Central Administrative Tribunal - Madras
P Vijayasarathie vs M/O Information And Broadcasting on 15 June, 2023
cd 1 OA 46/202) CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA NO.46/2021 Dated Thursday the 15" day of June Two Thousand Twenty Three CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER P, Vdayasarathie (Retd) Age 60 years Administrative Officer, AIR Chennaj - 600 004 By Advocate: Mr, Paul and Paul Vs. 1. Union. of India, Rep.by Secretary, Ministry of Information and Broadcasting, 'A' wing, Shastri 'Bhavan, New Delhi- 110004, 2, The Director Genera! All India Radio Akashvani Bhavan, Parliament. Street, New Delni- 116001. 3. The Deputy Director (Admin) Al India Radio, Akashvant Bhavan, Parliament Street, New Deini - £10001. 4, The Deputy Director General (Engg j/HOO All India Radio, Chennai ~ 600-004. 5. Drawing and Disbursing Officer All India Radio, Mylapore, Chennai - 600-004 By Advocate: Mr. Su. Srinivasan . Applicant » Respondents 3 2 OA 46/2021 ORAL ORDER
{Pronounced by Hon'ble Smt. Lata Baswaraj Patne,, Member (7)) This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"a) To declare the action of the 4th and 5th respondent, recovering/with halding.a sum of Rs. 3.41,887/- from the retirement benefit (Death-cum retirement. gratuity) of the applicant is iHegal and vold, asthe same is without authority and. contrary to the Jaw laid down by the Hon'ble 'Supreme Court in Rafiq Masih, b} Direct the respondents to release: the recovered/withheld Death Retirement. Gratuity amount of fs.3,41,8871- to the applicant with 12% interest from the date of his retirement to till the date of payment.
0} for such. further or other rellef or reliefs as this Han'ble Tribunal may deans fit and proper in the circumstances.of the case and thus render justice."
2. The brief facts of the case in a nut shall are as follows:
'The applicant was appointed as Clerk Grade fl at Doordarshan Kendra, Chenna' on 08.08.1980, thereafter on 01.08.1990 the Applicant then joined All India radio at Port Blair on promotion as Clerk Grade I. The Applicant was aranted ist Financial Upgradation under ACP Scheme in the pay scale of Rs,.5500-175- $000 on 31.08.2004, Further he was granted 2nd Financial Upgradation under MACP Scheme in the revised Scale of Rs.9300- 34800 with a Grade Pay of Rs.4600/- ja the year 2010, Subsequently, the Applicant was Prornoted as Accountant (Assistant) on 10.10.2012 at AIR, High power Transmitter, Avadi.
2.1. Thereafter, as per News Service Division of All India Radio's (Cadre Centroiling Authority) instruction, Grill and Gri were merged and re-
designated as Steno GrJ with retrospective effect from 01.01.2006 In the year 2014. Successively, he was promoted as Administrative officer, AIR Chennal on 30,12.2019 and superannuated on 31.10.2020 as Administrative Officer, AS per VI Pay Commission specific recommendation as mentioned in PartB. section, -ff, the pay scales of Head Cleark/Assistants/Steno Grade. U/ equivalent were revised into 6500-10500 - PB-2 - GB 4200, and this revision f* 3 OA 46/2021 is applicable from 01.01.2006, As the applicant was working as UDC at that time, pursuant to the above specific recommendation, his pre-revised pay scale also was revised into 6500-10500. Based on the above specific recommendation, 8 doubt has aroused whether the pre-revised scale or the revised pay scale has to be taken for fixing the basic pay in the revised pay band. In the said situation, the 2nd respondent office had issued a clarification Gated 04.10.2012 and Instructed to all the AIR DDK that the fixation of pay in respect of employees working as Clerk/Assistant/Steno, Gr. Il in All India Radio and Doordarshan will be made as per illustration 4A. in accordance with Note 2A below Rule -7 of 6th CPC gazette notification.
2.2 Based on the said instruction, the pay of the applicant was re-fixed by way of proceedings dated 03.10.2012, wherein the revised pay scale of 6500-10500 was taken for the purpose of arriving the basic pay in the revised pay band, and he was pald the arrears of pay with effect from 01.01.2006. The Applicant had sent a representation dated 18.09.2014 to the 2nd Respondent and pointed out that the mathod of pay fixation applied to Assistants tf the Central Secretariat, and argued that the same would also be apa icable to him, and thereby requested not to make any changes in his eartler fixation. In the said situation, the Prasar Bharat! Secretariat, which is the next higher Authority to the Directorate of Ail India Radio and Doardarshan vide its letter issued under RNo.MISC./1/330/2012/PPC dated 18.05.2015, ra-affirming the clarificatory order dated 04.10.2012. Again, the Prasar Bharati Secretariat had Issued a clarification dated 31.12.2015, wherein it has been pointed out that the existing pay as on 01.01.2006 has to be. multiplied by a factor 1.86 and rounded the resultant figure to the next multiole of ten. To ease the complicity of multiplication and rounding off, the fitrnent table of pre-revised scales of pay in which the officer has drawn his 63 4 OA 46/2021 pay as on 01.01.2006 was advised to be used for arriving at the pay in the pay band, and thereafter, the grade pay corresponding to the upgraded scale as indicated in Column -- 6 of Part-B or Part-C of CCS (Revised Pay) Rules, 2008 will be payable in addition. This oscillating and wavering stand of beth the Directorate of AIR @nd Prasar Bharati had put great hardship to the employees Including the applicant.
2.3 After the abave said clarification, the apolicant made a representation dated 21.01.2016 to the 3rd respondent and substantiated that the fixation of pay done on 03.10.2012 was perfectly correct arid the same should not be interfered with. Even after the above clear representation, the pay of the applicant was again ré-fixed on 25.01.2016 without affording any opportunity, and the Basic Pay of the Applicant was reduced from Rs.iz090 [6500-10500(6500*1 .86)} to Rs.10230 {5500-9000(5500*1.86)]. Subsequently, the applicant made a representation dated 13.12.2019 through proper channel (DG:AIR, New Delhi) to the 2nd respondent and sought an intervention In the matter of recovering the wrongful excess payment by quoting the case of similarly situated employee Mr. K.Kannan and the waiver granted to Engineering/programming employees, And alse requested to take up the matter with the Department of Expenditure as per the Hon'ble Supreme Court in Rafiq Masih case. When the matter stood thus, without considering the request of the applicant, without any order fram the competent authority, and also without any notice, the 4th and Sth respondent had recovered a sum of Rs,3,41,887/- from the Applicant's DCRG on superannuation. The applicant superannuated on 31,10.2020 while working as the Administrative Officer, AIR. Chennai. The case af the applicant Is covered under the exceptions carved gut by the Hon'ble Suprerie Court in 5 ~ OA 46/2021 the Rafiq Masih and therefore the above recovery from the retirement benefits of the applicant is impermissible, iflegal and flable te be set aside, Hence the applicant has filed the present 0.A; prayihg for the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and filed detailed reply in the matter and contended that when the applicant's pay has been fixed for the first time after 6" Central Pay Commission recommendation, the applicant has accepted the same and has not raised any issue or grievance over any anomaly. When persons who have been wrongly fixed their pay in the year 2008 after recommendation of the 6 CPC have raised their grievances and pointed out the anomaly before the Head Quarters, the issue has been taken for consideration following with the iflustration 4 A in accordance with note 2A below Rule 7 of 6 cpc Gazette notification. Thereby, the respondents authority have re-fixed the pay of the employees uniformly in the year 2012. The same has. been effected in the matter of applicant on 03.10.2012. However, when the issue has been taken with the Ministry of Finance with the Expenditure Department it has been noticed that the pay of the employees in the Office of the Respondents have not fixed strictly in accordance with rule 4 {A} in accordance with the note 2A below Rule 7 of the 6" CPC gazette notification. That is the reason why the decision has been taken up to fallow that guidelines Issued by the Department's OM dated 6.02,2014. In the cases of over payment made, recovery should be made bearing few exceptions: of extreme hardships therefore the respondents have issued instructions in December, 2015 and instructed all the concerned: Heads that the same may be informed to all concerned authority in re-fixation of pay carried out forthwith and in the applicant's case, the pay was refixed on 25.01.2016.
Further the applicant belongs to Group B Gazetted Officer cadre and hence é OA 462021 he will not fall within the exception carved out for the rule of recovery when excess payment was made. Moreover, as Accountant at HPT, AIR, Avadi, the apolicant himself was directly Invelved in his own fixation. Being a first level Supervisory Officer, he has to ascertain undertaking is being given by officials of his office, in case of any pay fixation Is done at the office. Instead the applicant claims that he did not submit any undertaking. at the time of carrying out fixation by self which clearly shows malafide intention on the part of the applicant so that In future when récovery is made he can claim immunity under non-submission of undertaking. Even though the applicant has not submitted separate undertaking for the revision, he has submitted undertaking for the 6" CPC fixation and the revision of fixation pertains to 6"
CPC pay which is binding on the applicant. The pay fixation is nat done according to CCS(RP)} Rules, 2008 but by wrong Interpretation of rules which resulted in unlawful gains to the applicant for which the applicant cannot stake claim, Hence, the respondents prayed for dismissal of the OA.
4. Heard MrMuthukumaran for the applicant and MnSu.Srinivasan, SCGSC for the respondents and perused the OA along with relevant records.
5. The Learned Counsel for the applicant has placed reliance upon the order passed by Principal Bench of this Tribunal in G.A.No.290 of 2016 dated 29.3.2023 in the matter of Smt, Pushpa Dulanf and 14 others Vs. Union of India, through the Secretary Ministry of Information and Broadcasting and others... After dealing into the issue, theugh the Principal Bench has declined to interfere with the matter of re-fixation, however, it directed the raspondents authority not to recover the amount.
