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2008 DIGILAW 402 (ORI)

HIRANYA KUMAR PRADHAN v. UNION OF INDIA (UOI)

2008-05-09

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : B.K. Patel, J. - The Petitioner in this writ application challenges the legality of the order dated 13.9.1999 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 43 of 1999. 2. The case of the Petitioner before the Tribunal was that he joined Savings Bank Control Organization (for short 'SBCO') as Lower Division Clerk (for short 'LDC') in the Postal Departmental under opp. party No. 3. He got officiating promotion as an Upper Division Clerk (for short'UDC'), Sundargarh on 7.11.1988. The cadre of LDC carried the salary in the scale of pay of Rs. 950-1500/- whereas the cadre of UDC carried the salary in the scale of pay of Rs. 1200-2400/-. As per the scheme introduced in D.G.(P) Letter No. 20-2/88-PR dated 26.7.1991, Annexure-1, both the cadres of LDC and UDC, SBCO merged into a new cadre of Postal Assistant, SBCO with effect from 1.8.1991. It was provided in the scheme that the officials who do not opt for their old scale will be brought into the new grade of Postal Assistants, SBCO. The Petitioner opted to come under the new cadre and such option was accepted by opp. party No. 2 by memo dated 22.1.1992, Annexure-2. However, opp. party No. 2 in his memo dated 19.9.1991, Annexure-3, passed an order of reversion of the Petitioner from the cadre of UDC to the cadre of LDC, SBCO. Thereafter, the Petitioner avers to have made a representation as there was wrong fixation of pay on promotion to the next higher scale of pay under Time Bound One Promotion Scheme for payment of arrears when the scale of pay was revised on recommendation of the 5th Pay Commission. However, opp. party No. 3 by letter dated 3.7.1988, Annexure-4, informed the Petitioner that due to excess payment on account of wrong fixation of pay of the Petitioner on his reversion to the cadre of LDC, the pay was required to be corrected. As appeal made to opp. party No. 3 did not yield any result, apprehending recovery of the amount alleged to have been paid in excess, the Petitioner filed O.A. No. 43 of 1999. It appears that the prayer of the Petitioner before the Tribunal was for quashing the order dated 19.9.1991 i.e. Annexure-3 to the writ application directing reversion of the Petitioner from the cadre of UDC to the cadre of LDC, SBCO. It appears that the prayer of the Petitioner before the Tribunal was for quashing the order dated 19.9.1991 i.e. Annexure-3 to the writ application directing reversion of the Petitioner from the cadre of UDC to the cadre of LDC, SBCO. The Respondents filed counter affidavit before the Tribunal stating inter alia, that the Petitioner, while working in his substantive post of LDC, SBCO at Dhenkanal and getting pay of Rs. 1110/- in the scale of Rs. 950-1500/-, got officiating promotion to the post of UDC, SBCO and joined at SBCO, Sundargarh Head Post Office on 7.11.1988 where he was drawing pay of Rs. 1260/- and, subsequently Rs. 1350/- with effect from 1.12.1990, Upon merger of the cadres of LDC and UDC to the common cadre of Postal Assistant, SBCO carrying the scale of pay of Rs. 975-1660/- with effect from 1.8.1991, the Petitioner exercised his option under FR 23 to come over to the new scale and his pay was fixed at the stage of Rs. 1360/- with effect from 1.8.1991. However, the officiating promotion of the Petitioner as UDC, SBCO ceased and he was reverted to his parent substantive post of LDC, SBCO because he did not qualify in the departmental examination for promotion to the post of UDC, SBCO. The examination was conducted on 5.6.1991 as per notification issued prior to the merger of LDC and UDC, SBCO. The result of the aforesaid examination was communicated on 16.7.199.1 whereas the order of merger of LDC and UDC, SBCO was issued on 26.7.1991. Also consequent upon the Petitioner's reversion, a qualified person was posted against his post. In such backdrop, it was averred by the opp. parties that the merger order did not affect the UDC examination which was held prior to receipt of the merger order for which the Petitioner cannot claim benefit of his officiating promotion as UDC and claim merger into the post of Postal Assistant, SBCO on that basis. Upon consideration of the rival contentions, the Tribunal appears to have refused to interfere with the order of reversion of the Petitioner from the officiating post of UDC, SBCO to his substantive post of LDC, SBCO. Upon consideration of the rival contentions, the Tribunal appears to have refused to interfere with the order of reversion of the Petitioner from the officiating post of UDC, SBCO to his substantive post of LDC, SBCO. However, the Tribunal held that the Petitioner should be treated as Postal Assistant, SBCO with effect from 3.12.1991 i.e. the date of his joining as LDC, SBCO at Dhenkanal Head Post Office and for fixation of his pay as Postal Assistant SBCO at Dhenkanal Head Post Office as on 3.12.1991 on the basis of substantive post of LDC, SBCO and for fixation of his pay from 1.8.1991 when the merger took place till 2.12.1991 when he was relieved from the post of UDC, SBCO, Sundargarh Head Office, his pay as Postal Assistant SBCO, Sundargarh taking into account his officiating pay as UDC, SBCO. 3. In assailing the impugned order, it was submitted by the learned Counsel for the Petitioner that Annexure-I, the order of merger stipulated that consequent upon the merger, the posts of LDC and UDC, SBCO shall be abolished and equal number of time scale Postal Assistants will be created except in respect of LDCs/UDCs who will opt to retain their old grade. Such remaining posts of LDcs/UDCs will be converted to Postal Assistants as and when the concerned LDC or UDC, who opts for old grade, ceases to hold that post on retirement, death etc. as the case may be. Referring to these provisions, it was argued that the moment the Petitioner's option to come under the new cadre of Postal Assistant was accepted, not only the officiating post of UDC he was holding but also the post of LDC from which he was promoted automatically got abolished for which there was no post available in the cadre of LDC to which the Petitioner could have been reverted. However, such contention is not acceptable in view of the fact that the Petitioner's promotion from the cadre of LDC was an officiating basis and the post of LDC he was holding earlier was always available till confirmation of his promotion. The Petitioner has no basis to raise grievance against reversion in view of the fact that he failed to qualify in the examination held for promotion prior to the merger of the two cadres. There is another reason also which comes on the way of the Petitioner to challenge the reversion. The Petitioner has no basis to raise grievance against reversion in view of the fact that he failed to qualify in the examination held for promotion prior to the merger of the two cadres. There is another reason also which comes on the way of the Petitioner to challenge the reversion. Annexure-3, the order of reversion haying been passed as early as on 19.9.1991, the Petitioner could not have approached the Tribunal to challenge the reversion in the year 1999 when the Original Application was filed. The Original Application raising grievance against recovery of excess payment made to the Petitioner towards his salary due to wrong fixation amounts to challenging the legality of the reversion order. There being no scope to challenge the order of reversion, we find no illegality in the impugned order directing recovery of amount paid to the Petitioner due to wrong fixation of salary. 4. Learned Counsel for the Petitioner contended that in view of the FR 23, the holder of a post, the pay of which is changed, shall be treated as if he was transferred to a new post on the new pay. It was argued that the Petitioner having opted for the new scale for Postal Assistant he should be treated as if he was transferred to that post on the new pay from the post of UDC. It was further argued that holder of a post as provided under FR 23 applies to officiating as well as substantive holder of a post. In this connection, it is observed that Annexure-1, the order of merger itself provides that the officials who do not opt for their old scales will be brought into the grade of Postal Assistant, SBCO and their pay will be fixed under FR 22 (a)(2). That apart, this aspect has also been squarely dealt with by the Tribunal in directing fixation of the Petitioner's pay as Postal Assistant from 1.8.1991 to 2.12.1991 taking into account his officiating pay as UDC and fixation of the Petitioner's pay from 3.12.1991 on the basis of his pay as LDC. 5. Relying upon the decision in Babulal Jain v. State of Madhya Pradesh and Ors. (2007) 2 SCC (L&S) 422 and Anr. decision of the Supreme Court in Shyam Babu Verma and Ors. v. Union of India (UOI) and Ors. Writ Petition (C) Nos. 5. Relying upon the decision in Babulal Jain v. State of Madhya Pradesh and Ors. (2007) 2 SCC (L&S) 422 and Anr. decision of the Supreme Court in Shyam Babu Verma and Ors. v. Union of India (UOI) and Ors. Writ Petition (C) Nos. 12897 to 12899 of 1984, it was last submitted by the learned Counsel for the Petitioner that as the so called excess payment was made not due to any mistake or misrepresentation on the part of the Petitioner, it shall not be just and proper to recover any excess amount which has already been paid to the Petitioner. In the present case, there is no basis to urge that the Petitioner is not responsible for excess payment made to him. The order of reversion to the post of LDC and consequently the order of recovery of excess payment made to the Petitioner as his salary for his new post of Postal Assistant was fixed on the basis of his option given while holding officiating post of UDC due to the Petitioner's failure to pass the examination for promotion to the post of UDC. As the Petitioner himself was responsible for not qualifying in the examination, the order of recovery is not unjustified. 6. In view of the above, we do not find any ground to interfere with the impugned order passed by the Tribunal in O.A. No. 43 of 1999. Accordingly, the writ application is dismissed. L. Mohapatra, J. 7. I agree. Final Result : Dismissed