In the High Court of Judicature at Madras
Dated: 11.12.2007
Coram:
The Honourable Mr.Justice ELIPE DHARMA RAO
and
The Honourable Mr.Justice S.R.SINGHARAVELU
Writ Petition Nos.13142, 14415, 16099 and 27855 of 2005
and W.P.M.P.No.17523 of 2005
V.Rathinam ..Petitioner in W.P.13142/2005
M.Gandhi ..Petitioner in W.P.14415/2005
1. T.Mariya Joseph
2. Bhavani .Petitioners in W.P.16099/2005
1. V.R.Saroja
2. A.Joseph
3. R.Lathifunissa
4. R.Vincent .Petitioners in W.P.27855/2005
..vs..
1. The Central Administrative Tribunal.
rep.by its Registrar,
High Court, Madras.
2. Union of India, rep.by Director,
Central Institute of Fisheries
Nautical & Engineering Training,
Ministry of Agriculture,
(Department of Animal Husbandary
& Dairying),
Fine Arts Avenue,
Kochi-682 016.
3. Senior Administrative Officer,
Central Institute of Fisheries,
Nautical & Engineering Training,
Ministry of Agriculture,
(Department of Animal Husbandary
& Dairying),
Fine Arts Avenue,
Kochi-682 016. ..Respondents in all W.Ps.
Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the proceedings of the 1st respondent in O.A.No.565 and 523 of 2004 dated 17.02.2005, upholding the order No.8-06-03 Administration dated 12.02.2004 of the 3rd respondent and quash the same.
For Petitioners : Mr.V.Vijay Shankar
For Respondents : Mr.Sundar Anandan in W.Ps.
2 and 3 13142,14415 and 16099/2005 Mr.P.Wilson,ASG.,in W.P.27855/2005 COMMON ORDER (Order of the Court was made by ELIPE DHARMA RAO,J.,) All these writ petitions are filed against the common order passed by the Central Administrative Tribunal in O.A.Nos.565 and 523 of 2004 dated 17.02.2005.
2. Petitioner Rathinam was originally appointed as Fitter and he was promoted as Senior Fitter on 29.08.1995, which he refused due to unavoidable family circumstances and domestic reasons. Petitioner Gandhi was originally appointed as Net Maker on 05.06.1974 and he was promoted as Junior Deck Hand on 05.01.1999. Thereafter, he was offered promotion, which he refused due to unavoidable family circumstances and domestic reasons. The petitioners in W.P.16099 of 2005 were originally appointed as Welder and Junior Clerk on 19.05.1978 and 23.12.1977, respectively, and subsequently, they were promoted as Senior Welder and Senior Clerk on 16.07.1986 and in the year 1994, respectively, which they refused due to unavoidable family circumstances and domestic reasons. Petitioner V.R.Saroja was originally appointed as Junior Stenographer on 14.01.1972 and she was promoted subsequently as Head clerk, Senior Store Keeper, Accountant during 1994 and 2000 and she refused promotion on personal grounds. Petitioner A.Joseph was originally appointed as Junior Clerk on 18.08.1973 and was promoted as Store Keeper on 07.12.1993 and he was not able to join because of his personal problems. Petitioner Lathifunisa was originally appointed as Junior Clerk on 01.06.1974 and promoted as Store Keeper on 23.12.1993, in which post she has not joined and refused to take up due to her personal problems. Petitioner Vincent was originally appointed as Peon on 07.02.1973 and he was offered promotion on 25.04.1997 to the post of Attender, which he refused to join due to his personal grounds of health.
3. It is the case of the applicants that they were given the benefits of Assured Career Progression (ACP) Scheme and according to the Scheme, on completion of 12 years, a promotion will be granted and at the end of 24 years, a further promotion will be granted. Therefore, the applicants are entitled for the benefits of the ACP Scheme. However, by the impugned order dated 12.02.2004, the third respondent has withdrawn the financial benefit granted and ordered to initiate recovery proceedings, against which, the applicants filed Original Application before the Central Administrative Tribunal.
