Central Administrative Tribunal - Mumbai
Srikant Ramlochan Dubey vs M/O Communications on 4 March, 2020
Weve cnet anenener ere,
CENTRAL ADMINISTRATIVE TRIBUMAL,
MUMBAI BENCH, MUMBAI
CRIGINAL APPLICATIONS Nos.Si2/2045, 187, 195, 496 & DiS of Md
Dated this Wednesday, the 04" day of March, 2020
CORAM: DR. BHAGWAN SAHAL MEMBER (A)
RAVINDER KAUR, MEMBER (J)
(DOA Nos 2013
Shaukat Hasan Inamdar, Accountant, Head Record Office,
RAMS'B Division, Pune 411 00) Ra 21511636, Sant
Tukaram Nagar, Pimpri, Pune 18. Applicant
Versus
The Union of India, Through The Secreta
Depart tment of Posts, Dak Bhawan, Sans
New Delhi HG 004.
aa M arg,
2. The Chief Post Master General, Maharashira Circle,
GPU Building Bersbay 400 001.
3. The Head Reoord Office (Acnounts}, RMS. "BR! Division,
Pane 417 O01.
4, The Superintendent of Railway Mail Service "BY Division,
Pune 42] G01, - Respondents
QVOANoASTIN4
Shrikant Ramlochan Dubey, Aged about 50 years,
Presently working as Actountant, Chemin t Head Fost Office,
Sandu Garden, Cherabur, Viurnbal 400 O7 f and Réahk Sitaram Po!
Chaw!, Roont No.3, Anand Nagar, Jangal Mangal Road,
Bhandap (W}, Mambai 400 078. ~ Applicant
Versus
ton of Tod Sig. Through T The Director,
Yiee of the Dizector General af Posts, De pare) ent at Posts,
y Tere
Aad
ORF
stablishmient PHvision, Dak Bhawan, Sansad sate,
New Delhi 110 Gin.
OES
Z. The Chief Past Master General, Maharashtra Circle,
GPG. Mumber 400-000.
a. us ia Pasi Master. C ee Head Past Office,
anda Garden, € .
a00 GFE. ~ Respondents
Be gS/2014
i, Ashok " fear Sawant, Aged about 32 ysars
Present
Chembur § hi
gas Accoumam,
at Office, Sanchi Garden, Chembur,
hs
on
ca
oot
vor
2 OA Nos SI22013,
1S, 9S, 196 & 28 of BOIS
Muunba: 400 O71 and Presently Residing at Ganeshwadi,
Chai 'Nod, Room No.8, Ganeshwadi, RB Radam Marg,
Bhat Wadi, Ghatkopar ( West}, Mumbai 400 086.
Smt, aes Aged about 50 vedrs,
Presently working as Accountant in the office of the Senior
Sune erintendent of Posts, Mumbai City Bhandup (E},
Post OMice Building Bhandup, Mumbai -- 400 042 and
presently residing at Plot No, 120, Flat twa. 104,
Kansai Section, Ambarnath (E), District Thane 427 3502.
oe
%
Privanka Prakash Chavan, Aged about 50 years,
Presently working as Accountant, Mumbai GPO,
Nest CS SP Rathway Station, Munibai 400 O01 and
at F-002, Mangalmurtl Cooperative Housin
Society. De Hise Road, Mumbai 400 033
wo
o
te
ao
ce
a
4
«i
Chandrakant Keshay Surve, Aged about 30 years,
Presently working as Accountant, Maunbai GPO,
Near © ST Raihvay Station, Mumbai 400 O61 and
Residing at B/S02, Siddhi Residency Conperative Housing
Society, 1° Road, Saiprastha Complex,
Nalasopara CW) 4491 203.
Smit. Ruchira Ravindra Taware, Aged about 30 years,
Presently working as Accountant, Dadar Post Office
opposite Pritam Hotel, Dadar, Mumbai 4 G0 O14 and
Residir ng at Sai Siddhi, Room No.205, 2" Floor, Umurkhedi,
Mumbar $30 009,
Sanjay Kumar Ramohandra Ghadigaonkar,
Aged about 32 years, Presently working 25. Actountan
office Of the Senior Superintendent ot Past Oifhicas,
a City Sub Diision, GP a New | Building, 6° Floor,
Mumbai 400.001 and residing at 33/3) Purvarang Tate
Colmiy, Mavehar Road, Mulund (Ey? ost OFice 400 G81.
DLR. Abnave, Aged about 42 years, Retired Accountant
Mumba: GP. Near C.S.T. Railway Station,
dbai 400 00] } and Residing et B-1, Roar No.209,
Nay Maharashtra Nagar, MP MN Compound, Tardco,
Moumbal 400 008,
Shukur Sekha ram Sorawane, Aged about $7 years,
#1 rkinig as Accountant, Office of the Senor
dont of Poe. Oc 88, s; Manibal City. North
B Bolen, Andheri fam
Kaly an- Shi Road
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OA Nos. 3512/2015,
LAY, 105, 196 & 248 of 2 o
Residing at Chandradeep Apartment, Block No.1, C Wing,
Mahlin Road, Pelghar, District Thane 401 404,
Sanjay Atmaram Kshirsagar, Aged about Mi} years,
Presently working as Accountant, Office of the Senior
Superintendent of Post Offices, Mumtbai City,
North West Division, Kandivall (E}, Mamba 400 101 and
Residing at: 106, Shree Shivdarshan Co-op Hog. Soc.,
Sam narthna: gar, Majos Wadi, Jogeshwari, Mumbai 400 060.
Santosh B. Parab, Aged about 43 y ears,
Presently working as HSG IT Acccuntant, Mumbai GPO,
CST Railway Station, Mumbai 4 00 OO] and
Residing at D205, Gop Poonam Cosmos Schou,
Janata Market, Bhandup (West) 4 AN 708 - Applicants
Versus
The Union of India, through The Directar,
Office of the Director General of Posts,
Department of Posts, Establishment Division,
Dek Bhawan, Sansad Marg, New Delhi 1f0 001.
The Chief Po st Master General, Maharashtra Circle,
GPO. Mumbar 400 001. - Respondents
{OS No 196/2019
Smt. Mamata Keshav Madaneni, Aged about 50 years,
oe working as Accountant, Thane Head Post Office
r Thane Collect orate, thane 400 604 and
sent residing att 2° Floor, Ramalesh Society,
'Vane 400.603,
Shrikrishna Janardan ae Aged about 56 years,
Presently working as ¢ Accountant, (hinch Band lar Head
Post Office, Near Mi asia Raibvay Station, Mumbai 400 G9
303, Mani Dham Co- -op Hog. Soc.,
ard Residing at ah:
Be hind Bank of India, salve OF eat}
Station Foacd,
-TMstrict Thane 400-605,
Ramesh Remdas Shah, Aged about 38 years, -
Presently working as Ac mean Kalhadevi Past OMe
Near Parsi Temple, Muinbal 400 002 and
Residing at Ad/a/9, Asmita C omplex, Phase ff,
Near Siddivinayak Temple, Uitwela (East),
District Thane 401 404, - Applicants
Th e Chief Post Master General, Maharashtra Cire
GEO. Murnba: 400 001. . Resvandents
rene corr Poets,
bet
ho
wad
(3) OA No. 218201$
Smit. Vaibhavi Anand Javker, Aged about 4) years,
Presently working as: Accountant, Dadar Post Office,
Mear Prital Hotel, Dadar, Mumber 40 014 and
res ie ing at L-44As303, A ssinwath Co- -op. Hsg. Sac.,
Pratiksha Nagar, Sion (East}, Mumbai 400 022,
a
Pralhad Tuisiram Meshram, Aged about 44 vears,
Presently working as < Assistant Post S Mi aster (Accounts),
Walbadevi Past Office, Near Parsi Temple ; Mumbai 400 002
and Residing at) A-101, Shivalaya Complex, Phase 0,
A Wing, Omkarnagar, Behind Lokvatika,
Near Marathi School Wo.19, Netivall, Kalyan (East),
istrict Thane 421 306.
Chiman Bhagwan Tettumbde, Aged about 30 veurs,
Presently working as; Accountant,
Office of the Chief Post Master General, Maharashtra Carele,
Near CST Railway Station, GPO, 1 Mu mbai 400 001 aru
residing at Shrey Aperiment, Room No.16, Datta Chow,
Belavali, Badlapur (West), District Thane 421 505.
Smt. Rajashree Mahesh Awe, Aged about 41 years,
Presently working as Acco untant,
Murnibai Central Past Office, Near Raibvay Station,
Mumbai 400 O08 and Residin ie ata
2° Floor, A Wing, O.D.Ambekar N
Pare} Village, Mumbai 400 O23.
ry, Opp. Niries Henise,
Sait. Lima Subramanian » Mudaliar, Aged about 44 years,
cesently working as Accountant, & ee ES " Head Post
Sice, Post Office Building, Ralvan District Than sand
j at 301, Sangam Socket ay 'Adarsh Calony,
wee eS}
vesiding
Thane (East) 400 603.
hea.
Sant, Sushina Dhaka Para, Aged about d5 vears,
Presently working as Accountant, Dadar Pos Dice rear
Pritam Hotel, Dadar, Mumbai 400014 9
residing at Braiding Noid, eatin: MO.4, 'Obp Manisha
Nagar, Sai Baba Colony, Sai Bsha: Nagas ~ Kala (West),
Thatrict 400 5.
Sim Sanita Naru Pas; Aged ahoutds vears,
Presently work Accountant PLICYO Building,
Near CST i Raily don, Mumba! 400-001 and
reel a Lint gat? salpa B Boliding, Sane Gringi Marg,
oatan x
Man * West ,
- Applicants
Le,
G2/203, Sidham Building,
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Versus
he Urdon of india, The Directar,
OfSee of the Director General of Fost, Department of Pasts,
Establishimen i Tivision, Dsk Bhavan, Sansad Marg,
New Delhi FIG QOL.
be
The Chief Post Mast ral, Maharashtra Cirele,
GPO. Munthai 460 06 i - Respondents
Appearances <
Ms, Sujatha Krishnan, fearned counsel for the applicant in OA
No. SP2f20tk.
Shri S-R.Ats, lsamed counsel for the epplicants in OA Nos.i87,
195,196 and ZI of 2014.
Shri NE Rajpurohii, jearned counsel for the respondents in OA
No.512 013 and LSE14.
Shri D.A Dube, learned counsel for the respondents in OA No.1
& ZIR oF 2034,
Shri R.R.Shetty, learned counsel for the respondents in OA
No. 1os/20 bd.
8 Masurkar, learned counsel for the respondents m OA
204
Order reserved an: T10,.2019
Order delivered on : 04.03.2020.
ORDER
Per: : Dr. Bhaow an Sahai, Member (A)
The following five OAs have been filed by the applicants seeking reliets as follows:
GANos. | Nameaf | Impnened | Main relief sought ' i SS. | t PAS : i ;
(Nol Dated! | Applicant: Order
2 Wing gs | yeadder i : ' bord challenge vi guashing and. setting aside cof the eapugned orders:
\ dated 28.O7. 2013, OF OS 2013 and 1GL2013 tA Ckoetismeee Pag ES ' Le Shrikant [3Q/E299 iss sued by be "respondent Ranuosaa | ved A 7 Dubey
3 foo Aabeeds Tukaraat § OA Woes. eva 187, 195, 196 & 218 of Beshay 'Ra iSQl im basic pay on Madanani their Time Bound & 2 Ors. Promotion in Seale of Pay of Rs 4800-125-7000 and to refund fhe amounts Vaibhav recovered from thei Anand davkar & 7 5 Smit along with grant of second financial upgradzcion ander egioring their-pay aa above Sawant, 30.09.2008, . balding and | and 10 Ore declaring that they are:
a andiled for pay fixation by 4 (SG2018 Smt. inclusion af Special 05.03.2014 | Mamata 'Allowance! Spacisl Pay of Crs MACK Scheme -- after:
land provide cost of these) As the subject matter of these OAs is the same and reliefs sought are also identical, with consent of the counsels tobe of parties in all these OAs, they were heard together on iS.i0.2019 and are being decided by this common order, tekine OA Ne lBF/2014 as the fead case.
2. Sunimarized relevant facts:
Zia}. The applicant Shri S.R. Dubey joined as Postal Assistant from 14.09. 1982. AL the time of filing tus OA, he was working as Aved yuntaht in Chenvbur Head Post Office, gs held an Accountants examination rt Mumbai. The responde en in May, 1892 for appointment to pasts of Accountants in Post Offices and Raflway Mall Service. As per the Promotion Rules, those who passed that examination were declared as ee Forpeatme fe Sheva orersserattepy ce PA wey = Phe srk og eligible for those promotions (Annex A-2). The Pastal ASSisiamS aymointed as Accouttanis alter passing the above ue : ek ASS OM ELEN POCA IEE EERLTST ARIEL z EDEL aA ennennge en's WAAL a EE eS MPL OL DED Ph etd beta tate AERA MAM ELAR EO EOE EE pecan ad pei ae a CONT OPN OOM NPE TL TPLOIT Ee LS?, TOS, 196 & &2 examination in Cirdinary Time Scale of Pay also drew a special ferical cadre.
©.
pay as per their seniority in their 2¢b). After passing the above examination, the applicant was 'y 4 appointed as Time Sc vale. Accountant vide order dated G9.10.1992 and was posted at Chembur Head Office (Annex A-3). Thereafier, he was considered by DPC on 17.12.1998 and granted one time bound promotion in pay scale of Rs.4,500-7,00 Oe vide arder dated 08.01,1998 with effect fram 18.09.1998 (Annex A-4), 2(c}, The order of Ministry of Finance, Government of India po $84 "3 ey et ne o% dated 26.08.1960 directed payment of special pay as Schedules attached to Central Civil Services (Revised Pay} Rules, 1960, when it was pert of the pay meant for the post.
As per the above OM, special pay of Rs.34/- was to be draven.
by 2 an Accountant and Rs.2 - by an Assistant Accountent in tien of separate higher scale of pay in Post Offices, Rathway "Mail Services and Telegraph n Offices and it was to be treated as part of pay towa ards fixation of pay on promotion to high posts, subject to the conditions mentioned in Ministry of Finance CiM dated 26.02,1963, oy 2a}. Under Fundamental Rule 929), Appendix A ~ Grant of special pay to various categories of Government servants and its treatment for the purpose of fixation of pay on promotion is provided, Special pay is to mean an addition of the nature of 8 OA Nog SEY2OLS, 187, 198, 196 & 218 of 2014 pey to emoluments of a post or of a Government servant granted in consideration of specially arduous nature of duties or specific addition in work or reaponsibility 2(e). The applicant initially represented to Director of Accounts (Postal), Nagpur for fixing His pay accordingly on promotion under time-bound promotional scale of LSG that tor Sy Accountants. He was informed an 05.09.2000 courting special allowance of Rs. 180% as part of basic pay, the satier had been referred to the Directorate by Chief Post Master General, Maharashtra Circle, Mumbai by letter dated 14.03.2000 and decision thereon would be informed io him.
XP. As per DOPT OM dated 22.04.1998 (Annex A-8), issued on acceptance of Vo Central Pay Comunission recoramendations (paragraph No.i09.4), the Government decid ded that special pay already admissible would be doubled in those cases where H was sanetioded a at the current tate between 01.01.1986 and 31.12.1990 and enhanced by 50% in those cases where it was revised or introdaced at higher than current rates after 31.12.1990, It was firther provided that 3 wherever tne special pay bad been sanctioned as a percent of the basic pay, the quantum w ould i be desided in consultation | with that Department or Ministry of Finance, That DOFT 'OM farther provided that th termed as Special Allowance as per SELINA tg Central Pay Commission and it would be granted subject to same conditions as ate stipulated in Fundamental Rule 9(25 (Annex A-8}, The applicant claims that as per the above DOPT OM, the Special Pay which was granted to him earlier was only to be treated as Special Allowance and the conditions of its grant would remain the same as provided in the Fundamental Rules 825).
2g). Qne Shri §. Mohan Kumar was promoted as Accountant at Head. Recard Office, 'Bengalura on OLALA1984 and his appointment carried as Special Pay of Rs.G0/- under One" Time Bound Promotion Scheme from 05.11.1907. He was placed in higher gerade afier completing three years of service as Ag countant 2 and his pay was fixed by considering the Special Pay of Rs. 20% which he had received for more than three years, However, by memorandem dated 18.08.2001, he was informed that fixation of his pay on promotion under the One "Time Bound Promotion Scheme. by incl uding Special Pay of : Re.90/- was erroneous and therefore, refixation of his pay and recovery would be made. This was on the basis of DOPT OM dated 22.04.1998 which provided that the Special Pay was to be treated as Special Allowance and was not to be counted as nart of Basic Pay for pay fixation an sd that.qrder of that OM : would take effect from. 01.08.1997, S 3 5 2 3 OA Nos 5122013, USF, 1S, 195 & 21S of 2G14 det eos 2ih). Shri S.Mohen Kumar challenged that order of respondents before Bengaluru Bench of the Tribunal in OA No.28s of 2002 and by order dated 22.10.2002, the Tribunal = set aside the order of refisation of his pay and recovery because he had already received pay as per the pay fixation which resulted in accrual of vested rights to hit a and it could not be taken away by a memorandum issued by. the » respondents subsequently with rétrospective effect (copy Annex at A-9}. A challenge to that decision of the Tribunal in Writ Petitios No.7593 of 2003 in Karnataka High Court, (Bengalura Bench) was dismissed on 10.11.2010 (Annex A-
10) upholding the decision of the Tribunal. An SLP filed by the respondents against that High Court order was also dismisse ed for delay and op merits by the Apex ¢ Count order dated 03.07, 2012 (Annex A-1]}.
2(). After knowing about t the Apex Court order in case of S Mohan Rauumar, the applicant submitted representations on S.99.2012 and 23.10.2012 pointing out that his pay on his One Time Bound Promotion should have béen fixed by.
including the Special Allowance received by him as had been.
. allowed in S.Mohan Kumar's case, When he was promoted as.
Accountants on OF.08.1992 he had been granted the Special = eived for more than three years anc hx uded in RIS basic pay when i was peee yore refixed on his Ons Time Bound Promotion from 28.09, 1908, This was because the subsequent grant of Special Alowance to him was as per the same eerditions under Fundamental Rules 9(23).
2¢j}. But a general circular was issued by the respondent No.l ie. Director, Office of Director General of Pasts, Devs artment of Posts (Establishment Division), Dak Bhawan, Sansad Marg, New Delhi deted 11.01.2013 tut the benefit of inclusion of Special Pay as part of basic pay om promotion/financial upgradation will be axtended only in those cases where the promotions or financial a peradation had taxes:
slave on or after 61.08.1997 and before 22.04.1998 (Annex A-
The applicant further submitted a representation on 11.01.2013 requesting that he should be gran ted all benefits of inclusion of Special Pay / Special Allowance as part of basic pay as had been done in case af S: Mohan Rumar Not fixing of his pay by the respondents by including the Special Pay/ Special Allowance of Rs.90/- and: Rs.1 \ and bad in ew Hence, tise OA nas hy eer filed.
tas * Contentions of the parties:-
% The applicant and bis counsel on 15.10.2019 have .
ontended that -
x %, + LE oe geet.
ts OA Nos 5i12/2013, 187, 195, 196 & 218 of 2014 Sia}. when he was appointed ss Time Scale Accountant from O8.1G. 1992, that post carried a Special Pay of Rs.90/ in leu of higher scale of pay. When he was promoted under One Time Bound Promotion fram 28.09.1998, the Special Pay of Rs.90/- per month was doubled to Rs.180% as Special Allowance and that should have been included as part of basic pay in his pay fixation from 08.01.1999. But this has net been done by th resporidents causing loss to him. Therefore, the suit Allowance of Rs.180/- should be incladed as a part of basic 'and he should be granted al due benefits accordingly, along With appropriate interest;
er] 3(b}. non-inclusion of the Special Allowance of Rs. 1804 in his basic pay when he was promoted in September, 1998 is qliesal and contrary to DOPT OM dated 22.04.1998, which stipulated that the Special Allowance at double rate would be granted as per provisions of Fundamental Rales 9(25). Such Special Pay or allowmnce is to fe inchided im Basic Pay as provided under Fandamental Rule 22{ai(1) as it was done under Piuniamental Rules 22(c). 'The action of the respondents in not doing this is egal and bad in law and therefore, the OA should be allowed.
A{c}. the contention of the respondenis that Special Allcwance was Not fo be taken into consideration during fixation of pay und er TROP ig-incoarrect as evident dram the decision in S. Sires Diba d Packie nO nbn RONEN DELLE BMI IT eS Me tenes Keepecowengitedeten tase t 3 = 5 $ 2 < s 3 abet Renee Mohan Kamar Vs. PMG, Bengaluru. The orders issued by the Directorate on. 10.01.2013 are contrary to the above judgment and there are no intelligible criteria having nexus with the date of promotion of an officer between 01.08.1997 to 22.08.1998 and others promoted after 22.04.1998. Once service benefit of Special Pay / Allowance is allowed to a Government servant, it carmot be withdrawn by an executive order with retrospective effect as the order dated 10.01.2013 is an executive order having effect from 22.04.1998 without any change in Recruitment Rules, Fundame B, ma ae % o @ a oh.
Go tt ie $3 at G wy wa feat & % Ra 3(d). the Special Paw/Special Allowance has been treated as nart of pay from: 25.11.1983 to 22.04.1998 for all Accountants and after 22.04.1998 it was allowed to Accountants such as Shri BUR. Dubey, Shri Shyirang Sakpal, Smi.Poorma Angnekar and many others. There is no legality in discriminating the applicants from such other Accountants on artificial and unreasonable gro vonds. The DOPT OM under reference clearly stated that the nomenclature of Special Pay had been changed to Special Allowance, hawever, Tne terms and. conditions remained unchanged;
3{e). since the "applicant fas been drawing Special Pay of : "af ps Rs.00% as part of pay, § an treated as part of pay, incinsion of the Special Allowance In pay cammot be denied im contravention of the Fundarmental Rules. The orders of i OA Nos. 5122013, 187, 195, 196 & 218 of Wid Ministry of Finance dated 26.08.1960 are obsolete and they have to be interpreted in view of the relevant OM because in 1960 the concept of TBOP/MACP was not there. The DOPT OM under reference was to decide the quantiin of Special Pay and it does not make any change in the existing decision as marntioned in Para (d} that the Special Pay will henceforth be %43 termed as Special Allowance and will be granted under the same terms and conditions. The minimum ecHgitility for promotion to higher post {s 10 years of service as Accountant and if there is no vacancy available for promotion, then a person would be granted the TROP a ther 10 years of s SOrViCg and the pay fixation is to be done in the same way as 2 is done on promotion toa higher post; and 3c). The apphcant has atternpted to be nefit from these easelaws:-
{i}. Ay gh Court of Kamataka 3 at Bansalure in Writ Petition No. 7593/2003 in case of §. Mohan ikumar, (Para 5} held thet - "once a vested right has accrued in faveur of the Employee. in terme of the Rules which governed bim_on the day the said benefit was extended and. eS had worked continuously for 3) years and wh the said amount, Me ecwuse Same recomn S the Vo Pay the effect of of the Tribunal dated ie of Mohd. Yusuf Khan Ve.
LIDIA an ernment tI RL EIU EERE GO Es Oa EE bd biti eaten ee pte ea ba Pies ee ee ae hee nee Sh eben oe tt tntb Nene OM tL Et see tt EIEN Gd Bt aie don te ep a gee nen 1s OA Nos, aie 105, 196 & 218 Unien of India, throwgh Secretary, Ministry of Communications & TE, Department of Posts & others, held that refixation of pay of the applicant therein by excluding the Special Pay was illegal and the respondents were directed to re-fix his pay on promotion by considering his Special Pay and to tefund Rs.20,968/- to him which had heen wrongly recoverad from his pay (if). Rajasthan High Court Godhpur ¢ Bench) decision dated 06.10.2018 in case of Union of India and others Vs. Mohd.
Vuasuf Khan observed that the respondents in O.A. 463/2015 failed to justify relevance of restricting benefit between fvo dates Le. the benefit of Special Pay restricted for promotion { financial upgradation between OL.08.1997 tl 22.06, 1998. The DOPT OM dated 22.04.1998 gave the benefit with effect from O1.08.1997 te fnerease the Special Allowance by doubling it which meant that those who were earlier in receipt of Special pay of RaS0/- would thereatier get Special Allowance of Rs, 180/- per month.
Gv). Bombay High Court {Aurangabad Bench} decision dated 17.082 2012 in ease of Ajay Kishanreo Losarwar Vs. State of Maharashtra & Cys. in Writ Petition No.7 S98i2 2008 and Wiit Petitions No.6231) & 7404/2010 holding that the pay of the petitioners had bean right y fixed by merging the 2 amount af Rs 400/- per month before undertaking promotional fitment and there was or is no question of effecting any recovery fram them and directed the respondents to merge the amount of Rs.400/- per month received by the applicants with their basic wages and then to redetermine the wa AGES, cee) fv). Apex Court decision dated 26.04.1984 in Writ Petition Nos.6436-37/ 1980 and Civil Appeal Nos.3095-96/1980 in case of Ex-Capt. ELC. Arora and another Vs. State of Haryana and others held ss acerned Tights cannot be taken away oy Goverment by making 'amendment in Rules with retrospective effect. Referring to the decision of a Constitution Bench in respect of State of Gujarat Vs, Raman Lal Keshav Lal Soni which held Guiarat Panchayats Service (Third Amendment) Act, 1978 as unconstligiional, as it offends Articles 31} anf [4 and was arbitrary and unreasonable and a law mace today would be plinly invalid as offending constitational provisions in the context of the existing sitnation cannot become valid by being made retrospective, allowed the Writ Petitions and Civil Agpeais, set aside the order of the High Court dated Loa, 1980 and impagned rule 4() of Funjab Government National Emergency (Concessions) Rules, 1963 as amended by the Haryana Goverment t Us agetie Natifiostion dated 22.03.1976 and notification dated 9.06. 576 which amended the definition of the expression 'ma Tar} pgervics mre 2.
peomnce ret tpendnetet nr PLUTO OO Cipeng beep tte eee ee bow ar .
$ i 3 t 4 2 $ i x 3 < 3 VF OA Nos. 312/201, VHT, 198, 196 & BS of 2014 In view of these caselaws since the applicant had already been granted the benelit of Special Pay with its inclusion in the basic pay, the O.A. should he allowed.
In their reply and arguments on 1S.U 2019, the respondents have contended that ~ Sig}. afler passing the accourtents' examination Shri 3.8. Dubey, Postal Assistant, was appointed as Accountant since 210.1992 with a Special Pay of Rs.90/- in Reu of higher pay scale, The V CPC recommendations were implemented trom Q1.01L.1996 and as per DOPT OM dated 22.04.1998, the - Special Pay came to be termed as Special Allowance subject to same conditions as stipulated in FR 9(23) and the Special Pa ae Rs SO was doubled as Rs. 180 with effect. fram.
HE:
td OL.08.1997. The Special Pay drawn for more than three years was counted for fixation of pay on his promotion. However, TROP was only a financial upgradation and not a promotion to igher stage and, therefore, an objection was ral iged that the Special Allowance was not to be taken into consideration for fumation 9 of pay under the TROP Scheme. Subsequently the TKrectorate issued orders on 10.01.2013 fer counting ¢ Special allowance for freation of pay une TS OP when the official is prometed under TBOP only between OLGS.1997 . and 22.08.1998;
3(h). the Special Pay and Special Allowance are two different matters, According to FR 9{25}, Special Pay means an addition of the nature of pay to the emoluments of pay, whereas Special Aflowance is just {ike other allowances such as travelling allowance, washing allowance, cash handling allowance, machine allowance, Specia! allowance for child ware, etc. It is a fact 'that Shri S. Mohan Kumar had got financial upgradation under TBOP from OS 11.1997 that is before DOPT OM dated 22.04,1998 was issued which has converted the Special Pay into Special Allowance and, therefore, it is not to be counted as part of pay for fixation of pay. Since the applicants are drawing Special Allowance at present, and it cannot be treated as part of pay for the purpose of refixation of pay on promotion, request of the applicant for payment of arrears along with 18% is net proper and cannot be accepted, In the light of these facts a circumstances, the applicant is not entitled for any reliefin the O.A.
3. The respondents have attempted to benefit. fram the Apex Court decision dated UL04.1990 in case of Mallikerjuna Rao and others Vs. State of Andhra Pradesh cand others which held that it is neither legal ner proper for the High © "ours ay the Adminisirative Tribunals to issue directions or advisory sermoua to the executive in respect of the sphe Gathe domam of the exesutive cadre fond NOY 187, 195.4 under the Constitution. Since the Special Rules were framed der Article 309, the legislative power under the Constitution os is ta be exercised by the President ar the Gavemor of a State, x as the case muty be, the High Courts ar the Administrative Tribunals oannot issue a mandate to the State Government to ~~ legislate under Article 309 of the Constitution. The Courts cannot usurp the functions assigned to. the executive under the Constitution and cannot even Indirectly require the executive to exerdise its rule making power in any manner. The Courts cannot asaume to themselves a supervisory role over the rule making power of the executive under Article 302, In view of this, the OA should be dismissed.
4, Analysis and conclusions:
We have perused the QA memos and their annexes, rejoinders of the applica nts, replies filed by the espondents and considered the arguments advanced by ' eounsels af both sides on 15.10 2019. On their careful:
consideration, the clear position emerges as follow 4{a). The main prayer sought in these OAs ts direction to the responienis to re NS their pay at the time. of time-bound e of MACP even afier 22.44.1998 by incluai Hg the Special pay/special allowance in their Basic Pay received _by them before the pro motion! 'financial upgradation and pay them arrears of pay ac cordin gly. 2g . GA Nos. S12/2013, iS? P95, 196 & 218 of ZN 4(h). The undisputed facts in these cases are that the applicants before their promotion under the Ume-bound promotion scheme or grant of financial upgradation under MACP, they were in receipt of Special Pay as per Fundamental G(25). After acceptance of V Central Pay Commission recommendations, DOPT issued the OM dated 22.04.1998 by which amount of the Special Pay already admissible was doubled in those cases where it had been sanctioned at current rm S00, in those cases where it was revised or introduced at higher rates after 37.12.1990. That OM further specified that the Special Pay would henceforth be termed as Special Allowance and would be granted subject to same conditions as c ate atipuiated in Fundamental Reale Q(25) and. these orders would be effective from OLDS 1997, d(c). As per the letter dated 10.01.2013 issued by the : gf 4 SE ete hangs s cea ey eo qo Department of Posts, Ministry of Communications and Information Technolory, Gavernment of India, In view of dismissal of SLP No.CC [O8G/2012 by Apex Court in Union of Indie Vs. S.Mohan Kumar, the issue-of reckoning Special Special Allowance for pay fxstion on
- * ¥ *, uperadation was examined with "oonaultation of the Department of Expenditure, Ministry of se, the Nodal Ministry gave Fiance and as per their cone tes hetween O1.01.1986 ard 33.12.1900, and enhanced by LeAnne ren AMAL:
aieebinnnenintt pen dbenaee te deteg TAO EEE ORI ete weceronrverce iene OA Nos. SRiONS, (ST, 195, 196 & 218 af 2Ol4 th?
concwrence dated 21.12.2012 to implement the judgment of the Bengaluru Bench of the CAT dated 22.10.2002 in OA No. 296/2002 upheld by the Kamiataka High Court in Writ Petition No.7493/2003 in respeet of Shri Mohan Kumar and other similarly placed persons who were promoted aller completing three years of service as PO and RMS Accountants before 22.04.1968 and in whase cases the Special Pay was Rs. GQ!- at rte of promotion. 4(d}. In the letter dated 10.01.2015, concurrence was also conveyed thet the above judgment of the Tribunal, and the judgments of Emakulam Bene th of the Tribunal in ODA Zs as. 6912005 and 4397/2006 in cases of Ms. B.Rajeshwari and Ms. Anita K. Alexander, res spectively and of Chenuai Bench of the Tribunal in QA No.T7H2010 in case of Ms. Jayalaxmi ray be it mplemented by reckoning the Special Pay termed as Special Allowance as pari of the Basic Pay for the purpose of pay fixation of the above then PO and RMS r eountants, The recovery, if any made fram their pay and oy, oe o allowances on that accotmt shall be refiin ded. hh was Aurther mentioned in that letier that the above hey efit € way fixatl 3 OYE rovnations ins opal roerrs in iO? Benenl OF Pay TINaulan Ox) PrOMmOloons inancis UPeracanon shail also be extended to ell similarly placed cases of PO and RMS Accountants where the Special Pay/Special Alowance at the rate of Ra.OGs- per month was drawn continuously for three ee DA Nas 31 seots, iS? 198, 196 & 2 IS af 2014 < years before 22.04.1998. In cases where promotian/fmancial upgradation has taken place on or after 01.08.1997 but before
4.1998, special pay/allowance of Rs.9O/- will only be reckoned for this purpose.
de). As per the DOPT OM dated 22.04.1998, the Special Pay drawn before 01.08.1997 was doubled to Ra. 1804 per month from that date and termed as Special Allowance, However, at the time of their one time-hound promotion or grant of financial upgradation under MACP to the applicants, the ee Special Allowance at the rate of Re, ]8U+ per month has not heen inchided in their Basic Pay while refining the pay. The applicants i these OAs seek the inclusion of the Special Allowance of Rs. 180/- per month as part of their Basic Pay at the time of refixetion of their pay after promotion cunder the one thne bound promotion or grant of financial upgradation under the MACP Schenie.
4{f}. However, The respondents contend that in view of "
stimulation in para 4 of th e letter dated 10.03.2013, only in those cases where the concerned employees had received o.
S847 Slee SA Aa txts e seek Ar /- per month continuously for a period of sgara has beer included as. a part of Basic Pay but as the promotion/financial upgradation to the apices has been yeh ON PYGNG eign Menem ae Ree Snecial Allowance received by 3 ts > oh uy "S at bed pd pn g Pod tat fx 3H urs reer ed iS = me tad them cannot be imchided as part of the Basic Pay on their wth ay 4g). A gist of the case laws relied upon by the applicants brings ont the position that once an employee has been.
extended the benefit of Special Pay/Special Allowance for certain period as per the existing rules, that employee has a ested right in favour of that Special Pay/Allowance and by subsequent instructions or amendment to the Rules SUCH B yested right cannot be withdrawn retrospectively. Non- anchusion of the Special Pay as a part of Basic Pay at the time of refixation of pay hes been set aside by Jeipur Bench of the Tribunal in case of Mohd, Yusuf Khan Vs. Union of india and that decision was upheld by the Rajasthan High Court Jodhpur Rench, 4th), As per the DOPT OM date @ 22.04. 1998, the distinction has been removed between the Special Pay received earlier a3 per. stipulatio mg under Fundamental Rule (25) and its subsequent name as Special Allowance at doubled the rates allowed from Q1 08. 1997 under the same conditions stipulated under FR 9(24), Therefore, the cont ention of the respondents is not correct that only Special Pay was to be included as par ofthe Basic Pay on promotion or financial upgradk ation and the Special Allow: saris does not qualify for such inclusion.
In fact in the order of the respondents in letter dated 10.01.2013, there is no such distinction between the Special Pay and Special Allowance and based on the decisions of the 'Bengalury, Ernakulam and Chennai Benches of the Tribunal, the Special Pay termed as Specia! Allowance has pean allowed as a part of Basic Pay for pay fixation of PO and RMS Accountants ie. similarly placed counterparts of the present applicants.
4{j}, The second misin cemtention of the respondents is reliance on the Apex Court decision dated 10.D4,1990 in case of Malitkarjuna Rao and others Vs. State of Andhra Pradesh and 'others, reported in (1990) 2 SCC 707 holding that if is neither legal nor proper for the High Court or the Administ: 'ative Tribanals im issue directions or advisory sermons to the Executive in respect of sphere whith is exclusively within the domain of the executive cadre tinder the"
Car nstitution such as framing of rules under Article 309 of the Clonstition.
However, iC is to be noted that the present cases are not ~ for issuin i@ any special directiona with reference to nde making seed THR x oot eoh aes ~ $ a ; Constitution. They are seeking relief by treating the Special AY * 4 xo veh ay pits r :
Allowarse received by therm on gar with the Special Par * at bade ER ar y for pecdusica in ther Basic Pay while received by them carl sarepssies DW arnnsbee nnd ecctneeen SAE v, Laine epaewtes ne ' % i i PS ae ee eileen ane a eR ee iat fine ONE Tigi tc BL EL a de pete dette te x ry 8 x z 4 Lats o< Zz 6 refixing the pay on promotion or grant of " financial oe upgredation. Therefore, this contention of the respondents is also not helpful to them.
4(j). The language of the HOPT OM dated 22.04.1998 was very unambiguous that the Special Pay would henceforth be termed ag Special Allowance and would be gran nied subject to x ZN same conditions as are stipulated under Fundamental Rule 825). :
¥ Therefore, for this purpose, there is no distinction between Special Pay and Special Allowance arc as the applicants were ve granted the Special Pay earlier uncer Fundenenial Rule 9(25) . under certain terme and conditions, the Special Allowance granted to them under the same FR 9(25) at the applicable rates qualities for inclusion as pat of the Basic Pay when their pay < was refixed on promotion under the One Time Bound Promotion Scheme or on grant of MACP upgradation. he differentiation made by the respondents BD ak.
4iky. As regard with refarence to inchision of the Special Pay in the Basic Pay a 98, the Jodhpur Bench of wD anty if it was received before 22 UA TS this Tribunal in iis decision dated 1Q11.2017 in OA No 4632015 in case of Mohd. Yusuf Khan Vs. Union of India & Others & Crs. has held that the refixation of the pay of the applicant by excluding the Special Pay was illegal and this decision of the Triimmal bas been upheld by the Rajasthan High Couwt Jodhper Bench}. dated 06.10.2018 and that there ig ne justification in the Special Pay only when the promotion'financial upgradation took place between O1.08.1997 to 22.48 1998. Also when decisions af other Benohes of this Trifamal mentioned in the order of the respondents dated 10,01,2013, have been implemented for similarly a Tat "3 & % a "3 ea o g 3 <9 g is
86.
o re & 3 placed Accoumants by reckoning @ Allowance as part of the Basic Pay for the purpose of the pay fixation, such benefits cannot be denied to the present anplicanta.
In-view of the above analysis, we are of the opinion that the in the oO rete eg tt pb Ln o cy > ee Ford bere gD = g "
pS na ie th oy oi 3 at fhe ot et ms mS me ms .
£ a pt 7 "or KS LAs see basic pay on refixation of the pay on promotion financial upgradation under - MACE Therefore, these Q.Ag deserve to be
-
5. Decision:
OAs are allowed with direction to the respondents to include the Special Allowance received by the applicants at the Gme of their promustion under the One Time Bound Promotion Scheme or grant of financial umgradation under the MACP Scheme and release payinent of arrears of their pay to them accordingly in three months irom taday. However, they will not be entitled for payment of any I wrspack enki: aeepare fe ~ art nz wy fy ulerest on Such arrears. any recovery has been made tr FON ime oe applicants} after withdrawing such inclusion of Special allowance oe ee pet axe thoaxbes ta Ys ety ty odin of in basic pay, itshould be refined, (Ravinder Kaur) . (Dr. Bhagwan Sahai} Member Ghaidicia} Member (Administrative) iHime™ SOME Saea Se, POA RD ly Ade Renee tele ats MT Te