UNION OF INDIA AND ORS.versusR. VASUDEVA MURTHY AND ORS.

                         [2010] 9 S.C.R. 978


A                    UNION OF INDIA AND ORS.
                                   v.
                R. VASUDEVA MURTHY AND ORS.
               (Civil Appeal Nos. 9113-9126 of 2003)

                          AUGUST 6, 2010
B
       [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

        Service Law - Pay scale - Revision of - Entitlement to
  - Office Memorandum dated 19.10.1994 issued by Ministry
C of Finance, Government of India in regard to revision of pay
  sea/es of Draughtsmen Grade I, Grade II and Grade Ill -
  Interpretation of - Held: The 0. M. must be construed to make
  it effective and operative, on the principle expressed in the
  maxim 'Vt res magis valeat quam pereat" -Particular length
D of service alone was not sufficient to entitle an employee to
  earn upgradation I revision of pay, it accrued only if the posts
  existed, not otherwise - The 0. M. did not give an absolute
  and blanket right to the Draughtsmen to claim upgradation I
  revision in the salary as soon as they put in requisite years
E of continuous service on the respective post to become
  eligible either for higher pay scale or for promotion - Unless,
  there were requisite vacancies in the respective cadres of
  Draughtsmen Grade I, Grade II and Grade Ill, the
  Draughtsmen could not be granted the said relief - Maxim -
  "Ut res magis valeat quam pereat".
F
         Interpretation of Statutes - Purposive construction - Held:
    The courts must lean against a construction which reduces a
    statute to a nullity.

G       The pay scales of Draughtsmen Grade I, Grade II and
    Grade Ill in all the Government of India offices were
    revised by the Ministry of Finance vide Office
    Memorandum dated 19-10-1994.

H                                 978
    UNION OF INDIA AND ORS. v. R. VASUDEVA               979
               MURTHY AND ORS.
    Many Draughtsmen approached the different                    A
Benches of Central Administrative Tribunals for extending
them the benefits of the O.M. Since the benefit was
extended to them by the different Tribunals, the Union of
India and/or Department of Telecommunications
approached the jurisdictional High Courts challenging it.        B

     However, different High Courts interpreted the O.M.
differently. While the Karnataka High Court and the High
Court of Gujarat held that once a Draughtsman put in
requisite length of service, he automatically became
entitled for upgradation I revision of his salary as per the     C
O.M.; the Madras High Court and full Bench of Andhra
Pradesh High Court held that the upgradation/ revision
was applicable only if there existed vacancies in the
respective Grades. The order of the Madras High Court
was not challenged before the Supreme Court. The                 D
instant appeals were filed against the judgments passed
by the· Karnataka High Court and the High Court of
Gujarat.

    ·Disposing of the appeals, the Court                         E
       HELD: 1.1. The true, effective, operative and correct
  interpretation of the Office Memorandum No.13(1 )-IC/~1
(dated 19.10.1994 is that, as and when vacancy arises in
  the cadre of Grade I Draughtsmen, after putting in
  requisite minimum service as per said Notification, then       F
  and only then the Draughtsmen Grade II would be entitled
  for the higher pay scale not otherwise. The entitlement
  for upgradation of salary is dependent on the number of
  vacancies available and not otherwise. The eligibility to
  claim higher pay scale/ upgradation is one thing but           G
  availability of vacancy is another. One may be eligible to
  claim higher pay scale or upgradation but it is of course
, subject to availability of posts. If posts are not available
  t!len, no benefit could be accrued to the Draughtsmen.
                                                                 H
    980     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A The said O.M. does not give an absolute and blanket right
  to these Draughtsmen to claim upgradation/revision in
  the salary as soon as they put in requisite years of
  continuous service on the respective post to become
  eligible either for higher pay scale or for promotion.
8 Unless, there are requisite vacancies in the respective
  cadres of Draughtsmen Grade I, Grade II and Grade Ill, the
  Draughtsmen cannot be granted the said relief. [Paras 24,
  25] [991-F-H; 992-A-C]

         1.2. It Ls well settled that the courts must lean against
C   a construction which reduces a statute to a nullity. The
    O.M. must be so construed to make it effective and
    operative, on the principle expressed in the maxim: "Ut
    res magis valeat quam pereaf' meaning thereby that the
    thing may rather have effect than be destroyed. When the
D   words employed in the O.M are clear, plain and
    unambiguous, then they are reasonably susceptible to
    only one meaning. Courts are bound to give effect to the
    said meaning irrespective of consequences. Clause 3 of
    the O.M. clearly stipulates that once the Draughtsmen are
E   placed in regular scales, their further promotion would be
    made against available vacancies in higher Grade and in
    accordance with the criteria laid down in the Recruitment
    Rules. Plain and simple reading of the aforesaid Clause
    3 makes it clear that upgradation/ revision of pay scale
F   is not as of right by putting in minimum period of service
    but is attached with riders. Necessary consequence of the
    reading of the 0.M. leaves no amount of doubt that
    particular length of service alone is not sufficient to
    entitle an employee to earn upgradation or revision of
G   pay, it would accrue only if the posts exist, not otherwise.
    [Paras 8 and 23] [991-A-D; 985-G-H; 986-A; 991-D]

       1.3. However, in the instant case, if any of the
    employees have been given the benefit of the O.M. (on

H
    UNION OF INDIA AND ORS. v. R. VASUDEVA                     981
               MURTHY AND ORS.

mere completion of certain years of service) and                       A
payments have been made by the Union of India and/or
Department of Telecommunication, it would not be
entitled to recovery thereof from the Draughtsmen as it
would be too harsh and unreasonable to ask for refund
after such a long lapse of time. [Para 26] [992-D]                     B

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9113-9126 of 2003.

    From the Judgment & Order dated 29.06.2001 of the High
Court of Karnataka at Bangalore in Writ Petition Nos. 16870-           C
16883 of 2000.

                              WITH

C.A. Nos. 9151-9153 of 2003, 3031 of 2004, 1590 & 1778 of
                                                                       0
2007.

    Naresh Kaushik, Subhash Kaushik, Ashok Bhan, A.K.
Sharma, (for Shreekant N. Terdal, P. Parmeswaran), T.
Anamika, Chandra Mohan Anisetty for the Appellants.
                                                                       E
    R.D. Agrawala, Pawan Kumar, S.N. Bhat, N.P.S. Panwar,
Amandeep Bawa, N.P.S. Panwar (for Sheela Goel) for the
Respondents.

     The Judgment of the Court was delivered by
                                                                       F
     DEEPAK VERMA, J. 1. In these and connected appeals,
we are required to consider the effect and implication of the
Office Memorandum No.13(1 )-IC/91 dated 19.10.1994
(hereinafter for the sake of brevity shall be referred to as 'O.M.')
issued by Government of India, Ministry of Finance, with regard        G
to revision of pay scales of Draughtsmen Grade I, Grade II and
Grade Ill in all Government of India offices. As it was felt that
Draughtsmen of various Departments, even though discharging
same functions, were paid different pay scales, thus to bring
                                                                       H
    982     SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A parity throughout the country with regard to their pay scales, the
  aforesaid O.M. was issued. The said O.M. came to be
  considered by the various High Courts namely, High Court of
  Karnataka, High Court of Andhra Pradesh, High Court of
  Madras and High Court of Gujarat as many Draughtsmen had
B approached the different Benches of Central Administrative
  Tribunals for extending them the benefits of the O.M. Since the
  benefit was extended to them by the different Tribunals, Union ,
  of India and/or Department of Telecommunications had
  approached the jurisdictional High Courts challenging it.
c However, there have been divergent views with regard to
  implementation thereof. Thus, in nut shell we are called upon
  to set at rest the controversy by giving true, correct, proper,
  meaningful and purposeful interpretation of the said O.M.

       2. Various judgments of the High Courts would also be
D considered at a later stage. Prior to issuance of the said O.M.,
  a notification was issued on 23rd August 1993 by the Ministry
  of Communication, Department of Telecommunications dealing
  with the same subject as mentioned hereinabove. This
  Notification was issued in the light of various orders passed
E by the Central Administrative Tribunal and various High Courts
  from time to time. On account of several representations
  received from Draughtsmen for introduction of Grades and pay
  scales at par with those working in CPWD, by the said
  Notification three grades in the pre-revised payscale of Rs.330-
F 560, Rs.425-700 and Rs.550-750 designated as Draughtsmen
  Grade Ill, Draughtsmen Grade II and Draughtsmen Grade I
  respectively were fixed. The said notification further fixed ratio
  of 60:30:10 for Draughtsmen Gr.Ill, Gr.II and Gr.I respectively.
  The number of posts for Grade II and Grade I were to be worked
G out on Circle basis as these are Circle cadres.

        3. It further contemplated that the revised pay scales will
    be admissible to these officials notionally from 22.8.1973 but
    actual financial benefit would accrue to them from 16.11.1978

H
     UNION OF INDIA AND ORS. v. R. VASUDEVA                 983
      MURTHY AND ORS. [DEEPAK VERMA, J.]

or from the date of appointment I promotion in each grade,          A
                                              1
whichever is later.

      4. Another Notification dated 6.7.1994 was issued by the
 same Ministry in exercise of powers conferred by proviso to
 Article 309 of the Constitution of India and in supersession of    8
 the Telecommunications Department Draughtsmen
 (Recruitment) Rules 1986. By this Notification, the Rules with
 regard to reguiating method of recruitment to the post of
 Draughtsmen Grade Ill, Grade II and Grade I in the Department
 of Telecommunication were notified, known as the
 Telecommunications Department (Draughtsman Grade 111,              C
 Grade II and Grade I) Recruitment Rules, 1994. They were to
 come into force from the date of its publication in the official
 gazette. Schedule appended thereto mentions that total number
 of 900 posts would be available with regard to Draughtsmen
 Grade 111 in the pay scale of Rs.1200-30-1560-EB-40-2040,          D
 450 posts of Draughtsmen Grade II would be available in the
 pay scale of Rs.1400-40-1800-EB-50-2300 and 150 posts
·would be available for Draughtsmen Grade I in the pay scale
 of Rs.1600-50- 2300-EB-60-2660 as on 31.12.1992. However,
 it was subject to variation as per the requirement and need of     E
 the Department.

     5. All these posts were categorised as Group 'C' and DPC
of the officers was to be constituted as projected in the said
schedule. As already mentioned hereinabove, all the aforesaid       F
cadre posts were in the ratio of 60:30:10. ·

     6. Impugned O.M. Dated 19.10.1994 clearly mentioned
that minimum period of service for Grade 111, Grade II and Grade
I would be 7 years, 5 years and 4 years respectively, so as to
make them entitled to earn upgradation or revision of their         G
salary.

   7. For proper appreciation and examination of O.M., the
same is reproduced hereinbelow:
                                                                    H
    984      SUPREME COURT REPORTS                  [2010] 9 S.CR.


A                            "No.13(1)-IC/91
                           Government of India
                            Ministry of Finance
                         Department of Expenditure

B
                                    New Delhi, the 19th Oct., 1994

                          OFFICE MEMORANDUM
      Subject::- Revision of pay scales of Draughtsmen Grade
c                I, II and Ill in all Government of India offices on
                 the basis of Central Public Works Department.

                The undersigned is directed to refer to this
          department's O.M.No.F.5(59)-E.111/82 dated 13.3.1984 on
          the subject mentioned above and to day that a Committee
D         of the National Council (JCM) was set up to consider the
          request of the Staff Side that the following scales of pay,
          allowed to the Draughtsmen Grade I, II and Ill working in
          CPWD on the basis of the Award of Board of arbitration
          may be extended to Draughtsmen Gradw I, II and 111,
E         irrespective of their recruitment qualification, in all
          Government of India offices:
                                  Original        Revised Scales
                                  Scale           on the basis of
                                                  the Award
F                                 (Rs.)            (Rs.)


      Draughtsmen Grade I         Rs. 425-700     Rs. 550-750
      Draughtsmen Grade II        Rs. 330-560     Rs. 425-700
G
      Draughtsmen Grade Ill       Rs. 260-430     Rs. 330-560

          2. The President is now pleased to decide that the
          Draughtsmen Grade I, II and Ill in offices/departments of
          the Goverment of India other than in CPWD may also be
H
   UNION OF INDIA AND ORS. v. R. VASUDEVA                 985
    MURTHY AND ORS. [DEEPAK VERMA, J.]

    placed in the scales of pay mentioned above subject to        A
    the following:

     (a}   Minimum period of service for: 7 Years placement
           from the post carrying scale of Rs.975-1540 to
           Rs.1200-2040 (pre-revised Rs.260-430 t0 330-           B
           560)

     (b)   Minimum period of service for: 5 Years placement
           from the post carrying scale of Rs.1200-2040 to
           Rs.1400-2300 (pre-revised Rs.330-560 to 425-
           700)                                                   c
     (c)   Minimum period of service for : 4 Years placement
           from the post carrying scale of Rs.1400-2300 to
           Rs.1600-2660 (pre-revised Rs.425-700 to 550-
           750)                                                   D
     3.    Once the Draughtsmen are placed in the regular
           scales, further promotions would be made against
           available vacancies in higher grade and in
           accordance with the normal eligibility criteria laid
           down in the recruitment rules.                         E

     4.    The benefit of this revision of scales of pay would
           be given with effect '.Jm 13.5.1982 notionally and
           actually from 1.11.1983.
                                                                  F
                                                          Sd/-

                        Under Secretary to the Govt. Of India"

     8. Clause 3 thereof clearly stipulates that once the
Draughtsmen are placed in regular scales, their further           G
promotion would be made against available vacancies in higher
Grade and in accordance with criteria laid down in the
Recruitment Rules. Plain and simple reading of the aforesaid
Clause 3 makes it clear that upgradation/ revision of pay scale
is not as of right by putting in minimum period of service of 4   H
    986      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A years, 5 years and 7 years as the case may be but is attached
  with riders. To get upgradation, it is necessary that the
  vacancies are available, only then the said upgradation would
  be allowed and it is further subject to the Recruitment Rules
  applicable to the case of each employee.
B
          9. However, different High Courts have interpreted the O.M.
  differently. In fact, Karnataka High Court and High Court of
  Gujarat have held that once a Draughtsman puts in requisite
  length of service, he would automatically become entitled for
C upgradation of his salary as per the O.M. but Madras High
  Court and full Bench of Andhra Pradesh High Court have held
  that it would be applicable only if there exists a vacancy in the
  respective cadres. Thus, we are required to consider the said
  matter in the light of the judgments of various High Courts,
  which we shall do now.
D
          10. The Union of India, feeiing aggrieved by the Order
  passed by Central Administrative Tribunal, Bangalore had filed
  a Writ Petition before a Division Bench of the High Court of
  Karnataka at Bangalore which came up for consideration on
E 29.6.2001. On the said date, while disposing of the said
  petition, Division Bench passed the following order:

                "Respondents had completed four years of service
          for being put in the higher grade as per the Notification
          dated 19.10.1994 much earlier to the withdrawal of the
F
          said Notification on 19.2.1997. The Tribunal has rightly
          granted the benefit of the G.O. Dated 19.10.1994 to the
          respondents.

                No merit. Dismissed.
G
                                                                 Sd/-

                                                                Sd/-"

          11. Thus, the High Court of Karnataka held that the Tribunal
H was justified in granting the benefit of G.0/0.M dated
    UNION OF INDIA AND ORS. v. R. VASUDEVA                     987
     MURTHY AND ORS. [DEEPAK VERMA, J.]

19.10.1994, to the respondents working as Draughtsmen.                 A

     12. The Union of India, feeling aggrieved by the order
passed by the Central Administrative Tribunal, Ahmedabad was
pleased to file several Special Civil Applications before a
Division Bench of the High Court of Gujarat. The same came             8
to be heard and disposed of on 4.7.2002.

     13. The operative and relevant part of the said judgment
is reproduced hereinbelow:

    "It is, therefore, amply clear that after. the implementation      c
    of the revised scales at par with CPWD Draughtsmen and
    in light of the publication of statutory rules for recruitment
    of Grade-Ill, II and I Draughtsmen, the proposition of ratio
    of 60:30:10 introduced by the O.M. Dated 23rd August,
    1993 shall obviously stand obliterated. Therefore, it cannot       D
    be contended at this stage that the ultimate consequences
    recorded by the Tribunal in three impugned judgments
    based on factual matrix and correct interpretation of the
    government's O.M are in any way, unjust, unreasonable,
    illegal, perverse or in any way vulnerable. In our opinion,        E
    this group of three petitions at the instance of the Union of
    India against identical three judgements of the Tribunal on
    common issues in exercisr of extraordinary, prerogative
    and discretionary writ jurisdiction under Articles 226 and
    227 of the Constitution of India are devoid of any merits
                                                                       F
    and deserve to be thrown overboard at the admission
    stage. Therefore, they are rejected at the threshold, Notice
    shall stand discharged without any order as to costs.

