Central Administrative Tribunal - Hyderabad
I Manmadha Rao vs M/O Home Affairs on 16 April, 2018
oe ® IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD OA. No O21002862017 M A No SO7/2017 in O.A No 02 VOO286/2017 ~--
MA No.398/2017 in C.A.No.021/00286/2017 Date of Order: (4 04.2018.
Date of CAV:04, 04.2018 > Between :
LManmadha Rao, 9/0 Venkataiah, aged about 53 yTs, Croe:Head Constable, Ofo National Investigating Agency (Deputation), Mio Home Affairs, Govt. of India, No, 1-10-68/8, Alamelu Heights, Chikoti Gardens, Begumpet, Hyderabad-500 01 6. ... Applicant And
1. Union of India, tep.. by the Secretary, Mio Home, Government of India, South Block, New Delhi-110 G11.
3 The Director General, National Investigating Agency, Mio Home Affairs, Govt. af India, 7 Floor, NDCC-II Building, Jai Singh Road, New Dethi- 110 001.
4. The Superintendent af Police, National Investigating Agency, Mio Home Affairs. Govt. of India, House No. 1-10-6878, Alamelu Heights, Chikoti Gardens, Begumpet, Hyderabad-500 O16. _.. Respondents Counsel for the Applicant _) MrM.CJacob rep.. by Mrk RK. V.Prasad Counsel for the Respondents «.- Mr V. Vinod Kumar, SnCGsc CORAM:
THE HON ' BLE MRS. MINNIE MATHENM, MEMBER (ADM) The applicant, who was 4 Head Constable under the Government of Telangana. joined the National Investigating Agency (NIA), Hyderabad, on deputation basis, for a period of 3 years as Per the Annexure A-Il office order dated 08.08.2012. Thereafter, his deputation was extended for two more years. His willingness was also sought for continuing in NIA on deputation for one more year, vide Annexure. A-[fl letter dated 05.10.2016.
9 The applicant submits that as per Para 4.1 of the DOPT OM dated 47.06.2010, an employee appointed on deputation may alect to draw either the pay in the scale of pay of deputation/foreign service post or his hasic pay in the parent cadre + deputation (duty) allowance thereon + personal pay, if any and such option shall be exercised within one month from the date of joining. Para 8 of the OM states that the deputation allowance within the same siation shall be 5% of the basic pay subject to a maximum of Rs.2000/- and in other cases 10% of the basic pay with maximum of Rs.4000/-. The applicant opted to continue with the pay in the parent cadre with deputation duty allowance. Accordingly, he was granted the same by the respondent authorities.
3. While so, the 3¢ yespondent yide orders dated 23.03.2017 reviewed the admissibility of deputation allowance in accordance with the DOPT OM dated 47.06.2016 and Para 10 of the OM dated 99.09.2010 and found that 9 deputationisis were ineligible for deputation allowance. As such, recovery of overpaid amount of deputation allowance was ordered vide Annexure. A-V office order dated 23.03.2017. The applicant is placed at Serial No.9 in the sald office order and the reason cited for admissibility of deputation allowance is shown as "granted SPP-IP.
4. The applicant avers that although the office order dated 23.03.2017 was issued based on the 2™ respondent proceedings dated 30.08.2016, the 3° respondent has not forwarded the letter of the 9% respondent or the OM dated 17.06.2010. The applicant submits that after joining in the State Police as Constable, he was subsequently promoted as Head Constable. On completion of 16 years and 24 years of service, the State Government granted him Special Pay (SPP) land H. Accordingly, he was drawing SPP-H] from 07.10.2009. He giso submits that he worked in CBI on deputation from 2009 to 2011 and was granted deputation allowance during the sald period as per the guidelines issued by the DOPT. Curther, the recovery ordered is without any notice and is thus iMegal, arbitrary and unsustainable in law. it is contended that the authorities should have given reasonable apportunity to him befare issuing such orders and that there has been violation of the principles of natural justice and fair play. Further, the OM s referred to have No application in his case and making any change without notice is arbitrary and Kable to be interdicted. He also relied on the orders of the Honbie Supreme Court in State of Punjab v. Rafiq Masih in Civil Appeal No,.11527/2014, dated 18.12.2014 in whic it was neid that "recovery from employees belonging to Class itl and {V service or Group-C and D service is impermissible in law. On these grounds, the applicant has prayed for satting aside the impugned order of racovery of the deputation allowance sanctioned to him from 04.08.2012 till the date of filing of the OA.
5. From the reply staternent of the respondents, it Is seen that there is no serious dispute on the hasic facts of the case. The respondents, however, pointed out that while exercising his option to draw his pay In the existing scale of his substantive post held by him in his parent department, the applicant had aiso given an undertaking to refund the excess arnount of pay and allowances, if any, which is found at a later stage , see gees 4 : 2 ey Ree i of his deputation in NIA. Thus, it wast the applicant's knowledge that during review of pay fixation, the necessary recovery of overpayment of arrears will be made in due course as per the instructions on the subject.
6 The respondents also submit that on the basis of the fast pay certificate received on 24.08.2012, the applicant's pay Was drawn as per the Telangana State pay in the Special Promotion Post (SPP) scale. However, the pay scale of the ex-cadre post of Head Constable in the Central Government is Pay Band Rs.§200-20200/- + Grade Pay of Rs. 2400/- (pre-revised scale), whereas the applicant prior to joining on deputation had already drawn financial upgradation in the SPP scale of Rs. 10900-300- 31950/- in his parent department. The respondents state that the above SPP scale is the higher scale of the pay scale of the ex-cadre post/deputation post held by him oO deputation. Thus, as per Para 10 of DOPT OM dated 69.2010, the applicant is nat entitled to draw deputation {duty} allowance in the SPP scale of the parent department during his deputation period. He has joined the NIA in the rank of Head Constable irrespective of the fact that he was drawing higher scale of pay in the parent departrnent than the pay of the ex-cadre post, which was offered to him. As the drawal of the deputation allowance on 8 higher scale of pay is contrary to the orders of the Government of india and also discriminatory and violative of the Article 14 of the
- Constitution of India, orders have been issued propasing the stoppage of recovery of excess drawn deputation {duty} allowance vide offee order dated 23.3.2017 in accordance with the rules on the subject. Thus, the recovery of excess payment of deputation {duty} allowance ig on account of 4 review of all such cases done in accordance with the rules, Hance, there is ne violation of any rules on the subject.
at i Ley 5 respondents that the applicant did not prefer any
7. it is also submitted by appeal through proper channel fo the Head of Department and this OA is premature and is unsustainable.
8. The respondents further contend that the applicant's submission that he had received deputation (duty) allowance while working in CBI is not relevant in the present case. They also submit that before recovery of deputation allowance priar intimation had been given to all the affected employees including the applicant vide office order dated 23.03.2017 and that this was 3 reasonable opportunity for him fo have submitted a representation against the proposed action. However, he did not | avail of any such opportunity.
9. 'The respondents also pointed out thal the reliance of the applicant on the judgment of the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) is misplaced and will not apply to him. They state that the applicant himself has given an unconditional undertaking to refund the excess amount of salary paid, if any found at a later stage. In the matter of High Court of Punjab & Haryana& Others v. Jagdev Singh in Civil Apepal No. 3500/2016, the Hon'ble Supreme Court had held that an employee |S hound by the undertaking given py him. Thus, in terms of the above judgment, the applicant is bound to refund the excess payment of deputation allowance in reasonable instalments. They also relied on the judgment of the Hon'ble Supreme Court in Chandi Prasad Uniyal \. Uttarakhand, in Civil Appeal No.s899/2012 <SLP No.30856/2011} dated 47.08.2012, and in Union Territory Chandigarh & Others v. Gurcharan Singh & Others in Civil Appeal No 9873/2013, dated 01.77.2013, in which the Hon'ble Apex Court had held that "if any amount has been paid due to mistake, the mistake must be rectified and any excess payment rade due to wrongfirreguiar pay fixation can always be recovered'.
