The Union Of India vs Chandra Bhan Upadhyay
2022 Latest Caselaw 4376 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.3116 of 2022
     ======================================================

1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghikalan, P.S.- Hajipur (Sadar), District- Vaishali, Pin Code- 844101 (Bihar)

2. The General Manager (Personnel), East Central Railway, Hajipur, P.O.-

Digghikalan, P.S.- Hajipur (Sadar), District- Vaishali, Pin Code- 844101 (Bihar).

3. The Financial Advisor and Chief Accounts Officer, East Central Railway, Hajipur, P.O.- Digghikalan, P.S.- Hajipur (Sadar), District- Vaishali, Pin Code- 844101.

4. The Chief Administrative Officer (Con), East Central Railway, Mahendrughat, Patna- 800004 (Bihar).

5. The Financial Advisor and Chief Accounts Officer (Con), East Central Railway, Mahendrughat, Patna- 800004 (Bihar).

6. The Deputy Chief Personnel Officer (Con), East Central Railway, Mahendrughat, Patna- 800004 (Bihar).

7. The Divisional Railway Manager, East Central Railway, Samastipur- 848101 (Bihar).

8. The Senior Divisional Personnel Officer, East Central Railway, Samastipur-

848101 (Bihar).

9. The Deputy Chief Engineer (Con)- IV, East Central Railway, Samastipur-

848101 (Bihar).

10. The Senior Divisional Financial Manager, East Central Railway, Samastipur-

848101 (Bihar).

... ... Petitioners Versus Chandra Bhan Upadhyay son of Late Ram Brichha Upadhyay Ex- Senior Store Issuer, Office of the Deputy Engineer (Con)- IV, East Central Railway, Samastipur, Resident of Village- Naduwa, Post- Barhaj, P.S. Barhaj, District- Deoria- 274601 (UP).

... ... Respondent ====================================================== Appearance :

For the Petitioners : Mr. Ratnesh Kumar, CGC Mr. Kautiliya Kumar, Advocate For the Respondent : Mr. Munna Pd Dixit (M.P. Dixit) Mr. S.K. Dixit, Advocate Mr. Sanjay Kumar Choubey, Advocate Ms. Swastika, Advocate Mr. Shailendra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

and HONOURABLE MR. JUSTICE MADHURESH PRASAD C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 10-08-2022

The Union of India through its General Manager East

Central Railway, Hajipur and other officials of the East Central

Railway have preferred this writ application putting to challenge

a judgment and order dated 29.09.2021 passed in O.A. No.

050/0042/2019, whereby and whereunder, the Patna Bench of the

Central Administrative Tribunal (for short 'the Tribunal') has

quashed the orders dated 02.11.2018 and 05.12.2018 which were

impugned before the Tribunal, and has accordingly directed the

petitioners to revise the pay scale, pay and pension of the sole

respondent, by extending him the benefit of ad-hoc promotion for

the purpose of determination of pay scale, salary and retiral

benefits.

2. The respondent had filed the aforesaid O.A. No.

050/0042/2019 assailing the aforementioned two orders dated

02.11.2018 and 05.12.2018, whereby the basic pay of the

respondent, which he was getting against a Group-C post of

Senior Store Issuer, was reduced to the pay scale admissible for

the post of Khalasi, a Group-D post. Consequent upon re-fixation

of pay at a reduced rate admissible to a Group-D post of Khalasi, Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

the petitioners intended to recover a sum of Rs. 11,41,125/-

(Eleven Lakh Forty One Thousand One Hundred Twenty Five

Only) from the post retiral dues admissible to the respondent

apart from fixation of pension and post retiral dues at a lower rate

than what the respondent would have been entitled to, had he

been treated to have retired holding the Group-C post of Senior

Store Issuer.

3. The Central Administrative Tribunal, by its

impugned judgment and order dated 29.09.2021 has allowed the

respondent's Original Application under Section 19 of the

Administrative Tribunals Act, 1985 by quashing the said orders

dated 02.11.2018 and 05.12.2018 and has directed the petitioners

to revise the pay scale, pay, and pension of the respondent by

giving the respondent benefits of ad-hoc promotion, for the

purpose of determination of pay and pay scale as well as retiral

benefits. Certain recoveries in the light of the orders impugned

before the Tribunal were effectuated by the petitioners. The

amount so recovered has been directed by the Tribunal to be

refunded to the respondent immediately. The Tribunal, while

allowing the Original Application of the respondent has referred

to and relied on a Co-ordinate Bench decision of this Court dated

22.08.2019 passed in CWJC No. 5401 of 2017 (The Union of Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

India and Others Vs. S.S. Choubey), whereby in identical

circumstance this Court had refused to interfere with the

judgment and order passed by the Tribunal in O.A. No. 165 of

2013.

