Central Administrative Tribunal - Delhi
J.S. Sharma vs Union Of India & Others Through on 5 February, 2013
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.363/2012
Order Reserved on: 07.01.2013
Order pronounced on 05.02.2013
Honble Shri V. Ajay Kumar, Member (J)
1. J.S. Sharma,
S/o Shri K.C. Sharma,
R/o 721, Neel Kanth Apartment,
Sector-13, Rohini,
Delhi-81.
2. Anant Kumar,
S/o Shri O.P. Rajput,
R/o 1-B, Dhruv Apartment,
Sector-13, Rohini,
Delhi-81.
3. Manoj Kumar Sharma,
S/o Shri Makkhan Lal Sharma,
R/o M-2, Andrews Ganj,
New Delhi-49.
4. A.K. Rajdev,
S/o Shri Charandas Raj,
R/o 53, Ambika Apartments,
Sector-14, Rohini,
New Delhi.
5. K.V. Singh,
S/o Shri Dhup Singh,
R/o B-81, Sector-36,
Noida, U.P.
6. P.K. Vats,
S/o Dr. Ram Murthy Sharma,
R/o 5, Dr. BSA Hospital,
Sector-6, Rohini,
Delhi-85.
7. A.K. Ahuja,
S/o Shri B.S. Ahuja,
R/o A-125, Janak Puri,
New Delhi.
8. S.R. Kinra,
S/o Shri B.D. Kinra,
R/o B1/7, Plot 40,
Sector-6, Dwarka,
New Delhi.
9. Divakar Agarwal,
S/o Shri Satyavrat Gupta,
R/o C-45, Sector-61,
Noida, U.P.
10. S.C. Bhardwaj,
S/o Shri B.S. Bhardwaj,
R/o 37, SFS, Ashok Vihar,
Phase-IV, New Delhi.
11. Pramod Kumar Singh,
S/o Shri Ram Surat Singh,
R/o Q-7/1, Sector-13,
R.K. Puram, New Delhi-23.
12. Khem Chand Singh,
S/o Shri Mangi Singh,
R/o H.No.324, Sector-21C,
Faridabad, Haryana-121001.
13. Rajeev Kumar Gupta,
S/o Shri Ram Prasad Gupta,
R/o 149, Venus Apartments,
Sector-9, Rohini,
Delhi-85.
14. Prabhakar Singh,
S/o Late Shri Shivkant Singh,
R/o K-6-3, M.S. Flats,
Sector-13, R.K. Puram,
New Delhi-66.
15. Shailendra Sharma,
S/o Shri Shivraj Singh,
R/o 10/203, East End Appartments,
Mayur Vihar, Phase-I,
Delhi-96.
16. Mayank Kumar Tilak,
S/o Shri Raghukul Tilak Singh,
R/o D-II/122, Kaka Nagar,
New Delhi.
17. Sunil Kumar Roy,
S/o Shri C.S.P.S. Roy,
R/o J-7/1, Sector-13,
R.K. Puram, New Delhi.
18. Narender Kumar,
S/o Shri Pheru Singh,
R/o 113, Sector E/2,
Vasant Kunj, New Delhi-70.
19. S.K.S. Deol,
S/o Shri Sadhu Singh Deol,
R/o B-40/D-II Flats,
Moti Bagh (North),
New Delhi.
20. O.P. Tripathi,
S/o Shri J.P. Tripathi,
R/o 105, Sadbhawna Apartments,
13, I.P. Extension,
Patperganj, Delhi-92.
21. Arvind Kumar Verma,
S/o Shri Upendra Nath Verma,
R/o Ty.VI/2, Kendrachal,
Begam Sarai, Mudra Chungi,
Allahabad, U.P.-211011.
22. S.P. Chaudhary,
S/o Shri Vishwa Nath Chaudhary,
R/o Q-16, Andrews Ganj Extension,
New Delhi-49.
23. Kamlesh Kumar,
S/o Shri Munni Prasad Sharma,
R/o Moni Kunj, V-20, Vidyapuri,
Kankarbagh, Patna,
Bihar-800020. .. Applicants
(By Advocate: Shri M.K.Bhardwaj)
Versus
Union of India & Others through:
The Secretary
Govt. of India
Ministry of Urban Affairs & Employment
Nirman Bhawan
New Delhi 110 001.
Director General Works
Central Public Works Department
Nirman Bhawan
New Delhi. Respondents
(By Advocate: Shri D.S.Mahendru)
O R D E R
Whether Group `A officers, who have been granted Grade Pay of Rs.10000/- under Non-Functional Upgradation Scheme, are entitled for drawing the Transport Allowance at the enhanced rate of Rs.7000/- + DA on par with Joint Secretary level officers in the Government of India, who are also in the Grade Pay of Rs.10000/-, is the question fallen for consideration in this OA.
2. The brief facts of the case are that all the applicants are belonging to organized Group `A Services and presently serving in the grade equivalent to the post of Joint Secretary, Government of India. Consequent upon the acceptance of the recommendations of the 6th Central Pay Commission, the Department of Personnel & Training, Government of India issued Annexure A3 [Office Memorandum No.AB.14017/64/2008-Estt.(RR)] dated 24.04.2009 wherein it was stated that Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific Grade Pay in Pay Band-3 or Pay Band-4, the officers belong to batches of organized Group `A services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre, and that such grant of higher sale would be governed by the terms and conditions given in Annexure-I to the said Office Memorandum which reads as follows:
"TERMS AND CONDITIONS FOR GRANT OF HIGHER PAY SCALE ON NON-FUNCTIONAL BASIS TO OFFICERS OF ORGANISED GR. A SERVICES The non functional up-gradation granted under these orders will be based on empanelment and posting of particular batch of IAS officer in the Centre. Such up-gradation would not be linked to the vacancies in the grade.
The up-gradation granted under these orders will be a purely non-functional up-gradation, personal to the officer and it would not bestow any right to the officer to claim promotion or deputation benefits based on non-functional up-gradation in such a manner.
All the prescribed eligibility criteria and promotional norms including benchmark for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.
A screening committee would be formed by the Ministry for implementation of these orders. There would be three members in committee so formed and they would at-least be one level above the grade for which up-gradation is being considered. Secretary of the Ministry concerned would chair the committee.
All instructions concerning grant of non-functional upgradation presently applicable in the case of grant of NFSG to officers of Group `A Services would apply in the event of penalty, disciplinary proceedings, suspension etc. Orders will be issued with the approval of the competent authority. Grant of higher pay scale on the non-functional basis would be from the date of posting of the first officer belonging to the particular batch of IAS officer at the centre. In case of any delay in the issue of orders, financial benefits under these orders will be given from the due date.
(i) Pay fixation under on grant of non-functional upgradation under these orders will be done as per the provisions of CCS (RP) Rules, 2008 i.e. the officers will be granted one increment at the rate of 3% of basic pay and the difference of grade pay will be added to their basic pay.
(ii) As far as similarly placed officers of organized Gr. A Services, who are posted under the Central Staffing Scheme are concerned, they will be granted one additional increment on account of the non-functional up-gradation, but their grade pay will remain unchanged on the ground that they are holding a particular post with a specific grade pay under the Central Staffing Scheme. In such cases the officers granted non-functional up-gradation may continue to draw CDTA if admissible.
As and when the normal vacancies in the grade arise, the officer will be considered for regular promotions as per the normal DPC guidelines, based on the provisions of the recruitment rules. UPSC will be consulted wherever the rules provide for the same. However at the time of promotion, the pay in the grade will not be fixed again for officers who have been granted up-gradation under these orders.
Officers on deputation/study leave or any other duly sanctioned leave would also be considered and granted higher pay-scale on non-functional basis according to the prescribed procedure.
Non-functional up-gradation to the next higher grade pay granted under the scheme is a fall back option only, to be applied in cases where officers of a particular Service have not been granted promotion to a particular grade in normal course according to the due procedure."
In pursuance of the said OM, all the applicants were granted with the Non-Functional Upgradation to the grade of Joint Secretary (SAG) in the Pay Band-4 (Rs.37400-67000 + GP of Rs.10000) vide Annexure A4 - Office Order No.30/26/2010-EC-I/EW-1 dated 03.02.2011.
