Delhi High Court: A Division Bench comprising of Sanjiv Khanna and Navin Chawla, JJ, ruled in favour of an Air Force officer on deputation to the BSF Air Wing, enforcing the rule laid down in Group Captain Joe Emmanuel Stephen v. Commandant (Personell), Directorate General of BSF, 2013 SCC OnLine Del 2472, that there cannot be two different pay scales, one applicable to deputationists and the other to the officer of the parent cadre/department when both are performing identical and same duties.

The petitioner was an IAF officer (Squadron Leader) on deputation to the BSF Air Wing (Sr.AME) from 2004, drawing the salary applicable to IAF officers with minimal deputation pay. The pay scales applicable to BSF Air Wing pilots were different. The pilots of the BSF Air Wing drew flying incentives as per actual flying hours undertaken and hence had a heftier take home salary. The issue was brought forth and rectified by settlement vide agreement dated 08.02.2008. The agreement allowed flying incentives to IAF officers on a par with BSF Air Wing officers. The issue arose in the period between 01.02.2007 to 07.02.2008. During this period the petitioner was drawing pay termed as “BSF kind of pay” under an option provided by the BSF Air Wing to IAF officers on deputation. The payment of flying incentive to IAF officers was objected to in an audit, the grounds being that the terms of deputation of the petitioner and other IAF officers should be according to the memorandum dated 16.04.2004. Moreover, the Directorate initiated recovery proceedings for recovery of excess payment against the petitioner. Aggrieved, the petitioner filed the present writ petition.

The Court, admitting that there may be some merit in the argument that the petitioner was not entitled to flying incentive during the period between 01.02.2007 to 07.02.2008 in view of the MOU dated 16.04.2004. However, for the issue at hand, the Court found no merit in the arguments of the respondents. The Court referred to State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, stating that in any case of recovery of excess payment, if the court arrives at the conclusion, 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, then such recovery cannot be allowed to be made. The Court again stated that though the agreement dated 08.02.2008 did not have retrospective effect, it did correct an anomaly which could not have been correct in law. The respondents were ordered to pay back the amount already recovered/withheld. Petition allowed. [Wing Commander Arvind Kumar v. Directorate General, BSF, 2017 SCC OnLine Del 10880, decided on 14.09.2017]

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