Central Administrative Tribunal - Cuttack
Ganesh Ram Kuanr vs D/O Post on 24 September, 2024
1 O.A.No. 260/00127 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00127 of 2021
Reserved on 20.09.2024 Pronounced on 24.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Ganesh Ram Kuanr, aged about 58 years, S/o- Purna
Chandra Kuanr, resident of At - Hara Gowa Vihar,
Ainthapali, PO/Via - Budharaja, PS Ainthapali, Dist-
Sambalpur, Odisha, PIN- 768004 presently working as
APM (Accounts), Sambalpur HO, Sambalpur, PIN -
768001. (Gr. 'C').
......Applicant
VERSUS
1. Union of India, represented through its Secretary of
Posts, Dak Bhawan, Sansad Marg, New Delhi 110001.
2. Chief Post Master General, Odisha Circle, At/P.O.
Bhubaneswar, Dist.:- Khurda, Odisha - 751001.
3. Superintendent of Post Offices, Sambalpur Division,
Sambalpur, PIN - 768001.
4. Director of Accounts (Postal), Mahanadi Vihar, Cuttack,
PIN - 753004.
5. Postmaster, Sambalpur HO, Sambalpur - 768001.
......Respondents
For the applicant : Mr. C.P.Sahani, Counsel
For the respondents: Mr. M.R.Mohanty, Counsel
2 O.A.No. 260/00127 of 2021
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The case of the applicant is that he was initially appointed as Postal Assistant (PA) w.e.f 14.02.1983 and, upon qualifying for PO/RMS Accountant Examination, was posted as Accountant, Jharsuguda HO w.e.f. 24.07.1992. As per the Rule-276 of P & T Manual Vol-IV, the post of Accountant in the Department of Posts carries a Special Pay and, accordingly, he was getting the Special Pay of Rs 90/- regularly. After implementation of 5th CPC, the "Special Pay" was termed as "Special Allowance" and the amount was doubled to Rs. 180/- vide the DOP & T OM No. 4/4/97-Estt. (Pay II) dated 22.04.1998 (A/3). Thereafter, he was promoted under TBOP Scheme w.e.f. 15.02.1999 and his pay was fixed taking the Special Allowance as part of Basic Pay w.e.f. 15.02.1999. While the matter stood thus, after about 22 years of his fixation of pay, respondent No.4 made audit objection vide letter dated 29.09.2020 (A/5) and simultaneously directed for re-fixation of his pay by reducing his pay w.e.f. 15.02.1999 on the ground that as per instruction issued by the DoP vide letter No. 2-19/2011-PAP dated 10.01.2013 (A/6), Special Pay/Allowance of Rs. 90/- will only be taken into account for fixation of 3 O.A.No. 260/00127 of 2021 pay in cases where promotion/financial upgradation has been taken place on or after 01.08.1997 but before 22.04.1998 and as the applicant got TBOP w.e.f. 15.02.1999, the Special Allowance drawn by him will not be taken into account for fixation of pay. Pursuant to the above audit objection, neither allowing any opportunity nor giving show cause notice to him, respondent No.5/DDO issued letter dated 18.11.2020 (A/7) reducing his pay from Rs. 68,000/- to Rs. 66,000/- w.e.f. 01.11.2020 with further direction to recover the alleged excess pay from 15.02.1999 to 31.10.2020. It is submitted that the representation preferred by him to respondent No.3 did not yield any result as the respondent No.3, in a non-speaking order vide memo dated 22.12.2020 (A/9), directed respondent No.5 to implement the order of respondent No.4 dated 29.09.2020. Being aggrieved, applicant has filed instant OA praying as under:
"(1) Admit the Original Application, and
(ii) After hearing the counsels for the parties further be pleased to quash the orders vide letter No. Pen.III/Genl/S.Verif. G.R. Kuanr/C- 68/Vol-VIII/4276 dated 29.09.2020 at Annexure-A/5, letter No. AC- 10/GRKuanr/2020/671 dated 18.11.2020 at Annexure A/7 and Memo No. B/G-138/Ch.II dated 22.12.2020 at Annexure -A/9. And consequently, orders may kindly be passed directing the respondents to confirm the earlier fixation w.e.f 15.02.1999 taking the Special Pay/Allowance as part of basic pay 4 O.A.No. 260/00127 of 2021 and further direct to refund in case anything is recovered from the applicant with interest.