4. We have heard Mr. Ratnesh Kumar, learned Central

Government Counsel for the petitioners and Mr. M.P. Dixit,

learned counsel for the sole respondent.

5. The facts relevant for the present adjudication are

short and undisputed. The respondent had joined as a casual

labour in the Construction Department of the Railways on

28.04.1979. He was granted temporary status with effect from

01.01.1983. Ad-hoc promotion to the post of Store Issuer was

granted to the respondent on 01.07.1990 with the pay scale of Rs.

950-1500 which was revised to Rs. 3050-4590 and was revised

further to the Pay Band of Rs. 5200-20200 and Grade Pay of Rs.

1900. Subsequently, the respondent was again granted ad-hoc

promotion to the post of Senior Store Issuer with effect from

20.02.1996 in the Pay Scale of Rs. 1200-2040, which was revised

to Rs. 4000-6000 and was further revised to Pay Band of Rs.

5200-20200 with Grade Pay of Rs. 2400/-. While holding the

Post of Senior Store Issuer on ad-hoc basis with the

aforementioned pay band and grade pay with effect from Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

20.02.1996, the respondent attained the age of superannuation on

30.06.2018. At the time of his superannuation, the basic pay of

the respondent as Senior Store Issuer was admittedly 43,500/-.

6. No issue was ever raised relating to validity of the

respondent's ad-hoc promotions which were granted to him with

effect from 20.02.1996, till the date he attained the age of

superannuation on 30.06.2018. More than four months after the

superannuation of the respondent, the emoluments granted to him

came to be revised/re-fixed by a memorandum issued on

02.11.2018 under the signature of Deputy Chief Engineer (Con)-

IV, East Central Railway, Samastipur (Petitioner No. 9) treating

him to have retired while holding the post of Khalasi. His basic

pay thus stood reduced to Rs. 34,000/- in place of 43,500/-

consequent upon revision/re-fixation of pay to a reduced rate.

The petitioner No. 9 came out with another letter dated

05.12.2018 addressed to the respondent communicating recovery

of excess amount to the tune of Rs. Rs. 11,41,125/- (Eleven Lakh

Forty One Thousand One Hundred Twenty Five Only) which,

according to the petitioners, was paid to him in excess of his

actual entitlement.

7. The said revision/re-fixation of pay vide order dated

02.11.2018 and the decision to recover excess amount of salary Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

said to have been paid to the respondent vide order dated

05.12.2018, were subject matter of challenge before the Tribunal

as has been noted above.

8. From the pleading and other documents available on

record and the submissions advanced on behalf of the petitioners,

we notice that in nutshell it is the petitioners' case that the

respondent was wrongly given second ad-hoc promotion with

effect from 20.02.1996 in violation of Clause 216 (A)(1) of the

Indian Railway Establishment Manual (IREM) Vol. 1. It is

further case of the petitioners that the excess amount of salary

paid to the respondent because of an invalid grant of second ad-

hoc promotion is recoverable under Rule-15 of the Railway

Service (Pension) Rule, 1993 (Pension Rule, 1993, for brevity).

9. In the backdrop of the nature of controversy which

this matter involves, we consider it apt to reproduce hereinbelow

Clause 216(A)(1) of IREM and Rule-15 of Railway Service

(Pension) Rule, 1993:-

IREM (Vol. 1)

216. A. Adhoc Promotions:-

(1) Selection/Suitability tests/trade tests should be conducted timely as per provisions in this Manual so as to obviate the need for making adhoc promotions which should be avoided both in selection and non-selection posts. However, whenever ad hoc promotions are found inescapable in selection posts in the exigency of service, the same should be ordered only from Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

amongst the senior-most eligible staff strictly in accordance with the existing guidelines. As a rule, a junior should not be promoted, ignoring his senior unless the competent authority ordering the ad hoc promotion, considers him unsuitable. In any case no second ad hoc promotion should be allowed under any circumstances.

(Railway Board's letter Nos. E(NG)I/77/PM1/117 dated 17-10- 77, E(NG)II/81/RC1/1, dt. 1-4-81 E(NG)I/85/MP5/3 dt. 23-8-85 and E(NG)I/94/PM1/10 dated 9-12-98-ACS No. 65 &72) (2) The following further guidelines should be adhered to while considering ad hoc promotions:-

(a) Ad hoc promotion in non-selection posts:- In the case of non-selection posts including posts filled on the basis of trade tests, the vacancies shall be filled after following the prescribed procedure quickly. There shall thus be no ad hoc promotions in non-selection posts.

[Railway Board's letter No. E(NG)II/81/RC1/1, dated 1-4-81 and E(ND)I/94/PM1/10 dated 9-12-98]

(b) Ad hoc promotion in selection posts:-

(i) Ad hoc promotions may be made in leave vacancies and short duration vacancies upto 4 months beyond which period the FA &CAO should not draw the pay of concerned employee unless the Chief Personnel Officer has personally approved the continuance.

(ii) Normally no ad hoc promotion should be made against regular vacancies. If it becomes inescapable to make ad hoc promotion against regular vacancies warranted by such circumstances as Court's orders etc. such promotion should be allowed only with the prior personal approval of the Chief Personnel Officer who should satisfy himself with the reasons for Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

non-finalisation of the selection before according his sanction. In any case such arrangements should not be allowed to last over six months save in exceptional circumstances like where a panel cannot be formed because of stay orders from Courts etc. The Chief Personnel Officer should keep record of having accorded approval to such ad hoc promotion or continuation thereof and review the progress made in filling up these posts by selected persons every month. He should also review the position of selections to all posts whether such posts are controlled at Zonal, Divisional or Extra-Divisional level.

[Railway Board's letter No.E-55/PM1/19/3, dated 11-6-55, E(NG)I/73/PM1/222, dated 23-2-74, E(NG)II/81/RC1/1, dated 1-4-81 and E(NG)I/94/PM1/10, dated 9-12-98].

(iii) Notification for ad hoc promotion against the selection posts should specifically include a remark to the effect that the person concerned has not been selected for promotion on regular basis and that his promotion is on ad hoc basis and does not give him any right of holding the post for regular promotion.

[Railway Board's letter No.E-55/PM1-19-3, dated 11-6-55 and E(NG)I/94/PM1/10, dated 9-12-98]

* * * *

Railway Service (Pension) Rules, 1993

15. Recovery and adjustment of Government or railway dues from pensionary benefits- (1) For the dues other than the dues pertaining to occupation of Government or Railway accommodation, the Head of Office shall take steps to assess the dues "one year" before the date on which a railway servant is Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

due to retire on superannuation.

(1A) The assessment of Government or Railway dues in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of retirement of the railway servant. (Authority: File No. 2015/F(E)III/1(1)/4 dt.17.06.16 .......RB NO.70

(2) The railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, shall be adjusted against the amount of the retirement gratuity or death gratuity or terminal gratuity and recovery of the dues against the retiring railway servant shall be regulated in accordance with the provisions of sub-rule (4).

(3) For the purposes of this rule, the expression "railway or Government dues" includes

(a) dues pertaining to railway or Government accommodation including arrears of license fee, as well as damages (for the occupation of the Railway or Government accommodation beyond the permissible period after the date of retirement of allottee),. if any; . (Authority: Railway Board letter No. F(E)III/2010/PNl/4 dated 28.03.12)

(b) dues other than those pertaining to railway or Government accommodation, namely balance of house- building or conveyance or any other advance, overpayment of pay and allowances, leave salary or other dues such as Post Office or Life Insurance premia, losses (including short collection in freight charges shortage in stores) caused to the Government or the railway as a result if negligence or fraud on the part of the railway servant while he was in service.(Underscored for emphasis)

10. Strong reliance has been placed on behalf of the Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

petitioner on Clause-216(A)(1) of IREM (Vol. 1) as quoted

above, which according to the petitioners, prohibits grant of

second ad-hoc promotion in any circumstance. It has also been

argued that in view of the provision under Clause 216 (2)(b), the

ad-hoc promotion can be made for a short duration, upto four

months. It has been admitted in the writ petition that though there

is an order permitting the respondent to continue against the

Group-C post on ad-hoc basis, it is their case that any order

contrary to the Rule has no significance.

11. Mr. Ratnesh Kumar, learned Central Government

Counsel has strenuously submitted that the Tribunal ought not to

have allowed the Original Application filed by the respondent by

quashing the aforesaid two orders dated 02.11.2018 and

05.12.2018, in the light of clear provision under Clause-216(A)

(1) of IREM (Vol. 1). He has made an alternative submission to

the effect that in any event, the respondent should not be allowed

to get the benefit of an illegal order granting him second ad-hoc

promotion for the purpose of determination/ fixation of his

pension and other retiral benefits. He has, however, not been able

to distinguish the case of the respondent from that of S.S.

Choubey (supra) in which case in identical circumstance Tribunal

had interfered with the impugned action of the East Central Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

Railway Hajipur, which order came to be affirmed by a Co-

ordinate Bench of this Court. He has relied on a Supreme Court's

decision in the case of The Union of India and Ors. Vs. Shri

Bhanwar Lal Mundan reported in (2013) 12 SCC 433 to bolster

his contention with reference to paragraph 14 thereof which reads

as under:-

"14. In the case at hand, as stated earlier, the respondent was getting higher scale of pay in the post while he was holding a particular post as a deputationist. After his repatriation to the parent cadre on selection to a higher post he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. Such fixation of pay, needless to say, was erroneous and, therefore, the authorities were within their domain to rectify the same. Thus analysed, the irresistible conclusion is that the tribunal and the High Court have fallen into error by opining that the respondent would be entitled to get the pension on the basis of the pay drawn by him before this retirement."

12. Mr. M.P. Dixit, learned counsel appearing on behalf

of the sole respondent has submitted that it is not the case of the

petitioners that the respondent had any role to play in grant of the

first and second ad-hoc promotions. The ad-hoc promotions were

granted to the respondent by the competent authority based on

which respondent performed his duties of higher responsibilities

and received pay and other emoluments accordingly. There is no Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

allegation of any misrepresentation or fraud played by the

respondent in the matter of grant of the promotion and fixation of

pay and pay scale. He has contended that the decision to recover

the amount, in the aforesaid background, is wholly arbitrary and

illegal in view of the principle laid down by the Supreme Court

in the case of The State of Punjab and Ors. Vs. Rafiq Masih

(White Washer) and Ors. reported in (2015) 4 SCC 334. He has

further submitted that the case of the respondent is on a better

footing than that of S.S. Choubey (supra) since in the case

of S.S. Choubey (supra), the Pay Scale and Grade pay was

sought to be reduced before his superannuation, whereas in the

present case the petitioners had decided to take away the benefits

of promotion granted to him in 1990-1996, after the respondent

had already attained the age of superannuation. He has further

argued that the petitioners have, in so many other cases,

implemented the Tribunal's order passed in identical situation.

13. We have examined the pleadings on record with the

documents annexed thereto, and have given out anxious

consideration to rival submissions made on behalf of the parties.

14. At the outset, we record without any demur that the

case of the respondent is indistinguishable from the case of S.S.

Choubey (supra) as decided by the Co-ordinate Bench of this Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

Court. In the case of S.S. Choubey (supra) also, a plea was taken

on behalf of the Union of India that the promotion on ad-hoc

basis could be allowed for a period of three months alone and

that no proper procedure was followed before granting such

benefit of ad-hoc promotion. Rejecting the said contention, the

Co-ordinate Bench of this Court in the case of S.S.

Choubey (supra) held in paragraphs 5 to 9 as under:-

"5. Just before his superannuation, the Grade Pay and the Pay Scale of the private respondent was sought to be reduced without reverting him from the post of Assistant Estimator on the ground that such promotion was granted in complete violation of the process, procedure or the rules.

6. The argument made on behalf of the parties as well as the Railway was taken into consideration by the CAT Bench, it took note also of a Railway Board Circular No. 85/2011, and finally a conclusion was reached that a person, who has continued to hold the post of Assistant Estimator uninterruptedly from 1985 till his superannuation, cannot be made to suffer a reduced Pay Scale or Grade Pay unilaterally in violation of the principles of natural justice and ironically without reverting the private respondent from the post of Assistant Estimator.

7. This submission of learned counsel for the Railway does not impress this court in any manner to interfere with the order of the Tribunal, because the Railway cannot be allowed to take a plea that such promotion on Ad hoc basis is required to be made for a period of three months alone and no proper procedure Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

was followed before granting such benefit of Ad hoc arrangement and no authority ever discovered this socalled aberration right from 1985 till the year 2012.

8. Either it is a reflection in the manner decisions are taken by the Railway or there is complete failure on the part of the superior authorities to exercise effective control and review situations. Twenty Seven Years is a long-long time for any breach of rules to be discovered and since the benefit cannot accrue to the authorities who themselves want to be rewarded for their omission, the Tribunal rightly quashed the impugned order, restored the Grade Pay and directed payment of his salary if not post retiral dues as a consequence thereof.

9. If the Railway do not want such incident to happen again they need to have proper review mechanism in place if not mechanism for fixing responsibility within reasonable time frame instead of trying to redeem the situation by testing such cases with no benefit to the system."

15. The Tribunal has found the said decision of the Co-

ordinate Bench of this Court in the case of S.S. Choubey (supra)

to be binding for consideration of the respondent's case as made

out before the Tribunal. The said reasoning applied by the

Tribunal to interfere with the impugned action of the petitioners

is sound and does not suffer from any legal infirmity, in our

considered view.

