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Madhya Pradesh High Court · body

2008 DIGILAW 36 (MP)

Union of India v. C. Samuel

2008-01-09

DIPAK MISRA, R.S.JHA

body2008
Judgment ( 1. ) BEING aggrieved by order dated 10-1-2004 passed in o. A. No. 796/2003 the Union of India and its authorities have filed this petition before this Court on the ground that the tribunal, while allowing the petition filed by the respondent, has wrongly granted relief of quashment of the order directing recovery of the amount wrongly paid to the respondent. ( 2. ) THE facts, in brief, necessary for adjudication of the present petition are that the respondent initially joined the income Tax Department as a stenographer (Ordinary Grade) on 26-5-1979. Subsequent thereto, he participated in a qualifying examination in which he qualified only for appointment to the post of L. D. C. and was thereafter appointed as L. D. C. specifically on the basis of the willingness and consent given by him on 11-4-1986 for appointment as L. D. C. He was subsequently regularized on this post with effect from 8-41986. On 1-3-1985 the petitioner-authorities directed the respondent to submit the joining report as L. D. C. which was submitted by the respondent on 28-3-1985 under protest as his representation for regularisation on the post of stenographer was pending before the authorities. Thereafter, the authorities passed an order dated 5-10-2000 appointing the respondent as an L. D. C. on regular basis. Vide order dated 15-3-2002 the petitioner-authorities granted pay protection to the respondent as the salary being paid to him as a stenographer was more than the pay for the post of L. D. C. However, in view of an audit objection dated 24-9-2002 the order of pay protection was set at naught and it has been directed to fix the pay of the respondent on the post of L. D. C. with effect from 8-4-1986 in the minimum of the pay-scale i. e. Rs. 950-1500 and recover the balance amount which had been paid as per pay fixation order dated 15-3-2002. Being aggrieved by the said audit note the respondent had filed a petition before the Central administrative Tribunal to protect the pay drawn by him in the cadre of stenographer (O. G.) till he reaches the same grade of pay by earning increments or promotion and had also prayed for quashing the audit note. As the petition has been allowed by the Tribunal by the impugned order, the respondent-authorities have filed the present petition before this Court. ( 3. As the petition has been allowed by the Tribunal by the impugned order, the respondent-authorities have filed the present petition before this Court. ( 3. ) THE short issue raised by the petitioners before this Court is as to whether the Tribunal has erred in law in prohibiting the petitioner-authorities from recovering the excess amount paid to the respondent by treating him to be a stenographer although he was only entitled to the pay of an L. D. C. and whether in the facts and circumstances of the case, the Tribunal was right in protecting the pay of the respondent as stenographer even in future. ( 4. ) AS is clear from the facts available on record the respondent initially joined services in the income tax department as a stenographer and he continued to work on this post uninterruptedly up to 28-3-1995 on which date he joined services on the post of L. D. C. It is also apparent that though the pay-scale for the post of L. D. C. is less than the pay-scale of the post of stenographer, the authorities, vide order dated 15-32002 protected the pay of the respondent even on the post of l. D. C. This order of pay-protection was subsequently withdrawn by the order dated 25-5-2002 directing recovery of the excess pay given to him. ( 5. ) IN view of the aforesaid facts it is apparent that the respondent was given pay in the pay-scale admissible to the post of stenographer not on account of any mistake or misrepresentation but on account of a conscious decision by the petitioner-authorities keeping in view the fact that the respondent initially joined the income tax department as stenographer and continued to work on that post up to 28-31995 and, therefore, as the present case is not one where the excess pay was paid to the respondent on account of any mistake by the petitioner-authorities or misrepresentation by the respondent but was paid on account of the fact that the respondent had worked on the post and performed the duties, of a stenographer during this period and, therefore, we do not find any fault in the order of the Tribunal as far as it relates to quashing the impugned order dated 24-9-2002 regarding recovery of the excess amount paid to the respondent for the period up to 28-3-95. ( 6. ( 6. ) FROM the record of the case it is also discernable that subsequent to the petitioner joining the post of L. D. C. on 28-31995 the issue regarding his pay fixation was pending before the authorities which was ultimately decided vide order dated 24-9-2002 by which the previous order of pay-fixation dated 15-3-2002 was withdrawn. In such circumstances, as the matter regarding pay-fixation of the respondent was already pending before the authorities and the respondent, during the intervening period and as an interim measure was given the pay admissible to a stenographer, no right, legal or otherwise has accrued to the respondent to claim that the excess paid to him during this period be not recovered as the respondent is only entitled to pay and all other benefits as admissible to an L. D. C. ( 7. ) WE are also of the considered opinion that as the respondent has been regularly appointed on the post of L. D. C. , on the basis of an unequivocal willingness in writing submitted by him and, therefore, he is only entitled to the pay and other benefits as admissible to an L. D. C. and he cannot be permitted to claim pay-protection to the extent that he should be continued to be granted pay and benefits as admissible to a stenographer in the circumstances of the present case. ( 8. ) IN view of the above, the impugned order of the Tribunal whereby the entire recovery of the excess amount paid to the respondent has been quashed and it has been directed that the pay drawn by the respondent in the cadre of stenographer shall continue to remain protected in spite of the fact that he is working only on the post of an L. D. C. and was neither appointed or confirmed on the post of a stenographer in accordance with rules deserves to be and is hereby set aside, except that part of the order which relates to the recovery of the excess paid for the period up to 28-3-95 which is hereby upheld and the recovery for the said period is quashed. ( 9. ( 9. ) WE may hasten to add that in case any amount has to be recovered from the respondent on account of excess payment made to him for the period 28-3-1995 onwards i. e. during the period he was working as an L. D. C. and the matter regarding fixation of pay was pending before the authorities, the said be recovered only by way of easy instalments in a phased manner so that it does not cause any financial hardship to him. ( 10. ) WITH the aforesaid observations, the petition filed by the petitioner is partly allowed and the petition is disposed of with the aforesaid observations.