Central Administrative Tribunal - Cuttack
Ashutosh Das vs Accountant General on 14 November, 2024
1 O.A.No. 260/00301 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00301 of 2022
Reserved on 06.11.2024 Pronounced on 14.11.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Ashutosh Das, aged about 57 years, Son of Late
Arttatrana Das, At- Plot No- MIG-22, Pokharipur,
Bhubaneswar-751020, Dist- Khurda.
......Applicant
VERSUS
1. Union of India represented through its Secretary to
the government, Ministry of Finance, Department of
Expenditure, North Block, New Delhi.
2. The Comptroller and Auditor General of India, At-
Pocket- 9, Deen Dayal Upadhyay Marg, New Delhi-
110124.
3. The Accountant General (A&E), Bhubaneswar, Orissa.
......Respondents
For the applicant : Mr. A.K.Bose, Counsel
For the respondents: Dr. C.R.Mishra, Counsel for UOI
Mr. S.K.Patra, Counsel for AG
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
In this OA, the prayer of the applicant is to declare that he is entitled to Non-Functional Upgradation (NFU in short) Grade Pay of Rs. 5400/- w.e.f. 01.01.2016 in Pay Matrix Level-9 and, accordingly, 2 O.A.No. 260/00301 of 2022 direct the respondents 2 and 3 to pay him the differential arrears by quashing the order of rejection dated 05.09.2018 and 29.09.2021.
2. Respondents filed MA No. 781/2022 inter alia stating that since the facts and the issues involved in this case is same and similar to that of O.A. No. 304/2022, filed by Ardhendu Kumar Mandal Vs. UOI & Ors, the counter filed therein may be taken as the counter in this OA. In the said counter, the respondents have objected/contested the matter on various grounds.
3. According to Ld. Counsel for the applicant, the applicant was initially appointed in the year 1985 and passed the Section Officer Grade Examination (SOGE) in the year 1996. As per rules, a regular serving Accountant after passing SOGE is eligible to be promoted to the post of AAO. Taking into stagnation in promotion, the competent authority created the post of AAO (Ad hoc) and AAO (Regular Temporary) vide letter dated 08.07.2009. Considering the administrative exigency, the authority concerned taken decision to promote the SOGE passed officials to the post of AAO (Ad hoc) with GP Rs. 4800/- and the applicant took over the charge of the post of AAO (Ad hoc), as per the order dated 25.08.2009 and was classified as Group-B Gazetted. Thereafter, he was promoted to AO (RT) w.e.f. 03.10.2011 having the same Pay Matrix and GP Rs. 4800/-. 3 O.A.No. 260/00301 of 2022 3.1 It is the case of the applicant that respondent No.3 sought clarification vide letter dated 04.05.2011 relating to Incentive Examination for Sr.AOs/AOs/AAOs in the office of A&E and in letter dated 11.05.2011 it was clarified by the headquarter that only AAO (Regular/RT) with one year continuous service are eligible to appears in the Incentive Examination. While the matter stood thus, respondents in letter dated 14.10.2014 opined that the temporary post of Assistant Audit Officer/Assistant Accounts officer created by the department are ion existence for more than two years and since the work assigned is of permanent nature, all Gazetted Group- B regular temporary post in existence in the cadre of like Assistant Account Officer are to be treated as permanent one w.e.f. 15.10.2014. The office of Resp. No.2 again issued clarification dated 09.02.2017 stating inter alia that as per the headquarters circular dated 29.01.2014 and 03.08.2015, the ad hoc service of erstwhile SO/AO is to be considered for the purpose of financial upgradation under ACP/MACP Scheme. The 7th Pay Commission recommended that all officers in organized accounts cadre, who are in GP 4800/- should be upgraded on completion of four years to GP Rs. 5400/- in Pay Level -9 in the Pay Matrix. The recommendation of the 7th Pay Commission was accepted by the Government vide memorandum 4 O.A.No. 260/00301 of 2022 dated 18.06/2018 revising the pay scale under 7th CPC pay structure to Level-8 of Pay Matrix and Level-9 on completion of four years in GP Rs. 4800/-.
