Central Administrative Tribunal - Allahabad
Ajay Kumar Singh vs D/O Post on 14 August, 2024
(Open Court)
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 13th day of August, 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 475 of 2020
Ajay Kumar Singh aged about 57 years S/o Late Shri Kamta Singh,
R/o Village & Post - Nasinpur Kalna, District - Ballia.
........... APPLICANT
By Advocate: Shri Rakesh Kumar Dixit
Versus
1. Union of India, through Secretary, Ministry of Communication,
Sansad Marg, New Delhi - 110001.
2. Chief Postmaster General U.P. Circle, Lucknow - 226001.
3. Postmaster General, Varanasi Region, Varanasi - 220001.
4. Director, Postal Services, Varanasi Region, Varanasi - 220001.
5. Superintendent of Post Offices Ballia Division, Ballia - 277001.
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri Rakesh Kumar Dixit, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents, are present at the time of hearing in the instant OA which was listed along with CP No. 130 of 2024.
2. The instant original application has been filed by the applicant seeking following relief:
"i. to issue, an order or direction in nature of certiorari quashing / set aside the impugned order dated 24.08.2020 passed by the respondent no. 5 (Annexure
1|Page No. A-1 to this original application with compilation no. I) accordingly.
ii. to issue, an order or direction commanding the respondents to give all consequential benefits to the applicant as and when due upon him.
iii. Any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of present case.
iv. Award cost of the original application in favour of the applicants."
Further, following prayer was made by the applicant by way of interim relief:
"In view of the facts and circumstances of the case, it is necessary and expedient in the interest of justice that this Hon'ble Court may graciously be pleased to stay the effect and operation of the impugned order dated 24.08.2020 passed by the Superintendent of Post Offices Ballia Division Ballia (respondent no. 5) during the pendency of the present original application, otherwise applicant will suffer an irreparable loss and injury."
3. At the outset, it is pertinent to record that vide order dated, 05.04.2021, the prayer for interim relief was allowed by this Tribunal and the effect and operation of the order dated 24.08.2020 was stayed till further orders.
4. A synopsis of the controversy prevailing in the instant case is that the applicant is aggrieved by the impugned order dated 24.08.2020 passed by the Superintendent of Post Offices, Ballia Division, Ballia by which the said authority informed to the applicant that his date of entry in P.A. cadre has been revised from 16.07.1983 to 16.09.1987 and accordingly the date from which MACP(s) were granted to him were also revised. Applicant claims that due to the
2|Page above illegal act of the respondents, he has suffered serious financial loss and injury. Applicant has also alleged that the impugned order was passed without affording the applicant an opportunity of hearing and also without issuing any show cause notice. By way of the instant OA, applicant seeks quashing of the impugned order thereby directing the respondents to give all consequential benefits to the applicant as and when due upon him.
5. We have heard the learned counsels for the parties and gone through the records.
6. Disclosing a brief history of the case, learned counsel for the applicant submitted that the applicant, who has retired now, was a permanent employee in the respondents department. On 11.02.2001, the respondent no. 5 sent a letter to the Postmaster General Gorakhpur Region Gorakhpur for the approval of the regularization of the period from 16.07.1983 to 15.09.1987 and in this regard, a letter dated 05.02.2001 was also issued. The Superintendent of Post Offices, Ballia Division, Ballia sent a letter to the Director, Postal Services, Gorakhpur Division, Gorakhpur about the regularization of the period of RTP of the applicant. It was also written in this letter that the applicant was working regularly against the vacant post and he has also been regularized vide order dated 15.09.1987, therefore, the applicant has also submitted his application for the regularization and he also fulfills all the condition of regularization and that is why the said authority requested the Director, Postal Services, Ballia Region, Ballia to issue proper direction to the said authority. In reply, the Postmaster General Services Region UP Circle Gorakhpur sent a letter dated 28.07.2003 to the Superintendent of Post Offices Ballia Division Ballia directing them to dispose of the matter in accordance with departmental rule. Learned counsel further argued that on 29/12/2003, the respondent no. 5 sent a letter to the Director, Postal Services, Office of the Postmaster Circle Gorakhpur Region Gorakhpur by which the said authority stated that the proposal of regularization of the RTP services of the applicant w.e.f. 18.07.1983 to 15.09.1987 being sent for approval. On 22.03.2004, the
3|Page Superintendent of Post Offices, Ballia Division Ballia issued a letter by which he ordered to regularize the RTP period from 16.07.1983 to 15.09.1987 and it will be applicable for all the purposes. Further, on 20.12.2008, the Postmaster General Gorakhpur Region Gorakhpur sent a letter to the respondent no. 5 stating that the competent authority in this matter has already taken decision vide its order dated 22.03.2004 and thus no further action is required to be taken. On 15.06.2009, the Superintendent of Post Offices sent a letter to the applicant informing him that his services were already regularized in the postal assistant category w.e.f. 16.07.1983, and therefore in light of the aforesaid decision, a DPC was constituted on 13.06.2009 for consideration of the case of the applicant and DPC revised the promotion in TBOP category of the applicant as 16.07.1999 instead of 16.09.2003.