16. It would be apt to notice at this juncture, Rule-15 of

the Railway Service (Pension) Rules, 1993, which has been Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

quoted hereinabove. Rule-15 of Pension Rules 1993 permits

recovery or adjustment of Government or Railway dues from

pensionary benefits. Sub-rule (1) of Rule-15 of the Pension

Rules, 1993 clearly mandates that for the dues other than the dues

pertaining to occupation of Government or Railway

accommodation, the Head of Office shall take steps to assess the

dues "one year" before the date on which a railway servant is due

to retire on superannuation. Sub-rule (1A) of Rule-15 further

mandates that the assessment of Government or Railway dues in

sub-rule (1) shall be completed by the Head of Office eight

months prior to the date of retirement of a railway servant. Sub-

rule (2) of Rule-15 requires that the Railway or Government dues

as ascertained and assessed, apparently under Rule-15 (1) and

Rule-15 (1A) which remain outstanding till the date of retirement

or death of Government servant, shall be adjusted against the

amount of retirement gratuity or death gratuity or terminal

gratuity. Sub-rule (3) of Rule 15 merely gives the definition of

"Railway or Government dues". The procedure for recovery and

adjustment from pensionary benefits has been prescribed under

Rule 15(1).

17. In our opinion, fulfillment of the requirements under

Rule-15(1) and Rule 15(1A) is one of the requisite conditions for Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

recovery and adjustment of the Railway dues from pensionary

benefits under the Pension Rules, 1993. Admittedly, no exercise

was undertaken to assess the dues one year before the date on

which the petitioner was due to retire on superannuation as

contemplated under Rule-15(1) of the Pension Rules, 1993. The

period "one year" prior to the date of superannuation appears to

have been emphasised in Rule -15(1) of the Pension Rules, 1993

for the purpose of beginning the exercise of assessment of dues

for recovery. The said requirement of beginning the exercise for

recovery of dues assumes significance in view of further

stipulation in sub-rule (2) of Rule-15 of the Pension Rules, 1993.

Sub-rule (2) of Rule 15 of the Pension Rules, 1993 stipulates that

the exercise undertaken under Rule-15 (1) of the Pension Rules,

1993 must be completed eight months prior to the date of

retirement of Railway/Government servant. In the case of the

respondent, the provision under Rule-15 of the Pension Rules,

1993 was sought to be invoked after his superannuation without

any assessment having been done in accordance with the

statutory prescription under Rule-15 of the Pension Rules, 1993.

18. The submission made on behalf of the petitioners that

the petitioners should be permitted to determine the retiral

benefits of the respondent taking into account the post which he Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

was lawfully entitled to hold, on the date of his superannuation,

as the promotions granted to the respondent on ad-hoc basis are

patently illegal, does not have any merit as such direction would

amount to taking away from the respondent the benefit of

promotion on ad-hoc basis granted to him. The petitioners have

not cancelled the said promotions granted to the respondent way

back in the year 1996. In our opinion, at this stage, it would be

impermissible for the petitioners to undo the effect of grant of

promotion to the respondent much after his superannuation,

without following due process of law and compliance with the

principles of natural justice. If the aforesaid submission made on

behalf of the Union of India were to be accepted by this Court,

the same would amount to annulment of the benefits of

promotion granted to the respondent, despite there being no order

passed by the competent authority cancelling the promotions

granted to the respondent.

19. The Supreme Court's decision in the case of Bhanwar

Lal Mundan (supra) is inapplicable in the facts and

circumstances of the present case for more than one reason.

Firstly, the petitioners have not cancelled the promotion granted

to the respondent. Secondly, the Division Bench decision of this

Court dealing with the identical issue of the same department has Patna High Court CWJC No.3116 of 2022 dt. 10-08-2022

attained finality. Thirdly, the case of Bhanwar Lal

Mundan (supra) relates to re-fixation of pay after rectification,

whereas in the present case, the petitioners intend to nullify the

effect of promotion granted to the respondent in 1996 by re-

fixing his pay and pay scale.

20. In such view of the matter, in our opinion, the

impugned order of the Tribunal does not suffer from any

illegality requiring this Court's interference.

21. In view of the foregoing discussions and reasons, we

do not find any merit in this writ application, which is

accordingly dismissed.

(Chakradhari Sharan Singh, J)

Madhuresh Prasad, J: I agree

(Madhuresh Prasad, J)

K.K.RAO/-

AFR/NAFR                NAFR
CAV DATE                17.05.2022
Uploading Date          12.08.2022
Transmission Date       N/A