OP (CAT) No. 276 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017 / 12TH ASWINA, 1939** **OP (CAT).No. 276 of 2017** **OA 254/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **-------------------** ## **PETITIONER(S)/RESPONDENTS** - **1 UNION OF INDIA** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI-110001.** - **2 THE POSTMASTER GENERAL,** - **CENTRAL REGION, DEPARTMENT OF POSTS, KOCHI-682020.** - **3 THE SUPERINTENDENT OF POST OFFICES, IRINJALAKUDA DIVISION, IRINJALAKUDA-680121.** **BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** ## **RESPONDENT(S)/APPLICANTS:** **1. K.K.KOCHUNARAYANAN,** **AGED 62 YEARS,S/O.V.NARAYANAN NAIR, MULTI TASKING STAFF, HEAD OFFICE,CHALAKUDY,IRINJALAKUDA DIVISION, RESIDING AT "KUNNATH HOUSE",I.Q.ROAD,CHALAKUDY, TRICHUR DISTRICT.** **2. C.U.RAJESWARY, AGED 60 YEARS,W/O.NANDAKUMAR,MULTI TASKING STAFF, HEAD OFFICE,CHALAKUDY,IRINJALAKUDA DIVISION, RESIDING AT "THIRUNELLATH HOUSE,VIJAYARAGHAVAPURAM.P.O, TRICHUR DISTRICT.** **3. V.B.SUMATHY, AGED 59 YEARS, D/O.BHASKARAN NAIR, MULTI TASKING STAFF, HEAD OFFICE,CHALAKUDY,IRINJALAKUDA DIVISION, RESIDING AT PUNNAKKAL HOUSE, KARUR P.O., TRICHUR DISTRICT.** **3. C.P.THRESIA,** **AGED 59 YEARS,D/O.POULOSE,MULTI TASKING STAFF, HEAD POST OFFICE,IRINJALAKUDA,IRINJALAKUDA DIVISION, RESIDING AT "KALLIPARAMBIL"NOORUKULAM ROAD, VARANDARAPPALLY,TRICHUR DISTRICT.** **R1 to R4 BY SRI.M.A.SHAFIK** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 276 of 2017 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE OA NO.253 OF 2013 DATED 17.03.2013 FILED BY THE RESPONDENTS BEFORE THE CAT,ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 21.06.2013,FILED BY THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 15.08.2013,FILED BY THE RESPONDENTS EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED NIL.10.2013,FILED BY THE PETITIONERS EXHIBIT P5 TRUE COPY OF THE ORDER IN O.A.254 OF 2013 DATED 15.02.2O16 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK** ## **P.R.RAMACHANDRA MENON, J. & SHIRCY V., J.** **------------------------------------------O.P.(CAT)No.276 of 2017** **------------------------------------------Dated this the 4[th] day of October, 2017** ## **JUDGMENT** ## P.R. Ramachandra Menon, J. The challenge is against Ext.P5 order passed by the Central Administrative Tribunal, whereby, the legal question has been held in favour of the petitioners herein, who were the respondents in the O.A., however, interdicting the steps for recovery of the amount excess paid in excess, beyond the eligibility of the applicants. The O.A. was filed with the following prayers; - _i. To call for the records relating to Annexures A-1 to A-15 and to quash A-1 to A-8 being illegal and arbitrary;_ - _ii. To declare that the applicants are entitled for the severance amount at the rate prevailing on the date of their discharge from GDS service;_ - _iii.To grant such other relief as may be prayed for and this Tribunal may fit to grant;_ - _iv.To award costs of this Original Application._ ## **O.P.(CAT)No.276 of 2017** ## **-: 2 :-** 2. The claim was resisted by the Department by raising proper pleadings as borne by Ext.P2 reply statement. After hearing both the sides, the Tribunal found that the applicants were not having the eligibility to get the amount as claimed by them and accordingly, Ext.P5 verdict was passed in favour of the respondents in the O.A., as reflected from paragraph 10, which is reproduced below: “After hearing both sides we are of the considered view that the contention of the respondents that the applicants are entitled to severance amount only at the rate that was prevailing on the date of their notional appointment as M.T.S. appears to be correct. If severance amount at the enhanced rate applicable from 9.10.2009 is paid applicants would be getting the double benefit of the pension payable to them on the basis of the qualifying service counted from their retrospective date of appointment and also an enhanced severance amount brought into force from 9.10.2009. The argument of the applicants **-: 3 :-** ## **O.P.