CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH AT JODHPUR Original Application No. 250/2010 Date of decision: 01.01.2013 CORAM HONBLE MR. B.K.SINHA, ADMINISTRATIVE MEMBER Shri Goverdhan Singh Bhati S/o Shri Dhoor Singh Bhati, aged 49 years, Caste Bhati R/o 75 Gorow House, Air Force Area, Jodhpur. (Hall:-Chargeman-I, No. 185 Fd. Wksp. Coy (SU) C/o 56 APO). ..Applicant (By Advocate : Mr. S.P. Sharma) Vs. 1. The Union of India, through the Secretary, Ministry of Defence, Government of India, Raksha Bhawan, New Delhi. 2. The Directorate General of EME (EME Civ.) Master General of the Ord. Branch Integrated HQ of MoD (Army) Army Headquarter, DHQ PO, New Delhi-11 3. Officer-in-Charge, Record Office, E.M.E. Records, Secunderabad 500 021 4. The Area Account Office (Southern Command), Jodhpur 5. The Commanding Officer, HQ 185 Fd Wksp Coy (SU) (7012 EME Bn.) C/o 56 APO Respondents (By Advocate Mr. Vinit Mathur,ASGI along with Mr. Anirudh Purohit for Respondent No. 1 to 3)- No representation for R4&5. ORDER
Per : Honble Mr.B K Sinha, Administrative Member
1. The instant case is directed against the impugned order dated 23/04/2012 communicated by memo no. AAO/SC/Jodh/Pay II/1226 of respondent no. 4 holding that the benefit granted to the applicant on his promotion to the post of Chargeman-I (CM-I) w.e.f. 1/05/2008 in the grade pay of Rs 4,600/- is irregular as per para 4(iv) of MOD ID, which is reproduced below :-
(iii) The benefit granted to Shri G.S. Bhati on his promotion to CM-I w.e.f. 01/05/08 in the grade pay of Rs 4,600/- is irregular, as per para (iv) of MOD ID referred above, in par (ii) ibid. The promotion granted in the merged scale during the period 01/01/2006 to date of amendment of R.R. would be ignored since both the posts have been merged from 01/01/2006 and given a common grade-pay.
(iv) The pay-fixation already approved, while working in Vehicle Depot, Delhi may please be treated cancelled and a reversed pay-fixation performa in grade-pay Rs 4200 may please be forwarded at earliest to this office for corrective measures. A detailed statement of overpayment made to individual may be prepared and forwarded to this office for recovery.
2. The applicant has sought the following relief(s):-
(a) The impugned order dated 23/04/2010 (Annexure-A/1) issued by respondent no. 4 containing instruction to respondent no. 5, withdrawing the higher pay grade granted to the applicant and directions for recovery issued thereunder and impugned order dated 19.08.2010 (Annexure-A/2), passed by the respondent no. 5, for withdrawing higher grade pay of Rs 4600/- and higher pay scale granted to the applicant and orders of recovery of amount paid under higher pay, may kindly be declared illegal and be quashed and set aside.
(b) The higher pay scale in the grade pay of corresponding pay band of Rs 4600/- granted to the applicant on fixation of his pay on promotion to the post of Chargeman-I, may kindly be protected and be continued to be retained by the applicant.
(c) Any other appropriate relief which this Honble Tribunal deem just and proper in the facts and circumstances of the case may be passed in favour of the applicant.
(d) The original application of the applicant may be allowed with the cost. Case of the applicant:
3. The applicant was appointed as Vehicle Mechanic at Station Workshop EME at Jodhpur on 24.3.1981. He was promoted to the post of Highly Skilled Mechanic Grade-II and subsequently to the post of Highly Skilled Mechanic Grade-I in the year 1996. The applicant was also considered for promotion to the post of Master Craftsman (MCM) but, not promoted as his assessment report had not been forwarded by his Unit. Further, the applicant was promoted to the post of Chargeman-II on 25/12/04, a post higher than the Master Craftsman and then further promoted to the post of Chargeman-I w.e.f. 01/05/2008 and posted to his present Unit 185 FD Wksp C/o 56 APO in the pay scale of Rs 5500-9000. The Fifth Pay Commission recommended pay scales of HS-II and HS-I at Rs 4000-6000 and Rs 4500-7000 respectively and that of MCM at Rs 5000-5000. The recommendations of the Sixth Pay Commission were received and implemented w.e.f. 1.1. 2006 wherein the pay scale of MCM is fixed at Rs 5000-8000 with grade pay of Rs 4,200/-. Similarly, the post of CM-I was a promotional post of CM-II during Fifth Pay Commission regime carrying scales of Rs 5500-9000 and Rs 5000-8000 respectively. The Sixth Pay Commission merged both these posts under Revised Pay Rules 1998 (CCS (RP), 2008 with now new common pay scale of Rs 9300-34800/- with a grade pay of Rs 4200/- only. The post of Chargeman-I is higher than the post of MCM and passing of Supervisory test (STE) was a mandatory condition for promotion to the post of Chargeman-II. The applicant was promoted as Chargeman-I in the scale of pay of Rs 5500-9000 w.e.f. 1/5/2008. Accordingly, his basic pay was fixed in the higher grade w.e.f. 1.5.2008 with the grade pay of Rs 4600/-. As already mentioned above, the Sixth Pay Commission merged both these posts in the pay scale of Rs 9300-34800 by merging the pay scales of Rs 5000-8000, Rs 5500-9000 and Rs 6500-10500.
4. The case of the applicant is that he already stood promoted to the post of Chargeman-I prior to the promulgation of the Rules of 2008 and has been rightly allowed one additional increment in the higher post of Chargeman-I with the grade pay of Rs 4600/- as per the recommendations of the Sixth Pay Commission.
5. However, vide the impugned order, as per para 1 of this order, the grade pay of Rs 4600/- granted to the applicant on his promotion w.e.f. 1/5/2008 was withdrawn and replaced by grade pay of Rs 4200/- only with a directive of the respondent no. 5 to effect recovery of the excess amount granted to the applicant from his pay. The respondent no. 5 accordingly issued an order vide A-2, the relevant part of which is reproduced hereunder:-
AAO(SC) Jodhpur has further stated in their letter that the benefit granted to your on promotion to CM-I w.e.f. 1st May 2008 in the grade pay of Rs 4600/- vide pay fixation approved by AAO (Pay) WC, Delhi Cant is irregular. As per para (iv) of MoD ID referred above, the promotion granted in the merged scale during the period 01 Jan, 2006 to the date of amendment of RR would be ignored since both the posts have been merged from 01 Jan 2006 and given a common grade pay.
Due to revision of pay fixation on promotion to CM-I in your respect by AAO (SC) Jodhpur, excess/over payment made to you from 01 May 2008 to 31 Jul 2010 amounting Rs 34,966/- (Rupees Thirty four thousand nine hundred sixty six only) which has been got audited from AAO (SC) Jodhpur will be recovered in 11 equal installments @ 3000/- each and 12th installment @ 1966/-. The recovery of excess/over payment will be made from Regular Pay bill for Aug 2010 onwards. Accordingly Pay & Allowances for Aug 2010 in your respect has been claimed based on revised Pay & Allowances approved by AAO (SC) Jodhpur.
6. The applicant being aggrieved with this order approached this Tribunal vide instant OA No. 250 of 2010 which has been decided vide the order dated 9/5/2011, the relevant part of the order is reproduced hereunder :-
The 6th Central Pay Commission report was implemented with a back date of 01.01.2006. There is no methodology of pick and choose available since the 6th Central Pay Commission merged pay scales of Chargeman-II and Chargeman-I, re-fixation of the pay had become necessary. It is to be noted that the applicant had received other benefits also on the basis of 6th Central Pay Commission, therefore, it is a cumulative process, the applicant can only accept it as a choice in an election as a whole. Having accepted it, the applicant cannot now turn around and say that the benefits which he had secured in 6th Central Pay Commission must continue with him, but what negativity he got along with the 6th Central Pay Commission must be redressed, such a statement cannot be accepted.
7. The applicant, thereupon, moved the Honble High Court of Judicature at its Jodhpur Bench in writ jurisdiction vide DB Civil Writ Petition no. 7786 dated 2011. The Honble High Court considered the matter and remanded the case to this Tribunal with following directive:-
Since the issue raised in the O.A. was not considered in its correct proper perspective and, therefore, we cannot examine the issue arising in the case for the first time in appeal and hence consider it proper to remand the case to the tribunal for deciding the original application afresh on its merits, by recording categorical finding as to whether the impugned orders dated 24.04.2010 and 19.08.2010 are capable of being legally sustained and if so, how and if not, then whey? Needless to observe this issue will have to be decided, keeping in view the submissions urged by the applicant and replied to by respondents.
8. Accordingly, the case has been heard by this Tribunal, the pleadings having remained the same is being disposed off by the instant order. The case of the applicant as argued by the learned counsel for the applicant rests on the following grounds:-
i. The grade pay of Rs 4600/- had been correctly granted to the applicant as it was a case of regular promotion. The matter had been clarified by the PCPA, Chandigarh vide his circular dated 6/10/2009 which has since been incorrectly withdrawn by the respondents no. 4 & 5 who have no jurisdiction to do so. As per the law of natural justice, applicant should have first been given an opportunity of being heard. Therefore, it violates the rules of natural justice.
ii. The applicant was promoted w.e.f. 1/05/08 when the CCS (RP) Rules, 2008 had not come into force. Under these rules, these three scales i.e. Rs 5000-8000, Rs 5500-9000 and Rs 6500-10500 has already been merged with a scale of Rs 9300-34880 with a grade pay of Rs 4200/-. However, as the applicant has been granted benefit of two increments when his pay has been fixed on promotion with a grade pay of Rs 4600/- in terms of the clarification issued by the MOD, it cannot be de-effected by withdrawing these orders and the applicant would be at lower pay scale than to his juniors. The post of Chargeman-I is two grades higher than that of MCM. However, the effect of this withdrawal would be that he would be drawing a scale lower than the MCM.
iii. The promotion of the applicant to the post of Chargeman-I was regular promotion with a grade pay of Rs 4600/- for similarly situated employee all over the country. However, the applicant asserts that it has only been withdrawn in his respect while other continues to enjoy the benefit in the rest of the country. Thereby it amounts to hostile discrimination.
Stand of the respondents:
9. The learned counsel for the respondents has vehemently opposed the case of the applicant on the following grounds:-
i. The learned counsel for the respondent admits that the pay fixation of the applicant in the grade pay of Rs 4600/- made in September, 2008 under the CCS (RP) Rules, 2008 was a mistake on account of oversight and lack of time. As a measure of implementation of the report of the Sixth Pay Commission, the pre-revised scales of Rs 5000-8000 and Rs 5500-9000 were merged w.e.f. 1/1/2006 based on the recommendations of the Sixth Pay Commission and provided a common grade pay of Rs 4200 only. He has been granted a grade pay of Rs 4600 w.e.f. 24/3/11 on completion of 30 years of service under MACP scheme and he has not been put to lose in any way.
ii. The learned counsel for respondents have further submitted that the pay fixation made under the Sixth Pay Commission in September, 2008 was subject to recovery in case of any excess payment and a clear undertaking had been obtained from the applicant to this effect. Therefore, the applicant is estopped from going against his own undertaking.
iii. The learned counsel for the respondents denied that no notice was issued to the applicant before revision of his grade pay from Rs 4600/- to Rs 4200/-, rather he had been kept verbally informed of all the developments and he cannot deny all.
iv. The learned counsel for the respondents have further submitted that the applicant cannot get benefit of the judgment of the Honble Supreme Court in the case of Kerala State Road Transport Corporation v. K.O. Varghese & Others 2005 SCC (L&S) 138 and Union of India & Ors v. R. Vasudeva Murthy & Ors 2010(2) SCC (l&S) page 711. These Supreme Court cases would not be applicable in the case of the applicant which pertains to the wrong fixation of the pay due to oversight and which has been rightly reversed as a corrective measure.
Facts in issue:
10. Having gone through the pleadings of the parties and documentary evidence adduced by them and also after having listen to the arguments placed by the respective counsels, the following facts are found to be emerged:-
(i) Whether impugned order dated 23/4/2010 is based upon a correct interpretation of the circulars of the Government regarding implementation of the Sixth Pay Commission Report?
(ii) Whether the respondents were legally bound to give notice to the applicant with an opportunity of being heard before lowering his grade pay and whether it leads to violation of right of natural justice?
(iii) Whether the case of the applicant is covered under the orders of the Honble Supreme Court in Kerala State Road Transport Corporation v. K.O. Varghese (supra) and other judgment on the subject?
Whether impugned order dated 23/4/2010 is based upon a correct interpretation of the circulars of the Government regarding implementation of the Sixth Pay Commission Report?
11. In respect to this issue, the fact that the applicant was promoted to the post of Chargeman-I in a scale of Rs 5500-9000 with grade pay of Rs 4600 vide order dated 24/3/2003 remains uncontested. It also remains uncontested that the applicant has given an undertaking at the time of implementation of the report of the Sixth pay Commission that the excess amount is due to be recovered from him vide R-4.
I hereby undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the Government either by adjustment against future payments due to me or otherwise. Now, the only issue remains to be tackled here is that whether the initial fixation done was correct or the impugned order dated 23/4/2010 is good and binding? In this regard a reference to the Government India, Ministry of Finance O.M. dated 13/9/2008 on clarification of CCS (RP) Rules, 2008 in response to queries regarding the date of next increment and method of fixation of pay on promotion after 1/1/2006 has been clarified by the circular. For sake of convenience the relevant portion are being produced, On promotion from one grade to another/financial upgradation under ACP, a Government servant has an option under FR 22(I)(a)(1) to get his pay fixed in the higher post either from the date of his promotion, or from date of his next increment, viz. 1st July of the year. The pay will be fixed in the following manner in the revised pay structure:-
a) In case the Government servant opts to get his pay fixed from his date of next increment, then, on the date of promotion, pay in the pay band shall continue unchanged, but the grade pay of the higher post will be granted. Further re-fixation will be done on the date of his next increment i.e. 1st July. On that day, he will be granted two increments; one annual increment and the second on account of promotion. While computing these two increments, basic pay prior to the date of promotion shall be taken into account. To illustrate, if the basic pay prior to the date of promotion was Rs. 100, first increment would be computed on Rs. 100 and the second on Rs. 103.
b) In case the Government servant opts to get his pay fixed in the higher grade from the date of his promotion, he shall get his first increment in the higher grade on the next 1st July if he was promoted between 2nd July and 1st January. However, if he was promoted between 2nd January and 30th June of a particular year, he shall get his increment on 1st July of next year.
12. It is sufficiently clear from the clarification at Annex.A-2 that the case of the applicant is well covered under this clarification. The Government servant has the option to get his pay fixed from the date of his next increment in which case the pay in the pay band is continued to be unchanged from the date of his next increment, till pay of higher post is to be granted. As per circular the re-fixation is to be done on the date of his increment i.e. 1st July whereupon he stands to be granted two increments one annual increment and second on account of promotion. Further, I find sufficient merit in the argument that the same grade pay of Rs 4200/- has been granted to three scales. The Notification dated 28th Aug, 2008 meeting again to the pay rules had clarified the position that even high skilled worker in the revised pay scale of Rs 4500-7000 and MCM Rs 5000-8000 has a grade pay of Rs 4200/-. In case that this order is carried out I entirely agree with the learned counsel for the applicant that it will have the effect of reducing the grade pay of the applicant to that of the MCM, a post which is being held by the persons several years junior to the applicant. It appears that this aspect has not been considered. There is no doubt that the Sixth Pay Commission has amalgamated three scales altogether with a common grade pay of Rs 4200/-. However, the person who is getting a higher grade pay of Rs 4600/- cannot be fixed in a lower grade pay of Rs 4200/-. The implementation of the Pay Commission Report is to lead to betterment in the pay scale of the employees and for such cases the common practice is to grant step up pay as to get over anomalous situation.
