1. By filing this original application, the applicant has sought the following main reliefs : "(A) To kindly quash the order dated 31.8.1998 and 27.3.2000 and other such orders issued for reduction of pay and recoveries from the settlement dues of the applicant.
(B) The respondents may be directed to restore pay and allowances on promotion as Driver 'A' Scale Rs. 1600-2600 (RP) from 1.1.1990 with all consequential benefits including pensionary benefits and settlement dues and arrears." 2. The brief facts of the case are that the applicant while working as Railway Engine Driver in the scale of Rs. 1350-2200 was promoted as officiating Passenger Driver in the scale of Rs. 1600-2660 vide letter dated 12.10.1989. As per the rule, a Government servant is required to submit his option for fixation of his pay in the promotional post either from the date of promotion or from the date of his next increment in the lower grade. Accordingly, the applicant has also, along with others, submitted his option to-opt for fixation of pay after getting increment in the lower grade. As per the option dated 28.10.1989, the respondents have fixed the pay of the applicant as under : Thus, according to the applicant, his pay was fixed in the higher grade at the stage of Rs. 2000/- w.e.f. 1.1.990. He took voluntary retirement w.e.f. 31st March, 1991. According to him, he was due for further increment from 1.1.1991 but the same has not been granted to him till his retirement inspite of his repeated requests, and after 7 years of his retirement the pay of the applicant has been reduced without giving him any notice and opportunity of hearing.
3. The respondents in their reply have stated that the applicant was promoted vide letter dated 12.10.1989 only on ad hoc basis. According to Railway Board's instructions dated 19.3.1985 (Annexure-R-1) it is very much clear that such an option was not available for ad hoc appointee. The respondents have stated that due to a mistake they have granted this benefit to the applicant which was subsequently realised by the DRM Kota and was rectified as would be clear from endorsement made in the service-sheet of the applicant (Annexure-R-2). The respondents have further submitted that they were within their rights to correct the incorrect fixation in accordance with Annexure-R-1 and, therefore, no fault could be found with it and it was not necessary in such circumstances to give any notice to the applicant. The applicant is, therefore, not entitled to any relief claimed in this O.A., and the same may be dismissed.
4. We have heard the learned Counsel of both the parties and given careful consideration to the arguments advanced by them. We have also perused the records.
5. The question for consideration before us is whether the applicant who was promoted to the post of Passenger Driver vide order dated 12.10.1989 can get the benefit of fixation of pay under Rule 2018(B) (FR 22-C). It is not in dispute that the applicant was promoted on ad hoc basis to the grade of Passenger Guard vide Annexure-A-5.The clarification issued by the Railway Board vide letter dated 19.3.1985 (Annexure-R-1) is as follows : Whether the option may be allowed in cases of ad hoc promotions also : No. The option is not admissible in respect of ad hoc promotions.
However, in cases where such a promotion is followed by regular appointment to the higher post without break, the option may be allowed as from the date of appointment to the higher post to be obtained within one month from the date of such regular appointment." The respondents in their reply have clearly stated that due to a mistake they have invited the option to fix the pay in the next higher grade as per FR 22-C, which was wrong. They have now corrected this mistake and refixed the pay of the applicant. We do not find any illegality in the action taken by the respondents. However, no recovery will be made from the applicant on this account as he has not misrepresented any fact as has been held by the Hon'ble Supreme Court in the case of Shyam Babu Verma v. Union of India, (1994) 27 ATC 121= 1994(2) SLJ 99 (SC). In the case of A.K. Agarwal v. Union of India and Ors., 2003(1) SLJ (CAT) 382 the Principal Bench of this Tribunal has also quashed the order of recovery of over-payment.
6. In the result, this original application is disposed of in the above terms. If recovery has already been made from the applicant, the same may be refunded back to him within a period of three months from the date of communication of this order. No costs.