And/or
(iii) Pass any other order(s) as the Hon'ble Tribunal deem just and proper in the interest of justice considering the facts and circumstances of the case and allow this O.A.
2. Respondents by filing counter have opposed the prayer of the applicant. The main thumb of their argument is that in terms of Rule 32 of CCS (Pension) Rules, 1972, during verification of service record of the applicant, it came to fore that the Special Allowance was wrongly drawn by the applicant w.e.f. 15.02.1999. Accordingly, on the objection raised during audit by respondent No.4 and on the basis of his order, respondent No. 5 decided to refix the applicant's pay and make recovery of excess pay and allowances w.e.f. 15.02.1999, which is in accordance with instructions contained in Rule 86 of the P&T FHB Vol-I (R/1) where it has been noted as under:
"86. When an Audit Officer/Accounts Officer disallows a payment as un- authorized, the Disbursing Officer is bound not only to recover the amount disallowed without listening to any objection or protest but to refuse to pay it in future till the Audit Officer/Accounts Officer authorizes the payment to be resumed; that no warning slip has been received by the Government servant against whom the retrenchment has been ordered, or that, being received, it has been answered, are facts with which the Disbursing Officer shall have no concern.5 O.A.No. 260/00127 of 2021
NOTE 1.- If a Government servant from whom a recovery is ordered, is transferred to the jurisdiction of another Disbursing Officer, the order of recovery should be passed on to that Disbursing Officer without delay.
NOTE 2.- A Disbursing Officer must not, when a retrenchment is ordered, enter into any correspondence with either the Audit Officer/Accounts Officer or the Government servant concerned; it is his duty simply and promptly to carry out the orders he has received, and to leave the person aggrieved to refer the case to the proper authority.
NOTE 3.- Representations and protests against retrenchments ordered by the Audit Office/Accounts Office may not ordinarily be considered by the administrative authorities if submitted later than three months from after the date of receipt of the intimation by the aggrieved Government servant. This provision does not remove from the Disbursing Officer the duty of enforcing immediately the recovery of a retrenchment order under this rule".
2.1 It is submitted by Ld. Counsel for the respondents that PO/RMS Accountants were in receipt of Special Pay of Rs. 90/- per month under FR 9(25) which was in lieu of Special Higher Scale. However, the Special Allowance would not be reckoned for fixation benefit at the time of promotion/financial upgradation as there is no provision under rules to reckon Special Allowance as part of pay for fixation of pay on promotion. It is averred that as per letter No. 2-19/2011-PAP dated 10.01.2013 of G.I., Department of Posts (Establishment Division, RAP Section), in the cases were promotion/financial upgradation has taken place on or after 01.08.1997 but before 22.04.1998, Special 6 O.A.No. 260/00127 of 2021 Pay/Allowance of Rs. 90/- only will be reckoned. As the applicant was drawing Special Pay of Rs. 90/- w.e.f. 24.07.1992, and he was given financial upgradation under TBOP on 15.02.1999, the Special Allowance drawn by him will not be taken into account for fixation of pay. Hence, they prayed for dismissal of this O.A.
3. Applicant has filed rejoinder refuting the contention of the respondents. It is submitted by Ld. Counsel for the applicant that in an identical matter, the Jodhpur Bench of this Tribunal in OA 463/2015 (Md. Yusuf Khan Vs. UOI & Ors dated 10.11.2017) have held that re- fixing the pay of the applicant therein excluding the special pay/allowance is arbitrary and illegal. The said decision has also been upheld by the Hon'ble Rajasthan High Court vide order dated 06.11.2018 in Civil Writ No. 12077/2018. It is stated that similar view has also been taken by the CAT, Mumbai Bench in a batch case, OA Nos. 512/2013, 187, 195, 196, and 218 of 2014, vide order dated 04.03.2020. Relying on the decision of the Hon'ble Apex Court in State of Punjab & Ors Vs. Rafiq Masih, 2014 AIR SCW 6256, Ld. Counsel for the applicant submits that recovery from a Group-C employee after 22 years and at the fag end of his retirement is bad in law.
