Orissa High Court
Goraga Yogiswara Rao vs Union Of India And Others ..... Opp. ... on 25 April, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.P.(C) NO. 23952 OF 2020
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
Goraga Yogiswara Rao ..... Petitioner
-Versus-
Union of India and others ..... Opp. Parties For petitioner : M/s. S.B. Jena, A.K. Mohanty and S. Behera, Advocates For opp. parties : Mr. P.K. Parhi, DSGI along with Ms. J. Sahu, CGC P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of Judgment : 25.04.2024 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order dated 18.09.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 167 of 2013 under Annexure-9 so also the order dated 19.02.2013 issued by opposite party no.2 under Annexure-7, and to issue Page 1 of 27 direction to the opposite parties to treat the appointment of the petitioner to the post of Stenographer as a direct recruit with effect from 10.07.1990, as a consequence of which he will be entitled for his first financial upgradation to the next higher scale with effect from 10.07.2002 under the ACP scheme and 2nd financial upgradation to the next higher scale with effect from 10.07.2010 under MACP scheme, by cancelling the 2nd financial upgradation granted to him with effect from 22.11.2006. The petitioner has further prayed to quash the order dated 03.07.2013 issued by opposite party no.2 under Annexure-8 and to refund the amount of Rs.2,36,930/-, which has been recovered from his gratuity towards excess payment of pay and allowances for the period from 10.07.2002 onwards, with interest @ 9% per annum till the date of refund of the amount.
2. The factual matrix of the case, in a nutshell, is that the petitioner was appointed as a Lower Division Clerk (LDC) in the office of the Regional Labour Commissioner (Central), Bhubaneswar on regular basis w.e.f. 22.11.1982 by following due process of selection Page 2 of 27 through the Staff Selection Commission. The Regional Labour Commissioner (Central), Bhubaneswar invited applications from among existing Matriculate Lower Division Clerks, having 5 years of regular service in the grade, vide its letter No. 70 (23)/86-Adm.I dated 25.04.1990, which clearly states that in case nothing is heard from any eligible L.D.C., it would be presumed that nobody is interested for the said post of Stenographer and accordingly the vacancies will be filled up through other permissible source as per the Rules. 2.1. As per the then Group "C" Posts (Regional Offices of the Chief Labour Commissioner's Organization) Rules, 1978, the method of recruitment for the post of Stenographer was as follows:-
"By selection through a test in stenography and typing from among shorthand knowing LDCs working in the regional and field offices, who have put in at least 5 years of service in the Grade and possess qualifications Matriculation or equivalent with speed of 80 words per minute in stenography and 40 words per minute in Type writing, failing which by direct recruitment".
2.2. In consonance with the aforementioned rules and in pursuance of the above letter dated 25.04.1990, Page 3 of 27 the petitioner applied for the post of Stenographer and, on being qualified in the Limited Departmental Competitive Examination (LDCE), was appointed and joined as Stenographer in the office of the Asst. Labor Commissioner (Central), Rourkela on 10.07.1990, pursuant to order no. 64/90 dated 26.06.1990, treating such appointment as a direct recruit Stenographer. 2.3. As per the Assured Career Progression Scheme issued by the Department of Personnel and Training (DoP&T), vide OM No. 35034/1/97-Estt (D) dated 9th August, 1999, a government employee on completion of 12 years of regular service would be eligible for grant of 1st ACP provided that he had not earned any regular promotion, and on completion of 24 years of regular service would be eligible for grant of 2nd ACP provided that he had not earned two regular promotions.