6 The Learned Counsel for applicant has also relied on the order passed by the Hon'ble Supreme Court of India in Civil Appeal No.5527 of 2022 in the case of M.P. Medical Officers Association Vs.State of Madhya Pradesh and 7 OA 46/2621 Others along with connected Civil Appeals, vide its order dated 26.08.2022, the Hon'ble Apex Court as observed that if the Government has granted the benefit under any of the Circular and subsequently the benefit has been withdrawn on the graund of withdrawal of the said Circular, the recovery is hot justified,
7. The Learned Counsel fer applicant has alsa relied upon the order passed by the Hon'ble High Court of Madras. Interim order was passed by Hon'ble High Court in W.P.No.11074 of 2023 and W.M.RNo.10946 of 2023 in the matter of C. Kamalakannan Vs. The Central Administrative Tribunal, Chennai Bench and Others wherein the order passed by this Tribunal in the month of April 2023 has been challenged by the employee and the said order has been stayed as weil as recovery also stayed by way of interim messure and the matter is subjudice before the Hon'ble High Court. 8, On the other hand, the Learned Counsel for respondents. vehemently opposed the contentions raised by the applicant. The Learned Counsel for the respondents submits that the applicant has not raised any grievance over the first pay fixation carried after recommendation of the 6" CPC in the year 2008. Although the respondents. have re-fixed and given the said benefits uniformly, when it was found that re-fixation has not been done as per illustration of 4(A} in accordance with Note 2 (A) below Rule 7 of the 6° CPC gazette notification, and when this mistake has been rectified as per the instructions af Ministry. of Finance In consultation with the Department of Expenditure, immediate steps have been taken for recovery and for re~ fixation, and recovery has been Initiated not only from the applicant, but afso fram all employees who were In receipt of the over payment under the said wrong re-fixation of pay and the said recovery has been effected In the year 2016 itself, Therefore, the applicant has raised his grievance, However
e) 8 OAAE/2021 since it is exchequer fund, public money, the respondents autherity has rejected his requést and the said re-fixation as well as recovery has: been immediately effected from his retiral benefits.
gS. The Learned Counsel for the respondents has relied upon the order passed by this Tribunal in the matter of AC Seshadri Vs. UOT & Ors. In OA, No. 494 of 2020 dated 16.08.2022 and in the case of Mn R. Ganesan Vs. UQI & Ors. In O.A. NO. 543 of 20202 dated 13.01.2023.
£0. The Learned Counsel for respondents also relied upon the order passed by the Coordinate Bench of Ernakulam Bench in O.A.No. 823 of 2019 in the matter of Xavier A.A. Vs. BSNL by Its order dated 8,1,2021. The Court has considered the issue on the ground that as no. undertaking is fourd recovery is not justified In the case, however, if the recavery is justified and this does 'not fall squarely in the guidelines issued in the Rafiq Masih (White waher}. The respondents therein justified the recovery of total amount of Rs. 12,17,980/- due to over payment of pay and allowances and the same has been recovered from the retiral benefits and leave encashment.
li. The Learned Counsel for the respondents also relied upon the order passed by the Coordinate Bench at Bangalore in. O.A.NoO.769 of 2019 by its order dated 27.01.2001, In the matter of N.M. Mujawar Vs. Union of Indja Department of Post, the Court has observed that though the recovery of the over payrnent of pay and allowances has been initiated before the retirement, still, the Tribunal holds that the action of the respondent Government is justified and the same has been racNfied before his retirement in the Audit. Therefore, the coordinate Bench dismissed the OA.o* the applicant.
12. The Learned Counsel for the respondents also argued that the order 9 OA 46/2021 passed by the Principal Bench has not given any reason while following the order in the matter of Refiq Masih under which category the applicant's case is falling. When there is no reason, the said order will not have to follow asa Precedent. More over, in the matter of applicant the recovery has been effected within 3% years and hence the applicant's case is not covered under Rafiq Masih guidelines as well as OM subsequently issued by the DOPT as held by the Tribunal in the case of R. Ganesan Vs. UOL in GA No. 543/2020 dated 13.01.2023 & AC Seshadri Vs. UOT in OA 494/2020 dated 16.08.2023. .
13. It is not in dispute that after the G> CPC's recommendation when for the first time pay fixation was carried out for the applicant in the year 2008 and his pay was fixed according to the Ilustration and the same has been accepted by the applicant as he knew the calculations are correct. Ne has not raised any grievances over the said fixation of pay after the 6" CPC's recommendation, i4, Itjs to. be sieted that some of the employees who have raised. their grievances in respect of the anomaly te the headquarters, thereby the department has taken a decision to refix the pay of all the employees with a rider that excess payment made if any would be recovered. Accordingly undertaking has been given by the employees. It fs also to be moted that after the recommendations by the CPC whenever the pay fixation has been carried out as per the rule, all the employees have fo give an undertaking for adjustment or refund of the excess payment if any received by them. But in the present case the applicant conveniently evaded the same but as correctly stated by the respondents the undertaking given by the applicant for 6° CPC fixation is binding on the applicant of revision of fixation pertaining to the 6"
CPC pay. As per the directions of the Headquarters exercise for refixation has 10 OA462021 bean catried out and accordingly in the year 2012 refixation has been effected In the matter of not only in the applicant's case but also in the case of ali the employees of the department. As per the refixation the applicant's pay has been refixed and arrears has been worked out w.e.f 2006 and the same has been released and paid to the applicant.
15. Te is te be noted that when the mattér has been referred to the Department of Expenditure to verify the sald refixation, the DOE after careful consideration has noticed the mistake and by its letter dated 18.06,2015 observed that there is.a mistake while releasing the said payrnent under the refixation and the same has. net been carried 'out according ta the Wustration in view of the provisions of CCS Revised Pay Rules 2008 that the Instruction issued by the PB, Secretary to give minimum of the corresponding stage of that pay in pre-revised scale of pay is wrong and need to be rectified immediately by taking necessary steps and by its letter dated 05.01.2016 it has been informed to the All India Radio that all the AIR/DD officers may accordingly do the pay fixation as per the clarification provided by the PB, Secretary and the excess amount paid if any may be recovered immediately, and the said exercise of refixation has been carried out according to the instructions dated 65.01.2016 and the same has been effected in the matter of the applicant on 25.01.2016 accordinaly.
16, itis also to be noted that admittedly the applicant, an Administracive Officer is having. pay scale of Group @ Gazetted Officer post, While dealing into similar issue In the matter of A.C.Seshadri, a Stenographer Grade I, a Group B employee working in. the office of the same respondents, this Tribunal after relying upon various judgments/orders placed by both sides passed very detailed order and the relevant portion of the said order is extracted. hereunder:il OA 46/2021
"{i) In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 it is held that: -
"15. "We are -not-convineed that this Cowt in various judgments referred to hereinbefore has laid down any. proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipienis of the excess pay, then onty the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore tumed on the peculiar tacts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy,
16. We are concerned with the excess payment of public money which i is often described as "tax payers money" which belongs neither to the officers whe have effected over-payment nor thal of the recipients. We fail to see why the concept of traad of misrepresentation is being brought in such situations, Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake.
Passibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc, because money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault, then the niistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law, Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, othersise it would amount to unjust enrichment.
17, Weare, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. BJ. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixarion can always be recovered,"
{i} The decision of Principal Bench of CAT in GOA 1857 of 2014, wherein one of the similarly situated employee Mr. P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been taken that wrong fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have gone into the interpretation of illustration 44 in accordance with note 24 below Rule 7 of 6" CPC gazette notification. The relevant paras are reproduced as under:
"2. According to the applicant, as per Section [I of Part B of the Gazeite Notification, notifying the CCS (Revised Pay) Rules, 2008, revised pay scale of "6500-10500 has been recommended for Stenographer Grade. Tin PB-2 + Grade Pay of °4200/+, It is also. stated that the Government has provided the procedure for initial pay fixation as on 01.01.2006 in Note 2A below Rule 7 of the Notification, which is reproduced. below:-
"Note 2A- Where a past has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part'C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) () and Gi} of Rule 7 by multiplying the existing basic pay as on 1.1.2006. by adactor of 1.86 and rounding the: resultant figure to the next niultiple of ten. The grade pay corresponding to the upgraded scale 12 OA 46/2021 as indicated in column 6 of Part B or C will be payable in addition, Illustration 4A in this regard is in the Explanatory Memorandum to these Rules,"
3. itis further stated in Rule 7 (1) {A} () & GD, which reads as follows:
"(A) ai the case af all employees:
Q@ the pay in the pey band/pay scale will be determined by multiplying the existing basic pay ag on 1.1.2006 by a factor of 1.86 and rounding off the resulizat figure to the next multiple of 10.
Gi} if he minimum of the revised pay band/pay scale is more than the amount arrived at.ds per (i) above, the pay shall be fixed af the minimum: of the revised pay band/pay scale."
4, In paragraph 4 (i) of the O.A., the applicant has stated that the Government, vide their Notification, has recommended the benefit of ons 4 increment after bunching for every two stages so bunched. In fact, the applicant has also purportedly quoted the abstract of the Report as follawe:-
"Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale pets bunched, that isto say, gets fixed in-the revised pay structure at. the same staze in the pay band, then, for every Two slages so bunched, benetic of one increment shali be given so a8 to avoid bunching of more than vo stages in the revised running pay bands. For this purpose, the increment will be.caleulated on the pay in the pay band, Grade pay would not be taken into account for the purpose of granting increntents to alleviate bunching."
