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2018 DIGILAW 1464 (GAU)

Union of India v. Chandramanishi Kumar

2018-10-01

A.K.GOSWAMI, AJIT BORTHAKUR

body2018
JUDGMENT : A.K. Goswami, J. Heard Mr. S.C. Keyal, learned Assistant Solicitor General of India, appearing for the petitioners. 2. Challenge in this writ petition under Article 226 of the Constitution of India is to an order dated 09.01.2018 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench in O.A. No.040/00242/2016, whereby the learned Tribunal set aside the orders dated 02.05.2016 and 31.05.2016, seeking to recover a sum of Rs. 98,739/- (Rupees Ninety Eight Thousand Seven Hundred Thirty Nine) from the respondent No.1. 3. The case projected by the respondent No.1/applicant in the Original Application is that he was appointed as a Lower Division Clerk (LDC) on 13.06.1997 in the Department of Commerce (Supply Division), Directorate General of Supplies & Disposals, Ministry of Commerce & Industry. He was selected as Upper Division Clerk (UDC) against the vacancy that occurred in the year 2003. The respondent No.1 was selected in the Combined Graduate Level Examination, 2011 conducted by the Staff Selection Commission (SSC) and accordingly, to join in the post of Assistant Enforcement Officer under the Ministry of Finance, Department of Revenue, Government of India, he submitted his technical resignation on 16.12.2012. Subsequently, he was promoted to the post of Enforcement Officer with effect from 01.04.2016. 4. The Government of India, Department of Personnel & Training issued an Office Memorandum dated 22.06.2011 for creation of a new grade of UDC, i.e. Non-Functional Selection Grade (NFSG) in Central Secretariat Clerical Services (CSCS) and Central Secretariat Stenographers' Services (CSSS). 5. In terms of the said Office Memorandum dated 22.06.2011, UDCs of CCSS and Stenographers Grade-D of CSSS are eligible for placement in NFSG on completion of 5(five) years of approved service as UDC/Stenographer Grade-D, subject to the condition that the total number of grade will be restricted to 30% of the sanctioned strength. 6. It was the case of the respondent No.1/applicant before the Tribunal that as he was eligible for placement in UDC, NFSG on 22.06.2011, having completed 5(five) years service in the grade of UDC in the year 2008, vide Office Order dated 20.08.2015, he was granted NFSG in the Grade Pay of Rs. 4200/- in Pay Band-2 with effect from 22.06.2011. It was the case of the respondent No.1/applicant before the Tribunal that as he was eligible for placement in UDC, NFSG on 22.06.2011, having completed 5(five) years service in the grade of UDC in the year 2008, vide Office Order dated 20.08.2015, he was granted NFSG in the Grade Pay of Rs. 4200/- in Pay Band-2 with effect from 22.06.2011. Accordingly, his pay was re-fixed and based on such re-fixation, he was paid arrear amount for the period from 22.06.2011 to 16.11.2012, i.e. for the period he worked as UDC in the Department of Commerce, Supply Division, Directorate General of Supplies & Disposals. 7. On 19.02.2016, the Deputy Director (Administration) issued an Office Order holding that the respondent No.1 is not eligible for grant of NFSG for the Grade Pay of Rs. 4200/- as on the date of his inclusion in the Select List of 2003 of UDCs (Extended), he had technically resigned from service. Letter dated 02.05.2016 was issued on the representation of the respondent No.1 dated 16.03.2016 holding that he was not eligible for grant of NFSG as he was not promoted in the grade of UDC on regular basis and that NFSG was granted to regular UDCs of Select List 2003 (Extended) to only those who were in service as on the date of conduct of Departmental Promotion Committee for the Select List of 2003 (Extended). Letter dated 31.05.2016 was issued to the Assistant Director, Enforcement Directorate to take necessary action accordingly. 8. The writ petitioners did not file any affidavit before the Tribunal though the case was pending disposal for nearly about 2(two) years. 9. The learned Tribunal held that the arrears sought to be recovered pertain to the period when the respondent No.1/applicant before the Tribunal was working as Group-C employee and the amount was paid to him without there being any misrepresentation or fraud and accordingly, applied the principles laid down in the case of State of Punjab and Others. -Vs- Rafiq Masih (White Washer) and Others., (2015) 4 SCC 334 . 10. On a query of the Court, Mr. Keyal has submitted that it is not in dispute that at the relevant point of time, the respondent No.1/applicant was discharging his duties as UDC though not regularly selected. 11. In Rafiq Masih, the Supreme Court at Paragraph 18 laid down some instances, wherein recoveries by the employers would be impermissible in law. On a query of the Court, Mr. Keyal has submitted that it is not in dispute that at the relevant point of time, the respondent No.1/applicant was discharging his duties as UDC though not regularly selected. 11. In Rafiq Masih, the Supreme Court at Paragraph 18 laid down some instances, wherein recoveries by the employers would be impermissible in law. It will be profitable to extract the aforesaid Paragraph 18, which reads as follows:- "12. 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 hereinabove, we may, as a ready reference, summarise 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." 12. Admittedly, Grade Pay of Rs. 4200/- in Pay Band-2 was paid to the respondent No.1/applicant with effect from 22.06.2011 and it is not disputed by Mr. Keyal that he was in Grade-C at that relevant point of time. It may be that the NFSG was granted when the respondent No.1 was no longer a Group-C employee but in our considered opinion, the same will not have any bearing as he had discharged his duties in the post of UDC for the requisite period. 13. Keyal that he was in Grade-C at that relevant point of time. It may be that the NFSG was granted when the respondent No.1 was no longer a Group-C employee but in our considered opinion, the same will not have any bearing as he had discharged his duties in the post of UDC for the requisite period. 13. In the above factual scenario, we are of the opinion that it will be wholly inequitable to allow the petitioners to recover the amount from the respondent No.1/applicant when the respondent No.1/applicant did not have any role to play in payment of arrear amount on re-fixation for the period from 22.06.2011 to 06.11.2012. 14. In view of the above discussions, we find no good ground to interfere with the order under challenge and accordingly, the writ petition is dismissed. No cost.