Central Administrative Tribunal - Chandigarh
Amar Nath vs Nehru Yuva Kendra Sangathan, M/O Youth ... on 13 August, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(CIRCUIT BENCH AT SHIMLA)
Orders pronounced on: 13.08.2019
(Orders reserved on:18.07.2019)
CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HON'BLE MR.A K. BISHNOI, MEMBER (A)
(I) O.A.NO.063/01224/2018
1. Devi Singh Thakur S/o Shri Gulab Ram, aged 59 years, working as
MTS, O/o Nehru Yuva Kendra, Sangathan Shimla-171001.
2. Rakesh Chand Sharma S/o Shri Karam Chand, aged 56 years, working
MTS, O/o Nehru Yuva Kendra, Sangathan Una (H.P-1`74303.
3. Dharam Singh S/o late Shri Ranchu Ram, aged 63 years, r/o Village,
Dhyan, P.O. Maseran, Teh. Sarkagha, District Mandi, H.P) (Retired on
21.12.2015)-171304.
4. Mohd. Maqbool Khan S/o Mohd. Ajab Khan, aged 52 years, working as
MTS in the office of DYC, NYKS, Srinagar (J&K)-190001.
5. Sh. Purshottam Lal S/o Sh. Bakshi Ram, aged 57 years, working as
MTS in the office of DYC, NYKS, Chandigarh-160012.
... Applicants
Versus
1. Union of India through Secretary, Ministry of Youth Affairs and Sports,
Shastri Bhawan, New Delhi-110001.
2. Director General, Nehru Yuva Kendra Sangathan, East Plaza, Indra
Gandhi Indoor Stadium, New Delhi-110002.
3. Zonal Director, Nehru Youth Kendra Sangathan, Shimla-171001.
4. District Youth Coordinator, Nehru Yuva Kendra, Una-174303, Una.
... Respondents
(II) O.A.NO.063/01225/2018
1. Amar Nath son of Shri Bansi Ram, aged 59 years, working as MTS,
O/o Deputy Youth Coordinator, Nehru Yuva Kendra, Hamirpur (H.P-
177001.
2. Kishore Chand son of Shri Dalip Singh, aged 50 years, working as
MTS, O/o Deputy Youth Coordinator, Nehru Yuva Kendra, Hamirpur
(H.P)-177001.
3. Parma Nand son of Shri Nidhi Singh, aged 56 years, working as
MTS, O/o Deputy Youth coordinator, Nehru Yuva Kendra, Mandi
(H.P)-171304.
4. Surinder Singh son of Shri Sukhdev Singh, aged 55 years, working
as MTS, O/o Deputy Youth Coordinator, Nehru Yuva Kendra, Nahan
(H.P)-173001.
... Applicants
Versus
1. Union of India through Secretary, Ministry of Youth Affairs and
Sports, Shastri Bhawan, New Delhi-110001.
2. Director General, Nehru Yuva Kendra Sangathan, East Plaza, Indra
Gandhi Indoor Stadium, New Delhi-110002.
3. State Director, Nehru Youth Kendra Sangathan, Shimla-171001.
4. District Youth Coordinator, Nehru Yuva Kendra, Hamirpur.
... Respondents
Present: MR. D.R. SHARMA, ADVOCATE, FOR THE APPLICANTS.
MR. ANSHUL BANSAL, ADVOCATE, FOR RESPONDENTS.
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ORDER
(BY HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J):
The facts and the point of law involved in both these Original Applications (O.As) are common and identical and as such these have been taken for disposal by a common order and likewise is also requested by the learned counsel for the parties. The facts are being taken from O.A.No.063/01224/2018 (DEVI SINGH THAKUR ETC. VS. UNION OF INDIA & OTHERS).
2. The applicants have invoked the jurisdiction of this Tribunal under section 19 of the Administrative Tribunals Act, 1985, for quashing the order dated 7.9.2018 (Annexure A-1), whereby their claim for grant of 1st financial up-gradation under Assured Career Progression (ACP) Scheme, on completion of 12 years of service in the pay scale of Rs.3050-4590 (revised to Rs.5200-6000 (Rs.5200-20,200+GP Rs.2400) and 2nd financial up- gradation in pay scale of Rs.4000-6000 (revised to Rs.5200-20,200+GP Rs.2800) , on completion of 24 years of service has been rejected and against DoPT OM dated 1.6.2001 (Annexure A-14) and 26.10.2009 (Annexure A-15) vide which such benefit has been denied in violation of para 7 of Basic Scheme dated 9.8.1999 etc.
3. The facts are not largely in dispute. The applicants, who are matriculates, were employed as Daily wage employees and regularized as Group 'D' employees on various dates during 1979 to 1981. It is claimed that being Matriculates and Group D employees, were eligible for promotion as Lower Division Clerk (LDC), on completion of 8 years of service. The Government of India issued ACP Scheme for grant of two financial up gradations on completion of 12 and 14 years of service, if one has not earned any promotion. This Scheme was made applicable in respondent NYKS w.e.f. 16.5.2001. The applicants were granted two financial up 3 gradations under MACP, during 2003 to 2005 on completion of 12/24 years of service, as applicable to individual applicants, in the pay scale of Rs.3050- 4590 (which was to be revised to Rs.5200-6000 (Rs.5200-20,200+GP Rs.2400) and 2nd financial up-gradation in pay scale of Rs.4000-6000 ( which was to be revised to Rs.5200-20,200+GP Rs.2800.
4. However, The NYKS issued clarification dated 26.2.2009 (Annexure A-8) indicating that Group D employees were sanctioned 1st and 2nd financial up-gradation in pays scales of Rs.3050-4590 and 4000-6000, which is one scale higher than, what exactly is available to them. They were in fact entitled to these 1st and 2nd ACP in the pay scale of Rs.2750-4400 and Rs.3050-4590, as revised to PB-1, Rs.5200-20200 + GP Rs.1800 and PB-1, Rs.5200-20200+GP Rs.1900 respectively. The applicants challenged this order in O.A. No. 244-HP-2009 and for a declaration that they were rightly fixed in earlier pay scales. This was allowed vide order dated 19.7.2010 directing the respondents to refund the amount, if any, recovered from the applicants and fix the pay of the applicants in view of observations made therein, which was that the ACP benefit is to be granted in next higher/promotional grade of the post. This order was challenged in CWP No.8339 of 2010 (UNION OF INDIA & OTHERS VS. AMAR NATH & OTHERS) and CWP No. 8340 of 2010 (UNION OF INDIA & OTHERS VS. DEVI SINGH THAKUR & OTHERS) which were allowed on 5.9.2017 (Annexure A-10), giving liberty to the respondents to initiate fresh process, as was done vide letter dated 26.2.2009, by complying with principles of natural justice.
5. The respondents then issued show cause notice to which applicants filed reply explaining that they were rightly given pay scales of promotional post in hierarchy while granting ACP benefits, which was not accepted by respondents and ultimately, respondents passed order dated 7.9.2018, rejecting the claiming of the applicants, explaining that applicants were not 4 only eligible for promotion as LDC but as Driver as well and Accounts clerk- cum-Typist etc. It is pleaded by applicants that order dated 7.9.2018 is contrary to para 7 of ACP Scheme dated 9.8.1999, which provides that financial up-gradation under the Scheme shall be given to the next higher grade in accordance with existing hierarchy in cadre / category of posts, without creating new posts for the purpose. Reliance is also placed on this point on Full Bench decision of C.A.T. Principal Bench, New Delhi, in PARKASH CHAND ETC. VS. UOI ETC. (2005) 2 ATJ CAT 617. Hence, the O.A.
6. The respondents have filed a reply. They submit that grant of ACP in higher pay scales given to applicants was contrary to instructions issued by DoPT vide letter dated 1.6.2001 (Annexure R-1), and as such it was rightly withdrawn. It was mentioned in instructions that employees of autonomous bodies/NYKS cannot get higher pay scales than their counter parts in Administrative Ministry/Other Ministries. Thus, the respondents corrected the administrative error and revised the scales of 1 st and 2nd ACP. The OM dated 1.6.2001 clearly provides that such benefit, in terms of OM dated 9.8.1999, is to be allowed to Group D civilian employees of Central Government in the revised hierarchical grades/pay-scales after taking into account the revised elongated scale S-2A i.e. pay scale of Rs.2610-4000 as 1st and Rs.2750-4400 (S-4). The 2nd up-gradation shall be of Rs.2750-4400 (S-4) and for Matriculate (eligible for promotion to the post of LDC) Rs.3050-4590 (S-5). The Hon'ble High Court had given liberty to respondents to proceed in the matter by following principles of natural justice and as such impugned orders have been passed which are as per rules and law.
