Central Administrative Tribunal - Chandigarh
Unknown vs Indian Institute Of Advance Study on 11 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
CIRCUIT BENCH AT SHIMLA
Prounounced on: 11.03.2016
Reserved on: 04.03.2016
OA No. 063/00034/2015
Coram: Honble Mr. Justice L.N. Mittal, Member(J).
Honble Mrs. Rajwant Sandhu, Member(A).
Bali Ram S/o late Shri Ganeshu Ram R/o Village Rehutta, Post Office Piplughat, Tehsil Arki, District Solan, H.P. presently working as Office Assistant in Accounts Section, Office of Indian Institute of Advance Study, Rashtrapati Niwas, Shimla 5.
..Applicant
By Advocate : Ms. Ranjana Parmar, Sr. Advocate with Ms. Komal
Kumari
Versus
1. Indian Institute of Advance Study, Rashtrapati Niwas through its Secretary, Shimla, H.P.
2. Director, Rashtrapati Niwas, Shimla -5.
..Respondents
By Advocate : Sh. Anshul Bansal
O R D E R
By Honble Mrs. Rajwant Sandhu, Member(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking that office order dated 11th July, 2014 may be quashed and set aside and in result thereof office order dated 2nd July, 2014 refixing the pay of the applicant may also be quashed and set aside.
2. It is stated in the OA that the applicant joined the Indian Institute of Advanced Study, Shimla as Helper on 29.4.1985. He was promoted as L.D.C. on 30.9.1986, was promoted as U.D.C. and appointed as D.T.P. Operator on 27th October, 2008 (Annexure A-2). Thereafter, the applicant was promoted as Office Assistant on the recommendations of the DPC vide office order dated 7th September, 2009 (Annexure A-3). The pay of the applicant as D.T.P. Operator was fixed vide office order dated 16th March, 2009 (Annexure A-4) which shows that the pay of the applicant has been fixed in the Pay Band I i.e. Rs. 5200-20200+2800 Grade Pay. As the applicant on the date of promotion on 29.10.2008 was drawing Rs. 12200 on the lower post, his pay was fixed at Rs. 12970. Vide office order dated 7th October, 2009 (Annexure A-5), the pay of the applicant was fixed as Office Assistant from the date of promotion in Pay Band 2 i.e. Rs. 9300-34800 + Rs. 4200 Grade Pay. This shows that the applicant was drawing a sum of Rs. 12570 in the lower post. Annexure A-5 further reveals that the applicant has been shown to draw a sum of Rs. 10170 + 2400 Grade Pay on the lower post on the date of promotion i.e. 8th September, 2009.
3. It is further stated that the applicant made a request to the competent authority that on promotion as Office Assistant, the pay of the applicant was not fixed correctly. The applicant represented to the competent authority that pay of the applicant has to be fixed by giving him the benefit of promotion to the post of DTP Operator. The applicant was promoted as DTP Operator by the department without there being any option from him. Thereafter, the case of the applicant for promotion to the post of Office Assistant was considered by the authorities without there being any option from the applicant. Once the department has chosen to promote the applicant to the post of DTP Operator and thereafter to the post of Office Assistant without there being any option/representation exercised by the applicant, the pay of the applicant cannot be fixed to his detriment. The representation so filed by the applicant remained unattended by the respondents. Therefore, applicant filed OA No. 285/HP/2013 before this Tribunal. This OA came for hearing before this Tribunal and on 04.04.2014, the Tribunal directed the respondents to pass fresh order. Annexure A-5 was kept in abeyance (Annexure P-6). Copy of order was supplied to the respondents and applicant was given personal hearing. However, case of the applicant was rejected by the authorities on the ground that pay of the applicant had been correctly fixed. The pay of the applicant had to be fixed from cadre of UDC, as post of DTP Operator is an ex-cadre post and is not feeder post for the post of Office Assistant. It was in these circumstances that the respondents rejected the representation of the applicant and had also not taken into consideration the period for which the applicant worked as DTP Operator for the purpose of seniority. The order dated 11th July, 2014, was received by the applicant on 13.8.2014 after a period of one month from the date of passing of the order (Annexure P-7), but the respondents fixed the pay of the applicant vide communication dated 2nd July, 2014 as Section Officer (Annexure P-8). Hence this OA.
4. In the grounds for relief, it has, interalia, been stated as follows:-
(i) That the action of the respondents to deny benefit of pay fixation to the applicant as Office Assistant by taking into consideration his pay as Data Operator is wrong, illegal, unjust and against relevant rules and regulations.
