Central Administrative Tribunal - Delhi
Smt. Suman Berera vs Union Of India on 16 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 302/2013
Order Reserved on: 28.10.2014
Pronounced on: 16.12.2014
Honble Mr. A. K. Bhardwaj, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Smt. Suman Berera
Assistant Registrar (Academic)
Lady Hardinge Medical College,
New Delhi-110001.
- Applicant
(By Advocate: Sh. Padma Kumar S.)
Vs.
1. Union of India
Through the Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi-110001.
2. Director General of Health Services,
Directorate General of Health Services,
Nirman Bhawan,
New Delhi-110001.
3. Director,
Lady Hardinge Medical College &
Smt S.K.Hospital,
New Delhi.
- Respondents
(By Advocate: Sh. Ashok Kumar)
ORDER
Honble Shri V.N.Gaur, Member (A) The present application has been filed by the applicant with the following prayer:
(a) Quash and set aside the Order dated 9.1.2013 impugned in the OA.
(b) Direct the respondents to grant the Applicant the 3rd financial upgradation with the Grade Pay of Rs.7600/- wef 1.9.2008 with arrears of pay and interest thereon.
(c) Direct the respondents to grant the applicant cost of litigation as the applicant has been forced to approach this Honble Tribunal time and again on account the failure of the respondents to grant the applicant her legitimate pay and allowances.
(d) Direct the Respondents to produce the complete record/file including the decision taken by the Ministry for grant of the first financial upgradation to the scale of Rs.8000-13500 and 2nd financial upgradation to the scale of Rs.10000-15200. The file containing the present proposal for reversing/withdrawing the earlier order passed and screening committee minute etc. DOP&T advice for the perusal of the court.
(e) Any other order as this Honble Tribunal may deem fit under the present facts and circumstances of the case.
2. This Tribunal vide order dated 24.01.2013 had stayed the recovery ordered by the respondents in terms of the order dated 09.01.2013.
3. Brief facts of the case are that the applicant was appointed as Bursar in the Lady Hardinge Medical College and Smt. S.K.Hospital, New Delhi (respondent no.3) with effect from 03.07.1978 in the pay scale of Rs.550-750 (revised to Rs.1600-2660 after 4th Central Pay Commission). The applicant had been representing for revision of the pay scale of Bursar and its re-designation as Assistant Registrar (Academic) and a copy of such representation dated 18.01.1984 is available at page 101 of the paper book. The respondent no.3 vide letter dated 03.05.1991, apparently in response to a letter of respondent no.2 dated 23.11.1989, sent a proposal to respondent no.2 for the revision of pay scale of the post of Bursar and its re-designation as Registrar (Academic) (sic) in the scale of Rs.2200-4000 by abolishing the post of Bursar. The respondent no.1 communicated its decision to create a post of Assistant Registrar (Academic) at the Lady Hardinge Medical College and Smt. S.K.Hospital, New Delhi (respondent no.3) in the scale of Rs.2000-3500 by abolishing the post of Bursar vide letter dated 07.10.1992, which reads as under:
With reference to your ID Note No.V.21011/87/86-ME, dt. 17.7.87, I am directed to say that the President is pleased to sanction the creation of the post of Asstt. Registrar (Academic) at the LHMC & Smt. S.K. Hospital, New Delhi, in the pay scale of Rs.2000-60-2300-75-3200-100-3500, in lieu of existing post of Bursar in the pay scale of Rs.1600-2660 at that Hospital, w.e.f. 7.10.92. The post of Bursar will stand abolished w.e.f. 7.10.92.
The expenditure on the post of Asstt. Registrar (Academic) will be met out of the Plan funds of the LHMC & Smt. S.K. Hospital, New Delhi, during the year 1992-93.
This issues with the concurrence of Finance Division, vide their Dy. No.3530/Fin. II/92, dt. 19.9.92.
4. The applicant was appointed as Assistant Registrar (Academic) vide order dated 05.07.1993 on ad hoc basis for a period of six months. Her appointment was further extended till 06.07.1994 vide order dated 14.01.1994. Subsequently, her case was considered by the UPSC and on their recommendation the applicant was appointed to the post of Assistant Registrar (Academic) by promotion on regular basis with effect from 17.02.1995 vide order dated 02.03.1995, which reads as under:
OFFICE MEMORANDUM The Director General of Health Services is pleased to appoint Mrs. Suman Berera to the post of Assistant Registrar (Academic) Gr. B Gazetted in LHMC & Smt. S.K. Hospital, New Delhi by promotion on regular basis w.e.f. 17.2.1995 on the following terms and conditions:-
1. The appointment will be in the pay scale of Rs.2000-60-2300-EB-75-3200-100-3500/-. The initial pay will be fixed as per rules in the said pay scale. She will be entitled to draw dearness and other allowances at the rate admissible under the rule at the place of duty.
