1. The present writ petition under Article 226/227 of the Constitution is directed against the common order dated 29.11.2002 passed by the learned Central Administrative Tribunal (CAT) in Original Application No. 63 of 2002 and Original Application No. 71 of 2002.
2. We have heard Mr. K.N. Chowdhury, learned senior counsel assisted by Mrs. R.S. Chowdhury, learned Counsel for the writ petitioners. None appears for the respondents when the case was called for hearing. On request of this Court, Mr. M. Chanda, learned Counsel readily agreed to assist the court in this matter as amicus curiae. Accordingly, we have heard Mr. M. Chanda, learned counsel.
3. The facts, in brief, necessary for disposal of this writ petition are as follows:
The applicants of the above mentioned Original Applications are working, under the writ petitioners who are presently holding various posts in the office of the writ petitioner No. 2. The grievances of the applicants, the respondents herein, are basically against the orders dated 28.1.2002 (Annexure E) and 25.2.2002 (Annexure F) by which the payment of the Special Duty Allowance (in short, hereinafter referred to as 'SDA') has been stopped and also a decision has been taken for making recovery of SDA paid to them in excess contrary to the policy. Government of India, Ministry of Finance, Deptt. of Expdt., vide office memorandum No. 20014/3/83-E. IV dated 14.12.1983 granted certain incentives to the Central Govt. Civilian Employees serving in the North East Region. In the said memorandum, it has been stated that the SDA would be paid to those who have "All India Transfer Liability". Subsequent to the aforesaid office memorandum, another office memorandum dated 28.4.1987 was issued, wherein it was clarified that all the officers with all India transfer liability would get the benefit of SDA if transferred to North Eastern States. The said benefit would be provided considering their recruitment, promotional zone, etc. Being aggrieved by the aforesaid memorandums, some officers approached the Central Administrative Tribunal, (for short hereinafter referred to as 'Tribunal') and the Tribunal upheld the prayer of those officers, applicants in the aforementioned Original Applications, and directed the writ petitioners, respondents therein, to allow SDA to the applicants.
Thereafter a few special leave petitions were filed before the Hon'ble Supreme Court against the order of the Tribunal and the Hon'ble Supreme Court vide its judgment passed on 20.9.1994 in Civil Appeal No. 3251 of 1993 Union of India v. S. Vijayakumar along with Civil Appeal Nos. 6163-81 of 1994 reported in 1994 (Suppl) 3 SCC 649 upheld the submissions of the Union of India with its observation that the respondents were not entitled to the SDA, and the impugned judgments of the Tribunal were set aside. The Hon'ble Apex Court in S. Vijayakumar's case (supra) further observed that in view of the fair stand taken by the Additional Solicitor General, whatever amount has been paid to the respondents, or for that matter to other similarly situated employees, would not he recovered from them insofar the allowance is concerned. The Hon'ble Apex Court also observed that the grant of this allowance only to the officers transferred from outside the region to this region would not be violative of the provisions contained in Article 14 of the Constitution as well as the equal pay doctrine. In view of the above judgment of the Hon'ble Apex Court, the Government of India, Ministry of Finance, Department of Expenditure issued another office memorandum No. 11(3)/95-E. II(B) dated 12.1.1996 (Annexure-B) wherein it has been mentioned that the amount already paid on account of SDA to the ineligible persons on or before 20.9.1994 will be waived and the amount paid on account of SDA to the ineligible persons after 20.9.1994 (which also includes those cases in respect of which the allowance was pertaining to the period prior to 20.9.1994, but payments were made after this date, i.e., 20.9.1994) will be recovered. The aforementioned office memorandum dated 12.1.1996 was duly endorsed and communicated by the Dy Director (Finance), Indian Council of Agricultural Research, Krishi Bhavan, New Delhi (hereinafter referred to as 'ICAR' for short) to the respective authorities of the ICAR for information, guidance and necessary action vide endorsement dated 26.4.1996 (Annexure-C). On 4.12.1996, the Administrative Officer of the ICAR issued a letter (Annexure-D) to the Senior Audit Officer, camp at Barapani wrongly clarifying the aforesaid order dated 12.1.1996, i.e., the office memorandum issued by the Ministry of Finance, Govt. of India and as a result of such wrong interpretation, some ineligible staffs of the ICAR, Barapani Institute continued to receive payment of SDA on the plea that the ICAR is an autonomous body having its own rules and bye-laws ignoring the facts that the aforesaid office memorandum dated 12.1.1996 was not only fully applicable to the ICAR, but also binding to it. After detection of such mistake, wrong committed by the Administrative Officer of the ICAR, Barapani Institute, the Under Secretary (NRM), ICAR clarified the stand of the ICAR vide its letter/order dated 28.1.2002 (Annexure E) informing the Director, ICAR, Research Complex for NER Region, Barapani that the direction issued in the office memorandum dated 12.1.1996 would be strictly followed and any payment, made on SDA to the ineligible staff subsequent to 20.9.1994 would be recovered. The said letter/order dated 28.1.2002 was duly forwarded to other ICAR Research Complex for NER regions, vide letter/order dated 25.2.2002 (Annexure F).
