it appears that according to Rule 19(1) of CCS (Pension) Rules 1972 a Government servant who is re-employed in civil service or post before attaining the age of superannuation and who, before such re-employment had rendered Military service after attaining the age of 18 years may opt: “(A) To continue to draw the Military Pension or retain gratuity on discharge from Military service in which case his former Military service shall not count as qualifying service, or (B) To cease to draw his pension and refund (i) The pension already drawn. (ii) And value received for commutation of Military Pension, and (iii) The amount of service gratuity, if any, 13. However, in the present case neither option was given by the petitioner nor any amount of pensionary benefits was deposited. Therefore, his pay was to be fixed at minimum of the time scale i.e. Rs. 260/- instead of Rs. 372/-” as has been informed by the Senior Accounts Officer (Pension) o/o Director of Accounts, Lucknow. However, in the present case neither option was given by the petitioner nor any amount of pensionary benefits was deposited. Therefore, his pay was to be fixed at minimum of the time scale i.e. Rs. 260/- instead of Rs. 372/-” as has been informed by the Senior Accounts Officer (Pension) o/o Director of Accounts, Lucknow. Moreover the petitioner had submitted a declaration on 5.5.2005 before the authorities that he will deposit any over payment/recovery if pointed out by the audit (DAP) Lucknow in the finalisation of pension case and checking of various pay fixation during his service. Therefore his fixation of pay being not in order as several increments given to him during his military service were indirectly added again, when his pay was fixed on re-employment in Postal Department. 14. The petitioner had never applied for the approval from the D.G.(Post) on 24.9.2005 and had also not surrendered the pensionary benefits of his Defence service as required under Rule 19(1) of CCS (Pension) Rules, 1972. As such the recovery appears to have rightly been ordered from his retiral dues, which is in conformity with the Rules as well as decisions rendered in the case of Sajjan Singh v. U.O.I. and another, 2005(3) SLJ 399 by CAT Jabalpur which we approve. 15. As regards the question of consideration of citations of the petitioner by the CAT is concerned we find from the judgment itself that all the cases which were cited by him before the Tribunal have been considered. Before us also he has cited the judgment rendered in State of U.P. and others v. State Public Service Tribunal, wherein the selection grade of promotional pay scale was granted to Panchayat Officer w.e.f. 1.7.1988 but his pensionary benefits were withheld after his retirement on 30.12.1996 on the ground that promotional pay-scale and selection grade was wrongly granted. It was held that there is nothing to show that the employee was instrumental in fixation of pay-scale, therefore, it was the duty of the State Government to have taken steps against the officer responsible for such grant of benefits rather than punishing the employee concerned and in the facts and circumstances of that case, the Court found that the tribunal was justified in directing payment of pensionary benefits to the employee. 16. 16. The petitioner has also relied upon the judgments rendered in Bhrigu Raj Singh v. State of U.P. and others, (2008) 3 UPLBEC 2428, Budhi Ram v. State of U.P. and others, (2008) 3 UPLBEC 2502 and Shiv Prakash Richaria v. State of U.P. and others, 2008(9) ADJ 411 . 17. In the case of Bhrigu Raj Singh (supra) the Court held that payment made to the petitioner on the basis of wrong fixation of pay cannot be recovered as he was not responsible for it since there was no fault of the employee and the calculation of the pension on the basis of revised pay-scale can be made only after affording opportunity to him. Hence impugned order was quashed. The relevant extract of the judgment reads thus : “In the present case, the respondents have calculated the pension payable to the petitioner on the basis of the revised pay scale without providing any opportunity to the petitioner. They have also deducted the excess salary paid to the petitioner from the retiral benefits. In such circumstances, the impugned orders dated 2nd March, 2006 and 20th January, 2007 are quashed and a direction is given to the respondents to release the amount of salary deducted from the post retiral benefits of the petitioner within a period of two months from the date of production of a certified copy of this order with interest at the rate of 6% from the date the amount was due to the date the amount is actually paid. It shall, however, be open to the respondents to refix the salary of the petitioner after giving opportunity of hearing to the petitioner and such re-fixation of salary would be effective from the date of correction.” 18. In the case of Budhi Ram (supra) which is also to the same effect, the Court allowing the writ petition directed thus: “For the aforesaid reasons, the impugned order cannot be sustained. In so far as the refixation of the pay-scale of the petitioner is concerned, no error can be found in the impugned order and therefore, pensionary benefits of the petitioner would be available in accordance with refixation of his pay scale. The impugned order dated 17.3.2006 and order dated 20.5.2000 are quashed. The amount sought to be deducted by the impugned order cannot be deducted and is liable to be paid to the petitioner. The writ petition is allowed. The impugned order dated 17.3.2006 and order dated 20.5.2000 are quashed. The amount sought to be deducted by the impugned order cannot be deducted and is liable to be paid to the petitioner. The writ petition is allowed. No order is passed as to costs.” 19. In Shiv Prakash Richaria (supra), which is also to the same effect as the above two cases, it was directed that the amount of excess payment cannot be recovered from the employee by the department from his retiral dues if there is no involvement of the employee in the wrong fixation of his pay scale and that too without affording any opportunity to him. 20. It is apparent that the ratio laid down in the aforesaid judgments is not applicable to the facts and circumstances of the present case for the following reasons: (A) The petitioner had earlier preferred Original Application No. 1060 of 2006, which was disposed of by the Central Administrative Tribunal with a direction that the petitioner will be provided opportunity before deciding his representation and the Senior Superintendent Post Office, Meerut Division Meerut (U.P.) had given opportunity of personal hearing to the petitioner on 21.6.2006 before rejecting his contentions and the representation in this regard. (B) The incorrect fixation of pay of the petitioner had been detected by respondent No. 2-D.A.P., Lucknow prior to his retirement and it is not a case where any recovery is being made after the retirement of the petitioner merely on the allegation of excess payment made to him due to incorrect fixation of pay without affording him any opportunity. 21. In this view of the matter action of the department cannot be faulted with and is in accordance with the principles of natural justice. 22. Moreover, it is not to be forgotten that the petitioner in the instance casehad submitted his declaration before the Authority, which reads thus: “I hereby declare that I will deposit any over Payment/Recovery in any Provisional payment (DCRG Leave Encashment etc.) at Meerut City H.P.O., if pointed out by audit (DAP) Lucknow in the finalisation of pension case and checking of various pay fixation during may service.” 23. It has been considered by the Tribunal in its judgment in paragraph No. 13. As such also, the petitioner cannot now make any grievance that the amount cannot be recovered from him due to wrong fixation. It has been considered by the Tribunal in its judgment in paragraph No. 13. As such also, the petitioner cannot now make any grievance that the amount cannot be recovered from him due to wrong fixation. The petitioner on 21.6.2006 has admitted that his pay was fixed in the year 1988-89 and at that time he had not surrendered his D.G.R.C./pension of military service rendered by him. 24. Since the petitioner had not surrendered his DGRC/pension of military service rendered by him and had also given undertaking that if it is found that his pay fixation is incorrect, the amount of excess pay can be recovered from him, therefore the cases cited by him are not applicable to the facts and circumstances of this case. The petitioner had been afforded opportunity before deduction of excess pay and for this reason also CAT has rightly found that there was no justification for grant of any relief to the petitioner. The action of recovery of over payment by the department being in conformity with law and the rules applicable to department, is liable to be upheld. For all this reasons, the writ petition is dismissed. No order as to costs. ———————