Central Administrative Tribunal - Madras
S Krishna Mohan vs Mr T V Somanathan ,Seceretary,M/O ... on 4 June, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA No. 310/00039 of 2023
DATED THURSDAY, THE 24th DAY OF APRIL, TWO THOUSAND AND TWENTY FIVE
CORAM :
HON'BLE MS. VEENA KOTHAVALE, MEMBER (J)
HON'BLE MR. SISIR KUMAR RATHO, MEMBER(A)
P.Govindan
Station Master,
Salem Division,
Southern Railway .........Applicant
(Advocate: M/s. Ratio Legis)
-Versus-
1. The General Manager,
Southern Railway.
Park Town, Chennai 600003;
2. The Sr. Divisional Personnel Officer,
Salem Division, Sooramangalam Post
Southern Railway- 636005.
.....Respondents
(Advocate: Mr. M. Kishore Kumar, SPC )
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ORDER
(Hon'ble Ms. Veena Kothavale, Member(J) This O.A. has been filed by the applicant seeking the following relief: -
"to call for the service records of the applicant and the impugned order SA/P.443/II/SMs dated 15-12-2022 issued by the 2nd respondent and quash the same and further direct the respondents to extend MACP first and second up gradations benefits with effect from 01.09.2008 and 13-03-2009 respectively and the III MACP from date on which the applicant has completed 30 years up to Rs.5400/- GP Level 9 with all attendant benefits, both service and pecuniary and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. Briefly, the case of the applicant is that he was appointed as Assistant Station Master in Tiruchchirappalli division of Southern Railway on a stipend of Rs.330-560/- and on successful completion of the training, he was absorbed as Assistant Station Master in the year 1989. Subsequently, in the year 1991, the applicant was promoted as Station Master Grade III in the grade of Rs.425-640/-. This grade of Rs.425-640 was merged with the grade of Rs.455-700 and a common scale of pay of Rs.1400-2300 was recommended by the IV CPC with effect from 01-01-1986.
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3. It is further submitted that the applicant he had sought for a request transfer to the same post in Southern Railway under rule 226 of IREC (Vol.I.). Though applicant's request was acceeded and he was transferred to Tiruchchirappalli division of Southern Railway duly protecting his last drawn pay, he was reverted to the lower grade in gross violation of the above referred rule. The applicant had joined post in the new unit on 12-04-1993. However, he was again promoted to the post of Station Master Gr. III, thereby regularising his promotion from the date of his actual promotion in Tiruchchirappalli division of Southern railway.
4. The applicant further submits that after the implementation of the recommendations by the VI Pay commission with effect from 1-1-2006, the pay scales of Rs.5000-8000, Rs.5500-9000 were merged and upgraded to Rs.6500-10500 and revised as the Pay Band of Rs.9300-34800 with grade pay of Rs.4200 and the grade of Rs.6500-10500 was upgraded to Rs.7450-11500 and revised as Pay Band -2 in the scale of Rs.9300-34800 with grade pay Rs.4600/-. Thus, the promotions earned after many years of service were distorted and the juniors and seniors were brought into a block of flock without any service benefits. Considering the plight of languishing seniors, the Pay Commission has recommended the scheme - Modified Assured Career Progression (MACP) with effect from 01-09-2008. The MACP in Grade Pay of Rs.4600/- was extended from 01-09-2008 and regularised by way of regular promotion in the year 2013. The post of Dy. Station Supdt. was upgraded to 4 of 22 Rs.7450-11500 and revised as Rs.9300-34800 with grade pay of Rs.4600/- on the basis of the recommendations of VI Pay Commission.
5. It is further submitted that the upgradations bestowed on the applicant during the period from 1989 to 2018 were annulled due to merger of grades by the VI Pay Commission and brought under a common Pay Band of Rs.9300-34800 with Grade Pay of Rs.4200/- and the present Pay Band was also due to upward revision by way of replacement and thus the applicant was not extended with a single promotion in his entire span of 33 years of service. The 2nd respondent has failed to extend second and third financial upgradations despite that the recommendation of VII Pay Commission has altered the entire pay structure in favour of the category of Station Masters from 01/01/2016. Denial of the benefit of MACP to level 8 and 9 to the applicant as recommended by the successive Commissions is arbitrary and unjust. The recommendations of VII Pay Commission was to abolish the post of Assistant Station Master and the process of upgradation to be made with retrospective effect from 01/01/2016. The direction was that all those who are in Rs. 2800/- GP, which is equal to level 5 before the cut-off date of 31/12/2015 should first be upgraded to level 6 and pay to be fixed accordingly. It was made clear that there will be three financial upgradations if one spends 10 years continuously in the same grade of pay. Thus, applicant is to be bestowed with 3 MACPs on completion of 30 years of service from the date of initial appointment.
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6. It is further submitted that the action of the respondents in not extending the second financial upgradation to Rs. 4800/- from 13/03/2009 under VI CPC and third financial upgradation to Rs.5400/- in the year 2019 on completion of 30 years from the date of appointment is in gross violation of MACP scheme, Railway Board Order No.101/2009 and the consolidating instructions issued by Railway Board vide RBE 16/2020. Hence the show cause notice dated 18/07/2022 (as per Annexure-A3) is against the decisions of the Apex Court and the statuary instructions issued by the Railway Board in terms of rule 123 of IREC. Therefore, the applicant had preferred OA. No. 767/2022 before this Tribunal which was disposed of vide order dated 09/09/2024 with a direction to the applicant to submit a comprehensive representation to respondents and the respondents were directed not to make any recovery from the salary of the applicant. Accordingly, the applicant had submitted his representation dated 12/10/2022 to the respondents and the same was disposed of vide impugned speaking order dated 15/12/2022 justifying the recovery of over-payment extended erroneously. Hence, this OA seeking the relief as stated above.
7. Ld. counsel for the applicant submitted that the matter is covered by the decision of the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs Rafiq Masih (White Washer) reported in [2014] 13 S.C.R. 1343. Ld. Counsel also relied on the DoPT OM dated 02/03/2016 issued pursuant to the declaration of law in the above referred judgement and submitted that the order issued for recovery of excess 6 of 22 payment is bad in law. Ld. Counsel also relied on the following decisions: -
(i) Common order dated 22/02/2012 passed by Ernakulam Bench, CAT in OA.No.484/2011 and other batch matters wherein it was held that applicants are entitled to the MACP already awarded and withdrawal of the same and effecting recovery on account of the withdrawal is illegal and unjust.
(ii) Order dated 20/03/2020 passed by the High Court of Kerala at Ernakulam in OP (CAT) No. 3953/2012 wherein the conclusions drawn by the Ernakulam Bench, CAT was upheld.
(iii) Order date 07/11/2023 passed by the Hon'ble Supreme Court in SLP(C)No. 4141-4152/2022 and batch matters wherein it was pleased to dismiss the SLPs filed on similar issue;
(iv) Order dated 15/03/2024 passed by the High Court of Telangana, Hyderabad in W.P.No.30841/2018 and batch matters wherein it is held that the railway department having implemented the benefit in some divisions, is bound to follow the same in all divisions and maintain parity as held in GC Ghosh and others vs UOI and others.
8. The respondents have filed their reply stating that applicant was appointed as Training Assistant Station Master at Tiruchirapalli Division, Southern Railway on 13/03/1989 in the scale of Rs. 1200-2040/- 4th Pay Commission [GP. 2800 in 6th Pay Commission/ level-5 in 7th Pay Commission] through Railway Recruitment Board and the applicant was absorbed in the working post as Assistant Station Master on 07/09/1989. Thereafter, applicant was promoted as Station Master-III in the scale of Rs.1400-2300/- 4th Pay Commission [GP - 4200 in 6th Pay Commission/ level-6 in 7th Pay Commission] on 30/10/1991. Subsequently the applicant was transferred to undivided Palakkad division on inter divisional one-way transfer on his request on 12/04/1993 on reversion as Assistant Station Master with 7 of 22 pay protection of Rs.1400-2300/- and was posted at Omalur station. The applicant was again promoted as Station Master-III in the scale of Rs.1400-2300/- (Level-6 in 7th Pay Commission) and posted at Mattur Dam station on 03/08/1996 in undivided Palakkad division. The applicant was granted second MACP in the Grade Pay of Rs.4600 (Level-7 in 7th Pay Commission) with effect from 01/09/2008 vide office order dated 02/11/2009 and the pay has been fixed at Rs. 14,470/- with GP 4600.