4. Having grievance to the aforesaid discontinuation of the SDA from February 2002, the applicants employees, respondents herein, approached the Tribunal, Guwahati Bench by filing the aforementioned original applications for quashing the impugned letters/orders dated 28.1.2002 and 25.2.2002 with all consequential benefits with further direction to the writ petitioners, i.e., the respondents therein, to allow applicants to draw SDA and not to make any recovery from them towards the payment of SDA already paid to them. In reply to the original applications, the writ petitioners as well as the Union of India filed their written statements denying the allegations of the applicant-respondents.
5. The points arose before the Tribunal for determination was whether the applicants respondents were entitled to the SDA even after the issuance of the aforesaid letters/orders dated 28.1.2002 and 25.2.2002 if the applicants respondents are the residents of the North Eastern Region merely because of the fact that the posts to which they were appointed were of all India transfer liability and whether the writ petitioners have the right to recover the payments of SDA already made to the applicant-respondents by way of mistake after the judgment of the Apex Court and the payments for the period prior to the judgment not paid in time but paid after the judgment of the Apex Court; and also whether the applicant-respondents are entitled to retain the public money paid to them due to wrong interpretation and clarification of the office memorandum, and/or payments made to them in excess, which they were not actually entitled to according to administrative circular are recoverable or not.
6. The Tribunal after hearing the parties disposed of the applications directing the respondents writ petitioners not to make any recovery of SDA so far paid, without setting aside the impugned letters/orders (Annexures E and F). The Tribunal also observed that it will be open to the applicant-respondents to make representations before the authority to show and establish that they are entitled for SDA in view of the subsequent posting of N.E. Region after they were transferred out from N.E. region and if such representation is made, the authority shall consider the same in terms of law.
7. Being aggrieved and dissatisfied with the order of the Tribunal, the present writ petitioners filed this writ petition and impugned the said order of the Tribunal.
