Gujarat High Court
Firoz Khan S/O Usman Khan vs Union Of India & 2 on 16 December, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/15720/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15720 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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FIROZ KHAN S/O USMAN KHAN....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR JOY MATHEW, ADVOCATE for the Petitioner(s) No. 1
MS ARCHANA U AMIN, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 16/12/2016
CAV JUDGMENT
Page 1 of 18
HC-NIC Page 1 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. This petition under Article 226 of the Constitution of India is filed by a retired employee of Railways challenging the order dated 11.06.2015 passed by the Central Administrative Tribunal, Ahmedabad Bench, in OA No.344 of 2015. The petitioner also challenges the order dated 14.08.2015 passed by the CAT, Ahmedabad in Review Application No.40/2015. The CAT, Ahmedabad had dismissed both the aforementioned petitions i.e. main petition and the review application.
2. The subject matter of the litigation is revolving around the claim of the petitioner to receive third Modified Assured Career Progression Scheme (MACPS). The facts in nutshell are as under:
2.1The petitioner was appointed as Khalasi (Helper) on 02.05.1981 in the Signal Department of Baroda Division of Railways. After putting 10 years of service, he was Page 2 of 18 HC-NIC Page 2 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT granted regular promotion as driver GradeIII on 19.08.1991, thereafter he was given promotion as driver GradeII on adhoc basis on 31.10.2013. The petitioner was thereafter given benefit of third MACP with effect from 02.05.2011 by order dated 31.10.2011. Thereafter as the Railways Department was of the opinion that the petitioner was given the third MACP erroneously considering his ad hoc promotion to post of Driver GradeII as regular promotion.
2.2 To rectify such a mistake, the petitioner was issued show cause notice on 15.10.2013 to which the petitioner replied on 21.10.2013. After receiving the reply, the Department took a decision on 23.10.2013 whereby the third MACP granted to the petitioner was withdrawn and the petitioner was directed to pay back an amount of Rs.24,438/. It is this decision dated 23.10.2013 which Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT the petitioner has challenged before the CAT, Ahmedabad.
2.3The CAT, Ahmedabad by an order dated 11th June 2015 dismissed the OA upholding the decision of the Department and holding that the petitioner is not entitled for the third MACP.
2.4Aggrieved by such decision, the petitioner preferred Review Application No.40 of 2015 seeking review of the decision of CAT, Ahmedabad in OA No.344 of 2014 with a specific claim that the applicant having retired from the Railways Department as GroupD employee, and any excess payment made to him without his fault, such amount may not be recovered from him and for this purpose referred to the judgment of the Apex Court in case of State of Punjab Versus Rafiq Masih. Such review application also came to be dismissed and while Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT dismissing the review petition, CAT, Ahmedabad held that the recovery of the additional amount paid under the mistake cannot be interfered with on the basis of the judgment of the Apex Court as the petitioner had retired on 31.10.2013 while the judgment of the Apex Court was pronounced on 18.12.2014 which would apply prospectively only.
3. Heard learned Advocate Mr. Joy Mathew for the petitioners and Ms. Archana U Amin for the respondents. Learned Advocate for the petitioner submits that considering the fact that the petitioner has joined the services in the year 1981 and has retired in the year 2013, therefore, he has completed more than 30 years of service. Therefore, applying the modified MACPS to the petitioner, he is entitled to the benefit of higher grade pay on completion of 30 years of service which he completed in the year 2011.
4. He submits that prior to 5th Pay Commission, with a view to avoid stagnation, One Time Bound Promotion/Biennial Cadre Review Scheme was in operation, according to which two promotions were Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT given on completion of 16 and 26 years of service. After the acceptance of 5th Pay Commission, Central Government introduced Assured Career Progression Scheme (ACPS) on 19.08.1999 and according to the Scheme, two financial upgradations are available to the employees belonging to GroupB, C and D on completion of their 12/24 years of service. Thereafter on acceptance of 6th Pay Commission, Modified Assured Career Progression Scheme (MACPS) was introduced for the Railways employees on 10.06.2009 and as per this scheme, Railway employee is given the benefit of higher grade pay on completion of 10, 20 and 30 years of regular service. He submits that the petitioner was given first promotion as Driver GradeIII on 19.08.1991 and thereafter he has completed 30 years of service on 15.02.2011 and therefore under the MACPS, he was granted the benefit of third MACPS. He submits that on the premise that the petitioner has not been given any promotion after year 1991, the respondent Railways had correctly given the benefit of second and third MACPS by an order dated 15.11.2011 and necessary pay fixation order was also passed on 02.12.2011, therefore, the notice dated 15.10.2013 virtually in the month in which the petitioner was to retire and after giving this show cause notice, taking a decision on 23.10.2013 shows great haste on the part of Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT the Department and in such haste, the respondents were not able to appreciate that the earlier decision of the Department to grant two ACPS was correct.
5. He has further submitted that the recovery ordered under the impugned order is also not justified and is against the principles laid down by the Apex Court in the judgment of State of Punjab Versus Rafiq Masih reported in 2015 (4) SCC
334.
6. As against this, learned Advocate for the respondents relying upon the affidavit in reply filed on behalf of respondent no.2 submits that the petitioner had availed one regular promotion on the post of Driver GradeIII on 19.08.1991 and therefore he is entitled to receive only two financial upgradations under the MACPS and therefore, the third MACPS granted to the petitioner was considered to be an erroneous action on the part of the Department and therefore withdrawal of such third MACPS is in consonance with the scheme and object of the MACPS.
7. Learned Advocate for respondents submit that the petitioner was appointed on 02.05.1985 as Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT regular Khalasi. On 19.08.1991, the petitioner was promoted to the post of Driver GradeIII. The petitioner was promoted as Driver GradeII with effect from 25.08.1998 on adhoc basis but in the pay scale of Rs.4000/ to Rs.6000/. It is submitted that the third financial upgradation granted by an order dated 31.01.2011 with effect from 02.05.2011 was granted through an over sight, considering his promotion to be a regular promotion and not adhoc promotion. This error came to the notice at the time of processing the retirement benefits and therefore, show cause notice was issued on 15.10.2013 and after giving an opportunity of show cause, the decision of withdrawing the third MACPS was taken on 23.10.2013.
8. Having considered the rival submissions and the from the facts narrated herein above, it appears that the petitioner was appointed in the year 1981 in the Grade Pay of Rs.1800/ and as per the MACPS applicable he would have got first financial upgradation in the Grade Pay of Rs.1900/ in the year 1991 but as the petitioner was promoted on 19.08.1991 on the post of Driver GradeIII having Grade Pay of Rs.1900/, the second financial upgradation would be due in the year 2001 and having Grade Pay of Rs.2000/, however, the petitioner was promoted on the post Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT of Driver GradeII on adhoc basis having Grade Pay of Rs.2400/ which was in the year 1998. For the correct appreciation and application of the benefits under the MACPS, it would be necessary to reproduce herein below the relevant Clauses of the MACPS.
"Clause 4; benefit of pay fixation available at the time of financial upgradation under the Scheme. Therefore, the pay shall be raised by 3% of the total pay in the Pay Band and the Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay as granted under MACPS. However, at the time of actual promotion if it happens to be in a post carrying higher Grade Pay than what is available under MACPS, no pay fixation would be available and only difference of Grade Pay would be made available. To illustrate, in case a Railway Servant joins as a direct Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT recruit in the Grade Pay of Rs.1900 in PB1 an he gets no promotion till completion of ten years of service, he will be granted financial upgradation under MACPS in the next higher Grade Pay of Rs.2000 and his pay will be fixed by granting him one increment plus the difference of Grade Pay (i.e. Rs.100).
After availing financial upgradation under MACPS,if the Railway servant gets his regular promotion in the hierarchy of his cadre, which is to the Grade Pay of Rs.2400, on regular promotion, he will only be granted the difference of Grade Pay between Rs.2000 and Rs.2400. No additional increment will be granted at this stage."
"Clause 9; 'Regular Service' for the purpose of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment Page 10 of 18 HC-NIC Page 10 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT basis or on absorption/re employment basis. Service rendered on adhoc/contract basis before regular appointment on preappointment training shall not be taken into reckoning. However, past continuous regular service in another Government/Department in a post carrying same Grade Pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purpose of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
"Clause 28;
A.(i) If a Railway servant (LDC) in PB1 in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in the Grade Pay of Rs.2400 on Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the MACPS in PB1 in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get promotion thereafter, then he would get 3rd financial upgradation in PB2 in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10).
(iii) However, if he gets 2nd promotion after 5 years of further service in PB2 in the Grade Pay of Rs.4200 (Assistant Grade/Grade 'C') i.e. on completion of 23 years (8+10+5 years) then he would get 3rd financial upgradation after completion of 30 years i.e. 10 years after the 2nd ACP in PB2 in the Grade Pay of Rs.4600. In Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT the above scenario, the pay shall be raised by 3% of the total pay in the Pay Band and Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay or in the higher Grade Pay. Only the difference of Grade Pay would be admissible at the time of promotions.
(B) If a Railway servant (LDC) in PB1 in the Grade Pay of Rs.1900 in granted 1st financial upgradation under the MACPS on the completion of 10 years of service in PB1 in the Grade Pay of Rs.2000 and 5 years later he gets 1st regular promotion (UDC) in PB1 in the Grade Pay of Rs.2400, the 2nd financial upgradation under MACPS (in the next Grade Pay w.r.t. Grade Pay held by Railway servant) will be Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT granted on completion of 20 years of service in PB1 in the Grade Pay of Rs.2800. On completion of 30 years of service, he will get 3rd ACP in the Grade Pay of Rs.4200.
However, if two promotions are earned before completion of 20 years, only 3rd financial upgradation would be admissible on completion of 10 years of service on Grade Pay from the date of 2nd promotion or at the 30th year of service, whichever is earlier.
(C) If a Railway servant has been granted either two regular promotions or 2nd financial upgradation under the ACP Scheme of October, 1999 after completion of 24 years of regular service then only 3rd financial upgradation would be admissible to him under the MACPS on completion of 30 years of service provided that he has not earned third promotion in the hierarchy.
Page 14 of 18HC-NIC Page 14 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT As the petitioner was given adhoc promotion in 1998 and was not regularized, the Department is justified in holding such adhoc promotion equivalent to the first financial upgradation under the MACPS. Therefore, as per the scheme, after having worked on the financially upgraded position for 10 years, he is entitled to 2nd MACPS, which will be in the year 2008, whereas the 3rd MACPS will be available only in the year 2018. In the meanwhile, as the petitioner retired in 2013, there was no occasion to the petitioner to entitle to 3rd MACPS.
9. Considering the aforesaid, the Tribunal has correctly appreciated the facts and concluded that as the petitioner was promoted on 28.08.1998 as Driver GradeII which was purely on adhoc basis which cannot be construed as regular promotion and still he has retired from the post of Driver GradeII. The benefit of third MACPS is not admissible.
10. Insofar as the recovery ordered by the impugned order which was maintained by the Tribunal on the ground that the petitioner had retired prior to the pronouncement of the judgment. In the case of Rafiq Masih (supra), this Court is of the view that the Tribunal has Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT fallen into error simply on the ground of prospectivity of the application of the judgment. The principle as laid down in the judgment of Rafiq Masih (supra) would clearly apply even to the facts of this case and hence when the Apex Court in paragraph 18 has held 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:
(i) Recovery from the employees belonging to ClassIII and ClassIV service (or GroupC and GroupD service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT 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) Recover 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."
And when the case has come up before this Court for the adjudication, there is no hesitation in applying the law as laid down by the Apex Court and quash the impugned order dated Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Dec 17 00:57:25 IST 2016 C/SCA/15720/2015 CAV JUDGMENT 23.10.2013 insofar as effecting of the recovery is concerned.
11. With the aforesaid, the petition is allowed to the limited extent of quashing of the recovery ordered under order dated 23.10.2013 whereas the remaining part of the order dated 23.10.2013 and the judgment of the CAT in OA No.344 of 2015 and in Review Application No.40 of 2015 are maintained. Rule made absolute to the aforesaid extent and in the facts of this case. No order as to costs.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) FARHAN Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Dec 17 00:57:25 IST 2016