9. Ld Counsel for the respondents submitted that after revision of pay based on Railway Board letter No. F(E)-II/2003/FOP/1(Misc) dated 30/06/2008, RBE No. 12/2020 and RBE No. 26/2020, the fixation of pay resulted in the increase of basic pay from Rs.74,300/- to Rs. 77,900/- and the overpayment was derived at Rs.76, 445/. For recovery of overpayment from the applicant's salary, necessary show cause notice has been issued to the applicant vide letter dated 18/07/2022 (Annexure A-3). Further, in due compliance of the order of this Tribunal passed in OA.No. 767/2020, the applicant representation dated 12/10/2022 was duly considered and disposed of vide letter dated 15/12/2022 (Annexure A-7).
10. The Ld Counsel for the respondents further submitted that in terms of Railway Board RBE No.26/2020 dated 25.02.2020, after considering the matter in terms of para 5 of Annexure to DOP&T's OM dated 22.10.2019 [circulated vide Railway Board's letter dated 04.02.2020 (RBE No.16/2020) (Annexure R-8)], the 8 of 22 Railway Board has decided that promotion from the post of Assistant Station Master (GP-2800) to Station Master (GP-4200) may not be reckoned for the purpose of MACPS. Subsequently, necessary amendment in the recruitment provision for Station Masters has been notified vide Railway Board's letter dated 16.02.2018 and the benefit of MACPS ignoring promotion from Assistant Station Master to Station Master shall be admissible with effect from 16.02.2018 only. Accordingly, the 2 nd MACP which was granted to the applicant with effect from 01.09.2008 is treated as 1st promotion and the applicant became eligible for 2nd MACP with GP 4800/- on 16.02.2018 and for 3rd MACP with GP 5400/- on 17.09.2019, on completion of 30 years of qualifying service. In view of the above submissions, prayed for dismissal of this OA.
11. We have considered the submission made by both the counsels and perused the material on record.
12. It is stated by the respondents in the Show Cause Notice dated 18/07/2022 (Annexure A-3) that the applicant was appointed as ASM in the scale of 1200-2040 (GP-2800 in VI PC/ Level 5 in VII PC) on 13/03/1989 in TPJ division, absorbed in the working post of ASM on 07/09/1989 and promoted as SM-III in the scale of Rs. 1400-2300 (GP-4200 in VI PC /Level 6 in VII PC) w.e.f. 30/10/1991. Subsequently, applicant was transferred to PGT division through Inter Divisional One 9 of 22 One-Way Transfer on 31/03/1991 on reversion as ASM but with pay protection. It is further stated by the respondents that the pay of applicant on reversion as ASM which was fixed in the scale of Rs.4500-7000 (GP-2800 in VI PC /Level 5 in VII PC) was refixed duly protecting his pay in the scale of Rs.5000-8000 (GP 4200 in VI PC /Level 6 in VII PC). In PGT division, the applicant was promoted again as SM-III in the pay scale of Rs.5000-8000 (GP 4200 in VI PC /Level 6 in VII PC) with pay fixation on 03/08/1999. It is further stated that since he got one promotion at TPJ division and was transferred to PGT division through Inter Divisional One-Way Transfer on reversion as ASM with pay protection, he was not eligible for further fixation on promotion that the applicant got on 03/08/1996 at PGT division.
13. It is clear from the above that though the pay of applicant on reversion as ASM was initially fixed in the scale of Rs.4500-7000, but as per the terms of his transfer granting him pay protection, his pay was refixed in the scale of Rs.5000- 8000 (GP 4200 in VI PC /Level 6 in VII PC). As such, the applicant continued to draw the same pay he was drawing in his promotional post as SM-III in the scale of Rs.5000-8000 right from the date of his promotion w.e.f. 30/10/1991. However, Annexure-B enclosed with Memorandum dated 21/02/2022 does not correctly reflect this revision of pay as stated in Annexure A-3 dated 18/07/2022.
14. Further, implementation of the recommendations of the VI Pay 10 of 22 Commission brought about merger of posts in the pre-revised pay scales of Rs. 5000- 8000 and Rs. 5500-9000 with the post in the scale of Rs. 6500-10500. Further, in supersession of ACP scheme, the Modified Assured Career Progressions Scheme was introduced for railway employees as per RBE.No.101/2009 dated 10/06/2009 with effect from 01/09/2008. Para 5 of the Annexure (MACP Scheme) appended to the said notification provides that -
"Promotions earned/ upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/ upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.".
Further, paragraph 24 of the said scheme provides as under; -
"24. ln case of an employee after getting promotion/ACP seeks unilateral transfer on a lower post or lower scale, he will be entitled only for second and third financial upgradations on completion of 20/30 years of regular service under the MACPS, as the case may be, from the date of his initial appointment to the post in the new organization.".
