Central Administrative Tribunal - Cuttack
Smt Aruna Bala Mohanty vs D/O Post on 3 March, 2022
OA 590/2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
No. OA 590 of 2019
Present: Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr.Swarup Kumar Mishra, Member (J)
Smt. Aruna Bala Mohanty, aged about 59 years, wife of
Sri Pratap Chandra Mohanty, at present working as
Asst. Superintendent of Post Offices in the office of the
Superintendent Postal Stores Depot, Bhubaneswar -
751001
......Applicant
VERSUS
1. Union of India represented through its Director
General of Posts, Ministry of Communication, Dept.
of Posts, Dak Bhawan, Sansad Marg, New Delhi - 1
2. The Chief Post Master General, Odisha Circle,
Bhubaneswar - 751001.
3. The Superintendent, Postal Stores Depot, Satya
Nagar, Bhubaneswar - 751007.
4. The Manager, Postal Stores Depot, Satya Nagar,
Bhubaneswar - 751007.
......Respondents.
For the applicant : Mr. A. K. Mohanty, counsel
Mr. D. K. Mohanty, counsel
For the respondents: Mr. B. Swain, counsel
Heard & reserved on :22.02.2022 Order on : 03.03.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M. OA 590/2019 2 The case of the Applicant, in brief, is that on 27.5.1983 she joined as Stenographer Gr. III in the pay scale of Rs. 330-560/- which was revised to Rs. 4000-6000/- w.e.f. 1.1.1996 as per the recommendation of 5th CPC. She was granted 1st financial up gradation under MACP w.e.f. 9.8.1999 to Rs. 5000- 8000/-. On 21.02.2001 she was promoted to Inspector of Post Offices (IPO) in the pay scale of Rs. 5500-175-9000/- through departmental competitive examination. On the recommendation of the 6th CPC the pay scale of IPO was revised to 9300-34800/- with GP Rs. 4200/-. Accordingly, the pay of the applicant was fixed at Rs. 12,190/-, GP Rs.4200/- w.e.f. 01.01.2006. On completion of 20 years of qualifying service, she was granted 2nd Financial Up gradation under MACP w.e.f. 01.09.2008 to PB 2, GP Rs.4600/-. She was promoted to the post of ASPO on 15.03.2012 in PB 2 GP Rs.4600/-. Thereafter, on completion of 30 years of regular service she was granted 3rd financial up gradation under MACP to PB 2, GP Rs.4800/- w.e.f. 27.05.2013. The GP of IPO was revised to Rs. 4600/- w.e.f. 1.1.2006 vide OM dated 24.10.2017. The GP of the post of ASPO was revised to Rs. 4800/- in term of para 11.8.21 of the recommendation of 6th CPC as notified vice Gazette of India dated 25.07.2016. Consequent upon revision of GP of the post of IPO and ASPO, the pay of applicant was revised was fixed in PB 2, Level9 at Rs. 71,300/- w.e.f. 1.1.2016 with DNI on 1.7.2016. Such pay fixation was done with reference to the pay of OA 590/2019 3 Rs. 27,600/- as on 31.12.2015 multiplied by 2.57 which was Rs. 71,300/-. Respondents issued letter under Annexure-A/20 dated 20.8.2018 stating inter alia that the post of IPO is not the channel of promotion of postal assistant and the postal assistants can only be promoted to the post of IPO through competitive examination. As such on their promotion they are entitled to 3% fitment benefit at the time of fixation of pay on promotion to the post of IPO even after availing financial up gradation under MACP. In the aforesaid circumstances and taking into consideration the various orders of the Govt. of India, the pay of the applicant was refixed and at the fag end of her service alleging that the fixation of pay was not in accordance with Rules, without giving any opportunity of being heard, respondents have sought to re fix her pay and consequent recovery vide order dated 02.08.2019. It has been alleged that representations submitted by her on 5.8.2019 and 7.8.2019 did not yield any result. Hence by filing the instant OA, inter alia, she has prayed for the following reliefs:
a) To allow this OA; and
b) To quash the letter dated 02.08.2019 of Respondent No. 3 as per Annexure A/14 being false, vague and ambiguous, and
c) To direct the Respondents to restore the pay of the applicant as on 01.07.2019 after grant of the annual increment due to her at the stage of Rs. 80240/-, and OA 590/2019 4
d) To also direct the Respondents to refund to the applicant the amount of Rs. 20,000/- recovered from her salary for the month of July 2019 along with any other amount recovered from the salary of the applicant for the month of August 2019 towards such excess payment made to the applicant than her entitlements, and
e) To pass orders/directions that the cost of litigation be paid to the applicant by recovery made from the pay of the respondent No. 3 for his acting beyond his powers and jurisdiction in this regard without any order from the competent authority, and
f) To pass such other order(s)/direction(s) as may be deemed fit and proper in the bonafide interest of justice.
2. A short reply has been filed by the respondents stating inter alia that whle fixing the pay of the applicant, ASP (prining), PSD, Bhubaneswar due to change of GP of IPOs from Rs. 4200/- to Rs. 4600/- vide Directorate letter under Annexure-R/1 dated 24.10.2017 and grant of entry pay at par with direct recruits as per DGD (P) letter under Annexure-R/2 dated 03.10.2018 and DoP&T OM under Annexure-R/3 dated 28.09.2018, the pay of applicant was fixed under Rule 7 of CCS (RP) Rules, 2008 allowing bunching in December, 2018. The DoP&T OM dated 28.09.2018 inter alia provides that "in respect of those posts where entry pay for direct recruitments appointed on or after 1.1.2006, as per Section II of Part A of the First Schedule of CCS (RP) Rules, OA 590/2019 5 2008 becomes applicable by virtue of the provision of the element of direct recruitment in the relevant recruitment rules, the pay of Central Government employees who were appointed to such posts prior to 1.1.2006 and whose pay, as fixed in the revised pay structure under Rule 7 thereof as on 1.1.2006 turns out to be lower than the prescribed entry pay for direct recruitments of that post shall not be less than such entry pay w.e.f. 1.1.2006. Likewise, the pay of Central Government employees who were appointed to such posts by way of promotion on or after 1.1.2006 and whose pay, as fixed under Rule 13 of CCS (RP) Rules, happens to be lower than the said entry pay shall also not be less than such entry pay from the date of their promotion taking place on or after 1.1.2006." The pay of Applicant in December, 2018 was Rs. 71,300/- in pay Level-9. By allowing bunching benefit her pay was fixed under Rule 7 of CCS pay fixation Rules, 2008 at Rs. 77,900/- and arrear towards pay and allowances from 1.1.2006 to 30.11.2018 amounting to Rs. 6,21,924/- was paid to her.
Subsequently, Govt. of India, MoF, New Delhi in furtherance to the earlier OM, referred to above, issued guidelines vide OM under Annexure-R/4 dated 07.02.2019 inter alia providing that bunching of pay of IPOs/ASPOs whose pay is above the entry pay of Rs. 17, 140/- is not entitled to the bunching benefit under Rule-7. While scrutinizing the paper for preparation of pension papers etc it was noticed that the pay of applicant was Rs. 16, 710/- w.e.f. 01.01.2006 which was revised to Rs. 18, 310 w.e.f. 01.01.2006 in terms of GOI, MoF,OM dated 28.09.2018 which was found to be not in order with reference to GOI, OA 590/2019 6 MoF, New Delhi OM dated 07.02.2019 and, thus, the pay of the applicant was refixed at Rs. 17, 140/0- w.e.f. 1.1.2006 which was/is the maximum pay and Rs. 73,400/- w.e.f. 01.07.2018 and Rs. 75,600/- w.e.f. 01.07.2019. Thus, as per the undertaking furnished by the Applicant the excess payment made due to wrong fixation of pay was ordered to be recovered on installments. Accordingly, it has been stated that there having no illegality in the action taken by them, this original Application is liable to be dismissed.
3. The Applicant filed counter and rejoinder to the short reply filed by the Respondents in which besides reiterating the facts stated above has submitted that since the refixation and recovery has been ordered without giving her any opportunity of being heard the same is not sustainable in the eyes of law.
4. After giving in depth consideration to the arguments advanced by the parties with reference to their respective pleadings, perused the record. It may be recorded that judicial intervention in the matter of fixation of pay of an employee is very limited only to the extent where the same is done in violation of the Rules and where the fixation of pay was made otherwise than the manner it should be done. In the instant case, we find that the Respondents after revision of GP of IPO/ASPO refixed the pay of the applicant by allowing the bunching benefit as evolved vide GIO, MoF, New Delhi Office Memorandum dated 28 th September, 2018 and fact remains that the aforesaid OM got clarified vide GOI, MoF, New Delhi OM dated 7th February, 2019. By applying the OM dated OA 590/2019 7 28.09.2019, pay of Applicant in December, 2018 was at Rs. 71, 300/- in pay level-9 and her pay was fixed/refixed under Rule 7 of CCS Pay Fixation Rule, 2008 at Rs. 77,900/- and arrears consequent upon such fixation of pay for the period from 01.01.2006 to 30.11.2018 to the tune of Rs. 6, 21, 924/- was paid to her vide PSD V No. 12 dated 15.12.2018. At the time of fixation of pay and payment of arrears she had furnished an undertaking dated 29.11.2018 that the Respondent-Department shall recover the excess payment, due to wrong fixation of pay, if any. The Government of India, MoF, Department of Expenditure, New Delhi issued another OM dated 7th February, 2019 on bunching of stages of pay in the pre 7th CPC scales consequent upon fixation of pay in the revised pay scales based on 7th CPC. In terms of the guidelines IPs/ASPs whose pay was above the entry pay of Rs. 17, 140/- was not entitled to avail the benefit of bunching pay under Rule 7 and, therefore, the fixation of pay by allowing bunching as per Rule 7 of CCS (RP) Rules, 2008 was found irregular. The applicant was in the pay of Rs. 16, 710/- as on 01/.01.2006 which was revised to Rs. 18, 310/- w.e.f. 1.1.2006 in terms of the OM dated 28.09.2018 which was revisited/refixed at the maximum pay of Applicant at Rs. 17,140/- w.e.f. 01.01.2006, at Rs. 73,400/- w.e.f. 01.07.2018 and Rs. 75,600/- w.e.f. 01.07.2019 and excess payment made consequent upon wrong fixation of pay was ordered to be recovered, on the basis of the undertaking furnishing by her vide order under Annexure-14 dated 02.08.2019. It is seen that Applicant submitted a representation 05.08.2019 demanding enquiry against the DDO for OA 590/2019 8 not granting her annual increment in July, 2019. Thereafter, she has made another representation dated 07.08.2019 wherein besides stating non compliance of natural justice before refixing her pay and recovery, deduction of amount towards income tax, it has been stated that if bunching principle was not applicable to her how the DDO allowed the said benefit to her. No whisper has been made in the said representation that the re fixation of her pay was in any manner not in accordance with Rules. The authority is endowed with power and authority to rectify its mistake, at any stage, if it is found that the employee concerned is not entitled to certain benefit which was wrongly paid to him/her. Therefore, we find nothing wrong in the decision taken by the Respondents in rectifying the fixation of pay which was wrongly made earlier. Now coming to the question of recovery, it is the case of the applicant that there being no fault or contribution of her in the fixation of pay earlier made as per the decision of the Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih reported in (2015) 4 SCC 334, no recovery should be made. This was strongly opposed by the Respondents on the ground that the applicant is estopped law to veer round from her own promise made by furnishing the undertaking as per Rules that excess payment if any shall be recovered from her. We have examined the contention of the respective parties in so far as recovery is concerned and gone through the decisions in the case of Rafiq Masih (supra). Recovery on the strength of undertaking furnished by an employee again received judicial consideration of the Hon'ble Apex Court in the case of High OA 590/2019 9 Court of Punjab and Haryana and others vs. Jagdev Singh in Civil Appeal No.3500/2006 decided on 29.7.2016, where the Hon'ble Apex Court after placing reliance on the decision in the case of Rafiq Masih (supra) have held that in a situation where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. Therefore, we also find no force on the submission of the Applicant in so far as recovery is concerned.
5. In view discussions made above, this OA sans any merit and is liable to be dismissed and is accordingly dismissed by leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHOWDHURY) MEMBER (JUDICIAL) MEMBER (ADMINISTRATIVE)