Union Of India vs A S Vijaya
2022 Latest Caselaw 9302 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JUNE, 2022

                        PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

        WRIT PETITION NO.9938/2021 (S-CAT)

BETWEEN:

1.   UNION OF INDIA,
     BY SECRETARY,
     MINISTRY OF I & B,
     A WING, SHASTRI BHAVAN,
     NEW DELHI - 110 001.

2.   THE DIRECTOR,
     DEPT OF PERSONNEL & TRG,
     MIN, OF PERSONNEL,
     PG & PENSIONS,
     NEW DELHI - 110 001.

3.   THE CHIEF EXECUTIVE OFFICER,
     PRASHAR BHARATHI SECRETARIAT,
     C WING DOORDARSHAN BHAWAN,
     COPERNICUS MARG,
     NEW DELHI - 110 001.

4.   THE DIRECTOR GENERAL,
     ALL INDIA RADIO,
                              2

       AKASHVANI PARLIAMENTARY STREET,
       NEW DELHI - 110 001.

5.     THE CHIEF ENGINEER,
       CIVIL CONSTRUCTION WING,
       AIR, 6TH FLOOR,
       SOOCHANA BHAVAN.

6.     THE SUPERINTENDING
       SURVEYOR OF WORKS 1,
       CIVIL CONSTRUCTION WING,
       AIR, 6TH FLOOR,
       SOOCHANA BHAVAN,
       NEW DELHI - 110 003.

7.     THE SUPERINTENDING ENGINEER (E),
       CIVIL CONSTRUCTION WING,
       AIR, SEMINARI HILLS,
       NAGPUR - 440 006.

8.     THE EXECUTIVE ENGINEER (E),
       CIVIL CONSTRUCTION WING,
       AIR, RAJBHAVAN ROAD,
       BENGALURU - 560 001.
                                          ...PETITIONERS

(BY SRI D. BASAVARAJA, ADVOCATE)

AND:

A.S. VIJAYA,
AGED ABOUT 59 YEARS,
DRAUGHTSMAN GR-1,
CIVIL CONSTRUCTION WING(E), AIR,
BENGALURU - 560 001.

ADDRESS FOR SERVICE,
SRI N OBALAPPA,
ADVOCATE,
                               3


NO.58/1, HEBBALA
KEMPAPURA MAIN ROAD,
OPP:ASTRAZENEKA,
NEAR ESTEEM MALL,
BENGALURU - 560 024.
                                             ...RESPONDENT
(BY SMT. A.S. VIJAYA, PARTY IN PERSON)


                              ***
       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS WHICH IS ULTIMATELY RESULTED IN PASSING THE
IMPUGNED ORDER BY THE HON'BLE CAT BENGALURU BENCH.
QUASH     THE   ORDER    DATED      21.10.2019   PASSED   IN
O.A.NO.170/00119/2017 BY HON'BLE CAT BENGALURU BENCH
(ANNEXURE-A) AND DECLARE THE SAME TO BE ILLEGAL, ONE
SIDED,    ARBITRARY     AND    CONTRARY    TO    THE   LEGAL
PRINCIPLES/OBJECTIVE LAID DOWN IN ACP/MACP CONCEPTS
AND PRINCIPLES LAID DOWN IN JUDGMENT DATED 18.12.2014
OF HON'BLE APEX COURT IN CIVIL APPEAL NO.11527/2014
(VIDE ANNEXURE-A10) AND RULINGS THEREON IN DO PT
MEMOS DATED 02.03.2016 AND DATED 06.02.2014 ANNEXURE-
R7.


      THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
K.S.HEMALEKHA J., MADE THE FOLLOWING:-
                                    4

                              ORDER

The issue involved in this petition is, whether the

applicant being a Class-III employee, non-gazetted and

drawing a higher pay for more than five years and the

excess amount paid to such officer is entitled to be

recovered by the authorities on the ground that the amount

was paid on account of an error by the employer

petitioners.

2. The Union of India has preferred this petition

assailing the order dated 21/10/2019, passed in

O.A.No.170/00119/2017, by the Central Administrative

Tribunal, Bangalore Bench (hereinafter referred to as "the

Tribunal"), whereby, the application filed by the respondent

was allowed holding that the authorities were not justified

in seeking remittance of the amount paid to the applicant

after almost five years and the order passed by the

authorities at Annexure-A16 dated 09/02/2017 was

quashed.

3. Parties herein are referred to as per their

ranking before the Tribunal.

4. Brief facts leading to filing of this petition are as

under:

The applicant was appointed as a Draftsman Grade-III

in Civil Construction Wing ("CCW") of All India Radio ("AIR")

with effect from 26/04/1984 and got her first promotion as

Draftsman Grade-II on 03/05/1989 and her second

promotion as Draftsman Grade-I on 15/03/1999. It is

submitted that by the implementation of 6th CPC

recommendation, the pay scale of the Draftsman Grade-I

and Draftsman Grade-II has been merged in Pay Bond-II

with Grade Pay of Rs.4,200/- in the year 2006. It is further

submitted that the applicant was granted 2nd MACP with

Grade Pay of Rs.4,600/- on 01/09/2008 and the 3rd MACP

with Grade Pay of Rs.4,800/- with effect from 03/05/2009.

It is submitted that by way of Department of Personnel and

Training Office Memorandum ("DoP&T OM") dated

09/08/1999 (ANNEXURE-R1) and subsequent clarification

dated 10/02/2000 vide Annexure-A3, it was clarified that

the employee who got promoted from lower pay scale to

higher pay scale as a result of promotion before merger of

pay scales shall be entitled for upgradation under ACPs

Ignoring the said promotion as otherwise he would be

placed in a disadvantage condition vis-à-vis the fresh

entrant in the merged grade and all the posts are placed in

a higher scale of pay with or without changing designation.

It is further submitted that respondent No.1, vide Official

Memorandum dated 24/04/2000 (Annexure-A4), upgraded

the pay scales of Draftsman Grade-II from Rs.4,500-7,000

to Rs.5,000-8,000 and Draftsman Grade-I from Rs.5,000-

8,000 to Rs.5,000-9,000 with effect from 01/01/1996 and

as per respondent No.8, pay fixation statement dated

07/09/2000 (Annexure-A5), the applicant's pay was fixed in

the post of Draftsman Grade-I in the revised pay scale of

Rs.5,500-9,000. As per the Official Memorandum dated

19/05/2009 (Annexure-A6), the applicant was granted 2nd

MACP with effect from 01/09/2008. It is submitted that the

Government had granted higher grade pay of Rs.4,600 for

the scale pay of Rs.6,500-10,500 with effect from

01/01/2006, whereas the applicant whose pay scales were

merged and upgraded to Rs.6,500 to 10,500, was granted

grade pay of Rs.4,200/- which would be the entry grade

pay of the Direct Recruitment Draftsman and the applicant

is placed in a disadvantage position as per the clarifications

of DoP&T OM dated 10/02/2000. This being so, it was

submitted that the applicant continued to draw higher pay

and allowances since 19/12/2011 granting 2nd MACP to the

applicant with grade pay of Rs.4,600/- with effect from

01/09/2008 and 3rd MACP with grade pay of Rs.4,800/- with

effect from 03/05/2009 and the said grade pay was

continued for more than five years. It is further submitted

that the respondent No.6 revised the III MACP in respect of

the applicant with effect from 26/04/2014 instead of

03/09/2009 vide order dated 27/04/2016 (Annexure-9).

The applicant submitted a representation requesting the

respondent/authorities not to recover the excess amount as

she was drawing the same for more than five years and

also contended that the applicant belonged to the erstwhile

Class-III employee, non-gazetted and drawing the higher

pay for more than five years and was due for retirement in

next three years and as such, the recovery was not

permissible in light of the judgment of the Hon'ble Supreme

Court in the case of State of Punjab & others vs. Rafiq

Masih [2015(4) SC 334] (White Washer). It is also

contended by the applicant that the act on the part of the

respondent/authorities to recover the excess amount vide

order dated 19/01/2017 by way of Annexure-A15; order

dated 09/02/2017 vide Annexure-A16 and order dated

22/02/2017 vide Annexure-A19, was sought to be quashed

in the application before the Tribunal.