However, during the Joint Committee Meeting, when it was pointed out by the staff side that the word "new organization" in the last line of para 24 of Annexure to MACPS dated 19/05/2009 was not in consonance with the spirit of the MACP scheme, the issue was further examined and it was clarified that in the case of transfer, including unilateral transfer on request, regular service rendered in previous 11 of 22 organization/office shall be counted along with regular service in the new organization/office for the purposes of getting financial upgradations under the MACPS.
15. Subsequently, on the basis of 7th Central Pay Commission recommendations, a consolidated guidelines regarding Modified Assured Career Progression Scheme for Railway Employees was issued by the Railway Board vide RBE.No.16/2020 appending the Scheme as Annexure-I. Para 1 of the said Scheme provides as under: -
"1. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years services, respectively, or 10 years of continuous service in the same Level in Pay Matrix, whichever is earlier.".
Further, Para 5 of said Scheme provides as under:-
"5. Promotions earned/ upgradation granted under the MACP Scheme in the past to those grades which are in the same Level in the Pay Matrix due to merger of pay scales/upgradations of posts recommended by the Seventh Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS. The benefit of merger will accrue w.e.f. the date of notification of the Recruitment Rules for the relevant post.".
Further, Para 23 of the said Scheme provides as under:-
12 of 22 "23. In case of transfer 'including unilateral transfer on request', regular service rendered in previous organisation/office shall be counted alongwith the regular service in the new organisation/office for the purpose of getting financial upgradations under the MACPS. However, financial upgradation under the MACPS shall be allowed in the immediate next higher Pay Level in the Pay Matrix as given in CCS (Revised Pay) Rules, 2016. Wherever an official, in accordance with terms and conditions of transfer on own volition to a lower post, is reverted to the lower Post/ Grade from the promoted Post/ Pay Level before being relieved for the new organisation/office, such past promotion in the previous organisation/ office will be ignored for the purpose of MACPS in the new organisation/office.".
16. It is pertinent to note that the Railway Board vide RBE No. 26/2020 dated 25/02/2020, has taken a decision that promotion from the post of ASM (GP- 2800) to SM (GP-4200) may not be reckoned for the purposes of MACPS. It is also to be noted that vide RBE. No.81/2020 dated 18/09/2020, the Railway Board has issued certain clarification. It is stated that MACPS guidelines do not make a special provision for transferred employees vis-à-vis other employees in the new organization for determining their eligibility for further financial upgradation, as the actual pay drawn by a transferred employee on promotion/re-promotion in the new organization is of no consequence for determining his eligibility for further financial upgradation under MACPS. It is further observed that MACPS does not allow for ignoring promotion earned in the new organization. As such, it is clarified that 13 of 22 promotion earned in the new organization either to the same level (i.e., level from which the employee was reverted in the old organization before transfer) or to a higher level, is to be counted as an offset against entitlement for further financial upgradation under MACPS. Accordingly, the representation dated 12/10/2022 given by the applicant was considered and disposed of vide impugned speaking order dated 15/12/2022.
17. This does not appear to be in consonance with the MACP Scheme and recommendations of VII CPC. Pursuant to the implementation of VII CPC recommendations, the post of Assistant Station Master which was in the Grade Pay of Rs.2800/- was upgraded to Grade Pay of RS.4200/-. From the combined reading of Para 5 and 23 of the MACP Scheme, it becomes clear that promotions earned / upgradation granted under the MACP Scheme in the past (whether in the new or old organisation/office) to those grades which are in the same Level in the Pay Matrix due to merger of pay scales/ upgradations of posts recommended by the Seventh Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS. Thus, from the above, it is clear that the promotion earned by the applicant in the past had to be ignored and his entitlement to the benefit of MACPS had to be considered accordingly.
18. Vide RBE.No.26/2020 dated 25/02/2020, the grant of financial 14 of 22 upgradation under MACPS to Station Masters was considered by the Railway Board. It is stated therein that as necessary amendment in the recruitment provisions for Station Masters has been notified on 16/ 02/2018 (vide RBE No. 22/2018), it was decided that the benefit of MACPS ignoring promotion from the post of ASM (GP - 2800) to SM (GP - 4200) shall be admissible w.e.f. 16/02/2018. However, this decision is also contrary to the MACP scheme which provides in Para 1 that the three financial upgradations under the MACPS are to be counted from the direct entry grade on completion of 10, 20 and 30 years services, respectively, or 10 years of continuous service in the same Level in Pay Matrix, whichever is earlier.