2. Other conditions of service will be governed by the relevant rules and orders on the subject issued from time to time.
The Charge assumption report of Mrs. Suman Berera may please be sent to this Directorate for further action.
5. By order dated 27.04.2007, respondent no.2 ante-dated the appointment of the applicant in the post of Assistant Registrar (Academic) to 07.10.1992, i.e., the date of the creation of post. The applicant thereafter claimed that she was entitled to two financial upgradations under the ACP scheme, in the pay scales of Rs.10,000-15,200 and Rs.12,000-18,000 respectively on the analogy of the JIPMER, Puducherry since the post of Assistant Registrar was an isolated post in the respondent-3 organisation. Getting no response to her representation the applicant filed OA-1587/2006 wherein this Tribunal directed the respondents to consider the representation of the applicant within a period of three months. The respondents vide order dated 15.03.2008 granted the applicant the first ACP in the scale of Rs.8000-13,500 with effect from 09.08.1999 and second ACP in the scale of Rs.10,000-15,200 with effect from 03.07.2002. The applicant again approached this Tribunal vide OA-1995/2007 which was disposed of by this Tribunal on 11.04.2008 directing the respondents to grant her arrears within 45 days.
6. Following the introduction of Modified Assured Career Progression Scheme (MACPS) the applicant again approached the respondents for grant of 3rd financial upgradation under MACPS on completion of 30 years of service. The applicant also filed OA-1563/2012 wherein, without going into the merits of her claims, this Tribunal on 10.05.2012 directed the respondents to dispose of her representation within a period of three months. On 07.11.2012 while hearing Contempt Petition no.776/2012 and MA-3209/2012 in OA-1563/2012 this Tribunal dismissed the MA-3209/2012 filed by the respondents seeking extension of time and directed the respondents to implement the order dated 10.05.2012 without any further delay. The Contempt Petition no.776/2012 in OA-1563/2012 was finally disposed of on 10.11.2013 following passing of a speaking order dated 09.01.2013 by the respondents with liberty to the applicant to assail the aforesaid order of the respondents in an appropriate proceedings in an appropriate forum. Through this speaking order the respondents have rejected the claim of the applicant for 3rd financial upgradation to the grade pay of Rs.7600 with effect from 01.09.2008 and also revised the earlier sanctioned financial upgradations to the lower scale of Rs.7450-11500 as the 2nd ACP and the grade pay of Rs.5400 in PB-2 as the 3rd MACP. The applicant has accordingly filed this OA challenging the order dated 09.01.2013.
7. Learned counsel for the applicant has raised the following grounds while challenging the order dated 09.01.2013 passed by the respondents:
(i) The respondents have withdrawn the pay scale of Rs.8000-13,500 granted to the applicant as first financial upgradation and reduced the second financial upgradation from Rs.10,000-15,200/- to Rs.7450-11500 without putting the applicant on notice.
(ii) The respondents decision to treat the appointment of the applicant as Assistant Registrar (Academic) on 07.11.1992 as promotion at this belated stage was not tenable in law.
(iii) Relying on the notings in the concerned file, obtained under the Right to Information Act, 2005, it has been contended that the respondents themselves had stated on numerous occasions that appointment on the post of Assistant Registrar (Academic) was not promotion.
(iv) The Department of Personnel and Training (DOP&T) in the clarification no.35 (copy placed at page 47 of the paper book) have stated that where all the posts are placed in a higher scale of pay, with or without a change in the designation; without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rule for the existing post, and without involving any change in responsibilities and duties, then placement of all the incumbents against such upgraded posts is not be treated as promotion/upgradation.
(v) The Recruitment Rules for the post of Assistant Registrar (Academic) do not have the provision for promotion from the post of Bursar which in any case was abolished.
(vi) The action of the respondents in withdrawing the first financial upgradation and reducing the second financial upgradation was barred by doctrine of promissory estoppel (Surya Narain Yadav vs. Bihar State Electricity Board, (1985) 3 SCC 38). The respondents are also estopped from opening the issue of comparison of hierarchy with JIPMER Puducherry on the basis of which they had earlier granted financial upgradation under the ACP Scheme.
(vii) There are several precedents where the Honble Supreme Court had granted relief against recovery of excess payment of emoluments/allowances if -
(a) The excess amount was not paid on account of any misrepresentation or fraud on the part of the employee;
(b) If such excess payment was made by the employer by applying a wrong principle for calculating the pay and allowances or on the basis of a particular interpretation of rule/order which was subsequently found to be erroneous. (Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475).
