Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). Neutral Citation No. - 2025:AHC:101636-DB Chief Justice's Court Case :- WRIT - A No. - 5914 of 2025 Petitioner :- Union of India and 2 others Respondent :- Chandra Prakash Pandey and another Counsel for Petitioner :- Ashish Kumar Counsel for Respondent :- Chandan Kumar Chaturvedi, Rajesh Tewari Hon'ble Arun Bhansali, Chief Justice Hon'ble Kshitij Shailendra, J. 1. Supplementary affidavit filed today is taken on record. 2. Heard Shri Ashish Kumar, learned counsel for the petitioners and Shri Rajesh Tewari, learned counsel for the respondent No.1 (hereinafter referred to as ‘the respondent’). 3. The present writ petition has been filed challenging the order dated 22.10.2024 whereby the Central Administrative Tribunal, Allahabad Bench, Allahabad (in short ‘the Tribunal’) has allowed Original Application (OA) No.330/00100/2016 setting aside the orders dated 16.09.2014, 19.11.2015 and memorandum dated 04.03.2015 (impugned therein) with a further direction to the respondents (petitioners herein) to restore the pay-scale of the applicant (respondent herein) w.e.f. the date of second financial upgradation under the Modified Assured Career Progression Scheme (in short ‘MACPS’). The Tribunal has issued a further direction to refund the entire amount recovered by the present petitioners to the respondent with interest @ 6% p.a. 1 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). 4. The case of the respondent (applicant before the Tribunal) is that he was appointed as Lab Assistant in the Indian Institute of Technology. The said designation was changed from Lab Assistant to Lab Attendant. In the year 1999, Assured Career Progression Scheme (ACPS) was introduced whereafter the pay-scale of respondent was revised to new grade of Rs.3500-75-3950-80- 4590/-. On 19.05.2009, the Government introduced MACPS before which the respondent had been granted first Financial Upgradation under the ACPS in the pay scale of Rs. 5200-20200 with grade pay of 1900/- after completion of 12 years of regular services on 19.03.2003 but the said benefit was illegally withdrawn by the order dated 16.09.2014. Against the said order, the respondent moved representation dated 29.09.2015 before the competent authority, which was rejected vide order dated 19.11.2015. 5. The case of the Department before the Tribunal was that after the grade pay of the respondent was fixed as Rs.1900/-, the Internal Audit Wing of Pay and Accounts Office, Ministry of Textiles, Udyog Bhawan, New Delhi objected to the same, pursuant whereto, a review meeting was conducted by the Department to rectify the irregularities committed by the previous Departmental Promotion Committee/Screening Committee. Resultantly, pay fixation/grant of financial upgradation under the ACPS was revised. Further defence was that since the respondent was originally holding an isolated post in the pay-scale corresponding to LEVEL S-2, he was eligible for grant of first financial upgradation under the ACPS in the next higher pay-scale corresponding to LEVEL S-3 only and not as per promotional hierarchy in the pay-scale corresponding to LEVEL S-5. In substance, the defence was that the respondent was earlier 2 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). accorded wrongful benefits under the ACPS which were rectified and reviewed by the subsequent orders and, hence, the Department committed no error. 6. The Tribunal, after analysing the rival contentions, allowed the OA and granted reliefs to the respondent, as referred to hereinabove. 7. While assailing the order impugned, learned counsel for the petitioners submits that the Tribunal has decided the matter contrary to the material on record. Submission is that by the order dated 16.09.2014 (impugned before the Tribunal), no benefits earlier given to the respondents were withdrawn, rather the same were granted to him and, therefore, the order of the Tribunal suffers from perversity. It is further urged that the respondent was earlier working in the pay-scale corresponding to LEVEL S-1 and was entitled to revised pay-scale corresponding to LEVEL S-3 which was granted to him by an order dated 08.01.2015, however, at an earlier point of time, an office order dated 24.03.2003 was erroneously issued whereby, inadvertently, the pay-scale of the respondent corresponding to LEVEL S-5 was fixed and it is the said error which was rectified by the Department by passing the order dated 16.09.2014. Further submission has been made that the respondent never challenged the order dated 08.01.2015 whereby his pay-scale corresponding to LEVEL S-3 was fixed and, therefore, whatever benefits were drawn by the respondent corresponding to LEVEL S-5, were not admissible to him and, hence, the order of the Tribunal is liable to the set aside. 8. Per contra, learned counsel for the respondent submits that the Tribunal has considered the specific Clause 11 contained in the office memorandum dated 19.05.2009, i.e. MACPS, whereby it 3 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). was clearly provided that no past cases would be re-opened. Submission is that on identical footings, certain other matters were decided by Jabalpur and Chandigarh benches of the Tribunal and the Tribunal, in the present case, has rightly arrived at a conclusion that case of the respondent was similar and identical to those cases wherein, after placing reliance upon Clause 11 of the Scheme restricting re-opening of past cases, identically placed employees of the Department had been granted relief by other benches of the Tribunal. It is further urged that orders impugned were passed without providing any opportunity of hearing to the respondent and there being no fraud or misrepresentation on the part of the respondent, the Tribunal has rightly applied ratio of the judgment of the Hon’ble Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334. 