Karnataka High Court
The Principal Controller Of vs L Narahari on 5 June, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
WP No.6193/2015 (S-CAT)
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION No.6193 OF 2015 (S-CAT)
BETWEEN:
1. THE PRINCIPAL CONTROLLER
OF DEFENCE ACCOUNTS,
LOWER AGARAM ROAD,
AGARAM POST,
BANGALORE 560007
2. THE CONTROLLER GENERAL
OF DEFENCE ACCOUNTS,
ULAN BATAR ROAD,
PALAM,
DELHI CANTONMENT 110010
3. THE FINANCIAL ADVISER
MINISTRY OF FINANCE (DEF)
NORTH BLOCK,
NEW DELHI 110001
4. UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
2 WP No.6193/2015 (S-CAT)
MINISTRY OF DEFENCE,
SOUTH BLOCK,
NEW DELHI 110011 ... PETITIONERS
(By Sri:C.SHASHIKANTHA, CGC)
AND:
L NARAHARI
S/O LATE LAKSHMINARAYANA JOIS,
AGED ABOUT 74 YEARS,
(RETD. ASST. ACCOUNTS OFFICER),
NO.26, II MAIN, III PHASE,
I BLOCK, BANASHANKARI III STAGE,
BANGALORE 560085
... RESPONDENT
(By Sri: H.BASAVA RAJU, ADVOCATE)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DT.11.12.2013 PASSED IN O.A.NO.138/2011
PASSED BY THE C.A.T, BANGALORE BRANCH, BANGALORE VIDE
ANNEXURE-H.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.04.2017, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, JOHN MICHAEL
CUNHA J., MADE THE FOLLOWING:
3 WP No.6193/2015 (S-CAT)
ORDER
Whether on re-fixation of pay, the respondent (retired Asst. Accounts Officer) is entitled for the benefit of revised option under FR 22(I)(a)(1) and FR 23 is the question that falls for consideration in this writ petition.
2. We have heard the learned counsel for the petitioners and the learned counsel for the respondent.
3. As the question is required to be examined in the light of the Rules contained in FR 22(I)(a)(1) and FR 23, the said Rules, in so far as they are relevant for the purpose of this petition, are extracted here below:-
"FR 22(I). The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:-
(a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating 4 WP No.6193/2015 (S-CAT) capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or (rupees one hundred only), whichever is more.
Save in cases of appointment on deputation to an ex-cadre post, or to a post on ad-hoc basis or on direct recruitment basis, the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of 5 WP No.6193/2015 (S-CAT) the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad-hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment:
(underlining supplied) Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or rupees one hundred, whichever is more;6 WP No.6193/2015 (S-CAT)
(2) xxx xxx xxx FR 23. The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay:
Provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final."
4. The respondent was appointed as UDC on 24.1.1963. He was promoted as Selection Grade Auditor with effect from 2.7.1979 and he retired as Assistant Accounts Officer in the department of Controller General of Defence Accounts on 31.3.1998.
5. The case of the petitioners is that, initially when the respondent was promoted as Selection Grade Auditor (SGA) with effect from 2.7.1979, he opted for pay scale of Rs.425/- - Rs.640/- and his pay was fixed at Rs.485/- by allowing him the 7 WP No.6193/2015 (S-CAT) benefit of option for fixation of pay on account of increment in lower grade w.e.f. from 1.1.1980. This was communicated to the respondent stating that his pay was being re-fixed at lower stage w.e.f. 2.7.1979 and subsequent promotions to the grade of Senior Auditor, Section Officer (A) and Asst. Accounts Officer, enclosing a revised pay statement from 1/1979 to 31/3/1998. The respondent was given an opportunity to exercise option by 25.9.1998 vide office letter No.AN/P/I/1079/80 dated 5.9.1998. Subsequently, it was clarified that the benefit of option for fixation of pay on promotion to SGA was not admissible in the case of the respondent as the same is applicable only to SGAs in the scale of pay of Rs.425-700/-. In view of the re-fixation of the pay, the respondent submitted a representation to the petitioners. The said representation having been rejected, respondent approached the Central Administrative Tribunal ("CAT" for short) in O.A.No.1019/1998 and the CAT vide its order dated 10.6.1999 quashed the letter dated 5.9.1998 and directed the respondent to submit a fresh representation. Accordingly, the respondent submitted a fresh representation and even the said representation was disposed of vide letter 8 WP No.6193/2015 (S-CAT) dated 29.12.1999. The respondent challenged the said communication before the CAT in O.A.No.96/2000 and the CAT by its order dated 25.8.2000 upheld the action of the petitioners holding that "we are of the considered view that for the purpose of rectifying the initial error and incorporating the correct position, the impugned order dated 29.12.1999 cannot be faulted and is therefore upheld". Subsequently, by letter dated 18.1.2002 the respondent was served with a notice under Rule 70 of CCS Pension Rules wherein his pension was revised from Rs.4,440/- p.m. to Rs.4,240/- p.m. The respondent challenged the said communication before the CAT in O.A.No.148/2002. The Tribunal by its order dated 19.12.2002, allowed the O.A. in part with liberty to the petitioners namely the Principal Controller of Defence Accounts to revise downward pension of the respondent from Rs.4,440/- to Rs.4,240/- but restrained the recovery of excess payment made to the respondent.
6. The respondent submitted a representation to the petitioner No.1 on 6.6.2008 stating that he was unable to exercise his fresh option due to the litigation in the Tribunal and 9 WP No.6193/2015 (S-CAT) he enclosed the fresh option certificate requesting the petitioner No.1 to accept the same by condoning the delay in its submission.
7. The respondent further submitted a representation on 27.6.2008 stating that after rectifying the clerical error committed by the department on fixation of pay on promotion to SGA with effect from 2.7.1979, the subsequent annual increment after revising the pay had been drawn each year in July till July 1986. The petitioner No.1 informed the respondent vide letter No.AN/PAY/1/1079/83/VOL.XIV dated 5.8.2008 that the inordinate delay could not be recommended for condonation as he was well aware of the rule position prior to 25.9.1998 when he opted for filing the case with the Tribunal and although one more opportunity was given to exercise option in 2002 when the court turned down the case, he failed to submit the same. However, after receipt of the judgment in 2002, one more opportunity was granted to the respondent. Accordingly, he submitted a representation dated 5.10.2009. 10 WP No.6193/2015 (S-CAT)
8. The respondent was informed vide letter dated 28.1.2010 that Rule 23 of FR quoted in his representation was applicable only in cases where the pay has been changed. Thereafter, the respondent submitted another representation dated 23.3.2010 to the Financial Advisor and Secretary, Ministry of Finance (Defence) with copies to the petitioner Nos.1 and 2 and sought re-fixation of his pay at Rs.2,000/- from 1.7.1987 as Senior Auditor and at Rs.2,300/- from 1.7.1990 as S.O.(A), after drawal of annual increments which were actually due on 1.7.1987 and 1.7.1990 respectively after re-fixation with effect from 2.7.1979. However, the petitioner No.1 having intimated to the respondent vide letter No.AN/PAY/I/1079/83/L.Narahari dated 28.1.2010 that Rule 23 of FR quoted in his representation does not apply as this clause applies only to those posts whose pay has changed, hence, the respondent once again approached the Central Administrative Tribunal by filing O.A.No.138/2011 seeking the following reliefs:-
a) to quash the letters dated 03.07.2008 (Annexure-A/6), 05.08.2008 (Annexure-A/7), 12.11.2008 (Annexure-A/10), 17.11.2008 (Annexure-A/11), 11.02.2009 (Annexure-
A/12) and letter dated 05.05.2010 (Annexure-A/23) issued by Respondent No.1 and letter dated 25.07.2010 11 WP No.6193/2015 (S-CAT) (Annexure-A/25) issued by Respondent No.2 as void, arbitrary, unjust, unfair and against the interest of justice and equity;
b) to direct the Respondents to rectify and refix the pay of the applicant and draw all consequential benefits with interest at 12% per annum; and
c) to pass any other order or direction as deemed fit including award of cost of this application in the interest of justice and equity.
9. By the impugned order dated 11.12.2013, the Central Administrative Tribunal disposed of O.A.No.138/2011. Paragraphs 9 and 10 of the said order read as under:-
9. The applicant has also submitted that in his case, option is not required to be provided as per FR-23 even though he himself has submitted a revised option for consideration by the authorities after condonation of the delay. If the applicant was of the view that there was no need for option as per rules and his pay should have been automatically fixed with effect from revised date of increment, then he should not have submitted fresh option as need for the same should not have arisen, according to his interpretation. However, without going into this aspect, we are of the view that since the respondents themselves undertook re-fixation of the pay of the applicant after a long lapse of 19 years and that too after his retirement, 12 WP No.6193/2015 (S-CAT) they ought to have given a chance to the applicant for exercising his option that too when he had cited specific medical reasons for such delay. They ought to have taken a liberal view and considered the matter on merits rather than rejecting it on account of delay only.
10. Therefore, on consideration of the entire matter, we deem it appropriate to allow the applicant to exercise his option ignoring the delay. Therefore, we direct that the respondents shall consider the representation of the applicant dated 06.06.2008 containing his options on its own merits and decide the matter of his pay fixation accordingly. It may also be noted that pursuant to the order passed in OA.No.148/2002, the recovery of the excess amount from the pension was not allowed. However, in the event of re-
fixation of his pay as well as the pension entitling him to get additional financial benefits, the amount that would have been recovered at that point of time should also be taken into consideration for adjustment so that the applicant does not get the financial benefits twice.
10. The main contention of the petitioners is that the Central Administrative Tribunal has directed the petitioners to consider the revised option of the respondent without reference to the delay and also on the ground that the petitioners themselves undertook re-fixation of pay of the respondent after 13 WP No.6193/2015 (S-CAT) a long lapse of 19 years and that too after his retirement without giving a chance to the respondent for exercising his option. It is contended that the said reasoning of the Central Administrative Tribunal is erroneous for the simple reason that the Central Administrative Tribunal itself in its order dated 19.12.2002 in O.A.No.148/2002 permitted the petitioners to revise the downward pension of the respondent from Rs.4,440/- to Rs.4,240/- and the said order has become final. Secondly, it is contended that as a matter of fact, after the disposal of O.A.No.148/2002, the respondent has exercised his option as per his letter dated 25.4.2003 (Annexure-G) which fact was not brought to the notice by the Central Administrative Tribunal which has resulted in passing the impugned order providing the respondent to exercise one more option which if allowed to stand will not only nullify the earlier order passed by the Central Administrative Tribunal directing downward pension of the respondent from Rs.4,440/- to Rs.4,240/-, but would also give rise to serious consequences and wide ramification as the pay and pension of many of his seniors who draw lesser pay than him would have to be revised. It is further contended that the 14 WP No.6193/2015 (S-CAT) grievance raised by the respondent having been finally settled by the Central Administrative Tribunal in O.A.No.148/2002 by order dated 19.12.2002, the Central Administrative Tribunal could not have granted an opportunity to the respondent to make a fresh option which is contrary to Rule FR 22(I)(a)(1) and FR 23.
11. These contentions are opposed by the learned counsel for the respondent on the ground that the petitioners themselves having undertaken the revision of pay ought to have given the option to the respondent as provided under FR 22(I)(a)(1). Therefore, the Central Administrative Tribunal was justified in granting an opportunity to the respondent to exercise his option that as the respondent has cited specific medical reasons for the delay in exercising the option. To buttress this argument, learned counsel has referred to the decision of the Hon'ble Supreme Court of India in the case of M.R.GUPTA vs. UNION OF INDIA & Others reported in 1995 AIR SCW 4675 wherein it is held that non-fixation being continuing wrong, question of limitation does not arise. Learned 15 WP No.6193/2015 (S-CAT) counsel has laid emphasis on the following portion of the order which reads as under:-
"Where the employee's grievance was that his fixation of initial pay was not in accordance with the Rules, the assertion being of continuing wrong the question of limitation would not arise. So long as the employee is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to the Rules. It is no doubt true that if the employee's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. Similarly, any other consequential relief claimed by him, such as, promotion, etc, would also be subject to the defence of laches etc. to disentitle him to those reliefs."