3. As per the policy of the Government, the officers who are drawing different pay scales, are being paid Transport Allowances at different rates as enhanced from time to time. The relevant orders of the Government, in respect of the Transport Allowances, issued vide OM No.21(1)/97/E.II(B), dated 03.10.1997 as amended by OM dated 22.02.2002 (Swamys Compilation of FRSR Part-II - Vol. 2006) are as follows:
The 5th Central Pay Commission, vide Paras 107.11 to 107.13 of Volume-III of their Report, have recommended the grant of Transport Allowance to Central Government employees to suitably compensate them for the cost incurred on account of commuting between the place of residence and the place of duty.
2. The matter has been considered and the Government have accepted the recommendation of the Commission, as announced vide Resolution No.50(1)/IC/97, dated 30.9.1997, the President is, accordingly, pleased to decide that the Central Government employees shall be entitled to Transport Allowance at the following rates:-
Pay Scale of the Employee Rate of Transport Allowance per month (in Rupees)
----------------------------
A-1/A Other Class city places
1. Employees drawing pay in the scale of pay of Rs.8,000-13,500 or above. 800 400
2. Employees drawing pay in the scale of Rs.6,500-6,900 or above but below the scale of Rs.8,000-13,500. 400 200
3. Employees drawing pay below the scale of Rs.6,500-6,900 100 75
3.The grant of transport allowance under these orders shall be regulated according to, and will be subject to, the following conditions:
(i) The cities referred to as A and A-1 in these orders shall be the same as those classified as such for the purpose Compensatory (City) Allowance (CCA) in terms of the orders issued separately regulating grant of CCA to the Central Government employees;
.
(ii) the allowance shall not be admissible to those employees who are provided with Government accommodation within a distance of one kilometer or within a campus housing the places of work and residence.
NOTE:- The grant of the allowance under these orders would be subject to furnishing of a certificate by the employee that the Government accommodation is not located within one kilometer from the place of work of the concerned employee or within a campus housing the places of work and residence.
(iii) the allowance shall not be admissible to those employees who have been provided with the facility of Government transport.
(iv) In case of employees who have opted to draw pay in the pre-revised scales of pay, the transport allowance shall be regulated in accordance with the revised scales of pay to which such employees would have been entitled to, had they opted to come over to revised scales.
(v) In case of officers of the level of Joint Secretary and above, who have been provided with the facility of staff car for commuting between office and residence on prescribed payment basis under O.M. No. 20(5)-E. II (A)/93, dated 28-1-1994, an option may be given to them either to avail themselves of the existing facility or to switch over to the payment of Transport Allowance, as admissible under these orders. In case they opt for the latter, they may be paid the allowance at rates as applicable to them, subject to the condition that the existing facility of staff car shall be withdrawn from the date they opt for the allowance. In case they opt for the former, the allowance shall not be admissible to them and they would not be required to make any payment for the facility of staff car between residence and office.
(vi) Vide O.M. No. 19029/1/78-E. IV (B), dated 31-8-1978, as amended from time to time, (Order No. 2 in this Appendix), conveyance allowance is admissible to such of the Central Government employees borne on regular establishment (including work-charged staff) as are blind or are orthopaedically handicapped with disability of lower extremities. Consequent upon coming into force of these orders, such conveyance allowance shall be abolished and instead all such employees may now be paid transport allowance at double the normal rates prescribed under these orders. In case, however, such handicapped employees have been provided with Government accommodation within a distance of one kilometer from the place of work or within a campus housing the places of work and residence, the allowance shall be admissible at normal rates as applicable under these orders. The allowance shall not be admissible in case such employees have been provided with the facility of Government transport.
(vii) This allowance will not be admissible if a Government servant is absent from duty for full calendar month(s) due to leave, training, tour etc.
4. These orders shall take effect from 1-8-1997.
5. In their application to the employees serving in the Indian Audit and Accounts Department, these orders issue in consultation with the Comptroller and Auditor General of India.
6. These orders shall also apply to the civilian employees paid from the Defence Services Estimates and expenditure will be chargeable to the relevant Head of the Defence Services Estimates. In regard to Armed Forces Personnel and Railway employees, separate orders will be issued by the Ministry of Defence and Ministry of Railways, respectively.
