Central Administrative Tribunal - Delhi
Satish Kumar Sfa (Vet) vs Union Of India Through on 23 December, 2014
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 2074/2012
OA No.3984/2012
Reserved on: 06/05/2014
15/07/2014
Pronounced on:23.12.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
OA No. 2074/2012
1. Satish Kumar SFA (Vet)
S/o of Sh. Chamaru Ram
R/o village Bhagher,
PO Chauntra, Distt. Mandi,
Himachal Pradesh
Posted as DIG, SSB-SHQ,
Pilibhit, Uttar Pradesh.
2. Mahipal Singh SFA (Vet)
s/o late Lakhi Singh
R/o Raithal, PO Raithal,
Distt. Uttarkashi, Uttarakhand
Posted as AO, SSB, Bhinga,
Distt. Sharawasti, UP.
3. Kamaljit Singh Rana SFA (Vet)
S/o Sh. H.S. Rana,
R/o Vill. Bheel, PO Tilokapur,
Distt. Kangra, HP.
Posted as AO, Madhubani,
Bihar.
4. Gambhir Singh Rana SFA (Vet)
s/o late Gulab Singh Rana
R/o 306/2, Chaudhari, Bihari Lal Marg,
Nesla Road, Dehradun, Uttarakhand
Posted as AO, SSB, Sitamarhi, Bihar.
5. Tarsem Singh SFA (H)
s/o late Shivpal Singh
R/o Vill. Mandi, Kotli,
PO Distt. Samba, J&K.
Posted as Official Address
AO SSB Sitamarhi (Bihar)
6. Rajesh Sharma, SFA (M),
s/o late Sh. Deshraj,
R/o 42-H, Tehsil Sirka Rampur,
Distt. Shriganga Nagar (Raj.)
Posted as Office of the AO SSB
Sitamarhi (Bihar).
7. Balam Singh Rawat SFA (Vety)
s/o late Sh. Mohan Singh Rawat
R/o vill at Gadri Malli,
Poste Office Dhamdewal,
Distt. Pauri Garhwal, Uttarkahand.
Posted as Office of the DG SSB
FHQ RK Puram, New Delhi.
8. Shish Pal Singh Rana SFA (H),
S/o Sh. Dilaram Singh
R/o vill. Manjali,
Post Office Naugaon, Distt. Utrakashi.
Posted as On deputation as Accountant,
PAO SSB MHA, RK Puram, New Delhi.
9. Dina Nath Sharma SFA (H)
s/o late Sh. Parshram Sharma,
R/o Vill. Panyala,PO Kothi,
Tehsil Ghumarwin, Distt. Bilaspur (HP).
Posted as AO SSB, Narkatiyaganj (Bihar).
10. Rajesh Kumar SFA (H)
s/o Sh. Dwarkanath,
R/o Vill. Panjore, PO Kahnachak,
Distt. & Tehsil (J&K),
Posted as DIG SHQ SSB,
Mujaffarpur (Bihar).
11. Ashwani Kumar SFA (H),
s/o late Sh. Ishwar Das,
R/o Vill & Post Pathiar,
Tehsil & Distt. Kangra (HP).
Posted as office of the AO SSB
Madhubani (Bihar).
12. Mangal Singh Bhandari SFA (M)
s/o late Sh. Kundan Singh
R/o Village Bichaly, Rain Post office Paudi
Distt. Paudi Garhwal (Uttarakhand)
Posted as office of the Commandant Medical,
SSB MTC (Shimla)
13. Jagdish Singh AFO (Vety)
s/o Sh. Dhanantar Singh
R/o village Sounthal,
Poste office Budhi, Tehsil
& Distt. Kathaui (J&K)
Posted as IG FTR SSB, Patna.
14. Ranjeet Singh SFA (H),
S/o late Sh. Sher Singh,
R/o Vill. & Post Nerwa,
Tehsil Chopal, Distt. Shimla.
Posted at IG FTR SSB, Patna.
15. Sushil Kumar SFA (Vety)
s/o late Sh. Malkiat Singh
R/o Vill. Balla, PO Nagrauta Surian,
Tehsil Jawali, Distt. Kangra (HP)
Posted as DIG, SSB, SHQ, Mujaffarpur (Bihar).
16. Satpaul Sharma SFA (Vety)
s/o Sh. Ram Krishan,
R/o Vill & PO Kootah,
Tehsil Hira Nagar, Distt. Kathua (J&K)
Posted as office of the AO SSB Sitamarhi
Bihar.
