Central Administrative Tribunal - Delhi
Naresh Kumar Mal, Extra Assistant ... vs Union Of India (Uoi) (Through ... on 13 March, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing and setting aside of the orders of the respondents dated 24.08.2005 (Annexure A-1), November, 1997 (Annexure A-2), and December, 1997 [Annexure A-2(a)]. He has further sought direction to the respondents to revise the applicant's pre-revised re-fixed pay of Rs. 2750/-, as fixed in pay fixation order at Annexure A-5 (pg. 39) in the revised pay scale of Rs. 6500-10500/-.
2. The brief facts of the case are that the applicant was selected by Union Public Service Commission (UPSC, for short) as Extra Assistant Director (EAD, for short) in the office of Director (Co-ordination), Police Wireless (DCPW, for short), in the pre-revised scale of pay of Rs. 2000-3500/-. He joined as EAD, DCPW on 30.10.1996. Before his appointment as EAD, he was working as Assistant Manager, Indian Telephone Industries (ITI, for short), Bangalore, a Public Sector Undertaking (PSU, for short), in the pay scale of Rs. 4800-8275/- and was in receipt of total emoluments of Rs. 7218/- (comprising of Rs. 5200/- as basic pay and Rs. 2018/- as DA). In terms of DoP&T O.M. dated 07.08.1989, the applicant sought protection of his pay in the PSU after joining the Central Government service. The respondents accordingly proceeded to fix his total emoluments at Rs. 7123/- (with basic pay of Rs. 2750/-), vide order dated 18.09.1997 w.e.f. 30.10.1996 (Annexure A-5). Subsequently, the applicant's pay, vide order dated November 1987 (Annexure A-2), was fixed at Rs. 7100/- w.e.f. 30.10.1996 in the revised pay scale of Rs. 6500-10500 (5th CPC). In December, 1997, his pay was once again revised and the basic pay was brought down from Rs. 7100/- to Rs. 6900/- w.e.f. 30.10.1996. However, after addition of DA of Rs. 276/-, his total emoluments were pegged at Rs. 7176/- [Annexure A-2(a)]. In the context of these revised orders, the applicant filed OA No. 517/2005, which was disposed of, vide order dated 10.03.2005, as follows:
3. We allow the applicant to submit a fresh representation to the respondents for redressal of his grievances pleaded in the present OA within one week as undertaken. On receipt of that representation respondents shall consider it and dispose it of by a reasoned and speaking order within a period of two months from the date of receipt of the copy of the order of the Tribunal along with the copy of the representation. Counsel for applicant undertakes to supply a copy of the order of the Tribunal along with the representation within one week to the respondents.
3. In terms of the above directions of the Tribunal, the applicant filed a detailed representation dated 14.04.2005 (Annexure A-15) with the respondents. However, since the respondents did not take any action on his representation, the applicant filed CP No. 323/2005, which was dismissed by order dated 09.11.2005, since, in the meantime, the respondents had passed the impugned order dated 24.08.2005 (Annexure A-1). Hence the OA.
4. The applicant has stated that his grievance is that although he was given 11 advance increments in the pre-revised pay scale of Rs. 2000-3500 and his basic pay was fixed at Rs. 2750/-, after issue of CCS (Revised Pay) Rules, 1997 (Pay Rules, for short) deemed effective from 01.01.1996, instead of revising his pre-revised pay of Rs. 2750/-, the minimum of the scale at Rs. 2000/- was taken as the pay he was in receipt of for pay revision, and thereafter PSU pre-revised pay was protected by the revised pay fixed at Rs. 7123/-, Rs. 7100/- and Rs. 7176/-. All this was done without putting the applicant on notice. Applicant's pay should have been fixed at Rs. 8500/- as follows:
Basic pay Rs. 2750.00
D.A. Rs. 4373.00
2 IRs Rs. 200.00
Fitment weightage Rs. 1100.00
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Total Rs. 8423.00 (say Rs. 8500/-)
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5. The applicant has stated that as per G.O.I. Order No. (13) below FR-27, dated 08.08.1961, which has been followed for over 40 years and has taken the shape of law by usage, once the pay is fixed under FR-27 by a competent authority, that authority is not competent under law to reduce the pay originally fixed even when such pay fixation was based on some data, which subsequently turned out to be incorrect.
6. The applicant has stated that DoP&T O.M. dated 07.08.1989 is based on a twist given to Explanation No. 2, below Rule 5 of Pay Rules, which has to be read with the proviso and explanation thereunder, which talk of option to have revised pay fixed after grant of next or any other increment. Since the applicant is not asking for continuing in the pre-revised scale till the grant of next increment, Explanation No. 2 is just not applicable in his case.
7. The applicant has further stated that the so-called speaking order at Annexure A-1 is lacking in authority and competence and is arbitrary, illegal, violative of principles of natural justice, doctrines of vested right and promissory estoppel and also displays lack of application of mind. Applicant's constitutional rights to property as per Article 300 (A) of the Constitution has also been arbitrarily violated. The impugned order, therefore, warrants to be quashed and the Tribunal may be pleased to quash the same.
8. The respondents have stated that the applicant was appointed as EAD in DCPW on 30.10.1996 in the pre-revised scale of Rs. 2000-3500. Since the revised pay scale of 5th CPC for the Central Government employees came into force w.e.f. 01.01.1996, the pay of the applicant was fixed in the revised scale of Rs. 6500-10500. The pre-revised scale of Rs. 2000-3500 was not in existence after the revised pay scale came into force w.e.f. 01.01.1996. Therefore, the appointment of the applicant on 30.10.1996 has to be deemed in the revised pay scale of Rs. 6500-10500. However, the applicant would be entitled only for protection of revised scale in the ITI as per the O.M. dated 07.08.1989. Moreover, the revised scales of ITI were effective from 01.01.1997, and the applicant was not in the service of ITI on that date, as he left the ITI on 29.10.1996 and was appointed with the respondents on 30.10.1996. The applicant cannot, therefore, be given the benefit of the revised scale, which came into force w.e.f. 01.01.1997 in the ITI. The pre-revised scale of Rs. 2000-3500 in which the applicant's pay was fixed at Rs. 2750/- when the applicant was appointed on 30.10.1996, has lost its relevancy and importance on account of the revised pay scale of 5th CPC for the Central Government employees having come into effect on 01.01.1996.
9. The respondents have further stated that the applicant's pay was fixed at Rs. 2750/- in the pre-revised scale at the time of his appointment because the revised scales were notified later. Since, the applicant has been appointed after 01.01.1996 and as per Explanation No. 2 of Rule 5 of Pay Rules, the benefit of pre-revised scale shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Government service or by transfer or promotion from another post and he shall be allowed pay only in revised scale. As such, the pre-revised scale ceased to exist w.e.f. 01.01.1996 and there is, therefore, no question of protecting the pre-revised pay of the applicant in the revised scale. Hence, the present OA is not maintainable and liable to be dismissed on this ground alone.
10. In his rejoinder the applicant has reiterated and elaborated upon various averments made in his main application.
11. In the course of oral arguments, Shri G.S. Chaman, learned Counsel for the applicant, invited attention to Rules 5 & 9 of the Revised Pay Rules, 1997 (Pay Rules, for short), the relevant portions of which read as follows:
5. Drawal of pay in the revised scales Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
EXPLANATION 1.- The option to retain the existing scale under the proviso to this rule shall be admissible only in respect of one existing scale.
EXPLANATION 2.- The aforesaid option shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Government service, or by transfer or promotion from another post and he shall be allowed pay only in the revised scale.
x x x
9. Fixation of pay in the revised scale subsequent to the 1st day of January, 1996 Where a Government servant continues to draw his pay in the existing scale and is brought over to revised scale from a date later than the 1st day of January, 1996, his pay from the later date in the revised scale shall be fixed under Fundamental Rules and for this purpose, his pay in the existing scale shall have the same meaning as of existing emoluments as calculated in accordance with Clause (A), Clause (B), Clause (C) or Clause (D), as the case may be, of Sub-rule (1) of Rule 7 except that the basic pay to be taken into account for calculation of those emoluments will be the basic pay on the later date aforesaid and where the Government servant is in receipt of special pay or where the Government servant is in receipt of special pay or non-practising allowance, his pay shall be fixed after deducting from those emoluments an amount equal to the special pay or non-practising allowance, as the case may be, at the revised rates appropriate to the emoluments so calculated.
In terms of these instructions, the learned Counsel argued that the applicant's pay should have been re-fixed in the new pay scale granted on the recommendations of the 5th CPC on the basis of the pay earlier fixed at Rs. 2750/- in the pre-revised scale. In this regard, insofar as his pay fixation order dated 18.09.1997 (supra) had not been cancelled, the subsequent downward revisions of his pay were impermissible.
12. He further stated that there was a clear violation of principles of natural justice insofar as he was not put on notice, not only for the revision of his pay, but also while ordering recovery of Rs. 1734/- from the applicant's pay [Union of India and Ors. v. E.G. Nambudiri ; Sahib Ram v. State of Haryana and Ors. 1995 SCC (L&S) 248; and Bhagwan Shukla v. Union of India and Ors. 1995 (2) AISLJ 30].
13. Learned Counsel further argued that fixing applicant's pay at Rs. 2750/- (pre-revised) to protect his pay in the PSU created a vested right in his favour and that right could not be taken away by Pay Rules, which gave retrospective effect to pay scales [Sh. Yash Pal v. Council of Scientific & Industrial Research and Anr. 1999 (3) AISLJ 260; P. Tulsi Das and Ors. v. Government of A.P. and Ors. 2003 (1) AISLJ (SC) 164; and Shridhar v. Nagar Palika, Jaunpur and Ors. 1990 (1) SLR (SC) 830)].
14. Learned Counsel further stated that the doctrine of promissory estoppel, in terms of Section 115 of the Indian Evidence Act, 1872, was attracted in the applicant's case and the respondents could not resile from the assurance of protecting his pay at Rs. 10,750/- to which he became eligible in ITI [Annexure A-12(a)] [M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. ; Pawan Alloys & Casting Pvt. Ltd., Meerut v. U.P. State Electricity Board and Ors. ; Kasinka Trading and Anr. v. Union of India and Anr. ; and The Union of India and Ors. v. Anglo Afghan Agencies etc. AIR 1968 (SC) 718].
15. Learned Counsel further stated that the case of the applicant was also within the ambit of doctrine of legitimate expectations [National Buildings Construction Corporation v. S. Raghunathan and Ors. ; Madras City Wine Merchants' Association and Anr. v. State of T.N. and Anr. ; and A-G of Hong Kong v. Ng Yuen Shiu, 1983 (2) All ER 346].
16. Learned Counsel further argued that there was complete non-application of mind in deciding the case of the applicant. In this context, he further pointed out that in the counter reply to paras 4.5, 4.6 and 4.7, the respondents have stated that the averments of the applicants were 'entirely true' but they had failed to give the benefit to the applicant. The impugned order was also not a speaking order insofar as several legal issues raised in the applicant's representation dated 14.04.2005 (supra) were completely ignored.
17. Learned Counsel further argued that the applicant's right to property, in terms of Article 300 (A) of the Constitution, had been violated, which was earlier a fundamental right [D.S. Nakara and Ors. v. Union of India 1983 SCC (L&S) 145].
18. Learned Counsel further cited the judgment of the Hon'ble Supreme Court in the case of Wing Commander J. Kumar v. Union of India and Ors. 1982 (1) SLR 715, to argue that a statutory rule governs the personnel in the service with effect from the date of its promulgation. In this context, he further cited the following orders/decisions relating to interpretation of statutes:
Megh Singh Sisodia v. Union of India and Anr. 2003 (2) AISLJ (CAT) 310;
Mohinder Singh Gill and Anr. v. Chief Election Commissioner and Ors. ; and Union of India etc. v. Rajiv Kumar etc. .
19. Learned Counsel finally stated that the opportunity given to the applicant of making a representation to the respondents and the decision thereon communicated by the respondents through impugned order dated 24.08.2005 was of little consequence insofar as post-decisional hearing was held to be ineffective by the Hon'ble Supreme Court in the case of H.L. Trehan and Ors. etc. v. Union of India and Ors. etc. 1989 SCC (L&S) 246.
20. Shri Rao Vijay Pal, learned Counsel for the respondents, stated that the applicant's pay was fixed strictly according to para 2 of the DOP&T O.M. dated 07.08.1989 (supra), relating to guidelines for pay protection of candidates recruited from PSUs etc., which reads as follows:
The question as to how pay protection can be given in the case of candidates recruited from Public Sector Undertakings, etc., has been engaging the attention of the Government for some time. The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, who are appointed as direct recruits on selection through a properly constituted agency including departmental authorities making recruitment directly, their initial pay may be fixed at a stage in the scale of pay attached to the post so that the pay and D.A., as admissible in the Government will protect the pay + D.A. already being drawn by them in their parent organizations. In the event of such a stage not being available in the post to which they have been recruited, their pay maybe fixed at a stage just below in the scale of the post to which they have been recruited, so as to ensure a minimum loss to the candidates. The pay fixed under this formulation will not exceed the maximum of the scale of the post to which they have been recruited. The pay fixation is to be made by the employing Ministries/Departments after verification of all the relevant documents to be produced by the candidates who were employed in such Organizations.
21. He specifically drew attention to the stipulation relating to fixation of pay at a stage just below the scale of the post so as to ensure a minimum loss to the candidate. As can be seen from the calculations given in the three orders at Annexure A-5, A-2 and A-2 (a), the pay fixed was such as to ensure that it did not exceed the gross pay he was drawing n the PSU (i.e. Rs. 7218/-) and, at the same time, he suffered a minimum loss.
22. Learned Counsel drew attention to Explanation 2 to Rule 5 of the Pay Rules (supra) wherein it is clearly stipulated that a person appointed after the 1st day of January, 1996 shall be allowed pay only in the revised scale and there was no question of his continuing to draw the existing/pre-revised pay scale. Since the applicant was recruited after 01.01.1996, the question of protecting the pay granted to him in the pre-revised pay scale in the interregnum, i.e. Rs. 2750/-, did not arise.
23. Learned Counsel further pointed out that pay scales in the PSUs were revised w.e.f. 01.01.1997 [Annexure A-12 (a)] and since the applicant was not working in PSU on that date, having joined the respondents on 30.10.1996, providing him any pay protection with reference to the revision of pay scales in PSUs w.e.f. 01.01.1997 did not arise.
24. Learned Counsel also regretted the mistake in the counter at para Nos. 4.4, 4.5, 4.6 and 4.7 where the word `not' was left out before the words `entirely true'.
25. We have carefully considered the pleadings and submissions made by the learned Counsel for the parties and perused the material on record.
26. Upon careful examination of the material placed before us, we find that the confusion arising from multiple fixation of pay of the applicant was largely on account of the state of flux, in which the matters relating to pay fixation were, in the context of the 5th CPC, which was at work at that time. It can be seen that when the applicant joined the respondents in October, 1996, his pay was initially fixed at the minimum of the pre-revised pay scale (Rs. 2000-3500), i.e. Rs. 2000/- [Annexure A-4 (a)], and that is how the matters apparently stood till order dated 18.09.1997 was issued fixing his gross salary at Rs. 7123/- (of which the basic component was Rs. 2750/-).
27. Upon receipt of the recommendations of the Fifth Central Pay Commission, the applicant's pay was initially revised in November, 1997 to Rs. 7100/- in the pay scale of Rs. 6500-10500. Thereafter, when the first DA instalment was announced, with retrospective effect, the pay of the applicant was again refixed resulting order dated December, 1997 [Annexure A-2(a)]. It is thus the changing circumstances, which led to the multiple revisions of pay of the applicant and not any erroneous calculations on the part of the respondents. At all times, the attempt of the respondents was to protect the pay of the applicant as drawn by him in the PSU, in terms of the DoP&T O.M. dated 07.08.1989 (supra). Moreover, all the revisions had the same reference date i.e. 30.10.1996, being the date on which the applicant had joined the respondents. Further, all these revisions were done within a period of about three months insofar as the dates of the Office Orders issued are 18.09.1997 (Annexure A-5), November, 1997 (Annexure A-2) and December, 1997 [Annexure A-2(a)]. Thus, by no stretch of imagination, it could be said that the applicant can invoke the doctrines of vested rights or promissory estoppel or legitimate expectations. We also do not think that there was any violation of applicant's right to property.
28. In a catena of judgments, the Hon'ble Supreme Court has held that the authorities have an inherent power to rectify bona fide mistakes relating to erroneous pay fixation etc. and even order recovery of excess payment accordingly [Union of India and Ors. v. Smt. Sujatha Vedachalam and Anr. ; Comptroller & Auditor General of India and Ors. v. Farid Sattar ; A.K. Sarma and Anr. v. Union of India and Anr. 2000 (1) AISLJ 257; State of Haryana and Anr. v. Kamal Singh Saharwat and Ors. ; and Bhagwan Shukla v. Union of India and Ors. 1995 (2) AISLJ 30]. The present case, however, is not even a case of bona fide mistake, as stated above. The revisions of pay had to be made on account of changing circumstances.
29. Taking the totality of facts and circumstances of the case into consideration, we think that no rights of the applicant have been violated by the various decisions taken by the respondents in relation to the fixation of his pay. No real hardship too has been caused to him by the various revisions done over a period of less than three months and even on account of recovery of amount of only Rs. 1734/-. The respondents have followed the guidelines prescribed in the DOP&T O.M. dated 07.08.1989 to provide necessary pay protection to the applicant in terms of pay drawn by him in ITI before joining the respondents. We, therefore, do not consider it necessary to interfere with the decisions of the respondents.
30. In the result, the OA is without merit and is, therefore, dismissed. There will be no order as to costs.