Allahabad High Court
Union Of India & Others vs Shyam Sunder Sharma on 14 September, 2016
Bench: Sudhir Agarwal, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT - A No. - 18174 of 2002
Petitioner :- Union Of India & Others
Respondent :- Shyam Sunder Sharma
Counsel for Petitioner :- Prashant Mathur,Umesh Narain Sharma
Counsel for Respondent :- S.C.,Ali Hasan,R K Nigam,R.K. Singh
Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Prashant Mathur, learned counsel for the petitioners and Sri Ali Hasan, Advocate for respondent-Shyam Sunder Sharma.
2. This writ petition under Article 226 of the Constitution of India has come up against judgment and order dated 13.10.1998 passed by Central Administrative Tribunal, Allahabad (hereinafter referred to as the "Tribunal") in Original Application No. 1843 of 1998, whereby referring to judgment of Supreme Court in Ram Kumar and others Vs. Union of India and others, 1987 SCALE (2) 1192 Tribunal has directed petitioners to protect pay of respondent-Shyam Sunder Sharma in Group-C which he was getting before his absorption and regularization in Group-D.
3. Sri Prashant Mathur, learned counsel for petitioners, has objected to this part of judgment whereby it has directed petitioners to protect pay of respondent-Shyam Sunder Sharma in pay scale of Rs. 950-1500 which was applicable to Group-C though respondent-Shyam Sunder Sharma was screened and regularized in Group-D. It is submitted that judgment in Ram Kumar (supra) has no application to the facts this case and on the contrary in General Manager, Northern Railway and others Vs. Jageshwar and others (Civil Appeal No. 6413 of 2002), decided on 01.04.2009 Supreme Court has clearly said, when a casual employee is regularized in Group-D, mere fact that for some time he has worked on a post in Group-C, his pay cannot be protected in higher scale for the reason that in Railway, Group-C post are liable to be filled in only by promotion. Therein Tribunal has followed Supreme Court's judgment in Union of India Vs. Motilal, 1996(7) SCC 481 but Court in its judgment dated 01.04.2009 in General Manager, Northern Railway and others Vs. Jageshwar (supra) said that judgment in Union of India Vs. Motilal (supra) has no application. In paras 3, 4 and 5 Court held:
"3. Motilal (supra) has no application. In that case, respondents were directly appointed as casual mates in Class III, though the post of made was an exclusive promotion post. They were regularized in a lower post. The Tribunal directed that they should be regularized as 'mates'.This Court held that respondents were not entitled to be regularized in Group III posts. But having regard to their long service of 22 to 25 years, this Court in exercise of powers under Article 142 left their regularization as mates undisturbed making it clear that the direction should not be treated as precedent.
4. This Court in Motilal case (supra) did not lay down any proposition that when an employee is absorbed in a different organization, his previous pay should be protected. Absorption in Railways was not in pursuance of any legal right. To avoid hardship to the employees of the construction organization on humanitarian grounds, the Railways chose to consider the surplus labour of that organization for absorption after screening them. When being so screened and absorbed, an employee cannot counted that he should be absorbed in a post equivalent to a post he was holding in the previous organization nor could the Tribunal or High Court direct that his pay should be protected.
5. In view of the above, the appeal is allowed, the orders of the High Court and Tribunal are set aside and as a consequence the original application is dismissed."
(emphasis added)
4. When confronted, Sri Ali Hasan, learned counsel appearing for respondent, could not dispute this fact and also could not show anything from judgment in Ram Kumar (supra) that said judgment was applicable in the case in hand. In these facts and circumstances, direction of Tribunal to petitioners to protect pay of respondent in pay scale of Group-C till he gets promotion in Group-C cannot be sustained and to this extent impugned judgment dated 13.10.1998 is hereby set aside.
5. However, we may also providethat whatever amount already paid to respondent shall not be recovered by petitioners under this order but they will be at liberty for re-fixation of pay and other benefits which shall be applicable prospectively. We reiterate that excess amount, if any, already paid to respondent shall not be recovered for the reason that there is no fraud or misrepresentation on his part and it would be unjust now to allow petitioners to recover amount already paid after more than one and half decades.
6. Subject to aforesaid clarification and direction the writ petition is partly allowed.
7. No costs.
Order Date :- 14.09.2016
AK
