Central Administrative Tribunal - Gauhati
Shri Ajit Ch Hazarika vs M/O Water Resources on 20 September, 2017
Ms,Gopa Sutradhar, AddL.C.G.S.C.
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No.040/000062/2015
Date of Decision: Je 1S } do)
Shri AY Chanedr Hazarika
PETITIONER (S) /APPLICANTS
Mr.M.Chanda ADVOCATES) FOR THE
PETITIONER (S}/APPLICANT(S}
~ Versus -
Union of India & Others RESPONDENT{(S}
ADVOCATE(S) FOR THE
RESPONDENT (S)
CORAM:
HON'BLE MOHD HALEEM KHAN, ADMINISTRATIVE MEMBER
HON'BLE MR.S.N.TERDAL, JUDICIAL MEMBER
1.
: Whether reporters of local newspapers Jf |
-- may be allowed to see the Judgment ? Yes/No
Whether to be referred fo the Reporter or nol? Yes/No
: Whether the Judgment is fo be circulated to other fo
_ Benches of the Tribunal? Yes/No
Judgment pronounced by Member (J)
CENTRAL ADMINISTRATIVE TRIBUNAL, GUWAHATI BENCH,
GUWAHATI.
Original Application No.040/000062 of 2015
Date of Order: This the Day of 2.0] 09/ 2017.
HON'BLE MOHD HALEEM KHAN, ADMINISTRATIVE MEMBER
HON'BLE MR.S.N.TERDAL, JUDICIAL MEMBER
_ Shri Ajit Ch.Hazarika,
_ Son of Late Rasho Dhar Hazarika
_ Office of the Regional Director
Central Ground Water Board
__ Ministry of Water Resources,
_ NLE.Region, Betkuchi
Opp.ISBT, Guwahati-781035 Applicant
: By Advocate Mr.M.Chandra
"versus-
4. The Union of India,
| Represented by the Secretary,
Ministry of Water Resources,
Govt. of India
New Delhi
2. The Director (Admn)
Central Ground Water Board
NH-IV, Bhujal Bhawan,
Faridabad, Hariyana
Pin Code-121001
3. The Regional Director,
| Central Water Board
Ministry of Water Resources
N.E.Region, Betkuch
Opp.ISBT, Guwahati-781035
4, The Secretary
To Government of India
Ministry of Personnel,
Public Grievances & Pension
Department of Personnel & Training)
North Block, New Delhi
| : 5. The Chairman,
Central Ground Water Board
NH-4, Faridabad
Hariyana-121001,
Respondents
_ By Advocate Ms.Gopa Sutradhar, Addl.C.G.S.C. .
ORDER
Per Mr.S.N.Terdal, Member (1):
This O.A. is filed seeking relief of setting aside the Office : Order No.11-20/2009-Sci.EStt./725 dated 28.1.2015 and order | No.1965/PF/A-7/CGWB/NER/Estt/75 dated 9.2.2015 and for a declaration that the Applicant is entitled to Grade Pay of Rs.5400/- in PB-2, with effect from 1.9.2008. The facts of the case are as follows:-
2. The Applicant was initially appointed as Draftsman Grade II bs direct recruits on 02.06.1976 in the scale of pay of Rs.330-560/-
in the office of the Regional Director, Central Ground Water Board, Guwahati. While working as Draftsman Grade-l], the Applicant 6g hey, hong ri applied for recruitment examination to the post of Draftsman Grade-l, as an in- service candidate. He came out successfully in the said examination and was appointed in the same office as Draftsman Grade-| in the pay scale of Rs. 1600-2660/- w.e/f. | 18.11.1986. He was further promoted to the post of Chief | Draftsman in the pay scale of Rs. 5000-8000/- w.e.f. 12.5.1998. The | said post of Chief Draftsman was subsequently classified as Group 'BY Gazetted with the pay scale of Rs. 6500-200-10,500/-. : Consequently, his pay was refixed in upgraded scale of pay of Rs.6500-10,500/-, w.ef. 11.1996 and again on account of implementation of 6 CPC his pay was fixed in the grade pay of Rs.4,600/- in PB-il i.e. Rs.9,300-34,800/-. By an office order dated 23.11.2009, the Applicant was granted 2" MACP benefit in the grade pay of Rs.4,800/- w.e.f.01.09.2008 in PB-Il of Rs.9,300- 34,800/- and he was further granted the benefit of 3° MACP on completion of 30 years of service in the grade pay of Rs. 5400/- aed 01.09.2008 in PB-tl of Rs.9,300-34800/-. The above said 30 years of service was counted for the purpose of 3" MACP from the date of his initial appointment as Draftsman Grade-ll on 02.6.1976. Now, by the impugned order dated 28.1.2015, the financial up gradation of 3rd MACP granted to the Applicant w.ef. 01.09.2008 was withdrawn stating that for the purpose of MACP, his services : are required to be counted w.e.f. 18.11.1986 instead of 2.6.1976 as : per Para 9 of Annexure-| of the MACP Scheme dated 19.5.2009, the relevant portion of the impugned order is extracted below:-
"As per the DoPT OM dated 19.5.2009 para 9 (Annexure-l}) which stipulates that "regular service for the purpose 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/reemployment basis." As such his services for financial upgradation under MACP has to be counted w.ef. 18.11.1986 as Draftsman Grade-| instead of 2.6.1976. Since he has not completed 30 years regular service from the date of Joining In a direct entry grade, hence he is not eligible for 3 Financial upgradation under MACP granted to him w.e.f. 1.9.2008 as stated above.
