Central Administrative Tribunal - Chandigarh
Dinesh Singh On Of Shri Nathu Singh Aged ... vs Union Of India on 30 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH. O.A.NO.241-PB-2012 Decided on : July 30, 2012 CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J) AND HONBLE MRS. PROMILLA ISSAR, MEMBER (A). 1. Dinesh Singh on of Shri Nathu Singh aged 46 years, Employment No. 520865, resident of House No. T-5A, Rail Coach Factory, Kapurthala (Punjab). 2. Nabh Padam son of Shri Sat Pall, aged 44 years, Employment No. 521887, resident of Village & Post Office, Khera Dona, District Kapurthala (Punjab). 3. Amrik Singh son of Late Shri Bhagat Singh, aged 45 years, Employment No. 509033, resident of Quarter No. 691-E, Type-II, Rail Coach Factory, Kapurthala (Punjab). 4. Harjeet Singh son of Shri Jarnail Singh aged 45 years, Employment No. 307553, resident of Ajit Nagar, Gali No. 2 near Hari Krishan Public School, VPO Bhulana, District Kapurthala (Punjab). 5. Rajit Kaur daughter of Shri Karamjit Singh aged 43 years, Employment No. 50808, resident of 84-A, Rail Coach Factory, Type-IV, Kapurthala (Punjab). . Applicants By: Mr. Inderjit Kaushal, Advocate. Versus 1. Union of India, Ministry of Railways, Rail Bhawan, New Delhi, through its Secretary. 2. Rail Coach Factory, Kapurthala, through General Manager (P). Respondents Reserved on : 16.07.2012 By : Mr. Yogesh Putney, Advocate. ORDER
HONBLE MS.SHYAMA DOGRA, MEMBER (J) The applicants have filed this Original Application submitting that they initially joined service as Group D employees and were then appointed as Junior Clerks in the un-revised pay scale of Rs.950-1500 revised to Rs.3050-4590 w.e.f. 1.1.1996, during the years 1996 to 1998. Their next promotion was made to the post of Senior Clerk.
2. The Railway Board issued instructions dated 17.1.1997 (A-4) and 17.10.1997 (A-5) to the effect that the Senior Clerks appointed/ promoted against LDCE quota were eligible for the benefit of proforma fixation of pay as Senior Clerk Typists in the pay scale of Rs.4500-7000 (Revised) and other benefits w.e.f. the date of their appointment as Junior Clerk but the actual benefit would be given from the date of appointment as Senior Clerks. These instructions were issued in pursuance of the decision of the Apex Court in the case of Smt. Anuradha Mukherjee Vs. Union of India & Others, JT 1996 (30 576 (A-6).
3. The applicants were promoted as Senior Clerk-cum-Typist vide order dated 12.10.2002 (Annexure A-1) in the pay scale of Rs.4500-7000. They submitted representations for grant of benefit of proforma fixation of pay as Senior Clerks from the date of their appointment as Junior Clerks in the pay scale of Rs.950-1500.
4. The respondents accepted the prayer of the applicants vide office order dated 17.9.2011 (A-7) and granted the benefit of proforma fixation of pay in the pay scale of Rs.4500-7000 from the date of their appointment as Junior Clerks and actual benefit in the pay scale of Rs.4500-7000 w.e.f. the date of joining as Senior Clerk. Another order dated 20.9.2011 (A-8) was also passed by the respondents releasing the aforesaid benefits to the applicants.
5. The applicants made representations for grant of financial up-gradation under the MACP Scheme from the date of proforma fixation of pay as they were eligible for the same and clarification was also sought on the issue but ultimately the RCF issued show cause notices dated 08/14.02.2012 (A-12 to A-16) to the applicants asking them as to why the benefit of proforma fixation of pay and arrears given to them for the post of Senior Clerks be not withdrawn with interest as they were not entitled to benefits granted to them vide letter dated 17.9.2011 and 20.9.2011. The applicants submitted reply to the notices alongwith copy of judgment in the case of Budh Ram & Others Vs. State of Haryana, 2009 (3) SCT, 333. They submit that it is a settled law that the employees who have received the benefits extended to them on an erroneous interpretation or application of any rule, regulation circular and instructions and have not contributed to such interpretation nor have they committed fraud, misrepresentation or deception to obtain the grant of such benefit, the benefit so extended may be stopped in future but the amount already paid to the employees cannot be recovered. Ultimately, the respondents have rejected the objections of the respondents vide order dated 9.3.2012 (A-18) directing for withdrawal of benefit and for depositing the arrears already paid to them. They submit that in view of the law laid down in the case of Budh Ram (supra), no recovery can be made from them.
6. The applicants have, therefore, prayed for quashing the impugned orders, Annexures A-12 to A-16, Annexure A-18 dated 9.3.2012, and for issuance of direction to the respondents to restore the benefit of proforma fixation of pay and actual benefits thereof already granted to the applicants vide letter dated 17.9.2011.
7. The respondents have filed a reply. They submit that the applicants are not entitled to the benefit of the instructions dated 18.6.1981/31.7.1981 (Annexure A-2) as the Rail Coach Factory was not in existence at that point of time when the re-structuring of cadre of the Ministerial Staff, other than the Personnel, took place nor are the applicants entitled to the benefit in pursuance of the decision of the Apex Court in the case of Anuradha Mukharjee (supra) which applies only to vacancies arising out of restructuring of cadre introduced w.e.f. 18.6.1981 and Boards instructions dated 18.6.1981 and 31.7.1981 and the instructions dated 17.1.1997 and 7.10.1997 (Annexures A-5 and A-6), since the benefit is not available to the vacancies arising after the restructuring order because after the framing of Rules after restructuring, the employees are to be governed under these Rules.
8. They submit that the applicants have mis-led the authorities by making delayed representations dated 18.11.2010 (A-3) claiming the benefit of instructions of re-structuring in the guise of the said judgment, claiming that they are eligible for benefit of proforma fixation of pay as Senior Clerk-cum-Typist in the scale of Rs.4500-7000 from the date of their appointment as Junior Clerk. Thus, a benefit drawn on the basis of a mis-representation made by the applicants can validly be withdrawn from them with consequential recovery also.
9. They further submit that the RCF came into existence in the year 1986 and at that relevant point of time, the RCF was in its project stage and all the posts were work-charged. There was no regular service cadre. The persons who joined Rail Coach Factory at that time retained their lien in the parent Railways and got their respective promotion by appearing in the selection in their parent organization. The persons who joined Railway Coach Factory during the Project stage were given various incentives / ad-hoc promotions and the cadre of RCF was closed w.e.f. 31.3.1990. The persons who opted for retention in RCF were screened and on being found eligible were retained and others were repatriated. Thus, there is no question of instructions dated 18.6.1981 and 31.7.1981 being applicable to the applicants since there was no such cadre in the RCF existing at that point of time. The applicants were appointed as Jr. Clerks during 1996 to 1998. They were wrongly given the benefit of proforma fixation of pay in the scale of Rs.4500-7000 (pre-revised) PB-1 Rs.5300-20200 (revised) + Grade Pay Rs.2800/- from the date of their appointment as Junior Clerk in the Scale Rs.3050-4590 (pre-revised) / PB-1 Rs.5200-20200 + Grade Pay Rs.1900/- and actual benefit in scale Rs.4500-7000 (pre-revised w.e.f. The date of their joining as Senior Clerk and further fixation in PB-1 Rs.5200-20200 + Grade Pay Rs.2800/- as revised pursuant to 6th Pay Commission. As per Boards instructions dated 18.6.1991 (A-2) and 17.1.1997 (A-5), the benefit of proforma fixation of pay was to be admissible only in respect of vacancies arising out of the cadre restructuring vide Boards instructions dated 18.6.1981, whereas the RCF was not in existence at that time. As such, the applicants were only entitled to fixation of pay from the date of their joining as Sr. Clerk after qualifying under LDCE 13.33% quota and not from the date of their appointment as Junior Clerk. Thus, on receipt of Railway Boards letter dated 19.1.2012 (A-11), the matter was examined and on reconsideration, the benefit of pay fixation which had been granted to the applicants vide order dated 9.3.2012 (A-18) from the date of their joining as Junior Clerk was withdrawn after following the principles of natural justice. The citations relied upon by the applicant with regard to recovery are not applicable to the facts of this case.
10. The applicants have filed a rejoinder and reiterated their submissions as made in the Original Application.
11. We have heard the learned counsel for the parties and have also perused the material on the file.
12. Apparently, the dispute about eligibility of the applicants to get the benefit can be resolved after going through the main policy decision dated 18.6.1981 (A-2). A perusal of the same shows that it had been issued on re-structuring of the Ministerial Cadre of non-Accounts Departments other than Personnel in the wake of up-gradations done in the case of Personnel Department vide letter dated 10.11.1980 and as a result of agreement reached with the staff side in the Departmental Council (JCM). It was decided that there would be direct recruitment of graduates to the posts of Senior Clerks in the scale of Rs.330-560 to the extent of 20% of the total strength and 13.13% of the total posts of Senior Clerks in the scale of Rs.330-560 would be filled from amongst the Graduate Clerks already serving in the lower grades after allowing them the age relaxation already in force. These vacancies would be filled up by a competitive examination to be held by the Railway Service Commission. The orders were to take effect from 1.10.1980. The pay of an employee appointed to the upgraded post may be fixed on proforma basis from 1.10.1980 but the actual payment of emoluments in the higher post were to be allowed only from the date he took over the charge of the upgraded post. We also find that after the decision of the Honble Supreme Court in a number of cases titled Smt Anuradha Mukharjee & Others (supra), the respondents issued OM dated 17.1.1997 (A-5), indicating that all in-service graduate clerks in the grade of Rs.260-400 Rs.950-1500 (RPS) who were appointed as such after 1.10.1980 and have subsequently been appointed as Senior Clerks Grade Rs.330-560 (RS) / Rs.1200-2040 (RPS) on their qualifying the LDCE, would be eligible for any proforma fixation of pay w.e.f. 1.10.1980, but from the date of their appointment as Clerks Grade Rs.260-400 (RS) / Rs.950-1500 (RPS) and actual benefit from the date of their joining as Senior Clerk.
13. We find from the material available on record that the RCF itself came into existence in the year 1986 only as a Project having no regular service cadre and staff was recruited from outside and also got promotions in their parent departments. The persons who had joined RCF during the Project stage were given incentives / ad-hoc promotions etc. and the cadre of RCF was closed w.e.f. 31.3.1990. Those who had opted for being retained in RCF were retained after screening and others were repatriated. In view of these facts, we have no hesitation in accepting the plea of the respondents that instructions dated 18.6.1981 and 31.7.1981 could not be applied to the applicants as there was no such cadre existing at that point of time and as such the question of cadre restructuring or extension of the benefit flowing from such restructuring to the applicants does not arise. Admittedly, the applicants had been appointed as Junior Clerks during the years 1996 to 1998 and formed a separate class other than the class for which the restructuring scheme had been introduced and implemented and applicants cannot claim any parity with that class. We agree in this case that it was due to mis-representation by the applicants that they were given the benefit of proforma fixation of pay, which has since been withdrawn.
14. We are of the view that it was only an administrative error which could be corrected by the respondents and they have done so after following the principles of natural justice and only after inviting objections from the applicants, the impugned orders have been passed. The principle of estoppel would not operate against the respondents for correction of such an error in the given facts and circumstances of the case.
15. In so far as recovery is concerned, no doubt the general law is overwhelmingly in favour of the employees that where there is no mis-representation or fraud on the part of the employees, the recovery of an overpayment should not be made. But learned counsel for the respondents has pressed into service a decision of this Tribunal in O.A. No. 696-PB-2003 titled Deepak Nanda vs. Union of India & Others, decided on 28.4.2004 in which it was held that if an administrative error is detected, the competent authority is well within its power and authority to correct the same. Distinguishing the decision in the case of Sahib Ram Vs. State of Haryana & Others, 1995 (1) SLJ, Page 8, it was held that there is a difference between an employee who is in employment and one who has retired and Courts have forbidden recovery of such over payments in respect of retired employees. In that case the employee was still in employment and as such it was held that Government can make recovery and ultimately O.A. was dismissed.
16. In this case also, we find that the applicants are still in employment and period of grant and withdrawal of said benefit is hardly two years old, and we are not inclined to accept the prayer of the applicants to accept their claim. Once it is found that some benefit was given to them due to an error, which has been corrected, the government is well within its power and authority to make recovery also but in easy instalments, so that the applicants and their families may not face any financial difficulty.
17. In view of the above discussion, while upholding the impugned orders, this O.A. is held to be devoid of any merit and is dismissed and disposed of accordingly. The interim order stands vacated. No costs.
(PROMILLA ISSAR) (SHYAMA DOGRA) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: July 30, 2012 HC* - 1 - (O.A.NO.241-PB-2012)