J. Kumaraguru and Others vs Union of India (UOI), The Director of Animal Husbandry and Animal Welfare Department, The Director of Accounts and Treasuries and The Central Administrative Tribunal, Madras Bench

Elipe Dharma Rao, J.—All the petitioners joined the services of the respondents 1 and 2 as Livestock Assistants Grade-II on various dates

between 1967 and 1980 and as per the III Pay Commission, their pay scale was Rs. 260-430. The next avenue of promotion for them is

Livestock Assistants Grade-I in the pay scale of Rs. 330-560. The Livestock Assistants'' Association of Pondicherry was representing to the

Government that their counter-parts in other Union Territories were drawing the pay scale of Rs. 330-560 and demanded to implement the same

pay scale for them also. It seems, pursuant to the said representation of the Livestock Assistants Association of Pondicherry, a meeting was held

between the Livestock Assistants'' Association and the Secretary to the Government of Pondicherry, Local Administration Department on

17.5.1981 and pursuant to such meeting, the Government of Pondicherry, has issued G.O.Ms. No. 25, dated 23.2.1982, creating seventy posts

of Veterinary Field Assistants in lieu of the then existing Livestock Assistants Grade-II Post. Further, the post of Livestock Assistant Grade-I

which was in existence then was also re-designated as Veterinary Field Assistant, as per G.O.Ms. No. 49, dated 29.4.1982. Thereafter, the pay

scales of the petitioners were re-fixed in the time scale of Rs. 330-560 and thereafter as per the Assured Career Plan, for the petitioners who have

completed 12 years of service, one financial upgradation was granted and for the petitioners who have completed 24 years of service, two financial

upgradations were granted. Thereafter, by the impugned orders, the respondents have cancelled the second financial upgradation granted to the

petitioners on the ground that the placement of the petitioners in the higher pay scale of Rs. 330-560 is treated as promotion and so the 12 years of

service has to be counted from the date of placement in the higher pay scale namely 23.2.1982.

These individual orders, issued by the respondents to all the petitioners, were challenged by them before the Tribunal and the Tribunal, accepting

the contention of the respondents that since the petitioners have already enjoyed promotion, they are not entitled for the first financial upgradation,

has dismissed the Original Applications. Aggrieved, these two writ petitions are filed by the applicants before the Tribunal.

The only question that arises for consideration in these two writ petitions is ''whether the upgradation of the post of Veterinary Field Assistant

shall be construed as ''promotion'' so as to deny the first financial upgradation to the petitioners?''

There is no dispute regarding the fact that the petitioners were working as Livestock Assistants Grade-II, the pay scale of which, as per the III

Pay Commission, was Rs. 260-340 and adhering to the request made by the Livestock Assistants'' Association, Pondicherry, the Government of

Pondicherry has issued G.O.Ms. No. 25, Development Department, dated 23.2.1982 creating seventy posts in the grade of Veterinary Field

Assistants in lieu of the Livestock Assistants Grade-II. Thereafter, even the post of Livestock Assistants Grade-I carrying the pay scale of Rs.

330-560, which was the promotional avenue for the Livestock Assistants Grade-II, was also re-designated as Veterinary Field Assistant, as per

G.O.Ms. No. 49, dated 29.4.1982. It is therefore, now contended on the part of the respondents that since the pay scales of the petitioners was

fixed in the promotional category of Livestock Assistants Grade-I carrying the pay scale of Rs. 330-560 and thus the petitioners have enjoyed the

promotion, they are not at all eligible for the first financial upgradation and thus they would justify the impugned orders issued by them. It is also

contended on the part of the respondents that the Accountant General Audit has pointed out the erroneous grant of financial upgradation under

ACP scheme to one N.Muthusamy, Livestock Supervisor and also instructed to re-fix the pay and to recover the excess payments from the

salaries of the Government servants concerned and also to review similar cases, which resulted in issuance of impugned orders.

The contention of the petitioners that since their counter-parts in other Union Territories were drawing higher pay scale, they made several

representations to the respondents, which fructified in issuance of G.O.Ms. No. 25, Development Department, dated 23.2.1982, was not at all

disputed by the respondents. Even a reading of this G.O.Ms. No. 25, Development Department, dated 23.2.1982, would make it clear that 70

posts of Veterinary Field Assistants were created ''in lieu of'' Livestock Assistants Grade-II. Nowhere in this proceeding it has been mentioned

that all the Livestock Assistants Grade-II were ''promoted'' to the cadre of Livestock Assistants Grade-I, re-designating as Veterinary Field

Assistant. As has already been stated supra, even the Livestock Assistants Grade-I was re-designated as Veterinary Field Assistant by G.O.Ms.

No. 49, dated 29.4.1982 and thus there is no such post in existence and the only category which was designated in lieu of both Livestock

Assistants Grade-I and Livestock Assistants Grade-II is Veterinary Field Assistant. The availability of such a single cadre in other Union

Territories, which was followed to create a similar single cadre in the state of Pondicherry, cannot be disputed. Further more, the petitioners were

asked to exercise their option regarding their pay fixation after the upgradation of the post, but not as promotees from the lower category.

It is also to be mentioned that after upgradation of the posts, there was no change in the duties and responsibilities of the petitioners from that of

Livestock Assistants Grade-II. It is the common knowledge of everybody that the very term ''promotion'' means advancement in rank, grade, or

position with more responsible duties, different from that of the earlier duties performed by the employees in their previous lower grade. In none of

the proceedings issued, prior to the impugned orders, the respondents have stated that the petitioners were promoted from the grade of Livestock

Assistants Grade-II and this plea seems to have been raised only after the alleged audit objection raised by the Accountant General Audit

regarding the grant of financial upgradation under ACP Scheme to one N.Muthusamy, Livestock Supervisor, the legality or otherwise of which we

are not concerned with.

If really the petitioners were ''promoted'' and that their post and pay was not upgraded on par with their counter-parts in other Union Territories,

the same should have been the content of the G.O.Ms. No. 25, Development Department, dated 23.2.1982. On the contrary, as has already been

adverted to supra, it has been mentioned in this G.O.Ms. No. 25, that 70 posts of Veterinary Field Assistants were created ''in lieu'' of Livestock

Assistants Grade-II. Therefore, at no stretch of imagination, it can be said that the petitioners were ''promoted'' from the cadre of Livestock

Assistants Grade-II to that of the newly created Veterinary Field Assistant, carrying the pay scale of Rs. 330-560. Further more, when the

similarly situated persons in other Union Territories enjoy the higher pay scale and owing to the request of the petitioners, their pay scale has also

been enhanced on par with similarly situated persons of other Union Territories, it cannot at all be construed as a ''promotion'' so as to deny them

the ACP.

At this juncture, it is apt to make a mention that under similar circumstances, the Honourable Apex Court in Bhagwan Shukla Vs. Union of India

and others, and Sahib Ram Vs. State of Haryana and Others, , has held that excess amounts paid to the employees due to wrong construction of

relevant order by the authority concerned, without any misrepresentation by the employee, may not be recovered.

In the light of our discussion supra, we have no hesitation to hold that the Tribunal has committed an error in accepting the case of the

respondents, thus making our interference into such an order, a legal compulsion to set right the illegality committed to the petitioners.

In the result, these Writ Petitions are allowed, setting aside the common order passed by the Tribunal in O.A. Nos. 915 o 2004 and 1035 of

2004, dated 21.3.2005 and both these O.As. shall now stand allowed. No costs.