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4] Ms Neeta Masurkar, learned counsel for the respondent - UOI, submits that the challenge to a show cause notice was entirely premature and the O.A should have been dismissed on the said ground alone. In any case, she submits that the seniority was proposed to be revised in D.S.Sherla page 2 of 7 j-wp-7138-04 terms of binding decision of the Hon'ble Supreme Court in case of M. Bhaskar (supra). She submits that the petitioners were beneficiaries of over payment and the respondents were entitled to recover such over payments as held by the CAT. She, therefore, urges for dismissal of this petition. 5] The rival contentions now fall for our determination. 6] The applicants/petitioners were recruited as Assistant Station Masters (ASI). Thereafter, they applied for 10% vacancies available for departmental candidates to the post of Traffic Apprentices. They passed the written test and interview and also completed the training prescribed for this purpose. They were ultimately appointed as Traffic Assistants with effect from 27.7.1984. They contend that the seniority list was correctly prepared and there was no warrant to disturb the seniority list at the behest of some employees, who were never selected to be appointed as Traffic Assistants. They point out that Mumbai Division of Western Railway have correctly fixed the seniority but the Headquarter of the Western Railway have incorrectly disturbed the seniority position.

     D.S.Sherla                                           page 3 of 7
                                                         j-wp-7138-04



7]     The Railway Board issued circular dated 15.5.1987 on

the recruitment of Traffic and Commercial Apprentices. This circular was interpreted by the Hon'ble Supreme Court in case of M. Bhaskar (supra) . The relevant observations at paragraphs 7, 8 and 18 read as follows:

"7. From the aforesaid, it is clear the memorandum of 1987 was really not one of revision of pay of the Traffic/Commercial Apprentices, as has been understood by those Tribunals who have conceded the higher grade. Mrs. Sharda Devi's effort to satisfy us that the higher pay scale was a revision on the basis of what finds place in para 2(ii) of the 1987 memorandum is founded on misapprehension inasmuch the inclusion in that sub-para that "Traffic Apprentices absorbed in the cadre of Section Controllers in scale of Rs. 470-750/1400-2600 (RP) will be fixed at starting pay of Rs. 1600 pm on absorption", does not mean that these Section Controllers were given the pay Scale of Rs. 1600- 2600, as urged by the learned counsel. All that was conveyed by this statement was that the Section Controllers, even though getting the revised scale of Rs. 1400-2600, their starting pay would be Rs. 1600. This was so required, according to Shri Malhotra appearing for the appellant, because the Trained Apprentices could become eligible for the post of Section Controller only when having two years Yard's experience in the grade of Rs. 455-700. It is this pay scale which had become on revision Rs. 1400-2300 the unrevised pay scale of Section Controller was Rs.470-750, which on revision became Rs. 1400

-2600. So, what has been stated in para 2(ii) does not support the case of the respondent that the memorandum of 1987 really dealt with the revision of pay of all the Traffic/Commercial Apprentices.

8. We, therefore, hold that the Tribunal which allowed the benefit of pay scale of Rs. 1600-2660 to all the Traffic/Commercial Apprentices irrespective of D.S.Sherla page 4 of 7 j-wp-7138-04 the grade of the posts held by them, not only misunderstood the memorandum of 1987, but this conceived the provisions relating to the recruitment and promotion of these Apprentices as finding place in the Establishment Manual. Indeed, somehow or other they were oblivious of what has found place in the Manual in this regards.

8] The same view was reiterated by the Constitution Bench of the Hon'ble Supreme court in case of E.S.P. Rajaram and ors. Vs. Union of India and ors. - 2001 SCC (L&S) 352.

9] From the rulings in M.Bhaskar (supra) and E.S.P. Rajaram (supra), it does appear that Apprentices in case of Traffic/Commercial Apprentices means "direct recruits". In view of these rulings, we cannot say that proposal to revise the seniority list suffers from any legal infirmity. Similarly, D.S.Sherla page 5 of 7 j-wp-7138-04 since the CAT has merely followed the rulings in M.Bhaskar (supra) and E.S.P. Rajaram (supra), again, we cannot say that the view taken by the CAT on the issue of seniority is in excess of jurisdiction or otherwise warrants interference. 10] However, insofar as the issue of recovery is concerned, we agree with the contention of learned counsel for the petitioners that this is not a case of over payment or in any case, this is not a matter where the so called over payment is relatable to any fraud or misrepresentation on the part of the petitioners. Taking into consideration the posts held by the petitioners, we apply the principles laid down by the Hon'ble Supreme Court in case of State of Punjab and ors vs. Rafiq Masih (White Washer) and ors. - (2015) 4 SCC 334 and restrained the respondents from recovering any amounts already paid to the petitioners in pursuance of the seniority position prior to its revision. 11] Accordingly, whilst we do not interfere with the impugned judgment and order on the issue of seniority, we restrain the respondents from making recoveries in respect of alleged over payment made to the petitioners.