IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 10013 of 1999 Between: 1 D.P.Majumdar S/o.late M.B.Majumdar Advanced Training Institute Vidyanagar, Hyderabad 2 T.V.R.K.Rao S/o.T.V.Gopalarao Advanced Training Institute Vidyanagar, Hyderabad 3 B.G.Krishna S/o.B.V.Raghavarao Advanced Training Institute Vidyanagar, Hyderabad 4 M.R.Krishna Rao S/o.Ramdas Advanced Training Institute Vidyanagar, Hyderabad 5 M.A.Saleem S/o.M.Ahmad Ali Advanced Training Institute Vidyanagar, Hyderabad ..... PETITIONER(S) AND 1 Union of India rep.by its Secretary Ministry of Labour Shramasakthi Bhavan New Delhi 2 Director General of Employment and Training Rafi Marg Shramasakthi Bhavan New Delhi 3 Secretary, Ministry of Personnel & Admn. Reforms Govt. of India, New Delhi 4 Comptroller and Auditor General of India New Delhi 5 Director, Advanced Training Institute Vidyanagar, Hyderabad 6 Central Administrative Tribunal rep.by its Registrar .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue any writ, order or direction particularly one in the nature of certiorari calling for the records leading upto and including impugned order No.DGET/C/18012/7/96/TA-I, Dt.05/12/96 of the 2nd respondent as communicated under proceedings No.A.200021/3/93/Estt- I/25, Dt.12/12/96 of the 5th respondent and the order of the Central Administrative Tribunal OA.No.327/97 Dt.04/02/99 and Rev.MA.18/99, Dt.25/3/99 to the extent of waiving only 50% of the proposed recovery and quashing the same direct the respondents not to effect any reduction in pay or recovery of alleged arrears from our salary and pass such other order. Counsel for the Petitioner:DR.P.B.VIJAY KUMAR Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE P.SWAROOP REDDY W.P.NO.10013 OF 1999 ORDER: (per the Hon’ble Sri Justice P. Swaroop Reddy) This Writ Petition is filed seeking to quash the order passed by the Central Administrative Tribunal, Hyderabad, in OA No.327 of 1997 dated 04.02.1999 and ultimately finalized in R.A.No.18/1999 dated 25.3.1999 and to direct the respondents not to effect any reduction in pay or recover any arrears paid from their salaries. The petitioners filed OA No.327 of 1997 before the Central Administrative Tribunal, Hyderabad contending that while they were working as Assistant Training Officers, the Government of India, vide proceedings No.DGTE-A, 11014/3/86-TA-II, dated 10.12.1987, merged the posts of Assistant Training Officers in the scale of pay of Rs.2,000/- to Rs.3,500/- and that at that time certain Assistant Training Officers had approached the Principal Bench of that Tribunal in OA No.1167 of 1989 with regard to the modalities of the posting by contending that it was only an up-gradation of the posts and not promotion wherein the respondents submitted that all the Assistant Training Officers, who were working as on 31.12.1985 were required to be promoted to the post of Training Officer by following the procedure prescribed and it was not a case of up-gradation and that the Principal Bench of the Tribunal by order dated 09.07.1991 observed as follows: “We find merit in the submission of the applicants that the impugned order is laconic in as much as it seeks to promote the applicants to the said post. This plea of the respondents that the promotion to the post of TOs is to be regulated in accordance with the Recruitment Rules cannot be said to be altogether devoid of merit but the fact remains that there was no post of ATOs in existence w.e.f. 1.1.1986 in view of the Presidential Order dated 10.12.1987 abolishing 136 posts of ATOs. In case the respondents stand by their plea that promotion to the post of TOs is to be made on the basis of recruitment Rules, the needful has to be done w.e.f.1.1.1986.” The petitioners contended that in the light of the observations made by the Principal Bench of the Tribunal, the department antedated the promotions of all the Assistant Training Officers to the post of Training Officers with effect from 1.1.1986 by proceedings dated 26.3.1992. Later, when the respondents-Government attempted to recover the excess payments alleged to have been made and to re-fix the salaries of the applicants by proceedings No.Q.12020/1/98/TA.I, dated 12.4.1996 of the respondent No.2 and the consequential proceedings No.A.20021/3/93/Estt.I/501, dated 12.6.1996 of the respondent No.5, they questioned the action of the respondents in OA No.760 of 1996 which was disposed of on 12.7.1996 with the