13. I do not agree with the contention of the counsel for the respondents that a situation is cured by granting upgradation under MACP w.e.f. 24.3.20011. MACP is altogether a different scheme where upgradation in a scale is granted to such persons who have not been promoted otherwise. Here a different issue is involved, that of protecting the grade pay which the applicant has received as a consequence of his promotion in the normal course. I also do not subscribe to the view that the promoted employee is not a looser because his overall take home is protected.
Whether the respondents were legally bound to give notice to the applicant with an opportunity of being heard before lowering his grade pay and whether it leads to violation of right of natural justice?
14. As regards second issue is concerned, it is not denied that an undertaking has been given that in the case of excess payment on account of incorrect fixation any excess payment is made on account of discrepancy the same shall be recovered or adjusted against future payments. However, in the instant case it is not the fixation in the revised pay scale which is under challenge, but, it is a question of taking into account the promotion of the applicant which is not the same as a wrong fixation. It is not even a question of taking double benefit. It is clarified , even at the cost of repetition that a regular promotion had been granted to the applicant prior to the implementation of the report of the Pay Commission, promotion cannot subsequently be withdrawn on the mere ground that report of the Pay Commission had been implemented w.e.f. 1.1.2006. To the contrary the applicant had been promoted to the higher pay and it was incumbent upon the respondents to protect his pay scale after the implementation of the report of the Pay Commission. This matter is adequately clarified in the clarification issued by PCDA vide his Memo dated 6/10/2009 which for the sake of convenience is being reproduced as below:-
MOD/D (Civ-I) has clarified vide their ID No. 410/2009/D (Civ-I) dated 24.8.2009(copy enclosed) that all posts covered under sub-para (i) Section I, Part-B & C of CDS (RP) Rules 2008 should stand merged/upgraded with effect from 1 January 2006 without waiting for amendment of recruitment rules, since these have already been approved by the Government.
Further it has also been clarified by the MoD/D (Civ) vide sub para (ii) their ID No dated 24.8.2009.the posts covered under sub para (ii), (iii) & (iv) of section I, part-B&C, that is has been clarified by the DOP&T that all posts should stand merged/upgraded with effect from 1.1.2006 without waiting for amendment of Recruitment Rules, where concurrence of Department of Expenditure, Ministry of Finance or Integrated Finance (as applicable) has been obtained.
Since, Department of Defence Production letter No A/92163/VIth CPC/DGQA/Admn-7B/126/D(QA)/2009 dated 22.1.2009 has been issued with the concurrence of Ministry of Defence/Integrated Finance, as such to grant of higher Grade Pay of Rs 4600/- to Asstt. Foreman, Chief Drafts man and other upgraded posts w.e.f. 1.1.2006 may please be regulated as per the provisions of MoD letter dated 24.8.2009.
15. It clearly emerges from the above that interpretation drawn by the respondents is not quite correct.
Whether the case of the applicant is covered under the orders of the Honble Supreme Court in Kerala State Road Transport Corporation v. K.O. Varghese (supra) and other judgment on the subject?
16. In so far as this issue is concerned, I do not think it is sufficient on part of the respondents to claim that the applicant was aware of the development taking place regarding his pay fixation and as such a formal notice was not necessary. To the contrary, it is a settled legal position that if there is no error on part of the employee even if excess payment is made to that employee, it is not recovered. In this regard the case of Kerala State Road Transport Corporation v. K.O. Varghese (supra) of 2005 has comprehensively dealt with the issue, this case has taken not account of the previous judgments and has held that In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by the respondent-employee who filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by learned Single Judge of the High Court. The writ appeal was also dismissed. In addition to the questions raised in other appeals, the Corporation has assailed the directions of the High Court not to recover. On hearing learned counsel for the parties and taking note of the peculiar circumstances noticed by the High Court, we do not find any scope for interference with that part of the High Courts directions which related to recover of the amounts allegedly paid extra to the employee. So far as other issues are concerned, this shall be examined by the High Court afresh as directed.
17. However, this judgment mainly in respect of pensionary benefits though in the Union of India v. PN Menon AIR 1994, SC 2221) Supreme Court has also observed that it is applicable to revision of scales of pay with a cut off date for which some action or reasonable basis has to be fixed for extending the benefit. In the case of UOI & Ors v. R. Vasudeva Murthy and Ors.[(2010 9 SCC 30]) the Honble Supreme Court has held that recovery of pay after a long lapse of time is too harsh and unreasonable.
We make it clear that if any of the employee have been given the benefit of the OM and payments have been made by the Union of India and/or the Department of Telecommunications, it would not be entitled to recovery thereof from the Draughtsman as it would be too harsh and unreasonable to ask for refund after such a long lapse of time.
18. However, this case is only applicable to where a long delay is involved. In the instant case there is no delay involved as the impugned order for recovery is dated 23/4/2010 whereas the Pay Commission report was actually implemented in 2008 with retrospective effect, therefore, this order is not applicable. The case of NDP Namboodripad v. Union of India & Ors 2004 SCC (L&S) 743 is again in respect of emoluments received as last payment for determining pension. This case relates to a member of the higher judicial service of the State of Kerala who had been elevated as Judge of the High Court in 1972. He retired with 23 years of pensionable service, 8 of which he had served as Judge of the High Court. The pension and other benefits of the High Court Judges are determined on the basis of Part III of the Ist Schedule of the High Court Judges (Condition of Service) Act, 1954. Here again UOI issued instruction for rationalizing the pension structure of the employees who had retired before 1.1.1986. The pension of the appellant had been fixed at Rs. 17300/- p.a. Pension of the appellant was revised to 32720/- with effect from 1.1.86 and Rs. 37220/- with effect from 1.11.86 on account of amendment to Para 2(b) of Part III Schedule I of the Act. The issue was that whether the term emoluments which the employee was receiving immediately before his retirement can be taken away by a conclusive definition contained in Rule 62 Clause (B). A single Bench vide its judgment dated 12.3.1992 allowed the Original Petition and directed the respondents to refix the appellants pension of Rs. 35,000 p.a from 1.1.86 to Rs. 47,900/- p.a from 1.11.1986. The Division Bench of the Kerala High Court held that the method used by the UOI in calculating pension was correct. The Honble Supreme Court held in this case:
16. The appellants contention seems to be correct in law. The phrase and includes in Rule 62 cannot taken to mean and only includes. The first part of the definition cannot be taken away by the inclusive definitions contained in clauses (a) and (b) of Rule 62. However, the case of NDP Namboodiripad would only partially applicable as it relates to High Court and specific rules framed thereunder.
What relief, if any, can be provided to the applicant?
19. However, in consideration of the issues as decided above, I am of the opinion that though the judgments do not exactly cover the circumstances of the instant case and the impugned order dated 23.4.2010 overlooks the clarification provided and interprets them in its own manner. The issue number 1 substantially lies in favour of the applicant and not to effect it amounts to demotion of the applicant. As such OA is allowed with the following directions:-
1. The impugned order dated 23/4/2010 is declared illegal and is hereby quashed and set aside.
2. The respondents are directed that the grant of higher pay scale to the applicant in the corresponding grade on his re-fixation on promotion to the post of Chargeman-I stands to be protected.
3. There shall be no orders as to costs.
(B. K. SINHA) ADMINISTRATIVE MEMBER ss 15