(CAT)No.276 of 2017** that since they worked till 2010 they are entitled to severance amount at the prevailing rate appears to be quite attractive. But in reality, the prevailing rate appears to be quite attractive. But in reality, the increase in the pension receivable by the applicants by reckoning the qualifying service from their notional date of appointment - the period during which they have not actually worked in the higher post- is more beneficial with casecading effects. Applicants who have approached this Tribunal seeking protection of their legal rights deriving from the equality clauses in Articles 14 and 16 of the Constitution of India have a corresponding duty to ensure that they do not make a claim that would tantamount to unjust enrichment which is antithetical to the principles of equality that embody Articles 14 and 16.” 3. However, it was noted by the Tribunal that the applicants were occupying lower levels in the hierarchy of posts and as such, no recovery could be made in view of the law declared by the Supreme Court in **State of Punjab v. Rafiq Masiah [2015 (4) SCC 334].** It was **-: 4 :-** ## **O.P.(CAT)No.276 of 2017** accordingly, that the steps for recovery, if any, were interdicted, as held in paragraph 12, which is also extracted below, for convenience of reference: “Nevertheless, it is now settled law that it is legally impermissible to recover the excess payments made to employees in Group C & D and to the pensioners in the light of the Hon'ble Apex Court's decision in State of Punjab and Ors. v. Rafiq Masish (White Washer) 2015(4) SCC 334. Therefore, while holding that the applicants are entitled to severance amount only at the rate that is applicable to them on the date of their notional appointment, the respondents are directed not to recover the excess amounts already paid to the applicants by way of severance amount at the enhanced rate.” 4. The learned Central Government counsel submits that the reliance sought to be placed on the verdict passed by the Apex Court in **Rafiq Masiah's case** (supra) is not correct or applicable to the case in hand. Here, the payment was effected not by way of mistake from the Department, but in implementation of the ## **O.P.(CAT)No.276 of 2017** ## **-: 5 :-** direction earlier given by the Tribunal earlier, in O.A.No.312/2008. It is also brought to the notice of this Court that, though the Department had not take any steps to challenge the said verdict, it was challenged at the instance of the party respondents, ultimately leading to the case reported in **Najithamol Y. & Ors. v. Soumya S.D. & Ors. [2016(4) KHC 280]** whereby, it was declared that the appointment of MTS in the post of GDS is not promotion, but amounts to direct recruitment. In view of the difference in the factual context, the learned counsel submits that the Department is having every right to get the amount recovered from the applicants. 5. The basic fact to be considered is whether the payment effected pursuant to the direction in O.A.No.312/2008 was liable to be given effect to, more so when there was no challenge from the part of the Department against the said verdict in O.A.No.312/2008. ## **O.P.(CAT)No.276 of 2017** ## **-: 6 :-** There is no dispute to the fact that the applicants were occupying lower level posts, in terms of the verdict of the Apex Court in **2015 (4) SCC 334** . That apart, the exceptional circumstance under which recovery could be made, based on the 'undertaking', if at all any given by the employee, was considered by the Apex Court in the decision reported in **High Court of Punjab & Haryana** . **and Ors. v. Jagdev Singh [AIR 2016 (SC) 3523]** Admittedly, there is no such 'undertaking' in the instant case and as such, it cannot be said that the petitioners have established the merits with regard to the right of recovery. 6. The verdict under challenge was passed by the Tribunal more than 1½ years ago, on 15.02.2016. Absolutely no explanation is given from the part of the petitioners, as to the inordinate delay. The power vested with this Court is not warranted to be invoked in such **-: 7 :-** ## **O.P.(CAT)No.276 of 2017** circumstance. We find support from the rulings rendered by the Supreme Court in **Rabindra Nath Bose & Others** ## **v. Union of India and Others (AIR 1970 SC 470).** This Original Petition stands dismissed. Sd/- **P.R.RAMACHANDRA MENON, Judge.** Sd/- ## **SHIRCY V, Judge.** STK //TRUE COPY// //P.A. TO JUDGE//