Karnataka High Court
The Union Of India vs Sri Kalaichelvan on 10 September, 2014
Equivalent citations: 2014 (4) AKR 378
Bench: K.L.Manjunath, A.V.Chandrashekara
1 W.P.No.31449/2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF SEPTEMBER, 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
WRIT PETITION NO.31449 OF 2014 (S-CAT)
BETWEEN:
1. THE UNION OF INDIA
REP.BY ITS SECRETARY
DEPARTMENT OF POSTS,
DAK BHAVAN,
NEW DELHI-110 001
2. THE CHIEF POST MASTER GENERAL
KARNATAKA CIRCLE,
PALACE ROAD,
BANGALORE-560 001
3. THE MANAGER, MMS
MAIL MOTOR SERVICE
BANGALORE-560 052
... PETITIONERS
(BY SRI UNNIKRISHNAN M, CGSC.)
AND:
SRI KALAICHELVAN
S/O LATE A.GANAPATHY
2 W.P.No.31449/2014
AGED ABOUT 58 YEARS,
WORKING AS DRIVER GRADE-II
MAIL MOTOR SERVICE,
NO.4, BASAVESHWARA ROAD,
BANGALORE-560 052
RESIDING AT NO.B5/1, P AND T QUARTERS,
KAVALBAIRASANDRA, R.T.NAGAR POST,
BANGALORE-560 032
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANN-C, i.e, THE ORDER PASSED BY THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE IN
OA.NO.563/13, DT.21.3.14 & CONSEQUENTLY ALLOW THE
ABOVE PETITION FILED BY THE PETITIONERS AGAINST
THE RESPONDENT AND TO GRANT INTERIM ORDER TO
STAY THE ORDER OF THE HON'BLE CENTRAL
ADMINISTRATIVE TRIBUNAL BANGALORE DT.21.3.14, IN
OA.NO.563/13, i.e., VIDE ANN-C.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.08.2014 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
ORDER
Present writ petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 21.03.2014 passed in Original Application No.563/2013 which was pending on the file of the Central Administrative Tribunal, Bangalore Bench, Bangalore.
3 W.P.No.31449/2014
2. Petitioners herein were the respondents in the said petition. Respondent herein was the appellant in the said case. Parties will be referred to as the applicant and respondents as per their ranking given in the Central Administrative Tribunal (hereinafter referred to as the 'Tribunal').
3. Facts leading to the filing of this petition by the respondent herein before the Tribunal are as follows:
Applicant joined the Mail Motor Service in the Postal Department in March 1991. He was promoted as driver Grade-III on 01.02.1996. Subsequently, he was promoted as Driver Grade-II with effect from 21.02.2005. The Government of India introduced a promotion scheme to the Staff Car Drivers with the graded structure similar to the one provided by the Ministry of Railways vide G.I.Dept. of Per. & Trg.
O.M.No.22036/1/96/92-Estt.(D) dated 27.07.1995. 4 W.P.No.31449/2014 The said scheme categorized the post of drivers into four categories namely:
a) Ordinary Grade in the scale of Rs.3,050-4,590
b) Grade-II in the scale Rs.4,000 - Rs.6,000
c) Grade-I in the scale Rs.4,500 - Rs.7,000 and
d) Special Grade in the scale Rs.5,000-Rs.8,000 The total posts of drivers among the above four categories were apportioned and the ordinary grade was provided 30%, Grade-II 30%, Grade-I 35% and Special Grade 5%. Each grade also provided specific period of regular service for being eligible to be promoted to the next cadre. The method of appointments to the post in Grade-II and Grade-I of Staff Drivers was by promotion on non-selection i.e., seniority-cum-fitness basis and subject to passing of a Trade test of appropriate standard as prescribed. The said scheme was brought into force from 08.11.1996.5 W.P.No.31449/2014
4. On the basis of the recommendation of the Departmental Promotion Committee (DPC), the applicant i.e., respondent herein was promoted as Driver Grade-II from Grade-III in the pay scale of Rs.4,000-100-6000 to come into effect from 21.02.2005 by an order issued on 19.04.2007. The said promotion is forthcoming in Annexure 'A-1'. While the applicant was enjoying the benefit of the said scale, a notice was issued to him vide Annexure 'A-2' dated 12.01.2013 calling upon him to submit his representation as to why the date of his promotion to Driver Grade-II from 21.02.2005 should not be revised to 19.04.2007 and consequently, effect recovery of Rs.85,699/- which was stated to be paid in excess of his eligibility. This memo vide Annexure 'A-2' was issued as a sequel to the decision taken by the Chief Post Master General, Karnataka Circle, for review of promotion allowed, since 2003 in respect of MMS Drivers.