19. Para 5 of the MACPS (VII PC) provides that the benefit of merger will accrue w.e.f. the date of notification of the Recruitment Rules for the relevant post and not the benefit of MACP. Therefore, upgradation of the post of ASM from Rs.2800 to Rs.4200 and its merger with SM shall take effect from the date of notification of the Recruitment Rules i.e., from 16/02/2018. However, for the purpose of extending the benefit of three financial upgradations under the MACPS, they are to be counted from the direct entry grade on completion of 10, 20 and 30 years services, respectively, or 10 years of continuous service in the same Level in Pay Matrix, whichever is earlier. Therefore, the stand taken by the respondents in the impugned order dated 15/12/2022 (Annexure A-7) as well as in the Show cause Notice dated 18/07/2022 (Annexure A-3) with respect to pay fixation as well as extension of the 15 of 22 benefit of MACP are both questionable.
20. Further, it is vehemently urged by the Ld. Counsel for the applicant that the issue involved in this OA is covered by the decision of the Hon'ble Supreme Court in the case of State of Punjab & ors vs Rafiq Masih (White Washer) reported in [(2014) 13 S.C.R. 1343].
21. It is observed that in the case of State of Punjab and Others etc. A V. Rafiq Masih (White Washer) etc., the Hon'ble Supreme Court has considered the issue of propriety of the recovery of monetary benefits wrongly extended to the employees due to unintentional mistake committed by the employer and not on account of any misrepresentation or fraud committed by the employees and held that in view of the doctrine of equality enshrined in Arts. 14 to 18 and 38, 39, 39A, 43 and 46 of the Constitution, equity and good conscience has to be basis of all Governmental actions, in the matter of livelihood of the people. It was further held that recovery of monetary benefit given in excess of entitlement to the employee would be permissible in law so long it is equitous and does not have harsh and arbitrary effect on the employee. However, the Hon'ble Supreme Court has held such recovery would be impermissible in certain cases which are summarised as under: -
"12. lt is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where 16 of 22 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."
22. As stated above, it is admitted by the respondents that the applicant was appointed as Assistant Station Master on 13/03/1989 in the scale of Rs.1200-2040 (GP- Rs.2800/- in 6th PC) and that he was promoted as Station Master-III on 30/10/1991 in the scale of Rs.1400-2300 (GP- Rs.4200/- in 6th PC). In the show cause notice for recovery of overpayment from the applicant's salary, issued to 17 of 22 applicant vide letter dated 18/07/2022 as per Annexure A-3, it is stated that since applicant got one promotion at TP division and was transferred to PGT division through Inter Divisional One-Way Transfer on reversion as ASM in the scale of Rs. 4500-7000 (GP-2800 in VI PC) with pay protection, he was not eligible for further pay fixation on promotion that he got at PGT division on 03/08/1996. Since applicant's pay was erroneously fixed on 5th CPC and he got extra fixation benefit which he was not entitled to, his pay was revised on 21/02/2022 and overpayment of Rs. 76445/- is to be recovered from him.
23. Consequent upon introduction of Railway Services (Revised Pay) Rules, 2008, classification of various posts under Railway Services has been notified vide RBE No.5/2010 dated 08.01.2010. Following is the relevant portion of rule 107 showing classification of Railway Services Posts as Group-C posts : -
"3 A Railway Service post carrying Grade Pay Rs. 4600 and Rs. 4200 in Pay Group C Band PB-2 (Rs.9300-34800), Grade Pay Rs. 2800, Rs. 2400, Rs. 2000, Rs. 1900 and Rs. 1800 in Pay Band PB-1 (Rs. 5200-20200). The posts of S.O. (Acs) / Sr. SO (Acs), TIA / Sr.TIA and ISA / Sr. ISA (Merged grades) carrying Grade Pay Rs.4800 in Pay Band PB-2 (Rs.9300-34800), Nursing Sister carrying Grade Pay Rs. 4800 in Pay Band PB-2 (Rs. 9300-34800 ), Matron / Chief Matron (Merged Grade) carrying Grade Pay Rs. 5400 in Pay Band PB-3 (15600-39100 ), Primary School Teacher / Trained Graduate Teacher / Post Graduate Teacher and equivalent (Basic / Senior / Selection Grade) carrying Grade Pay Rs. 4800 / 5400 / 6600 in Pay Band PB-2 / PB-3 ( Rs. 9300-34800 / 15600-39100 ) will continue to be classified as Group 'C' Notes: (a) A person placed in higher Grade Pay/Pay Band under In-situ promotion scheme/ ACP or MACP Schemes will continue to retain the classification of his Basic Post.
XXXX ".
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24. From the above, it is evident that the applicant is a Group-C employee. As per item (i) of the judgement in Rafiq Masih case, recovery from employees belonging to Group 'C' was impermissible. It is also evident from the show cause notice issued to the applicant that pay of applicant on promotion at PGT division on 03/08/1996 was erroneously fixed and recovery of overpayment from the applicant's salary is being made from that date. As per item (iii) of the judgement in Rafiq Masih case, 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 is also impermissible. Since erroneous fixation of pay was made on 03/08/1996 and show cause notice is issued on18/07/2022 for recovery of overpayment made from 03/08/1996 onwards, it is evident that excess payment has been made for a period in excess of five years and such recovery is impermissible as per the above judgement in Rafiq Masih case.
25. It is also observed that DoP &T has examined the decision of the Apex Court in Rafiq Masih case in consultation with the Department of Expenditure and the Department of Legal Affairs and has issued OM dated 02/03/2016 advising the Ministries/ Departments to deal with the issue of wrongful/ excess payments made to the Government servants in accordance with the decision in the case of State of Punjab and others Vs Rafiq Masih (white washer), etc. Subsequently, the Railway Board has also issued similar instructions regarding recovery of wrongful/ excess payments made to the Government servants vide RBE No. 72/2016 dated 19 of 22 22/ 06/2016.
26. It is also noted that many judgements have been passed by the Apex Court against recovery of excess amount paid to the employees for which they are not responsible in any manner. In the case of Shyam Babu Verma vs Union of India (1994 SCC (2) 521), it was held by the Hon'ble Supreme Court as under: -
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 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 for the same.".
27. In the case of Sahib Ram Vs. State of Haryana & Ors., (1995) Suppl.1 SCC 18, it was held by the Hon'ble Supreme Court as under: -
"Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any 20 of 22 misrepresentation made by the appellant 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.".
28. In the case of State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117, the Hon'ble Supreme Court observed that -
"It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.".
29. In the case of Yogeshwar Prasad & Ors vs National Inst.,Edu.Planning & Admn. & Ors, [2010 (14) SCC 323] the Hon'ble Supreme Court has held as under: -
"In view of a series of judgments of this Court, the appellants are otherwise entitled to the revised pay scale. the amount paid to the appellants-employees pursuant to the grant of higher pay scale should not be recovered unless it was a case of mis-representation or fraud. Admittedly, neither mis-representation nor fraud can be attributed to the appellants in C.A.NO.209/2007. In this view of the matter, respondent no.1-Institute would be restrained from recovering any amount which has already been paid to the appellants in C.A.No.209/2007.".
30. In the light of the decisions referred to above, and the decision of the 21 of 22 Hon'ble Supreme Court in Rafiq Masih case, we are of the view that the second respondent could not recover the amount of overpayment made to the applicant.
31. It is observed that pursuant to the direction given by this Tribunal in OA No.767/2022, the applicant had given a detailed representation dated 12/10/2022 bringing to the notice of the respondents the above decision of the Hon'ble Supreme Court in the case of State of Punjab and versus Rafiq Masih. However, the second respondent has not taken into consideration the said decision and has passed the impugned speaking order dated 15/12/2022 justifying the recovery of overpayment made to the applicant. Therefore, the impugned order dated 15/12/2022 is unsustainable in law.
32. In view of the forgoing discussions, we are of the view that our interference is definitely called for. Accordingly, OA is allowed. The impugned order dated 15/12/2022 (Annexure: A-7) is quashed and set aside. Respondents are directed to refund the amount, if any, recovered from the salary of the applicant within a period of two months.
33. We further direct that the respondents shall extend the benefit of first and second MACP to the applicant with the effect from 01/09/2008 and 13/03/2009, respectively and also extend the benefit of third MACP from the date on which 22 of 22 applicant has completed 30 years of service, along with all attendant benefits. The respondents to re-work the MACP as above within a period of two months from the date of receipt of a copy of this order. There shall be no order as to cost.
(Sisir Kumar Ratho) (Veena Kothavale)
Member(A) Member(J)
24.04.2025
asvs.