V RATHINAM Vs. CENTRAL ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) ALL these writ petitions are filed against the common order passed by the Central Administrative Tribunal in O.A.Nos.565 and 523 of 2004 dated 17.02.2005.

(2.) PETITIONER Rathinam was originally appointed as Fitter and he was promoted as Senior Fitter on 29.08.1995, which he refused due to unavoidable family circumstances and domestic reasons. PETITIONER Gandhi was originally appointed as Net Maker on 05.06.1974 and he was promoted as Junior Deck Hand on 05.01.1999. Thereafter, he was offered promotion, which he refused due to unavoidable family circumstances and domestic reasons. The petitioners in W.P.16099 of 2005 were originally appointed as Welder and Junior Clerk on 19.05.1978 and 23.12.1977, respectively, and subsequently, they were promoted as Senior Welder and Senior Clerk on 16.07.1986 and in the year 1994, respectively, which they refused due to unavoidable family circumstances and domestic reasons. PETITIONER V.R.Saroja was originally appointed as Junior Stenographer on 14.01.1972 and she was promoted subsequently as Head clerk, Senior Store Keeper, Accountant during 1994 and 2000 and she refused promotion on personal grounds. PETITIONER A.Joseph was originally appointed as Junior Clerk on 18.08.1973 and was promoted as Store Keeper on 07.12.1993 and he was not able to join because of his personal problems. PETITIONER Lathifunisa was originally appointed as Junior Clerk on 01.06.1974 and promoted as Store Keeper on 23.12.1993, in which post she has not joined and refused to take up due to her personal problems. PETITIONER Vincent was originally appointed as Peon on 07.02.1973 and he was offered promotion on 25.04.1997 to the post of Attender, which he refused to join due to his personal grounds of health.

(3.) LEARNED counsel for the writ petitioners contended that the Tribunal has failed to see that before passing the impugned order of recovery of the said amount from the applicants, no opportunity was given to the petitioners. Therefore, the Tribunal should not have dismissed the original application. He further contended that based on the judgments of the Supreme Court and this Hon'ble High Court, that when pay is fixed by the employer, without any misstatement or misrepresentation by the employees or due to an erroneous application of the rules/orders, recovery of the amounts already paid cannot be made. In the present cases, there was no misstatement or misrepresentation by the writ petitioner and it was respondents 2 and 3, who gave the benefits of financial upgradation by order dated 31.01.2000. At any rate, the respondents having given the benefits on their own accord, cannot cause recoveries to be made from the petitioners. He further submitted that the writ petitioner in W.P.No.13142 of 2005, who is a class-IV employee in the last rung of service in the Central Government, has already completed 34 years of service and is hardly having two more years of service. Under the circumstances, ordering recovery would cause great prejudice to the interest of the dependants of the applicant. Therefore, the order passed by the 3rd respondent as well as the Tribunal are liable to be set aside.