6 W.P.No.31449/2014
5. The applicant did not submit any representation as he felt that it was a futile exercise, more particularly, when a decision had already been taken by the authorities in question. Later on, Manager, Mail Motor Service Bangalore, issued an order on 11.06.2013 vide Annexure 'A-3' revising the date of promotion of the application to be in force from 19.04.2007 instead of 21.02.2005 and thereby ordered for recovery of Rs.85,699/- which was paid in excess. Hence, the applicant approached the Central Administrative Tribunal challenging the said order issued to him on 11.06.2013 vide Annexure 'A-3'.
6. It had been contended before the Tribunal that his promotion to the post of Grade-II driver with effect from 21.02.2005 was in fact, contrary to the order bearing No.G.I., Dept. of Per. and Trg., O.M. No.43019/54/96-Estt. (D) dated 13.02.2002. According to him, the said order dated 13.02.2002 states that the 7 W.P.No.31449/2014 modified promotion scheme for staff Car drivers based on the pattern prevailing in Railways would take effect from 08.11.1996. Hence, he had questioned the decision of the Post Master General. Hence, he had assailed the decision of the Post Master General to the effect that promotion would not take effect from the date earlier to that of departmental promotion committee proceedings. According to him, Annexure 'A-3' was not in accordance with law. According to him, the purpose of holding DPC proceedings is to consider the employees for promotion to higher post and not for withdrawing the promotion given earlier. According to him, there is no provision in the rules to hold a review Departmental Promotion Committee in order to withdraw the promotions already given. According to him, there was no fair play in the procedure adopted in regard to withdrawing the promotion already given to him. 8 W.P.No.31449/2014
7. The department had filed detailed objections before the Tribunal. According to the Department, there were many discrepancies in the Circle Gradation List and many representations had been received to set right the seniority of the drivers and that a committee was formed to look into the seniority of the drivers in Karnataka Postal Circle to implement the promotions scheme to Staff Car drivers and that Committee started its work on 12.12.2007 and submitted its final report during January 2009 after holding twelve sittings.
8. The DPC was held on 10.10.2009 and the promotions were recommended from the date of occurrence of vacancies as was done earlier and was approved by the Circle office on 10.11.2009. The next DPC was held on 09.04.2010 and promotions were recommended from the date of occurrence of vacancies during the year 2010. The recommendations of DPC were not accepted by Post Master General as 9 W.P.No.31449/2014 promotions were recommended from retrospective dates vide letter dated 24.11.2010. At that stage, the petitioner opined to correct the mistakes noticed and the promotions were given from prospective dates. A high level Committee chaired by the Director of Postal Services (Hq) reviewing all the cases of promotions of MMS drivers in Karnataka Postal Circle with reference to relevant records in accordance with the recommendations of the high level committee constituted by the Post Master General. The date from which the promotion will be effective was changed and hence, a modified order was passed.
9. In support of the same, a decision of the Hon'ble Apex Court reported in (2012)8 SCC 417 in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others was relied upon. According to the Department, there was an obligation on the applicant to repay the money lest it would 10 W.P.No.31449/2014 amount to unjust enrichment, more particularly, when the promotion was given wrongly to be in force from 2005. It is stated that the Department is entitled to recover the excess amount as it was due to wrong pay fixation based on retrospective promotion.
10. After hearing the learned counsel appearing for the parties and looking to the judgment of the Hon'ble Apex Court cited above, the Tribunal has allowed the petition and set aside the order.
11. We have heard the learned Counsel appearing for the petitioners at the stage of Preliminary Hearing.
12. After going through the records and hearing the arguments of the learned counsel for the petitioners, the point that arises for our consideration is as follows:
"Whether the Tribunal is justified in setting aside the impugned order issued vide Annexures 'A2' and 'A3'?"
13. The promotions available to employees are normally in two categories i.e., selection method and 11 W.P.No.31449/2014 non-selection method. The usual procedure for ascertaining the eligibility for promotion is to hold DPCs and assign benchmarks. The pendency of department proceedings, if any, punishment awarded, and vigilance clearances will have to be taken into account while promoting an employee. If in case of time bound promotions as well as giving financial benefits under the earlier Assured Career Progression(ACP) or MACP, the same procedures are normally followed. For promotion under selection procedure, a person cannot claim to a post automatically as to compete for the same. Inspite of this, the government has laid down elaborate procedure such as prior assessment of the vacancies, completion of annual confidential reports, preparation of list of eligible candidates and timely holding of the department promotion committee meetings. These are required so as to see that the interest of the employees are not adversely affected and such eligible employees 12 W.P.No.31449/2014 get promotions as and when vacancies arise. Such eligible employees must not be made to suffer due to the administrative deficiencies or difficulties either in holding DPCs or making initial preparations for giving promotions.
