Prakash Janjani and Others vs The Union of India and Others

Veerender Singh Siradhana, J.�The two writ applications are directed against the order dated 7th March, 2014 passed by the Central Administrative Tribunal Bench at Jaipur (hereinafter referred to as the ''Tribunal'', for short), dismissing the Original Applications by the same order as the controversy raised therein was same and identical. Accordingly, both the writ applications have been taken up for adjudication by this common order.

Briefly, the material facts necessary for appreciation of the controversy raised are: that the petitioners-applicants were appointed on the post of Laboratory Assistant(s) in the year 1986-87, on regular basis, in the Regional Office of Health and Family Welfare, Rajasthan, Government of India, in the pay scale of Rs. 260-430 along with other admissible allowances.

Government of India, vide communication dated 29th September, 1995, integrated the Malariya Operational Field Research Scheme (herein after referred to as the ''MOFRS'', for short) with National Malariya Eradication Programme (hereinafter referred to as the ''NMEP'', for short). As a consequence the petitioners were transferred from MOFRS to NMEP in the same pay and allowances as admissible prior to their transfer. The petitioners were accorded benefits of pay fixation as per mandate of Fundamental Rule (FR) 22(1)A(1) owing to implementation of Assured Career Progression Scheme (ACP). In view of Recommendations of Sixth Central Pay Commission, Modified Assured Career Progression Scheme (MACP) was introduced and the petitioners were accorded benefits treating them employees on regular basis w.e.f. 1986-87. However, the benefits were withdrawn vide order 5th April, 2013, with reference to the employees of the erstwhile MOFRS with a further direction to effect recovery of excess payment made. The Tribunal declined to interfere with the order withdrawing the benefits of MACPS as well as recovery; dismissing the Original Applications vide impugned order dated 7th March, 2014.

The learned counsel for the petitioner reiterating the pleaded facts and grounds of the writ applications as well as the stand before the Tribunal in the Original Applications, argued that the impugned order dated 7th March, 2014 passed by the Tribunal, is illegal, arbitrary and unlawful. The learned counsel would further submit that the Tribunal committed gross error as it lost sight of the provisions of MACP Scheme. Further, the Tribunal committed an error in accepting the plea of the respondent-Government of India that the controversy stands concluded by the decision of Bangalore Bench of the Tribunal, on the identical issue. The learned counsel made an attempt to draw a difference between two schemes i.e. Assured Career Progression Scheme (ACPS) and Modified Assured Career Progression Scheme (MACPS), with reference to the criteria for determination of ''regular service'' under the two schemes being different and distinct. According to the learned counsel for the petitioners in ACPS only those services are counted where the employees rendered the services accountable for promotion whereas it is not so in case of MACPS, and the Tribunal completely lost sight of this aspect. Moreover, the initial appointment of the petitioners was a regular appointment in the year 1986-87, on the post of Laboratory Assistant(s), and they were also accorded protection of benefits of regular scale of pay in the year 1995 when the two schemes i.e. MORFS and NMEPS, were integrated. Further, the Hon''ble Supreme Court in Civil Appeal No. 444-450 of 2002} Union of India Vs. C.B. Gangdharia & Others, dealt with matters of ACPS while holding that those employees would be entitled to get benefit only from the date of absorption.

We have heard learned counsel for the petitioner and examined the materials available on record as well as carefully perused the impugned order passed by the Tribunal.

Indisputably, the controversy raised before the Tribunal was same, that was considered and adjudicated upon the Bangalore Bench of the Tribunal, declining interference with the order in withdrawing the benefits of MACPS and recovery of excess payment made on that count. The learned counsel for the petitioners fairly admitted the fact that the adjudication of the Bangalore Bench of the Tribunal was also a subject matter of writ petition No. 2722/2001 and 12391-12396/2001, before the High Court of Karnataka at Bangalore, wherein the writ petitions have been dismissed, affirming the view of the Bangalore Bench of the Tribunal.

The Office Memorandum dated 9th August, 1999, on the ACPS explained the phrase ''Regular Service'' under the para No. 3.2, as under:

"''Regular service'' for the purpose of the ACP Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant Recruitment/Service Rules."

Under the MACPS, the phrase ''Regular Service'' under para 9, reads thus:

''Regular service'' for the purposes of the MACPS shall commence from date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department, in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."

The distinction sought to be drawn by the learned counsel for the petitioners has no substance in the face of Corrigendum issued vide communication dated 1st September, 2011, by the Directorate General of Health Services, in the back drop of NOTE bearing No. A-12026/10/2011 PH(CDL) issued by the Department of Legal Affairs, taking note of the order of the Hon''ble Apex Court of the land. The Corrigendum in no uncertain terms clarified that the grant of MACPS to the MOFRS staff working in NVBDCP and various other schemes will be available from the date of actual joining of the post in the entry grade.

The issue of recovery of excess payment is no more res-integra in view of the authoritative pronouncement of the Hon''ble Apex Court of the land in case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , wherein their Lordships observed thus, Para No. 14:

"We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favoritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

A glance of the observations made by the Hon''ble Supreme Court in the case of Chandi Prasad Uniyal and Ors.(supra), would reveal that the claim of the petitioners cannot be sustained and the Tribunal committed no error in dismissing the Original Applications.

For the reasons and discussions hereinabove as well as in view of the pronouncement on the controversy by the Hon''ble Apex Court of the land; the writ applications are devoid of any substance and lack in merit, and therefore, deserve to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.