Central Administrative Tribunal - Delhi
Kishor Kumar Makwana vs Union Of India Through on 25 August, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.4330/2013 Reserved on: 06.05.2015 Pronounced on: 25.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Kishor Kumar Makwana, S/o late Shri Dhiraj Lal, Economic Officer, Planning Commission, Room No.540, Yojna Bhawan, Sansad Marg, New Delhi 110 001. Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India through The Member-Secretary, Planning Commission, Yojna Bhawan, Sansad Marg, New Delhi 10 001. Respondent (By Advocate: Sh. Rajinder Nischal) O R D E R
By Dr. B.K. Sinha, Member (A) The instant OA challenges the order dated 06.03.2013 of the respondents downwardly re-fixing the salary of the applicant. The applicant is further aggrieved by the communication dated 01.05.2013 whereby recovery was ordered from his salary.
2. By means of this OA, the applicant has prayed for the following reliefs:-
8.1 allow the present application;
8.2 quash and set aside the Order dated 06.03.2013 of the Respondent (Annexure: A-1) Re-fixing the salary of the Applicant with effect from 01.05.2013 as being de-hors the Rules and the Procedures and as being bad in law:
8.3 consequently, quash and set aside the Communication dated 01.05.2015 (Annexure: A-2) directing recovery from the Applicant as being de-hors the Rules and the Procedures and as being bad in law; 8.4 consequently, quash and set aside the recovery being made from the salary of the Applicant that is being effected for being de-hors the Rules and the Procedures and as being bad in law; 8.5 consequently, direct the Respondent Commission to refund the amount of Rs. 34,875/- (Rupees thirty four thousand eight hundred and seventy five only), the money recovered from the Applicant illegally, as being de-hors the Rules and the Procedures and as being bade in law; 8.6 to allow exemplary costs of the application; and 8.7 to issue any such and further order/directions this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
3. The case of the applicant, in brief, is that he was appointed as Senior Research Assistant in Project Appraisal Division on 20.12.1990 and further on the basis of the recommendations of the UPSC was promoted as Research Officer on ad hoc basis w.e.f. 08.04.1996 in the scale of pay of Rs. 8000-13500/-. On 13.07.2010, the applicant was reverted to the post of Economic Officer in the Project Appraisal Division w.e.f. 30.06.2010 (A/N) in PB-2 (Rs.9300-34800 plus Grade Pay of Rs.4600/-). The applicant does not challenge the order of reversion. However, subsequent to his reversion to the post of Economic Officer w.e.f. 30.06.2010, a fresh order was issued whereby his pay was fixed at revised basic pay for Rs. 27,480/-. The order of recovery in respect of Rs.1,60,396/- from 1.1.2006 to 30.04.2013 was also ordered vide communication of the respondents dated 01.05.2013. He further states that he was granted the first ACP in the scale of Rs. 8000-13500 vide order dated 13.12.2002 and his basic pay was fixed at Rs.9650/- vide order dated 17.01.2003. The applicant has also annexed OM whereby it was clarified that for the purpose of pay fixation, appointment under ACP Scheme was to be treated as regular promotion. Thus, the basic pay of the applicant was fixed at Rs. 27,210/-, including increments granted on 01.07.2006, 01.07.2007 and 01.07.2008 under CCS (Revised Pay) Rules, 2008 vide order dated 15.09.2008.
4. The applicant has challenged the revised pay fixation mainly on two grounds:-
(i) In the first instance, the order of reversion dated 13.07.2010 is only in respect of his ad hoc promotion. The financial upgradation granted to the applicant under ACP remains untouched and unaffected. No separate order has been issued taking away the financial upgradation granted to him under the ACP. Therefore, his ad hoc promotion has been taken away. He will continue to enjoy the benefits of ACP. Therefore, pay fixation is patently wrong.
(ii) In the second place, the applicant has further argued that the reversion has been made w.e.f. 30.06.2010 (A/N) while the reduction of salary has been made w.e.f. 1.1.2006. It cannot predate the order of reversion i.e. 30.06.2010. Therefore, it has been incorrectly made.