(ii) That the applicant is practically promoted as Data Operator by the department. The nature of the post is ex-cadre post, hence, the same will not have any effect on the pay fixation of the applicant. The contention of respondents that D.T.P. Operator is not a feeder category for the post of Office Assistant, therefore, the applicant has no right to get his pay fixed by taking into consideration his pay as Data Operator. The contention of the respondents in this regard is not in consonance with rules framed by the Union of India for pay fixation and is available under Fundamental Rules 22 to 27. The impugned pay fixation of the applicant is also against the settled law. The pay of Government employee cannot be reduced by no stretch of imagination. The applicant was promoted as DTP Operator and has worked on that post on promotion order made by the competent authority. The promotion of the applicant as Office Assistant has also been made by the competent authority without any misrepresentation from the side of the applicant. By no stretch of imagination, the pay of a Government employee can be reduced to his detriment as he has not misrepresented to the competent authority for such pay fixation. The applicant could not be put to disadvantage by fixing his pay as Office Assistant taking into consideration his pay as UDC.
(iii) That from perusal of pay fixation of the applicant, it is clear that on 1.7.2009, the applicant was drawing the pay as Rs. 10560/- + Rs. 2800 and due pay to him on 1.7.2009 was Rs. 10760 + Rs. 2800 after adding one increment. However, the applicant was promoted as Assistant on 9.9.2009 and has been fixed in the pay scale of Rs. 10550/- + Rs. 4200 Grade Pay which is admittedly disadvantageous to him. The clarification/reasoning which has been given by the department is not in consonance with the rules and correct interpretation. In case a Government employee has been promoted to ex-cadre post, that period cannot be excluded for the purpose of seniority and pay fixation. The pay of the applicant has to be fixed by taking into consideration his last pay drawn and no other method can be applied for such pay fixation. In this view of the matter, the contention of respondents that pay of the applicant has to be fixed from the post of UDC and his entire service as DTP Operator has been excluded for consideration of pay fixation is wrong, unconstitutional, unauthorized and unwarranted fact and office order dated 11th July, 2014 received on 13.8.2014 by the applicant may be quashed and set aside.
5. In the written statement filed on behalf of respondents it has been stated that the seniority of applicant as UDC was maintained and on the basis of that, the applicant was promoted as Assistant and finally to the post of Section Officer. Had the seniority as UDC not been maintained, the applicant would not have been promoted as Assistant and finally as Section Officer. The pay of the applicant has rightly been fixed as per the provision contained in FR 22 (IV) which provided that Notwithstanding anything contained in this rule, where a Government servant holding an ex-cadre post is promoted or appointed regularly to a post in his cadre, his pay in the cadre post will be fixed only with reference to his presumptive pay in the cadre post which he would have held but for his holding in any ex cadre post outside the ordinary line of service by virtue of which he becomes eligible for such promotion or appointment. Therefore, the case is fully covered with this provision of FRSR and is liable to be dismissed.
6. No rejoinder has been filed on behalf of the applicant.
7. Arguments advanced by the learned counsel for the parties were heard when learned counsel for the applicant narrated the background of the matter. She accepted that the pay of the applicant as Office Assistant had to be fixed assuming that the applicant continued to work as UDC till he was promoted as Office Assistant. The pay fixed as on promotion when the applicant was appointed as DTP Operator being an ex-cadre post had to be ignored as the DTP Operator was an ex-cadre post. She also stated that the pay of the applicant on the lower post on 29.10.2008 was Rs. 12200 and he was entitled to increment @ 3% of Rs. 370.
8. Learned counsel for the respondents asserted that the pay fixation as Office Assistant (Annexure A-5) and as Section Officer (Annexure A-8) had been done correctly and the applicant was not entitled to any relief.
9. We have carefully considered the matter. The claim made in the OA is based on the premise that pay fixation as DTP Operator had to be taken into account while subsequently fixing the pay of the applicant as Office Assistant. This contention is not sustainable as DTP Operator was an ex-cadre post. There was no channel of promotion from UDC to DTP Operator to Office Assistant and for promotion as Office Assistant, the feeder category was UDC. Hence, the pay fixation of the applicant as Office Assistant and later on his promotion as Section Officer is in order. There being no merit in the claim made in the OA, the same is dismissed. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE L.N. MITTAL) MEMBER(J) Dated:
ND* 1 OA No. 063/00034/2015