40. It is also submitted that even without drawing of deputation allowance, the applicant having exercised his option for higher scale of pay in the parent cadre, is drawing higher emoluments. Thus, the applicant does not have any valid grounds for drawing the deputation allowance and no sustainable reasons have been given against the recovery of excess payment
44. Heard the learned counsel on both sides and perused the record, 42, The learned counsel for the Applicant argued that the Annexure.R-7 OM dated 09.09.2010, which has been cited for ordering recovery of deputation allowance has no applicability at ali to the applicant. He argued that the said instructions are in respect of a Government servant on deputation earning an upgradation under the MACP Scheme in the parent cadre. He argued that the gaid instructions are applicable in respect of Government servant on deputation, who eams an upgradation under the MACP in the parent cadre and it has been clarified that in respect of such Government servants, they would not be entitled to deputation allowance. in the instant case, however, the applicant is a State Government employee, who has came to the Central Government and there is no MACP Scheme existing in the State Government. Therefore, the reliance of the respondents on the aforesaid Clause in the office memorandum relating to the MACP Scheme has no relevance as far as the applicant is concerned. He also drew attention to the Clauses relating to the restrictions on the drawal of the deputation allowance as mentioned in Para 8 (1) {o). according to which, the only restriction is that the basic pay from time to fine + deputation allowance shail not exceed the maximum of the Pay Band-4 (Rs.67000 + Grade Pay of the post held on deputation) In case the Grade Pay of the post held on deputation is up to Rs, 10,000/-. He painted out that the applicant never reached Rs 67,000/-. Hence, the restrictions on deputation allawance are not exceeded in his case.it was also pointed out that there are no instructions of proceedings equating the SPP with the MACP Scheme So as fo come to a conclusion that SPP Is equivalent fo MACP and that the applicant would come within the ambit of Para 10 of the Annexure.R-7 office mernorandum. Further, the applicant is a Group-C amployee and as per the Rafiq Masih judgment, recovery from Group-C employees is impermissible in jaw.
43. The learned Standing Counsel, on the other hand, highlighted the fact that if the applicant had continued in his parent department, he would have drawn a total emoluments of only Rs 67,779/-, whereas On account of the deputation allowance on the higher pay scale {SPP}, he was drawing an amount of Rs.88,359/- on account of an inadvertent mistake. The Hon'ble Supreme Court has held that It is open to the employer to rectify such mistakes and order recovery of amounts, which are paid in pursuance of such mistakes. He also placed heavy reliance on the judgment of the Hon'ble Supreme Court in High Court of Punjab & Haryana & Others v. Jagdev Singh, wherein the Hon'ble Supreme Court had held that an officer who has furnished an undertaking fo refund any payment, which may be In excess while opting for the revised pay scale, is bound by such undertaking. As the applicant has given an unconditional undertaking, there is no ground for interfering in the impugned order of recovery of the excess drawn deputation allowance from the applicant.
44. After considering the rival submissions and the material on record, itis sean that Annexure.R-2 OM of the DOPT dated 17.6.2010 governs the regulation of pay, deputation (duty) allowance, fenure of deputation/foreign service and other ferms and at pointed on deputation/foreign service, has.
2 . aos the right to exercise his option to. draw either the pay in the scale of pay of deputation/foreign service post or his basic pay in the parent cadre + deputation (duty) aliowance thereon + personal pay. if any, and such option is to be obtained by the borrowing authority within one month from the date of joining the ex-cadre post and ordinarily the option once exercised shall be final except in certain circumstances, which have been explained in Para 44 Para 6 also deals with the rates of the deputation allowance.
45, From the above, itis evident that even if the pay in the parent cadre and the pay in the borrowing organization are diferent, the employee has the right to exercise his option for a pay scale, which would be beneficial to him. ft is also clear that if the employee chooses to continue in the basic pay in the parent organization, he would be eligible for drawal of deputation allowance + personal pay, if any. in the instant case, the applicant has chosen to continue to draw his pay in his parent department and was accordingly sanctioned deputation allowance as per Para 4.1 of the DOPT OM dated 17.06.2070.
46. The respondents have ordered the recovery of the deputation allowance of the applicant along with 9 others vide Annexure.A-V office order dated 23.3.2017. Against the name of the applicant, fhe reasop for inadmissibility of deputation allowance iS shown as "Granted Sspp-if'. The office order states as follows:
"The follawing personnel who are on deputation are found ineligible for Deputation Allowance for ihe reasons and penod mentioned against each and it is ordered fo recover the overpaid amount of deputation allowance accordingly."
This office order is purportedly issued in pursuance of the NIA Headquarters letter dated 30.09.2016, which has been issued after review of the deputation allowance in
--y, ad :
a --
accordance with the DOPT OM aated 47.08.2016 and Para 10 of DOPT OM dated 99.2010, Without furnishing the NIA Hars letter or its contents and without issue of any show cause notice and merely by making 2 cryptic remark that the grant of SPP-H was the reason for the admissibility of the deputation allowance, the recovery has heen ordered. The respondents would contend that the impugned order is a prior intimation to the affected amployees including the applicant. This contention is however unacceptable as the language used makes it clear that the respondents have erdered the recovery without giving him an opportunity fo represent against the proposed action of recovery. This action is in violation of the basic principles of natural justice and the impugned order is fable to be sef aside on this ground alone.
47. The respondents have applied Para 10 of the DOPT OM dated 9.9.2010, which was issued by way of clarifications on the implementation of the MACP Scheme, which was introduced on 49.05.2009, for ordering recovery. Para 10 makes it clear thal # a Government servant on deputation earns upgradation under MACP Scheme in the parent department, he would not be entitled for deputation (duty) allowance on the pay and emoluments granted under MACP. The applicant has come on deputation from the Government of Telangana, where there is no MACFP in operation. The respondents would contend that the SPP is a financial upgradation scheme, which is akin to the MACP. and that in view of this, the applicant would not be entitled to the deputation allowance. There is nothing on record to show that the SPP of the Government of Telangana is equivalent to the MACP. There is also nothing on record to show that the applicant has earned the SPP while he was on deputation to NIA. The respondents have, on their own, accepted his application for deputation knowing fully well that he was already in a higher pay scale than the scale of pay of the deputation post. When aoe F { é ee: i g foe \ 10 the DOPT OM dated17.6.2 10 ts deputationists to continue in the pay scalecof the parent cadre and when thete-are no orders to equate the SPP with MACP, there does not appear to be any valid ground for ordering recovery of the deputation allowance. At any rate, even if such recovery has fo be ordered, there has to be a specific clause that employees wha are coming on deputation from State Government and who have been conferred the benefit of a financial upgradation under any scheme of the State Governments would not be eligible for the drawal of the deputation allowance. In the absence of any such instruction, the application of Para 10 of Annexure. R-7 OM, which specifically deals with MACP Scheme, does not seem to be in order,
18. The respondents have contended that the recovery can be effected in view of the undertaking given by the applicant to refund the excess amount of salary paid, if found at a later stage in audit during his deputation to NIA, and have relied on the dagdev Singh's judgment to buttress their contention. Ordinarily, whenever there is a Pay Revision and the Revised Pay Rules are notified, there would be a possibility of incorrect fixation and therefore undertakings for refund of excess, # any, are taken from the employees. When the Haryana Superior Judicial Service Revised Pay Rules 2003 were implemented Shri Jagdev Singh had given an undertaking to the effect that he would be liable fo refund any excess payment made to him. The Hon'ble Apex Court held that Shri Jagdev Singh while onting for the benefit of the revised pay scale was aware that a future refixation or revision may warrant an adjustment of excess payment and had upheld the recovery. In the instant case, there has been no pay revision which has necessitated a pay refixation. The applicant has come on his own scale in his parent department as provided for in the Rules governing deputation.
Therefore, the facts and circumstances herein are different. The respondents could not 11 have been unware of the higher pay drawn by him in his parent department while taking him on deputation to NIA. Further, when the Rules provide for opting for pay in the parent cadre + deputation allowance, the applicant has exercised his option in a manner which is beneficial to him. It has also to be observed that the applicant's contention that he belongs to Group-C and that recovery from Group-C employees is impermissible as per Rafiq Masih judgment has not been controverted. Therefore, on this ground also, he is entitled to succeed.
18. in the result, the OA i§ allowed by quashing and setting aside the impugned order to the extent of the applicant.
20. In the circumstances cited in MA.No.397/2017, the prayer for deletion of Respondent No.1 is allowed,
21. In view of the disposal of the main QA, M.A.No.398/2017 for vacation of interim orders stand dismissed.
2%. The parties shall bear their own casts.