Central Administrative Tribunal - Ernakulam
Hari Prasad Krishnan vs M/O Defence on 2 August, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00540/2016
Thursday, this the 2nd day of August, 2018
CORAM:
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr. Ashish Kalia, Judicial Member
Hari Prasad Krishnan,
S/o. Late Panthalath Krishnan,
Aged 51 years, Auditor, A/c. No. 8334357,
O/o. The Defence Pension Disbursing Officer,
Chembukkavu, Thrissur - 600 020. ..... Applicant
(By Advocate : Mr. P.K. Madhusoodhanan &
Mr. Binoy Krishna P.M.)
Versus
1. The Controller General of Defence Accounts,
Ulan Batar Road, Palam, Delhi Cantonment - 110 010.
2. The Controller of Defence Accounts,
618, Annasalai, Teynampet, Chennai - 600 018.
3. The Defence Pension Disbursing Officer,
Defence Pension Disbursing Office, Chembukkavu,
Thrissur - 600 020.
4. Senior Accounts Officer,
O/o. the Controller of Defence Accounts (Air Force),
West Block-V, R.K. Puram, New Delhi - 110 066.
5. Union of India, represented by its Secretary,
Ministry of Defence (Finance),
New Delhi - 110 010. ..... Respondents
(By Advocate - Mr. Sreenath S., ACGSC)
This application having been heard on 30.07.2018 the Tribunal on
02.08.2018 delivered the following:
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ORDER
Hon'ble Mr. Ashish Kalia, Judicial Member -
The applicant in OA No. 180/540/2016 claimed the relief as under:
"(a) Set aside Annexures A-9, A12 and A13 as well as Annexure A14;
(b) Declare that the applicant is entitled to get 1st ACP and 2nd MACP as per law as granted and paid to him and the same cannot be altered unilaterally or withdrawn and cannot recover the same;
(c) Issue necessary directions to the Respondents not to withdraw and recover the amounts paid to him in accordance with law on grant of 1st ACP and 2nd MACP and pay him salary accordingly without any reduction in his pay and grade pay;
(d) Declare that the recovery now resorted to in pursuance of Annexures A9, A12 and A13 are band in law;
(e) Issue necessary directions to the Respondents not to recover from the Applicant the accrued and vested right of ACP and 2 nd MACP Schemes financial benefits granted and paid to him as per law and enjoyed by him;
(f) Issue necessary directions to the Respondents to grant and disburse to him 3rd MACP Scheme financial benefits due and eligible to him w.e.f.
01/05/2015 forthwith;
(g) Award costs of these proceedings;
(h) Grant such other and further reliefs as this Hon'ble Tribunal deems fit and proper in the interest of justice."
2. The applicant was appointed as Lower Division Clerk on 1 st May, 1985 with Border Roads Organization. On completion of 12 years service he was granted 1st financial upgradation under Assured Career Progression (in short ACP) scheme in the scale of pay of Rs. 4,000-6,000/- with effect from 9.8.1999 and his pay was fixed at Rs. 4,100/-. The applicant was promoted as Upper Division Clerk with effect from 1 st March, 2004. He sought voluntary transfer on account of her daughter's illness to Defence Accounts Department (in short DAD), New Delhi in the lower post of LDC in the scale of pay of Rs. 3,050-4,590/-. It is further submitted that prior to the joining of DAD in short the applicant was drawing basic pay of Rs. 3 4,800/-. In the new Department his pay was fixed at Rs. 4,590/- without pay protection. The applicant was granted 1 st ACP with effect from 1.9.2006 and on the date when he was transferred to DAD his pay was fixed in the pay scale of Rs. 4,500-7,000/-. On implementation of VIth Central Pay Commission applicant's pay was fixed at Rs. 12,240/- with Grade Pay of Rs. 2,800/- and on completion of 20 years service applicant was granted 2 nd MACP upgradation and his pay was fixed at Rs. 10,580/- in PB-2 with Grade Pay of Rs. 4,200/- in the scale of pay of Rs. 9,300-34,800/- with effect from 1.9.2008. Later on he was promoted as Auditor.
3. The grievance of the applicant is against Annexures A9, 12, 13, and 14 are basically recovery orders made by the respondents on account of grant of 1st MACP twice. Feeling aggrieved by this he has approached this Tribunal.
4. The respondents have filed reply and submitted that applicant was transferred to DAD on 1.9.2006 as a Clerk in the pay scale of Rs. 3,050- 4,590/-. The applicant was allowed a request transfer to a lower post of Clerk. But his pay was fixed by the Department at Rs. 4,590/- with pay protection with basic pay as Rs. 9,090/-. On joining the present Department DAD the pay of the applicant was re-fixed with effect from 1.9.2006 and 2 nd MACP was granted with effect from 1.9.2008 on completion of 20 years. On implementation of VIth CPC the applicant's pay was re-fixed with effect from 1.9.2006 to Rs. 9,090/- plus Grade Pay of Rs. 1,900/- as per memorandum No. 16/4/2012-Pay-1, dated 5.11.2012 issued by DOP&T. It 4 is reiterated that his pay was protected as per the office order dated 24.6.2015 and he has been granted MACP on completion of 30 years of service with effect from 1.5.2015 in the Grade Pay of Rs. 4,200/- duly counting his former service. Lastly it is submitted that on 6 th February, 2014 as per Annexure A10 Ministry of DOP&T has urged the recovery of excess payment wrongly made to the government servant on the basis of judgment passed by the Supreme Court in the matter of Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors. - (2012) 8 SCC 417. Hence, recovery of excess payment too was ordered vide Annexure A13 order dated 27th April, 2006 for a sum of Rs. 4,47,872/-.