A such the 3 Financial upgradation under MACP granted to Sh.A.C.Hazarika, Chief Draftsman w.e.f. 1.9.2008 vide this Office Order No.445 of 2009 issued under letter of even number dated 23.11.2009 in PB-2 Rs.9300- 34800/- with the Grade Pay Rs.5400/- is hereby withdrawn. Other terms and conditions of the above Office Order will remain unchanged."
By the consequential order dated 9.2.2015, his pay was re-fixed by withdrawing 3" financial upgradation/MACP.
: 3. Heard Mr.M.Chanda, fearned counsel on behalf of the Applicant and Ms.Gopa Sutradhar, learned AddIl.C.G.S.C. for the Respondents, perused the pleadings and the documents produced by both sides.
4, The Applicant has filed additional statement of facts that was also taken into account.
5. The Applicant has however, submitted that the service | rendered by the him from 2.6.1976 has been taken into account for all service purposes including pension and that he was appointed on 02.6.1976 to the direct entry grade of the post of Draftsman Grade-ll, as such, his services rendered from 02.06.1976 should be | considered for the purposes of MACP benefits. Considering the same, the Respondents had earlier rightly granted him the 3 financial upgradation under the said Scheme. In the circumstances, withdrawal of the same holding that his direct entry grade for purposes of MACP is Draftsman Grade-l and services would be | counted from 18.11.1986 is not justified. The Respondents have 'supported the impugned withdrawal order dated 18.1.2015 referring to paragraph 9 of Annexure-! of the MACP Scheme. They : have also stated in the written statement that the Applicant has ecu oa a : not challenged the legality and validity of said Para-9, as such he is not entitled to get relief as prayed for. The said paragraph 9 is extracted below:-
'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 Inthe new post."
in the said paragraph 9 regular services Is defined to commence : from the date of joining of the Applicant to the post in direct entry : grade. This definition of "Regular Service" is valid only for the : purpose of MACP. This definition of 'Regular Service" does not affect other aspects of service conditions or the benefits that the +t wo \\ ; soe ; f i ?
PS 3 : employee is entitled to. In the circumstances, the Applicant is not : entitled to get the relief prayed for in the O.A.
6. in the additional statement of facts, the Applicant has submitted that even If his services are counted from 18.11.1986, when he was directly recruited as Draftsman Grade-l, he was entitled to the benefit of 3° MACP in the Grade pay of Rs.5,400/- | w.e.f, 18.11.2016. He further submitted that in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), the Respondents be directed not to effect any recovery of the amount paid to him as consequence of granting of 3° MACP w.e.f. 1.9.2008 as the said benefit was granted to him without any misrepresentation of facts on the part of the Applicant and the Applicant is a retired official | now. In this regard, the learned counsel for the Applicant brought to our notice paragraph 18 of the said judgment of the Hon'ble : Supreme Court which is extracted below:-
"48, itis not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of the entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference summarise the om 5 oe following few situations, wherein recoveries by the employees, would be impermissible in law.
{1} Recovery from the employees belonging to Class Hl and Class IV service (or Group C and Group D service}.
{i} Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(I) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iV) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(¥V} In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
7 in view of facts of the case and law laid down by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) , the Respondents are directed not to recover any amount paid to the Applicant on account of \ --
> . oF grant of 3° MACP w.e.f. 1.9.2008.
_(S.N.TERDAL) (MOHD HALEEM KHAN} JUDICIAL MEMBER ADMINISTRATIVE MEMBER
8. in the result, the O.A. is dismissed. However the Respondents are directed not to recovery any amount as a : consequence of granting 3™ MACP in grade pay of Rs.5400/- w.et,
-1.9.2008.
Q, No order as to costs.
LM