8. Mr. Choudhury, learned senior counsel for the petitioners strenuously argued that the order of the Tribunal is per se illegal and contrary to the decision of the Hon'ble Apex Court, and the Tribunal also failed to apply its mind on the fact that the Hon'ble Apex Court after upholding the office memorandums dated 14.12.1983 and 20.4.1983 and allowing the appeal preferred by the Union of India directed the authority not to recover the SDA already paid on the basis of an undertaking given by the learned Additional Solicitor General. The said direction was actually on the basis of the concession given by the Union of India which cannot be a precedent to the Tribunal for decision of the case in hand. Mr. Choudhury, learned senior counsel has placed the written statements filed by the respondent-writ petitioners before the Tribunal, particularly referred to paragraphs 9 and 10 of the written statements wherein it has been specifically mentioned that the issue has been clarified by the Hon'ble Supreme Court, vide judgment dated 20.9.1994 in the case of S. Vijayakumar (supra) which was duly communicated by the Govt. of India, Ministry of Finance, Department of Expenditure, vide Office Memorandum dated 12.1.1996 and endorse merit of the same was made, vide letter dated 26.4.1996 and so Far as the order dated 10/11.10.1985 is deemed to have been nullified on the basis of the verdict by the Hon'ble Supreme Court on 20.9.1994 in Civil Appeal No. 3251 of 1993 reported in 1994 (Suppl 3) SCC 649 Union of India v. S. Vijayakumar. He further argued that when the original application was pending, the Govt. of India in Finance Department issued another office memorandum dated 29.5.2002 (Annexure G to the writ petition), wherein it has been specifically stated that the amount already paid on account of SDA to the ineligible persons not qualifying to the criteria as mentioned in the paragraph 5 on or before 5.10.2001, the date of judgment of the Hon'ble Supreme Court, will be waived, and recoveries, if any, already made need not be refunded and the amount paid on account of SDA to ineligible persons after the date of judgment, i.e., 5.10.2001 will be recovered. The applicant-respondents did not challenge the said Office Memorandum dated 29.5.2002 before the Tribunal and since the said office memorandum is covering the field after the judgment of the Supreme Court in the case of Union of India and Ors. v. National Union of Telecom Engineering Employees' Union and Ors. in Civil Appeal No. 7000 of 2001. (arising out of the SLP (C) 5455 of 1999) and as the said Tribunal did not discuss anything about the said office memorandum and also did not quash the impugned order dated 28.1.2002 and 25.2.2002, the order of the Tribunal is erroneous and liable to be set aside.
9. None appears for the applicant-respondents as stated above. Mr. Chanda learned Counsel has assisted the court on request, as amicus curiae and has submitted that the order of the Tribunal is in conformity with the judgment of the Apex Court in S. Vijayakumar's case (supra). He also relied and placed the judgment and order dated 5.3.2002 passed by the Division Bench of this Court in Civil Rule No. 5674 of 1998 and Civil Rule No. 5408 of 1998 whereby this Court dismissed the aforesaid Civil Rules and upheld the order of the Tribunal and the authorities were directed not to recover any amount of SDA already paid to the respondents. Mr. Chanda also placed reliance on the order passed by the Apex Court in the case of National Union of Telecom. Engineering Employees' Union (supra) and the order passed in Union of India and Ors. v. Geological Survery of India Employees' Association and Ors. in Civil Appeal No. 8208-8213 (arising our of SLP Nos. 12450-55/92). Relying upon the aforesaid cases, Mr. Chanda, learned Counsel tried to convince this Court that there is no infirmity in the said order of the Tribunal which passed the order considering the hardship of the applicant-respondents keeping in mind the ratio of the Hon'ble Apex Court's decision in S. Vijayakumar's case (supra) and the case of Geological Survey of India Employees' Association (supra).
10. In the writ petition in hand, the question of law that arises for decision is whether the order of the Tribunal is reasoned one or not and whether the writ petitioner-authorities have the right to recover the amount already paid to the employees after the judgment of the Apex Court in National Union of Telecom Engineering Employees' Union (supra), i.e., after 5.10.2001 by way of mistake contrary to its administrative circular by its officers and/or wrong, interpretation of the Office Memorandum of the Finance Department and whether the applicant-employees have the right to retain the amount paid to them on the ground of hardship wrongly by the authority contrary to administrative circular already upheld by the Apex Court.
11. We have given our thoughtful consideration to the facts as they emerge from the order of the Tribunal and rival contention of the learned Counsel for the parties as well as documents and citation relied on by the learned Counsel for the parties. For better appreciation of the argument of the learned Counsel of the parties, it would be appropriate to discuss the relevant facts and the ratio of the decision of the Apex Court and this Court as mentioned hereinabove.