14. In this case, Clause-7 of Manual on Establishment & Administrative states that non- selection speaks about non-selection method and states that the Officers could be categorized as fit and not yet fit only. While considering the employee or Officer as fit for promotion, the guidelines in paragraph 6.1.4 relating to performance assessment should be kept in mind. The Officers categorized as fit should be placed in the panel in the order of their seniority in the Grade for which promotions are to be made. Of course, the scheme for promotion to Staff Car drivers makes it mandatory to pass a trade test.
13 W.P.No.31449/2014
15. Admittedly, applicant joined the service on 01.04.1979 initially and became the T/S driver on 19.02.1996 and he passed the skilled trade test on 24.08.2006. He was promoted with effect from 21.02.2005 the date on which the actual vacancy arose and was available. But the order of promotion was passed on 19.04.2007 giving retrospective promotion with effect from 21.02.2005. In respect of other four employees there were no vacancies available for being promoted.
16. A reading of the chart which is referred to in the impugned order at page No.9 would disclose that the applicant had passed the trade test on 24.08.2006, whereas the DPC was held in the month of April 2007. He was given promotion with effect from 21.02.2005 i.e., retrospectively, since one vacancy was available and he was senior and fit to be promoted as on that date. The other four vacancies were available for promotion on 14 W.P.No.31449/2014 01.04.2007 only and therefore, four persons were initially promoted from that date.
17. In fact, there was long gap in holding the trade test and DPC even when other vacancies arose nearly two years prior to holding of DPC. The promotions were given on the basis of the recommendation of the department promotion committee (DPC) with retrospective effect and that was accepted by the competent authority. Though the revised order speaks of his promotion with effect from 19.04.2007 in the chart the department has earmarked a column "actually the officials should have been promoted". In fact, in the said column, it is shown that this applicant should have been promoted on 24.08.2006. In case of others, this date is mentioned as 10.11.2009 but they felt that it should have been 10.10.2009 i.e., on the date when the trade test was held. Of course, the trade test is only a routine test and thereby drivers who have been driving 15 W.P.No.31449/2014 official vehicles for a long time, their promotion does not result in their driving a different category of vehicle. Hence, holding a trade test to drivers is not a matter of much significance.
18. Even for promotion to the selection post the guidelines prepared by the Government of India suggests that preliminary action should be taken and DPC must be conducted well in time so that the employees do not suffer on account of delayed action. In the case of non-selection post, the promotion is a matter of routine, provided, such employees meet the laid down norms. Under such circumstances, there cannot be any justifiable reason for holding the DPCs after long gaps of vacancies being available to be filled up and eligible candidates also being available.
19. In the facts and circumstances mentioned above, it would be unfair to penalize the applicant for no fault of his. If the department had really felt that it was 16 W.P.No.31449/2014 a mistake in awarding promotion from retrospective date, the department should have straight away taken action even before the review DPC was held.
20. The question of mistaken notion or otherwise as sought to be contended before this Court by the learned counsel for the petitioners would not arise, since all pre-requisite formalities like holding trade test and DPC well in time after the vacancies arose, were not held. The Department i.e., the petitioners herein should have been prompt in completing the formalities well in time. The mistakes committed on their part should not affect the applicant and deny him of the benefit already awarded to him.
21. It is in this regard, the learned counsel for the petitioners has relied upon a decision reported in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand And Others reported in (2012) 8 SCC
417. What is held in the said decision is that recovery 17 W.P.No.31449/2014 of amount paid in excess without fault of recipient party is permissible and any amount paid or received without authority of law can always be recovered, since law imposes an obligation on the payee to repay the money lest it would amount to unjust enrichment. What is held in the said decision is that such recoveries are not permissible only in exceptional circumstances. Relying upon this decision, the learned counsel for the petitioners has argued that the case on hand is not an exception.
22. As per the facts of the said case, Mr.Chandi Prasad, the appellant and another were not in the pay scale of Rs.4,250-6400. Therefore, they could not have got the revised pay scale of Rs.10,000-15,200 with effect from 01.07.2001 only. Only if they were getting a pay scale of Rs.8,000-13,500 on 01.01.1996, they would have been entitled to be placed in the pay scale of Rs.10,000-15,200 as on 01.07.2001 only. Admittedly, 18 W.P.No.31449/2014 the appellants therein were working as Assistant Teachers and drawing salary in the pay scale of Rs.3600-5350 as on 01.01.1996 and were placed in the pay scale of Rs.5500-9000 as on 01.07.2001. Later on, it was noticed that none of the appellants were working as Principals and were never placed in the pay scale of Rs.8,000-15,500 as on 01.01.1996 to get the benefit of the pay scale of Rs.10,000-15200 as on 01.07.2001.