2.4. On completion of 12 years of service in the grade of Stenographer, as the petitioner had not earned any regular promotion, he was granted the benefit of first Page 4 of 27 financial up gradation under the Assured Career Progression Scheme w.e.f. 10.07.2002 in the pre-revised pay scale of Rs. 5000-8000/-, which was revised to Rs.9300-34800/- with grade pay of Rs.4200/- with effect from 01.01.2006 based on the recommendation of 6th Pay Commission, treating the appointment of the petitioner as Stenographer since 10.07.1990 as a direct recruit. After completion of 24 years of regular service from 22.11.1982, the petitioner's case was considered for 2nd ACP w.e.f. 22.11.2006. Another Scheme, namely, Modified Assured Career Progression (MACP) Scheme was introduced, vide DoP&T No.35034/3/2008-Estt (D) dated 19.05.2009, which was effective from 01.09.2008. As per the MACP Scheme, there shall be three financial up-gradations, counted from the direct entry grade on completion of 10, 20, and 30 years service respectively. It is also stated that financial up-gradation under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay. While considering the case of the petitioner for grant of 2nd MACP, the same was forwarded to opposite party no.2 Page 5 of 27 for approval. While examining the case for grant of 2nd MACP, opposite party no.2 observed that the petitioner was appointed as LDC on 22.11.1982 and was promoted to the post of Stenographer as per the then recruitment rules for the post of Stenographer. Therefore, he was not eligible for grant of 1st ACP which was granted to him erroneously on 10.07.2002.
2.5. The opposite party no.2, vide his letter dated 21.5.2012 addressed to the opposite party no. 3, stated that he had referred the case of the petitioner to the DoP&T for clarification and the DoP&T clarified on 17.04.2012, vide Dy. No. 93235/CR/II [F.No. Admn. II /23 (37)/ 2010-CL (M/O Labour & Employment, O/O CLC (C)] that "by selection through a test in Stenography & Type writing from among short hand knowing LDCs working in the regional & field offices, who have put in at least five years of service in the grade and possesses qualifications prescribed in column 7, failing which by direct recruitment." In Para-2 (ii) of DoP&T clarification, it was also reiterated that the clarification given against point no. 8 in DoP&T letter no. 35034/1/97-Estt (D) (vol. Page 6 of 27 IV) dated 10.02.2000 that "if the relevant recruitment Rules provide for filling up of vacancies of stenographers , Grade 'D' /junior stenographers by direct recruitment, induction of LDC to the aforesaid grade through Limited Departmental Competitive examination may be treated as direct recruitment for the purpose of benefit under ACPS. However in such cases rendered in a lower pay scale shall not be counted for the purpose benefit under ACPS". 2.6. The Administrative Officer of the Ministry of Labour & Employment, vide his letter no. Admn. II/3 (13)/2010 dated 19.02.2013 addressed to the opposite party no.3, by making an erroneous interpretation to the recruitment rules and also DoP&T clarification stated as follows:-
"XXX In view of above appointment of Sri Rao stenographer from the post of LDC w.e.f. I0-7- 1990 is to be treated as promotion and not as direct Recruitment. Therefore first ACP granted to him in the pre-revised Scale of Rs.5000-8000 w.e.f. 10-7-2002 was erroneous and is hereby withdrawn. Excess payment made to him of on this account may be recovered. Again he had completed 24 years of regular service on 22-11- 2006, he is entitled to get the benefit of 2nd ACP in the pre revised scale of pay of Rs. 5000-8000 w.e.f. 22.11.2006 and have to forego arrears of pay from 1-1-2006 to 21-11-2006 as per MACP scheme or alternately if he does not agree to Page 7 of 27 forgo arrears of pay up to 21-11-2006 he is entitled to get the benefit of 2nd MACP in the grade pay of Rs.2800 w.e.f. 1-9-2008. Further he has already completed 30 years of service on 22- 11-2012, he is also entitled to get financial benefit of 3rd MACP in the grade pay of Rs. 4600 w.e.f. 22-11-2012"
2.7. Consequent upon receipt of letter dated 19.02.2013 of opposite party no.2, the opposite party no.3 cancelled the order dated 20.03.2007 (Annexure-3) and granted 2nd ACP to the petitioner w.e.f. 22.11.2002 and 3rd MACP w.e.f. 22.11.2012, vide order no.7I/(5)/2010/A.1 dated 03.07.2013.