7. The learned counsel for the applicants has argued that basis of passing of impugned order is clarification dated 1.6.2001, which is contrary to para 7 of the ACP Scheme and as such action of respondents be declared 5 as illegal and arbitrary. He submits that applicants were rightly given pay scales of promotional posts in hierarchy and such claims have been allowed in past by various Benches of the Tribunal. The vested rights of the applicants cannot be taken away by the respondents. In any case, the impugned letters/orders cannot be applied retrospectively. This is resisted by the learned counsel for respondents on the ground that the applicants cannot be granted a benefit higher than their counter parts working in Administrative Departments.
8. We have considered the submissions made by learned counsel for the parties and gone through the material on record with their able assistance.
9. The learned counsel for the applicants argued that the instructions dated 26.2.2009, contains a decision, which cannot be applied retrospectively to the cases already settled in the past and the case of the applicants stands settled and cannot be opened now as it would amount to taking away their vested rights. A perusal of the instructions would disclose that it is in the nature of a clarification only, which would apparently take effect from the date of its original decision. In fact, this letter is in the nature of correcting an error which had taken place in the past while granting higher pay scales to the applicants. Apparently, even the colleagues of the applicants working in the Administrative offices have not been granted this higher pay scales, as was given to the applicants. Realizing that it was an error, the corrective action was taken, in consonance with principles of natural justice. Inadvertently, the applicants were allowed higher pay scales under ACP Scheme, which was subsequently rectified by respondents by passing impugned orders. As per settled law, if there is mistake, authorities are allowed to rectify it as and when the same comes to their notice. This is so held in the case of JAGDISH PRAJAPAT VS. THE STATE OF RAJASTHAN AND ORS. 1998 (2) ATJ 286 and in U.O.I. & ORS. VS. 6 NARENDAR SINGH 2008 (2) SCC 756. One cannot claim that if something has been granted wrongly or due to an administrative error,
10. However, in so far as recovery is concerned, it is not in dispute that payment was made by authorities by interpretation of the policy decision in a particular manner. There was no concealment of fact by the applicants nor did they mislead the authorities, in any manner. In such like cases, the applicants cannot be punished with recoveries sought to be made from them. This issue is no longer res-integra and stands settled. The Hon'ble Apex Court in a case of SYED ABDUL QADIR & ORS. VS. STATE OF BIHAR & ORS, (2009) 3 SCC 475, has settled that in such like cases, the recovery is not permissible. It was held, inter-alia, as under:-
"27. 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. 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 (OA.NO. 060/00688/2018 & Anr Kamal Sharma etc. VS. UOI ETC.) 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.
28. Undoubtedly, the excess amount that has been paid to the appellants
- teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made."7
11. It is, thus, clear that the Hon'ble Apex Court has settled the issue by holding that if excess payment is made by the employer by applying a wrong principle or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, then recovery is not permissible. It is settled that 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. In this case, the benefit was allowed on the basis of interpretation of ACP Policy in a particular manner that benefit is to be granted on the basis of pay scale of promotional post in hierarchy, which was found to be erroneous later on. Thus, recovery cannot be allowed. Not only that, recovery is not permissible in view of principles laid down by Hon'ble Apex Court judgment in STATE OF PUNJAB VS. RAFIQ MASIH (WHITE WASHER), (2014) 8 SCC 883 also.
12. In view of the above discussion, while upholding the legality of the impugned orders, we refrain the respondents from making any recovery of payment made to the applicants and if any recovery has been made, the same may be refunded to them. The parties are, however, left to bear their own costs.
(A.K. BISHNOI) (SANJEEV KAUSHIK) MEMBER (A) MEMBER (J) PLACE: CHANDIGARH DATED: 13.08.2019 HC*