8. The learned counsel for the respondents on the other hand, stated that the post of Bursar was abolished and a new post of Assistant Registrar (Academic) in the higher pay scale was created on the basis of the representation received from the applicant to remove stagnation. The applicant was appointed to the post of Assistant Registrar on ad hoc basis, on promotion, in relaxation of the recruitment rules which envisaged appointment to the post by deputation mode failing which by direct recruitment by invoking the note under Col.11 of the recruitment rules. This note stated that the officers holding the post of Assistant Registrar (Academic) on regular basis on the date of notification of these rules shall be deemed to have been appointed to the post at the initial constitution. The applicant had been given the benefit of career progression/promotion, antedating it to 07.10.1992, the date of creation of the post.
9. On the basis of the representation received by the respondents the applicants request for first and second financial upgradations in the pay scale of Rs.8000-13,500 and Rs.10,000-15,200 with effect from 09.08.1999 and 03.07.2002 was granted on the presumption that a hierarchy was existing in the JIPMER, Puducherry for the post of Assistant Registrar (Academic) and Registrar (Academic) as presented by the applicant. However, when the request of the applicant for the third financial upgradation under MACPS, introduced from 01.09.2008, was examined it was found that the applicant was not entitled for first financial upgradation as granted earlier in view of the fact that she was appointed to the upgraded post of Assistant Registrar (Academic) in 1992 from the post of Bursar which was treated as promotion. As per conditions for grant of benefits under the ACP Scheme the applicant was eligible for the 2nd ACP with effect from 03.07.2002 after completion of 24 years of service, to the pay scale of Rs.7450-11500 as there was no promotional hierarchy either in her current organization or in JIPMER, Puducherry. She was entitled to 3rd financial upgradation on completion of 30 years of service, in accordance with MACPS, in the Pay Band-2 with grade pay of Rs.5400/- with effect from 01.09.2008. The appointment order dated 02.03.1995 issued by respondent no.2 specifically mentioned that the appointment was by promotion on regular basis with effect from 17.02.1995. He refuted the submission of the learned counsel for the applicant that there was a promotional hierarchy for the post of Assistant Registrar to the post of Registrar in JIPMER, Puducherry. As averred in the impugned order, JIPMER, Puducherry had clarified that the post of Assistant Registrar (Academic) and Registrar (Academic) did not constitute a cadre as these were two separate posts, filled on deputation as per the respective recruitment rules. He also submitted that the clarification no.35 referred to by the applicant would not apply to this case as the upgradation of the post of Bursar to Assistant Registrar (Academic) was not on the basis of recommendation of any Pay Commission or Committee set up by the respondents to rationalize the cadre. The upgradation was with a view to remove the stagnation in the isolated post of Bursar as represented by the applicant. This also explained why the post of Bursar had to be abolished for creation of Assistant Registrar (Academic) that is, there was no intention of creating a hierarchy. He also refuted the submissions made by the learned counsel for the applicant that the respondents had violated the condition under para 11 of the MACP Scheme notified on 19.05.2009 whereby it had been clarified that no past cases would be re-opened. The respondents had refixed the scales of the applicant under financial upgradation in accordance with the provision of the ACP Scheme which provided that if there was any error in granting the financial upgradation in the past that could be rectified at a later date.
10. We have considered the submissions made by the learned counsels and perused the record placed before us. The points to be considered are:
a. Whether the appointment of the applicant to the post of Assistant Registrar (Academic) with effect from 07.01.1992 would amount to promotion for the purpose of granting financial upgradation under ACP/MACPS?
b. In the event of the respondents action vide impugned order dated 09.01.2013 being found to be valid under law, how will the excess amount paid to the applicant have to be treated?
11. The applicants contention is that her appointment as Assistant Registrar (Academic) was by way of upgradation of the post of Bursar by the respondents was with a view to rationalize the cadre under respondent no.3 on the lines of the cadre existing in JIPMER, Puducherry. Such a cadre restructuring could not be treated as promotion to the applicant and for that she relied on the DOP&T clarification no.35 which has been reproduced below:
35. Whether placement/ appointment in higher scales of pay based on the recommendations of the Pay Commissions or Committees set up to rationalize the cadres is to be reckoned as promotion/financial upgradation and offset against the two financial upgradations applicable under the ACP Scheme?
where all the posts are placed in a higher scale of pay, with or without a change in the designation; without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rule for the existing post, and without involving any change in responsibilities and duties, then placement of all the incumbents against such upgraded posts is not be treated as promotion/upgradation.