7 O.A.No. 260/00127 of 2021
4. Heard Ld. Counsel for both the parties. After going through the pleadings and materials placed on record, we find that the issue involved in the instant OA is no more res intra in view of the orders of various Benches of this Tribunal. In OA No. 4474 of 2018 (Sanjeev Kumar & Ors Vs. UOI & Ors.), the CAT, Principal Bench vide order dated 03.03.2023, relying on the decision in OA No. 512/2013 (Shaukat Hasan Inamdar Vs UOI & Ors.), have held as under:
"3. Learned counsel for the applicants places reliance upon Order dated 10.01.2013 and concedes to the facts that though said Office Order at a relevant point of time was against the applicants. However, he draws attention to judgment dated 04.03.2020 in a batch matter leading one being OA No.512/2013 (titled Shaukat Hasan Inamdar vs. Union of India and others) passed by a Co- ordinate Bench of this Tribunal. The relevant paragraphs of the same read as follows:-
""4(a). The main prayer sought in these OAs is direction to the respondents to refix their pay at the time of time- bound promotion/grant of MACP even after 22.04.1998 by including the special pay/special allowance in their Basic Pay received by them before the promotion/financial upgradation and pay them arrears of pay accordingly. 4(b). The undisputed facts in these cases are that the applicants before their promotion under the time-bound promotion scheme or grant of financial upgradation under MACP, they were in receipt of Special Pay as per Fundamental Rule 9(25). After acceptance of V Central Pay Commission recommendations, DOPT issued the OM dated 22.04.1998 by which amount of the Special Pay already admissible was doubled in those cases where it had been sanctioned at current rates between 01.01.1986 and 31.12.1990, and enhanced by 50% in those cases where it was revised or introduced at higher rates after 31.12.1990. That OM further specified that the Special Pay would 8 O.A.No. 260/00127 of 2021 henceforth be termed as Special Allowance and would be granted subject to same conditions as are stipulated in Fundamental Rule 9(25) and these orders would be effective from 01.08.1997.
4(c). As per the letter dated 10.01.2013 issued by the Department of Posts, Ministry of Communications and Information Technology, Government of India, in view of dismissal of SLP No.CC 1080/2012 by Apex Court in Union of India Vs. S.Mohan Kumar, the issue of reckoning Special Pay termed as Special Allowance for pay fixation on promotion/financial upgradation was examined with consultation of the Department of Expenditure, Ministry of Finance and as per their concurrence, the Nodal Ministry gave concurrence dated 21.12.2012 to implement the judgment of the Bengaluru Bench of the CAT dated 22.10.2002 in OA No.296/2002 upheld by the Karnataka High Court in Writ Petition No.7593/2003 in respect of Shri Mohan Kumar and other similarly placed persons who were promoted after completing three years of service as PO and RMS Accountants before 22.04.1998 and in whose cases the Special Pay was Rs.90/- at the time of promotion. 4(d). In the letter dated 10.01.2013, concurrence was also conveyed that the above judgment of the Tribunal, and the judgments of Ernakulam Bench of the Tribunal in OA Nos.691/2005 and 437/2006 in cases of Ms. K.Rajeshwari and Ms. Anita K. Alexander, respectively and of Chennai Bench of the Tribunal in OA No.773/2010 in case of Ms. Jayalaxmi may be implemented by reckoning the Special Pay termed as Special Allowance as part of the Basic Pay for the purpose of pay fixation of the above then PO and RMS Accountants. The recovery, if any made from their pay and allowances on that account shall be refunded. It was further mentioned in that letter that the above benefit of pay fixation on promotion/financial upgradation shall also be extended to all similarly placed cases of PO and RMS Accountants where the Special Pay/Special Allowance at the rate of Rs.90/- per month was drawn continuously for three years before 22.04.1998. In cases where promotion/financial upgradation has taken place on or after 01.08.1997 but before 22.04.1998, special 9 O.A.No. 260/00127 of 2021 pay/allowance of Rs.90/- will only be reckoned for this purpose.
4(e). As per the DOPT OM dated 22.04.1998, the Special Pay drawn before 01.08.1997 was doubled to Rs.180/- per month from that date and termed as Special Allowance. However, at the time of their one time-bound promotion or grant of financial upgradation under MACP to the applicants, the Special Allowance at the rate of Rs.180/- per month has not been included in their Basic Pay while refixing the pay. The applicants in these OAs seek the inclusion of the Special Allowance of Rs.180/- per month as part of their Basic Pay at the time of refixation of their pay after promotion under the one time bound promotion or grant of financial upgradation under the MACP Scheme. 4(f). However, The respondents contend that in view of stipulation in para 4 of the letter dated 10.01.2013, only in those cases where the concerned employees had received Special Pay of Rs.90/- per month continuously for a period of three years has been included as a part of Basic Pay but as the promotion/financial upgradation to the applicants has been granted after 22.04.1998, the Special Allowance received by them cannot be included as part of the Basic Pay on their promotion or grant of financial upgradation. 4(g). A gist of the case laws relied upon by the applicants brings out the position that once an employee has been extended the benefit of Special Pay/Special Allowance for certain period as per the existing rules, that employee has a vested right in favour of that Special Pay/Allowance and by subsequent instructions or amendment to the Rules such a vested right cannot be withdrawn retrospectively. Non-inclusion of the Special Pay as a part of Basic Pay at the time of refixation of pay has been set aside by Jaipur Bench of the Tribunal in case of Mohd. Yusuf Khan Vs. Union of India and that decision was upheld by the Rajasthan High Court Jodhpur Bench. 4(h). As per the DOPT OM dated 22.04.1998, the distinction has been removed between the Special Pay received earlier as per stipulations under Fundamental Rule 9(25) and its subsequent name as Special Allowance at doubled the rates allowed from 01.08.1997 under the same conditions stipulated under FR 9(25). Therefore, the 10 O.A.No. 260/00127 of 2021 contention of the respondents is not correct that only Special Pay was to be included as part of the Basic Pay on promotion or financial upgradation and the Special Allowance does not qualify for such inclusion. In fact in the order of the respondents in letter dated 10.01.2013, there is no such distinction between the Special Pay and Special Allowance and based on the decisions of the Bengaluru, Ernakulam and Chennai Benches of the Tribunal, the Special Pay termed as Special Allowance has been allowed as a part of Basic Pay for pay fixation of PO and RMS Accountants i.e. similarly placed counterparts of the present applicants.
4(i). The second main contention of the respondents is reliance on the Apex Court decision dated 10.04.1990 in case of Mallikarjuna Rao and others Vs. State of Andhra Pradesh and others, reported in (1990) 2 SCC 707 holding that it is neither legal nor proper for the High Court or the Administrative Tribunals to issue directions or advisory sermons to the Executive in respect of sphere which is exclusively within the domain of the executive cadre under the Constitution such as framing of rules under Article 309 of the Constitution.
However, it is to be noted that the present cases are not for issuing any special directions with reference to rule making power of the Government under Article 309 of the Constitution. They are seeking relief by treating the Special Allowance received by them on par with the Special Pay received by them earlier for inclusion in their Basic Pay while refixing the pay on promotion or grant of financial upgradation. Therefore, this contention of the respondents is also not helpful to them. 4(j). The language of the DOPT OM dated 22.04.1998 was very unambiguous that the Special Pay would henceforth be termed as Special Allowance and would be granted subject to same conditions as are stipulated under Fundamental Rule 9(25). Therefore, for this purpose, there is no distinction between Special Pay and Special Allowance and as the applicants were granted the Special Pay earlier under Fundamental Rule 9(25) under certain terms and conditions, the Special Allowance granted to them under the same FR 9(25) at the applicable rates qualifies for 11 O.A.No. 260/00127 of 2021 inclusion as part of the Basic Pay when their pay was refixed on promotion under the One Time Bound Promotion Scheme or on grant of MACP upgradation. 4(k). As regards the differentiation made by the respondents with reference to inclusion of the Special Pay in the Basic Pay only if it was received before 22.04.1998, the Jodhpur Bench of this Tribunal in its decision dated 10.11.2017 in OA No.463/2015 in case of Mohd. Yusuf Khan Vs. Union of India & Others & Ors. has held that the refixation of the pay of the applicant by excluding the Special Pay was illegal and this decision of the Tribunal has been upheld by the Rajasthan High Court (Jodhpur Bench) dated 06.10.2018 and that there is no justification in restricting the benefit between the two dates i.e. giving benefit of the Special Pay only when the promotion/financial upgradation took place between 01.08.1997 to 22.04.1998. Also when decisions of other Benches of this Tribunal mentioned in the order of the respondents dated 10.01.2013, have been implemented for similarly placed Accountants by reckoning the Special Pay termed as Special Allowance as part of the Basic Pay for the purpose of the pay fixation, such benefits cannot be denied to the present applicants. In view of the above analysis, we are of the opinion that the applicants in these OAs have made out a justified case for inclusion of the special allowance granted to them under FR 9(25) in the basic pay on refixation of the pay on promotion/financial upgradation under MACP. Therefore, these OAs deserve to be allowed. 5. Decision: OAs are allowed with direction to the respondents to include the Special Allowance received by the applicants at the time of their promotion under the One Time Bound Promotion Scheme or grant of financial upgradation under the MACP Scheme and release payment of arrears of their pay to them accordingly in three months from today. However, they will not be entitled for payment of any interest on such arrears. If any recovery has been made from the applicant(s) after withdrawing such inclusion of Special allowance in basic pay, it should be refunded."12 O.A.No. 260/00127 of 2021
4. Learned counsel for the applicants further contends that the aforesaid Order has been implemented in letter and spirit as per the communication dated 02.03.2022.
5. As per the Order dated 01.11.2022 passed by this Tribunal in the instant case, learned counsel for the respondents was directed to take appropriate instructions from the respondents' department as to whether the aforesaid decision is squarely applicable to the present case. During the course of hearing, learned counsel for the respondents places on record an Office Order dated 28.02.2022, the contents of which are reproduced as under:-
"Kindly refer to the above mentioned case on further course of action to be taken on the judgement dated 04.03.2020 by the Hon'ble CAT Mumbai Bench, on OA 218/2014, 196/2014, 187/2014, 195/2014 and 512/2013 filed by Smt V A Javkar, Smt M K Madneni, Shri S R Dubey, Shri A T Sawant and Shri S H Inamdar against UOI & Ors.
2. The case was referred to Department of Expenditure, Ministry of Finance for their advice. Department of Expenditure vide their diary No. 08-1/2021-E III(A)/2448573 dated 21.02.2022 has agreed to the implementation of CAT Mumbai bench order dated 04.03.2020 for the applicants only (Copy enclosed).
3. I am directed to request to implement the above order of Hon'ble CAT, Mumbai dated 04.03.2020 in case of applicants and send a compliance report to this Directorate."
6. Learned counsel for the respondents concedes to the fact that the aforesaid Order has been implemented.
7. It is a well settled law that similar benefits ought to be extended to the similar persons even though who have not approached the Courts, as held in a catena of judgments rendered by the Hon'ble Supreme Court. More particularly, in light of decision rendered in State of Karnataka Vs. S.M. Kotrayya and others, reported in 1996 (6) SCC 267 and State of Karnataka Vs. C. Lalitha, reported in 2006 (2) SCC 747.
8. In view of aforesaid proposition of law, no divergent view can be taken by this Tribunal in the present matter.
9. In view of aforesaid, the Impugned Orders dated 04.10.2018 (Annexure A-1 Colly) and 21.08.2018 (Annexure A-2 Colly) are hereby quashed and set aside. The respondents are directed to 13 O.A.No. 260/00127 of 2021 issue appropriate orders regarding restoration of the basic pay of the applicants to its original position and recovery, if any, made so far shall be refunded to them and arrears, if any, shall be released within a period of three months from the date of receipt of a certified copy of this Order. It is made clear that the applicants are not entitled to interest on any such payment. However, the aforesaid exercise is not done within the prescribed time limit then the applicants shall be entitled to interest at the rate of GPF till the date of actual payment.
10. The OA is allowed in the aforesaid terms."
5. Since the facts and issues involved in the instant case, as discussed above, are same and similar to that of the case of Sanjeev Kumar & Ors. (supra) where the applicants, being similarly situated as that of the present applicant, were also aggrieved by the order of recovery due to reduction of their basic pay and they had also prayed to restore their basic pay to its original position and refund of recovered amount with interest, this Tribunal has no hesitation to hold that the applicant herein is entitled to the similar benefits as has been granted to the applicant in OA Nos. 512/2013 and 4474/2018. Accordingly, we quash the letter No. Pen.III/Genl/S.Verif. G.R. Kuanr/C- 68/Vol- VIII/4276 dated 29.09.2020 (A/5), letter No. AC-
10/GRKuanr/2020/671 dated 18.11.2020 (A/7) and Memo No. B/G- 138/Ch.II dated 22.12.2020 (A/9) and, as a consequence, direct the respondents to issue appropriate orders regarding restoration of the 14 O.A.No. 260/00127 of 2021 basic pay of the applicants to its original position and recovery, if any, made so far shall be refunded to him and arrears, if any, shall be released within a period of three months from the date of receipt of a certified copy of this order. It is made clear that the applicant is not entitled to interest on any such payment. However, if the aforesaid exercise is not done within the prescribed time limit then the applicant shall be entitled to interest at GPF rate till the date of actual payment.
6. The OA is accordingly allowed. Patties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS