Full Judgment
Lakshmanan, C.J.
(1) Heard Mr. N.M. Lodha, learned counsel appearing for the petitioners.
(2). With a view to give service benefits in respect to remove the stagnation and frustration likely to be caused amongst the employees on account of non-promotion to them for quite considerable period, a Scheme known as Time Bound One Promotion (T.B.O.P.) was issued. The Scheme says that on completion of 16 years of service, Class 'D' employee should be given pay scale of Rs. 800-1150. Subsequently, Biennial Cadre Review (B.C.K.) Scheme came Into force in 1991 (hereinafter called 'the Scheme'). On account of this Scheme. Class 'D' employees could have been promoted to the next higher pay scale of Rs. 950-20-1150-EB-25-1400. The copy of the said Scheme has been filed as Exhibit-1. As per this scheme, on completion of 26 years ofservice, second promotion in pay scale was to be given i.e. pay scale Rs. 950- 1400. However, for proper implementation of the scheme, a circular was issued whereby it was made clear that options should be taken from the persons as to whether they would like to take advantage of B.C.R. Scheme or not. According to the department, it was needed because as per circular dated 28.7.92, the age of superannuation is fixed as 58 years. It is also noteworthy that the pay scale of Rs. 950-1400 is admissible to Class III employees. In such circumstances as soon as Class 'D' employee is promoted to the cadre of class 'C' employee in the pay scale of Rs. 950-1400, then his age of superannuation is reduced to 58 years instead of 60 years. The copy of this circular has been filed as Exhibit-2.
(3). In the instant case, the Tribunal has found that the petitioners' action in declaring the Group 'D' employees on grant of upgraded scale of Rs. 950-1400 would retire on attaining the age of 58 years is not tenable because the higher scale was granted to obviate stagnation and frustration amongst the employees and they continued to discharge the duties and responsibility of Group 'D'; employee. In the instant case, the employee had already attained the age of 58 years before the date when the upgraded scale was granted to them. The Tribunal had also found that the B.C.R. Scheme did not provide any provision that the Group 'D' employee granted the scale of Rs. 950-1400 would be treated as promoted as Group 'C' employee and would be liable to be retired on attaining the age of 58 years. In the light of the above discussion, the Tribunal allowed the O.A. filed by the respondent herein against which the present writ petition has been filed.
(4). The Tribunal; in our opinion, has rightly quashed the impugned orders dated 28.10.92 and 15.9.95 and consequential orders for recovery of the alleged over payment. The Tribunal has further ordered that if any recovery has been made from the present respondent, the same shall be refunded at the rate of 12% p.a. The Tribunal has further observed that the respondent/applicant on grant of upgraded scale of Rs. 950-1400 would be treated as Group 'D' employee and would be entitled to continuity in service till completion of 60 years of age. In the instant case, the applicant has already been retired with effect from 31.10.92. The Tribunal, in our view, has rightly granted the retiral benefits and further ordered the same to be calculated on the basis of the presumptive pay in the pay scale of Rs. 950-1400 on the date of their normal retirement on attaining the age of 60 years.(5). In our opinion, the B.C.R. Scheme could not have been pressed into service as far as the present respondent is concerned because all the benefits have been granted after 58 years.
(6). Accordingly, this writ petition fails and is dismissed.
(7). The amount, which has already been recovered, will be refunded to the employees within three months from today.