3.2 Consequently, respondent No.2 issued circular dated 09.07.2018 for granting NFU in Pay Level-9 to AAOs of IA and AD on completion of four years of regular service in the cadre from the date of joining as AAOs and the same was made effective from 01.01.2016. On receipt of queries from different field offices, the competent authority vide clarification dated 05.09.2018 made it clear that the service rendered as SO/AO (ad hoc/RT) shall not be taken into consideration for completion of four years for grant of NFU and made it clear that the service rendered as regular SO/AO is to be reckoned for computing four years of service for NFU. Applicant submitted representation for granting him NFU to Pay Matrix - (GP 5400 w.e.f. 01.01.2016) taking into consideration his service rendered on ad hoc/RT basis, which was rejected on 29.09.2021.
3.3 According to Ld. Counsel for the applicant, respondents negative the claim of the applicant vide impugned order dated 29.09.2021 without due application of mind and without considering the basic recommendation of the 7th CPC and the 5 O.A.No. 260/00301 of 2022 circular dated 09.07.2018 relating to grant of NFU. When 7 th CPC recommendation that all offices of organized accounts cadre, who are in GP 4800/- should be upgraded after four years of service to GP 5400/- in Pay Level-9 in the Pay Matrix and admittedly when the applicant had completed four years in GP Rs. 4800/-, he should not have been excluded for getting the NFU w.e.f. 01.01.2016. The grant of NFU to Rs. 5400/- is without change of duty or responsibility regardless of availability of any vacancy. Further, it is contended that the Scheme of MACP introduced by the government is also financial upgradation without change of any duty or responsibility so also regardless of the availability of the vacancy like the grant of NFU. When the entire period of service of AAO (ad hoc) and AAO (RT) are ordered to be taken into consideration for grant of financial upgradation under MACP, excluding/ignoring the period of service rendered as AAO (ad hoc) and AAO (RT) for grant of NFU is highly illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India besides being opposed to the 7th pay recommendation and the circular issued thereon. Hence, he has prayed for the relief in the OA.
4. On the other hand, based on the counter, Ld. Counsel for the respondents has submitted that consequent upon introduction of 6th 6 O.A.No. 260/00301 of 2022 CPC w.e.f. 01.01.2006, the post of Section Officer was merged with Assistant Accounts Officer. The Office of C&AG of India vide Circular dated 25.03.2009 had created Regular Temporary (RT) posts of Assistant Accounts Officer with condition that Assistant Accounts Officer (RT) shall not be given any supervising responsibilities rather they shall be given tasks of more arduous nature involving greater analytical skills and will be assigned workloads that are at least 50% higher than the existing ones. As per order dated 27.05.2009 of Comptroller and Auditor General of India (C&AG), the Section Officers were redesignated as Assistant Accounts Officers w.e.f. 27.05.2009. Accordingly, all categories of Section Officers, i.e. ad hoc and regular, were redesignated as Assistant Accounts Officer ad hoc/regular as the case may be.
4.i Due to stagnation of posts, Section Officer Grade Examination (in short SOGE) passed employees, including the applicant, could not be promoted to the post of Section Officer/Assistant Accounts Officer in due course of time. In order to provide pay fixation benefits in the post of Assistant Accounts Officer, the Office of C&AG of India vide order dated 08.07.2009 created temporary post of Assistant Accounts Officer (ad hoc) without entrusting supervisory responsibilities and, accordingly, the applicant was appointed as 7 O.A.No. 260/00301 of 2022 Assistant Accounts Officer on ad hoc basis w.e.f. 25.08.2009 in time scale Rs. 9300-34800 with Grade Pay Rs. 4800/-.
4.ii Subsequently, the applicant was allowed to officiate as Assistant Accounts Officer Regular Temporary (RT) w.e.f. 01.03.2011. The Office of C&AG of India vide letter dated 14.10.2014 intimated all Heads of Department under its control for conversion of Group 'B' Gazetted Regular Temporary posts into permanent ones observing the fact that the posts are in existence for more than two years and work assigned is of permanent nature. Accordingly, the Applicant was allowed to officiate as Assistant Accounts Officer on Regular basis w.e.f. 01.08.2016 against the vacancy of existing sanctioned strength of regular posts.
4.iii In pursuance of the recommendation of the 7th CPC, in the Resolution dated 25.07.2016 (para 11-12-140), it was provided that all officers in organized accounts cadre, who are in Grade Pay (GP) of Rs. 4800/-, should be upgraded on completion of four (4) years of regular service to the Grade Pay Rs. 5400/- (PB-2) in Pay Level-9 of the Pay Matrix. Accordingly, Government of India, Ministry of Finance, Department of Expenditure vide Office Memorandum dated 18.06.2018 ordered that the pay scales of the post of Assistant Accounts Officers in Indian Audit and Accounts Department, Indian 8 O.A.No. 260/00301 of 2022 Civil Accounts Organization and P&T Accounts shall be Level-9 in Pay Matrix on completion of four years of regular service in Grade Pay of Rs. 4800/-.
4.iv The Office of the C&AG of India vide letter dated 18.06.2018 and 05.09.2018 clarified that the service rendered as Section Officer/Assistant Accounts Officer (Ad hoc/RT) will not be taken into consideration for grant of Non-Functional Upgradation (NFU). The service rendered on regular Section Officer/Assistant Accounts Officer is to be reckoned for computing four years of service for fixing pay in Level-9 of Pay matrix with effect from 01.01.2016.
4.v Applicant preferred representation on 01.09.2021 requesting Respondent No. 3 for grant of NFU in Pay Level-9 (Grade Pay Rs.5400/-) w.e.f. 01.01.2016 on completion of four years in Pay Level-8 (Grade pay Rs.4800/-), which was considered and vide letter dated 29.09.2021 he was intimated that his request was not acceded to by the competent authority in the light of clarification issued vide letter No. 1240 dated 05.09.2018 since he did not officiate as Assistant Accounts Officer on regular basis w.e.f. 01.01.2016.
4.vi With regard to the prayer of the applicant for grant of Grade Pay of Rs. 5,400/- in Level-9 of Pay Matrix, it is submitted that the 9 O.A.No. 260/00301 of 2022 Modified Assured Career Progression (MACP) Scheme came into force w.e.f. 01.09.2008, in lieu of Assured Career Progression (ACP) Scheme, where the financial benefits/ upgradations were allowed w.e.f. 01.09.2008 on completion of 10, 20 and 30 years of service in the same Grade Pay from direct entry Grade of the Cadre in the absence of regular promotion. The Office of the Comptroller and Auditor General of India, New Delhi vide letter dated 09.02.2017 issued clarification that the ad hoc service of Section Officer/ Assistant Accounts Officer is to be considered for the purpose of financial upgradation under MACP Scheme. In the instant case, the Applicant was appointed as AAO w.e.f. 25.08.2009 on ad hoc basis and he completed 10 years of service in the same Grade Pay of Rs. 4,800/-. Accordingly, he, along with other 26 similarly situated employees, was granted Grade Pay of Rs. 5,400/- w.e.f 25.08.2019 in Level-9 of Pay Matrix.
4.vii It is stated that as per NFU System, Grade Pay of Rs. 5,400/- in Level-9 of Pay Matrix is granted w.e.f. 01.01.2016 on completion of 04 years of regular service in a regular post of AAO without taking into account the Ad hoc/Regular Temporary (RT) period. Since the applicant became regular in the post of AAO w.e.f. 01.08.2016, after completion of four years of regular service, he was entitled for grant 10 O.A.No. 260/00301 of 2022 of Grade Pay of Rs. 5,400/- under NFU on 01.08.2020 but since the said GP was already granted to him w.e.f. 25.08.2019 under MACP Scheme, the allegation of the applicant is not sustainable.
4.viii In course of hearing, Ld. Counsel for the respondents has submitted that similarly situated/circumstanced employees working in the office of the AG (A&E), Kerala, Thiruvanathapuram approached before CAT, Ernakulam Bench in OA No. 753/2009 (Hema T.M. & Ors Vs. UOI 7 Ors.) with the same and similar reliefs as in the present case. The Ernakulam Bench of the Tribunal after taking into consideration the facts of the case, rule position and the decisions of Hon'ble Apex Court in various cases have ultimately rejected their prayers vide order dated 12.04.2004 and submitted that this being one such case, by applying the doctrine of precedence as held by the Hon'ble Apex Court in the case of S.I.Rooplal & Anr. Vs. Lt. Governor through Chief Secretary, Delhi & Ors, AIR 2000 SC 594, this OA being devoid of merit is liable to be dismissed.
5. We have considered the rival submission of the respective parties and perused the records. The sole question that arises for consideration of this Bench in the present OA as to whether the service rendered by the applicant on AAO (ad hoc/RT) in GP Rs. 4800/- in Pay Level-8 shall be counted towards completion of four 11 O.A.No. 260/00301 of 2022 years service for grant of NFU in GP Rs. 5400 in Pay Level-9 on the face of clear cut ruling that an employee in GP Rs. 4800/- is eligible for NFU to GP Rs. 5400/- on completion of four years "regular" service.
6. It is the specific case of the respondents that similarly situated/circumstanced employees working in the office of the AG (A&E), Kerala, Thiruvanathapuram approached before CAT, Ernakulam Bench in OA No. 753/2009 (Hema T.M. & Ors Vs. UOI 7 Ors.) with the same and similar reliefs as in the present case and the Ernakulam Bench of the Tribunal in a detailed order dismissed their cases and the present case being one and the same, this OA is also liable to be dismissed. Therefore, we have examined the pleadings and arguments advanced by the Ld Counsel for the applicant noted above with reference to the case before the Ernakulam Bench in the case of Hema T.M. & Ors. (supra). The relevant portion of the decision is extracted herein below:
"26. We have heard the contentions of both sides in detail during oral submissions. The learned counsel for the respondents Shri.Vineeth Komalachandran (appearing for K.I.Mayankutty Mather) brought forth a few additional points, by citing some judgments that he felt were relevant in this context. He drew attention to the observations of the Hon'ble Supreme Court in Union of India & Anr. vs. Amrik Singh & Ors., 1994 (1) SCC 269. This judgment was in relation to a matter of whether instructions dated March 21st 1978 issued by the C&AG 12 O.A.No. 260/00301 of 2022 of India, prescribing the minimum period of service as Section Officer for eligibility for promotion as Accounts Officer was inconsistent with any of the provisions in the Indian Audit and Accounts Department (Administrative Officers, Accounts Officers and Audit Officers) Recruitment Rules, 1964 etc. It was observed by the Apex Court in paragraph 9 as follows : '...As is held by this Court in the Accountant General vs. S.Doraiswamy, AIR 1981 SC 783, the Comptroller and Auditor General of India has the necessary competence to issue Departmental Instructions on matter of conditions of service of persons serving in his Department as its head, even after rules are made by the President on conditions of service of such persons in exercise of his powers under Article 148(5) of the Constitution.' It was further held that 'It is no doubt true that the Administrative Instructions so issued on matters relating to conditions of service of persons in the Department cannot prevail over the rules issued by the President under Clause (5) of Article 148 of the Constitution, if the same comes in conflict with any provision made in the rules on such matter.' It was then held that the concerned provision in relation to the Instructions dated March 21st 1978 under consideration is made with the required competence by the Comptroller & Auditor General of India. It is submitted by learned counsel that this proves the ability and competence of the C&AG to make the required arrangement and issue instructions in relation to the terms and conditions of lower level staff working under him. This includes in this context the creation of the position of AAO (Adhoc/RT) as a temporary measure for the specific purpose of providing more promotional scope for those working for long periods in the lower posts.
27. Learned counsel for the respondents also drew our attention to K.Madhavan & Anr. vs. Union of India & Ors., 1987 (4) SCC 566, where the Hon'ble Apex Court went into the issue of what the expression 'on a regular basis' implies. According to him, this is very relevant as the respondents had taken the position in this O.A that since the applicants had been holding their positions as 13 O.A.No. 260/00301 of 2022 AAO (Adhoc/RT) on a temporary basis, they cannot be considered as fulfilling the condition of 4 years 'regular service' to be granted NFU. The Hon'ble Supreme Court had held that the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contra-distinction to appointment on an adhoc/stop-gap or purely temporary basis. Similarly, in Union of India & Ors. vs. K.B.Rajoria, 2000 (3) SCC 562, the Hon'ble Supreme Court had held that the High Court had erred in construing the words 'regular service in the grade' as actual physical service. It was held that if that were so then an adhoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General of the CPWD in the matter therein. Further, while considering the definition of the word 'regular' the Concise Oxford Dictionary in K.B.Rajoria (supra), it was held that the word regular does not mean actual. The Hon'ble Apex Court in this connection also referred to the findings in K.Madhavan (supra) that the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contra-distinction to appointment on an adhoc or stop-gap or purely temporary basis. Hence, it is submitted by the learned counsel for the respondents that these pronouncements of the Hon'ble Supreme Court are clearly in favour of the respondents, as the rules for NFU provide that there has to be 4 years regular service in the Grade Pay/Pay Level concerned for the NFU to be granted to the next Grade Pay/Pay Level.
28. Learned counsel for the respondents also drew our attention to Parmod Kumar vs. State of Haryana, 2018 (0) Supreme (P&H) 4495, where it was held that the petitioners were not entitled to count their period of adhoc/work charged/temporary service towards seniority in the cadre before the date they were regularized and became members of service for the first time in terms of the relevant policies of State Government. Learned counsel also pointedly drew our attention to a similar matter as in the present O.A had been considered by the Jabalpur Bench of this Tribunal in Anand Purohit vs. Union of India & Ors., in 14 O.A.No. 260/00301 of 2022 O.A.No.1010/2010 decided on 07.08.2013. This was in the matter of pay fixation in a case of adhoc promotion followed by regular promotion without break. The contention therein was that since there is no definition of 'regular service' either in the Fundamental Rules (FR) or by a specific Circular, any service from the date of adhoc promotion should be considered as regular service, particularly since the applicant therein had been getting all increments in the month of July, based on the date of his adhoc promotion. The Tribunal however held that while it is true that the regular service has not been specifically defined in the FR, there was still no reason to accept adhoc service as regular service, as otherwise, there would have been no need to make a separate mention about 'adhoc promotion' in FR 22 and other rules under the FR. Hence, drawing from this, the Tribunal observed that the approved scheme for grant of a higher Grade Pay of Rs.5400/- by way of Non Functional Upgradation specifically mentions that only those officers were eligible, who had completed four years of regular service as an Income Tax Officer. Thus, it was held that the four year period was to be counted from the date of regular promotion and not from the date of adhoc promotion. In other words, learned counsel for the respondents submitted that in effect in a similar matter of eligibility for entitlement to Grade Pay of Rs.5400/- to an officer who wanted his adhoc service to be counted, the Jabalpur Bench of this Tribunal had not agreed with the contention.
29. Learned counsel for the respondents also drew attention to an Office Memorandum (O.M) of the Department of Personnel & Training No:F.No.5/4/2005-
CS.I(S) dated 14.09.2022 which was in relation to grant of Non Functional Scale to Section Officers of Central Secretariat Service and Central Secretariat Stenographers Service. This had indicated, inter-alia, as follows :"......It is reiterated that in terms of FR 17(1), Section Officers of CSS cadre appointed to the aforesaid grade from CSSS cadre ie., PS (Adhoc/regular), were not holding the post of Section Officer as on the date of grant of NFS ie., 01.07.2019, but were officers of CSSS holding 15 O.A.No. 260/00301 of 2022 the post of PA/PS (Adhoc). Hence, the actual financial benefit is not admissible to them from 01.07.2019 but is admissible only from the date of their assumption of the charge of the post of Section Officer on regular basis." In addition, learned counsel for the respondents submitted that the matter was part of the discussions held on 16.09.2019 by the Dy.C&AG (HR & Training) with the office bearers of the All India Audit & Accounts Association. It appears that in relation to the demand for grant of NFU to Level 9 to adhoc AAOs, it was responded as : "SAS is the qualifying examination for promotion as AAO. In some field offices especially in A&E offices sufficient vacancies are not available for granting promotion to the SAS qualified personnel. The RT/Adhoc posts were created to encourage the SAS qualified staff waiting for promotion as AAOs. The AAO (Adhoc/RT) continue to perform the work of the posts, from which the official was appointed as AAO (Adhoc/RT). Such officials are not regular AAOs. Hence granting of NFU is not possible. The benefits of financial upgradation under ACP/MACP are however permissible to AAO (Adhoc/RT). This agenda item may be treated as closed."
30. It is thus contended that in terms of the DoP&T O.M above, as well as the results of the discussion with the IA&AD Association, it has been fairly well accepted by the Government as well as by the IA&AD that the matter of granting NFU to AAOs holding (Adhoc/RT) positions is not possible. In fact the matter is to be treated as closed. We examined the issues carefully. We must note that the above detailed contentions made by the respondents both in their reply statements and in the oral submissions were not effectively countered by the applicants. It is specifically the issue raised by the respondents that Adhoc/RT services of the applicants cannot be counted as regular service, both by way of established judicial precedents or even as is generally understood, however much the applicants contend that they were doing similar work as regular AAOs and, in some cases, even work of a supervisory nature. Just performing additional or even supervisory duties does not prove that the applicants were in regular service. 16 O.A.No. 260/00301 of 2022 What is required by the NFU Scheme is to be in regular service and that is the main criteria before the grant of upgradation to Rs.5400/- Grade Pay/Pay Level - 9 in the Pay Matrix on completion of 4 years in the Lower Grade Pay of Rs.4800/-. This is clearly a settled matter for the DoP&T, which is in charge of the establishment issues of the Government of India. It appears settled in the C&AG as well, as evidenced by the record note of discussion with the employees association as above. In any case, the respondents have provided more than enough material in their reply statement in relation to the powers of C&AG to establish that the 1 st respondent (C&AG) has full powers in relation to creation of temporary posts or the effective management of the cadre under him. Thus, we agree that a temporary measure which was effected in order to provide some opportunities to the staff who had passed the required qualifying examination, but had been waiting for years together without promotion cannot be held to establish grant of further benefits.
31. We have also noted that a process has been undertaken by the respondents to provide a channel of movement from the lower level first by upgrading the posts to the position of AAO (Adhoc) and then further to the position of AAO (RT) and to final regularization as AAO. Such a process cannot be held to be identical or even similar to the process of regular promotion/appointment to the post of AAO. These are completely two different processes which cannot be confused with each other. Further, even if there may be some overlap in terms of duties and responsibilities between AAOs (regular) and AAOs (Adhoc/RT) that cannot be held as sufficient as we have seen. It is not that this is a simple matter of 'equal pay for equal work' as is being sought to be established by the applicants. There was a specific contention by the respondents as we have seen that the purposes behind these positions were different and that one cannot be confused with the other, however much the nomenclature or even duties are the same. Further, they have contended that there has been no change in the number of posts within the cadre as a 17 O.A.No. 260/00301 of 2022 whole. In sum, we are in agreement with the detailed contentions made by the respondents in this O.A.
32. Thus, in view of all the above considerations and in light of the findings of the Hon'ble Supreme Court brought out earlier, we are unable to accept the contentions made by the applicants. The O.A is accordingly dismissed. We make no order as to costs."
7. Add to the above, it may be recorded that it was specifically decided by the competent authority that only four years "regular" service is to be counted for grant of NFU, as a matter of policy, and self restraint by the Tribunal in such policy matter is mandated by law. Accordingly, we see no ground to take a different view than the view already taken by the Ernakulam Bench, especially, in view of the well settled proposition of law that the precedents which enunciate rules of law form the foundation of administration of justice under judicial system as held by the Hon'ble Apex Court in S.I.Roop lal and another (supra).
8. On examination, we find that not only the applicants before the Ernakulam Bench but also the present applicant belong to the same department and same cadre, the foundation led in both the cases are also same and similar leaving no scope for this Bench in the present case to take a different view than the view already taken by the Coordinate Bench of this Tribunal. Therefore, since the 18 O.A.No. 260/00301 of 2022 Ernakulam Bench after analyzing and answering all the points dismissed the OA, we do not find any justifiable reason to reiterate the same discussions herein again.
9. In the result, this OA being devoid of any merit is dismissed by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS