Central Administrative Tribunal - Delhi
Sombir vs Navodya Vidyalaya Samiti on 4 September, 2024
1
(C-5, Item -66) OA No. 3047/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3047/2019
Reserved on: 14.08.2024
Pronounced on: 04.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Sombir, Aged- 49 Years, 'C',
S/o Sh. Rishal Singh,
Working as Electrician cum Plumber,
In JNV and presently posted JNV, Rohtak (Haryana),
R/o JNV Complex, Rohtak (Haryana).
....Applicant
(By Advocate: Mr. Yogesh Sharma )
VERSUS
1. Union of India, through the Secretary,
Ministry of HRD, Department of Education,
Govt. of India, Shastri Bhawan,
New Delhi.
2. The Navodaya Vidyalaya Samiti,
Through the Commissioner,
B-15, Institutional Area, Sector 52,
Noida (UP).
3. The Deputy Commissioner,
Navodaya Vidyalaya Samiti,
Regional Office, Jaipur.
.... Respondents
(By Advocate: Mr. S. Rajappa)
2
(C-5, Item -66) OA No. 3047/2019
ORDER
Hon'ble Mr. Manish Garg, Member (J):
1. By way of the present OA, the applicant seeks the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 28.12.2018 and fixation order dated 03.03 .2011 declaring to the effect that the same are illegal, arbitrary and against the rules and consequently, pass an order by directing the respondents to re-fix the pay of the applicant by granting due increment on 01.07.2007 after taking the revised option from the applicant with all consequential benefits including the arrears of pay and allowances.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to consider and to grant the benefit of stepping up of pay to the applicant at par with his juniors with all consequential benefits including the arrears of pay and allowances.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."3
(C-5, Item -66) OA No. 3047/2019
2. Narrating the facts of the case, learned counsel for the applicant contends that the respondent No.3 vide impugned order dated 28.12.2018 rejected the request of the applicant on the ground that the applicant submitted his option for fixation of his pay from the date of granting 1st financial up-gradation i.e. w.e.f. 10.01.2007 and that is why he was not granted his due increment on 01.07.2007 and the same was granted on 01.07.2008. 2.1 It is submitted by the learned counsel for the applicant that while passing the impugned order the respondent no. 3 failed to consider the fact that the 1st financial up-gradation was actually granted to the applicant by fixation of his pay only in the year 2011, i.e., almost after more than two years from implementation of 6th CPC.
2.2 While implementing the recommendation of 6th CPC the applicant was granted his due increment on 01.07.2007, therefore, at that time when the 1st financial up-gradation was not granted to the applicant, there was no question of submitting any option as per Rule 5 & 6 of the CCS (Revised Pay) Rules, 2008 and before implementing the 1st financial up-gradation vide order dated 01.03.2011 thus , there is change in the circumstances and no option has been taken from the applicant, whereas, in the changed circumstances a revised option should be taken from the applicant 4 (C-5, Item -66) OA No. 3047/2019 as per Para 5 & 6 of the CCS (Revised Pay) Rules, 2008 for fixing his pay. The impugned order is totally illegal and without considering the correct facts.
2.3 Learned counsel for the applicant relies upon Rule 6 of Central Civil Services (Revised Pay) Rules, 2008, which reads as under:-
"6. Exercise of Option -
(1) The option under the provisos to Rule 5 shall be exercised in writing in the form appended to the Second Schedule so as to reach the authority mentioned in sub rule' (2) within three months of the date of publication of these rules or where an existing scale has been revised by any order made subsequent to that date, within three months of the date of such order.
Provided that -
(i) in the case of a Government servant who is, on the date of such publication or, as the case may be, date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his taking charge of his post in India; and
(ii) where a Government servant is under suspension on the 1st day of January, 2006, the option may be-
exercised within three months of the date of his return to his duty if that date is later than the date prescribed in this sub-rule.
(2) The option shall be intimated by the Government servant to the Head of his Office.
(3) If the intimation regarding option· is not received within the time mentioned in sub-rule (1), the 5 (C-5, Item -66) OA No. 3047/2019 Government servant shall be deemed to have elected to be governed by the revised pay structure with effect on and from the 1st day of January, 2006.
(4) The option once exercised shall be final.
Note 1 - Persons whose services were terminated on or after the 1st January, 2006 and who could not exercise the option within the prescribed time limit, on account of discharge on the expiry of the sanctioned posts, resignation, dismissal or discharge or disciplinary grounds, are entitled to the benefits of this rule.
Note 2 - Persons who have died on or after the 1st day of January, 2006 and could not exercise the option within the prescribed time limit are deemed to have opted the revised pay structure on and from the 1st day of January, 2006 or such later date as is most beneficial to their dependents, if the revised pay structure is more favourable and in such cases, necessary action for payment of arrears should be taken by the Head of Office.
Note 3 - Persons who were on earned leave or any other leave on 1.1.2006 which entitled them to leave salary will be allowed the benefits of this rule."
2.4 It is the case of the applicant that even though earlier option was exercised which was prior to the date of notifying of the rules in 2008, the same cannot be taken as an option post implementation of the revised rules.
3. Opposing the grant of relief, learned counsel for the respondents would rely on averments made in the counter reply.
3.1 Paras 4, 5, 6, 7 & 10 of the same are re-produced as under:-
"4.That on completion of 12 years of service, the Applicant became eligible for the first financial up-
6(C-5, Item -66) OA No. 3047/2019 gradation w.e.f. 10.01.2007 . That vide its order bearing no. 94 - 2(ACP)-VOL-IV/NVS -JR-
Estt./2007/7402 dated 09.01.2008 the Respondent No. 2 granted Assured Career Progression (ACP) to the Applicant. That in pursuance of the aforesaid order dated 09. 01.2008 vide its Order no. 93-9(16)/RF-SV (ECP)/NVS- 4 JR/ESTT. /9090 1 dated 17.03.2008, the Respondent No. 2 fixed the basic pay of the Applicant as Rs. 4,135/- under the ACP pay scale 3200-85-4900 w.ef. 10.01.2007 which was opted by the Applicant himself vide the Option Certificate duly signed by him and attested by the Principal, JNV, Rohtak. That however, the pay could not be fixed for those employees who were granted the ACP as per 6th Central Pay Commission (CPC), 2006 from 01.01.2006 till 31.08.2008, which included the Applicant in the absence of any order/direction from the Respondents. That the copy of the aforesaid Order no. 93-9(16)/RF
-SV (ECP)/NVS-JR / ESTT. / 9090 dated 17.03.2008 along with the option Certificate duly signed by the Applicant is hereby annexed as ANNEXURE- R/ 1.
5. That thereafter, it was declared vide the Circular No. F-2-6/2009-N VS-9(ESTT.II)/1214 · dated 11.11.2010 by the Respondent No. 2 that Modified Assured Career Progression (MACP) Scheme was to be effective from 01.09.2008 and all the pending cases of the ACP up- gradation till 31.08.2008 were to be dealt as per Rule 6 & 6.1 of the Annexure - I of the MACP Scheme. That as per Rule 6.1 of the Annexure -I of the MACP Scheme, the Applicant had an option under CCS(RP) Rules, 2008 to get his pay fixed as per the Revised Pay Structure w.e.f. the date of his financial upgradation under ACP, i.e. 10.01.2007, with reference to the pre- revised pay scale granted under ACP, i.e. 3200-85- 4900. That the copy of Circular No. F-2-6/2009-NVS- 9(ESTT .II)/1214 dated 11.11.2010 along with MACP Rules is annexed herein as ANNEXURE- R / 2.
6. That in pursuance of the aforesaid letter and in order to fix the pay of the non-teaching staff who have already been granted ACP from 01.01.2006 t o 31.08.2008 as per the prescribed Rules, the 7 (C-5, Item -66) OA No. 3047/2019 Respondent No. 3 asked the Principals of all the JNVs to forward the Service Book, Pay Fixation Statement and Revised Option for Fixation of Pay on grant of ACP vide letter No. F. NO. 76-14/NVS-
JR/ESTT./2001/6933 dated 28.12.2010 which is annexed herein as ANNEXURE- R/3.
7. That vide letter no. F.1-12/JNVG/2010-11 dated 15.01.2011 the service book, pay fixation statement and the fresh option certificate duly signed by the Applicant and attested by the Principal, JNV, Rohtak in the prescribed Option Form under Second Schedule of CCS(RP) Rules, 2008 was forwarded to the Respondent No. 3 in pursuance of the aforesaid letter dated 28.12.2010. That the aforesaid option certificate clearly shows that the Applicant has elected the Revised Pay Structure w. e. f. 01.01.2006 opted for pay fixation on ACP which was already granted to him vide Order 94-2(ACP) -VOL-IV/ NVS-JR- Estt./2007/7402 dated 09.01.2008. That this option once exercised by the Applicant is final as per Sub- Rule (4) of Rule 6 of 7 CCS (RP) Rules, 2008. That the copy of letter no. F.l-12/JNVG/2010-11 dated 15.01.2011 along with the Option Form signed by the Applicant is annexed herein as ANNEXURE- R/4.
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10. That on completion of 20 years, the Applicant was granted 2nd Financial Up-gradation under MACP Scheme w. e. f. 14. 01.2015. That however, dissatisfied by the higher salary of the other junior persons, the Applicant made representations to the Respondent No. 2 for curing the anomaly in the pay scale. That however, the Respondent No. 2 vide its order bearing F. No. 93-9(16 )/ NVS-JR/RF-SB-ECP/8 dated 28.12.2018 rightly disposed off the representations made by the Applicant. That the Respondent No. 2 after perusing the document(s) on record upheld the finality of the option exercised by the Applicant in which he opted the date of fixation of salary to be 10.01.2007 and therefore his increment fell due on 01.07.2008 as per the CCS (RP) Rules, 2008 and hence the salary of the Applicant could not be increased as 8 (C-5, Item -66) OA No. 3047/2019 sought by the Applicant. That the aforesaid order dated 28.12.2018 is a reasoned order which is absolutely maintainable in law."
3.2 He also relies upon the Option Form signed by the applicant, which reads as under:-
"(I) I Sombir, Electrician cum Plumber hereby elect the revised pay structure with effect from 1st January, 2006 and Opt. pay fixation on grant of ACP with effect from 10.01.07 Which has already been granted vide NVS- RO, Jaipur letter No. 94-2(ACP)-Vol.in/ NVS-
JR/ESTI/2007/7402 dt 09.01.2008."
3.3 It is not in dispute that the said option was given in January, 2008. Learned counsel for the respondents would emphatically argue that the applicant's case does not fit in the proposition and there was no occasion for giving an option in terms of the revised rules as per the facts narrated in Para 4 in the counter affidavit qua the applicant and the said fixation option has already been taken care of.
4. Having heard learned counsel for the parties and perused the records.
5. ANALYSIS/ REASONING AND FINDINGS:
5.1 We observe that any option offered by the respondents and exercised by the applicant in January, 2008 inter-alia to the effect to select the revised pay structure with effect from 1st January, 2006 and opt pay fixation on grant of ACP with effect from 9 (C-5, Item -66) OA No. 3047/2019 10.01.2007, which has already been granted vide NVS- RO, Jaipur letter No. 94-2(ACP)-Vol.in/ NVS-JR/ESTI/2007/7402 dated 09.01.2008 cannot be interlinked and treated as an option for all intent and purposes.
5.2 The records would reveal that CCS (Revised Pay) Rules, 2008 came into effect only on 29.08.2008 though w.e.f 01.01.2006 and as such the option given by the applicant in January, 2008 has no relevance or nexus to the option as contemplated in terms of Rule 5 & 6 thereto. It is also important to note that Revised Pay Rules, 2008 came to be implemented in respondents' organization only in the year 2011.
6. CONCLUSION:
6.1. In view of the above factual matrix/analysis and reasoning, the impugned communication /order dated 28.12.2018 passed by the respondents is quashed and set aside. The respondents are directed to give an opportunity to the applicant to exercise option in terms of Rule 5 & 6 of CCS (Revised Pay) Rules, 2008 within 45 days from the date of receipt of certified copy of this order. Upon receipt of such option from the applicant, the respondents may pass consequential order(s) of re-fixation of pay on notional basis till 28.12.2018. The applicant shall be entitled to benefit on actual basis w.e.f 28.12.2018 along with arrears thereto. The said benefit 10 (C-5, Item -66) OA No. 3047/2019 on actual basis w.e.f. 28.12.2018 along with arrears shall be released in favour of the applicant within three months from date of receipt of certified copy of this order, failing which the applicant shall be entitled to interest at the rate of GPF deposits till the date of actual payment for delayed period after expiry of above stipulated period.
6.2. The OA is allowed in aforesaid terms. All pending MAs, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/neetu/