17. Rajendra Singh Rawat SFA (H),
S/o late Sh. Sabar Singh,
R/o Vill. Kimgadi, PO Gawani,
Distt. Pauri Garhwal (Uttarakhand)
Posted on deputation as Accountant
PAO SSB, RK Puram, New Delhi.
18. Mohan Chand Joshi SFA (Vety)
s/o late Sh. Dharam Dutt Joshi,
R/o Vill. Kalyani, PO Chirnga (Gwaldom),
Tehsil & Distt. Chamauli UK
Posted as office of the AO SSB,
Bagha (Bihar).
19. Rajender Singh Rawat SFA (H)
S/o Sh. Jagat singh
R/o Vill. & PO Gatu,
Distt. Uttarkashi, Uttarakhand
Posted as AO SSB Madhubani (Bihar).
20. M.S. Gangola, AFO (Vety)
s/o late Sh. CS Gangola,
R/o Vill. Bagor, PO Pangooth,
Distt. Nainital (Uttarkhand)
Posted as FHQ, SSB RK Puram,
New Delhi.
21. H.S. Khatri AFO (Vety)
S/o Sh. Ram Singh,
R/o Vill. Mathkhani,
PO Bin, Distt. Pithoragarh
Uttarakhand
Posted as DTC SSB Palampur (HP).
22. Makan Lal SFA (Vety)
s/o late Sh. Kamlesh,
R/o Vill. Semli, PO Jhanjhar (Kot)
PS & Tehsil Pauri (Uttarakhand)
Posted as AO SSB Raxaul Bihar.
23. Desh Raj SFA (Vety)
S/o Sh. Chanu Ram,
R/o Vill. & PO Kathuwan
Distt. Mandi HP.
Posted as AO SSB Raxaul Bihr.
24. B.S. Katoch SFA (Vety)
s/o late Sh. T.R. Katoch,
R/o Flat No. 6 (Plot No. 521),
Nep Sarai, New Delhi.
Posted as AO SSB Lohaghat, UK.
25. Anand Singh Rawat SFA (H)
s/o late Sh. Pan Siongh
R/o Vill. & Post Kordwar (UK).
Posted as AO SSB Birpur (Bihar).
26. Suresh Chand Sharma SFA (H)
S/o late Sh. Shankar Lal Sharma,
R/o Vill. & Post Bhiambi,
Via Sera (Via Nadaun) Distt. Una (HP).
Posted as DIG SHQ SSB, Lkhimpur,
Kheri (UP).
27. Verendra Prasad Bhatt SFA (Vety)
S/o late Sh. Vishal Mani Bhatt
R/o Vill. Rumtthiyal Gaon,
PO Rampur Chatti, Distt. Pauri
Garhwal (Uttarakhand)
Posted as AO SSB Falakata (WB).
28. Mohan Lal SFA (Vety)
s/o Late Sh. Rigzin,
R/o PO Jahalman,
Distt. Lahoulspite (HP).
Posted as AO SSO Falakata (WB).
29. A.K. Sherpa SFA (Vety)
S/o late Sh. P.D. Lama,
R/o Vill. G.M. Road, PO Ghoom,
Distt. Darjeeling, West Bengal.
Posted of AO SSB,
Gangtok, Sikkim. Applicants.
(By Advocate: Sh. Sudarshan Rajan)
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Director General,
Directorate General,
SSB, East Block V,
R.K. Puram, New Delhi-66. Respondents
(By Advocate: Sh. T.C. Gupta)
OA No.3984/2012
1. Sh. N.S. Panwar
S/o late Gabar Singh Panwar
R/o Vill. & PO Tangni,
Tehsil Joshimath,
Distt. Chamoli (UK).
2. Sh. Khem Chand s/o Bihari Lal,
R/o vill. Garkahan,
PO Majhiwar, Tehsil Suni,
District Shimla (HP).
3. Sh. Jeetpal Singh
S/o Late Sh. Pushker Singh Gariya
R/o Vill. & PO Gwaldam,
District Chamoli (UK).
4. Sh. Subhash Kumar s/o Sarvadayal,
R/o Vill. Bangati, PO Masroond,
Tehsil & Distt. Chamba (HP).
5. Sh. Suresh Chand Tiwari
S/o late Raghubir Prasad Tiwari,
R/o Vill. Badrinath Math,
PO Srinagar, Distt. Pauri Garhwal (UK).
6. Sh. Ravinder Joshi
S/o late Harish Chand Joshi,
R/o Vill. & PO Kheti Khan,
Lohaghat, Distt. Champawat (UK).
7. Sh. Bhagat Singh Rawat,
S/o Late Hayat Singh Rawat,
R/o Vill. & Post Gwaldam,
Tehsil Tharali, Distt. Chamoli (UK).
8. Sh. Kamal Dev Singh
S/o Shyam Singh,
R/o Vill. Chilla, PO NDA,
Tehsil Sadar, Distt. Bilaspur (HP).
9. Sh. Dinesh Prasad Semwal,
S/o Keswanand Semwal,
R/o Village Dwari, PO Pilkhi,
Distt. Tehri Garhwal (UK).
10. Sh. Shiv Shankar Chakravarty
S/o late Chinta Haran Chakravarty,
R/o Village Kokrabon (Basant Nagar),
PO & Tehsil Kokrabon,
Distt. Udaipur (Tripura).
11. Sh. Kripal Singh Bisht
S/o Late Narayan Singh Bisht,
R/o Village Digoti, PO Maejkholi,
Tehsil Ranikhet & Distt. Almora (UK).
12. Sh. Pratap Singh s/o Sh. Lachham Singh Bora,
R/o Vill. Dontha, PO Adichoura,
Distt. Pithoragarh (UK).
13. Sh. Kalam Singh Rawat,
S/o Sh. Lal Singh Rawat,
R/o Village Jugju PO Reni,
Tehsil Jossimeth, Distt. Chamoli (UK).
14. Sh. Aita Raj Rai s/o Balbir Rai,
R/o Vill. Pokharia Bong Basti-4 No.,
PO Pokharia Bong,
Distt. Darjeeling (West Bengal). Applicants
(By Advocate: Sh. Sudarshan Rajan)
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Director General,
Directorate General,
SSB, East Block V,
R.K. Puram, New Delhi-66. Respondents
(By Advocate: Sh. Sumit Kumar for Sh. Subhash Gosai)
O R D E R
By Dr. B.K. Sinha, Member (A):
The instant two cases i.e. OA No. 2074/2012 and OA No.3984/2012 relate to a common subject based upon similar arguments and leading to identical relief(s) and, therefore, were being heard together. However, on 06.05.2014, arguments in OA No.2074/2012 were concluded and order reserved, whereas in OA No.3984/2012, on request of the learned counsel for the respondents for his reply, the matter was adjourned on several occasions and finally heard and reserved for orders on 15.07.2014. Hence, both these OAs, being identical based on facts and law, are being disposed of by this common order.
2. The facts of OA No. 2074/2012, being the lead case, are being considered for the sake of recording of the order. This OA filed under Section 19 of the Administrative Tribunals Act, 1985 assails the Memorandum dated 05.01.2012 whereby request of the applicants for counting their past service rendered in the pay scale of Rs.950-1400 as Constable (GD) following their selection to another post like Senior Field Assistants (Vet./Homeo/Medic) in the pay scale of Rs.975-1660 as continuous service for the purposes of MACP as per the decision dated 15.09.2010 has been rejected on the ground that the subsequent appointment carries a higher pay scale. The OA further impugns order dated 30.04.2012 whereby the respondents have unilaterally withdrawn the benefits granted to them under the ACP/MACP Scheme after giving weightage to the earlier service rendered by them as Constable without giving them an opportunity of being heard. The OA further assails the order dated 15.05.2012 whereby the respondents have sought to recover the benefits granted to some of the applicants without putting them to notice.
3. The applicants have sought the following relief(s) in both these OAs:-
Relief No. OA No.2074/2012 OA 3984/2012 A. Quash the impugned orders dated 5th January, 2012, 30th April, 2012 and 15th May, 2012 passed by the respondents.
Quash the impugned orders dated 27.06.2012 and 12.10.2012 passed by the respondents.
B. Direct the respondents not to recover any amount from the applicants and continue to make payments to the applicants as per the ACP/MACP already granted to them in 2010.
Direct the respondents not to recover any amount from the applicants and continue to make payments to the applicants as per the ACP/MACP already granted to them in 2010.
C. Pass such other further order or orders as this Honble Tribunal may deem fit and proper in the facts of the case and in the interest of justice.
Direct the respondents to continue paying the applicants the ACP/MACP benefits giving them benefits of past services rendered by them.
D.
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Pass such other further order or orders as this Honble Tribunal may deem fit and proper in the facts of the case and in the interest of justice.
4. The case of the applicants is that initially they were appointed as Constables on different dates in Special Service Bureau (SSB) during the period from 1974 to 1990 in the pay scale of Rs.950-20-1150-25-1400. As per the Recruitment Rules of Senior Field Assistant [hereinafter referred to as SFA], Constables working in SSB with three years of service in the grade having one year practical experience in their respective fields i.e. Vet./Homeo/ Medicine and having undergone respective courses could be appointed on transfer basis as Senior Field Assistant (SFA) in respective fields in the pay scale of Rs.975-25-1150-EB-30-1660. In view of the offers of appointment, the applicants have been appointed as SFA in their respective fields after having obtained technical resignations from them. The applicants submit that the appointments in question were not considered as promotion in the department and had been made on transfer basis. The Assured Career Progression Scheme (ACP) was promulgated in the year 1999 by the Government of India with the objective of removing stagnation by granting financial upgradation to the employees on completion of 12 and 24 years of service in their entire service career. The applicants further submit that they were granted respective ACPs on completion of 12 and 24 years of service after having been given due weightage of their earlier service rendered in the post of Constable, implying thereby that the department had not considered the appointment of the applicants as SFA on transfer basis as promotion in consonance with letter and spirit of the appointment orders. On 23.01.2007, the SFAs were placed in the pay scale of Rs.3200-4900 being the pay scale of SFAs comparable to the pay scale of Head Constable in ITBP. Upon implementation of the report of the 6th CPC, the Constables in the pre-revised scale of Rs.3050-4590 (upgraded to Rs.3200-4900) were placed in PB-1 with Grade Pay of Rs.2000/- SFAs working in the pay scale of Rs.3200-4900 were also placed in PB-1 with Grade Pay of Rs.2000/-. However, in column revised/upgraded scale against the post of SFA, it has been mentioned that the pay scale of this post was not upgraded. The applicants submit that the net result of this order was that while the Head Constables, on the recommendations of the 6th CPC, were placed in PB-1 with Grade Pay of Rs.2400/-, similarly placed persons holding the post of SFA were placed in PB-1 with Grade Pay of Rs.2000/- (page 90 of the paper book). The applicants further submit that vide order dated 02.06.2010, they were granted 1st, 2nd and 3rd financial upgradation under ACP in Grade Pay of Rs.2800/- and Rs.4200/- after having given due weightage to their earlier service rendered in SSB with pay to be fixed under FR-22(1)a(i). It is further provided therein that over payment or excess payment, if made on account of financial upgradation under MACP Scheme would be recovered from their salary. Vide Office Memorandum dated 06.10.2010, DOP&T issued clarifications in respect of ACP Scheme, Item No.16 whereof clarifies that any appointment after resignation is to be viewed afresh/direct recruitment (including re-appointment) in the Government. As per the MACPs, the financial upgrdations are to be allowed after completion of 10/20/30 years of regular service from the entry grade. However, in case of Technical Resignations, the past service shall be counted for the purpose of MACP. Admittedly, as the applicants had tendered technical resignations and had been appointed on transfer basis, their appointments were not promotion and, therefore, they were entitled to count their respective services from the date of joining as constables in SSB. The applicants further submit that there was another clarification issued on 01.11.2010 qua para 24 of the MACPs whereby it has been clarified as under:-
2. During the joint committee meeting it was pointed out by the Staff Side that the word new organization of the last line of para 24 of Annexure-1 of MACPS dated 19.05.2009 was not in consonance with the spirit of the scheme. The issue has been examined and it is clarified that in case of transfer including unilateral transfer on request, regular service rendered in previous organization/office shall be counted along with the regular service in the new organization/office for the purposes of getting financial upgradation under the MACPS. However, financial upgradation under the MACPS shall be allowed in the immediate next higher grade pay in the hierarchy of revised pay bands as given in CCS (Revised Pay) Rules, 2008. Para 24 of MACPS stands amended to this extent. It is submitted that the respondents in reversal of their own orders have issued the impugned order (Annexure A-1) withdrawing the benefits already granted under ACP/MACP Scheme, which is illegal and contrary to the law and circulars on the subject. Therefore, the instant OA has been filed for the reliefs prayed for.