7. Learned counsel for the applicant further argued that the respondent no. 5 once again issued a letter dated 22.08.2016 in which he stated that all the orders dated 22.03.2004 and 15.06.2009 are correctly passed by the competent authority by which the said authority changed the date of promotion of the applicant to 16.07.1999 instead of 16.09.2003 and II MACP was given to the applicant w.e.f. 01.09.2008 while the III MACP was given to the applicant w.e.f. 30.07.2013 and the decision was made in accordance with the recommendations of the DPC which was approved by the competent authority. However, learned counsel further argued, the respondent no. 5 ignoring all the facts / letters of the competent authority and without giving any show cause notice to the applicant passed an order dated 24.08.2020 informing to the applicant that a review departmental screening committee was held on 29.07.2020 to revise the date of TBOP/MACP-II & III earlier granted to the applicant due to irregular RTP period regularized vide SPOs Ballia letter dated 22.03.2004. As per the recommendation, the date of entry in PA cadre was made as 16.09.1987 instead of 16.07.1983. Therefore, subsequently the date of TBOP & MACP(s) already granted to the applicant was also revised.
4|Page
8. Learned counsel for the applicant further argued that when the competent authority had already regularized the disputed period of the applicant and on that basis the DPC had revised all the dates, the same could not have been changed all of the sudden that too without affording any reasonable opportunity of hearing and without issuing a show cause notice. Accordingly, prayer was made to allow the OA and quashing the impugned order dated 24.08.2020 passed by the Superintendent of Post Offices, Ballia Division, Ballia thereby directing the respondents to pay all consequential benefits to the applicant.
9. Learned counsel for the respondents vehemently opposed the submissions of the applicant's counsel and referring to the counter affidavit, he argued that the applicant was engaged along with other candidates vide memo dated 16.07.1983 on the term and condition that the selected candidates in RTP will have to work as short duty staff on payment of Rs. 2.75 per hour till regular absorption. Learned counsel further argued that the RPT Scheme was introduced in the year 1980 as per which a panel of such persons was retained who could not be covered under the number of vacancies declared for regular appointment as PA, when required they were detailed on duty on wages to be paid on hourly basis to meet the short time needs and current needs. The said RTP personnel were given priority for absorption against regular vacancies. The RTP scheme was abolished w.e.f. 04.03.1986. Learned counsel further argued that amongst all those candidates, only the applicant had obtained RTP services from 16.07.1983 to 15.09.1987 to be treated as regular as per the Memo dated 22.03.2004 in which it was indicated that it will be affected for all purposes. But no other candidate who was engaged as RTP were regularized except the applicant and there was no reason mentioned for not regularizing the other candidates in the memo. Learned counsel further argued that the applicant got engagement on short term need as RTP from time to time as required by the department for the period form 16.07.1983 to 15.09.1987. He got absorded / regularized in PA cadre vide memo dated 15.09.1987.
5|Page
10. Learned counsel for the respondents further argued that the RTP period of the application got regularized vide memo dated 22.03.2004 but that was regularization was contrary and irregular in view of the ratio laid down by the Apex Court in the judgment dated 01.08.1997 in the case of UOI and another Vs K Sivados and others in CA No. 80-123 of 1996. In the said judgment, the Hon'ble Court mentioned that service rendered by RTP personnel prior to their regular appointment in the cadre cannot be counted for regularisation because it cannot be considered as service in any eligible cadre. All these facts have been mentioned in directorate letter No.44-1/2011- SBP II dated 12.04.2012. Based on that, the case of the applicant was examined at circle office, Lucknow and Regional office Varanasi level and it was found that the RTP period (i.e. from 16.07.1983 to 15.09.1987) of the said official was irregularly regularized by SPOs Ballia Memo No.B-3/2/Recet/PA/Ch.II dated 22.03.2004. Accordingly, the competent authority cancelled the regularization of RTP period (16.07.1983 to 15.09.1987) of the said official directing for review of promotional and other financial benefits subsequent to which the review was done by the departmental screening committee on 29.07.2020 to revise the date of TBOP/MACP II & III earlier granted to the applicant due to irregular RTP period regularization vide letter dated 22.03.2004 and necessary adjustments were made and dates were revised. Thus, learned counsel argued that there is no illegality or infirmity in the order dated 24.08.2020 as it was issued in accordance with the recommendations of the competent authority and therefore, prayer was made to dismiss the OA.
11. Learned counsel for the respondents has also placed reliance upon the following case law:
i. Judgment dated 01.08.1997 passed by Hon'ble Supreme Court of India in SLP (C) No. 17422 of 1995 titled Union of India and Anr Vs K N Sivadas and Ors.
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12. We have considered the rival contentions and gone through the documents on record and carefully perused the case law relied upon by the parties.