5. Heard the counsel appearing for the parties and perused the records.
6. The short grievance of the applicant is that he has been denied the pay protection firstly and secondly that 3 rd MACP upgradation was not given to him. The applicant's transfer from his parent department to DAD was on his own volition and therefore, his pay has to be fixed in the lower grade of Clerk with Grade Pay of Rs. 1,900/-. However, erroneously his pay was fixed at Rs. 4,590/- as 1 st ACP by the DAD. Meaning thereby that the applicant has got his ACP in the year 1999 and again 1 st MACP on joining the transferred Department and his pay has been upgraded to the Grade Pay of Rs. 2,800/-.
7. On conclusion drawn by the records it is very clear that applicant has received two 1st ACP/MACP within the span of six years firstly in 1999 and 5 secondly in 2006. Thereafter he got 2nd MACP to the Grade Pay of Rs. 4,200/- whereas actually his first upgradation should have been in the Grade Pay of Rs. 1,900/-, second in the Grade Pay of Rs. 2,800/- and lastly in Grade Pay of Rs. 4,200/- which has been duly been given by the Department and recovery is effected with effect from 1.9.2006 till the date he has received the 2nd first ACP with effect from 1.9.2000.
8. In the nut shell it is observed that the applicant has got the benefit of two 1st ACP with effect from 1.9.2006 which is now been recovered by the Department. As per the judgment of the Hon'ble Supreme Court noted above we are of the view that excess payment made by the department are liable to be refunded if there is no errors on the part of the respondents. The recovery by the respondents is of the excess payment done to the applicant on account of twice grant of ACP effected on 1.9.2006. We are convinced that no case is made out by the applicant. Therefore, the OA is liable to be rejected.
9. Accordingly, the Original Application is dismissed. No order as to costs.
(ASHISH KALIA) (E.K. BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
"SA"
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Original Application No. 180/00540/2016
APPLICANT'S ANNEXURES
Annexure A-1- True copy of the last pay certificate dated
18/09/2006 of the applicant issued from the Boarder Roads Development Board, New Delhi.
Annexure A-2- True copy of the letter dated 16/05/2008 allowing ACP to the applicant in the pay scale of Rs. 4500- 7000 obtained under RTI Act.
Annexure A-3- True copy of the communication dated 18/06/2008 of the office of the 1st respondent to the 2nd respondent for implementation of 1st ACP Scheme benefits.
Annexure A-4- True copy of the Part II Office Order dated 07/08/2008 of the 4th Respondent.
Annexure A-5- True copy of the Part-II Office Order NO. 210 dt.
10/08/2010, issued by the 4th Respondent.
Annexure A-6- True copy of the pay slips of the applicant for the month of November 2015 and December 2015.
Annexure A-7- True copy of the comparative table of transfer TA/DA prepared by the Applicant.
Annexure A-8- True copy of the representation dated 01/02/2016 submitted by the applicant before the 1st respondent.
Annexure A-9- True copy of the Office Order No. 295 dated 21/12/2015, of the 4th Respondent.
Annexure A-10- True copy of the Office Memorandum dted 06/02/2014 by Govt. of India, Ministry of Personnel, PG & Pensions, DO.P&T. Annexure A-11- True copy of the representation dated 8 April, 2016 submitted before the 1st respondent, by the Applicant.
Annexure A-12- True copy of the Letter No. DPDO/ EST/ GEN/ 01/ TCR, dated 06/05/2016 of the 3rd Respondent.
Annexure A-13- True copy of the Letter No. DPDO/ ESTT/ GEN/ 01/TCR-XIII dated 27/04/2016, of the 3rd 7 Respondent.
Annexure A-14- True copy of the office order No. 143, dated 24/05/2016 of the 4th respondent.
RESPONDENTS' ANNEXURES Annexure R-1- Department of Personnel and Training, New Delhi Office Memorandum No. 16/4/2012-Pay-I dated 05/11/2012.
Annexure R-2- O/o. the Controller General of Defence Accounts, New Delhi Letter No. A/XIV/14121/II/INC/VOL. XX(i) dated 24.06.2015.
Annexure R-3- Office of the Controller of Defence Accounts, Chennai office Part II OO No. 262 dated 23.09.2016.
Annexure R-4- Office order No. 298 dtd. 24/10/2016. Annexure R-5- M/o. Personnel, Public Grievances and Pensions, DOPT OM F. No. 13/09/2009-Estt (pay-I) dated 21.10.2009.
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