5. The respondents have filed a counter affidavit denying the averments. It has been stated in the counter affidavit that the applicant had been appointed as Research Assistant in the scale of Rs. 8000 to 13500/- on ad hoc basis w.e.f. 08.04.1996. Subsequently, he was granted ACP w.e.f. 20.12.2002 in the pay scale of Rs. 8000-13500. The opinion of the DoP&T is that financial upgradation is granted on completion of period of 12 years in the post held by an employee on regular basis. On such upgradation, the pay is fixed under provisions of FR-22 (I)(a)(i) as is done in the case of regular promotion. Hence, protecting the pay drawn by him on account of ad hoc promotion will have the effect of ACP being granted to him before the completion of the prescribed eligibility period of 12/24 years contradicting the provisions of the Scheme. On the other hand, ad hoc promotion is only made in exigency of work where the post cannot be made vacant and such appointment is discontinued as soon as regular incumbent is appointed. Learned counsel for the respondents has also drawn our attention to a clarification from DoP&T dated 18.07.2001 under Item No.46 to this effect. However, during the course of the oral submissions, the learned counsel for the respondents agreed to the proposition of the learned counsel for the applicant that this clarification did not sufficiently explain the issues raised in the instant OA.
6. We have carefully examined the pleadings submitted by the respective parties as also the documents submitted therewith. We have further listened patiently to the arguments of the respective counsels.
7. To our mind, the issues that formally need to be decided in this OA are the following:-
(i) Whether the ACP granted to the applicant in the scale of Rs. 8000-13500 vide order dated 13.12.2002 which has not been withdrawn, obviate the effect of reversion of the applicant to the post of Economic Officer in the Project Appraisal Division w.e.f. 30.06.2010?
(ii) What is the effect of the reversion order of the applicant in terms of fixation of his salary?
8. Insofar as the first of the issues is concerned, the facts have to be appreciated in a chronological order. The applicant was appointed as a direct recruit as Sr. Research Assistant (later re-designated as Economic Officer w.e.f. 27.10.2004) in the Project Appraisal Division on 20.02.1990 in the scale of Rs. 1640-2900 on ad hoc capacity and in a substantive capacity w.e.f. 20.12.1992. He was promoted on ad hoc basis w.e.f. 08.04.1996 in the scale of Rs.8000-13500. He was granted first financial upgradation in the scale of Rs. 8000-13500 w.e.f. 20.12.2002 under ACP Scheme. The order relating to the financial upgradation is being reproduced for the sake of greater clarity:-
ORDER In pursuance of Department of Personnel & Trainings Office Memorandum No. 35034/1/97-Estt (D) dated 09.08.1999 and the subsequent clarification issued by the DOPT, Shri K.K. Makwana, a regular Senior Research Assistant (Project Appraisal) of the Planning Commission and presently officiating as Research Officer in Planning commission on ad-hoc basis is hereby granted first financial upgradation to the scale of pay of Rs. 8000-275-13500 w.e.f. 20.12.2002.
2. This financial upgradation is purely personal to Shri Makwana and shall have no relevance to his seniority position. This will not involve any change in the designation of his post either. There shall not be any such additional financial upgradation for the senior officials on the ground that the junior official in the grade has got higher pay scale under the ACP scheme.
3. Grant of higher scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit shall be deemed to have given an unqualified acceptance for regular promotion on occurrence of a vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. In the event of his refusal to accept regular promotion subsequently, financial upgradation granted to him shall also be withdrawn.
4. The grant of financial upgradation is further subject to all other conditions laid down in the Department of Personnel & Trainings Office Memorandum No. 35034/1/97-Estt (D) dated 09.08.1999 and the subsequent clarification issued by the DOPT. The order of fixation of pay of the applicant on grant of financial upgradation under ACP, vide order dated 17.01.2003, is as follows:-
Consequent upon being granted first financial upgradation to the scale of pay of Rs.8000-275-13500 under ACP Scheme of the Department of Personnel & Training vide Planning Commissioners earlier Order of even number dated 13.12.2002, the pay of Shri K.K. Mahawana, Senior Research Assistant (Project Appraisal) [officiating as Research Officer on ad-hoc basis is fixed @ Rs.9650/- in the scale of pay of Rs.8000-275-13500 w.e.f. 20.12.2002 in pursuance of DOPTs OM No.20/19/99-CS II dated 18/21 December, 1999 read with their subsequent OM dated 9/16 June, 2000.
2. He will draw his next increment on 01.04.2003, if otherwise admissible. The order of reversion of the applicant dated 13.07.2010 is reproduced as below:-
OFFICE ORDER Shri K.K. Makwana, ad-hoc Research Officer in Pay Band-3 (Rs. 15600-39100) plus Grade Pay of Rs. 5400/- in the Planning Commission stands reverted to his substantive post of Economic Officer (Project Appraisal) in Pay Band-2 (Rs.9300-34800) plus Grade Pay of Rs. 4600/- w.e.f. 30.06.2010 (A/N). The order of re-fixation of pay following reversion of the applicant is as follows:-
ORDER Consequent upon his reversion to the post of Economic Officer w.e.f. 30.06.2010 (AN) vide Planning Commission Office Order No.A.12025/4/97-Adm.II dated 1st July, 2010 and having been granted First Financial Up-gradation in the pre-revised pay scale of Rs.8000-275-13500 w.e.f. 20.12.2002 under ACP Scheme vide Planning Commission order No.A.12034/7/99-Admn.II dated 13.12.2002, the pay of Shri K.K. Makwana, Economic Officer in Planning Commission is fixed as under:- Name Pay as on 01.01.2006 in existing scale of pay of Rs. 8000-275-13500 Pay in the revised pay structure in corresponding Pay Band 3 Rs.15600-39011+Rs.5400 Date of next increment Date from which pay fixed Pay in the Pay Band (Rs.) Grade Pay (Rs.) Revised Basic Pay (Rs.) (2) (3) (4) (5) (6) (7) (8) Sh. K.K. Makwana Rs.10475 Date of next increment 01.04.2006 Pay as on 01.04.2006 Rs. 10750 1.1.2006 20000 5400 25400 1.7.2013 1.7.2006 20770 5400 26170 1.7.2008 21560 5400 26960 1.7.2008 22370 5400 27770 Reverted to the post of Economic Officer w.e.f. 30.06.2010 (AN). Pay is fixed in PB-2 (9300-34800) plus grade pay of 5400 w.e.f. 1.7.2010 1.7.2010 20500 5400 25900 1.7.2011 21280 5400 26680 1.7.2012 22080 5400 27480
2. He will draw his next increment in the grade on the dates indicted in column 8, if otherwise admissible.
3. This revision of pay is subject to adjustment, if any, in the light of audit objections/errors that may come to notice late on.
4. This order is issued in supersession of earlier pay fixation orders No.A 12034/7/99-Admn.II dated 17.01.2003 and order No.A 26011/05/2008-Admn.II dated 15.08.2008. It appears from the submissions made by the learned counsel for the applicant that the case of the respondents is totally dependent upon advice rendered by the DoP&T which is reproduced as follows for the sake of greater clarity:- Shri Makwana, Economic Officer in the scale of Rs. 6500-10500/- was appointed as Research Officer in the scale of pay of Rs. 8000-135000/- on ad hoc basis with effect from 08.04.1996. Subsequently, on grant of financial upgradation under Assured Career Progression (ACP) with effect from 20.12.2002 in the pay scale of Rs. 8000-13500 his pay was fixed protecting his pay on account of ad hoc promotion stated to be in accordance with instructions issued by CS Division (No. 20/19/1999-CS-II dated 16.06.2000). The Officer has been reverted to the post of Economic Officer with effect from 30.06.2010. He has requested for protection of pay he drawn during his adhoc promotion during the period from 08.04.1996 till the date of grant of ACP upgradation w.e.f. 20.12.2002.
2. In terms of the provisions under the Scheme, financial upgradations are allowed only on completion of the prescribed period of eligibility of 12 years in the post held by an employee on regular basis. On such upgradation, pay will be fixed under provisions of FR 22(I)(a)(i) as being done on regular promotion with reference to the substantiate post held by the employee. Protecting the pay drawn by him on account of adhoc promotion will have the effect of ACP being granted to him before completion of the prescribed eligibility period of 12/24 years contradicting the provisions of the Scheme.
3. The context on which OM NO. 20/19/99-CS. II dated 16.06.2000 was issued by CS Division which is the cadre controlling authority in respect of CSS/CSSS/CSCS only is not known.
4. In view of the above, we may inform referring Department to regulate the pay fixation of Shri Makwana as per this Departments clarification point 46 of OM dated 18.07.2001 as mentioned in para 3 of the referring note. Further, point 46 of OM dated 18.07.2001, mentioned above reads as under:
An adhoc promotion is made only in an exigency of work where the post cannot be kept vacant and such appointment is to be discontinued as soon as a regular incumbent is appointed. In terms of existing guidelines, continuation of such arrangement beyond one year is also subject to prior concurrence of DoP&T. Thus such as employee can be reverted to the original regular post at any moment. Therefore, case of an employee holding the higher promotional grade/ any other post on adhoc basis, for grant of financial upgradation under ACPs cannot be ignored. Upon being recommended for grant of financial upgradation in the higher grade, his pay may be refixed with reference to the pay drawn in the post held on regular basis under FR22(1)(a)(i) subject to minimum benefit of Rupees 100 as per the provisions of ACPs. If, on pay fixation under ACPs, the pay gets fixed at a stage higher than the pay already drawn on adhoc basis he may be allowed such higher pay.
9. The basic argument from the above appears that there was a request from the respondent-department that he should be granted protection of pay that he had drawn on his ad hoc promotion during the period from 08.04.1996 till the grant of ACP upgradation w.e.f. 20.12.2002. The basic argument is that the ACP is granted after 12/24 years of continuous service. As per the OM dated 09.08.1999 under Clause 3.2, regular service for the period of ACP Scheme shall be interpreted to mean eligibility service countered for regular promotion in terms of the relevant recruitment/service rules. Hence, the ACP has been rightly given w.e.f. 20.12.2002. We also agree with the proposition of the respondents that the order of reversion takes effect from30.06.2010. This implies that till that date, the applicant shall be entitled to draw the salary in the scale in which it has been fixed. However, after this date, the ad hoc promotion granted to the applicant is treated to have been withdrawn. Therefore, the position will revert to the pay scale as it prevailed prior to 08.04.1996. Hence, the respondents are right in assuming that the increments granted following the ad hoc promotion in their enhanced scale shall not be permissible to the applicant. The fixation of pay in the revised scale under FR-22 (I)(a)(i) shall be done in the higher scale of Rs. 8000-13500/-. Therefore, we conclude the issue by reiterating the above principle that ACP granted to the applicant vide order dated 13.12.2002 has not been withdrawn and continues to be in its place. However, what has been withdrawn is only his ad hoc promotion. Therefore, as stated earlier, the applicant is not entitled to benefits of higher scale between the period 08.04.1996 and 20.12.2002. The fixation of pay following the financial upgradation under ACP is to be made as per FR-22 (I)(a)(i). The issue is answered accordingly.
10. Insofar as the second issue is concerned, a distinction has to be drawn between the reversion of an employee on regular promotion and withdrawal of ad hoc promotion. In case of regular promotion, the reversion shall take effect from the date of the order of reversion. In other words, whatever has been earned by an employee by way of increments shall remain with him till the date of effect of the order. On the other hand, ad hoc promotion is only a stop-gap arrangement till such time a regular incumbent is not found for the post. Therefore, withdrawal of ad hoc promotion shall take effect from the date of ad hoc promotion. The issue is concluded accordingly.
11. In conclusion we can only say that while we have laid down the principles, the matter for detailed calculation is best left to the accountant. The court cannot be expected to enter into the domain of accountancy and to make calculations itself. Therefore, the respondents are directed to apply the above principles and to make such calculation as necessary as per the ratio laid down in this order, within a period of three months from the date of order.
12. With this, the OA is disposed. No order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/