Central Administrative Tribunal - Bangalore
P G Sateesh Kumar vs Central Silk Board on 20 March, 2025
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O.A.Nos.170/235 & connected matters/
2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NOs.170/00235/2024,
170/547/2024, 170/238/2024, 170/276/2024 and 170/284/2024
Order Reserved on: 13.3.2025
Date of Order: 20.03.2025
CORAM:
HON'BLE MR.JUSTICE B.K SHRIVASTAVA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
O.A Nos.235/2024
Shri. Shankar S Kotrannavar, 61 ½ years
Deputy Director (Insp) (Retd) Central Silk Board,
Ministry of Textiles, Govt. of India,
Bangalore-560068. Presently residing at,
21/4/6 7th Cross, Hanumagiri Layout,
Chikkalasandra,
Bangalore-560 061. ...Applicant
(By Advocate Shri.Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk),
Ministry of Textiles, Government of India,
New Delhi-110 011.
2. The Member Secretary, Central Silk Board,
Ministry of Textiles, GOI, Madiwala,
Hosur Road, Bangalore-560068
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3. The Director [Finance], Central Silk Board,
Government of India, Ministry of Textiles,
Madiwala, Hosur Road,
Bengaluru - 560 068. ......Respondents
(By Advocates Shri.N.Amaresh for R 1 to 3)
O.A 547/2024
Shri. SHIV GOVIND, 63 years Slo Late Shiv Mangal
Deputy Director (Insp) (Retd) Central Silk Board,
Ministry of Textiles, Govt. of India,
Bangalore-560068.
Presently residing at, House No.21,
Sector-28, Faridabad-121 008,
Haryana. ......Applicant
(By Advocate: Mr.Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk), Ministry of Textiles,
Government of India, NEW DELHI-110 011.
2. The Member Secretary, Central Silk Board,
Ministry of Textiles, GOI, Madiwala, Hosur Road,
BANGALORE-560068
3. The Director [Finance], Central Silk Board,
Government of India, Ministry of Textiles,
Madiwala, Hosur Road,
BENGALURU - 560 068. ....... .Respondents
(By Advocate Shri.N.Amaresh for R1 to 3)
O.A 238/2024
Shri. P.G. SATEESH KUMAR, 62 years
Deputy Director (Insp) (Retd)
Central Silk Board, Ministry of Textiles,
Govt. of India, Bangalore-560068.
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Presently residing at, #135, PGE Complex,
Main Road, CHILLUR-577230, Nyamathi Taluk,
Davangere District, Karnataka. ......Applicant
(By Advocate: Mr.Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk), Ministry of Textiles,
Govt. of India, Udyog Bhavan, NEW DELHI-110 011.
2. The Member Secretary,
Central Silk Board, Ministry of Textiles,
GOI, Madiwala, Hosur Road, BANGALORE-560068
3. The Director [Finance],
Central Silk Board,
Ministry of Textiles, Govt. of India,
Madiwala, Hosur Road,
BENGALURU - 560 068. . ....... .Respondents
(By Advocate Shri.N.Amaresh for R1 to 3)
O.A 276/2024
Shri. B.Chandan Kumar, 62 years
S/o. Late B. Someswara Rao,
Deputy Director (Insp) (Retd)
Central Silk Board, Ministry of Textiles,
Govt. of India, Bangalore-560068
Presently residing at, No.3-13-137/1/203,
II Floor, Vishnu Teja Residency,
Dattatreyanagar, Mallapur,
Via Sri Durga Malleswara Swamy Temple,,
Nacharam, Mallapur,
Hyderabad-500 076.
Telengana State. ......Applicant
(By Advocate: Mr.Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk),
Ministry of Textiles, Govt. of India,
Udyog Bhavan, New Delhi-110 011.
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2. The Member Secretary,
Central Silk Board, Ministry of Textiles,
GOI, Madiwala, Hosur Road,
Bangalore-560068
3. The Director [Finance],
Central Silk Board, Ministry of Textiles,
Govt. of India, Madiwala, Hosur Road,
Bengaluru - 560 068. . ....... .Respondents
(By Advocate Shri.N.Amaresh for R1 to 3)
O.A 284/2024
Shri Subburaj. A aged 61 years
S/o, Arthanari S.
Deputy Director (Insp) (Retd).
Central Silk Board,
Ministry of Textiles, Govt. of India, Bangalore-560068.
Presently residing at: Flat No.85,
S.K. Nagar, RPS Hospital back side, Seelanaickanpatty,
Salem-636 201 (Τ.Ν) ......Applicant
(By Advocate: Mr.Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk), Ministry of Textiles, Govt. of India,
Udyog Bhawan,
New Delhi-110011.
2. The Member Secretary,
Central Silk Board,
BTM Layout, Hosur Road, Madiwala,
Bangalore-560068.
3. The Director (Finance)
Central Silk Board,
BTM Layout, Hosur Road,
Madiwala,
Bangalore-560068. . ....... .Respondents
(By Advocate Shri.N.Amaresh for R1 to 3)
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ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
These Original Application Nos.235/2024, 547/2024, 238/2024, 276/2024 and 284/2024 are taken together as the reliefs claimed in all the Original Applications are identical as, in all the cases, the applicant therein is aggrieved by the common order dated 13.2.2023 of the respondent department and pursuant to which further orders were passed to reduce their pay as well as for order of recovery. Further, in all these cases, the applicants have asked for pay parity at par with their same junior, Shri.Divakar Y.Bhat. For the purpose of clarity, we take the facts of the case in O.A No.235/2024 of Shri.Shankar S.Kotrannavar. Original Application No.235/2024 has been filed under Section 19 of the Administrative Tribunals Act 1985 claiming the following reliefs:
" (i) ISSUE A WRIT OF CERTIORARI or any other order quashing the Impugned Office Orders vide letters No.CSB-17(47)/86-
ES.I.Vol.IV Dated 13.02.2023 & 18.01.2024 and Order No. CSB/1(29)/SAL.GEN/21-22- BS Dated 07.03.2024 passed by the 2nd Respondent which have been produced as ANNEXURE-A4, A7 & A11 as the said orders are illegal, unjust, arbitrary, capricious, irrational and violate of Articles 14, 16, 21 and 39(d) of the Constitution of India, apart SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 6 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE from being contrary to the principles of rules of natural justice.
(ii) ISSUE A WRIT OF MANDAMUS directing the respondents to step up the pay of the applicant at par with his junior as per rules laid down besides stopping alleged unlawful recovery forthwith from the pension of the applicant.
(iii) Pass any such other orders or issue such other directions as this Hon'ble Tribunal deems fit in the facts & circumstances of the case in the interest of justice and equity."
2. The reliefs are claimed on the grounds as mentioned in paragraphs 5(a) to (g) of the Original Application. The brief facts as narrated by the applicant are that the applicant being aggrieved by the impugned orders No.CSB-17(47)/86-ES.I. Vol. IV dated 13.02.2023 & 18.01.2024 and Order No. CSB/1(29) /SAL. GEN/21-22-BS dated 07.03.2024 of the Respondents (Central Silk Board) who have reduced the pay as originally fixed vide their letter No. CSB- RO(B)/111/66-89.ES.I/Vol.III Dated 02.03.2021, consequent upon financial up-gradation under MACP/Promotion. Further, the Respondent Board did not accede to his request for stepping up of pay at par with his junior Shri. Divakar Y. Bhat, in accordance with DOPT O.M.No.4/3/2017-Estt (Pay-1) dated 26.10.2018.
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3. The Applicant is a pensioner of the Respondent Board. During the service with Respondent Board, the Applicant was granted third financial up-gradation under MACP scheme w.e.f. 17.06.2016 in the pre-revised scale of Pay Band PB-3 Rs. 15600-39100 + Grade Pay Rs.7600/- vide order No.CSB-63(55)/2010-ES.II.Vol.II dated 25.10.2016 and his pay was fixed on accrual increment w.e.f. 01.07.2016 with DNI on 01.07.2017 vide letter No.CSB-RO(b)/iii/66- 89-ES I Vol.II dated 04.11.2016 under FR 22(1)(a) (1). Consequent on implementation of VII CPC, his pay was fixed at Rs. 96900/- w.e.f. the date of next increment i.e. on 01.07.2016 with DNI 01.07.2017 based on his option as per the provisions under CCS (Revised Pay) Rules, 2016 vide order No. dated 10.07.2017(Annexure-A2).
4. Subsequently, the respondent Board vide their letter dated 13.02.2023 has withdrawn the pay fixation made vide order dated 10.07.2017 stating that exercising option to switch over to the 7th CPC from the date of next increment i.e. 01.07.2016 is not admissible to the employee as the date of increment falls after the date of promotion and the date of next increment for the post held on 01.01.2016 has no relevance for option, as per Proviso 2 to Rule 5 of CCS (Revised Pay) Rules, 2016. Accordingly, the pay of the applicant SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 8 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE was unilaterally fixed w.e.f. 01.01.2016 in the revised pay scale (7th CPC) and refixed from 01.07.2016 on financial upgradation (MACP) by denying the benefit admissible under Proviso 1 to Rule 5 of CCS (RP) Rules, 2016 thereby resulting in reduction of his pay from Rs.96900/- to Rs.94100/- which will affect reduction of pension as well.
5. Another humiliation to the Applicant was that his junior Shri. Divakar Y Bhat of the same cadre was also similarly granted third financial upgradation w.e.f. 07.07.2016 (Applicant upgraded on 17.06.2016) and thereby drawing more pay on consequent on pay fixation. The applicant soon after the revised pay fixation, reduction thereof and learning about the pay anomaly made a representation dated 23.02.2023 to rectify the pay anomaly quoting the relevant rules, which was declined.
6. An intimation No.CSB-17(47)/86-ES.I/Vol.IV dated 18.01.2024 came to be issued by the Respondent Board stating that consequent upon financial upgradation w.e.f. 17.06.2016, initially applicant had opted to switch over to the revised pay structure viz. CCS (RP) Rules, 2016, w.e.f. 01.07.2016, which was allowed SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 9 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE inadvertently. It is also informed quoting that as per clarification published in the Readers' Forum of Swamys news of October 2021 on the proviso 2 to Rule 5 of CCS (Revised Pay) Rules, the option to switch over to the Revised Pay structure shall be admissible from the date of grant of MACP only and not from DNI 01.07.2016. Based on this, the pay fixation made was reviewed and it was treated to have been switched over to the revised pay structure w.e.f. 01.01.2016 which was beneficial to him, It was also intimated that the pay fixation done w.e.f. 01.01.2016 in the revised pay structure and refixed from the date of MACP i.e. 17.06.2016 with DNI 01.01.2017 which was communicated vide intimation dated 13/14/02.2023 is in order. Accordingly, respondents have now resorting to recover the alleged excess amount of Rs. 3,08,520/- from the monthly pension of the applicant, which was already started to recover @ Rs. 12,475/-p.m. from March 2024 pension. The forceful re-fixation of pay done by the respondents resulted in drawing of pay less than his junior in the same cadre.
7. Despite Applicant's plea to the Respondent Board vide his representation dated 20.02.2023 requesting to rectify the pay fixation by stepping up at par with his junior and not to effect any recovery of SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 10 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE the alleged excess amount stated to be paid from the monthly pension, they went ahead for recovering from pension even though it falls under category (ii) to (iv) of the Hon'ble Supreme Court's judgment dated 18th December 2014 in case of State of Punjab & Ors vs. Rafiq Masih (White Washer) etc. in CA No.11527 of 2014 (Arising out of SLP I No.11684 of 2012). That the DoPT vide its OM dated 02-03- 2016 has also reiterated the position as contained in the said judgment. The orders of DoPT are presumed as issued with the approval of the Hon'ble President of India. This OM of 2016 clearly states that recovery cannot be made from a retired employee, or employees who are due to retire within one year.
8. The respondents have started forceful recovery from the pension of the applicant without rectification of pay fixation as prayed for and revising the pension which is void and unsustainable under the law. Hence, aggrieved by the orders passed by the Respondent Board the applicant has approached this Tribunal for reliefs as mentioned above.
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9. On notice, the respondents have filed their reply statement and a rejoinder has been filed by the applicant. Further an additional reply statement has also been filed by the respondents.
10. On 17.4.2024 inter-alia other things, this Court also ordered that in the meantime, the operation and implementation of the notice/order dated 7.3.2024 (Annexure A11) issued by the Deputy Director (Administration & Accounts) Central Silk Board, Bengaluru is stayed till the next date of hearing and the same was extended from time to time.
11. The case came up for final hearing on 13.3.2025. Shri.Sampangi Ramaiah for the applicant and Shri.N.Amaresh for respondents 1 to 3 were present and heard.
12. Inter-alia other things, this Tribunal recorded the following in the order sheet on 13.3.2024:
"Basically, the question was asked regarding Rule 5 Proviso 2 and certain options which were given for those who were having some sort of increment between 01.01.2016 to 25.07.2016 if they had option to elect from the date which they want their 7th Pay Commission increment implemented. And as per that the applicant had not specifically elected for 01.01.2016, but had elected for the 2nd SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 12 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE option. Why then the department did not act on their option, but instead go ahead to give them 7th Pay Scale from 01.01.2016 only. The Department only emphasised the proviso 2 of the Rule 5 which specifically mentioned that the option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band and Grade Pay or scale, because of which it could not be implemented as such. At this juncture, the applicant's counsel did not press further this line of his argument and ground made out. The applicant's counsel emphasised only that his case is fully covered by the case of Union of India vs. C.R. Madhava Murthy & Anr wherein the junior person's pay becomes more than the senior person because of the grant of ACP and in this case it is not ACP but MACP grant to the junior which is causing the anomaly. Hence, he requested that the pay parity can be provided and the pay of the senior can be upgraded as per that of his junior. For which the respondents are unable to show any better case law, except telling that they have some SLPs pending in the Apex Court. The respondents further emphasised the stated condition of the MACP Circular which basically says that if due to MACP there are pay anomalies when the junior gets more pay than the senior person no pay parity and upgradation can be claimed. But both parties agree that this was never accepted by the Hon'ble Supreme Court in the said cited case of C.R. Madhava Murthy, the only difference being that in the said case it was ACP and here it is MACP."
13. We have carefully gone through the entire records and considered the rival contentions of both parties.
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14. The case of the applicant is based on two distinct grounds. One is on pay parity with his junior Shri.Divakar Y Bhat based on the rulings of the Hon'ble High Court of Karnataka in the case of Shri.C.R.Madhava Murthy and Another v. Union of India and Others in Writ Petition No.33038 & 33039 of 2016 (S-CAT). The said order was challenged before the Hon'ble Apex Court in Civil Appeal No.2087-2088 of 2011, reported in (2022) 6 SCC 183 wherein on 6.4.2022 the Hon'ble Apex Court upheld the said Hon'ble High Court's judgment. Further, the said Hon'ble apex court's judgment was taken up in Review Petition (C) No.OD No.2034/2023 in Special Leave Petition (C) Nos.2087-2088 of 2022, which was dismissed on 21.2.2023. Hence, the said Hon'ble High Court decision became final. And in terms of the said decision, several orders have been passed by various co-ordinate benches of the Central Administrative Tribunal. The said order provides pay parity in the case of ACP and the various citations from this Court where the order of Shri.C.R.Madhava Murthy's case mentioned supra was relied on and was also accepted in the cases of MACP as the conditions laid down are one and the same in ACP and the MACP Circulars (O.A Nos.619/2023, 649/2023, 34/2024 and 651 of 2023).
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15. Also, the case of the applicant was that the implementation of proviso 2 to Rule 5 of Central Civil Service (Revised Pay) Rules 2016 and re-fixation of the pay vide letter dated 13.2.2023 for the applicant was not in order and cannot be sustained in the interest of justice and equity. The applicant also submits that when the applicant's pay was fixed earlier vide letter dated 4.11.2016 and subsequent revision vide letter dated 2.3.2021 in accordance with Proviso 1 to Rule 5 of CCS (RP) Rules, 2016, the proviso 2 to Rule 5 of CCS (RP) Rules, 2016 was also existing. Now at this juncture, after the retirement of the applicant that too, after more than 6 years of pay fixation, the interpretation of proviso 2 to Rule 5 is brought and pay is reduced. The procedure that has been followed by the second respondent is in violation of the fundamental rights as guaranteed under Article 21 of the Constitution of India. It is also a violation of DoPT O.M dated 2nd March 2016.
16. The applicant further states that he is a retired employee, and he is earning his livelihood from the monthly pension. The pay of the applicant has been reduced based on Swamy's news interpretation, but the same is not in accordance with law and rules. Further, the alleged excess recovery amount of Rs.3,08,520/- stated to be paid is also not SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 15 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE correct. When that is the case, the question of recovering the alleged excess amount from the monthly pension of the applicant is without any justification. In the case of any excess amount paid by the respondents owing to their mistake, recoveries by the employers would be impermissible in law under clause 4(ii) & (iii) of DoPT O. M No.18/03/2015-Estt (Pay-I) dated 2nd March 2016. Therefore, the question of recovering the amount from the monthly pension of the applicant is illegal, arbitrary and capricious and the same is violative of Articles 14, 16 and 21 of the Constitution of India, besides DoPT orders under ibid.
17. From the pleadings, it is evident that the applicant is taking three distinct grounds. First is the interpretation of Rule 5 of CCS (RP) Rules, 2016 which, inter-alia, other things also provided that those who were getting increments from 1.1.2016 to 1.7.2016 that an option to elect was provided to such employees in the proviso 2 to Rule 5, "as to from which date they wanted their 7th CPC pay scale to be implemented". And accordingly the applicant had given his choice which is filed as Annexure R-4 by the respondents at page 78 of the reply statement which mentions "Form of Option (See Rule 6(2))". When clearly, the applicant had given the second option and noted SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 16 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE that he thereby elected the revised pay structure not with effect from 1st January 2016, the respondents will have to satisfactorily explain, as to why they did not accept his choice and how they forced him to accept the other alternative not elected by him? From the pleadings of the respondents, it clearly comes out that they had assumed that the Department had discretion to reject (the respondents have failed to show us any rule under which they had such discretion to reject the validly elected choice of the applicant under Rule 6(2), and force the applicant to accept any alternative choice) the applicants elected choice, which was in Annexure R-4; as the Department considered such choice as incongruous with the Rule 5 of CCS (RP) Rules, 2016 particularly explanation I. The rule read the following:
"Drawal of pay in the revised pay structure.- Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure:
Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between Ist day of January, 2016 and the date SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 17 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be Explanation 1.-
The option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band, and Grade Pay or scale Explanation 2.-
The aforesaid option shall not be admissible to any person appointed to a post for the first time in Government service or by transfer from another post on or after the Ist day of January, 2016, and he shall be allowed pay only in the revised pay structure.
Explanation 3.-
Where a Government servant exercises the option under the provisos to this rule to retain the existing pay structure of a post held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that pay structure under Fundamental Rule 22, or under any other rule or order applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing pay structure in respect of the permanent post on which he holds a lien or would have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher."
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18. Simple reading of the above rules shows clearly, which both parties agree, that provided that, "a government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure." The rules further provided that, "in cases where a government servant has been placed on a higher grade pay or scale between Ist day of January 2016 and the date of notification of these rules (25.07.2016) on account of promotion or upgradation, the government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be". Rule 6 spoke of the exercise of option and, accordingly, in the proforma, the applicant had given his option. And initially, the respondents accepted his option and implemented his choice accordingly, and the applicant was satisfied that there was no pay anomaly.
19. However, subsequently, it appears that, based on the referred Swamy's clarification, which is filed as Annexure A-8, the said order of the applicant was withdrawn and substituted by the impugned SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 19 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE orders which were adverse to the applicant. The said Swamy's clarification inter-alia other things mention the following:
"Exercising of option to switch over to seventh CPC and DNI:
We are subscribers of your books for past 10 years and need clarification on pay fixation:
3rd MACP due: 19-3-2016 Option exercised by the employee on 1-7-2016 with DNI 1-7-2017 As per OM from the Ministry of Finance 4- 21/2017-IC/E-IIIA, Ministry of Finance, Department of Expenditure, dated 29-10-2019, the employee is asking for increment from 1-1-2017.
This is contradictory from 7th CPC Revised Pay Rule 2016, Page Number 65, Illustration B. (He has opted for revised pay structure subsequent 7th CPC also on 1-7-2016 Kindly clarify, whether he is eligible for next increment from 1-1-2017.
Assistant Director (Finance and Accounts), ESI Corporation, Regional Office (Kerala), Panchdeep Bhavan, North Swaraj Round, Thrissur-680 020.
According to the Proviso 2 to Rule 5 of CCS (Revised Pay) Rules, 2016 (Cat. No. C-66 - Bilingual Edition 2020), where a Government servant has been placed in a higher grade pay or scale between 1-1-2016 and the date of notification of the Rules, ie, 28-7-2016 on account of Promotion or Upgradation, the Government SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 20 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE servant may elect to switch over to the Revised Pay structure from the date of Promotion or Upgradation, as the case may be.
Explanation 1 under the Role ibid states that the option to retain the existing pay structure under the provisos to this Rule shall be admissible only in respect of one existing Pay Band and Grade Pay or Scale.
In view of above, option to switch over to the Revised Pay structure shall be admissible front the date of 3rd MACP (i.e) on 19-3-2016 only. Hence exercising of option to switch over to the 7th CPC from DNI 1-7-2016 is not admissible to the employee as the date of increment falls after the date of promotion and the DNI for the post held on 1-1-2016 has no relevance for option.
However, the employee shall be eligible for 1st increment in the promotional grade on 1-1-2017 on switching over to Seventh CPC on 19-3-2016, after completion of six months' period.
20. Simple reading of the above shows that it is not a clarification by the Government of India, but by a private publisher which cannot be relied on in isolation. And reliance on the same by the respondents in their pleadings as well as in the impugned orders is not convincing and proper. When we asked if there is any clarification from the Government on the same, the respondents only mentioned the notification of the Rule CCS (RP) Rules, 2016, which was gazetted on 25th July 2016 wherein Rule 5 the Explanation-1 mentioned that, SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 21 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE "the option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band, and Grade Pay or scale". And the respondents emphasized that if the applicant's requested not to give him the new pay of 7th CPC effective from 1.1.2016 is to be implemented as per his choice, this particular explanation-1 becomes non-implementable; as the said option to retain the existing pay structure under the provision under this rule will constitute more than one Grade Pay change.
21. In such case then before us an issue arises as to if the additional explanation-1 in the said rule is in congruity with the proviso 2 of the Rule 5 which gives the right to the applicant to make a choice of the date of implementation of his new pay scale which part of the Rule 6 will take precedence over the other? It is a fact that in the case of the applicant both the conditions laid down in the "proviso" to the Rule 5 is fulfilled, i.e., "provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure", and "provided further that in cases where a Government servant has been placed in a SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 22 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE higher grade pay or scale between 1st day of January 2016 and the date of notification of these rules (25.7.2016) on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be".
22. The question arises as to how the Department could unilaterally interpret and say that, within Rule 5 of the said Rule, Explanation 1 takes precedence over the other two provisos of Rule 5 which are an integral part and parcel of the Rule. Why not in favour of the applicant that two provisos should prevail, and the explanation becomes redundant? As a general principle, if, within the Rule in the same section, there are explanations which are contrary to the main content of the Rule, the rules shall prevail over that explanation. In the Rule 5 the two provisos are the integral part of the rule, and the explanations are mere explanations and elaborations. Hence, from this angle, there is also a case for the applicant and the respondents should not have relied the provisions of the explanation 1 and based on the clarification by the Swamys publication with the heading "Exercising of option to switch over to Seventh CPC and DNI:" in its III. Readers' Forum in October 2021 edition, taken a decision to withdraw the pay fixation SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 23 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE benefit already extended to the applicant vide their order dated 4.11.2016 vide letter No.CSB-RO(B)/III/66-89-ES I Vol.II under FR 22(1)(a)(1), consequent of VIIth CPC, and his pay was fixed at Rs.96900/-. The respondents should have asked for clarification from the DoPT, which is the nodal Ministry for implementation of the said Pay Rule, and only after obtaining their clarification they should have proceeded further to make any changes in the pay of the applicant so fixed.
23. We do not find anything on record which may be considered as a clarification given by the DoPT on this anomaly, which the Department decided to correct based on the clarification in the Swamy's Reader's Forum discussions. The Department was asked at the time of arguments to clarify the same, and the respondents could not explain, show or convince us that there is any clarification on this from DoPT. The respondents were asked about the contents of the Rule, which is filed in the additional reply statement on page 118 of the O.A file as Annexure R-7. And it is very clear that the applicant has a case as per the Rule 5, Proviso 2 which are the integral part of the Rule dated 25.7.2016 named as Central Civil Service (Revised Pay) Rules, 2016 although if simultaneously explanation 1 had to be SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 24 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE implemented then explanation 1 was incongruous with these electives which were provided in the main content of the Rule.
24. In our considered opinion, when the explanation 1 was in conflict with the two provisos of the main Rule 5, the explanation 1 would go first and not the two provisos to the Rule, which are integral part of the Rule. Hence, we are of the considered opinion that the applicant has a case and the respondents should not have relied on Swamy's publication dated October 2021 in the Readers Forum and gone ahead to recalculate the pay of the applicant unilaterally without going through the process of giving liberty to be heard adequately to the applicant. Hence, the orders impugned are liable to be set aside.
25. Furthermore, we find that even if we agree that the case of the applicant was hit by the explanation-1 of Rule 5 of the CCS (RP) Rules, 2016, dated 25th July 2016, then also as his junior Shri.Divakar Y.Bhat who was not affected by the explanation 1 of the said rule, due to which, the junior Sri.Divakar Y.Bhat got a better deal as per his choice, the applicant will have a legitimate claim for pay parity and upgradation, as we will explain ahead. The implementation of the 7th CPC was postponed for Shri.Divakar Y.Bhat from 1.1.2016 to the date SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 25 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE of his increment based on MACP. Clearly, based on that MACP implementation to the Junior Shri.Divakar Y Bhat the pay anomaly arose and the junior started getting more salary than the applicant who was senior, with effect from the date of the implementation of the 7th CPC which is on 7.7.2016. The comparison of pay fixation of the applicant, Shri.Shankar S Kotranavar versus his junior, Shri.Divakar Y Bhat is given in the reply statement which is reproduced here.
Effective Shankar S Kotranavar Divakar Y Bhat
date
Basic Pay Grade Pay Benefits granted Basic Grade Benefits
pay pay granted
31.12.2015 27,250 6,600 - 27,250 6,600 -
01.01.2016 88,400 -- Switch to 7th CPC 27250 6,600 Drawn/contin
(Level-11) ued in Pre-
17.6.2016 88,700 -- Granted 3rd MACPS & 27250 6,600 revised Pay
placed in the upgraded Scales (6th
Pay Scale in Level-12 CPC)
next higher cell
01.07.2016 94,100 -- MACPS Pay re-fixed 28270 6,600 Increment
with one increment & granted in
one notional pre-revised
increment pay scales (6th
CPC)
07.07.2016 94,100 -- -- 29,320 7,600 MACPS
granted &
pay fixed
under 6th
CPC with
one notional
increment.
07.07.2016 94,100 -- -- 96,900 -- Switched to
7th CPC
01.01.2017 96,900 -- Annual increment 96,900 --
01.07.2017 96,900 -- 99,800 -- Annual
increment
01.01.2018 99,800 -- Annual increment 99,800 --
01.07.2018 1,02,800 Annual
increment
01.01.2019 1,02,800 Annual increment
01.07.2019 1,05,900 Annual
increment
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O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE 01.01.2020 1,05,900 Annual increment 01.07.2020 1,09,100 Annual increment 01.01.2021 1,09,100 Annual increment 25.06.2021 1,09,100 -- Promoted to the post 1,09,100 -- --
of Deputy Director (Inspection)(No pay fixation) 01.07.2021 1,12,400 -- Annual increment 01.01.2022 1,12,400 -- Annual increment 1,12,400 -- -- 21.01.2022 1,12,400 -- -- 1,12,400 -- Promoted to the post of Deputy Director (Inspection) (No pay fixation) 01.07.2022 1,12,400 -- -- 1,15,800 -- Annual increment 31.07.2022 1,12,400 -- Retired frm Board's 1,15,800 service on Superannuation 31.12.2022 -- -- -- 1,15,800 -- Retired from Board's Service on Superannuati on
26. Clearly, in this particular case of the applicant, the anomaly is because of the conflicting provisions in Rule 5 of the CCS (RP) Rules 2016, as there was conflict between 'explanation 1' and the two 'provisos' in the Rule and due to which the junior Divakar had his MACP increment fixed and switch to 7th CPC effected on 07.07.2016 that he started getting more pay than his Senior Shri.Shankar S Kotranavar, the applicant.
27. On this count, in our considered opinion the case of the applicant in this O.A is identical to the case of Shri.C.R. Madhava SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 27 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE Murthy and Another v. Union of India and Others in Writ Petition No.33038 & 33039 of 2016 (S-CAT) wherein the Hon'ble High Court of Karnataka passed an order on 31.7.2021 and had given relief of pay upgradation based on a pay anomaly arising due to the grant of ACP benefits to the junior, who started getting more pay. The only difference between the said case and the case of the applicant is that there was grant of ACP in Shri.C.R.Madhava Murthy's case and in this case it is the grant of MACP. It is a fact that both in the case of ACP as well as MACP, similar provisions were there regarding pay anomaly and pay upgradation of senior, and the condition number 8 in ACP circular reads that:
"The financial upgradation under the ACP scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay scale under the ACP scheme"
28. But in spite of this condition, which had been placed before the Hon'ble High Court and the Hon'ble Supreme Court in the C.R.Madhava Murthy's case supra, the Hon'ble Court decided to give pay parity to the senior with reference to the junior who was getting more pay due to the grant of ACP to the junior. And it is a fact that there are similar conditions in MACP scheme also. Due to SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 28 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE intrinsic similarities between the ACP and MACP Schemes, the reliefs were granted by our co-ordinate bench in O.A Nos. 69/2023, 493/2022 and 525/2022 to the applicants therein. Hence, in this case also, we are of the considered opinion that the facts of the case in hand are similar, and the applicant is eligible to get relief as per the C.R.Madhava Murthy's case discussed supra. We are of the considered opinion that the applicant in this case has a much better case than other cases referred. They have suffered a lower pay grade than their junior due to infirmities in the way the Rule 5 of CCS (RP) Rules 2016 dated 25.7.2016 is framed, wherein its explanation was incongruous with the two provisos which were in favour of the applicant.
29. In the Hon'ble High Court's judgment dated 31.7.2021 in Writ Petition No. 33038 & 33039 of 2016 (S-CAT) in the case of Shri.C.R.Madhava Murthy and Another v. Union of India and Others which was challenged before the Hon'ble Supreme Court in Civil Appeal Nos.2087-2088 of 2022, reported in (2022) 6 SCC 183 and on 6.4.2022, the Hon'ble Apex Court upheld the said High Court's judgment. Further the said apex court's judgment was taken SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 29 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE up in Review Petition (c) No.OD No.2034/2023 in Special Leave Petition (C) Nos.2087-2088 of 2022, which was dismissed on 21.2.2023. The Hon'ble Supreme Court observed the following in Review Petition:
" Delay condoned.
Application for hearing of the Review Petitions in the open court is rejected.
Having carefully gone through the Review Petitions, the judgment under challenge and the papers annexed therewith, we are satisfied that there is no error apparent on the face of the record, warranting reconsideration of the judgment impugned.
The Review Petitions are, accordingly, dismissed. "
30. The applicants in all the five cases have claimed similar reliefs to the said C.R.Madhava Murthy's case quoted supra and have asked for the benefit of stepping up of their salary. The case of C.R.Madhava Murthy was decided by the Central Administrative Tribunal in O.A Nos.813/2014 and 814/2014 on 4.1.2016. The crux of the judgment is as follows:
" 7. Paragraph 8 of the ACP scheme states that financial upgradation shall be purely personal to the employee with no reference relevance to his seniority. There shall be no additional financial upgradation for an SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 30 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE employee on the ground that his junior employee in the same grade has got a higher pay scale under the ACP Scheme. The DOPT's OM No.F.No.35034/1/97-Estt(D) (Vol.IV) dated 10.02.2000 affirms that the ACP scheme does not affect the seniority of an employee. There is no nexus between the salary drawn and the responsibilities assigned.
8. We have also carefully examined the numerous judgments cited by the applicant. The ACP scheme and related instructions are in harmony with the said judgments. The judgment of the Hon'ble Apex Court in Commissioner and Secretary to Government of Haryana & Ors v. Ram Sarup Ganda & Ors (Civil Appeal No.3250 of 2006) categorically states that ... Rule 5 quoted above specifically provides that these ACP scales may not be granted to Government employees who have already got at least two financial upgradations within 20 years of service. The tabular statement in paragraph 5 of this order conclusively proves that the applicants got regular promotions unlike their juniors and have no locus standi to question either the ACP scheme or other instructions relevant to the said scheme.