following observations: “i) The impugned order dated 12.4.1996 and 12.6.1996 are set aside so far as the applicants in this OA are concerned. The applicants if so advised may submit a fresh representation taking all the available contentions to R-1 in addition to the representation already submitted by them within 15 days from today: ii) R-2 should dispose of the representations within 3 months from the date of receipt of the additional representation: iii) After a reply is given to the representation, a fresh order has to be issued in regard to the fixation of their pay as Training Officers and recover, if any, effected thereof on the basis of fresh Order of fixation.” Thereafter, they submitted representations dated 12.7.1996 and 30.7.1996 to the respondents-Government and the Government, by order dated 05.12.1996 considered those representations against them stating that it was not a case of promotion and that recovery of excess pay from them was in order. Consequently, they filed OA No.327/1997 before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad challenging the proposal for recovery of excess payment said to have been made on account of the wrong interpretation by the department. The Tribunal dismissed the said OA by order dated 4.2.1999 observing that since up gradation does not involve any promotion or shouldering higher responsibilities, the action taken by the respondents is neither illegal nor irregular and infact the respondents are rectifying the mistake and are attempting to recover the excess payments. Subsequently, when the petitioners filed RA No.18 of 1999 in OA No.327 of 1999, the Tribunal, by order dated 25.3.1999, while observing that the Government cannot attempt to recover huge sum causing disadvantage to its employees, directed that the respondents shall recover to the extent of 50% of the amount recoverable from the present petitioners in a phased manner so as to ensure that they should not be put to any financial strain. Aggrieved thereby the petitioners filed this petition to direct the respondents not to effect any recovery in pursuance of the impugned order No.DGET/C/18012/7/96/TA-I dated 5.12.1996 of the 2nd respondent as communicated vide proceedings No.A.200021/3/93/Estt-I/25 dated 12.12.1996 of the 5th respondent. The learned counsel for petitioners contended that when the department itself committed a mistake without there being any mis- representation or fraud played by the petitioners, no amount can be recovered from them and that by now all the petitioners have retired from service and the last of them in 2003 and hence the possibility of any recovery from their salaries has become impossible. On the other hand, the learned counsel for respondents-Government contended that in various decisions the Supreme Court held that inspite of there being no mis-representation from its employees, the recoveries can be effected. This Court, by order dated 18.6.1999, in writ Petition No.12320 of 1999 passed interim order directing the respondents not to recover any amount from the salaries of the petitioners and it is stated that no recoveries were made till date. In this case, it is observed that the petitioners have already retired from service and therefore, it is not possible for the respondents-Government to make any recoveries from their salaries. It is not a fit case to order recovery of the amount from the pensions of the petitioners since they have not played fraud or made mis-representation during the course of their employment with regard to pay fixation or in any other manner which resulted in excess drawl of the amount. Having regard to the facts and circumstances of the case, the Writ Petition is allowed and the order passed in RA No.18/1999 in OA No.327/1997 dated 25.3.1999 is set aside and consequently there shall not be any recoveries from the petitioners. It is also made clear that this order is passed only with regard to recoveries and not with regard to the correctness of the fixation of the pay of the petitioners consequent upon which the question of recoveries arose and the order is being passed in the circumstances of the case where all the petitioners have retired from service. No order as to costs. __________________ V. ESWARAIAH,J _______________________ P.SWAROOP REDDY,J Date:30.06.2009 gk/cvrk HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE P.SWAROOP REDDY W.P.NO.10013 OF 1999 Date:30.06.2009 gk/cvrk