Central Administrative Tribunal - Delhi
Shri Ram Raj Sethi vs New Delhi Municipal Council on 23 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. 349/2009 New Delhi this the 23rd day of March, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Shri Ram Raj Sethi, S/o late Shri Des Raj Sethi, R/o 9/15-A, Double Storey, Vijay Nagar, Delhi-110009. Applicant. (By Advocate Shri Vivek S. Atri) Versus New Delhi Municipal Council, Palika Kendra, Sansad Marg, New Delhi. Respondent. (By Advocate Mrs. Jyoti Singh) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (j).
Writ Petition No. 12805/2005 had been transferred over to this Tribunal, in view of the order of High Court dated 06.02.2009. Since pleadings are complete, the matter is being disposed of. We had occasion to hear Mr. Vivek S. Atri, counsel appearing for the applicant and Mrs. Jyoti Singh, counsel representing the respondents.
2. Although voluminous materials have been placed on record, the issue is simple, and, therefore, advertence to most of the materials hardly requires. The challenge is against Annexure `W order dated 11.11.2003. The applicant by the said office order had been informed that consequent upon withdrawal of Time Bound Promotional Scale granted to him from 18.05.1994, his pay is being refixed effective from 01.05.1994. In the process, office order issued dated 20.12.1999, had been withdrawn.
3. As a result of the above order, there was reduction brought to the pay of the applicant. He had also been constrained to refund excess amounts of salary drawn. Request for review of the orders had been made by the applicant, but the steps had not been retraced. The applicant contends that the pay fixation granted effective from 1994 could not have been unsettled. This has resulted in the present proceedings.
4. The two issues, which are necessary to be looked into, are as to whether there was justification or right resting with respondents for recovery of the amounts already paid towards salary and appropriated, and whether there was sufficient notice given to the applicant before the impugned orders had come to adversely affect him. Of course, the applicant has put up a further claim that he had a right for fixation as carried out in the year 1999 effective from 18.05.1994. The sustainability of the above also needs to be examined.
5. With reference to the first submission, we do not think that there is hurdle for an employer to withdraw an order erroneously passed, especially in the matter of fixation of pay when mistake is detected. If excess payments have been made over to the civil servant concerned, it should always be possible to recover it. The passage of time does not interfere with such rights. Nor will it be possible for a person to contend that such payments were made to him without his asking or making any misrepresentation. The right to recovery is independent, authorized by the statute, and indefeasible. The point as above has been conclusively decided as against the contentions of the applicant by a larger Bench decision of this Tribunal (Calcutta Bench) in OA 1227/2005 and connected cases, rendered on 15.01.2009.
6. We may also notice that in the fixation order of 1999 at Annexure `N, it had been clearly indicated that the individual concerned will have to refund to the Council any amounts if subsequent audit/check reveals that anything paid was in excess of his dues. Thus, powers were expressly reserved even at that time.
7. The second aspect highlighted, namely, that there is no prior notice before a refixation also is not tenable at least in the present case, since the applicant has referred to the circumstance that it was a general issue and the Trade Union in the Establishment had taken up the matter with the employer, and deliberations had taken place. The issue is of general application. On the showing of the applicant, it is seen that there were discussions, before coming up with the offending orders. In such circumstances, we do not think the proceedings are required to be set-aside on the principle that natural justice had not been followed while coming with the impugned orders.
8. Now, we may go to the merits of the contentions. The applicant claims that he had commenced employment as a Latheman from 18.05.1976. He was appointed as a Turner on 13.07.1981 and after passing a trade test was promoted to the category of Machineman by the Muncipal Council on 21.05.1991. He obtained the promotion as a Foreman on 01.04.1998 after a trade test. Annexure `L office order had come to be issued on 06.04.1999 whereby it was generally informed that Time Bound Promotional Scale was proposed to be extended on patterns which were generally laid down by the order. All employees became entitled for the first Time Bound Promotional Scale on completion of ten years regular service. The second Time Bound Promotional Scales were to be given on completion of further 8 years service (18 years of total service). The scales so admissible were the next available higher scale in the channel of promotion. On an erroneous assumption that the benefits as above will be applicable to all persons concerned, irrespective of a circumstance whether or not they had received promotions in the meanwhile, fixation benefits had been given in the year 1999, and the applicant became a beneficiary. However, later verification unearthed that such benefits may not be available to the applicant as he had, in fact, got two promotions and the first Time Bound Promotional Scale would be applicable to him only ten years after the date of his last promotion of 1998. This was the underlying reason for issuing of the impugned order.
9. With reference to certain resolutions passed and clarifications obtained by the Council, the applicant has attempted to project a case that notwithstanding the above situation, the basic intention was to give Time Bound Promotion, without reference to the actual promotions gained. He had relied on certain information received by him under the Right to Information Act and the like. However, we are not impressed with the submission as above as the basic concept of conferment of Time Bound Promotion cannot be overlooked. It is to ensure that as far as possible, stagnation of personnel is minimized by ensuring that after a specified period even if promotion does not come, staff become entitled to get the pay scale of the promotional post.
10. By an interpretative process, we have to accept, the defence raised by the respondents in this regard, although for technical reasons, the applicant may be able to create doubts as regards the actual position that might be available. A strict interpretation as is required to be adopted while dealing with statutory provisions need not be there while construing Government orders or Memoranda and the Court should not be oblivious to the general nature and scope of such orders and the mischief it attempted to settle. To accept the case of the applicant will be to shut our eyes to realities. It was never intended to confer grades on persons notwithstanding that in the meanwhile they had been getting promotions albeit the circumstances that in the present case, promotions have been received by the applicant recognizing his merit as he had passed trade tests.
11. When the council found that the grant of a revised scale from 18.05.1994, was inadmissible, they had a right as well as duty to rectify the error. As far as the case of the applicant is concerned, since he had obtained promotion as Machineman on 21.05.1991, he would have perhaps become entitled to the first time Bound Promotional Scale from 21.05.2001. However, since, in the meanwhile, as he had passed the trade test entitling him to be promoted as Foreman, and shortly thereafter had been actually promoted on 01.04.1998, there was no additional entitlement, nor he could have expected for further Time Bound Promotion. Only on completion of ten years from the above said date, he becomes entitled to such a benefit. In any case, the benefit given from the year 1994, could not have been possible to be sustained. This being the situation, we do not think that the respondents have erred in considering the issue. The order does not suffer from any irregularity. What has been carried out is only a rectification measure well within the rights of the Council.
12. We are told that there were other individuals in the Municipal Council who had such case history, but none of them had chosen to experiment. This also appears to be a pointer. The application is dismissed. However, we make no order as to costs.
(N.D. Dayal) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD