Karnataka High Court
Sri.C.B.Gangadharaiah vs Union Of India on 5 September, 2013
Author: N Kumar
Bench: N Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER 2013
PRESENT
THE HON'BLE MR.JUSTICE N KUMAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
WRIT PETITION Nos. 38855-63/2013 (S-CAT)
BETWEEN:
1. SRI C.B.GANGADHARAIAH,
S/o LATE C.BOREGOWDA,
AGED ABOUT 60 YEARS,
FORMERLY WORKING AS
LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE.
2. S.GURURAJA RAO,
S/o LATE G.SRINIVASA RAO,
AGED ABOUT 60 YEARS,
FORMERLY WORKING AS
LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE AND
RESIDING AT No.615/5,
'KRITHIKA NILAYA', 1ST CROSS,
RAGHAVENDRA COLONY,
BEHIND IIM, BILEKAHALLI,
2
BANNERGHATTA ROAD,
BANGALORE - 560076.
3. K.EKANTHAM,
S/o LATE P.KANNAIAH,
AGED ABOUT 60 YEARS,
FORMERLY WORKING AS
LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE AND
RESIDING AT No.6/37-J,
6TH CROSS, 6TH BLOCK,
RAJAJINAGAR, BANGALORE - 560010.
4. J.N.NARASIMHA MURTHY,
S/o LATE NARASIMHAIAH,
AGED ABOUT 58 YEARS,
WORKING AS LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE.
5. K.SIDDARTHA REDDY,
S/o LATE KRISHNA REDDY,
AGED 57 YEARS,
WORKING AS LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE.
6. T MIR WAHEEDUDDIN,
S/o LATE T.N.ZAINULLABUDDIN,
AGED ABOUT 59 YEARS,
WORKING AS LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
3
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE.
7. SMT. PADMA C., W/o H.S.SRINAATH,
AGED ABOUT 57 YEARS,
WORKING AS LABORATORY ASSISTANT,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE.
8. SMT. K.N.KAMALAKSHI,
W/o S.GURURAJA RAO,
AGED ABOUT 60 YEARS,
WORKING AS STENOGRAPHER,
REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE AND
R/at No.615/5, 'KRITHIKA NILAYA', 1ST CROSS,
RAGHAVENDRA COLONY,
BEHIND IIM, BILEKAHALLI,
BANNERGHATTA ROAD,
BANGALORE - 560076.
9. N.JOSEPH SURENDRAN,
S/o LATE NAGAN,
AGED ABOUT 55 YEARS,
WORKING AS PEON,
ASSISTANT, REGIONAL OFFICE FOR HEALTH
AND FAMILY WELFARE, II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA, BANGALORE. ...PETITIONERS
(SRI. K.SUBBARAO, Sr. COUNSEL)
AND:
1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
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MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAVAN,
NEW DELHI - 11.
2. DIRECTOR GENERAL OF
HEALTH SERVICES,
NIRMAN BHAVAN,
NEW DELHI - 11.
3. THE DIRECTOR,
NATIONAL VECTOR BORNE DISEASES
CONTROL PROGRAM (NVBDCP)
Dte. GHS MINISTRY OF HEALTH
AND FAMILY WELFARE,
22-SHAMANTH MARG,
NEW DELHI - 54.
4. THE SENIOR REGIONAL DIRECTOR,
REGIONAL OFFICE FOR HEALTH AND
FAMILY WELFARE II FLOOR,
'F' WING, KENDRIYA SADAN,
KORAMANGALA,
BANGALORE. ...RESPONDENTS
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS
PERTAINING TO THE CASE OF THE PETITIONERS;
QUASH THE IMPUGNED ORDER DATED 14.08.2013 IN
APPLICATION NO.366-374/2013 PASSED BY THE
HON'BLE C.A.T. VIDE ANNEXURE 'C'; ETC.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, N KUMAR J., MADE
THE FOLLOWING:
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ORDER
These writ petitions are preferred challenging the order passed by the Central Administrative Tribunal, which has declined to interfere with the order passed by the authorities withdrawing the MACP and directing recovery of excess amount paid to these petitioners.
2. These petitioners were appointed as Laboratory Assistants during the period 1978 and 1981 in the pay scale of Rs.260-430 in the Malaria Operational Field Research Scheme which is formulated by the Government of India. Petitioner No.8 was appointed as Stenographer on 01.09.1978 and petitioner No.9 was appointed as Peon. Though it was a temporary appointment no explanation for the termination of their services from the scheme was given. The petitioners filed O.A. Nos.166-175/1991 before the Central Administrative Tribunal, Bangalore. The said 6 application was disposed of with a direction to continue their services till 31.03.1991 or until the date of expiry of the scheme. A direction was also issued to consider the case of petitioners for regularization of their services from the date of their initial appointment in the post held by them and extend the consequential benefits.
