JUDGMENT A.S. Sanghvi, Member (J)
1. Being aggrieved by the order of the respondents dated 7.10.2002, cancelling the order dated 24.7.2000 containing approval of the Postmaster General for steping up of the pay of six officials, including both the applicants and directing the recovery of the excess amount paid by way of pay and allowances, the applicants have approached this Tribunal by moving this O.A. under Section 19 of the Administrative Tribunals Act, 1985. Both the applicants were working as P. A. and according to them, their pay was fixed in the revised scale of pay at Rs. 4625 w.e.f. 1.1.96 as per the recommendation of the Vth Pay Commission. However, one another official Mr. B.J. Jani who was junior to both the applicants and whose pay was fixed at Rs. 4500 w.e.f. 1.1.96 on completion of 16 years of service was given benefit of TBOP w.e.f. 6.3.96 and his pay was fixed at Rs. 4750. The applicant and Ors. therefore, represented to the department about the pay anomaly and demanded stepping up of their pay at par with Mr. B.J. Jani. The department therefore, issued order dated 24.7.2000 granting stepping up of pay to the applicants in the scale of Rs. 4500-7000 bringing them at par with their junior Mr. Jani. However, in view of the letter received from the respondent No. 1 regarding the placement under TBOP/BCR scheme in cases where seniors were considered for placement at par with their juniors, the respondent No. 2 issued the impugned order dated 7.10.2002 cancelling the earlier order dated 24.7.2000 allowing the stepping up of the pay to the applicants and directed the recovery of excess amount paid by way of salary and allowances from the applicants.
2. The applicants have challenged this order on the ground that they were not served with any notice prior to cancellation of the orders and the cancellation of the order is passed without giving them an opportunity of being heard, thereby violating the principles of natural justice. The earlier order granting them stepping up of pay at par with their junior, Mr. Jani was rightly passed to remove the anomaly of the pay between the senior and the junior and the same could not have been cancelled without giving an opportunity of being heard to them. It is also contended that in any circumstances, any amount paid to them cannot be recovered as they had not committed any wrong. According to them, their cases are covered by the orders issued by the Govt. of India which go to show that where the time bound promotions are granted to juniors in revised pay scale, the seniors are entitled to the benefit of stepping up of pay. According to them, the cancellation of the earlier order allowing stepping up of pay to them was erroneous and not as per the rules and hence, deserves to be quashed and set aside. They seek a direction against the respondents to allow them the benefit of the stepping up of pay at par with their junior Mr. Jani and also to refund the amount recovered from them with 18% interest.
3. The respondents have resisted the O.A. and in their written statement contended inter alia that the Superintendent of Post Offices, Juangadh division had irregularly allowed the stepping up of pay to the applicants. However, on the error having been noticed by the Postmaster General, the order cancelling stepping up of pay allowed to the applicants was passed. They have contended that the Director General, Department of Posts, New Delhi had clarified that the placements under TBOP/BCR were based on length of service of the officials concerned and these are not regular promotions, but financial upgradations only. The stepping up of the pay of senior official therefore is not applicable in the case of placement of the junior official in the higher scale of pay. According to the respondents TBOP/BCR are based on the length of service alone and not on the criteria of seniority. The stepping up of the pay of a senior official is not admissible in the case of placement of a junior official in the higher scale of pay. The stepping up of the pay is admissible only in respect of regular promotion. The stepping up of the pay of the applicants was not granted by the Competent Authority under FR 27 i.e. the Postmaster General. These orders were passed by the Superintendent of Post Offices who was not competent to issue such order. According to them, the applicant No. 1 has made representation to the next higher authority i.e. Member (P). Postal Service Board, New Delhi and the same is under consideration. They have denied that there was violation of principles of natural justice. According to them, the anomaly in the pay scale has arisen only account of Mr. Jani being given TBOP benefit but it has not occurred on account of relaxation of the pay of the junion i.e. Mr. Jani in the higher post. They have prayed that the O.A. be dismissed with costs.
4. We have heard the learned Counsel of both the parties and duly considered the rival contentions
5. The ease of the applicants of stepping up of pay with that of Mr. Jani is based mainly on the ground that while revising the scale of pay as per the recommendation of the Vth Pay Commission w.e.f. 1.1.96, the pay of Mr. Jani was fixed at Rs. 4700 while that of the applicant was fixed at Rs. 4525. There is no dispute that Mr. Jani is junior to the applicants and as such, ordinarily he could not have drawn higher pay than that of the applicants. It appears that this aspect had appealed to the Senior Superintendent of Post Offices who as per the reply of the respondents considered the representation of the applicants and issued the orders giving stepping up of the pay to the applicants bringing their pay at par with their junior Mr. Jani. The Postmaster General when asked for the approval of the stepping up given by the Senior Superintendent of Post Offices after examination of the case had directed that the stepping up of pay allowed by the Superintendent of Post Offices was irregular and the original provision be restored. However, it appears from the reply of the respondents that the applicants had represented their case for re-examination of the whole case and the PMG, after obtaining the concurrence of Circle Internal Financial Advisor had allowed the stepping up of these officials from 8.3.96 i.e. the date on which their junior official i.e. Mr. Jani was placed in the TBOP on 24.7.2000. Subsequently in view of the letter from the Director General, Department of Posts, New Delhi, the PMG has cancelled that order and the same has been the subject of the grievance of the applicants.
6. A bare perusal of Annexure A-1 produced by the applicants along with the OA as well as the averments made in the O. A. clearly suggests that the earlier order passed by the PMG allowing the stepping up of the pay to the applicants was erroneous. The benefit of the TBOP was availed by the applicants prior to 1.1.96 and after benefit was availed of by revision of the pay scale w.e.f. 1.1.96, they were placed in the pay scale of Rs. 4500-7000 and their pay was fixed at Rs. 4625, while the pay of Mr. Jani was fixed at Rs. 4500 w.e.f. 1.1.96. Mr. Jani was thereafter given the benefit of TBOP scheme and his pay was fixed at Rs. 4750 w.e.f. 6.3.96. Hence, it is quite evident that the anomaly in the pay of senior and junior officers had not arisen on account of revision of the pay scale but arose because of junior being given the benefit of TBOP scheme after the revision of the pay scale. If this anomaly is to be removed by increasing the pay of the applicants and bring them at par with their junior Mr. Jani, it would manifestly amount to extending them the benefit of TBOP scheme a second time. Obviously this cannot be done and the rules also do not permit such stepping up of the pay.
7. The stepping up of pay can be only under FR 22(1)(a)(1). FR 22(1) reads as under: FR 22(1) "Initial pay of a Govt. servant who is appointed to a post on a time scale of pay is regulated as follows:
(a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be subject to the fulfillment of the eligibility conditions as prescribed in the relevant rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the lime scale of the higher post shall be fixed at the stage next above the notional pay arrived at the by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty five only, whichever is more...."
8. The Govt.'s order (23) issued for removal of anomaly by stepping up of pay of a senior on promotion drawing less pay than his junior on dated 4.2.1966 provides as Under:
"In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1.4.1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions namely:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre; (b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (c) The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer."
9. As the order itself suggests that the senior Govt. servant becomes eligible for stepping up of the pay if, on his promotion and that of his junior, he is found to be drawing less pay than his junior and the anomaly has been directly as a result of the application of FR 22( 1 )(a)(1). In the instant case, since neither the applicants nor Mr. Jani were promoted and the anomaly in their orders is not because of the promotion given to either of or both of them, the question of applicability of FR 22( 1 )(a)( 1) does not arise. It is clarified by the Govt. and the scheme of TBOP also makes it abundantly clear that extending the benefit of TBOP is merely placement in the higher scale of pay on completion of 16 years or 26 years of service as the case may be. This is merely a financial up gradation and not a promotion to another post carrying duties and responsibilities of greater importance and therefore, the provisions of FR 22(1)(a)(1) are not attracted to the cases where the anomaly in the pay arises on account of the junior being given the benefit of TBOP. The respondent No. 1 vide his letter dated 17.5.2000 has also clarified that placement under TBOP and BCR scheme are based on the length of the service of the official concerned and not on the criterion of seniority. Seniors in the gradation list therefore cannot claim higher scale of pay at par with their juniors, if their juniors have got higher scale of pay by virtue of their completion of the prescribed period of service i.e. 16/26 years respectively. It is also further stated that TBOP/ BCR schemes are not promotions against the norms based posts in LSG and HSG-II grades but only placements in the same pay scale of pay on completion of 16 and 26 years of service respectively.
10. The TBOP scheme also, envisages only the financial upgradation and not regular promotion and therefore, the applicants cannot claim benefit of the provisions of FR 22( l)(a)( 1) and cannot claim that their pay should be stepped up with that of their junior Mr. Jani. The decision of the respondent No. 2 to withdraw the stepping up allowed to the applicants therefore, cannot be faulted. In the case of Union of India and Anr. v. R. Swaminathan etc., 1997(5) SLR 592 : 1999(1) SLJ 102 (SC), the Supreme Court dealing with the case of stepping up of pay where the junior official was receiving higher pay than that of his senior on account of the earlier officiation in the higher post because of local officiating promotions, has laid down that the junior's pay was increased because of his earlier ad hoc promotion and because of his earning increments in the higher pay scale of the post to which he was promoted on account of his past service and this cannot be considered as anomaly requiring the stepping up of the pay of his seniors. In that case the junior had received ad hoc promotion earlier than that of senior and had drawn increments in the higher pay scales of the promotional post. The Supreme Court however held that employee who had not officiated in the higher post earlier, will not get the benefit of the proviso of Fundamental Rules 22( 1 )(a)( 1) as neither the seniority nor the regular promotion of the employees is affected in such officiating local arrangement. In the instant case, neither the applicants nor their junior Mr. Janiare promoted to any higher post, the anomaly in the pay scale is not the direct result of their promotion. The financial upgradation received by Mr. Jani is not because of his regular promotion to the higher post carrying higher responsibility and as such, the benefit of the stepping up of their pay under FR 22(1)(a)(1) cannot be allowed to the applicants. We therefore, do not find any illegality or error committed by the respondent No. 2 in withdrawing the stepping up, the pay of the applicants. Mr. Pathak, learned Counsel for the applicant has however, submitted that the applicants have not been given any opportunity of being heard prior to the cancellation of the order giving benefit of the stepping up to them, and as such, the principles of natural justice is violated and the order deserves to be quashed on this ground. As observed above, the benefit of stepping up extended to the applicants was clearly erroneous and the department is therefore, justified in withdrawing this order. Since this was an erroneous order which cannot be sustained under the rules, the withdrawal of the order by the department did not require any hearing being given to the applicants. In the case of State of Karnataka v. Mangalore University Non-teaching Employees Association and Ors., 2002(3) SCC 302 : 2002(2) SLJ 403 (SC), the Supreme Court has held that in all cases of violation of principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. In that case also the Govt. had allowed the HRA and CCA paid to the employees residing outside the city corporation area on par with the employees working within the limits of the corporation. The said benefit was however withdrawn subsequently without giving any opportunity of being heard to the concerned employees. Upholding the action of the Govt. in withdrawing the HRA/CCA benefits, the Supreme Court held that under the relevant rules respondents were not entitled to draw the HRA/CCA and withdrawal of this benefit extended to them was justified. Considering the question of the orders impugned in the writ petition were liable to be quashed on account of infraction of principles of natural justice, the Supreme Court observed as under:
"It is true where the payment made is sought to be recovered thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. But it is by now settled that in all cases of violation of principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of principles of natural justice. When undisputably the action taken is within the parameters of the rules governing the payment of HRA and CCA and moreover, the University authorities themselves espoused the cause of employees while corresponding with the Govt., there could be no real prejudice to the respondents on account of not affording the opportunity to make representation."
11. The above observations of the Supreme Court apply with full force to the facts of the instant case. The action taken by the respondents of withdrawing the benefit of stepping up given to the applicants was clearly within the parameters of the rules as they were not entitled to the said benefit under the rules. Even if an opportunity of being heard had been given to the applicants, the result would not have been different, as the rules do not provide for extending such benefit. Under the circumstances, it cannot be said that any real prejudice was caused to the applicants. Hence, the impugned order is not required to be quashed and set aside merely on the ground of infraction of the principles of natural justice.
12. However, so far the question of recovery of the excess amount paid to the applicant is concerned, we are of the considered opinion that no such recovery can be allowed and if any amount is recovered, the respondents arc required to be directed to refund the same. The applicants should not be penalized for no fault of theirs. If the department had taken an erroneous decision and paid something more to the applicants, the same cannot be allowed to be recovered from the applicants. In the above referred case of State of Karnataka v. Mangalore University Non-teaching Employees' Association (supra) the Supreme Court has also directed that no recovery should be effected from any of the university employees who were compelled to take rental accommodation in Mangalore city limits holding that it was not their fault that they were paid HRA/CCA and they cannot be penalized for no fault of theirs.
13. Before parting with the judgment, we may mention that Mr. Pathak, learned Counsel for the applicant had relied on a case of P.J. Patel and Ors. v. Union of India and Ors. in O.A. 457/98 decided by this Tribunal on 17.6.2002 as well as the decision of the Hon'ble High Court in Special C.A. No. 11696/2002 decided by the High Court of Gujarat on dated 27.3.2003 but we find that the reliance placed on these judgments is quite misplaced, as the case therein was not in respect of the stepping up of the pay but 10% BCR promotion and does not relate to stepping up of the pay but concerns with 10% BCR promotion. The facts of both the cases are not similar or identical and the ratio laid down therein also has no application to the facts of the instant case.
14. For the reasons discussed above, the O.A. is allowed only to the extent of directing the respondents not to make any recovery from the salary of the applicants and to refund the amount, if any recovered from the salary of the applicants towards the excess amount of pay and allowances paid to the applicants on account of the stepping up of their pay within four months from the dale of receipt of a copy of this order.
15. Rest of the prayers of the applicant are rejected. With this direction, the O.A. stands disposed of. No order as to costs.