PARIMAL SAHA Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner has filed this petition under Article 227 of the Constitution of India calls in question tenability of an order dated 3rd May 2016 passed by the Central Administrative Tribunal, whereby an application filed by the petitioner under Section 19 of the AT Act has been dismissed. The petitioner was granted benefit of higher pay scale in the cadre of Date Entry Operator, subsequently the benefit was withdrawn and excess amount directed to be recovered. Challenging the recovery on account of the fact that same is impermissible in view of the law laid down by the Supreme Court in the case of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 4 SCC 334. The application under Section 19 of the AT Act was filed before the Central Administrative Tribunal and the Tribunal having rejected the same, this writ petition has been filed under Article 227 of the Constitution of India.

(2.) Learned counsel for the petitioner invites attention of this Court to a circular of the department issued vide Annexure- P/5 to say that after the law laid down by the Supreme Court in the case of Rafiq Masih , this recovery is impermissible in view of the provision and situation indicated by the Supreme Court in the judgment rendered in the case of Rafiq Masih and reproduced in para 4 of the circular Annexure-P/5. Contending that ignoring the circular as the recovery has been upheld by the learned Central Administrative Tribunal interference is sought for.

(3.) However, we find that vide orders passed by this Court on 25.6.2015 in W.P. No.8084/2013, 9447/2014 and 2805/2014, similar question has been considered and similar prayer rejected. In the matter of grant of promotion, i.e. 2 nd ACP to the employee working in the department, the Central Administrative Tribunal, Banglore passed an order on 30 th September, 2009 in the case of C.A. Prahalladh Rao and others Vs. Union of India in favour of the employee. In the said judgment, it was held by the Tribunal that Data Entry Operators are entitled to be placed in a higher pay scale and granted the benefit 2nd ACP. This order of Central Administrative Tribunal at Banglore was challenged by the department before the Karnatka High Court and the writ petition filed by the department was also dismissed. Claiming parity with the employees who were granted benefit by the Banglore Bench various applications were filed before the Central Administrative Tribunal at Jabalpur also and all these applications were allowed and after following the principle of law laid down in the case of C.A. Prahalladh Rao benefit was granted to various employees like the petitioner. Ultimately, the judgment rendered by the Central Administrative Tribunal Banglore and affirmed by the Karnatka High Court went to the Supreme Court in the case of Union of India Vs. C.A. Prahalladh Rao i.e. civil appeal no.10862/2014 and by a detailed judgment passed on 9.12.2014 Hon'ble Supreme Court set aside the judgment of the Central Administrative Tribunal and the Karnatka High Court and directed quashment of all the orders passed granting the benefit of higher pay scale to the Data Entry Operators in the scale of Rs.1350-2200/- w.e.f. 1.1.1986. Consequent to the aforesaid judgment of the Tribunal, the impugned action has been taken. When this question was considered by a Coordinate Bench of this Court on 25.6.2015 in W.P. No.8084/2013 and other cases with regard to recovery of the amount already paid, similar prayer as was made before the Central Administrative Tribunal by the petitioner was made and this Court was of considered view that recovery was being ordered in view of setting aside of the pay fixation by the Supreme Court therefore, the law laid down in the case of Rafiq Masih will not apply. In the present case also learned Central Administrative Tribunal has followed the same principle and we are of the considered view that the Tribunal has not committed any error. In this case the petitioner was granted the benefit of higher pay scale by the department and, therefore, as the departmental action in not granting this benefit was challenged before the Central Administrative Tribunal. It was only when the Central Administrative Tribunal allowed the benefit by virtue of order passed in the case of C.A. Prahalladh Rao that higher pay scale was granted to the petitioner.