23. Referring to various decisions, the Hon'ble Apex Court in Chandi Prasad's case has held that any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. It is further held that in such situation, law implies an obligation on the payee to repay the money otherwise it would amount to unjust enrichment.
24. According to the Hon'ble Apex Court in Chandi Prasad's case, the facts mentioned in Syed 19 W.P.No.31449/2014 Abdul Qadir Vs. State of Bihar, as reported in 2009(3) SCC 475 and Col. B.J.Akkara Vs. Govt. of India reported in (2006)11 SCC 709 are exceptions.
25. In the present case, of course, the applicant had not committed any fraud or misrepresentation. So far as the promotion which was given to him as on the date of the vacancy that arose in the year 2005, he was eligible and fit. Even trade test had been conducted and there was negligence on the part of the concerned in the Department to process the file regarding his promotion.
26. Even otherwise, it is a non-selection post and no promotion is possible except affixing some grade to the post held by him. He would be a driver for all practical purposes and the only difference is that he will have some Grade like Grade-I, II and III. The case on hand pertains to an employee of the postal department who joined the department in the year 1979 as 'D' grade employee and became a driver on 01.02.1996. Even if 20 W.P.No.31449/2014 he is in service, he is in the fag end of his service having been promoted to Grade II.
27. In the case of Chandi Prasad's case, there was wrong fixation of the pay scale and as a result of the same, the appellants were the beneficiaries of such excess payment and therefore, they were asked to refund the amount. While the pay was revised on the basis of V Central Pay Commission, a Committee had also been superimposed which reads as follows:
"In the condition of irregular/wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension."
28. In the light of a condition being superimposed in the 5th Central Pay Scale regarding the refunding of excess salary for wrong fixation and in view of the pay scale of the appellants therein being wrongly fixed they were liable to refund the amount.
21 W.P.No.31449/2014
29. But in the present case, the applicant in question was eligible as on the date when the vacancy arose in 2005. Just a few months later, formal trade test had been completed and there was clear inaction on the part of the concerned officials in holding department promotion committee proceedings and apart from this, the applicant in question was an experienced driver having joined the department in 1979. Taking all these into consideration the Central Administrative Tribunal has passed a detailed order allowing the original application.
30. It is useful to rely upon a decision of the Hon'ble Apex Court in the case of Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521. In that case higher pay scale was erroneously paid in the year 1973 and continued upto 1984. As per the facts of the said case petitioners therein were entitled only to the pay scale of Rs.330-480 in terms of the 22 W.P.No.31449/2014 recommendations of 3rd Pay Commission with effect from 01.01.1973 and only after the period of ten years they became entitled to the said pay scale. But as the petitioners had received their salary in the scale of Rs.330-560 since 1973, due to no fault of theirs and that the scale was suddenly reduced in the year 1984 after the lapse of 11 years to have effect from 01.01.1973, it was held that the amount already paid to them shall not be recovered though it was in excess.
31. The said decision in Shyam Babu's case has been followed by a Division Bench of this Court in the case of M.G.Maheshwara Babu Vs. State of Karnataka reported in ILR 2002 KAR 3848 (DB). As per the facts of the said case, respondents 10 and 11 therein had been promoted as junior Judgment Writers in the High Court and they were not graduates. Hence they were held to be not eligible for promotion. Taking into consideration that respondents 10 and 11 had 23 W.P.No.31449/2014 worked in the promoted scale as Judgment Writers, excess amount paid to them on the basis of the promotions given to them was ordered to be not recovered.
32. What is evident from the decision rendered in Shyam Babu Verma's case and M.G.Maheshwara's case and the principles reiterated in Chandi Prasad's case is that there may be few exceptions of extreme hardships and in such event there may not be any order to recover the excess amount paid. What is expected of an applicant like this is to make out an exceptional case.
33. The Central Administrative Tribunal has considered the matter at length and all intricacies have been considered in detail. In the light of the same, we are not inclined to interfere with the order passed by the Central Administrative Tribunal, Bangalore. 24 W.P.No.31449/2014 Accordingly, we answer the point in the affirmative. Hence, the writ petition is liable to be dismissed.
ORDER Writ Petition is dismissed upholding the impugned order dated 21.03.2014 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore, in Original Application No.563 of 2013.
Sd/-
JUDGE Sd/-
JUDGE JT/-
CT-RH