5. The applicants have adopted three principal grounds for their application. In the first place, recovery cannot be effected without notice to the applicants and having given them prior opportunity of hearing. The applicants have cited the reported case of H.L. Trehan versus Union of India [1989 (9) ATC 650] and Bhagwan Shukla versus Union of India [1995 (2) SLJ 30]. In the second place, the very order of appointment of the applicants as SFA clearly indicates that it was an appointment made on transfer basis and not a promotion. Thus, the appointment on transfer basis cannot be the ground to refuse grant of ACP/MACP to the applicants. The respondents initially came out with the right decision treating the appointments of the applicant on transfer basis. The applicants submit that practically they have been in the same pay scale of Constables all through. In case the applicants are not given the benefits of the previous service as Constables, it would be a case of double jeopardy as they will be losing both in terms of scales and enhanced years of service as a pre-requisite to the grant of MACP. The applicants also submit that no options have been sought from the applicants before their technical resignation and have relied upon the decision of the Tribunal in the matter of V.K. Saldhi versus Union of India & Others [OA Nos. 3783/2010 and 3035/2011 decided on 14.11.2011] wherein it has been held that placement in a higher scale will not amount to promotion. Reliance is also placed by the applicants on the decision of this Tribunal in the matter of Sh. Vijay Kumar Rajput & Others versus Union of India & Others [OA no.3291/2010] and of Honble High Court in the matter of Govt. of NCT of Delhi through its Secretary versus Shri Dinesh Verma [WP(C) No. 5145/2005 A No.3291/2010].
6. The respondents have filed the counter affidavit wherein they have denied the points raised by the applicants. The respondents explained that as per Para-9 of DoP&T OM dated 19.05.2009, regular service for the purpose of MACPS shall commence from the date of joining on a post in direct entry grade on regular basis either on direct recruitment basis or on absorption basis. As per clarification of the DOP&T, since the past service of the applicants was in pay scale of Rs.950-1400 and the subsequent appointment is in a higher scale of pay of Rs.975-1660, the former would not be counted for grant of MACP. Therefore, the excess amount paid stood to be recovered. The respondents have further denied the contention of the applicants in para 4.5 that the decision to grant ACP after giving due weightage to their earlier service was in conformity with the policy that ACP could be granted in cases where a person had stagnated on the same post and had not been promoted. It is pleaded that as per DOP&T OM dated 10.02.2000, it is amply clarified that if appointment is made to higher pay scales either as on direct recruitment or absorption (transfer) basis or first on deputation basis and later absorbed on transfer basis, such appointment shall be treated as direct recruitment and past service/promotion would not count for benefits under ACPS. In the instant case, past service rendered as Constable (GD) by the applicants was in the pay scale of Rs.950-1400 whereas the subsequent appointment is in a higher pay scale of Rs.975-1660. Therefore, past service rendered as Constable (GD) cannot be counted for grant of ACPs/MACPs. Moreover, the services of combatised personnel are governed by SSB Act and Rules whereas services of SFAs are governed by CCS (CCA) Rules and are entitled for all benefits under the purview of the said rules. The service condition of the combatised personnel and civilian personnel are totally different. Pay scale of combatised personnel of SSB was allowed at par with other Central Para Military Forces, but civilian employees were granted corresponding pay scales as per recommendation of 6th CPC. The respondents have further submitted that the excess payment made to the applicants stood to be recovered as held by the Honble Supreme Court in its decision in the case of Chandi Prasad Uniyal & Others versus State of Utrakhand & Others [2012 (8) SCC 417].
7. The applicants have filed a rejoinder application denying all the averments made by the respondents in their counter affidavit by and large reiterating the points taken in the OA. On the principles of natural justice, the applicants have relied upon the decision in the case of Canera Bank versus Debasis Das [2003 (4) SCC 557] wherein it has been provided that even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The applicants have placed reliance upon the definition of the term regular service as contained in para 9 of the MACP Scheme which provides that it shall commence from the date of joining on a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Moreover, the applicants have also relied upon Clarification No.9 which provides that past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment shall also be counted towards qualifying service for the purposes of MACPs.
8. Having carefully examined the pleadings and documents as submitted by the rival parties and having carefully listened to the oral submissions made by their respective counsels, we feel the following issues emerge for decision:-
(i) Whether the appointment of the applicants as SFA is a fresh appointment or a promotion?
(ii) If this be a case of fresh appointment, whether the past service rendered shall reckon for the purposes of grant of ACPs/MACPs?
(iii) What relief, if any, could be granted to the applicants?
9. Insofar as the first of the issues is concerned, we have to start with what constitutes a promotion. Promotion essentially has two necessary ingredients upgradation of pay and involvement of higher responsibilities. Where both these ingredients are being fulfilled, the same is a case of promotion or not otherwise. Transfer of an employee to another post involving some extra allowances and some additional responsibilities, say that of a Caretaker, will not constitute a promotion for the simple reason that there is no upgradation in the scale of pay and the employee is likely to be reverted to his original scale at some point of time. Additional benefits that accrue from the allowances and perks form part of the post. FR 22(1) provides how the initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated? Under FR 22(1) (a)(1), the Government servant has an option to exercise within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule. Rule 5 of CCS (RP) Rules, 2008 states that a Government servant may elect to continue to draw the pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale/ post, or ceases to draw pay in that scale. However, another condition attending promotion is that there is no break in service. Where there is continuity, the service rendered in the previous post is reckoned for the purposes of qualifying period for next promotion, pension and other pensionary matters.
10. In the instant case, we find that there has been admittedly a change in the pay scale. The applicants were initially recruited in the pay scale of Rs.950-1400, while being selected as SFAs in the respondent organization they were placed in the scale of Rs.975-1660. If we have to look at the appointment letter dated 29.01.1991 in respect of Constable Raghubir Singh and 16 others, the terms & conditions of the appointment on transfer basis as SFA in the pay scale of Rs.975-1660 have been prescribed as under:-
2. The terms and conditions of transfer will be as under:-
(i) The seniority of the SFA (V) taken on Transfer will be regulated in terms of the orders contained in the Ministry of Home Affairs OM No.9/11/55/RPS dated 22.12.1959 as amended from time to time which envisage that their seniority will be below those already recruited.
(ii) They would not get any protection of the emoluments drawn by them as Constables. Their pay would be fixed under the normal rules with reference to their pay in the parent cadre in the Group Centre.
(iii) They would not be made permanent immediately on their transfer as their permanency would be dependent upon their seniority in the grade of SFA (V) and availability of permanent posts.
(iv) They will be required to undergo training courses prescribed for the SFA(V) by the department from time to time.
(v) Their seniority will be as per the merit drawn by the selection Board/DPC which is based on the date of their joining SSB constable.
3. You are requested to immediately offer the above terms and conditions of transfer to the constables mentioned in para above and obtain their written acceptance. In case the terms and conditions are acceptable by them, they may be appointed to D.O. concerned on transfer basis after completion of formality like submission of technical resignation etc. These indicate that the applicants on appointment as SFA (V) are no longer guided by the old seniority and acquire a new seniority which is as per the appointment in the new cadre and they do not have protection of the emoluments drawn as constables. They are to be made permanent as per the availability of permanent posts. Condition 2(v) further provides that their seniority will be as per merit drawn by the Selection Board/DPC based on the date of their joining SSB constables. Condition no.3 of this very order also speaks that their joining would only be accepted after they have communicated their willingness and have tendered technical resignation. It is further significant to note that after the technical resignation has been accepted, the names of the applicants are struck off from the Group Centre from the date from which it is accepted. It is evident from the order dated 19.02.1992 which reads as under:-
Consequent upon exercising his willingness to join the post of Sr. Field Assistant (Veterinary) on transfer basis on the terms and conditions laid down in SSB Directorate Memorandum No.6/SSB/ A2/91(6)4763 dated 27.12.91 and acceptance of terms and conditions laid down in the offer of appointment issued to him by Div. Mgrs No.B-2/90-JK-26-36 dated 02.01.1992, Technical Resignation tendered by Constable Balram Singh Regt. No. 72241 of F Coy of this Group Centre to join the new assignment of Sr. Field Assistant (Veterinary) in J&K Division under the Area Organizer, Sunderbani, accepted with effect from 19 Feb.1992 (Afternoon) and he is struck off strength of this Group Centre from the same date. The terms and conditions of transfer have been further defined in the Memorandum dated 03.10.1996, which read as follows:-
2. (i) The seniority of SFA( Home) will be as per merit drawn by the Selection Board.
(ii) Their pay shall be fixed as per rules applicable and instructions issued by the Govt. from time to time.
(iii) They will be on probation for a period of two years as per SSB (Homeopathy) Services Rules 1972 from the date they assume charge, which may be extended or curtailed at the discretion of the competent authority as per SSB (Homeo) Service Rules.
(iv) They will be required to undergo training courses prescribed for SFA (Homeo) by the department from time to time. Here, persons selected for SFA (Homeo) will be required to be on probation for two years and will have to undergo training courses. From the above, it clearly emerges that the instant appointment is not in the nature of promotion though there is admittedly a change in pay scale and there is also a change in the responsibilities. However, the other ingredients of promotion are found missing and some new conditions have been imposed. For instance, these officers are required to tender technical resignation. This implies that their relation with one service has been severed and they acquired a new seniority as also are required to undergo fresh training. Of course, it is to be admitted that fresh training may be required in cases of promotion also. However, the insistence of technical resignation constitutes the clinching argument that the appointment of applicants as SFAs was not a case of promotion.
11. It is also to be noted that appointment by promotion is one of the recognized modes of appointment and is resorted to frequently in cases where such provisions have been made in the recruitment rules. The one instance that we are able to think of is that of Intelligence Bureau where IB Recruitment Rules, 2004 provided for 10% of the recruitment to be made by the process of appointment on transfer basis i.e. the officers first came on deputation and they were subsequently absorbed. In the instant case, Special Service Bureau (Para Veterinary Staff) Amendment Rules, 1990 provides in para 2 under Column 12 as under:-
Transfer of Field Assistants/Constables of Special Service Bureau with 3 years of service in the grade and having one year practical experience in treatment of sick animals and documentation of Veterinary Hospital/Dispensary and also having undergone:
1. Basic condensed course organized by the special service bureau, known as Veterinary Assistant Course, or
2. Veterinary Stock Assistant Course. These make it clear that the post of SFA is a selection post and not a promotion post. Had it been a promotion post, then the applicants would have no case as they would have got one promotion.
12. Issue No.1 stands decided accordingly.
13. Insofar as the issueno.2 is concerned, which is the core issue, it is necessary to go through the impugned order dated 05.01.2012, which reads as under:-
Some of the employees of SSB joined this department as CT/GD initially in the pay scale of Rs.950-20-1150-25-1400 and subsequently selected to another posts like SFA (Medic)/SFA(Homeo)/SFA (Vety) in the entry grade carrying higher pay scale of Rs.975-25-1150-EB-30-1660 after tendering technical resignation from the post of Constable (GD). This Hqr. has received a number of representations from such individuals requesting for counting their service rendered in the post of Constable (GD) for the purpose of MACPS on the basis of decisions taken during the second meeting o the Joint Committee on MACPS held on 15.09.2010 and circulated vide DOPT OM No.11/1/201-JCA dated 6th Oct.2010.
The matter was referred to the Deptt. Of Personnel and Training (DOPT) through Ministry of Home Affairs (MHA) and it has been clarified that past continuous regular service rendered in a post carrying same pay scale shall be counted towards qualifying regular service for the purposes of MACPS (para 9 of MACPS). In the instant case, past service is in the pay scale of Rs.950-1400 and subsequent appointment is in a higher pay scale of Rs. 975-1660/-. Therefore, past service rendered as CT/GD initially will not be counted for grant of MACPS. The sole reliance in this case has been made on Para-9 of the MACPS, which provides as under:-
9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post. The emphasis here is on Grade Pay. It is an admitted fact that the applicants had been granted MACP from the year 2008 and were enjoying the same till it is curtailed by issuance of the impugned order dated 05.01.2012. Here, it is necessary to take a look at the recommendations of the 6th CPC in respect of both the Constables and the SFAs, which reads as under:-
Sl.
No. Post Present pay Revised/Upgraded scale Pay Band Grade Pay 1 Security Asst. in IB(MHA)/Constable in CPMF as well as uniformed wing of SSB/field Asstt. In RAW/Forest Guard in Forest Deptt.
3050-4590 3200-4900 PB-1 Rs.2000/-2
Sr. Field Asst. in Area Wing of SSB 3200-4900 Not upgraded PB-1 Rs.2000/-
14. From the above, it is clear that though the pay scale for the Constable is Rs.3050-4590 revised to Rs.3200-4900 whereas the pay scale of SFA is Rs.3200-4900, which has not been upgraded with the result that there is parity in scales between the Constable and SFAs as both of them carry the Grade Pay of Rs.2000/-. On the other hand, the Head Constable which was in the pay scale of Rs.3200-4900 has been upgraded to Rs.4000-6000 with Grade Pay of Rs.2400/-. It is significant to note that earlier the pay scale of Head Constable and SFA was the same i.e. Rs.3200-4900. Thus, the SFAs are now having parity with the Constable and not with the Head Constables whose pay scale has been upgraded to higher scale of Rs.4000-6000 with Grade Pay of Rs.2400/-.
