- (1.) Being aggrieved by the decision of the Central Administrative Tribunal, Calcutta Bench in O.A. No. 540 of 2003. The petitioners have approached this Court under Article 226 of the Constitution of India. The Tribunal has allowed the original application filed by the respondent and directed the petitioners to fix his pay on promotion to the post of Head Typist with effect from 14th March 2003 at Rs. 6050/-. All consequential benefits were directed to be paid to the respondent. The brief facts giving rise to the present petition arc as follows :- The respondent was appointed as a Junior Typist with the petitioners from 18.03.1978. He was promoted to the post of Senior Typist on 27.09.1979. A further promotion was extended to him as Head Typist in the scale of Rs. 1400- 3200/- with effect from 01.10.1994 and his substantive pay was fixed at Rs. 1680/- Indisputably, the promotion of the respondent to the post of Head Typist was on an officiating basis whereas his service as a Senior Typist was regularised on 20.07.1994. When the respondent was directed to work as a Head Typist on an officiating basis he held lien on the post of Senior Typist. Later the respondent was declared surplus as Head Typist and. therefore, was reverted to the post of Senior Typist. While working as a Head Typist on officiating basis, the petitioner was paid an amount of Rs. 6050/- in the revised scale of Rs. 5000-8000/-. When the petitioner was reverted to the post of Senior Typist he was drawing pay in the scale of Rs. 4000-6000/-. The respondent was then promoted on a regular basis as Head Typist with effect from 14.01.2003 and was paid salary in the scale of Rs. 5000-8000/-. However, when he was promoted on a regular basis the respondent was not paid salary of Rs. 6050/- which he was drawing while officiating as a Head Typist instead he was paid Rs. 5300/-. A recovery notice was issued on 06.05.2003 to the respondent for recovery of the excess payment made to him. The respondent, therefore, approached the Administrative Tribunal for quashing the recovery notice and for re-fixation of his pay as Head Typist.
(2.) The petitioners in their reply before the Tribunal contended that the respondent had accepted his promotion as Senior Typist in the year 1994 without any grievance and had filed the original application only in the year 2003. It was, therefore, pleaded that the application was barred by limitation. The petitioners contended in their reply that the respondent's promotion to the post of Head Typist was not a regular promotion but a conditional one, conferring no title and seniority over his seniors in the parent department. His salary was paid in accordance with the others in his parent department and, therefore, it was pleaded that the respondent was not entitled to any relief. The Tribunal, after considering the pleadings and the submissions of the parties before it, held that the respondent was entitled to the relief claimed by him. The Tribunal relief on the judgment of the Supreme Court in the case of Union of India and Anr. vs. R. Swaminathan, 1997 AIR(SC) 3554 The Tribunal calculated that the respondent could not be paid salary of the post of Head Typist at rate which was lower than that which was paid to him when he was officiating in the same post. Accordingly, the Tribunal granted the respondent the salary of Rs. 6050 in the pay-scale of Rs. 5000-8000/-
(3.) Mr. Banerjee, learned counsel appearing for the petitioners has submitted that the Tribunal has misdirected itself inasmuch as it has relied on the judgment which has no application to the facts involve in the present case. He submitted that the respondent had been working as a Junior Typist and was promoted as Senior Typist on a regular basis in the open line department. However, ho was promoted to an ex-cadre post on an ad hoc basis as Head Typist and was paid an amount of Rs. 6050/- as salary. According to the learned counsel since his ad hoc promotion was in an ex cadre post in the construction line department the respondent was not entitled to the same salary when he was appointed as Head Typist in the open line department on a regular basis. He submitted further that when the respondent was promoted to an ex-cadre post he was aware that his promotion was conditional and that he was not entitled to seniority or any benefits attached to the post. The learned counsel then pointed out that the respondent had raise no objection when he was reverted to the post of Senior Typist from the post of Head Typist and was paid a lower salary than that he was drawing as Head Typist. He was, therefore, estopped from seeking the salary, which he was paid while officiating in an ex-cadre post, urged the learned counsel.;