9. Meeting the aforesaid submissions, learned counsel for the petitioners submits that since the respondent agitated his claim before the Department by preferring representations which were rejected, it cannot be said that principles of natural justice were violated and insofar as the said judgment of Hon’ble Supreme Court in Rafiq Masih (supra) is concerned, the same has no application, inasmuch as, the judgment applies only in those cases where recovery from an employee would result in hardship to him, whereas, in the present case, since the respondent was granted all the benefits which were never withdrawn, the respondent never faced any hardship. Referring to 3rd paragraph of the supplementary affidavit filed today, learned counsel for the petitioners submits that respondent was granted second financial upgradation under the MACPS from 01.09.2008 and arrears of pay and allowances amounting to Rs. 64524/- were paid w.e.f. 4 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). 01.09.2008 to 28.02.2015; excess payment of Rs. 4264/- paid on account of grant of first financial upgradation and wrong fixation of pay w.e.f. 30.08.2000 to 31.07.2003 and difference of pay and allowance amounting to Rs. 7434/- further paid vide monthly salary bills from 01.08.2003 to 31.08.2008 (Rs. 4262 + 7434= 11698/-) was adjusted from the amount of arrears of second financial upgradation under MACPS at the time of payment of arrears of second financial upgradation. 10. Having heard learned counsel for the parties, we find that the Department has not disputed issuance of office order dated 24.03.2003 whereby the respondent was placed in the pay-scale corresponding to LEVEL S-5. The MACPS introduced w.e.f. 19.05.2009 clearly restrains re-opening of past cases. Clause 11 of the said Scheme, as also referred by the Tribunal, reads as under:- “11. It is clarified that no past cases would be re-opened. Further while implementing MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly.” 11. The record reveals that after a period of 11 years from fixation of pay-scale of the respondent, the Department proceeded to re-determine the pay-scale and make upgradation etc. in the light of MACPS and passed the order dated 16.09.2014. Such re- determination etc. is clearly hit by afore-quoted Clause 11 of the MACPS and submission of learned counsel for the petitioner that such a revision/re-determination would not amount to re-opening of past cases and that the Department was justified in rectifying the mistake committed earlier, is not acceptable, inasmuch as, revising /rectifying /re-determining/modifying the pay-scale or 5 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). other benefits admissible to the respondent based upon MACPS, would certainly amount to re-opening of past cases and no other view can be taken in this regard. 12. We are of the view that the Tribunal was justified in establishing parity of the case of the respondent with cases of those employees who had succeeded from Jabalpur and Chandigarh benches of the Tribunal in identical matters and holding the case of the respondent as a ‘past case’ which could not be re-opened. Even otherwise, once it is established that the Department itself had fixed a particular pay-scale by office order dated 24.03.2003 without any misrepresentation etc. on the part of the respondent, merely because on 08.01.2015, the respondent’s revised pay was fixed as corresponding to LEVEL S-3 and the said order remained unchallenged before any court/tribunal, the said circumstance would not be read in favour of the petitioners. The reason is that immediately after passing of the office order dated 08.01.2015, the respondent submitted his representation dated 23.01.2015 before the Department, however, it was rejected by order dated 04.03.2015 and another representation moved by him met the same fate on 19.11.2015. These orders rejecting the representations were also assailed before the Tribunal and, hence, it cannot be said that the respondent, directly or indirectly, accepted the revised pay- scale in LEVEL S-3 without raising a challenge thereto. 13. As far as the submission of counsel for the petitioners that the judgment of the Hon’ble Supreme Court in Rafiq Masih (supra) applies only to the cases of hardship which the respondent in the instant case has not suffered, the Court is not in a position to accept the same. Though it is true that in seventh paragraph of the said judgement, an observation was made that orders passed by the 6 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). employer seeking recovery of monetary benefits wrongly extended to employees can only be interfered with in cases where such recovery would result in hardship of a nature, which would far outweigh the equitable balance of the employer’s right to recover, the Hon’ble Supreme Court, in subsequent paragraphs of the report, held that ‘if the effect of the recovery from the concerned employee would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover.' After observing so, the Hon’ble Supreme Court, in paragraph 12 of the report, has clearly laid down as under:- “12. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an 7 of 8 Writ A No.5914 of 2025 (Union of India and 2 others vs. Chandra Prakash Pandey and another). extent, as would far outweigh the equitable balance of the employer's right to recover. “ 14. The Hon’ble Supreme Court after analysing the law on the aspect clearly enumerated the circumstances where the recovery by the employers, would be impermissible and therefore to claim that in a case like the present, the Tribunal was required to consider the hardship, cannot be accepted. 15. While concluding this judgment, we may observe that one of the reasons for allowing the OA was violation of principles of natural justice before passing the order dated 16.09.2014. We could have remitted the matter to the Department to undertake an exercise of re-consideration of the matter after providing opportunity of hearing to the respondent, however, we refrain ourselves from doing so for the reason that once we are satisfied that the present case is squarely hit by the bar contained in Clause 11 of the MACPS, i.e. against re-opening of past cases, remanding the matter to the Department for re-consideration would be hit by Clause 11 of MACPS, i.e. to say that it would amount to re- opening of past case, which cannot be done. 16. For all the aforesaid reasons, we do not find any justifiable reason to interfere with the order of the Tribunal. Consequently, the writ petition has no merit and is, accordingly, dismissed. Order Date :- 1.7.2025 Jyotsana (Kshitij Shailendra, J) (Arun Bhansali, CJ) 8 of 8 Digitally signed by :- JYOTSANA SINGH High Court of Judicature at Allahabad