15. In this regard, we also look at clarification issued on 06.10.2010 in respect of Item No.16, which provides as under:-
It was observed that any appointment after resignation is to be viewed afresh/direct recruitment (including re-appointment) in the Government. As per the MACPs, the financial upgrdations are to be allowed after completion of 10/20/30 years of regular service from the entry grade. However, in case of Technical Resignations, the past service shall be counted for the purpose of MACP. Respondents have also drawn attention to the Memorandum dated 10.02.2000, which, against the column nos. 4,5 & 6, recites as under:-
The benefits under ACPs are limited to higher pay scale and do not confer designation, duties and responsibilities of the higher post. Hence, the basic criterion to allow the higher ay scale under ACPs should be whether a person is working in the same pay scale for the prescribed period of 12/24 years. Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPs so long as he is in the same pay scale. In other words, past promotion as well as past regular service in the same pay scale, even if it was on different posts for which appointment was made by different methods like direct recruitment, absorption (transfer, deputation, or at different places should be taken into account for computing the prescribed period of service for the purpose of ACPs. Also, in case of absorption (transfer)/deputation in the aforesaid situations, promotions earned in the previous/present organizations, together the past regular service shall also counted for the purpose of ACPs. However, if appointment is made to higher pay scale, either as on direct recruitment or absorption (transfer) basis or first on deputation basis and later on absorbed on transfer basis), such appointment should be treated as direct recruitment and past service/promotion shall not count for benefits under ACPs.
Needless to say, in cases of transfer on administrative ground, involving only change of station within the same department, the service rendered in the same grade at two stations may count for ACPs, as such transfers are within the same organization, ordered generally for administrative/personal in the earlier station counts as eligibility service for promotion.
16. Interpreting this explanation in simple terms, it is the pay scale which is the governing principle. Where a person is appointed on transfer basis in the same pay scale, he would be entitled to ACP benefits but where it is on higher pay scale either as direct recruitment or absorption (transfer) basis for first on deputation and later absorbed on transfer basis, such recruitment shall be treated as direct recruitment and past service would not be reckoned for benefits under the ACP Scheme. However, we observe that the impugned order only relies upon Para-9 of the MACP, which relates to Grade Pay. It is also important to note that this Grade Pay did not exist in the 5th CPC and has only been introduced by the 6th CPC. Therefore, we are constrained to take a view that the Grade Pay being the same as in the post of Constable and the SFA, the applicants are entitled to the benefits of MACP Scheme. However, the example that has been taken here is with regard to the pay scale of Rs.950-1400 and Rs.975-1660 where if we were to take the contents of the Item No.6 of Memorandum dated 10.02.2000, the applicants are not entitled to the ACP benefits as they were in the higher grade.
17. Coming to the third issue, we are of the opinion that even though an incorrect reference appears to have been made relating to Para-9 of the MACPs, the contents of the order relates to the pre-6th CPC pay structure. The parity between the post of Constable and SFA post-01.01.2006 is phenomenon. Prior to this, there was parity between these two posts. It is also an established fact that the applicants had moved from pay scale of Rs.950-1400 to Rs.975-1660. Therefore, the DOP&T is right in disallowing the ACP benefits to the applicants from the due date as provided in the impugned order dated 05.01.2012, though not happily worded.
18. Now, we come to the question of recovery. We do not find any order making recovery on record. However, vide order dated 15.06.2012, this Tribunal stayed the recovery, if any. Here, we take cognizance of the decision in the matter of Shyam Babu Verma versus Union of India [1994 (2) SCC 521] wherein a view had been taken that if the payment has been erroneously made to the employees for no fault of theirs, the same was not liable to recovery or adjustment. This view was modified in Paras Nath Sinha versus State of Bihar and Others [2009 (6) SCC 314] as cited by the Tribunal in the case of Mahabir Singh versus Delhi Police [OA No.2809/2012 decided on 03.04.2013] and Syed Abdul Qadir & Others versus State of Bihar & Others [2009 (3) SCC 475]. However, the position has changed drastically in Chandi Prasad Uniyal & Others versus State of Utrakhand & Others (supra) wherein the Honble Supreme Court has held as under:-
14. We are concerned with the excess payment of public money which is often described as tax payers money which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
This has also been cited in the case of S.K. Chakravorty versus Union of India [OA No. 1183/2011 decided on 13.12.2013]. Under the terms of this order, the employee is under obligation to repay the amount even if it has been paid on account of negligence on part of the authority making the payment and retaining the same would tantamount to unjust enrichment. Therefore, we are conscious of the fact that the recovery is not unjust or without legal authority in terms of this order. However, we are also aware that it causes undue hardship to the applicants.
19. It is an admitted fact that no notice had been issued to the applicants prior to making the recovery. This brings the law of natural justice into play. The convenience of the applicants to make the payment has also to be taken into account. Therefore, while dismissing these OAs, we direct that the respondent authorities should allow the applicants to make representations as to how excess amount paid is to be recovered or adjusted and thereafter taking their convenience into account they may decide to make the recovery of the excess amount. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/