12. Having heard the parties and on going through the various representations made by the respondent and the orders passed thereon by the petitioners as well as the previous orders passed by the Tribunal as detailed above, we are of the view that the Tribunal has committed an error by giving another opportunity to the respondent to exercise his option in respect of the re-fixation of the pay. It is evident from the impugned order 16 WP No.6193/2015 (S-CAT) that the Tribunal has proceeded on the erroneous impression that the requisite opportunity as provided under FR 22 was not given to the respondent after the petitioners undertook re-fixation of the pay of the respondent after a long lapse of 19 years; but the records produced before this Court disclose that after the re-fixation of the pay, the requisite opportunity to exercise the option was infact provided to the respondent and the respondent did exercise the said option as evidenced in Annexure-'G' which is extracted here below:
L.NARAHARI No.206, II Main, B.S.K.III Stage, III Phase, I Block, Bangalore-560085.
25.04.2003 To The PCDA(P) Draupadi Ghat, Allahabad.
Sub: Payment of pension & gratuity in respect of Shri.L.NARAHARI Retd.
AAO from CDA Bangalore.
Ref: Your No.GIC/MISC/XXIV/2003, dated 03.04.2003 addressed to CDA Bangalore and copy to me.
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17 WP No.6193/2015 (S-CAT)Respected Sir, In this connection your attention is invited to CDA Agram Post Bangalore-7 letter No.AN/III/Pen/8292795/LN, dated 06.02.03 addressed to the PCDA(P), Legal Cell, Draupadi Ghat, Allahabad-211014 (copy is enclosed for ready reference) & to CGDA Legal Cell, New Delhi & DPDO, Dickenson Road, Bangalore-42 & copy to me.
As the CAT Bangalore in their O.A.No.148/2002, ordered for implementation of reduction of pension from Rs.4440/- to Rs.4240/- for life with effect from 19.12.2002 from the date of judgment and not from 20.06.2001 as indicated in the letter. Therefore kindly issue necessary amendment to the P.P.O/LPC for reduction of pension to Rs.4240/- from 19.12.2002 instead of 20.06.2001 & intimate to me & CDA Bangalore, DPDO & others immediately.
Thanking you, Yours faithfully, Sd/-
(L.NARAHARI) Retd. AAO
13. The respondent having exercised the option as above, in our opinion, is not entitled for exercise of revised option in the matter. The Tribunal therefore was not justified in affording another opportunity to the respondent to exercise fresh option on the purported ground that the revision of pay had 18 WP No.6193/2015 (S-CAT) been effected after a lapse of 19 years at the instance of the petitioners. The respondent who was aware of the right conferred to him under FR 22 and having exercised the said right cannot now turn around and contend that he should be provided with a fresh opportunity to submit his representation merely because the representations submitted by him were not favourably considered by the petitioners. FR 22 does not provide for second or revised option. Therefore, the impugned order in so far as permitting the respondent to exercise revised option and the direction issued to the petitioners to consider his representation dated 6.6.2008 afresh, in our opinion, is contrary to FR 22 and therefore, cannot be sustained. That apart, the above direction runs counter to the earlier order passed by the Central Administrative Tribunal in O.A.No.148/2002 directing downward revision of the pension of the respondent from Rs.4,440/- to Rs.4,240/-. This order has attained finality and has been given due effect by the petitioners. The said order cannot be nullified by permitting the respondent to re-open the issue. Therefore, on considering the overall facts and circumstances of the case, we are of the view that the impugned 19 WP No.6193/2015 (S-CAT) order passed by the Tribunal and the consequent direction issued to the petitioners to consider the representation of the respondent is liable to be set-aside and accordingly, it is hereby set-aside.
The petition stands allowed accordingly.
Sd/-
JUDGE Sd/-
JUDGE Bss.