5. The respondent/authorities filed objections

contending that the applicant had already earned two

promotions from Draftsman Grade-III to Grade-II on

03/05/1989 and second promotion from Draftsman Grade-

II to Grade-I on 15/03/1999 before the implementation of

the ACP Scheme 1999 as the two prior promotions were on

regular basis have already been received by the employee,

the benefit under the ACP Scheme as per the DoP&T OM

order dated 09/08/1989 (Annexure-R1) will not enure to

the benefit of the applicant. It was further submitted that

the Scheme of ACP has been replaced as MACP Scheme in

the year 2009 to grant three financial upgradation under

MACPs at the intervals of 10, 20 and 30 years of continuous

regular service. It is further submitted that after the

implementation of the 6th CPC, the scale of Draftsman

Grade-I and Grade-II has been merged with GP of

Rs.4,200/ and due to which, one promotion for the purpose

of financial upgradation (Annexure-R2) is ignored as per

DoP&T OM dated 10/05/2009 and it is further contended

that the applicant was granted 2nd MACP on 01/09/2008

and 3rd MACP on 26/04/2014 after completion of thirty

years of regular service. A communication dated

20/01/2016 (Annexure-R5) stated that irregular 3rd MACP

granted to the employees who have neither completed ten

years residency in the same grade pay nor completed thirty

years of qualifying years of service in contravention of

DoP&T order on MACP and directed all stations and offices

for sending compliance report on the observation of audit

party specifically mentioning the number of cases where

undue MACP has been granted to recover the amount paid

in excess of their grade pay. It is further submitted that

the 3rd MACP of the applicant is revised to 26/04/2014

instead of 03/05/2009 and the recovery of the excess

amount paid as per Annexure-R13 is justified in view of the

Memorandum issued by the authorities.

6. The Tribunal, on considering the submissions

and material on record held that the excess amount sought

to be recovered by the respondent is not permissible under

law as per the decision of the Hon'ble Apex Court in Civil

Appeal No.11527/2014 in the case of State of Punjab

& others vs. Rafiq Masih (White Washer) and the

amount paid to the applicant was not due to the fault of the

applicant, but due to the error on the part of the authority

for which the remittance of amount cannot be resorted to

the applicant. Being aggrieved by the order of the Tribunal,

the Union of India has filed this petition.

7. Heard learned counsel for the appellant and the

party-in-person.

8. Learned Central Government Standing counsel

for the petitioners. Sri D.Basavaraja would contend that

the order of the Tribunal directing the authorities not to

recover the amount paid in excess to the applicant is not in

consonance with the judgment of the Apex Court in the

case of White Washer's case as the applicant does not

belong to Class III and Class IV service (Group "C" and

Group "D"), nor the applicant was due to retire within one

year of the order of recovery. It is further contended that

the applicant was granted 2nd MACP with grade pay of

Rs.4,600/- with effect from 01/09/2008 irrespective of

granting of two regular promotions and also granted 3rd

MACP with grade pay of Rs.4,800 with effect from

03/05/2009, which is contrary to the DoP&T MO dated

10/09/2013 wherein the date of effect of 3rd MACP was

revised from 03/05/2009 to 26/04/2014 and an excess

amount of Rs.1,04,731/- was paid in excess to the

applicant. It is further contended that the recovery of the

excess amount is in view of the clarification of DoP&T and

there is no mala fide intention or irregularity in revising the

date of 3rd MACP and the order passed by the Tribunal in

holding that recovery of excess amount is not justifiable,

needs to be set aside and sought to allow the petition.

9. Per contra, the party-in-person, Smt. Vijaya

justified the order of the Tribunal and contended that she is

entitled for 1st ACP with effect from 01/01/2006 with grade

pay of Rs.4,600/- and 2nd MACP with effect from 26/4/2008

with grade pay of Rs.4,800 as the existing pay scale of

Rs.5,000-Rs.8,000 and Rs.5,500-9,000 are merged and

upgraded to pay scale of Rs.6,500-10,500 and the entry

grade pay of Rs.4,200/- to the direct recruit and as such

she contend that she is entitled for two ACP which was

due. She also relied on the judgment of the Apex Court in

the case of White Washer to hold that she is similarly

placed employee Class-III staff non-gazetted Group C and

drawing the same pay for more than five years and she is

not responsible for the excess draw of pay and allowances

and the same is not permissible to be recovered from the

applicant in light of the judgment stated supra.

10. Having heard learned counsel for appellant and

the party-in-person and perused the material on record

carefully.

11. The applicant was appointed as a draftsman

Grade-III and subsequently was promoted from Draftsman

Grade-II to Draftsman Grade-I and the applicant was

promoted from lower pay scale to higher pay scale as a

result of promotion before the merger of the pay scales. It

is not in dispute that the applicant belongs to Class III staff

non-gazetted Group C and was drawing the higher pay for

more than five years. The excess amount/payment made

was due to misconstruction or misinterpreting by the

authorities and not due to the fraud or misrepresentation

on the part of the applicant. The Apex Court in catena of

judgments has held that any excess amount paid by the

employer by applying the wrong principles and such error

has been known to the employer subsequently is not

entitled for recovery. The Apex Court in the case of Sahib

Ram vs. State of Haryana and others [(2009)3 SCC

475], wherein under similar circumstances as in the

present case, restrained the recovery of payment which

was given under the upgraded pay scale on account of

wrong construction of relevant order by the authority

concerned, without there being any fault on the part of the

employees and held in paragraph No.5 as under:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstance the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on revised scale.

However, it is not on account of any mis- representation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault."

12. In White Washer's case stated supra relied

upon by the learned counsel for the petitioner and also by

the party-in-person to support their contentions, the Apex

Court in the said judgment reported in State of Punjab &

others vs. Rafiq Masih [2015(4) SC 334] (White

Washer) at paragraph Nos.8 and 18 held as under:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

xxx xxx xxx

18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class III and Class IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

(emphasis supplied)

13. Learned counsel for the petitioner relying on the

White Washer's case would contend that the applicant has

to remit the excess amount/payment made as the applicant

is not an employee belonging to Class III and Class IV

service (or Group C and Group D) and that the applicant

was not due to retire within one year of the order of the

recovery and as such, recovery of excess payment is

permissible as the applicant do not fall under the category

(i) and (ii) as stipulated in White Washer's case. On the

contrary the party-in-person would contend that she is

Class III and Class IV service (Group-C and Group-D) and

the excess payment made for the period in excess of five

years and accordingly, the remittance of amount sought is

impermissible and the judgment in White Washer's case

squarely applies to the applicant.

14. Perusal of the material on record reveals that the

applicant was Group 'B' non-gazetted and on applying the

principles judgment of the Apex Court in White Washer's

case, what could be gathered is that if the recovery made

from the employee is on account of misinterpreting the

rules and the excess amount has been paid beyond the

period of five years and not due to the mistake on the part

of the employee, then the recovery by the authority is

impermissible. Accordingly, the Tribunal, considering the

judgment of the Apex Court in White Washer's, case has

rightly held that the applicant cannot be called upon to

remit the amount given by the respondent/authorities by

themselves for more than five years. As a result, in view of

the judgment of the Apex Court in White Washer's case

stated supra, we are of the considered opinion that the

petition filed by the Union of India is devoid of merit and

liable to be dismissed.

15. In the result, we pass the following:

ORDER

(i) Writ petition is dismissed as devoid of merits.

(ii) The order dated 21/10/2019 in

O.A.No.170/00119/2017 on the file of Central

Administrative Tribunal, Bangalore Bench, is

hereby confirmed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

S* CT:GD