Central Administrative Tribunal - Jabalpur
Shekhar Shripad vs Revenue on 3 January, 2025
1 OA 200/691/2023
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/691/2023
Jabalpur, this Friday, the 03rd day of January, 2025
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
1. Shekhar Shripad, S/o Shri Sitaram Ji, aged about 60 years, working as
Administrative Officer, CGST, Nagpur, R/o H.No.945, Prem Nagar,
Nagpur Maharashtra 440024.
2. Udya Vithalrao Kakade, S/o Shri Vithalrao, aged about 56 years,
working as Administrative Officer, CGST, Nagpur, R/o Gurukrupa Park,
Plot No.11-A, Maharshi Chowk, Near Shivtara Hotel, Nalgaon Road,
Amrawati, Maharashtra 444604.
3. Anil K Yerne, S/o Shri Krushnarao N. Yerne, aged about 59 years,
working as Administrative Officer, CGST, Nagpur II, R/o C.A. Road,
Chitraoli, Gandhiputla, Behind Shree Renuka Temple, Kumbhar Pura,
Nagpur, Maharashtra 440024.
4. Sunil Raghorte, S/o Shri Tulsiram Ji, aged about 58 year, working as
Administrative Officer, CGST, Nagpur, R/o Jawahar Nagar, 81 Lane No.5,
Manawada, Nagpur, Maharashtra 440024.
5. Arun Bhalavi, S/o Shri Keshav Rao Bhalavi, aged about 59 year,
working as Administrative Officer, CGST, Nagpur II, R/o Sai Aarti
Apartment, Flat No.202, Dhanvantri Nagar, Nagpur Maharashtra 440024.
6. D.M. Kamble, S/o Shri Motiram Kamble, aged about 58 year, working as
Administrative Officer, CGST, Nagpur II, R/o Ambedkar Nagar Wadi,
Nagpur, Maharashtra 440024.
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7. Sanjay K Yete, S/o Shri Krushnarao Yete, D.O.B. 21.12.1961, working
as Retd. Administrative Officer, Audit, Nagpur, R/o Flat No.401, B-Wing,
Rajat Heights, Koradi Road, Nagpur, Maharashtra 440013.
8. Bhojraj Daulat Gowardhan, S/o Shri Daulat, D.O.B 15.04.1963, working
as Inspector, CGST, Division Chandrapur, R/o Krishna Nagar, MEL Post,
Chandrapur, Maharashtra 442401.
9. Y.N. Ukey, S/o Shri Narenar Shivrao Ukey, D.O.B. 07.10.1959, working
as Retd. Executive Assistant, CGST Amrawati, R/o Ambedkar Chowk,
Palipura, Yawatmal, Maharashtra 440024.
10. Abdul Sajid, S/o Shri Abdul Wahid, aged about 59 year, working as
Administrative Officer, Custom Commissionerate Nagpur, R/o Type IV,
Qtr No.3, Seminary Hills Civil Lines, Near Balaji Mandir, Nagpur,
Maharashtra 440024.
11. Ravindra Francis, S/o Pascal, aged about 59 year, working as Inspector,
R/o Near Jain Mandir, Pension Line, Sadar, Nagpur, Maharashtra 440024.
12. Rahul Chokhobaji Gamer, S/o Shri Cholhobaji Gamer, aged about 59
years, working as Inspector, CGST, Nagpur II, R/o Plot No.84 at Ranala,
Kalamana Road, Kamtee Maharashtra 441001.
13. Rajendra Pande, S/o Madhukarrao, aged about 57 years, working as
Administrative Officer, Nagpur R/o Plot No.59-A, Kamruddin Lay Out,
Borgaon Nagpur, Maharashtra 440013.
14. Asad Ali, S/o Shri Akhwat Hussain, aged about 57 years, working as
Inspector, Range Kamtee, Nagpur II Commissionerate, R/o Husainabad
Hamalpura, Near Haidery Jama Masjid, Kamtee, Nagpur, Maharashtra
441001.
15. Hemant Kanhe, S/o Shri Digamber Kanhe, aged about 58 years,
working as Administrative Officer, CGST, Division Akola, Nagpur, R/o
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Kharkadipura Road, Post Bazi Bazar, Kolhapuri Gate, Amrawati,
Maharashtra 440024.
16. Satish Fulsunge, S/o Chunnilal, D.O.B. 17.08.1967, working as
Administrative Officer, Nagpur, R/o Flat No.1, D.1, F-1, Gorkhede
Complex, Najari Dhaad, Nagpur Maharashtra 444604.
17. Yashwant Ukarda Mohote, S/o Ukarda Hari Mohote, D.O.B.
14.01.1963, working as Retd. Inspector CGST & Central Excise, Division
Akola, Nagpur - II, R/o Matoshri, Snchal Nagar, Jalamb Road, Atwadi
Snchal Nagar, District Buldana Maharashtra 444312.
18. Dashrath Kodwate, S/o Saduji B. Kodwate, D.O.B. 02.10.1960,
working as Retd. Chief Commissioner Officer, Nagpur, R/o H.No.103,
Adarsh Colony, Sitalwadi, K.T. Nagar, Ramtek Maharashtra 441106.
-Applicants
(By Advocate - Shri Amardeep Gupta)
Versus
1. The Union of India through its Secretary (Expenditure) Ministry of
Finance, Department of Revenue, North Block, New Delhi - 110001.
2. The Central Board of Excise & Customs (Now CBIC) through its
Chairman, Department of Revenue, North Block, New Delhi - 110001.
3. Chief Commissioner, Bhopal (Cadre Controlling of Central Excise Zone,
M.P. Nagpur & Chhattisgarh, New GST Bhawan 35-C, Administrative
Area, Arera Hills, Bhopal - 462001.
4. Chief Commissioner, CGST & Central Excise (Now CGST) under the
Direct Control of Chief Commissioner, Bhopal, P.O. Box No.81,
Telangkhedi Road, Civil Lines, Nagpur 440001.
5. Commissioner, CGST & Customs & Central Excise, Nagpur P.O. Box
No.81, Telangkhedi Road, Civil Lines, Nagpur 440001 - Respondents
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(By Advocate - Shri Himanshu Shrivastava)
(Date of reserving order : 12.12.2024)
ORDER
By Akhil Kumar Srivastava, JM.-
The applicants, through this Original Application, are challenging the order dated 14.06.2013 (Annexure A-1), whereby the notional promotion granted to the applicants from the grade of LDC to Tax Assistant w.e.f.05.05.2003 has been revised.
2. The brief facts of the case are that all the applicants were initially appointed as Sipahi in the respondent department in the year 1985. Subsequently, they were notionally promoted to the post of LDC w.e.f.20.09.2002 vide order dated 09.04.2009 (Annexure A-2). In 2010, the office of respondent No.4 issued an Establishment order dated 16.02.2010 (Annexure A-3) by which all the applicants, who were notionally promoted as LDC were deemed to have been notionally promoted as Tax Assistant w.e.f.05.05.2003 subject to passing the computer proficiency examination within two years to be reckoned from the actual date of their order for promotion as LDC. However, vide impugned Establishment order No.18/2013 dated 14.06.2013 (Annexure A-1), the respondent No.4 ordered that 'any person, who holds post of LDC on regular basis and falls within Page 4 of 11 ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 5 OA 200/691/2023 the seniority list as determined by the appointing authority at the commencement of these Rules shall on passing the Departmental Computer Proficiency Examination conducted by the appointing authority be deemed to have been promoted w.e.f. date of passing such examination on the post of Tax Assistant'. Thus, the respondent No.4 implemented the impugned order and withdrawn the promotional benefits of the applicants and revised the pay of the applicants thereby making recovery from their pay. The applicants submit that they were granted the notional promotion under direction issued by the Hon'ble Andhra Pradesh High Court. The new recruitment rules for the post of LDC were published in the Gazette on 21.09.2002. Hence the effective notional date of promotions from Group D to the pre restructured LDC should be taken as 20.09.2002.
3. The respondents have stated in their reply that the restructuring of the Customs & Central Excise Department was implemented on 19.07.2001 (Annexure R-1) and the cadres of UDC, Date Entry Operator Grade A and LDC were merged and re-designated as Tax Assistant. Further, the new Recruitment Rules for LDC were notified on 09.09.2002 and for Tax Assistant on 02.05.2003. Subsequently, the pre-restructured posts of LDC were filled by promotion of the Sepoys (Group D) notionally from date Page 5 of 11 ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 6 OA 200/691/2023 prior to the publication of the LDC Recruitment Rules of 2002. The Sepoys promoted notionally to the grade of LDC with retrospective effect came within the seniority list at the commencement of the Tax Assistant Recruitment Rules, 2003 and, therefore, were eligible for promotion to the grade of Tax Assistant on passing of the Departmental Computer Proficiency examination. In this regard, a clarification was issued on 17.11.2009 (Annexure A-7). However, vide Establishment Order No.9/2010 dated 16.02.2010 (Annexure A-3), the applicants were promoted to the grade of Tax Assistant notionally with effect from 05.05.2003 subject to passing the Computer Proficiency Examination within two years reckoned from the actual date of their order of promotion as LDC. This order was found not in consonance with the provisions of Rule 4(3) of the Tax Assistant Recruitment Rules, 2003 as per which the promotions could be granted only on passing the Computer Proficiency Examination. Accordingly, it was ordered that the officers would be deemed to be promoted from the date of their passing the computer proficiency examination instead of 05.05.2003.The Establishment Order No.18/2013 dated 14.06.2013 (Annexure A-3) has been issued in order to rectify the erroneous promotions granted to the grade of Tax Assistant. Page 6 of 11
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4. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
5. Learned counsel for the applicants submitted that the reliefs prayed in this Original Application are confined to the recovery part only. He averred that the present case is squarely covered by the judgment of Hon'ble Apex Court in the case of State of Punjab vs. Rafiq Masih (2015) 4 SCC 334.
6. On the other hand, learned counsel for the respondents submitted that the order dated 27.10.2015 (Annexure R-5) passed in compliance of the order passed by this Tribunal in Original Application No.946/2014 clearly states that the applicants are not covered by the judgment of Hon'ble Apex Court in Rafiq Masih (supra). In the said order, reliance has also been placed in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (2012) 8 SCC 417, wherein the Hon'ble Apex Court has clearly held that corrective action can always be taken where the excess payments on account of wrong pay fixation, without following the procedure has been made. He also averred that most of the applicants have been promoted to the post of Inspector of Central Excise which is a Group B Non-Gazetted post.
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7. The judgment rendered by the Hon'ble Apex Court in Rafiq Masih (supra) reflects that the view of the Hon'ble Apex Court, i.e., in the case of Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521 was that there cannot be any recovery if there is no misrepresentation on the part of the concerned employee but subsequent thereto, the conflicting view has come in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417, wherein the Hon'ble Apex Court was of the view that the excess payment if made exceeding the entitlement of the concerned employee is required to be recovered since the said amount is tax payer's money.
8. The facts of the case of Rafiq Masih (Supra) were that the excess payment has been said not to be recovered and, in that view, law has been propounded as under para-18 wherein five categories have been given, i.e., in which circumstances, the recovery is to be made. For ready reference, the paragraph-18 is being reproduced as under :-
"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:Page 8 of 11
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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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."
9. The background of propounding the aforesaid guideline is in the pretext of the fact that it was the decision of recovery by the employer as would appear from the very first paragraph of the judgment wherein the mistake was crept up while fixing the salary of an employee consequent upon the upward revision of pay scale, the law has been laid down that if the fault has been committed by the employer, there cannot be any recovery but subject also to the condition which is relevant at para-18(v) wherein it has been laid down that 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.
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10. The aforesaid guideline, therefore, stipulates that guideline no.18(i) -
(iv) there cannot be any recovery but apart from that category, the decision is required to be taken by the Court that if the Court comes to the conclusion of making equitable balance of the employer's right to recover then in such circumstances, the recovery can also be made. Meaning thereby, that in the judgment rendered by the Hon'ble Apex Court in Rafiq Masih (supra) there is no absolute bar in making recovery if the guideline as contained in paragraph-18(v) is to be considered. But, that consideration is apart from the condition no. 18(i) - (iv).
11. We find that case of the applicants does not fall under the guidelines contained in paragraph 18 (i) - (iv) as the corrective measure has soon been taken by the respondents when the discrepancies regarding applicant's promotion as Tax Assistant were noticed and the same was rectified to the effect that they shall be deemed to be promoted from the date of passing of the Departmental Computer Proficiency Examination and not w.e.f.05.05.2003. Moreover, the judgment in the case of Rafiq Masih (supra) was delivered at a subsequent date by which time the excess amount paid to the applicants had already been recovered. Therefore, the ratio of Page 10 of 11 ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 11 OA 200/691/2023 law laid down in the case of Rafiq Masih (supra) will not be applicable to the facts and circumstances of this case. As has been held by the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal (supra) that the excess payment if made exceeding the entitlement of the concerned employee is required to be recovered since the said amount is tax payer's money, we do not find any illegality in the action of the respondents in making recovery from the excess amount paid to the applicants.
12. In the result, this Original Application is dismissed being devoid of any merit. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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