[G.I., M.F., O.M. No.21(1)/97/E.II(B), dated the 3rd October, 1997, as amended by O.M., dated the 22nd February, 2002.]
4. The officers of the level of Joint Secretary and above, who have been provided with the facility of staff car for commuting between office and residence on prescribed payment basis under OM No.20(5)-E.II(A)/93 dated 28.01.1994, can opt to avail themselves of the existing facility or to switchover to the payment of Transport Allowances as admissible under the orders. In case they opt for the latter, they are paid the allowances at rates as applicable to them, subject to the condition that the existing facility of staff car shall be withdrawn from the date they opt for the allowances. In case they opt for the former, the allowances shall not be admissible to them and they would not be required to make any payment for the facility of staff car between the residence and office.
5. Since the Grade Pay of the officers of the level of Joint Secretary is Rs.10000/- and on granting of non-functional upgradation to the applicants to the grade of Joint Secretary in pursuance of the Office Order dated 03.02.2011, referred to above, the respondents are allowing Transport Allowances at the rate of Rs.7000/- + DA to all the applicants with effect from the dates from which they were conferred the Non Functional Upgradation vide Annexure A4 Office Order. This is so because the officers of the level of Joint Secretary, Government of India are in the Grade Pay of Rs.10000/- and on granting of Non-Functional Upgradation the applicants are also drawing the same Grade Pay, i.e., Rs.10000/-.
6. However, the respondents all of a sudden issued orders vide the impugned Annexure A1 OM dated 23.09.2011 ordered that the Transport Allowances at the enhanced rate of Rs.7000/- + DA is not payable to those officers who have been granted Grade Pay of Rs.10000/- under Non-Functional Upgradation Scheme and that only those officers who are entitled to the use of official car in terms of Department of Expenditure OM No.20(5)/E-II(A)/93 dated 28.01.1994 shall have the option to avail the facilities of staff car to draw Transport Allowances at the rate of Rs.7000/- + DA and hence over payment, if any, be recovered after giving due notice to the officers concerned. In pursuance of the same, individual notices have been issued to the applicants calling for their suggestion/consent for effecting the recovery vide impugned letter dated 05.10.2011. Aggrieved by the same, the present OA has been filed.
7. Shri M.K.Bhardwaj, the learned counsel for the applicant would submit that categorization of posts is based on the Pay Band or the Pay Scale and that once the Grade Pay of the applicants being officers of organized Group `A services is equivalent to officers of level of Joint Secretary and above, they are also entitled for drawing the Transport Allowances at the rate of Rs.7000/- + DA as entitled by the officers of the Joint Secretary level in Government of India.
8. Shri M.K.Bhardwaj, learned counsel further submits that the rate of TA is always linked with the pay scale or Grade Pay of the officers and though the applicants are entitled to draw the Transport Allowances at the rate of Rs.3200+DA as per their Grade Pay before they were granted with the Non-Functional Upgradation to the grade of Joint Secretary level officers and once they were granted the Grade Pay of Rs.10000/- on par with the Grade Pay of the Joint Secretary level officers, on confirmation of the Non-Functional Upgradation on them by virtue of the Office Order dated 03.02.2011, they are entitled to draw the Transport Allowances at the rate of Rs.7000/- + DA as applicable to the Joint Secretary level officers with effect from the respective dates on which the said Non-Functional Upgradation conferred on the applicants.
9. The le-rned counsel for the -pplicant further submits that, in any event, the payment of TA at the rate of Rs.7000 + DA was made by the respondents themselves and not by virtue of any misrepresentation or fraud on the part of the applicants and hence, no recovery can be made. He further submits that as per the recommendations of the 6th Central Pay Commission, the TA has become part of their salary and they never made any specific representation in that regard and for this reason also no recovery can be affected. He placed reliance on the Judgements of the Honble Apex Court in Syed Abdul Kadir v. State of Bihar, (2009) 3 SCC 475 and Shyam Babu Verma v. Union of India & Others, (1994) 2 SCC 521.