3. The Government of India took necessary action to integrate Malaria Operational Field Research Scheme with NMEP on the basis of the approval accorded by the Hon'ble President of India. Accordingly, 99 posts of Laboratory Assistants were sanctioned which was to be filled up by transfer of the existing personnel employed under the scheme. Accordingly, the petitioners were transferred from MOFRS to the cadre of NMEP with effect from 29.09.1995. It was made clear that they would be entitled for service benefits applicable to other 7 employees of the Central Government based on the locality of their postings. In spite of the directions issued by the Central Administrative Tribunal as aforesaid, the respondents did not recommend the services rendered by them under the MOFRS scheme for the purpose of revised upgradation of pay, pension and other benefits. Therefore, some of the petitioners approached the Tribunal again in O.A. No.595/1999. The application was allowed, the Tribunal held that petitioners are entitled to counting their past services prior to the date of absorption.
3. Respondents challenged the said order before this Court in W.P. No. 2722/2001 connected with W.P. Nos.12391-396/2001. The writ petition was dismissed. Aggrieved by the said order they approached the Apex Court. The Apex Court upholding the order of this Court with a clarification that as far as the Assured Career Progression is 8 concerned, petitioners would be entitled to get the benefits from the date of absorption. The Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, introduced the Modified Assured Career Progression (MACP) for the Central Government civilian employees w.e.f. 01.09.2008 as per the Notification dated 19.05.2009. In terms of the aforesaid scheme the petitioners were issued individual orders dated 08.03.2012 granting MACP. Upon completion of 10 and 20 years of services their pay was also revised and fixed accordingly. Thereafter, the 3rd respondent issued letter dated 26.10.2012 to the 4th respondent approving the said extension of benefit. Thereafter, by a letter dated 26.10.2012 the said benefit was to be extended from the date of entry into service with the regular cadre either on recruitment basis or on absorption towards re-employment and the DOP & T was advised to regulate the eligibility of erstwhile 9 MOFRS employees counting their services from the date of their absorption in the government services. Accordingly, the benefit granted to the petitioners was directed to be withdrawn w.e.f. 01.09.2008. Subsequently, individual orders have been passed withdrawing the said benefit and directing recovery of the excess amount paid.
4. Challenging the said order, the petitioners preferred application before the Central Administrative Tribunal. The Central Administrative Tribunal after carefully considering the case of the parties, after taking note of all the judgments of the Apex Court, which was relied upon and also taking note of the latest judgment of the Apex Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others [(2012) 8 SCC 417] held that the order issued by the competent authority withdrawing the MACP and directing recovery of 10 excess amount is in accordance with law declared by the Apex Court. Therefore, their action was justified. Accordingly, it declined to entertain the application. Aggrieved by the said order, the present writ petitions are filed.
5. Sri. K. Subba Rao, learned Senior Counsel appearing for the petitioners assailing the impugned order contended that from the material on record it is clear the petitioners are in no way responsible for extending the benefit from the date prior to the date of absorption. Some of them have already retired, some of them are retiring very shortly, they all belonged to the lowest cadre and therefore, on a proper interpretation of the judgment of the Apex Court, it is clear an exception is to be made in those cases and benefit given should not be denied. At any rate, the direction to recover the excess amount is to be set aside.
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6. If the said benefit had been given on the basis of a wrong interpretation of provision of law or on the basis of granting some benefits to persons who have worked in the lower cadre continuously, probably we would have considered the said request sympathetically. But in this case, in the earlier round of litigation the Supreme Court though upheld the order passed by this Court and the Tribunal in so far as the benefit of extending the MACP is concerned, it observed as under :
"However, it is made clear that with regard to Assured Career Progression respondents would be entitled to get benefit only from the date of absorption".
7. After the aforesaid order, the officials of the department could not have been granted the benefit to these petitioners contrary to the said order of the Supreme Court ignoring the said order to which they 12 were parties as well as the petitioners. They have extended the benefit contrary to the said direction. It is in this context it is relevant to notice the law laid down by the Apex Court in Chandi Prasad Uniyal and others case at para 14:
"We are concerned with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being 13 effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment".
8. Therefore, after the Apex Court made it very clear that these petitioners are not entitled for the aforesaid benefits, ignoring the Supreme Court judgment, the Officers of the Department have extended the benefits to which the petitioners who are not entitled under law. Consequently, it is the public money which is paid to them. Neither the Officers nor the petitioners were entitled to said amount. If we were to uphold such payment on the ground of sympathy, it would encourage the authorities to nullify the order passed by this Court as well as the 14 Apex Court and the concept of certainty would be lost and then the total lawlessness within the frame work of law would be the net result. At any rate, this Court cannot be a party to such unlawful acts. Therefore, the Tribunal rightly following the aforesaid judgment of the Apex Court declined to interfere with the orders passed withdrawing the said benefit and also directions issued to recover the amount paid to the petitioners. If they were not legitimately entitled under law, it is a case of unjust enrichment.
9. Under these circumstances, we do not see any merits in these writ petitions. Accordingly, these writ petitions are dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rbv/-