The Union Of India, Thr. The ... vs Pazhayur Karthikeyan S/O (Late) ...
2017 Latest Caselaw 4977 Bom

WP  5234/13                                              1                              Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                        WRIT PETITION No. 5234/2013
1.    The Union of India,
      Through the Secretary,
      Ministry of Commerce and Industry,
      Department of Industrial Policy
      and Promotion, Udyog Bhawan,
      New Delhi-11.
2.    The Controller General of Patents,
      Designs, Trademarks and 
      Geographical Indications,
      Baudhik Sampada Bhawan, S.M. Road,
      Antop Hill, Mumbai-37.
3.    The Senior Documentation Officer
      and Head of Office,
      Patent Information System, 
      Plot No.3, Hislop College Road,
      Civil Lines, Nagpur-440 001.                                               PETITIONERS

                                       .....VERSUS.....
1.    Pazhayur Kartikeyan, S/o (Late)
      M. Balakrishnan Unni Nair,
      Aged about 60 years, Occu: Service,
      R/o Qtr. No.188, Type-III (New)
      C.P.W.D. Quarters, Seminary Hills,
      Nagpur-440 006.
2.    Central Administrative Tribunal,
      Bombay Bench, Mumbai,
      Camp at Nagpur.                                                                  RESPONDENTS

                    Shri S.A. Chaudhari, counsel for the petitioners.
                 Shri R.K. Shrivastava, counsel for the respondent no.1.


                                         CORAM :SMT.VASANTI  A  NAIK AND
                                                        A.D. UPADHYE, JJ.                  

DATE : 25 TH JULY, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

By this writ petition, the petitioners challenge the order of the

Central Administrative Tribunal, dated 08.12.2012 allowing an original

application filed by the respondent no.1 after holding that the order of

WP 5234/13 2 Judgment

the Controller General of Patents, Design and Trademark, dated

30.07.2008 withdrawing the order granting the benefit of first Assured

Career Progression Scheme, 1999 to the respondent no.1 and seeking

recovery of the excess payment.

2. The respondent no.1 was appointed as a Stenographer by the

petitioners on 14.01.1977. At the relevant time, the pay-scale of a

Stenographer was Rs.300-560, in the office of the petitioners. The pay-

scale of the respondent no.1 was upgraded to Rs.425-700 in pursuance of

an order of the Controller General of Patents, dated 19.01.1990 with

effect from 23.03.1985. The respondent no.1 was granted the benefit of

the first Assured Career Progression scheme vide order dated 19.06.2003

with effect from 09.08.1999 after the scheme was introduced. On

completion of twenty four years of service, the respondent o.1 was

granted the benefit of the second Assured Career Progression scheme in

January-2001. After the grant of the benefit of the first and second

Assured Career Progression scheme to the respondent no.1, by the order

of the Controller General of Patents, dated 30.07.2008, the benefit of the

first Assured Career Progression scheme granted to the respondent no.1

was withdrawn and the recovery of excess payment made to the

respondent no.1 was sought. Being aggrieved by the order dated

30.07.2008, the respondent no.1 filed the original application before the

Central Administrative Tribunal. The Central Administrative Tribunal, by

WP 5234/13 3 Judgment

the order dated 06.12.2012, allowed the original application filed by the

respondent no.1. The said order is challenged by the petitioners in the

instant petition.

3. Shri Chaudhari, the learned counsel for the petitioners,

submitted that the Tribunal was not justified in allowing the original

application filed by the respondent no.1 as the respondent no.1 was not

entitled to the benefit of the first Assured Career Progression scheme in

terms of the order dated 19.06.2003. It is submitted that by an order

dated 19.01.1990, the pay of the respondent no.1 was fixed in the higher

pay-scale as per Notification No.F.15(1)-IC/86. It is submitted that in

respect of a Stenographer, viz. Ms Sharda, whose case was similar to the

respondent no.1, an opinion was sought from the Government of India,

Ministry of Commerce and Industries, whether the revision of pay-scale

on the creation of the post in the Stenographer's cadre as per DOPT OM

62/1989 would result in the promotion or upgradation of the

Stenographer. It was prima-facie opined by the Government of India that

when the post of a Stenographer is upgraded on the basis of higher

entitlement of the officer with whom the Stenographer is attached, it

should be treated as promotion. It is submitted that from the opinion

expressed by the Government of India, it could be said that the

respondent no.1 was not upgraded by the order dated 19.01.1990 but

was promoted. It is submitted that in the circumstances of the case, the

WP 5234/13 4 Judgment

Tribunal was not justified in setting aside the order of the Controller

General of Patents, dated 30.07.2008 withdrawing the benefit of the first

Assured Career Progression Scheme and seeking the recovery of the

excess payment.

4. Shri Shrivastava, the learned counsel for the respondent no.1,

supported the order of the Tribunal. It is submitted that the Tribunal has

rightly relied on the office order issued by the Controller General of

Patents, dated 29.04.2003 partially modifying the order dated 19.01.1990

by substituting the words "upgraded to the pre-revised pay-scale" for the

words "is allotted the pre-revised pay-scale". It is submitted that it is

apparent from the documents placed before the Tribunal that by the order

dated 19.01.1990, the respondent no.1 was not promoted in the higher

pay-scale but upgradation was granted to him in pursuance of the

concerned D.O.P.T. It is submitted that the benefit of the first and the

second Assured Career Progression schemes was rightly granted to the

respondent no.1 and it was wrongful on the part of the petitioners to

withdraw the benefit of the first Assured Career Progression scheme and

seek the recovery of the amount paid to the respondent no.1 in pursuance

of the order dated 19.01.1990, when the respondent no.1 was on the

verge of his retirement. It is submitted that the Tribunal rightly came to

the conclusion that the respondent no.1 was entitled to the benefit of the

WP 5234/13 5 Judgment

first and the second Assured Career Progression schemes, as was rightly

granted to the respondent no.1 in the years 1999 and 2001.

5. On hearing the learned counsel for the parties and on a

perusal of the impugned order, it appears that the Tribunal was justified

in setting aside the order of the Controller General of Patents, dated

30.07.2008. The pay-scale of the respondent no.1 was upgraded to

Rs.425-700 by the order dated 19.01.1990. The question whether the

respondent no.1 was granted the benefit of promotion or upgradation was

sought to be clarified from the Controller General of Patents. In the case

of the respondent no.1 himself, an office order was passed by the

Controller General of Patents on 29.04.2003 stating therein that in the

order dated 19.01.1990, the words "allotted the pre-revised pay-scale"

should be substituted or read as "upgraded to the pre-revised pay-scale".

On a reading of the D.P.T.O.M., dated 06.02.1989, the pay-scale of the

respondent no.1 was revised by the order dated 19.01.1990. As per the

office order dated 29.04.2003, it was made clear that the pay-scale of the

respondent no.1 was upgraded to the pre-revised pay-scale as per the

order of the D.O.P.T. On a perusal of the office order dated 29.04.2003,

it is clear that the pay-scale of the respondent no.1 was upgraded and the

respondent was not granted any promotional benefits. It is not pointed

out on behalf of the petitioners as to how the opinion of the Government

of India, Ministry of Commerce and Industries, dated 22.12.2006 in the

WP 5234/13 6 Judgment

case of a Stenographer, viz. Ms Sharda, would be applicable to the case of

the respondent no.1. Nothing was placed by the petitioners before the

Tribunal to point out that the case of Ms Sharda and the respondent no.1

was similar. In the circumstances of the case, the Tribunal has rightly

held that the Controller General of Patents could not have withdrawn the

benefit of the first Assured Career Progression scheme and sought the

recovery of the excess amount from the respondent no.1 by the order

dated 30.07.2008.

Since the order of the Tribunal is just and proper, the writ

petition is dismissed with no order as to costs. Rule stands discharged.

              JUDGE                                        JUDGE
APTE