4. The Tribunal, after considering the facts and circumstances of the case, came to the conclusion that the applicants were offered promotions before ACP Scheme came into effect, though they had completed 12 years/24 years of service; that none of the applicants was eligible for the same as they have refused the first level promotion well before the date of implementation of the Scheme and in some cases more than once; and that necessarily they have to be debarred for further promotions for the prescribed period and therefore, under Condition No.10 of the Annexure-I to the Scheme, they have become eligible to the second upgradation after completing the required eligibility service under the ACP Scheme, subject to the condition that the period of debarment for regular promotion shall not count for the purpose. Therefore, the Tribunal dismissed the application holding that the first level upgradations are not permissible under the Scheme and the second level upgradations will have to be regulated under condition No.10 of the Annexure to the Scheme, with a direction to recover excess amount paid to the applicants. Aggrieved by the above order, the applicants have filed the writ petitions.
5. Learned counsel for the writ petitioners contended that the Tribunal has failed to see that before passing the impugned order of recovery of the said amount from the applicants, no opportunity was given to the petitioners. Therefore, the Tribunal should not have dismissed the original application. He further contended that based on the judgments of the Supreme Court and this Hon’ble High Court, that when pay is fixed by the employer, without any misstatement or misrepresentation by the employees or due to an erroneous application of the rules/orders, recovery of the amounts already paid cannot be made. In the present cases, there was no misstatement or misrepresentation by the writ petitioner and it was respondents 2 and 3, who gave the benefits of financial upgradation by order dated 31.01.2000. At any rate, the respondents having given the benefits on their own accord, cannot cause recoveries to be made from the petitioners. He further submitted that the writ petitioner in W.P.No.13142 of 2005, who is a class-IV employee in the last rung of service in the Central Government, has already completed 34 years of service and is hardly having two more years of service. Under the circumstances, ordering recovery would cause great prejudice to the interest of the dependants of the applicant. Therefore, the order passed by the 3rd respondent as well as the Tribunal are liable to be set aside.
6. On the other hand, the learned counsel for the respondents submitted that the ACP Scheme needs to be viewed as a ‘Safety Net’ to deal with the genuine problem of stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Therefore, it cannot be the case of the petitioners that they are stagnated without any promotional avenues and they are entitled for the benefits of the Scheme. Learned counsel further contended that petitioner Rathinam was appointed originally as Fitter in the existing pre-revised pay scale of Rs.260-350 and he was promoted as Senior Fitter in the pay scale of Rs.3200-4900 at CIFNET (Headquarters), Kochi and he assumed charge as Senior Fitter on 29.09.1996. Thereafter, the applicant requested for reversion to his original post of Fitter and transfer to Chennai on the ground of family problems. Accordingly, he was reverted and promoted by order dated 19.05.1999 and relieved from CIFNET, Kochi as per order dated 23.08.1999. Since then, the applicant is working as Fitter at CIFNET Unit, Chennai. Learned counsel further submitted that the Government of India, in their DOPT.O.M.No.35034/I/97 Establishment (D) dated 09.08.1999, has accepted the recommendations of V pay commission and granted upgradation under the ACP Scheme with effect from 09.08.1999 i.e.the date of introduction of ACP Scheme and on completion of 12 years and 24 years of regular service respectively. But it does not mean that just after completion of 12 and 24 years of residency period of regular service, such employees are eligible for financial upgradation under the Scheme. Such Scheme is introduced as ‘Safety Net’ against acute stagnation for 12/24 years for want of adequate promotional avenues. Further it is submitted that it is immaterial when an employee completed 12/24 years of service prior to 09.08.1999, but once he refused the promotion offered prior to 09.08.1999, he would not be entitled for the benefit. Therefore, in view of the above, when the writ petitioner (Rathinam) was offered promotion from the post of Fitter to Senior Fitter, he joined in that post and later, asked for reversion to his original post and accordingly, he was reverted. Therefore, having refused the promotion, the writ petitioner (Rathinam) is not entitled to the benefit of the above Scheme.
7. With regard to the doubts in the ACP Scheme, learned counsel for the respondents also relied on further clarifications issued by G.I.Department of Per.&Trg., O.M.No.35034/1/97-Estt.(D) (Vol.IV) dated 18.07.2001. Point of doubt No.38 reads as follows:
S.No.
Point of Doubt
Clarification
38
A person has refused a vacancy based promotion offered to him prior to his becoming eligible for financial upgradation under ACPS, on personal grounds, will he be eligible for financial upgradation under the ACPS?