2.8. Aggrieved by the order dated 19.02.2013 the petitioner approached Central Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No. 167 of 2013, which was dismissed vide order dated 18.09.2019 stating that the appointment of the petitioner to the post of Stenographer was promotion for the purpose of ACPS/MACPS. On attaining the age of superannuation, the petitioner retired from service w.e.f. 30.04.2020. Pursuant to the order dated 19.02.2013 of opposite party no.2 under Annexure-7 and the order of the Tribunal dated 18.09.2019 under Annexure-9, opposite party no.3 Page 8 of 27 re-fixed the pay of the petitioner w.e.f. 01.07.2002 onwards after allowing 2nd MACP w.e.f. 22.11.2006 and 3rd MACP w.e.f. 22.11.2012, vide order dated 31.10.2019, and directed for recovery of Rs.2,36,930/- towards excess payment made to him with effect from 10.07.2002 onwards. Though the petitioner requested for waiver of such recovery, but, vide order dated 05.05.2020, the same was rejected and recovery was made from the gratuity amount, vide order dated 08.05.2020 of the Pay & Accounts Officer, New Delhi, even though such recovery is protected by the apex Court in the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334. Aggrieved by the order dated 18.09.2019 of the Tribunal as well as the order of recovery of alleged excess payment made to the petitioner, due to cancellation of order dated 20.03.2007 under Annexure-3 granting first 1st financial upgradation with effect from 10.02.2002 onwards, this writ petition has been filed.
3. Mr. S. Behera, learned counsel appearing for the petitioner vehemently contended before this Court Page 9 of 27 that even though the petitioner was appointed as LDC on 22.11.1982 by following the rules, since he was appointed in the post of Stenographer with effect from 10.07.1990 by following another rules, his appointment to the post of Stenographer is to be treated as direct recruitment and not by way of any promotion from LDC. Thereby, the Tribunal has committed gross error apparent on the face of record in construing the appointment of the petitioner with effect from 10.07.1990 as promotion and not direct recruitment and passed the order impugned, which cannot be sustained. It is further contended that the appointment to the post of Stenographer cannot be construed to be a promotion from the post of LDC. Promotion, as it is generally understood, means the appointment of person of any category or grade of a service or a class of service to a higher category of grade of such service of class. But the Tribunal failed to observe that the line of promotion from the post of LDC is to Upper Division Clerk (UDC) and not to the post of Stenographer. Therefore, the order so passed by the Tribunal cannot be sustained. Page 10 of 27 3.1. It is further contended that the Tribunal failed to appreciate the decision of DoP&T dated l0.02.2000, wherein it was very clearly clarified against point no. 8 that if the relevant recruitment rules provide for filling up of vacancies of Stenographers, Grade 'D'/ Junior Stenographers by direct recruitment, induction of LDC to the aforesaid grade through limited departmental competent examination may be treated as direct recruitment for the purpose of benefit under ACPS. In view of the specific DoP&T letter dated 10.02.2000, the fitment of the petitioner has been done correctly, which should not have been interfered with by the Tribunal in the order impugned. As such, the Tribunal failed to understand the said letter dated 10.02.2000 and passed an erroneous order, which cannot be sustained. 3.2. Reliance has also been placed on the judgment dated 04.01.2016 of the High Court of Karnataka passed in W.P.(C) No. 16103 of 2012 & W.P.(C) No. l6897 of 2012 (Chief Engineer v. Aruna Krishna Murthy and another), where in a similar case the order dated 08.04.2011 of the Central Administrative Page 11 of 27 Tribunal passed in O.A. No. 442/2009 has been held to be just and proper. In that case, the Court held that the clarification issued by the DoP&T dated 10.02.2000 very clearly denotes that if the relevant recruitment rules provide for filling up of the vacancies of Stenographers Grade 'D' / Junior Stenographers by direct recruitment, induction of LDCs to the aforesaid grade through Limited Departmental Examination may be treated as direct recruitment for the purpose of ACPS. But in the case of the present petitioner, the Tribunal has not considered the same in its proper perspective. Therefore, the order so passed cannot be sustained in the eye of law. 3.3. It is further urged that Para-2.9 of the departmental manual Part VI below the heading "Recruitment to the non gazette posts in CLC (C)'s organization" prescribes that the Stenographers in the establishment of Central Labour Commissioner (Central) are recruited directly through Staff Selection Commission. It is very clearly mentioned therein that "Recruitment of Stenographer Grade 'D' is made by Staff Selection Commission through Ministry and in case Page 12 of 27 Stenographer Grade 'D' are not available with SSC, they are appointed from amongst LDCs knowing shorthand after departmental test in Stenography in the manner stated in Para-2.10 by the appointing authority. 3.4. Learned counsel for the petitioner further contended that the basic difference between "appointment" and "promotion" has not been appreciated by the Tribunal while passing the order impugned and, thereby, the same cannot be sustained. So far as the recovery already made from the petitioner towards excess payment of pay and allowance is concerned, the same should not have been done, in view of the judgment of the apex Court in Rafiq Masih (supra). Thereby, the order so passed by the Tribunal cannot be sustained and is liable to be quashed.
