Central Administrative Tribunal - Bangalore
Ramesh G Noolvi vs M/O Finance on 16 January, 2019
1 OA
NO181/7/CAT//BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/000181/2017
DATED THIS THE 16TH DAY OF JANUARY, 2019
HON'BLE DR.K.B. SURESH ...MEMBER(J)
HON'BLE SHRI C.V. SANKAR ...MEMBER(A)
Ramesh G. Noolvi,
Aged about 60 years,
S/o Gangadhar H. Noolvi,
Working as Chief Accounts Officer,
O/o. The Commissioner of Central Excise,
No.71. Club Road, Belgaum-590 001.
Residing at C/o Shri Vijay L. Shetty,
MIG 32, "Girija Krupa", K.H.B. Colony,
Belgaum-590 001. ..Applicant.
(By Advocate Smt Saritha Jayaram)
Vs.
1.The Union Govt. of India,
Ministry of Finance
Department of Revenue ,
CBEC(AD IIA) represented
By its Secretary,
North Block, New Delhi-110001.
2.The Commissioner of Central Excise,
Commissionerate
C.R. Buildings, P.B. No.5400,
Queen's Road, Bangalore-560 001.
3. The Chief Commissioner of Central
Excise, Mysore Zone,
Si & S2, Vinay Marg,
Siddarthanagar, Mysore-570 011.
4. The Commissioner of Central Excise,
Central Excise Mangalore,
VII Floor, Trade Centre,
Bunts Hostel Road, Mangalore-575 003.
5.The Chief Commissioner of Central Excise,
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NO181/7/CAT//BANGALORE
Central Excise, Belgaum Commissionerate,
No.71, Club Road,
Belgaum-590 001.
6.The Union of India,
Ministry of Finance
Department of Revenue ,
Represented by its Secretary,
North Block, New Delhi-110011. ....Respondents.
(By Standing Counsel Shri J. Bhaskar Reddy, for Respondents)
O R D E R (ORAL)
HON'BLE DR.K.B.SURESH ...MEMBER(J) Heard. We are advised that we had issued an order in a similar matrix in OA.No. 117/2007 dated 13.02.2008, which we quote:
"The applicants who are Administrative Officers in the Department of Customs and Central Excise are aggrieve ed by the decision taken by respondents No.1 to withdraw the benefit of fixation of pay under FR 22 (I)(a)(1) granted to them on their promotion to the post of Administrative Officers (A) for short) from the post of Office Superintendent (OS for short), and instead, fix their pay under FR 22(I)
(a)(2).
2. The facts of the case are: Applicant No.1 was promoted to the post of AO w.e.f. 20.9.1996, the second applicant was promoted on 10.3.1997 and the third applicant was promoted on 07.10.1996. On the dates of their promotion, the scale of pay of the post of OS was Rs.2000-3200 and the scale of the promotional post of Administrative Officer was Rs.2000-3500. The post of AO was Group 'B' Gazetted and the post of OS was Group 'C' non-gazetted. Further, the duties and responsibilities attached to the post of AO were entirely different from that of OS and involved higher responsibilities. The applicants have given a comparison of some of the duties and responsibilities of the two posts as under:
Administrative Officer Office Superintendent
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NO181/7/CAT//BANGALORE
Gazetted Post of (Now Non-Gazetted Non-gazetted post of Group-C
Group-B
AO is the drawing & disbursing g Officer. He has no such power.
He is the head of Administration/ Establishment/ He works under AO or Accounts Section Supdt. Or CAO/.
He can sigh the cheques He cannot sign the cheques.
He is responsible for the cash transaction No such responsibility Being a Gazetted officer he is not eligible Being a non-Gazetted officer for bonus. he is eligible for bonus. He is not eligible for OT allowance. He is eligible for OT allowance. AO can attest any letter/document He has no such power.
On promotion, their pay was fixed under FR 22(I)(a)(1).
3. When the Government accepted the recommendations of the 5 th Pay Commission and gave revised pay scale as per the resolution dated 30 th September, 1997, the scales of Rs. 2000-3200 and Rs. 2000-3500 were merged and the revised scale of pay was given as Rs. 6500-10500. The revised pay scale was effective retrospectively from 1.1.1996.
4. The audit had raised an objection that as the posts of OS and AO carry the same scale of pay of Rs. 6500-10500, the promotion shall not be deemed to involve the assumption of duties and responsibilities of great importance in accordance with Rule 22 (III) of FRs. Hence, the fixation is to be made under FR 22(1)(a)(2) instead of FR 22(1)(a)(1). The applicant reliably learnt and believe it to be true that in response to the audit objection, the 2nd respondent issued a letter during last week of July 2000, clarifying that the pay fixation done by the Department under FR 22(1)(a)(1) is correct and the audit objection cannot be accepted. Further, the applicants reliably learnt that the Commissioner of Central Excise Belgaum, had taken up the matter with the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi vide letter No.1/19/1/2000 Accts dated 14.12.2000 indicating as to how the officials, who are promoted from the cadre of OS to that of AO are entitled for the pay fixation under FR 22(1)(a)(1) and stating that if the audit objection has to be accepted then huge amount has to be recovered and further benefits has to be stopped etc. Likewise, the Commissioner of Central Excise, Mangalore, has taken up the matter with the 2nd respondent vide letter No.II/24/4/2003 Accts dated 9.8.2004.
5. The second respondent has issued a letter dated 18.10.2005 certifying that the post of Administrative Officer carries higher responsibilities than that of lower post of OS and hence the pay fixation on promotion from the grade of OS to AO under FR 22(1)(a)(1) is permissible. However, the first respondent, in the communication 4 OA NO181/7/CAT//BANGALORE dated 24.7.2006 has held that since the pay scale of Office Superintendent and Administrative Officer were merged into one pay scale of Rs.6500-10500 w.e.f. 1.1.1996, the benefit of pay fixation under FR 22(1)(a)(1) cannot be granted to those who were promoted as AO after 1.1.1996. A copy of the letter is produced at Annexure-A3. The same decision was circulated by the 2nd respondent on 8.8.2006 (Annexure-A3). The applicants, fearing that respondent no.2 would contemplate action to fix their pay under FR 22(I)(a)(1) had approached this Tribunal in OA.No.364/2006. The said OA was disposed of on 26.10.2006 directing the respondents to issue notice to the applicants and apply the principle "Rule of Law" if they wanted to recover the excess amount, if any, paid to the applicants (Annexue-A4). Subsequently, notices were issues and the 1st and 3rd applicant had submitted their representations on the notice. Thereafter, they approached this Tribunal again in OA.Nos. 409/06 and 436/06 which were dismissed as premature on 23.11.2006 and 6.12.2006 respectively as the respondents had not taken any action to recover the excess paid amount from the pay and allowance of the applicants. Thereafter, the second respondent issued an order dated 13.3.2007 modifying the earlier promotion orders to the effect that promotes had to opt for fixation of pay under FR 22 (I)(a)(2) instead of under FR 22(I)(a)(1) as ordered earlier. A copy of the said communication is at Annexure-A10 (impugned order).
6. The applicants pray that the impugned orders at Annexure-A3 and A- 10 should be quashed and set aside on the following grounds.:
(i)The impugned order at Annexure-A3 is liable to be quashed as it is against the principle of estoppel. The respondents on promotion of the applicants as Administrative Officer have offered such promotion and ordered for fixation of pay under FR 22(1)(a)(1) as is evident from Annexure- A1 an A2. The applicants having acted upon such promotion and also drawn the pay and allowances based on such fixation of pay under FR 22(1)(a)(1), which has been crystallized into right, the respondents at this distant date cannot backtrack and any such action backtracking such promise is against the principles lad down by the Apex Court in Bhim Singh vs. State of Harayana (1981 SCC (L&S) 437.
(ii)The duties and responsibilities attached to the post of AO Group 'B' Gazetted Ministerial post are much higher than that of OS Group 'C' non-Gazetted Ministerial post. It has also been certified by the second respondent that the post of AO carries higher responsibilities than the lower post of OS as required in Government of India, File No.F/113-
R.1/30 dated 19.8.1930.
(iii)The Government of India, Ministry of Finance has issued Office Memorandum dated 21.11.2000 (Annexure-A12) directing that the 5 OA NO181/7/CAT//BANGALORE department should examine the feasibility of appropriately restructuring the cases where the pay scales have been merged. If it is not found to be feasible on functional, operational and administrative considerations, only extension of the benefit of fixation of pay under Fr 22(1)(a)(1) could be considered on the merits of each case. All cases for extension of pay fixation in such cases have to be referred to the Department of Expenditure for prior approval. The applicants apprehend that such proposal has not been sent to the 6 th respondent, as, in the impugned order dated 24.7.2006 the decision of the 6 th respondent is not indicated.
(iv)This Tribunal had directed the respondents to consider the averments in OA.364/2006 as a representation and pass a speaking order in accordance with law within a period of 3 months. The second respondent who is not competent to decide the grant of pay scale has passed the impugned order and on this ground also the action of the respondents is liable to be declared as void.
(v)Perusal of the impugned order dated 24.7.2006 would prima facie indicate that the erstwhile cadre of the OS was merged into the cadre of AO after cadre restructuring w.e.f. 4.6.2002. The applicants have been promoted to the cadre of Administrative Officer before the said date i.e. 4.6.2002. On the date of promotion the post of AO was the promotional post for OS and hence the pay fixation has to be done under FR 22 (1)(a)(1).
(vi)The action of the respondents in proposing to effect the recovery on the ground that excess payment was made till 30.9.2000 from the date of promotion of the applicants is against the principles laid down by the Hon'ble Apex Court in Sahib Ram vs. State of Harayana (1995 SCC (L&S)
248.
7. The applicants further pray that on quashing and setting aside the impugned letter dated 24.7.2006 (Annexure-A3) and the consequential order dated 13.3.2007 (Annexure-A10) so far as it relates to the applicants, the pay fixation of the applicants on their promotion as AO in the pay scale of Rs. 6500-200-10500 may be declared as in accordance with the provisions of FR 22(1)(a)(1).
8. The respondents in their reply have admitted all the facts stated in the OA as correct. The question of extending the benefit of pay fixation under FR 22(1)(a)(1) to the applicants and other similarly placed officials was under consideration by the 1st respondent in consultation with the 6th respondent. After careful consideration, it was decided that the benefit of pay fixation under FR 22(1)(a)(1) cannot be granted since the pay scales of OS and AO were merged into one pay scale of Rs. 6500- 6 OA NO181/7/CAT//BANGALORE 10500 by the 5th Central Pay Commission w.e.f. 1.1.1996. The above decision was communicated by the Ministry of Finance, Department of Revenue vide letter F.No.A.26014/7/2001-Ad.II dated 24.7.2006. On receipt of the said orders, clarification was sought from the Ministry of Finance and it was clarified by the Ministry of Finance, Department of Revenue in consultation with the Department of Expenditure that since the promotion is from the post of OS to AO and as both the posts were merged, the benefit under FR 22(1)(a)(1) cannot be granted as per the extant instructions. Accordingly, the Establishment Order No.18/2007 dated 13.3.2007 was issued in modification to the promotion orders issued earlier. Thus, the above said order is according to rules in force and not opposed to rules, as claimed by the applicants. The promotion to the post of AO is from the post of OS and both these posts were merged by the 5th Central Pay Commission. The Central Board of Excise and Customs, New Delhi being the Administrative Head, have clarified that the benefit of fixation of pay cannot be extended to the officers holding the post of erstwhile cadre of Office Superintendent. Hence, the benefit extended to the applicants which they are not entitled to, cannot be allowed. Thus, modification order to the promotion orders of the applicants, with regard to the pay fixation clause has been issued vide Establishment order No.18/2007 dated 13.3.2007. FR 22(III) clearly indicates that "for the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities of greater importance, if the post to which it is made is on the same scale of pay as the post other than a tenure post, which the Government servant holds on a regular basis at the time of promotion or appointment or on a scale of pay identical therewith." Since the pay scale of the applicants held at the time of promotion (Office Superintendent) and the pay scale of the promoted post (Administrative Officer) were the same i.e. 6500-10500, the said promotion shall not be deemed to involve the assumption of duties and responsibilities of greater importance. The Administrative Head i.e. Department of Revenue, Ministry of Finance has not certified or declared that the post of Administrative Officer carries higher responsibilities than that of the Office Superintendent. The apprehension of the applicants that the 6 respondent was not consulted by the th respondents while issuing the order dated 24.7.2006 is not correct as the first respondent had clearly stated that the same was issued as per the advice given by the Department of Expenditure i.e., 6th respondent.
9. It is denied that the direction given by this Tribunal in OA.364/2006 have not been considered by the respondents. The second respondent after obtaining directions from the 1st respondent has issued a speaking order. Though the posts of OS and AO were merged w.e.f. 5.6.2002, the4 scales of pay of the said two cadres were merged into one pay 7 OA NO181/7/CAT//BANGALORE scale of Rs. 6500-10500 by the Fifth Pay Commission w.e.f. 1.1.1996. The decision not to extend the benefit of pay fixation under FR 22(1)(a) (1) in the case of promotion from OS to AO after 1.1.1996 up to 4.6.2002 was taken in view of the fact that the pay scale of the feeder cadre as well as the promoted cadre were same.
10. Regarding recovery of excess pay and allowance, in the judgment dated 26.10.2006 in OS.364/2006, this Tribunal has directed that excess amount, if any may be recovered by giving notice to the applicants and applying the principle of "Rule of Law".
11. Heard the counsel on both sides. The learned counsel for the applicant has argued the case reiterating the points mentioned in the OA. The counsel also invited our attention to the decision of this Tribunal in OA.227/2006 decided on 10.4.2007 (Vijaydev vs. Navodaya Vidyalaya Samithi). The learned Senior Central Government Standing counsel has also confined his arguments to the points raised in the reply filed by the respondents. As both the counsel has mentioned that the merger of the posts of OS with that of AO has taken place w.e.f. 5.6.2002, we had directed the counsel to produce the orders issued by the respondents to the effect that the posts have been merged. We had also desired to see the revised Recruitment Rules, if any, for selection to the post of AO. The learned counsel for the respondents has filed a memorandum stating that there is no specific letter/order with regard to merger of the post of OS with that of AO w.e.f. 5.6.2002. However, during the cadre restructuring process undertaken in 2001-2002, the revised sanctioned strength of difference cadres were notified on 19 th July 2001, wherein it was indicated that the cadre of OS has been abolished and the posts have been merged in the post of AO. Further, allocation of posts of cadre restructuring was issued vide Ministry's letter dated 5th June, 2002. In the said allocation there is no mention of the cadre of OS and hence it is established that the post of OS was in existence only upto 4.6.2002 and it was merged with the post of AO w.e.f. 5.6.2002, the date of issue of allocation of posts on cadre restructure. Learned counsel for the applicant has produced a copy of the notification dated 13.11.1987 (Published in the Gazette on 28.11.1987) of the Central Excise Collectorate (Administrative Officer/ Assistant Chief Accounts Officer/ Examiner of Accounts) Recruitment Rules, 1987. The said Rules indicate that the post of Administrative Officer belongs to General Central Service Group 'B' Gazetted Ministerial cadre in the pay scale of Rs.2000-3500. The recruitment to the post is by way of Selection from the post of OS with 2 years of regular service in the grade failing which Dy. Office Superintendent Level I with 3 years of regular service including service as OS, if any. The 8 OA NO181/7/CAT//BANGALORE selection is to be made by a DPC, the composition of which also has been laid down.
12. From the above it is clear that the post of AO still exists in the respondents'. Department and the post of QS has been merged with that of AO w.e.f 5.6.2002. All the 3 applicants were promoted to the cadre of AO before 30.9.1997 on which date the revised pay scales on the recommendations of the 5th Pay Commission were notified by the Government of India. In the pre revised scale, the scale of pay of AO was higher than that of OS and the applicants were given fixation of pay under FR 22 (I)(a)(1) from the date on which they joined the post of AO. As per the policy decision of Govt. of India on the 5 th Pay Commission's recommendations, the replacement scale for the post of OS and AO was the same. The 6th respondent has issued a clarification/instruction dated 24.11.2000 (Annexure-A12) regarding upward revision of pay scales as a result of feeder and promotion posts being placed in an identical revised pay scale. We quote from the same.
"..............................................................................................................................
2. This Department had been receiving a number of proposals from the various ministries and departments requesting appropriate upward revision of the pay scales of the promotion costs concerned so as to restore the earlier relatives. It is clarified in this context that the mere fact that the feeder and promotion posts in certain ministries and departments have been placed in an identical revised pay scale cannot by itself be adequate justification for placing the promotion posts in the hierarchy in a higher, pay scale. Upward revision of the pay scale of posts on this consideration alone is not being accepted as a general policy unless there are other extenuating circumstances that might justify the adoption of such a course of action . What is envisaged in such a situation is that the affected cadres themselves should be appropriately restructured and the relevant recruitment rules amended so as to reduce the number of levels in the hierarchy. This is also the spirit underlying the 5th CPC recommendations relating to the merger of different pay scales.
3. Therefore, ministries/departments should in the first instance, examine in depth the feasibility of appropriately restructuring the cadres in question. Only in cases where this is not found to be feasible on functional, operational and administrative considerations, only extension of the benefit of fixation of pay under FR 22(I)(a)(1) could be considered on the merits of each case and provided that all the conditions precedent for the grant of this benefit are fully satisfied and promotion to the posts in question actually involves the assumption of higher responsibilities . All cases of extension of the pay fixation benefit 9 OA NO181/7/CAT//BANGALORE in such cases should be referred to the Department of Expenditure for prior approval.
4.Ministries and departments of the Government of India are accordingly requested to review all such cases on a priority basis in consultation with their Financial Advisers and make available specific proposals for the consideration of this Department , in case this has not already been done. The proposals should contain detailed justification indicating the reasons for the inability of the ministries and departments to responsibilities and establish conclusively that the assumption of higher responsibilities is actually involved."
In accordance with the above O.M, the first respondent had decided to restructure the cadre of OS and AO and issued the orders dated 5 th June 2002 allocating the posts in Group 'A', 'B','C' and 'D' amongst various Zones/Commissionerates and Directorates Gen./Directorates, in which the post of OS is not figuring . From paragraph-2 of the above O.M,. it is clear that at the time of restructuring , the relevant Recruitment Rules were to be amended so as to reduce the number of levels in the hierarchy. From the submissions made by the respondents, it is seen the respondents have not yet amended the recruitment rules for the cadre of AO . The cadre of AO continues and appointment to the post will have to be made as and when vacancies arise. It is therefore necessary that the respondents amend the Recruitment Rules of 1987 at least now. The persons who were holding the post ... OS as on 4.6.2002 , evidently, have to be designated as A.O from 5.6.2002 as there is no post of OS from the said date and the cadre of OS has been merged into the cadre of AO. The matter that has to be deliberated upon by the respondents is the question of fixation of pay of those persons who were holding the post of OS on 4.6.2002 and very rightly this forms the subject matter of O.M dated 24.7.2006.
13. Though the recommendations of the 5 th Pay Commission regarding grant of revised pay scale were implemented with retrospective effect from 1.1.1996 at the time of their promotions , the applicants were in the pre-revised scales of pay. The clarification /instruction at Annexure- A12 is in respect of cases where at the time of promotions, the pay scales of the feeder posts and promotional posts happened to be the same as a result of implementations of 5th Pay Commission's recommendations . As this condition is not satisfied in respect of the 3 applicants in this O.A , we do not have to discuss here the implications of the clarificatory order dated 24.11.2000 at Annexure-A12 with regard to the fixation of pay of the applicants in the promotional cadre of AO. The respondent's argument that the fixation of pay under FR 22(I)(a)(1) cannot be granted as the promotion to the post of Administrative 10 OA NO181/7/CAT//BANGALORE Officer is from the post of OS and both the posts were merged by the 5 th Pay Commission not applicable to the facts of this O.A. First of all it is not the posts which were merged but the pay scales that have been merged with effect from 1.1.1996 and a single replacement scale was granted. The post of OS ceased to exist only from 5.6.2002. After this date, of course , promotion , if any , to the post of AO will have to be made from the posts of OS Level I as is provided (as a failing clause) in the Recruitment Rules notified on 13.11.1987. This, no way affects the position of the applicants in as much as they were promoted to the post of AO from the post of OS much before 4.6.2002; also at the time of promotion the post of AO carried a higher pay scale than that of OS and the applicants were granted fixation of pay in the higher scale in accordance with the provision of FR 22(I)(a)(1).Thus, the case of the applicants cannot be different from that of those AOs who were promoted before 1.1.1996 and they together form a composition Group. When the fixation in the grade of AO was done under FR 22(I)(a) (1) to those who were promoted before 1.1.1996 there is absolutely no justification in denying the same to those who were promoted from 1.1.1996 to 30.9.1997 (the date on which the Government of India, accepted the recommendations or the 5th Pay Commission ).
14. The action of the respondents is hit by the law of Estoppel too. The Hon'ble Supreme Court in Bhim Singh & Ors. Vs. State of Haryana & Ors .(1981 SCC (L&S) 437 held that :
"The applicants having believed the representations made by the State and having further acted upon cannot be defeated of their hopes which have crystallised into rights by virtue of the doctrine of promissory estoppel. Therefore, it is not open to the State to backtrack . It is bound to confer such rights and benefits as were promised by it in entirety."
(underlining by us)
15. The Hon'ble Apex Court in T.R. Kapur v. State of Haryana 986 (4) SLR 155 ) in para-16 has observed as follows:-
"........................................................................................................................... ............................................................................................................
The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect , that is to say , there is no power to make such a rule under the proviso to Art .309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the 11 OA NO181/7/CAT//BANGALORE rules , the employees who are already promoted before the amendment of the rules , cannot be reverted and their promotions cannot be recalled ."(emphasis supplied) It is not at all the cast of the respondents that the Recruitment Rules to the post of AO have been amended with retrospective effect , and the promotions already granted have been recalled. The dictum by the Hon'ble Apex Court lays down that even when Recruitment Rules are amended with retrospective effect , employees who had already been promoted before the amendment of the Rules cannot be affected by such amendment. That the terms and conditions under which such promotions are granted cannot be altered subsequently with retrospective effect , to adversely affect the interests of those who are already promoted , is nothing but a corollary to the above theory laid down by the Hon'ble Apex Court . In the case on hand, only the pay scales of the two posts became identical with retrospective effect i.e from 1.1.1996 . There is no need to further stress that the mode of fixation of pay in the promotional post cannot be changed with retrospective effect , against the interests of officials who have already been promoted. Further ,it is an established rule that in all cases of promotion , fixation of pay has to be done under FR 22(I)(a)(1) as held by a Bench of the Tribunal in O.A No.227/2006 decided on 10 th April , 2007 (Vijaydev C.S vs Navodaya Vidyalaya Samithi & Ors.-2007 (3) SLJ
134)
16. It is not understood why the respondents are quoting FR 22(III) which deals with the question of demand assumption of duties and responsibilities of greater importance when promotion is to a post carrying the same scale of pay. The rule only says that if the appointment on promotion is to a post carrying identical pay scale it would not be deemed to involve assumption of responsibilities of greater importance.
17. As already stated earlier , the impugned order dated 24 th July 2006 is on the subject of "extending the benefit of pay fixation under FR 22(I)
(a)(1) to officers holding the post of erstwhile cadre of OS on merging into the cadre of AO after cadre restructuring of CBEC". This can in no way be applicable to the applicants who were already in the cadre of AO at the time of restructuring , that is on 5.6.2002. However, in the body of the order it is mentioned that the benefit of pay fixation under FR 22(I)(a)(1) to the officers holding the post of erstwhile cadre of OS (Non-gazetted) in the pay scale of Rs.6500-10500 on promotion to the post AO (Gazetted) in the pay scale of Rs.6500-10500 between 1.1.96 to 4.6.2002 cannot be granted . This is not in conformity with the subject matter. The decision in the above order is certainly bad in law as, 12 OA NO181/7/CAT//BANGALORE admittedly the restructuring took place w.e.f 5.6.2002 and the question that was under consideration was granting the benefit of pay fixation to those who were holding the post of OS on the date of such restructuring . The applicants were promoted to the post of AO long before the date of merger , i.e. 5.6.2002 . The impugned order dated 24.7.2006 is therefore quashed and set aside. Annexure-A10 dated 13.3.2007 issued by the second respondent in pursuance of the decision contained in the impugned order dated 24.7.2006 is also quashed and set aside.
18. The O.A is allowed as above. The applicants will continue to enjoy the benefit of fixation of pay granted to them on the dates of their promotion and subsequent revision of the pay scale as per the 5 th pay Commission's recommendations. In the circumstances of the case there will be no order as to costs."
2. Afterwards it was taken up in challenge to the High Court of Karnataka in WP.No.10261/2008 dated 26.11.2008, which we quote:
"This writ petition is filed by the respondents in Original Application No.373/2006 on the file of Central Administrative Tribunal (here in after called the 'CAT'), Bangalore Bench , Bangalore, is directed against the order dated 13.2.2008 wherein the CAT has allowed the application and set aside the decision contained in order dated 24.7.2006 , 13.3.2007 and directed the appellants to fix the pay of the applicant-respondent herein under the provisions of FR 22(I)(a)(1) from the date she assumed office of Administrative Officer , Belgaum Commissionarate.
2.The essential facts of the case leading upto this writ petition with reference to the rank of the parties before the CAT are as follows:
The applicant before the CAT the respondent herein was initially selected and appointed as Lower Division Clerk with effect from 19.6.72 . She was promoted as Upper Division Clerk with effect from 15.9.1975 and then promoted as Deputy Officer Superintendent L-II with effect from 26.10.1987. She was further promoted as Deputy Officer Superintendent L-I from the post of Deputy Officer Superintendent L-II with effect from 24.3.1998 . She was further promoted as Administrative Officer with effect from 29.5.2002 in the pay scale of Rs.6500-200-
10500 and the applicant was posted to the Office of the Commissioner of Customs , Mangalore. In the order of promotion and posting of the applicant dated 26.4.2002 applicant was given option to exercise the 13 OA NO181/7/CAT//BANGALORE continuance of pay scale under FR 22(1)(a)(1) and she was put on probation for a period of two years. It is the further contention of the applicant that the post of Office Superintendent is a non-gazetted post and post of Administrative Officer is a Group-B Gazetted post. The pay scale of Office Superintendent and Administrative Officer were merged consequent to the implementation of V Pay Commission recommendation to Rs.6,500-200-10500/- and promotion shall not be deemed to involve the assumption of duties and responsibilities of greater importance in accordance with Rule 22(iii) of FRs. Hence, the fixation is to be made under FR 22(1)(a)(2) instead of FR 22(1)(a)(1). The third respondent -Commissioner of Central Excise, Bangalore, issued letter dated 24.7.2000 and clarified that the pay fixation done by the Department under FR 22(1)(a)(1) is correct. After correspondence ultimately , the order was issued on 24.7.2006 produced as Annexure-15 to the original applicant stating that the fixation of the pay scale to the post of Administrative Officer in respect of persons who are promoted from the post of Superintendent (Non-gazetted) in the pay scale of Rs.6,500-200-10,500/- on promotion to the post of Administrative Officers(Gazetted) in the pay scale of Rs.6500-10500 between 1.1.96 to 4.6.2002 has been under consideration of the Ministry in consultation with the Department of Expenditure and it has been considered and decided that since the pay scale of office Superintendent and Accounts Officer were merged into one pay scale of Rs.6500-10500 by the V Central Pay Commission with effect from 1.1.96, benefit of pay fixation under FR 22(1)(a)(1) cannot be granted. Being aggrieved by the communication, Original Application was filed by the applicant contending that the applicant was promoted to the post of Administrative Officer much prior to the merge of the pay scale of the Officer Superintendent and Administrative Officer and the implementation of V Central Pay Commission with the effect from 1.1.96 as the petitioner was promoted to the post of Administrative Officer with the effect from 29.5.2002 and the persons who are similarly situated as that of the petitioner has been fixed under FR 22(1)(a)(1) and that they continued to draw the salary under the said pay scale and further audit objection raised was not valid and therefore, the order issued by the respondents- appellants herein dated 24.7.2006 and consequential order dated 13.3.2007 are liable to be quashed and that applicant was entitled to fixation of pay scale under FR 22(1)(a)(1) and not under 22(1)(a)(2).
3. The application was opposed by the appellants herein contending that after the merger of pay scale of Office Superintendent and Administrative Officers on implementation of V Central Pay Commission and in view of the fact that the responsibilities of Administrative Officer was not higher than that of the Office Superintendent impugned endorsements have been issued which is in accordance with rules as audit objection was raised regarding fixation of pay scale under FR 22(1)(a)(1). The CAT after considering the contention of the parties and the material on record passed order dated 14 OA NO181/7/CAT//BANGALORE 13.2.2008 accepted the contention of the applicant and negated the contentions of the appellants herein and set aside the impugned orders and directed that applicant shall be entitled to fixation to pay scale under FR 22(1)(a)(1) from the date she assumed office of Administrative Officer at Belgaum Commissionerate. Being aggrieved by the said order of the CAT, this writ petition is filed by the respondents in the application before the CAT.
4. We have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent-caveator who entered appearance.
5. The learned counsel appearing for the petitioners submitted that the post of Office Superintendent and Administrative Officer discharge the same duties and after the merger of pay scale of Office Superintendent and Administrative Officer on implementation of the recommendation made by the V Central Pay Commission and in view of the audit objection raised, the appellants have rightly issued the endorsements stating that the applicant cannot be given benefit of fixation of pay scale under FR 22(1)(a)(1) and the CAT was not justified in setting aside the order and then directing them to fix the pay scale under FR 22(1)(a)(1) from the date of applicant assuming the charge of the post of Administrative Officer at Belgaum Commissionarate and therefore, the order passed by the CAT is liable to be set aside.
6. The learned counsel appearing for the respondent- applicant before the CAT submitted that the order passed by the CAT is justified and does not suffer from any error or the illegality as to call for interference in this writ petition and therefore, the writ petition is liable to be dismissed.
7. We have given anxious consideration to the contention of the learned counsel appearing for the parties and scrutinised the material on record.
8. The material on record would clearly show that the applicant was promoted from the post of Office Superintendent to the cadre of Administrative Officer with effect from 29.5.2002. When the applicant was promoted to the post of Administrative Officer, the post of Officer Superintendent was Group-B Gazetted post and the duties attached to the post of Administrative Officer were different from the duties attached to the post od Office Superintendent and the duties attached to the post of Administrative Officer are of higher responsibilities than that of lower post of Office Superintendent. The merger of pay scale of Office Superintendent and the Administrative Officer consequent upon the implementation of the recommendation made by the V Central Pay Commission was subsequent to the promotion of the applicant from the post of Office Superintendent to the 15 OA NO181/7/CAT//BANGALORE post of Administrative Officer. The order of promotion and post of the applicants -respondent herein would clearly show that the applicant had to exercise her option within one month from the date of her promotion for fixation of pay under FR 22(1)(a)(1) and the applicant having exercised option has joined the post on 26.5.2002. The merger of the pay scale of the Office Superintendent and Administrative Officer has taken charge of Administrative Officer on 17.5.2002 which is prior to the merger of pay scale on 4.6.2002 and on promotion she occupied Group- B gazetted post and the duties attached to the Office of Administrative Officer as on the date of promotion of the applicant was of higher responsibility that the duties attached to the post of Office Superintendent. Further, it is also clear from the perusal of the material on record that the CAT on verification of the original records and the material on record has clearly held that fixation of pay scale of the applicant under FR 22(1)(a)(1) was as per the terms of promotion of the applicant and the same was not affected by the merger of post of Office Superintendent and Administrative Officer subsequent to the date of promotion of the applicant and her taking charge in the place which she was posted prior to 4.6.2002 and therefore, the petitioners were estopped from contending that appellant was not entitled to fixation of pay as sought for.
9.1Having regard to the above referred facts of the case, the finding of the CAT is justified and we do not find any ground to take a different view in this regard and the order passed by the CAT does not suffer from any error or illegality as to call for interference in this writ petition. Accordingly ,we hold that there is no merit in this writ petition and pass the following order:
The writ petition is dismissed."
3. Hon'ble High Court having upheld the order of the Tribunal, the matter was taken up in challenge before the Hon'ble Apex Court in SLP/CC 11128/2009 and vide order dated 21.8.2009 the Hon'ble Apex Court dismissed the SLP. Therefore, the matter has become concretized.
4. The relevance of this issue to the present matter is that there was an intra-
department dispute as to how FR 22(1)(a)(1) to be resolved in this matter, as 5 th Pay Commission recommendation has also come into being. Therefore, it was decided following this Judgment that the benefits are applicable. The department 16 OA NO181/7/CAT//BANGALORE challenged this decision at another tangent. Therefore for the grant of the benefit and for the alleged withdrawal, there is no juncture of the applicant. It cannot be withdrawn and it squarely comes within the ambit of White Washers Judgment of the Hon'ble Apex Court.
5. Therefore the OA is allowed. Recovery is quashed. If any amount is recovered, it will be returned within one month without interest and thereafter 10% interest till full payment. No costs.
(C.V. SANKAR) (DR.K.B.SURESH)
MEMBER(A) MEMBER(J)
Vmr
Annexures referred to by the Applicant in OA No.170/00181/2017
1. Annexure A1 : Establishment order dated 27.8.96.
2. Annexure A2 : Establishment order dated 9.7.97.
3. Annexure A3 : Letter dated 24.7.2006.
4. Annexure A4 : Letter dated 23.8.2016.
5. Annexure A5 : Letter dated 7.3.2017.
17 OA NO181/7/CAT//BANGALORE
6. Annexure A6 : Representation dated 30.3.2017.
7. Annexure A7 : Letter dated 4.4.2017.
8. Annexure A8 :Office Memorandum dated 24.12.2000.
9. Annexure A9 :Order dated 13.2.2008 in OA No.1157/2007.
10. Annexure A10 :Order dated 26.11.2008 in WP No.1026/2008.
11. Annexure A11 :Order dated 21.8.2009 in SLP.No.11128/2009.
12. Annexure A12 : Letter dated 23.3.2012.
13. Annexure A13 : Letter dated 26.4.2012.
14. Annexure A14 : Letter dated 24.4.2012.
15. Annexure A15 : Letter dated 24.5.2012.
Annexures referred to by the respondents in the Reply
1. Annexure R1: Copy of revised pay fixation statement dated 21.10.97.
2. AnnexureR2 : Form T.R. 37-B ***************** 18 OA NO181/7/CAT//BANGALORE