12. In S. Vijayakumar's case (supra), the Apex Court observed, thus:
4. We have duly considered the rival submissions and are inclined to agree with the contention advanced by the learned Additional Solicitor General, Shri Tulsi for two reasons. The first is that a close perusal of the two aforesaid memoranda, along with what was stated in the memorandum dated 29.10.1986 which has been quoted in the memorandum of 20.4.1987, clearly shows that allowance in question was meant to attract persons outside the North Eastern Region to work in that Region because of inaccessibility and difficult terrain. We have said so because even the 1983 memorandum starts by saving that the need for the allowance was felt for 'attracting and retaining' the service of the competent officers for service in the North-Eastern Region. Mention about retention has been made because it was found that incumbents going to that Region on deputation used to come back after joining there by taking leave and, therefore, the memorandum stated that this period of leave would be excluded while counting the period of tenure of posting which was required to be of 2/3 years to claim the allowance depending upon the period of service of the incumbent. The 1986 memorandum makes this position clear by stating that Central Government civilian employees who have All India transfer liability would be granted the allowance 'on posting to any station to the North-Eastern Region'. This aspect is made clear beyond doubt by the 1987 memorandum which stated that allowance would not become payable merely because of the clause in the appointment order relating to All India Transfer Liability. Merely because in the office memorandum of 1983 the subject was mentioned as quoted above is not enough to concede to the submission of Dr. Ghosh.
6. In view of the above, we hold that the respondents were not entitled to the allowance and the impugned judgments of the Tribunal are, therefore, set aside. Even so, in view of the fair stand taken by the additional Solicitor General we state that whatever amount has been paid to the respondents, or for that matter to other similarly situated employees, would not be recovered from them insofar as the allowance is concerned.
7. The appeals are allowed accordingly. There will be no order as to costs.
13. It is clear from the decision of the Apex Court rendered in S. Vijayakumar's case (supra) that the Apex Court upheld the contention or the Union of India and rejected the prayer of the respondents and directed for no recovery of the excess payment made to the ineligible persons on the basis of the submissions of the learned Additional Solicitor General and the said direction of the Apex Court cannot be precedent for decision of the case in hand. In the aforesaid decision, the Apex Court referred to its earlier decision in Reserve Bank of India v. Reserve Bank of India Staff Officers Assn. wherein if was held that grant of special compensatory allowance or remote locality allowance only to the officers transferred from outside to Gauhati Unit of the Reserve Bank of India, while denying the same to the local officers posted at the Gauhati Unit, was not violative of Article 14 of the Constitution. In this case also, the respondents were local officers recruited from the North-Eastern Region of the Country in the ICAR and hence they are not eligible to get the benefit of SDA as provided by the authority by office memorandum dated 10/11.10.1985 which they have also accepted. We have also gone through the order dated 5.3.2002 passed by the Division Bench of this Court in Civil Rule No. 5674 of 1998 (supra) wherein it was observed that the writ petitioners will not be entitled to recover any part of payment of SDA already made to the concerned employee before the court and not the employees in general, which is clear from the words "concerned employees". In the case of Geological survey of India Employees' Association (supra), the Apex Court after considering the rival contentions of the parties and referring to the earlier decision held in S. Vijayakumar's case (supra) set aside the impugned order and directed the appellants-Union of India not to recover any part of the payment of SDA already made to the concerned employees. It is clear from the aforesaid decision that the Hon'ble Apex Court upheld the contention of the appellants-Union of India. The Apex Court in its order dated 5.10.2001 passed in National Union of Telecom Engineering Employees' Union (supra) observed that the appellants-Union of India shall not be entitled to recover any amount paid as SDA in respect of the fact that the appeal was allowed, the said order was passed on the basis of an undertaking given by the learned Additional Solicitor General. Therefore, that case cannot also be considered as precedent for the decision of the case in hand. An observation of the court in judgment cannot be read divorced from the context (see the case reported in 2004 AIR SCW 3665). The order not to recover was passed by the Apex Court in the context of concession given by the learned Additional Solicitor General. The decisions relied upon by Mr. Chanda, learned Counsel do not lay down any law in rem. Hence, those decisions of the Apex Court and the Division Bench of this Court cannot be treated as precedent. A decision can be considered as precedent only when it decides a question of law. In the cases of Mr. S. Vjjaykumar and National Union of Engineering Employees' Union (supra), the Apex Court did not decide any law relating to recovery of excess payment due to wrong interpretation of any rule, policy and/or office memorandum or due to bona fide mistake of the Government and/or its officer. The Government even extended protection to the ineligible employees who were paid wrongly after 5.10.2001 from recovery based on the date of judgment in National Union of Telecom Engineering Employees' Union (supra). Thus, it is clear that in any way the authority is not debarred from recovering the amount paid illegally as SDA to its employees prior to 5.10.2001, but it is within the power of the authority intruding the present petitioners to recover any amount paid as SDA to the ineligible persons/employees after 5.10.2001 due to wrong clarification/ misinterpretation of office memorandum by an officer of the ICAR. Mere hardship or the employees like the applicants cannot override lawful orders of administrative authority when entitlement of SDA to the employees like applicants was deprecated by the Apex Court. Hence, the impugned letters/ orders cannot be termed violative of Article 14 of the Constitution ay well as the doctrine of equal pay. Excess SDA paid to the ineligible employees is, therefore, recoverable. In various decisions, the Apex Court laid down the law relating to recovery of excess amount/payment made by the authority either due to mistake or due to wrong interpretation of the rule/statute or office memorandum. In the case of Chandigarh Administration and Ors. v. Naurang Singh and Ors. reported in (1997) 2 SLR 230, the Hon'ble Apex Court observed that an evident mistake cannot constitute a valid basis for compelling the administration to keep on repeating that mistake and in the case of V. Gangaram v. Regional Joint Director , the Hon'ble Apex Court allowed the authority to recover the excess payment from the pension and in U.P. Sugar Corporation Ltd. v. Sant Raj Singh in Appeal (Civil) 6588 of 2003, the Apex Court allowed the authority to recover the excess payment from salary. At best an employee can ask for recovery of such excess payment made to him by easy instalments, as the money paid in excess are not his own, rather public money.
14. After giving anxious consideration to the aforementioned decisions of the Apex Court and the records relating in the ease in hand, we are of the opinion that the Government and the Council like ICAR is an impersonal body, i.e., having no personal reference, it cannot act by itself, it has to act/work through its officers and employees, who represent it, to fulfil its policy decision. If any employee or officer allowed some benefits to other ineligible employees/officers or workers to get such benefits due to wrong interpretation of the policy/office memorandum and/or order due to bona fide mistake, then the Government or the council has the right to rectify the said bona fide mistake of its employee/officer as and when such wrong/mistake came to its knowledge. As a court of equity we cannot deprive a citizen and/or an employee from his legal entitlement provided by any law/statute or any order issued by the competent authority, but at the same time we cannot also allow a person/an employee to retain public money paid to him in excess to his lawful entitlement wrongly by another public officer, giving wrong interpretation of Govt. policy/order. Here the case in hand, it is an admitted position that the respondent-applicants were not entitled to SDA as per the decision of the Apex Court and office memorandum by the Finance Department of the Government of India as well as the orders of the ICAR, they were paid the said SDA due to wrong interpretation of the order of the authority. We are of the view that the amount paid to the applicants on SDA in excess, due to wrong interpretation/clarification/mistake committed by another officer of the ICAR are recoverable, as the said amount was paid due to wrong interpretation of the office memorandum issued by the Ministry of Finance, Govt. of India and the authority of the ICAR. The Hon'ble Apex Court in the case of V. Gangaram v. U.P. Sugar Corporation Ltd. (supra) allowed the authority to recover the excess amount by way of installments. We find from the impugned order that the Tribunal did not consider the office memorandum dated 29.5.2002 (Annexure G) which were issued after the decision in the case of National Union of Telecom Engineering Employees' Union (supra) on 5.10.2001, when the aforementioned Original Applications were pending before it. The Tribunal also not set aside the impugned orders dated 28.1.2002 and 25.2.2002, rather directed the respondent-petitioners not to recover the excess payment from the applicant on the lone ground of hardship. Hardship cannot be a ground for providing certain benefits to the ineligible persons/employees contrary to the rights provided by law or policy. See the case of State of Tamil Nadu v. St. Joseph Teachers Training College .
15. In view of the above discussion and observation, we hold that the respondents are not entitled to the payment of SDA as already paid to them in excess due to mistake/wrong interpretation of the office memorandum. The impugned order of the Tribunal is, therefore, set aside. The excess amount paid to the applicant-respondents to be recovered from them in easy instalments.
16. Writ petition stands disposed of. No cost.