                                                         Sd/- Sd/-"
                                                                       G
The result of the said judgment is that the order of the Tribunal
was upheld and the respondents were granted benefit of the
O.M. However, it has not taken into consideration the clause
regarding availability of posts or eligibility criteria laid down in
the relevant Recruitment Rules.
                                                                       H
    988      SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A       14. The Union of India was also constrained to file W.P.
  No.597 of 2000 before a Division Bench of High Court of
  Judicature at Madras challenging the order passed by Central
  Administrative Tribunal, whereby the application filed by
  respondent therein R. Jothimani was allowed. The Tribunal had
B directed that salary of respondent Jothimani be fixed in the
  higher pay scale on the basis of his having completed 4 years
  of service in the post of Grade II Draughtsmen. The said Writ
  Petition also came to be allowed and the order of the Tribunal
  was quashed. The operative and relevant para of the said
c judgment of the Division Bench of High Court of Madras is
  reproduced hereinbelow:

                 "The first respondent did not in any manner show that
          actually the posts were available in Grade I and that in spite
          of such availability, his claim was not accepted which was
D         made by making a specific representation. We, therefore,
          are unable to agree with the Tribunal and more particularly
          its reasoning that since there is no ratio provided in the
          Office Memorandum dated 19.10.1994 therefore the first
          respondent automatically became entitled to be f~xed in the
E         higher grade or to be taken to the Grade I Draughtsmen
          post on the completion of his four years of service.
          According to us, even if the first respondent became
          entitled by reason of his continuous service of four years
          in Grade II yet he could be entitled to the higher
F         emoluments or the higher pay scale only if the post was
          available in Grade I in terms with the ratio provided for by
          the rules and more particularly by office memorandum
          dated 23.8.1993. That being the case, we must hold that
          the Tribunal was in error in taking the view that it held. We
G         accordingly set aside the urder of the Tribunal and order
          the dismissal of the original application. The writ petition
          is allowed. However, there shall be no orders as to the
          costs. W.M.P. No. 869 of 2000 is closed."

          15. Admittedly, against the order passed by the Madras
H
    UNION OF JNDIA AND ORS. v. R. VASUDEVA                   989
     MURTHY AND ORS. [DEEPAK VERMA, J.]

High Court, in the aforesaid matter, the respondent therein did      A
not challenge the same before this Court by filing a Special
Leave Petition. Thus, the order of the Madras High Court had
attained finality.

     16. In the High Court of Andhra Pradesh at Hyderabad, on        B
account of difference of opinion between two Division Benches,
matter was referred to a Full Bench of three learned Judges. It
pronounced its opinion on 24.9.2004. There also the Union of
India had preferred the Writ Petitions against the order of the
Central Aministrative Tribunal Hyderabad, whereby benefit of         C
the O.M. was given to Draughtsmen. Relying on the relevant
portion of the judgment of the Division Bench of the High Court
of Madras quoted hereinabove, the Full Bench answered the
reference in favour of the Union of India and against the
Draughtsmen.
                                                                     D
    17. In the light of the opinion expressed by the Full Bench,
matter was placed before the Division Bench of the said High
Court, which allowed the writ Petition filed by the Union of India
and dismissed the Original Application filed by the respondents,
Draughtsmen.                                                         E

    18. In the light bf the aforesaid judgments of the Division
Benches and opinion' expressed by the full Bench of the High
Court of Andhra Pradesh, we are now required to consider
what would be the true correct, proper, meaningful, effective,
                                                                     F
operative and purposeful interpretation of O.M. dated
19.10.1994 reproduced hereinabove.

     19. Learned counsel appearing for the Draughtsmen
argued before us with vehemence that necessary implication
of the O.M. is, as soon as Draughtsman Grade II completes 4          G
years of service, automatically, he would be entitled, if not for
promotion, at least for upgradation in his pay scale equivalent
to that of Draughtsman Grade I. They further contended that
there was no embargo created under the O.M. or any of the
service regulations applicable to these employees to deprive         H
    990     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A them of the benefit of upgradation of pay as the same was·
  necessary consequence and implication of issuance of O.M.
  dated 19.10.1994.

       20. On the other hand, learned counsel appearing for the
  Union of India and Department of Telecommuication forcefully
8
  opposed the said contention and submitted that irrespective of
  whether an employee has fulfilled the eligibility criteria of
  minimum years of service, upgradation of scale and/or
  promotion to the respective grade would be available subject
  to availability of vacancies as per the O.M. For the said
C purposes, they have placed great reliance on the Rules which
  have been formulated in exercise of power conferred by proviso
  to Article 309 of the Constitution of India. These Rules clearly
  stipulate that the total number of posts of Draughtsmen Grade
  Ill would be 900, posts of Grade II would be 450 and that of
D Grade I would be 150 only as on 31.12.1992 circlewise and
  this would be of course, subject to variation depending on
  workload. No other Notification or Rules were brought to our
  notice meaning thereby that ever since 23.08.1993, when the
  aforesaid ratio of Draughtsmen was fixed at 60:30:10, there has
E not been enhancement or modification in the same. Thus, we
  have to proceed on the assumption that even on this date, the
  total circlewise cadre strength of the Draughtsmen Grade Ill,
  Grade II and Grade I stands as mentioned hereinabove.

F      21. Now, coming to the O.M., Clause 3 thereof is relevant
  which clearly stipulates that only when the Draughtsmen are
  placed in the regular scales, they would be entitled to further
  promotion against available vacancies in higher grade and that
  too in conformity with the normal eligibility criteria laid down in
G the Recruitment Rules.

         22. Despite our repeated and persistent requests made
    to the learned counsel appearing for the Union of India and the
    Department, they were not able to inform us if the aforesaid
    strength fixed on 31.12.1992 has been enhanced or not. We
H
     UNION OF INDIA AND ORS. v. R. VASUDEVA                    991
      MURTHY AND ORS. [DEEPAK VERMA, J.]

 were of the opinion that more than 18 years have elapsed and         A
 workload having increased considerably, strength must have
 been increased, but no positive answer was given to us. It
 appears little surprising that the posts have not been enhanced
 for a period of last 18 years, which is indeed not very appealing.
                                                                      B
      23. It is well settled that the Courts must lean against a
 construction which reduces a statute to a nullity. In our
 considered opinion, the O.M. must be so construed to make it
 effective and operative, on the principle expressed in the
 maxim:
                                                                      c
             "Ut res magis valeat quam pereat" meaning thereby
      that the thing may rather have effect than be destroyed.

       When the words employed in the O.M are clear, plain and
  unambiguous, then they are reasonably susceptible to only one       D
  meaning. Courts are bound to give effect to the said meaning
  irrespective of consequences. Necessary consequence of the
  reading of the O.M. leaves no amount of doubt that particular
. length of service alone is not sufficient to entitle an employee
  to earn upgradation or revision of pay, it would accrue only if     E
  the posts exist, not otherwise.

      24. In our considered opinion, the said O.M. does not
 giveu an absolute and blanket right to these Draughtsmen to
 claim upgradation/revision in the salary as soon as they put in
 requisite years of continuous service on the respective post to      F
 become eligible either for higher pay scale or for promotion.
 Unless, there are requisite vacancies in the respective cadres
 of Draughtsmen Grade Ill, Grade II and Grade I, the
 Draughtsmen cannot be granted the said relief. This is what we
 have been able to decipher from the O.M. dated 19.10.1994,           G
 after critical and thorough examination thereof.

      25. Thus, in our opinion, the true, effective, operative and
 correct interpretation of the said O.M is that, as and when
 vacancy arises in the cadre of Grade I Draughtsmen, after            H
    992      SUPREME COURT REPORTS                 (2010) 9 S.C.R.


A putting in requisite minimum service as per said Notification,
  then and only then the Draughtsmen Grade II would be entitled
  for the higher pay scale not otherwise. To clarify it further, we
  hold that the entitlement for upgradation of salary is dependent
  on the number of vacancies available and not otherwise. It is
B also to be noted that eligibility to claim higher pay scale/
  upgradation is one thing but availability of vacancy is another.
  One may be eligible to claim higher pay scale or upgradation
  but it is of course subject to availability of posts. If posts are
  not available then, no benefit could be accrued to the
c Draughtsmen.

      26. We make it clear that if any of the employees have
  been given the benefit of the O.M. and payments have been ·
  made by the Union of India and/or Department of.
  Telecommunication, it would not be entitled to recovery thereof
D from the Draughtsmen as it would be too harsh and ·
  unreasonable to ask for refund after such a long lapse of time.

       27. In the light of this, the appeals preferred by Union of
  India and Department of Telecommuication are hereby allowed.
E The Orders passed by different Benches of the Central
  Administrative Tribunal and of Gujarat High Court and Karnataka
  High Court are set aside and quashed and the appeals
  preferred by Draughtsmen are dismissed.

F       28. Looking to the facts and circumstances of the case,
    no order as to costs.

    8.8.8.                                   Appeals disposed of.