A person had refused a regular promotion for personal reasons. He has since completed 24 years of service. Will he be entitled for 2nd financial upgradation?
The ACP Scheme has been introduced to provide relief in cases of acute stagnation where the employees, despite being eligible for promotion in all aspects, are deprived of regular promotion for long periods due to non-availability of vacancies in the higher grade. Cases of holders of isolated posts have also been covered under ACPS, as they do not have any promotional avenues. However, where a promotion has been offered before the employee could be considered for grant of benefit under ACPS but he refuses to accept such promotion, he cannot be said to be stagnating as he has opted to remain in the existing grade on his own volition. As such, there is no case for grant of ACPS in such cases. The official can be considered for regular promotion again after the necessary debarment period.
In the second case also, since in terms of Condition No.10 of the ACPS, on grant of ACPS, the employee shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy, the officer will have to give in writing his acceptance of the regular promotion when offered again after the debarment period before he can be considered for grant of second financial upgradation under ACPS.
Relying on the above, the learned counsel for the respondents would submit that in view of the above said clarification, when once the petitioners were offered promotion and it was refused, they are not entitled for upgradation under the above ACP Scheme and realising that the benefits of the Scheme are mistakenly extended to the petitioners, contrary to the conditions, the third respondent passed the impugned order and therefore, the impugned order is very well sustainable under law.
8. No doubt, the object under ACP Scheme needs to be viewed as a ‘Safety Net’ to deal with the genuine problem of stagnation and hardship placed by the employees due to lack of adequate promotional avenues. Clause 6.1 in the Office Memorandum dated 09.08.1999 of the second respondent contemplates ‘Screening Committee’ and it reads as follows:
“A departmental Screening Committee shall be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme”.
On the basis of the recommendations of the Screening Committee, the order was issued on 31.01.2000, sanctioning 1st/2nd level financial upgradation in the scale of Rs.4500-7500 relating to petitioner Rathnam. Further, the Scheme came into force with effect from 9th August 1999, whereas the petitioner (Rathinam) was promoted as Senior Fitter by order dated 29.09.1995 prior to the coming into force of the Scheme.
9. Annexure-I of Office Memorandum dated 09.08.1999 contains conditions for grant of benefits under the ACP Scheme, which reads as follows:
1. The ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits through financial upgradation only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;
2. The highest pay scale upto which the financial upgradation under the Scheme shall be available will be Rs.14,300-18,300. Beyond this level, there shall be no financial upgradation and higher posts shall be filled strictly on vacancy based promotions;
3. The financial benefits under ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later;
4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfilment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee, not found fit or due to departmental proceedings, etc., this would have consequential effect on the second upgradation which would also get deferred accordingly.
10. In Condition No.5, it is contemplated that two financial upgradations under the ACP Scheme shall be available, only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall be qualified for the second final upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him.
11. It is contended that the petitioners were given promotion prior to the Scheme came into effect. Thereafter, no promotions were offered to the petitioners. Therefore, it cannot be said that they are not entitled to the financial upgradation. Further, the case of the petitioners has been gone into by the Screening Committee appointed under clause 6 of the Scheme. Only on the basis of the recommendations of the Screening Committee, orders were passed granting the benefits of the and the clarification came into effect after extending the benefit of the Scheme to the petitioners in the year 2001. Therefore, as rightly contended by the petitioners, as per the terms and conditions of the Scheme and the recommendations of the Screening Committee, upgradation was given to the petitioners on completion of 12 years of service and they refused the promotions offered to them prior to coming into effect of the Scheme and hence it cannot be said that the petitioners are not entitled for the upgradation as per the ACP Scheme.
12. We have gone through the entire ACP Scheme. As has already been stated supra, the object of the Scheme is to grant financial upgradation to the employees, when there is stagnation in the service and the same has to be granted after expiry of 12 years first time and second financial upgradation to be granted after completion of 24 years.