13. As the brief facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. Vide the impugned order, respondents have revised the date of regularization of the applicant and along with that, his date of entry in PA cadre, date of grant of TBOP, date of grant of MACP II as well as the date of grant of MACP III have also been revised. Applicant's contention is that the above revision has resulted in financial loss and injury to him. Applicant's counsel has pleaded that the impugned order is illegal and arbitrary and it could have never been passed by the respondents as by doing the same, respondents have flouted their own orders through which the benefit of regularization was awarded to the applicant. Admittedly, vide order dated 22.03.2004, the applicant was granted regularsiation for the period 16.07.1983 to 15.09.1987 and accordingly TBOP, MACP II and MACP III was issued to him. However, with the revision in the date of regularization which was revised as 16.09.1987, the dates from which the above benefits were granted to the applicant were also revised thereby causing difference in the amount the applicant was liable to be paid. Respondents' counsel argued that the impugned order is absolutely tenable and was passed in accordance with the departmental provisions and specifically in view of the recommendations of the competent authority given pursuant to the review conducted by the departmental screening committee.
14. Further, another major contention of the applicant's counsel is that the revision of the dates of regularization and subsequent revision of the dates on which the applicant was given various financial benefits was done without affording any opportunity of hearing to the applicant. Also, no show cause notice was given to the applicant before taking such an extreme step and no reason whatsoever was either furnished or comments of the applicant were invited before going ahead with the process of revision of dates.
7|Page Admittedly, the applicant who is a retired person now had discharged his duties in the respondents' department as a Group C employee. Before going ahead such an extreme step of revising the date from which the applicant was regularized and further revising the dates of grant of several financial benefits, it was incumbent upon the respondents to have at least issued a show cause notice to the applicant and also to have granted him adequate opportunity of hearing to defend his case. However, no such step was taken and the respondents' authorities went ahead to simply enforce the order dated 24.08.2020. This implies that a clear cut violation of principle of natural justice has taken place by not affording the applicant any opportunity of hearing nor issuing him any show cause notice. Refixation of pay in any manner at such a belated stage in a person's life especially when he was a Group C employee and has already retired from service can have some serious repercussions on that person's livelihood and therefore, adequate steps are required to be taken before going ahead with such a step. Adhering to principle of natural justice is one of those indispensable steps required to be taken care of. Denial of the same in the instant case certainly levels the entire action of the respondents as illegal and arbitrary. Furthermore, applicant has retired as a Group C employee and since in order to procure the financial benefits he received in pursuant to the regularization and subsequent grant of MACPs, the applicant never misrepresented nor did he commit any fraud. Those benefits were issued by the respondents after receiving approval from the competent authority. Therefore, when those benefits were already issued for which the applicant did not misrepresent or commit any fraud, withdrawing the same as recovery from him when he was on the verge of superannuation was certainly not appropriate. To substantiate the same, it would be in the fitness of things to refer to the judgment dated 18.12.2014 passed by the Hon'ble Supreme Court of India in Civil Appeal No. 11527 of 2014 titled State of Punjab &Ors Vs Rafiq Masih. For the sake of clarity, the ration laid down in the above case is reproduced herein below:
8|Page "It is not 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. 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-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.
(iii) 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.
(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".
Thus, in view of the above quoted law, no recovery could have been made from the applicant specifically taking into consideration the fact that the applicant retired as a Group C employee and in order to avail the benefits of regularization and subsequent grant of MACPs, he did not commit any fraud or misrepresentation.
15. Accordingly, without commenting anything upon the fact as to whether the revision of dates was proper and just, the Tribunal is of the considered opinion that the manner in which the revision was done, is certainly unjust and not in accordance with the principle of
9|Page natural justice. Therefore, even for a moment, if it is assumed that respondents were right in revising the dates of regularization of the applicant and subsequently revising the dates from which several financial benefits were accorded to him, the manner in which the whole exercise was carried out was improper and arbitrary. Needless to reiterate, refixation of an employee's pay, especially taking into account the fact that the applicant has already retired from service, is a serious exercise that needs to be carried out in accordance with rule and law. Furthermore, as has been discussed in the preceding paragraph, no recovery whatsoever is liable to be made from the applicant.
16. Thus, in view of the above deliberations, the instant original application is allowed. Impugned order dated 24.08.2020 passed by the respondent no. 5 is hereby quashed and set aside. Respondents are directed to refund the entire amount to the applicant that was recovered from him in view of the order dated 24.08.2020 @ simple interest of 6% per annum from the date it accrues. This exercise must be completed within a period of three months from the date of receipt of certified copy of this order. Since no comment has been made regarding the fact as to whether the revision of dates was legal or not, in case required, the respondents are free to revise the dates but only after issuing the show cause notice to the applicant and granting him adequate opportunity of hearing. However, it is made clear that no recovery shall be made from the applicant in view of the law laid down in the case of Rafiq Masih (supra) as already discussed in the earlier paragraphs.
17. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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