4. Mr. P.K. Parhi, learned DSGI appearing along with Ms. J. Sahu, learned Central Government Counsel supported the order impugned passed by the Central Administrative Tribunal and contended that even though the petitioner was appointed as LDC and thereafter, by Page 13 of 27 following due process of selection, was appointed as a Stenographer, that should be construed to be a promotion from the post of LDC with effect from 10.07.1990. Therefore, consequential grant of 1st ACP to the petitioner was illegal. It is further contended that, in view of the clarification of DoP&T, vide letter dated 17.04.2012, the LDC promoted to the post of Stenographer has to be taken as "promotion" for such LDC and not direct recruitment and as per the said clarification, vide letter dated 03.07.2013, the grant of 1st financial upgradation under ACP Scheme to the petitioner, which was granted to him erroneously vide order dated 19.04.2007, was withdrawn and the pay of the petitioner was re-fixed. Thereby, the Tribunal has not committed any error apparent on the face of record, so as to cause interference by this Court. However, in the meantime, the order passed by the Tribunal has been implemented and the excess amount of Rs.2,36,930/-, which was paid to the petitioner erroneously, has been recovered by the opposite parties, though initially the same was not recovered due to the interim order dated Page 14 of 27 15.07.2013 passed by the Tribunal. Thereby, he contended that the writ petition should be dismissed.
5. This Court heard Mr. S. Behera, learned counsel appearing for the petitioner and Mr. P.K. Parhi, learned DSGI along with Ms. J. Sahu, learned Central Government Counsel appearing for the opposite parties in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
6. On the basis of the factual matrix narrated above, the undisputed fact being that the petitioner was initially appointed as LDC on 22.11.1982 by following due process of selection by the Staff Selection Commission. The office memorandum dated 10.02.2000 under Annexure-4 on the subject Assured Career Progression Scheme for the central government civilian employees-clarification regarding, under clause-8 reads as follows:-
Page 15 of 27
"8. Appointment on the If the relevant Recruitment Rules basis of limited provide for filling up of departmental vacancies of Stenographers examination by Grade 'D'/ Junior Stenographers which an employee by direct recruitment, induction joined a new service of LDCs to the aforesaid grade should be treated as through Limited Departmental promotion or not. For Competitive Examination may example, in case of be treated as direct recruitment Group D employees for the purpose of benefit under appointed as LDCs ACPS. However, in such cases, or Grade-D service rendered in a lower pay- stenographers scale shall not be counted for appointed from the purpose of benefit under amongst LDCs ACPS. The case of Grade 'D' should be treated as employees who become LDCs on direct recruits or not the basis of departmental in the respective examination stand on different higher grades. footing. In their case, relevant Recruitment Rules prescribe a promotion quota to be filled up on the basis of departmental examination. Therefore, such appointments shall be counted as promotion for the purpose of ACPS. In such situations, past regular service shall also be counted for further benefits, if any, under the Scheme."
On perusal of the aforementioned clarification, it is made clear that if the relevant Recruitment Rules provide for filling up of vacancies of Stenographers Grade 'D'/ Junior Stenographers by direct recruitment, induction of LDCs to the aforesaid grade through Limited Departmental Competitive Examination may be treated Page 16 of 27 as direct recruitment for the purpose of benefit under ACPS.
7. The undisputed fact being that the petitioner after being appointed as LDC appeared in the Limited Departmental Competitive Examination conducted for selection as Stenographer and, after being qualified, was appointed and joined as Stenographer in the office of Asst. Labour Commissioner (Central), Rourkela on 10.07.1990, vide Office Order No. 64/90 dated 26.06.1990, which clearly indicates as follows:-
"Sl. Name & Place of Place of posting
No. Designation working
1 2 3 4
1. Shri G.Y. Office of On appointment
Rao, LDC the LEO as Stenographer
(C), Barbil posted in the
office of ALC
Rourkela."
