Dr. Shashi Vashisht v. Union of India and Ors

V. KAMESWAR RAO, J.

ANOOP KUMAR MENDIRATTA, J. SEPTEMBER 26, 2023/R

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: September 26, 2023 + DR. SHASHI VASHISHT ..... Petitioner Through: Mr. M. L. Sharma and Mr. Gaurang Vardhan, Advocates. versus UNION OF INDIA AND ORS. ..... Respondents Through: Ms. Shiva Lakshmi, CGSC with Mr. Vishal Singh and Mr. Govind Sharma, Advocates. CORAM: HON'BLE MR. JUSTICE V. KAMESWAR RAO HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO (ORAL) 1. The challenge in this writ petition is to an order dated October 01, 2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi ("Tribunal", for short) in O.A. 3885/2016, whereby the Tribunal dismissed the O.A. filed by the petitioner herein by stating in paragraph 10 as under : "10. From the above amply clear that in view of the judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (Supra), the said recovery is permissible and hence, the grounds taken by the applicant have no force in law." 2. The challenge of the petitioner before the Tribunal was to an order dated August 10, 2016 passed by petitioner No. 3 withholding a part of the gratuity amount of the petitioner of Rs. 5,19,139/- and releasing the balance amount to her, after her retirement. 3. The petitioner was appointed as a Specialist in Ophthalmology in Central Health Scheme (CHS), Government of India. In December 2009, she was appointed as Consultant in the Eye Department of Dr. Ram Manohar Lohia Hosptial, New Delhi and started drawing Grade Pay of Rs. 10,000/- per month and Transport Allowance of Rs. 7,000/- per month. 4. She retired from service on August 31, 2015. On November 06, 2015, the Director General of Audit (Central Expenditure) issued a letter to the Health Secretary, Government of India, mentioning therein that the Doctors in the Senior Administrative Grade (SAG) were drawing Transport Allowance @ Rs. 7,000/- per month whereas they, in fact, are entitled to Transport Allowance @ Rs. 3,200/- per month in terms of OM issued by the Ministry of Finance in that regard. 5. Be it noted, the gratuity was not paid to the petitioner at the time of her retirement. She wrote a letter dated March 10, 2016 to the Additional Secretary & Director General, CGHS for payment of the Gratuity. 6. It was in this background that vide the impugned letter dated August 10, 2016, the Pay and Accounts Office, CGHS, Ministry of Health and Family Welfare made payment of Rs. 4,80,861/- by withholding the balance amount of Rs. 5,19,139/- and also informing the petitioner that the latter amount had been deducted on account of alleged over payment of Transport Allowance. 7. In support of her case before the Tribunal, the petitioner had relied upon the judgment of the Supreme Court dated December 18, 2014 in State of Punjab vs. Rafiq Masih & Ors., (2015) 4 SCC 334. 8. The case of the respondents before the Tribunal was, the petitioner was a Group – A Officer of the CHS. She and other medical officers of the CHS were paid Transport Allowance on the assumption that they being officers of the level of SAG are entitled to Transport Allowance but later on, Ministry of Finance, Department of Expenditure, vide its UO Note bearing No. 21(2)/2014-E.III (B), read with paragraph 7.1 of Report No. 18 of 2015 of the Comptroller &Auditor-General of India (CAG), pointed out that medical officers like the petitioner are not entitled to Transport Allowance. 9. When the bill of Rs.10,00,000/- towards payment of residual gratuity to the petitioner was sent to the Pay & Accounts Office, they on noting that the over-payment of Transport Allowance has been made, after deducting the over-paid amount, paid an amount of Rs. 4,80,861/-. 10. It was further submitted that CAG being a constitutional body, which audits accounts of the Central Government as well as of State Governments, had pointed out about the excess payment, the Ministries, Departments and Offices of the Central Government have no option but to make recovery. 11. The Tribunal while dismissing