- (1.) The respondent herein was promoted on ad hoc basis as a High Skilled Manson in the year 1988 and was given pay scale of Rs.1200-1800. Before his promotion on ad hoc basis, he was working as Manson, which is an ex-cadre post. On the verge of his retirement, the petitioner served a show-cause notice upon the respondent, inter alia, stating that the pay scale of Rs.1200-1800 given to him on his promotion as a High Skilled Manson was erroneously given, as this pay scale should have been given with reference to the pay scale of cadre post in the feeder cadre and not the ex-cadre post. The pay was thus revised downwards after refixation of the respondent's pay in a lower pay scale and recovery was sought to be made by passing orders after the retirement of the respondent. Thereafter, the respondent challenged the said order before the Central Administrative Tribunal (in short, 'the Tribunal'), which vide impugned judgment dated 26.7.2005 the learned Tribunal has allowed the application of the respondent whereby settling aside the order of downgrading and recovery. Aggrieved by the same, the Railways has preferred the present writ petition impugning the order of the Tribunal.
(2.) The minimal facts which require to be stated are thus: The respondent belongs to the Reserved Category and joined the services as a regular Gangman on 27.3.1970. He was promoted, on ad hoc basis, as Manson in the grade of Rs.260- 400 on 12.8.1970. While working in the Construction Organization and retaining his lien in open line, the respondent was also promoted on ad hoc basis as a High Skilled Manson in the grade of Rs.1200-1800 on 14.6.1988. However, in his parent cadre at New Delhi division the respondent was regularized as Manson in the grade of Rs.950-1500 on 27.6.1990. When he was given regular promotion as Manson in his parent division, he made a representation to include his name in the seniority list of artisan staff of Delhi division. Instead of doing so, show-cause notice dated 30.1.2002 was issued to him to fix his pay as per Railway Board's instructions dated 17.8.1998 alleging therein that while being promoted on ad hoc basis in ex-cadre of Construction Organization, his pay was erroneously fixed in the ex-cadre lower grade whereas the same should have been fixed as per PS 9824. The respondent replied to the said show-cause notice and also made a representation to the petitioner herein submitting that as his junior in the parent cadre had been promoted in the grade of Rs.1200-1800, his pay should not be reduced. No action was taken immediately and the respondent retired on superannuation from the Construction Organization as ad hoc Manson on 31.8.2003 in the revised scale of Rs.4000-6000 (pre-revised Rs.1200-1800). After his retirement, however, order dated 12.11.2003 was issued fixing his pay in the pay scale of Rs.950-1500 with a direction that excess payment made during all these years be recovered from him. Aggrieved by this order of refixation of pay and recovery from his retiral benefits restrospectively and also not giving him the benefit of the higher grade, which was given to his juniors in the construction division, the respondent filed an application under Section 19 of the Administrative Tribunal Act, 1985 before the Tribunal. This application has been allowed by the Tribunal vide judgment dated 26.7.2005 against which the present petition is preferred, as mentioned above.
(3.) It is clear from the facts narrated above that though the parent cadre of the petitioner was New Delhi division, he was made to work in the Construction Organization for most of his service period. In the Construction Organization, he was also given an ad hoc promotion as highly skilled Manson in the grade of Rs.1200-1800 way back in 14.6.1988. This pay scale was revised with effect from 1.1.1996 whereby his pay was fixed in the replacing pay scale of Rs.4000-6000. Thus, the respondent continued to enjoy the pay in the said pay scale right from the date of his promotion in the year 1988 till his retirement on 31.8.2003. No doubt, sometime before his retirement he was issued a show-cause notice, but no orders were passed thereupon till his retirement. In any case, even the said show-cause notice was issued more than 14 years after fixation of his pay. We also do not find it to be a mistaken case. Since the respondent was working in the Construction Organization throughout, he was given promotion there in the higher pay scale and his promotion was also not withdrawn at any point of time. Even presuming it to be a case of mistake, it cannot be said that such a mistake is attributable to the respondent. Therefore, in the light of the decision of the Apex Court in Shyam Babu Verma v. Union of India, 1994 (27) ATC (SC) 121 and Sahib Ram v. State of Haryana, 1995 SCC (LandS) 248, the Tribunal rightly concluded that the petitioner could not make any recovery in respect of the alleged excess salary paid to him, that too after his retirement and from his retiral benefits.;