(Regional),Department of Light houses &Lightships, Deep Bhavan,No.5/20, Jaffar Syrang Street,Chennai – 1 v. Randhir Singh2. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 06.07.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAandTHE HONOURABLE MR.JUSTICE S.TAMILVANANW.P.No.19671 of 2007andM.P.No.1 of 2007Director (Regional),Department of Light houses &Lightships, Deep Bhavan,No.5/20, Jaffar Syrang Street,Chennai – 1. .. Petitioner Versus1. Randhir Singh2. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104. .. Respondents Writ Petition filed under Article 226 of The Constitution of India toissue a Writ of certiorari to call for the concerned records relating tothe order of the Central Administrative Tribunal, Chennai Bench inO.A.No.653 of 2006 dated 14.11.2006, and quash the same.For petitioner : Mr.B.ShanthakumarFor R1 : Mr.Randhir Singh (Party-in-person) https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by F.M.IBRAHIM KALIFULLA,J.)The petitioner is aggrieved against the order of the CentralAdministrative Tribunal dated 14.11.2006 passed in O.A.No.653 of 2006.After notice to the first respondent, he appeared in person and contestedthis writ petition.2. We heard the learned counsel appearing for the petitioner as wellas the first respondent(Party-in-person).3. The brief facts which are required to be stated are that the firstrespondent who was employed as a Senior Radio Technician underwentsterilization operation in the year 1990. As per the Rules prevailing inthe petitioner Organisation, the first respondent was entitled to paymentof special allowance in the form of grant of special increment which wastreated as personal pay. Such special allowance was granted underParagraph 11 of FR 27 which provided that the rate of Personal Pay wouldbe equal to the amount of the next increment due at the time of grant ofthe concession and the same would remain fixed during the entire service.The same was granted to the first respondent with effect from February1990. After the implementation of the Fifth Pay Commission, based on therecommendation of the said Commission, a revision in the payment ofPersonal Pay called Family Planning Allowance was made. The said revisioncame to be made by way of an Office Memo in Memorandum No.7(39)-E.III/79dated 04.12.1979. As per the said memorandum, the special increment inthe form of Personal Pay to the Central Government employees who hadundergone sterilization prior to 01.01.1996 and were drawing pay in thepre-revised pay scales was revised so as to be equivalent to the lowestrate of increment applicable in the relevant revised scales of paycorresponding to the pay scale of the post against which the employeeconcerned had initially earned the Personal Pay in the applicable pre-revised scale of pay. 4. The first respondent was granted upgradation in the year 2003. Byvirtue of such upgradation, the first respondent was fitted in higherscale of pay. Further, by virtue of the stipulation contained in O.M.No.7dated 04.12.1979, the revised Family Planning Allowance which was earlierpaid at the rate of Rs.40/- came to the increased to Rs.125/- as wasapplicable to the relevant revised scale of pay payable to the firstrespondent. The said revised Family Planning Allowance at the rate ofRs.125/- was also paid to the first respondent from 01.01.1996. The firstrespondent however made a claim that the revised Family Planning Allowanceshould have been paid at the rate of Rs.175/- from the date of incrementapplicable to the special grade scale of pay in which the first respondent https://hcservices.ecourts.gov.in/hcservices/ was fitted in the year 2003, subsequent to his upgradation. When the samewas not acceded to by the petitioner, the first respondent approached theCentral Administrative Tribunal by filing O.A.No.344 of 2004. TheTribunal also allowed the claim of the first respondent and directed therespondents therein to pay the special allowance at the rate of Rs.175/-per month from the due date. The order of the Tribunal was challenged bythe respondents therein including the petitioner herein in W.P.No.38491 of2005. However, during the pendency of the said writ petition, thepetitioner by Office Order dated 20.10.2004 paid the sum of Rs.175/-without prejudice to their contentions in the writ petition. They alsopaid the difference between Rs.125/- and Rs.175/- for the period between01.01.1996 and 20.10.2004. The said Office Order however made it clearthat that payment was subject to the outcome of the appeal being filed bythe petitioner. The petitioner's earlier writ petition in W.P.No.38491 of2005 came to be disposed of by order dated 31.03.2006. The Division Benchafter noting that the Tribunal failed to consider the relevant Rulesproviding for the increase in the payment of family special allowance,ultimately remitted the matter back to the Tribunal for freshconsideration of all the issues on merits. The writ petition was disposedof on that basis. 5. On remand, the Tribunal passed orders on 14.07.2006. It has heldas under in paragraph No.8:"From the above it would be seen that Personal Pay on thedate when the applicant underwent sterilization namely 20.02.1990he was holding the post of Radio Technician in the scale ofRs.1400-40-1800-EB-50-2300. The corresponding pay scale w.e.f.1.1.1996 is Rs.4500-125-7000. Therefore, the Personal Pay has tobe given to the applicant only Rs.125/- p.m. there is no scopefor claim of applicant for increment given to the upgraded scaleof pay it would be seen from the office order that the applicantwas granted the revised scale of 21.5.98 at Rs.4500-7000 and theupgraded scale by office order dated 18.3.2003. Thecorresponding pay scale of Rs.1400-2300 is Rs.4500-7000.Therefore, the applicant would be entitled only Rs.125/- asPersonal Pay and not Rs.175/- as claimed by him. Hence nogrounds are made to grant the relief prayed for. The O.A. Failsand is dismissed. No costs."6. Thus the Tribunal has held that the first respondent was onlyentitled to Rs.125/- per month and not Rs.175/- per month as claimed byhim. In the light of the order of the Tribunal dated 14.07.2006, thepetitioner referring to their earlier Office Order dated 20.10.2004 wantedto recover the excess payment made from 01.01.1996 onwards, by passinganother Office Order dated 08.08.2006. Aggrieved against the same, thefirst respondent preferred the present O.A.No.653 of 2006 before theTribunal. The said Original Application was resisted by the petitioner byfiling a counter affidavit. The Tribunal has now passed orders dated14.11.2006 holding as under in paragraph No.13: https://hcservices.ecourts.gov.in/hcservices/ "13. The submissions of the applicant that when lakhs ofrupees were paid on erroneous construction of rules, the excesspayment so made were return off. The same benefit ought to havebeen extended to him also. We find much force in the saidsubmission."The Tribunal held that the excess payment was only Rs.6,348/- and that asum of Rs.1,058/- had already been recovered and that no further recoveryshould be made. The Tribunal accordingly set aside the order dated08.08.2006.7. Assailing the order, Mr.Shanthakumar, learned counsel for thepetitioner contended that when the Tribunal had turned down the claim ofthe first respondent by its order dated 14.07.2006 in O.A.No.344 of 2004that he was not entitled to the Family Special Allowance at the rate ofRs.175/- but was entitled at the rate of Rs.125/- per month and when thesaid payment was made by the petitioner by its office order dated20.10.2004 by making it clear such payment would be subject to the outcomeof the appeal being filed, the Tribunal ought not to have interfered withthe action of the petitioner seeking to recover the excess payments made.Learned counsel also contended that the reliance placed upon by theTribunal to the decisions reported in 1994 (1) SLR 827 [Shyam Babu Vermavs. Union of India] and 1995 SCC (L&S) 248 [Sahib Ram vs. State ofHaryana] are not applicable to the facts of this case.8. As far as the contention based on waiver ordered in respect ofcertain excess payment to the Directors and the Deputy Directors, thelearned counsel contended that one wrong action cannot be quoted as aprecedent for committing another wrong. As against the above submissions,Mr.Randhir Singh, the party who appeared in person submitted at the outsetthat the deponent to the affidavit itself is not competent to be filed inthis writ petition and therefore, the writ petition itself is notmaintainable.9. As far as the merits of the order is concerned, Mr.Randhir Singhwould contend that since the Tribunal has relied upon the orders of theHon'ble Supreme Court, the same should not be interfered with. He wouldreiterate that since the Union of India have not bothered to recover lakhsof rupees which were paid in excess to higher authorities for which theywere not legally entitled to, in the same line of reasoning, Rs.6,348/-paid to the first respondent should also be waived.10. After hearing the learned counsel for the petitioner as well asthe party in person, we are not able to appreciate the stand of the firstrespondent, party-in-person. As far as the objection relating to thecompetency of the deponent to the affidavit, we find that he has sworn tothe affidavit as the Director (Regional), Department of Light Houses andLightships, Chennai. After the order of remand passed in W.P.No.38491 https://hcservices.ecourts.gov.in/hcservices/ of 2005 dated 31.03.2006, O.A.No.344 of 2004 was revived in which also thepresent petitioner figured as the third respondent. Subsequently, whenthe order dated 08.08.2006 was passed by the present petitioner as theDirector (Regional), the said order was challenged by the first respondentbefore the Tribunal in Original Application No.653 of 2006, wherein, thepresent petitioner alone has been arrayed as the respondent. In the abovestated circumstances, we are not able to appreciate the present objectionof the first respondent as to the competency of the deponent of theaffidavit who in his capacity as the Director (Regional) has sworn to theaffidavit filed in support of this writ petition. Therefore, we rejectthe said contention at the very outset.11. As far as the merits of the order is concerned, the Tribunalplaced reliance on the judgments reported in 1994 (1) SLR 827 [citedsupra] and 1995 SCC (L&S) 248 [cited supra] In the former case, the verydecision disclose that the concerned workmen were paid certain payments byway of higher scale of pay for no fault of theirs. Therefore, when thesaid higher payment was sought to be recovered, the Hon'ble Supreme Courtheld that when the workmen were not at fault for any excess payment madeto them, no recovery can be permitted to be made. In the subsequent case,here again it was held that the upgraded pay scale given to the workmenwas due to wrong construction of relevant order by the authority concernedwithout any misrepresentation to the employer and therefore the samecannot be recovered. The Hon'ble Supreme Court therefore, held that whenthe workmen did not make any misrepresentation and the excess payment byway of upgraded pay scale was made by a wrong construction of relevantorder by the authority concerned, the employee should not be penalised bymaking recovery at a later point of time. In such circumstances, havingregard to the facts involved in those two cases, we find that thoseprinciples will have no application to the facts of the present case. Inthe case on hand, the first respondent was paid the correct Family SpecialAllowance at the rate of Rs.125/- per month. It was the first respondentnot being satisfied with the correct payment made, made a claim and alsoapproached the Tribunal. Though initially the Tribunal in its order dated24.08.2004 countenanced the claim of the first respondent as rightlydecided by this Court in W.P.No.38491 of 2005, while passing the saidorder on 24.08.2004 in O.A.No.344 of 2004, the Tribunal failed to considerthe relevant Rules. However, the respondents therein paid the FamilySpecial Allowance at the rate of Rs.175/- per month through its OfficeOrder dated 20.10.2004, while challenging the said order of the Tribunal,without prejudice to its rights as the Office order itself made it clearthat such payment was being made subject to the outcome of the appeal tobe filed as against the order of the Tribunal dated 24.08.2004.Therefore, when ultimately after remand, when the Tribunal by its presentorder dated 14.07.2006 finally decided that the first respondent wasentitled to Family Special Allowance only at the rate of Rs.125/- permonth and not at Rs.175/- per month, it cannot be held that such excesspayment was made due to any fault on the part of the petitioner. On theother hand, but for the claim made by the first respondent such excess https://hcservices.ecourts.gov.in/hcservices/ payment would have never been paid by the petitioner. Therefore, thereliance placed upon by the Tribunal on the above decisions of the Hon'bleSupreme Court cannot be sustained.12. As far as the reference to certain exorbitant amounts paid byapplying a higher pay scale to the Directors and Deputy Directors areconcerned, it has to be stated that such action of the authorities inwaiving the recovery of such huge sums paid to higher officials can neverbe approved of. But certainly on that score, the Tribunal ought not tohave held that the same wrong action of the Union of India should beextended to the first respondent also when it comes to the question ofrecovery of the excess payment made. In this context, it will beappropriate to refer to the decision of the Hon'ble Supreme Court reportedin (2003)5 SC 437 [Union of India and another vs. International TradingCompany and another], wherein the Hon'ble Supreme Court has made it clearthat one wrong order cannot be a precedent for passing another wrongorder. Paragraph No.13 of the said judgment is relevant for our presentpurpose, which reads as follows:"What remains now to be considered, is the effect ofpermission granted to the thirty two vessels. As highlighted bylearned counsel for the appellants, even if it is accepted thatthere was any improper permission, that may render suchpermissions vulnerable so far as the thirty two vessels areconcerned, but it cannot come to the aid of the respondents. Itis not necessary to deal with that aspect because two wrongs donot make one right. A party cannot claim that since somethingwrong has been done in another case direction should be given fordoing another wrong. It would not be setting a wrong right, butwould be perpetuating another wrong. In such matters there is nodiscrimination involved. The concept of equal treatment on thelogic of Article 14 of the Constitution of India (in short "theConstitution") cannot be pressed into service in such cases. Whatthe concept of equal treatment presupposes is existence ofsimilar legal foothold. It does not countenance repetition of awrong action to bring both wrongs on a par. Even ifhypothetically it is accepted that a wrong has been committed insome other cases by introducing a concept of negative equalitythe respondents cannot strengthen their case. They have toestablish strength of their case on some other basis and not byclaiming negative equality."(Emphasis added)Therefore, the conclusion of the Tribunal in countenancing the claim ofthe first respondent for not permitting the petitioner to recover theexcess payment made is not justified and therefore, we are unable tosustain the order of the Tribunal on that score as well.13. We are not able to find any illegality in the order of thepetitioner dated 08.08.2006 seeking to recover the excess payment madefrom 01.01.196 from the first respondent. The writ petition therefore is https://hcservices.ecourts.gov.in/hcservices/ bound to succeed. The order of the Tribunal is set aside. No costs.Consequently, connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gmsTo The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104. + 1 CC To Mr. B.Shanthakumar, Advocate SR NO.40693W.P.No.19671 of 2007 smv[co]gp/20.7.