( emphasis supplied)
12. In the present case the post of Assistant Registrar (Academic) is in a higher scale of pay with the change in designation though, admittedly, without any new qualification for holding the post in the higher grade. The recruitment rules for the post of Assistant Registrar (Academic) as notified by respondent no.1 on 26.06.1996 lay down the following requirements:
1. Educational and other qualifications for direct recruits Essential:
(1) Degree from a recognized University or equivalent.
(2) Three years experience of conducting examinations and admissions in a University/Educational Institutions.
Note 1 : Qualifications are relaxable at the discretion of the Union Public Service Commission in case of candidates otherwise well qualified.
Note 2: The Qualification(s) regarding experience is/are relaxable at the discretion of the Union Public Service Commission in the case of candidates belonging to Scheduled Castes or Scheduled Tribes, if at any stage of selection the Union Public Service Commission is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancies reserved for them.
Desirable: Masters Degree from a recognized University or equivalent.
2. Method of recruitment whether by direct recruitment or by promotion or by deputation or transfer and percentage of the vacancies to be filled by various methods.
Transfer on deputation (including short-term contract) failing which by direct recruitment.
Note: Officers holding the post of Assistant Registrar (Academic) on regular basis on the date of notification of these rules shall be deemed to have been appointed to the post at the initial Constitution.
3. In case of recruitment by promotion/ deputation/transfer, grades from which promotion/deputation/ transfer to be made -
Transfer on deputation (including short-term contract):
Officer under the Central (State Governments/Universities/Recognised Research Institutes, Public Sector Undertakings/Semi Government Autonomous or Statutory Organisations:
(a) (i) holding analogous posts on regular basis; or
(ii) with 3 years regular service in posts in the scale of Rs.1640-2900
(iii) with 8 years regular service in posts in the scale of Rs.1400-2300-2600 (illegible) or equivalent; and
(b) possessing the educational qualifications and experience prescribed for direct recruits under column 8.
13. The Recruitment Rules recognize only two modes of recruitment, i.e., transfer on deputation (including short-term contract) failing which by direct recruitment. It is also to be noted that the Recruitment Rules were notified on 26.06.1996 while the applicant was appointed on regular basis on recommendations of the UPSC vide order dated 02.03.1995. At the time of consideration of the applicant by the UPSC, she was holding the post of Assistant Registrar on ad hoc basis and the Recruitment Rules were not in place. Therefore, the argument of the applicant that there was no provision for promotion in the Recruitment Rules cannot be accepted. The appointment order dated 02.03.1995 specifically mentioned that the appointment was on promotion. The Recruitment Rules of 1996, as a one time measure, ratified the existing situation to protect the interest of the applicant who had already been promoted in 1995 and was holding the post of Assistant Registrar on regular basis. It is trite that the Recruitment Rules have only prospective effect and cannot change the nature of appointment made in the past. In other words, if there is no provision for promotion in the new Recruitment Rules, it cannot override the action of the department in promoting the applicant to the post of Assistant Registrar. We are, therefore, of the view that for the purposes of ACP/MACP the appointment of the applicant to the grade of Rs.6500-10,500 on promotion cannot be ignored. Having accepted that fact it is logical that second and third financial upgradations would be in the scale of Rs.7450-11,500 and to the grade pay of Rs.5400 (PB-2) respectively in accordance with the schemes of ACP and MACP.
14. The applicant has drawn parallel to the hierarchy in JIPMER Puducherry in support of her claim to the scale of Rs.8000-13,500 as the first financial upgradation. This argument has been refuted by the respondents on the basis of the information received from JIPMER Puducherry that the posts of Registrar and Assistant Registrar do not form a hierarchy and the relevant recruitment rules provide for filling up these posts on deputation.
15. The applicant has also referred to various notings in the relevant file in the Ministry, stating that on various occasions the Ministry had accepted the premise that the appointment on the post of Assistant Registrar (Academic) was not promotion. In this context, we would go by the law as laid down by the Honble Supreme Court that the noting in the files of the Government are nothing but expression of views and therefore, cannot be taken as the view of the Government which is finally expressed in terms of the final order authenticated and issued by the authorized officer. In this context, we refer to the observation of Honble Supreme Court in Union of India and another vs. Ashok Kumar Aggarwal, Civil Appeal no.9454/2013, which runs as follows:
16. The instant case is required to be considered in light of the aforesaid settled legal propositions, statutory provisions, circulars etc. The Tribunal inter alia had placed reliance on notings of the file. The issue as to whether the notings on the file can be relied upon is no more res integra.