13. The Scheme contemplates that once the promotion is offered and refused by the employee, his further promotion has to be debarred for a period of one year. After completion of that one year, the employee is entitled for promotion. Though, originally, the position of employees regarding financial upgradation who refused promotion was not there in the Scheme, by clarification to Doubt No.38, on 18.7.2001, the Government, has made it clear that such employees are not entitled for the benefits of financial upgradation. It is seen from the entire Scheme that there are no penal or recovery provisions to recover the amounts already granted to the employees under this ACP Scheme, even by mistake or for any other reason. In the absence of any such penal provision, the respondents have no power or authority to initiate impugned action and to order recovery of the amounts already granted to the employees, after audit objection.
14. Further, when we have directed the respondents to point out their power to recover the financial upgradation already granted to an employee, the respondents have failed to brought to our notice their power to recover any amounts. As seen from the facts and circumstances of the case, the refusal of the first promotion by the petitioners is well before the Scheme came into operation and therefore the same cannot be pitted against the petitioners, to refuse the benefits to them.
15. Further more, in Nand Kishore Sharma and others ..vs..State of Bihar and others (1995 Supp (3) SCC 722), Sahib Ram ..vs.. State of Haryana and others (1995 Supp (1) SCC 18) and Bihar State Electricity Board and another ..vs.. Bijay Bhadur and another ((2000) 10 SCC 99), the Honourable Apex Court has held that the financial benefits granted to the employees, even if by mistake, cannot be recovered. The above judgments of the Honourable Apex Court were followed by a Division Bench of this Court, of which one of us (EDRJ) was a party, in W.P.No.33464 of 2004, dated 30.10.2007.
16. Secondly, the contention of the writ petitioners is that no opportunity was given to the petitioners before passing the impugned order and that, therefore, it violates the principles of natural justice. To appreciate the above said contentions, we have gone through the impugned order in the original applications dated 12.02.2004. It is seen from the Memo No.8-06/03 Adm.dated 12.02.2004 that as per the instructions contained in the Ministry of Agriculture dated 15.12.2003, based on an audit query made by Internal Audit during its inspection of records from 01.04.1999 to 31.03.2000, the 1st and 2nd level financial upgradation under the ACP Scheme, granted to the petitioner Rathinam herein, were withdrawn from 31.01.2000 and, accordingly, the amounts paid to him in excess by way of salary and other allowances on account of grant of ACP Scheme were withdrawn and the order of recovery was marked to the said petitioner. It is evident from the impugned order that no notice or opportunity was given to the petitioners before passing the order stating under what circumstances they were not eligible for the aforesaid upgradation, especially when they are enjoying the above said benefit from the year 2000. Therefore, it amounts to violation of natural justice and on this ground also, the order passed by the respondents is liable to be set aside.
17. From the above discussion, it is clear that the petitioners were granted upgradation as per the recommendations of the Screening Committee under the ACP Scheme, and only due to the so-called audit objection, the impugned proceedings were passed. We are, therefore, of the view that the order is liable to be set aside.
Therefore, the common order of the Tribunal and the impugned order dated 12.02.2004 passed by the third respondent are set aside and the writ petitions are allowed. It is brought to the notice of this Court by the learned counsel for the petitioners that Bhavani (2nd petitioner in W.P.No.16099 of 2005) and Saroja (1st petitioner in W.P.No.27855 of 2005) have already attained superannuation on 30.09.2006 and 31.03.2007 respectively and Rathinam (petitioner in W.P.13142 of 2005) has retired on 31.01.2007. The authorities are, therefore, directed to refund the recovered amount to them. No costs. Consequently, connected WPMP.is closed.
Index: Yes/No. (E.D.R,J.,) (S.R.S,J.,)
Internet: Yes/No. 11.12.2007
gl/Rao
To
1. The Registrar,
Central Administrative Tribunal.
High Court, Madras.
2. The Director,
Union of India,
Central Institute of Fisheries
Nautical & Engineering Training,
Ministry of Agriculture,
(Department of Animal Husbandary
& Dairying),
Fine Arts Avenue,
Kochi-682 016.
3. Senior Administrative Officer,
Central Institute of Fisheries,
Nautical & Engineering Training,
Ministry of Agriculture,
(Department of Animal Husbandary
& Dairying),
Fine Arts Avenue,
Kochi-682 016.
ELIPE DHARMA RAO, J.,
and
S.R.SINGHARAVELU, J.,
gl/Rao
Common Order in Writ Petitions No.13142, 14415, 16099 and 27855 of 2005
11.12.2007