10. Per contra, Shri D.S.Mahendru, the learned counsel for the respondents submits that conferment of Non-Functional Upgradation to the grade of Joint Secretary in the Pay Band-4 (Rs.37400-67000 + GP of Rs.10000) on the applicants does not ipso facto made them as Joint Secretary level officers. As per the terms and conditions for grant of National Functional Upgradation Scheme issued vide OM dated 24.04.2009 (Annexure A3), the upgradation granted under the orders will be purely Non-Functional Upgradation, personal to the officers and it would not bestow any right to the officer to claim promotion or deputation benefits based on the Non-Functional Upgradation in such a manner". Hence, the applicants though granted the Non-Functional Upgradation, and placed in the Grade Pay of Rs.10000/- but they are not entitled for the Transport Allowances at the rate of Rs.7000/- + DA which is exclusively available to the officers of the level of Joint Secretary, Govt. of India only, in terms of OMs dated 28.01.1994, 3.10.1997 and 22.02.2002. He further submits that vide Annexure R1 dated 05.03.2009 of the Department of Expenditure, it is clarified that the applicants are entitled for Transport Allowances at the rate of Rs.3200 per month plus DA thereon only and that they continue to be entitled for the same as long as they continue as Director/equivalent at the centre, notwithstanding they may have been granted non-functional upgradation to the next higher Grade Pay of Rs.10000/-. He further submits that the Department of Expenditure vide their OM dated 23.09.2011 once again clarified that the officers in PB-4 with the Grade Pay of Rs.10000/- who are entitled to the use of official car in terms of OM No.20(5)-E.II(A)/93, dated 28.01.1994 shall have the option to avail these facilities of Staff Car or to draw the Transport Allowance at the rate of Rs.7000/- per month plus DA thereon.
11. We have heard the counsel for both sides and have been through the pleadings on record.
12. A careful reading of the OM dated 3.10.1997 as amended by OM dated 22.02.2002 clearly reveals that the officers of the level of Joint Secretary and above who have been provided with the facility of staff car for commuting between office and residence on prescribed payment basis under OM dated 28.01.1994 and who are having option to avail themselves of the existing facility or to switchover to the payment of TA, as admissible under these orders, are only entitled for the Transport Allowance at the rate of Rs.7000/- per month plus DA thereon. Just because of granting of Grade Pay of Rs.10000/-, the applicants cannot claim all the benefits or allowances entitled by the Joint Secretary level officers. Those officers who were promoted to the Joint Secretary grade on regular basis alone can claim the aforesaid benefit but not other officers though drawing the same Grade Pay of Rs.10000/-.
13. The OM dated 23.04.2009 (Annexure A3) under which the applicants got the non-functional upgradation and the consequential Grade Pay of Rs.10000/- itself clearly reveals that the upgradation would not bestow any right to the officers to claim promotion or deputation benefits and that the same is personal to the officer. In view of the same, the contention of the applicants that they are entitled for the Transport Allowances at the rate of Rs.7000/- per month plus DA thereon is untenable and cannot be accepted.
14. In so far as the aspect of recovery is concerned, admittedly the payment of Transport Allowance at the rate of Rs.7000/- per month plus DA thereon with effect from the respective dates on which the applicants were granted the non-functional upgradation, was not on any misrepresentation or fraud played by the applicants. On the other hand, the respondents themselves paid the same to the applicants.
15. The Hon'ble Supreme Court in Syed Abdul Kadir's case (supra), held as follows:
57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See: Sahib Ram v. State of Haryana 1995 SCC (L&S) 248; Shyam Babu Verma v. Union of India (1994) 2 SCC 521; Union of India v. M. Bhaskar, (1996) 4 SCC 416; V. Gangaram v. Director, (1997) 6 SCC 139; Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709; Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492; Punjab Natinal Bank v. Manjeet Singh, (2006) 8 SCC 647; and Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99.
16. In view of the settled legal position on the aspect of recovery, the respondents cannot recover any amount on the ground of over payment towards Transport Allowance at the rate of Rs.7000/- per month plus DA thereon from the applicants.
17. Hence, in the circumstances and for the aforesaid reasons, the respondents are directed not to effect any recovery from the applicants in pursuance of the impugned OM/letter dated 23.09.2011 and 5.10.2011. Accordingly, the OA is partly allowed. No order as to costs.
(V. Ajay Kumar) Member (J) /nsnrvak/