In Shanti Sports Club v. Union of India, (2009) 15 SCC 705, this Court considered the provisions of Articles 77(2), 77(3) and 166(2) of the Constitution and held that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
The Court further held:
43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/ reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. Similarly, while dealing with the issue, this Court in Sethi Auto Service Station v. DDA, AIR 2009 SC 904 held:
14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision making authority in the department, gets his approval and the final order is communicated to the person concerned.
17. In Jasbir Singh Chhabra v. State of Punjab, (2010) 4 SCC 192, this Court held:
35. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations.
16. The applicant has also contended that the respondents could not have reopened the scales granted to her earlier and referred to para 11 of the DOPT OM no.35034/3/2008-Estt.(D) dated 19.05.2009 stating as follows:
11. It is clarified that no past cases would be re-opened. Further, while implementing the MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of august 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly.
17. In this context the respondents have referred to the DOPT OM no.35034/1/97-Estt.(D) (vol. IV) dated 10.02.2000 which states as under:
OFFICE MEMORANDUM Subject:-ASSURED CAREER PROGRESSION SCHEME FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES - CLARIFICATIONS REGARDING The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum of even number dated August 9, 1999 regarding the Assured Career Progression Scheme (ACPS). Consequent upon introduction of the Scheme, clarifications have been sought by various Ministries/Departments about certain issues in connection with implementation of the ACPS. The doubts raised by various quarters have been duly examined and point-wise clarifications have accordingly been indicated in the Annexure.
2. The ACP scheme should strictly be implemented in keeping with the Department of Personnel and Training Office Memorandum of even number dated August 9, 1999 read with the aforesaid clarifications (Annexure). Cases where the ACP Scheme has already been implemented shall be reviewed/rectified if the same are not found to be in accordance with the scheme/clarifications.
3. All Ministries/Departments may give wide circulation to these clarificatory instructions for general guidance and appropriate action in the matter.
4. Hindi version would follow.
(K.K. JHA) Director(Establishment)
18. With regard to the contention that past cases cannot be reopened while implementing the MACP scheme, we find that in the case of the applicant the ACP scales have not been revised in order to fit it in the hierarchy of scales/grade pay as envisaged in the MACP Scheme. The respondents discovered that the very basis of granting ACP in the scales of Rs.8000-13,500 and Rs.10,000-15,200, by comparing it with the post of Assistant Registrar in JIPMER Puducherry and the prevailing hierarchy there was wrong, as no such hierarchy existed there. Thus, the implementation of the ACP itself was wrong which respondents were authorized to correct in terms of the DOP&T OM dated 10.02.2000 (supra). In view of the clear instructions given by the DOP&T way back in the year 2000 in respect of ACP scheme, there is nothing wrong in correcting the mistake committed in the past by the respondents.
19. The applicant has also contended that withdrawing the first financial upgradation and revising the second financial upgradation was barred by doctrine of promissory estoppel. We are not persuaded to accept this argument. The action of the respondents will not be hit by the principle of promissory estoppel as granting ACP in scales higher than permissible was based on a premise that was wrong ab initio. It is not the contention of the applicant that the Recruitment Rules of Assistant Registrar/Registrar JIPMER have been changed subsequently.
20. With regard to the recovery of the excess amount paid to the applicant, we may refer to Shaib Ram vs. State of Haryana, JT 1995 (1) SC 24. In that case there was a mistake in the fixation of pay scale of the appellant. He received his pay on higher pay scale than due resulting in over-payments, which the State subsequently sought to recover. There, the Honble Supreme Court observed:
It is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong constructions 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. This principle was reiterated in Purshottam Lal Das vs. State of Bihar, (2006) 11 SCC 492.
21. In Syed Abdul Qadir (supra) Honble Supreme Court has held thus:
57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right 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, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99.
22. In the present case though it cannot be said that there was no misrepresentation by the applicant while asking for upgradation of the post of Bursar as the averment in respect of the hierarchy existing in JIPMER has been found to be wrong. The matter could, however, be viewed leniently taking note of the fact that the JIPMER, Puducherry was an organization under the same Ministry and it was incumbent on them to ascertain the position with regard to the hierarchy before granting the financial upgradations. At this stage, the respondents cannot shift the entire blame to the applicant after having wrongly granted financial upgradations.
23. Taking into account the entire conspectus of the case and for the aforesaid reasons, we do not find anything wrong in the fixation of the scale/grade pay of the applicant as second and third financial upgradations as stated in the impugned order. However, the respondents shall not recover the excess amount paid to the applicant prior to 24.01.2013, i.e. the date on which the recovery was stayed by this Tribunal. The OA is disposed of accordingly. No order as to costs.
(V.N. Gaur) (A. K. Bhardwaj) Member (A) Member (J) sd