3. First of all, what is contained in the Report is: not important bot the Notification of Government of India, based on the Report, is to be followed, Secondly, at Annexure A-4, the applicant las enclosed paragraphs 3.1.43 snd 3.1.14, perhaps of the Report of 6th Central Pay Commission, which dees not mention anything about bunching and as pointed out by the respondents. in the impugned order, there is no provision for bunching in the Report. In fact, at Annexure A-10, the applicant has annexed a clarification from Ministry of Finance, Bepartment of Expenditure issued on {4,12.2009, in which the first point raised and the clarification given thereto read as follows! Point raised Clarcfication
(a) The manner ih. which pay of Assistants' Pas in position on 1.1.2006 is to be fixed ag per the provisions af CCS (RP) Rules, 2008, Whether there will be. any bunching inthis cass, Assisiants/Pas working as on 11,2006 vail be fixed with reference to. the Atment table Rs,3500-0000 annexed with this Department's O.M. No//2008-IC dated 30th Auoust, 2008 and they will Re.4600. Since the mininum pay in the pay 3 band in the revised = pay ---_structure The pay in the pay and of of the prerevised pay scale of be aranted the grade pay of 13 OA 4GE/2021 coiresponding to the stage of | Rs.5500 (pre-revised} seale i of Rs.5500-9000) is more than the minimum of the pay band PB-2 Le, Rs.9300, no | benefit of bunching is admissible n thig cxse, Therefore, from the above, itis clear that there is no provision of bunching while fixing the pav as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that was an error, which is rightly rectified by the respondents, 6& 'The pay of the Government servant has to he fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay} Rules, 2008 where the provision fs absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade, This is exactly what the respondents have clarified in their affidavit filed on 18.01.2016 and also placed before us an Office Memorandum dated 28.07.2015 (Annexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimunt of che corresponding stage of "6500/- of the pre-revised seale of pay of "6500-10500.
We are, therefore, clear in our opinion that there is no inconsistency-or error in the impugned orders dated 12.04.2014 and.21/22.04.2014 and 6 these are issued as per the instructions of the Government of India contained in CCS { Revised Pay} Rules, 2008;
7% The O.4. is, therefore, completely misplaced and on an absolute ousunderstanding of the Rules/instractions. It is accordingly dismissed. Respondents are at liberty to recover any excess. amount paid io the applicant; No costs."
ii, The Patna Bench of this Tribunal, in a similar context in OA 24 of 2016, reiterated the same ratio and dismissed the said OA.
iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking @ similar relief as under :-
*ouuwthe applicant would say that even at the time of erroneous fixation in 2012, he was a Group-B (Non-Gazetted) officer and with effect from 2017, he became a Croup-B (Gazetted) officer. The applicant would ¢laim that-since ecroneous fixation is with effect om 11.2006 and the excess has been paid for more than 5 years, as per the White Waher judgment, this cannot be recovered from him, As already seen, 'the wrong fixation was done on 13.12.2012 and this was.corrected on 23.2.2016. Therefore, it cannot be said that he was drawing this excess pay for more than $ years since it had been modified within four years of the original wrong fixation. Further, the Annexure-A13 which wag issued in February 2016 was not challenged by the applicant at all. This leads to the suspicion that the refixation was done eotrectly and that prima-facie the applicant had no objection to it. We fail to understand as to-how the respondents did not take any action to recover whatever the excess that had been paid to him between 2012 and 2016. It is possible that C3
14 OA 4GROZI being an Accountant in the same office, the applicant could have had juncture in the nomzecovery also. Be that as it may, it is clear that he is clearly not eligible for nonrecovery based on the White Waher judement, His other contentions relating to the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3rd MACEP etc, do not deserve any consideration sitee the concerned instructions are not relevant in his case. His citing the case of ané more person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply Statement wherein they had shown that Sri Sadashiva was actuaily drawing the Basic Pay of Rs.7250 as on 1.1.2006 while the applicant was drawing R&.S675 on. 'the same date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed. No costs."
17. Admittedly for the first time against the 6" CPC's recommendation pay fixation has been carried out In the matter of applicant and he has accepted the same and he has not raised any grievances over the same. Other emplayees have raised the anomaly in respect of their pay fixation and in view of the decision taken by the headquarters, that. too, subject to ratification and corrections against the excess payment and after getting undertaking fram the employees, the department has refixed the pay under which the applicant was one of the beneficiaries. Immediately within a short span of time approximately two to three years after receipt of the OM dated 28.07.2015 from the Ministry of Finance Department of Expenditure wherein it has been instructed that in view of the anomaly, refixation has been carried out however the same has not been done in conformity with the CCS Revised Pay Rules 2008, and accordingly steps have been taken and refixation has been done in the matter of applicant and other employees who were given the benefit of the said wrong fixation. It is to be noted that while dealing into the issue & observations in the matter of Rafiq Masth, the Tribunal has held as under:
14. It is to be noted that after the direction of the Hon. Apex court in the matter of Rafiq Masth, DOPT by thelr OM dated 02.03.2016 have instructed to the authorities in respect of recovery of wrongful excess payment made to the Government servants wherein considering the alll observations of the Hon'ble Supreme court as under:
"4. The Hon'ble Supreme Court while observing that it is not 13 OA 462021 possible to postulate all situations of hardship which would govern employees on the Issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the ernployers would be impermissible tn law:-
Gi) 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.
(li) Recovery from employees, when the excess payment has been made for @ 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, 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."
15. As far as concerned to the recovery also if matter is covered under the Rafiq Masih in a plain reading, then the matter has to be referred to the Department of Expenditure. It is alsa to be noted that on 22.10.2019 verification of qualification of service in respect of the applicant has been done wherein a Senior Accounts Officer has specifically remarked that "Excess drawn pay and allowances on grant of Rs.6500-200-10500 pay scale may be recovered from DCRG. Due drawn statement may be prepared slong with pension papers." It fs aiso submitted that the copy has been served upon the applicant and the same fact is also admitted. It was well within the knowledge of the applicant that after refixation. recovery was going to be effected, Therefore of 23.12.2019 he has submitted a detailed representation through proper channel to the Chief Executive Officer and raised his grievances over the action of the respondents in effecting recovery on fast tract. He has also placed reliance upon the order passed by this Tribunal in the matter of K.Kannan. It is to be noted that in the matter of K.Kannan recovery has been effected from his retiral benefits so far the action of the respondents to Initlate the recovery has not been attempted likewise in the applicant's case still his representation hes been processed to the higher authorities. By representation dated 07.02.2020 again the applicant has agitated to the respondent authority not to revise his pay and not to recovery any amount.
16. tis to be noted that by letter dated 14.02.2020 fram the office of the Directorate General AIR it has been informed to the lower authorities by raturning the representations they themselves have to examine the matter at their end. Even after the knowledge of the said action on the part of the raspandents, the applicant submitted repeated representations to the authorities. However, finally recovery has been effected from his retiral benefits. The total retiral benefits due to the
2) 16 OA 46/2021 applicant is Rs.31,48,029 from which the respondents have withheld .an amount of Rs.4,50,382 towards the excess amount paid under the sald refixation effected In the year 2013 against the direction dated 03/04.10.2012. However subsequently within a very short period the said mistake has been ractified and action has been initiated in the year 2015 fiself and the recovery of excess payment has been initlated in the year 2016.
17. Itis to be noted that as observed by the Hon. Apex court of India in Rafig Masih's case while dealing Into the sald Issue by considering the orders passed by the predecessor in various pronouncements, the Hon'ble Apex court of India has cansidered the issue at length and observed thus!
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary bencfits wrongly extended to employess, can only be interfered with, in cases where. such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. in. other words, Interference would be talled for, ouly in. such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made io situations when this Court exempted employses from such recovery, even in exercise of its jurisdiction under Article. 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause"
would establish that the recovery being ¢ffécted was iniquitous, and therefore, arbitrary, And aesordingly, the interference at the hands of this Court.
&. As between two parties, if'a determination is rendered in favour of the party, which is the weaker of the twa, without any serious detriment to the other (which is truly a welfare State}, the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preanible of the Constitution of India. The right to recover being pursued by the emplayer, will have to be compared, with the effect of the recovery on the concermed employee. If the effect of the recovery from the caneemed employee would be, more unfair, more wrongful, more imiproper, and more unwarranted, than the. corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery, In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover: , 9, The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part 11 of the Constitution of India, dealing with "Fundarental Rights". These Articles. of the Constitution, besides assuring equality before the law and equal protection of the laws: also disallow, discrimination with the object af achieving equality, In matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down' the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A,43 and 46 contained in Part [TV of the Constitution of India, dealing with the "Directive Principles of Siate Policy". These Articles of the Constitution of India.contain 4 mandate to the. State requiring it to assure a social order providing justice ~ social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of Hvelibsod, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker . sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihoad of the people af ihis country, has to bethe basis of all i OA 462021 governmental actions. An action of the State, ordering.a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongfs, more improper, and more unWwarranted, than the corresponding right-of the employer; to recover the aniount. Or in other words, Hi such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitation of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and: therefore, violative of the mandate contained in Article 14 of the Constitution of India.
Il. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters,
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the folowing observation in paragraph 58:
"38. The relief against recovery is granted by courts not because of any Tight in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, ifin a given case, it is proved that the employse had knowledge thet the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or comeeted within a short time of Wrong payment, the matter being in the realm of judicial discretion, courts may, on the facis and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram , State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, ¥. Gange Ram v, Director, (1997) 6 SCC 139, Cal. BJ.
Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State. of Bihar, (2006) 11 SCC 492, Punjab National Bank -v, Manjeet. Singh, (2006) 8 SCC 647 and Bihar SEB v. Bilay Bahadur, 000) io SCC
99."(emphasis:is ours)
13. First and. foremost, i is pertinent ta note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous, Dealing with the subject of the action being iniquitous, itwas sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same, Conversely, if the payment had been made for a long duration. of time, it would be iniquitous to make any recovery. Interference because an action is iniquitoas, must 'really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India, The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Ardele 14 of the Constitution of India, because it would be-almost impossible for an employee to bear the financial burden, of a refisnd of payment received wrongfully for a long span of time. [t is spparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made fram hissher wages, it should not be a deduction which would make it difficult for the employee.to provide for the nceds of his family. Besides food, clothing and helter; an employee has to cater, not only to the education needs of those dependent upon him, but-also. their medical requirements, and a variety of sundry expenses, Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same, O ig OAAGA0AI However, tf the payment is made fora period in excess of five years, even though it would be open to the employer to correct the. mistake, it would be extemely iniquitous and arbitrary to seek a refimd of the payments mistakenly maie 10 the employee:
l4.[n this context, reference may alsa be made to the decision rendered by this Court in Shyam Babu Verma wv. Union of India (1994) 2 SCC $21, wherein this Court observed as under:
"U. Although we have held that the petitioners were entitled only to the pay scale of Re 330-480 in terms of the recommendations of the Third Pay Commission wef. January 1, 1973-and only alter the period of 10 years, they became entitled to the pay scale of Rs 330-550 bui as they have received the scale of Rs 330-560 since: 1973 due to'no fault of theirs and that soale is being reduced in the year 1984 with effect irom January 1, 1973, it-shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust. any excess amount paid to the petitioners due to the fault of the respondents, 'the petitioners being in no way responsible or the same."(empbasis.is ours) Tt is apparent, that in Shyam Babu Verma's case {supra}, the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, Le. afler a period of 1] years. in the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-seale would not be Just-and proper. We therefore hereby hold, recovery 'of excess payments discavered after five years would be iniquitous and arbitrary, and as. such, violative of Article
14 of the Constitution of India,
15. Examining a similar proposition, this Court in Col. B.J. Akkara v, Government of India, (2006) 11 SOC 708, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented, A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his fimily. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to if. As any Subsequent action to recover the excess paymert wil. cause undue hardship to him, relief is granted i that behalf But where the employes had knowledge that the payment received was in excess of what was due or wrongly paid, or where the crror is detected or corrected within a short time of song payment, courts will not grant relief against recovery. The matter being in the realm of Judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
A perusal of the aforesaid observations made by this Court in Cel. B.J. AKkara's ease (supra) reveals a reiferation of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them, The apparent explanation for the aforesaid conelusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer We are therefore satisfied in vonchuding, that such recovery from employees belonging to the lower rungs (ies, Classi] and Class-IV - sometimes denoted as Group 'C' and Group "D') of service, should not be subjected to the ordeal of any recovery, even though 'they were.
19 OA4G/2021 beneficiaries of receiving higher emoluments, than. were due ta them. Such recovery would be iniquitous and arbiteary and therefore would alsa breach the mandate contained in Article 14-of the Constitution of India,
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59, Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to, It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was 4 bona fide mistake on their part. The excess payment made was the result of Wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concemed of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have elther retired or are on the verre Of it Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers; we are of the view that no recovery of the amount that has been paid in excess to the. appellant teachers should be made."
Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, eulls out yet another consideration, which would make the. process. of recovery inigaitous and arbitrary. It is apparent fom the conclusions drawn in Syed Abdul (adir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their Tetixement, would entail extremely harsh consequences oubveighing the monetary gains by the employer, It cannot be forgotten, that a retired employee.or an employee about to retire, is a class apart front those who have sufficient service to their credit, before their retirement, Needless to mention, that al retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earings have substantially dwindled for would substantially be reduced on his retirement). Keeping the aforesaid circumstarices in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement. or soon hefore retixement. A period within one year from the date of superannuation, in aur considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, i¢ would be justified to treat an order of recovery, on acrount of wrongful paynient made to an employee, as arbitrary, if the recovery is scught to be made after the employee's retirement, or within one year.of the date of his retirement on superannuation.
1?.Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp, 1 SCC 18, wherein it was.concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that 'the previsus. scale of Re 220-550 to which the appellant was entitled became Rs 700- 1600 sinee the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any forse in this coritention, tis seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges te Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus:a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the preseribed educational qualification but not relaxation in the educational qualification itself.
oy 20 OA 46/2021
5. Admittedly the appellant does not possess the required educational qualifications, Under the circumstances the appellant would not be entitled to the relaxation. The Principal ered in granting him the relaxation. Since the date of relaxation the appeliant had been paid his salary on the revised scale. However, it is not cn account of any mnisrepresentation made by the appeliant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant, The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed pardy without any order as to costs."
it would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed mininum educational qualification (first or second class M.A... M.Se., Mom. plus a first ar second class B.Lib, Science or a Diploma in Library Science, the dearee of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Rani Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concemed appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circuinstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer te require an employee to refind the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfilly been required to work against an inferior post.
