Delhi High Court
The Executive Engineer vs Shri Narayan on 2 February, 2007
Author: M Mudgal
Bench: M Mudgal, A Suresh
JUDGMENT
Mukul Mudgal, J.
1. Rule DB. With the consent of the learned Counsel for the Petitioner, the Writ Petition is taken up for final disposal.
2. This Writ Petition challenges the order dated 18th September, 2006 passed by the Central Administrative Tribunal, Principal Bench in OA No. 2882 of 2005. The Respondent who was the applicant before the CAT, Principal Bench, New Delhi was working as Assistant Plumber with PWD of Delhi Administration. The applicant/respondent after completion of 24 years of service had been granted a second financial upgradation in the pay scale of Rs. 4000-6000 by the orders issued in March, 2002, but the same was withdrawn by the order dated 14th December, 2005 passed by the Superintendent Engineer (Respondent No. 3 before CAT) and the pay scale was reduced to Rs. 2750-4400.
3. The case set up by the Respondent before the Tribunal was that similar benefits were given to Shri Ram Niwas whose case was decided by the Tribunal vide judgment dated 29th October, 2004 in OA No. 2130/2003. It is not disputed as alleged by the Respondent that the judgment in Shri Ram Niwas's case has become final. Other pleas raised by the Respondent were that the wages were reduced without giving an opportunity to the Respondent and no trade test of Plumber since 1979 had been held and he had been denied the benefit of ACP only on the ground that he had not passed the test of plumber and had passed the trade test only of Assistant Plumber. The Tribunal held as follows:
(a) As per the Office Memorandum dated 21.05.2001 the requirement of trade test has to be made before grant of financial upgradation and only the incumbents who are fully eligible for promotion under the recruitment rules but did not receive promotion within 12/24 years have become eligible for ACP.
(b) The respondent had passed trade test for Assistant Plumber but had not met the requirements of trade test for Plumber before grant of financial upgradation. The respondent therefore was required to qualify the trade test for grant of benefit of second financial upgradation, besides eligibility for promotion under the recruitment rules.
(c) The ACP benefit was accorded to the Respondent for no fraud and mis-representation on his behalf therefore the Petitioner's Department was not entitled to recover the amount paid to the Respondent after financial upgradation in the grade of 4000-6000 with effect from 11.03.2002.
4. The operative portion of the Tribunal's judgment reads as under:
10. In view of the above, we are of the considered opinion that no recovery shall be effected from the applicant of the amount paid to him as per the higher pay scale of Rs. 4000-6000 granted under ACP benefit, admittedly, by over sight of the respondents. It is ordered accordingly. The impugned order dated 14.12.2005 is set aside. The respondents are directed to consider the prayer for grant of benefit of second financial upgradation after subjecting the applicant to the required trade tests and if he qualifies and is otherwise eligible, extend the benefit of the same to him within a period of three months from the date of receipt of this order.
5. In our view, the Tribunal's judgment is unexceptionable as the Petitioners have been directed to hold a trade test for the future financial upgradation given to the Respondent. The recovery has not been permitted as the benefit was granted for no fault of the Respondent and reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of "Shyam Babu Verma and Ors. v. Union of India and Ors. ", where the following position of the law was laid down:
11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
6. Thus the above position of law clearly applies in the present case and thus the judgment of the Tribunal can not be faulted.
7. We have also noted that posts of Assistant Plumbers were infact merged in the posts of Plumber and even today remain merged. The Tribunal is therefore justified in arriving at the conclusion that no recovery should be made. Even on merits we are satisfied that the above findings do not require interference. The Writ Petition and CM are accordingly dismissed.
8. However, at the request of the learned Counsel for the Petitioner, time to conduct the trade test for the Respondent as per the direction of the CAT is extended up to 15th March, 2007.
