JUDGMENT :

HARPREET SINGH BRAR, J. 

CM-5549-CWP-2024

Prayer in the instant application filed under Section 151 of CPC is for placing on record replication to the written statement filed by respondents along with document (Annexure P-24).

Allowed as prayed for subject to all just exceptions.

CWP-19379-2017 (O&M)

1. Prayer in this writ petition filed under Articles 226/227 of the Constitution of India, is for issuance of a writ in the nature of certiorari, for quashing the Office Order dated 19.11.2015 (Annexure P- 12) whereby the sanction granted to the petitioner for changing his induction post from Test Mechanic to JE/Testing was cancelled and for quashing the impugned reply dated 27.04.2017 (Annexure P-19) rejecting the legal notice and the impugned order of recovery dated 10.08.2017 (Annexure P-20). Further a writ of mandamus has been sought, directing the respondents to restore the induction post from Test Mechanic to JE/Testing as sanctioned to the petitioner in the year 2010 with all consequential benefits and refund of the recovered amount.

2. Learned counsel for the petitioner, inter alia, contends that the action of the respondents in cancelling the sanction for change of induction post from Test Mechanic to JE/Testing after a lapse of nearly five years, that too without issuing any show cause notice or affording any opportunity of hearing, is patently illegal and in gross violation of the principles of natural justice. He submits that the petitioner had strictly complied with the provisions of Finance Circular No.19/2003 dated 15.09.2003 by opting to change his induction post to JE/Testing and surrendering all monetary benefits earlier availed in the lower post of Test Mechanic, which was duly accepted by the respondents. He further argues that the impugned recovery of Rs.46,047/- is impermissible in law as the petitioner has not misrepresented any facts, the benefits were granted after due process including pre-audit by the Accounts Officer, and the respondents themselves have admitted that recovery for the 9 years Time Bound Pay Scale (TBPS) granted in 2004 cannot be effected due to lapse of five years. Learned counsel for the petitioner highlights the patent anomaly where juniors of the petitioner in the cadre of JE/Testing are drawing higher salaries than the petitioner, which is contrary to the settled legal position that a senior employee cannot be paid less than his junior in the same cadre, as established by the judgments rendered by the Hon'ble Supreme Court in Kamlakar vs. Union of India, (1999) 4 SCC 756 and Union of India vs. P. Jagdish, 1997 AIR SC 1783.

3. Per contra, learned counsel for the respondents submits that the writ petition is liable to be dismissed, as the petitioner has not approached the Court with clean hands. He contends that as per Finance Circular No.19/2003 dated 15.09.2003 and Finance Circular No.18/90 (Annexure P-22) dated 23.04.1990, if an employee already in service is directly appointed to a higher post through open selection, then he is entitled to 9/16 year TBPS in that cadre. Since the petitioner was promoted on seniority basis and not through open selection/CRA, he was not entitled to change his induction post to JE and thus, is not eligible for 9/16 year time bound promotion to the higher post of JE. He further argues that the matter was referred to the legal section, which opined that recovery cannot be made where 5 years have elapsed from the date of payment of 9 years TBPS (i.e., 29.09.2004), but for the 16 years TBPS granted on 28.09.2011 w.e.f. 01.09.2011, recovery could be effected by issuing a show cause notice. Learned counsel submits that a show cause notice was duly issued and after considering the petitioner's reply, recovery of Rs.46,047/- was rightly effected in accordance with law.

4. I have heard learned counsel for the parties and perused the records with their able assistance.

5. Admittedly, the petitioner was initially appointed as Test Mechanic on 11.07.1986 and was