9. The OAs are therefore dismissed. No costs. "
31. Once this was challenged before the Hon'ble High Court of Karnataka, vide its judgment dated 31.7.2021 in Writ Petition No. 33038 & 33039 of 2016 (S-CAT) in the case of Shri.C.R.Madhava Murthy and Another v. Union of India and Others, the Hon'ble High Court ruled the following:
SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 31 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE "5. F.R. 22 provides for stepping up of pay and the Government of India, Ministry of Finance issued an Official Memorandum dated 04.02.1966 for stepping up of pay of juniors. The relevant extract of F.R. 22 and the order issued by the Government of India is reproduced as under:
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior.-(a) As a result of application of FR 22-C. [Now FR 22 (1)(a)(1)].-In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 32 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
[G.I., M.F., O.M., No.F.2(78)-Ε. III(A)/66, dated the 4th February, 1966.]"
The aforesaid Office Memorandum provides for stepping up of pay in similar circumstances.
6. Otherwise also, the controversy involved in the present case stands concluded on account of the judgment delivered by a Division Bench of Punjab and Haryana High Court in the case of Union of India & Others vs. Central Administrative Tribunal, Chandigarh rendered in CWP.No.12894/2010, wherein in similar circumstances, the Division Bench has held that in any case, a junior is drawing more pay on account of up-gradation under the ACP Scheme or on other grounds, the pay of a senior has to be stepped up. The relevant extract of the order passed by the Division Bench is reproduced as under:
"The petitioner had initially joined the office of the Chief Commissioner appellant No. 2 as Lower Division Clerk on 25.11.1980. Thereafter he was promoted as Upper Division Clerk on 2.8.1988 and then as Tax Assistant on 30.11.1990. He was eventually promoted as Inspector, Central Excise and Custom and joined as such on 29.3.1993. One Ram Chand Sharma joined as Inspector by way of direct recruitment on 31.3.1993 and is apparently junior to the petitioner. In the seniority list of Inspectors his name figures at serial No. 268 whereas that of the petitioner is at SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 33 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE serial no.206. The petitioner approached the Tribunal with the grievance that in pursuance of Assured Career Progression Scheme (ACP) dated 9.8.1999 the aforesaid Ram Chand Sharma has been given the benefit of upgradation on completion of 12 years of service in the pay scale of Rs.7500-12000 whereas the petitioner continues to work in the pay scale of Rs.6500- 10500 although he is senior to Ram Chand Sharma. He made representation which was turned down vide letter dated 6.3.2008 (A.1). The petitioner had placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Commissioner and Secretary to Govt. of Haryana and others v. Ram Sarup Ganda and others 2007(2) SCT 476. The respondent took the view that judgment in Ram Sarup Ganda's case (supra) was judgment in persona and not a judgment in rem and on that basis has rejected the claim.
However, the Tribunal set aside the order passed by the respondents and granted the petitioner the relief of stepping up of pay and bringing it at par with the pay of his junior but it has refused to grant him the benefit of giving pay scale which is being drawn after the grant of ACP to his junior. Similar view was taken by the Tribunal in the case of Harcharan Singh Sudan v. Union of India (OA No. 97 CH of 2007) decided on 23.12.2008 which in turn is based on the judgment of Hon'ble the Supreme Court in Ram Sarup Ganda's case (supra).
Having heard the learned counsel we are of the considered view that the order passed by the Tribunal for stepping up the pay of the petitioner and bringing it equivalent with the pay of his junior Shri Ramesh Chand Sharma does not suffer from any legal infirmity. There is no provision in the ACP Scheme that the petitioner SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 34 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE is entitled to the same pay scale as is given to his counter part who is a direct recruit. Moreover, the petitioner had already earned three promotions and therefore would not be entitled to any other benefit in the shape of higher pay scale. Accordingly, the writ petition fails and the same is dismissed."
7. A Special Leave Petition in SLP (Civil) No.7278/2011 was also preferred against the judgment delivered in the case of Union of India & Others vs. Central Administrative Tribunal (supra) and the same has been dismissed by the Hon'ble Supreme Court by order dated 02.05.2011. A similar view has been taken by the Hon'ble Supreme Court in the case of Commissioner and Secretary to Government of Haryana and Others vs. Ram Sarup Ganda and Others reported in (2011) 15 SCC 772. The Hon'ble Supreme Court in the aforesaid case in paragraphs 18 to 20 has held as under:
"18. By the impugned judgment, the High Court has held that the respondents are entitled to get the ACP scales that are applicable to Group C post, but the Rules, as such, do not provide for that. The Rules say that if there are already two upgradations, then the employees concerned are not entitled to the benefit of ACP scales. Nevertheless, if ACP scales are higher, they are certainly entitled to the ACP scales at the starting point. The date of giving such ACP scales is the date of entry into the service and though these respondents are entitled to get ACP scales and get fixation of the ACP scales as applicable to Group D employees and in case there are anomalies to the effect that they receive lesser pay than their juniors working in the same cadre/post, such senior government servants are entitled to SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 35 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE step up of their salary to get it on a par with the salary which is being received by their juniors.
19. In the result, all the appeals are partly allowed. The appellants shall revise the pay scales of the respondents. In case of any anomaly, if the employees who, on fixation of ACP scales, are in receipt of lesser salary than their juniors in the same cadre/post, then their salary shall be stepped, up accordingly. Revised orders shall be passed within a period of two months of the receipt of the copy of this order by the Government. However, if upon revision of the pay scales, any employee is liable to refund any amount, the Government shall not insist on refund of such amount. If any employee is entitled to get any amount by way of pay revision, the said amount shall be made available to him within a period of six months from the date of receipt of the copy of this order by the Government.