On perusal of the aforementioned office order, it is made clear that the petitioner on appointment as Stenographer posted in the office of ALC, Rourkela. As such, there is no use of word promotion because by following Limited Departmental Competitive Examination, the petitioner was appointed as a Stenographer from the post of LDC. Page 17 of 27 Under such circumstance, it is necessary to examine the meaning of "appointment" vis-à-vis "promotion".
8. In R.P. Kapur v. S. Pratap Singh Kairon, AIR 1964 SC 295, the apex Court held that the word "appointment" can only mean a post, station or office and not the whole service as such.
9. So far as promotion is concerned, the apex Court in the case of Tarsem Singh v. State of Punjab, (1994) 5 SCC 392, held that promotion, as understood under the service law jurisprudence, means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour, Opting to come to a lower pay scale or to a lower post cannot be considered a promotion, it is rather a demotion.
10. In State of UP v, Julal Uddin, (2004) 8 Scale 426, the apex Court held that promotion is advancement in rank or grade or both. An employee has no right to be promoted but he has right to be considered for promotion.
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11. In State of Kerala v P.V. Neela Kandan Nair, (2005) 5 SCC 561, the apex Court held that a 'promotion' involves going to a higher grade.
12. In Bhel v B.K. Vijay, (2006) 2 SCC 654, the apex Court held that the promotion under service law jurisprudence, means advancement in rank, grade or both, Promotion to selection posts is hot automatic.
13. Therefore, taking into consideration the meaning of appointment vis-a-vis the promotion, as discussed above, it is made clear that the petitioner had not been given any promotion to the post of Stenographer from the post of LDC and as such, LDC and Jr. Stenographer are two distinct and different cadre altogether. So far as LDC is concerned, it has got the promotional avenue as UDC and so far as Jr. Stenographer is concerned, the promotional avenue is Sr. Stenographer. Therefore, if the channel of promotion for two different cadres is different, the petitioner, having been appointed as Junior Stenographer from LDC, is a fresh recruit in terms of the office memorandum dated Page 19 of 27 10.02.2000 under Annexure-4, as mentioned above, wherein it has been unequivocally clarified that if the relevant recruitment rules provides for filling up of the vacancies of Stenographer Grade 'D'/ Junior Stenographer by direct recruitment, induction of LDC to the aforesaid grade through Limited Departmental Competitive Examination may be treated as direct recruitment for the purpose of benefit under ACPS. Thereby, the petitioner having been appointed through Limited Departmental Competitive Examination to the post of Stenographer, it is to be considered to be a direct recruitment to the said post and as such, the concept of promotion from LDC to the post of Stenographer does not arise. Thereby, the Tribunal has committed gross error apparent on the face of record by not understanding the basic principles of appointment and promotion and concept thereof, so far as the petitioner in the present case is concerned. Since the petitioner was appointed as a stenographer, vide order dated 26.06.1990, with effect from 10.07.1990, such appointment is a direct recruitment to the post of Page 20 of 27 Stenographer. Therefore, on completion of 12 years from 10.07.1990, the petitioner was granted with 1st financial upgradation under the ACP Scheme, vide order dated 20.03.2007, w.e.f. 10.07.2002 in the pre-revised pay scale of Rs.5000-8000/-, which was revised to Rs.9300- 34800/- with grade pay of Rs.4200/- with effect from 01.01.2006 based on the recommendation of 6th Pay Commission.
14. The office memorandum dated 10.02.2000 under Annexure-4 is very clear with regard to grant of ACP to the Stenographers appointed from LDC. As per the order dated 19.05.2009, the grant of financial upgradation under the Modified Assured Carrier Progression would be at the interval of 10, 20 and 30 years, instead of interval of 12 and 24 years in the erstwhile ACP Scheme introduced on 09.08.1999. Therefore, since there is stagnation of post held by the petitioner and taking into consideration the ACP Scheme introduced on 09.08.1999, he has been extended with the 1st ACP on completion of 12 years of service as a Stenographer with effect from 10.07.2002. Thereafter, he Page 21 of 27 is entitled to get the benefit of MACP ,in view of the letter dated 19.05.2009, at the interval of 10, 20 and 30 years of service. Consequentially, he is entitled to 2nd financial upgradation to the next higher scale with effect from 10.07.2010 under MACP Scheme.
15. Much reliance has been placed by the Tribunal on DoP&T clarification dated 13.02.2013 under Annexure-C/1, issued by the Administrative Officer of Ministry of Labour & Employment to the Dy. CLC (C), Bhubaneswar, which reads as follows:-
"Clarification from DoP&T was sought on the point as to whether the appointment of Stenographer from the post of LDC is to be treated as Direct Recruitment or Promotion. DoP&T has clarified that as per the then RRs for the post of Stenographer, the appointment of Stenographer in this Department from the post of LDC is to be treated as Promotion and not Direct Recruitment. This office had already clarified this fact to all regional heads vide this office letter No. Adm.II/23 (37)/2010 dated 21.5.2012. Therefore, 1st ACP granted to Shri Rao on 10.7.2002 treating his appointment to the post of Stenographer as direct recruitment was not in order.
From the aforementioned clarification, where reliance has been placed on the office memorandum dated 21.05.2012, it can be safely construed that clarification Page 22 of 27 can apply only prospectively and it has got no retrospective effect. Therefore, the Tribunal has misconstrued the same and passed the order impugned, which cannot be sustained in the eye of law.
16. In the case of Aruna Krishna Murthy (supra), the High Court of Karnataka has confirmed the view taken by the Central Administrative Tribunal in its order dated 08.04.2011 passed in O.A. No. 442 of 2009. Therefore, the clarification issued on 10.02.2000 very clearly denotes that if the relevant recruitment rules provides for filling up of the vacancies of Stenographer Grade 'D'/ Junior Stenographers by direct recruitment, induction of LDC to the aforesaid grade through Limited Departmental Examination may be treated as direct recruitment for the purpose of ACPS. By judicial pronouncement when the same has been upheld, there is no justification to have any deviation from the same, unless the same is set aside/ modified/ clarified by the higher forum, mainly by the apex Court. Nothing has been placed on record to substantiate the same. Therefore, the judgment of Karnataka High Court has got Page 23 of 27 application to the Central Administrative Tribunal, so far as application of DoP&T clarification dated 10.02.2000 is concerned.
17. So far as Rafiq Masih (supra) is concerned, the apex Court has laid down the guidelines in paragraph-12 of the judgment to the following effect;-
"12. 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, summaries the following few situations, wherein recoveries by the employees, 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 Page 24 of 27 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
18. Referring to the said judgment, the DoP&T had issued an office memorandum dated 02.03.2016 and issued instructions to all the Ministries and Departments to deal with the cases of wrongful excess payment made to the government servants. Therefore, in view of the law laid down by the apex Court in Rafiq Masih (supra), read with the DoP&T instruction dated 02.03.2016, the recovery of Rs. 2,36,930/-, on the alleged excess payments of pay and allowances made to the petitioner, who is a retired Group-C employee, for more than 17 years, cannot and could not have been made.
19. Though initially the petitioner was protected by the Tribunal by an interim order dated 15.07.2013, but, after disposal of the Original Application, an amount of Rs. 2,36,930/- has been recovered, which is arbitrary, unreasonable and contrary to the provisions of law, more Page 25 of 27 particularly contrary to the direction of the apex Court and the DoP&T office memorandum dated 02.03.2016.
20. In view of the facts and law, as discussed above, this Court is of the considered view that the order dated 18.09.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 167 of 2013 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. As a consequence thereof, the opposite parties are directed to refund the amount of Rs.2,36,930/- to the petitioner along with interest @ 9% per annum from the date of recovery till the payment is made and the petitioner be extended with the benefit of 1st financial upgradation under the ACP and 2nd financial upgradation under MACP from the due date and calculation thereof be made. If any amount is due to the petitioner, the same shall also be paid to him. All such exercise shall be completed within a period of three months from the date of communication of the judgment.
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21. In the result, therefore, the writ petition is allowed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 25th April, 2024, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Apr-2024 17:16:28 Page 27 of 27