While concluding the issue the court considered various pronouncements under the facts and circumstances of the particular case and came to the conclusion and issued various directions and has noted that "We are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post." It was concluded that in the cases where excess unauthorized payment is deducted within a short period of time it would be open for the employer to recover the sare. Conversely, if the payment Fad been made. for a long duration of time, it would be iniquitous te make any recovery. After observing all these aspects considering the facts and circumstances, the Hon, Apex court passed the order:
18. Tt is not possible to postulate all situations of hardship, which would povern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of ikeix entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would. be impermissible in law:
(i) Recovery from employees belonging to Class-Il] and Class-I'V service (or Group 'C' and Group D! service).
{i} Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
Gil) 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, yal OA 46/2021
(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, (¥).In any other case, where the Court arrives at the conelusion, 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 amployer's right to. recover.
18. tis to be noted that the case of the applicant is not covered by the order passed by the Hon'ble Suprame court in the matter of Rafig Masih on the ground that merely saying the applicant belongs. to Group C, admittedly he himself being involved in the said fixation of pay, it is well within the knowledge of the applicant, and it may not be correct that he has done unintentionally or by mistakenly he was fully aware that what is mean by pay fixation. When first time against the et cec recammendation his pay has been fixed at R5.10230 on 17.09.2008 he has accepted as it is correctly fixed, even today he has no grievances over the same. However, subsequently the pay fhation has been done by the respondents against the instructions issued in the year 2012 and his pay has been refixed of 31.03.2012, at Rs.12090. The applicant was aware that it is the excess payment made to him and according to the clarification issued by the Department of Expenditure dated 28.07.2015, the same has been corrected and refixation has been effected on 29.01.2016 within a short period of time and accordingly excess payment made to the applicant to the tune of Rs.4,50,382 was recovered from his retiral benefit of Rs.31,48,029/- and hence recovery iS justified by the respondents, But the applicant just kept placing his griévances through repeated representations to the respondént authorities simply stating that for said pay fixation he is not at fault at any time. However, nowhere he hes stated that he is entitled for this refixation of pay-2012. Finally, he has accepted that -refixation has heen done properly ultimately the effect of the refixation is to correct his pay and if he is in receipt of any excess payment that has to be recovered, since [tis exchequér's/tax payer's money and'in the interest of public at large and to run the administration, it is necessary that the respondents have to give effect to the recovery. Moréover, in the applicant's: case, ony on the clear clarification issued by thé Department of Expenditure in the year 2045, the refixation of pay and recovery of excess payment has been ordered.
1S. While applying the ratio laid down by the Hon'ble Stipreme court in the matter of Rafiq Masih, it is necessary to look inte the facts and circumstances of the case and as recorded above the same is not applicable in the present case, since excess arnount which was received under sald refixation and paid in the year 2012 has been revised end réefixed after consultation with the Ministry of Expenditure in 2015. Therefore in my considered opinion, the action on the part of the respondents is justified and hence no interference is called for"
18. itis to be noted that In the order passed by the Principal Bench of this Tribunal at New Delhi relied upon by the applicant, though the Principat 22 OA 46/2021 Bench has declined the relief against the refixation, however set aside the recovery. It is fo be noted that as rightly pointed out by the tearned counsel for the respondents, the Principal Bench has though accepted the decision of refixation, however while setting aside the order of recovery not given any specific reason to specify that how the case of the applicant therein covered under the guidelines. of the Rafiq Masih's case and falls under which category. Therefore order without reasoning has to be per incuriam. It is to be noted that the respondent authority has justified in recovering the excess payment from the aoplicant within three and a half year more particularly when he js holding the Group B post.as per the pay scale. itis to be noted that whether the person belongs to Group C or Group B or Group A category when he/she has been benefited under the wrong calculation for which he/she is. not eligible & entitled for, this is the exchequer's fund, tax payer's money end-as and when within a short period the same has been rectified, the respondents are having a right te recover the same. It is to be noted that nowhere in the pleadings in the OA as well as In the representation of the applicant he has Submitted that he is eligible & entitled for the said refixation. Further, admittedly the applicant himself Is directly involved in his own fixation and he conveniently skipped from submitting the undertaking at the time of carrying out fixation by self which shows that the applicant is very well aware that for any excess payment made due to wrong fixation, he has to repay the same,
19. In view of the above I arn of the considered opinion, the respondents have justified the refixation as the same has been effected within short period of three and a half years, hence the applicant's case is neither coverad under the guidelines issued In the matter of Rafiq Masih nor under the subsequent OM of DOPT and facts and ratio of orders passed by the Principal 23 OA 46/2021 Bench are not applicable to the facts of the present case.
20. tis to be noted that in the matter of financial implications each and every matter has to be considered and scrutinized in its own facts and on ment. Since the applicant has nowhere pleaded that the applicant's pay was wrongly fixed in the year 2008 and for the refixation he is not one of the employees whe has raised the anomaly. Just because the other employees raised their grievances and the applicant is benefited under the refixation for which he ig not otherwise eligible and entitled for and the recovery has been initiated within a short span of time. In view of the same there is no merit In the matter, hence ma interference is called fon Accordingly the OA Is dismissed, No order as to casts:
heer