20. Consequently, the appeals are partly allowed with no order as to costs."
8. In the light of the aforesaid judgments, the seniors who are admittedly placed above in the upgradation list than their juniors are entitled for stepping up of pay. A person who by virtue of his excellent service record is promoted to the next higher post is certainly superior so far as his service record is concerned than the person who does not get promotion under the normal course and is granted upgradation under the ACP Scheme or under other schemes of upgradation.
9. Resultantly, the writ petition is allowed. impugned order passed by the Tribunal is set aside. The respondents are directed to step up the pay of the petitioners keeping in view the pay scale which has been granted to the juniors from the date they have started drawing lesser pay than SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 36 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE their juniors. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. No order as to costs."
32. Further, Union of India challenged the same before the Hon'ble Supreme Court in Civil Appeal Nos.2087-88 of 2022, reported in (2022) 6 SCC 183, decided on 6.4.2022, the Hon'ble Apex Court upheld the said High Court's judgment as follows:
"5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior (a) As a result of application of FR 22 C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 141961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 37 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR22C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer." The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
[G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".
6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.
7. In view of the above and for the reasons stated above, the present appeals deserve to be dismissed and the same are dismissed, accordingly."
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33. Further, when the said apex court's judgment was taken up in Review Petition (c) No.OD No.2034/2023 in Special Leave Petition (C) Nos.2087-2088 of 2022, the Hon'ble apex court did not give any relief to the petitioners, Government of India and others and upheld its earlier order and the order of the Hon'ble High Court of Karnataka in the case of Shri.C.R.Madhava Murthy and Another v. Union of India and Others. Hence, the contention of the applicants is that they are similarly placed and are entitled for the same reliefs as was granted in the case quoted supra. We are in agreement with the contention of the applicant.
34. Further, as in this case the applicant was given relief earlier, by the respondents, and then same was withdrawn subsequently based on Swamy's clarification, and further recovery was ordered and initiated. The applicant has cited the case of the State of Punjab and Ors. v. Rafiq Masih (White Washer) etc. in C.A. No.11527 of 2014 (Arising out of SLP I No.11684 of 2012) wherein the Hon'ble Court on 18.12.2014 decided a bunch of cases in which monetary benefits were given to employees in excess of their entitlement due to unintentional mistakes committed by the concerned competent authorities, in SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 39 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information/misrepresentation/fraud, which had led the concerned competent authorities to commit the mistake of making the higher payment to the employees. The employees were as innocent as their employers in the wrongful determination of their inflated emoluments. The Hon'ble Supreme Court, in its judgment dated 18th December 2014 ibid, has, inter-alia, observed that it is 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 their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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 SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 40 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE 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.
35. The applicant has asserted that his case is covered under condition No.2 that "Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery," and the respondents have not been able to controvert that the applicant is not covered by the said Apex Court's judgment. DoPT O.M also provides for relief based on the cited judgment.
36. We are of the considered opinion that the applicant has clearly established that he is covered by the judgment of the Rafiq Masih's case supra regarding the recovery ordered from him. Hence, the same has to be set aside and any recovery already made from the applicant has to be returned to him.
37. As at the time of the argument, the applicant did not press for the first line of his ground about the anomalies in the rules (particular SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 41 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE Rule 5 of CCS (Revised Pay) Rules, 2016, so we are not taking into account the same and setting aside the impugned orders and reverting the pay fixed at Rs.96,900/- w.e.f 1.7.2016, as the applicant has only claimed pay parity to his junior Shri.Divakar Y Bhat based on the rulings of the Hon'ble High Court of Karnataka in the case of C.R.Madhava Murthy and Another v. Union of India and Others in Writ Petition No.33038 & 33039 of 2016 (S-CAT), hence we are inclined to give him relief accordingly. Hence, we pass the following order:
The Original Application Nos.235/2024, 547/2024, 238/2024, 276/2024 and 284/2024 are allowed. In the lead case we set aside the impugned Office Orders at Annexures A-4, A-7 and A-
11, No.CSB-17(47)/86-ES.I.Vol.IV Dated 13.02.2023 & 18.01.2024, and Order No. CSB/1(29)/SAL.GEN/21-22-BS Dated 07.03.2024.
Correspondingly impugned orders in other cases are also set aside.
The applicant is entitled to pay parity to his junior, Shri.Divakar Y Bhat as the junior's salary became higher on 7.7.2016 and accordingly, the applicant, Shri.Shankar S Kotrannavar's salary, may be revised from time to time and he must get all the consequential benefits. Further, as in terms of the case of Rafiq Masih (supra), there SHAINEY VIJU SHAINE CAT Bangalore Y VIJU 2025.03.21 17:00:55+05'30' 42 O.A.Nos.170/235 & connected matters/ 2024/CAT/BANGALORE cannot be any recovery from the applicant. Any amount so recovered from the applicant, may be returned to the applicant.
This order shall be complied with by the respondents expeditiously and in no case shall it be later than 8 weeks from the date of receipt of a certified copy of this order, failing which the respondents shall be liable for 6% interest thereon.
All associated M.As, if any pending, are disposed of accordingly. No costs.
Sd/- sd/-
(DR. SANJIV KUMAR) (JUSTICE B.K.SHRIVASTAVA)
MEMBER (A) MEMBER (J)
/SV/
SHAINEY VIJU
SHAINE CAT
Bangalore
Y VIJU 2025.03.21
17:00:55+05'30'