Central Administrative Tribunal - Bangalore
Jyiesh T S vs Ministry Of Electronics & Information ... on 5 July, 2023
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OA.No.170/00312/2021/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00312/2021
DATED THIS THE 05TH DAY OF JULY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Jyiesh T.S.,
S/o T.M. Sivasankara Pillai,
Aged 42 years, working as
Deputy Director (Authentication),
Unique Identification Authority of India,
Technology Centre, Aadhar Complex,
NTI Layout, Tata Nagar, Kodigehalli,
Bengaluru 560 092, Residing at No. A303,
VRR Lakeview, Lake Road,
Doddanekundi,
Bengaluru 560 037 .... Applicant
(By Shri A. R. Holla, Advocate)
Vs.
1. Union of India,
By Secretary,
Ministry of Electronics & Information Technology,
Electronics Niketan,
6, CGO Complex, Lodhi Road,
New Delhi 110 003
2. The Chief General Manager,
Karnataka Telecom Circle,
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OA.No.170/00312/2021/CAT/BANGALORE
No. 1, Swami Vivekananda Road,
Halasuru, Bengaluru 560 008
3. The Chief Executive Officer,
Unique Identification Authority of India,
Bangal Sahib Road, Behind Kali Mandir,
Gole Market, New Delhi 110 001
4. The Deputy Director General (Admn),
UIDAI Technology Centre,
Aadhar Complex, NTI Layout,
Tata Nagar, Kodigehalli,
Bengaluru 560 092 ...Respondents
(By Shri S. Sugumaran, Senior Panel Counsel for Respondent
No. 1 &
Shri N. Amaresh, Senior Panel Counsel for Respondents No.
2 to 4)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) To quash the orders (a) Office Memorandum No. A- 42011/8/11-UIDAI (HR/4) dated 09.02.2021, Annexure-A8,
(b) Office Order No. TC/UID/ADMIN/GENERAL ADMIN/01/BLR/2016-17 dated 16.02.2021, Annexure-A9 and Order No. A-42011/8/11-UIDAI (HR)/(4)/282 dated 20.04.2021, Annexure-A11,
(ii) Direct the respondents to take consequential steps to make payment to the applicant accordingly and 3 OA.No.170/00312/2021/CAT/BANGALORE
(iii) Grant such other relief deemed fit, having regard to the facts and circumstances of the case."
2. The facts in brief as narrated by the applicant are that the Unique Identification Authority of India (UIDAI) has sought officials from BSNL to work on deputation. The applicant was working as Junior Telecom Officer (IT) in BSNL. The UIDAI selected him for appointment as Senior System Analyst in UIDAI on deputation basis. He assumed the charge as Senior System Analyst in UIDAI, Bangalore on 14.08.2012. The applicant exercised option for drawing IDA scale of pay consequent to pay fixation on account of 78.2% IDA fitment and second Time Bound upgradation since 01.01.2012. The applicant has been re-designated as Deputy Director (Authentication) in terms of the order dated 26.06.2015. Thereafter, the applicant requested the UIDAI to revise his option and switch over to draw the pay of the deputation post in CDA scale with effect from 01.01.2016 in the pre-revised pay structure to be further revised as per the procedure laid down under Rule 7 (A) of the CCS (RP) Rules, 2016, the same was allowed by the UIDAI in terms of the order dated 27.02.2017. Accordingly, his pay has been fixed in CDA scale in the pay band Rs. 15600-39100 + 6600 Grade Pay with effect from 01.01.2016 in terms of the sanction proceedings dated 4 OA.No.170/00312/2021/CAT/BANGALORE 17.04.2017. The period of deputation was extended every year from 14.08.2012 to 13.08.2019.
3. In the meantime, the internal auditors raised objections with regard to pay fixation of the applicant in particular for switching over to the CDA scale from 01.01.2016. Respondent No. 3 issued an order dated 09.02.2021 stating that all the offices of UIDAI should verify that the pay and allowances of the officers working (worked) on loan basis, is being (had been) disbursed as per their entitlement in their parent office. The benefit of pay and allowances attached to the deputation post should not be allowed to such officers. Based on the said order, the pay of the applicant has been re-fixed, reducing the same with effect from 01.01.2016 as per IDA scale unilaterally. Despite representation submitted by the applicant against the reduction in his pay sans considering the grounds urged, recovery proceedings were initiated, hence, this application.
4. Learned counsel Shri A.R. Holla representing the applicant would submit that at the time of assumption of charge in UIDAI, the applicant opted for CDA scale and later he opted for IDA pattern. Thereafter, during implementation of 7th CPC pay scales in April, 2017, based on the representation of the applicant, the UIDAI 5 OA.No.170/00312/2021/CAT/BANGALORE extended the benefits of the 7th CPC pay scales by allowing the applicant to revise his option from IDA to CDA pattern. Accordingly, the applicant was permitted to switch to draw the pay of the deputation post with effect from 01.01.2016 in the pre-revised structure and further, the pay was to be revised as per Rule 7 (A) of CCS (RP) Rules, 2016. The applicant has not been informed that the maximum period of deputation is 7 years and beyond that period he would be treated on loan basis etc. and the same was not one of the terms of the deputation. The view taken by the respondents that the applicant remains under the administrative control of the parent department when he is on loan basis, even though he is working under UIDAI, is preposterous. The reduction of pay and allowances of the applicant unilaterally with retrospective effect is in violation of the principles of natural justice. Accordingly, seeks for setting aside the impugned orders.
5. Reply statement has been filed on behalf of Respondent No. 2. Respondent No. 2 has submitted that the applicant was working as Junior Telecom Officer (JTO), IT (Data Centre) in BSNL and was relieved from the office of PGM, BGTD on 04.08.2012, based on stipulated guidelines/terms and conditions. BSNL 6 OA.No.170/00312/2021/CAT/BANGALORE Corporate Office had approved for deployment of the applicant. It has been further submitted that BSNL is only a formal party in the instant application as the applicant has challenged the orders passed by Respondents No. 3 and 4 and no action lies on the part of the Respondent No. 2, i.e., BSNL.
6. Detailed reply statement has been filed by Respondents No. 3 & 4.
7. Learned counsel Shri N. Amaresh representing the Respondents No. 3 & 4 submitted that as per the OM dated 17.06.2010, issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, an employee appointed on deputation/foreign service, may elect to draw either the pay in the scale of pay of deputation/foreign service post or his/her basic pay in the parent cadre plus Deputation (Duty) Allowance thereon plus personal pay, if any. Sub clause 8.3.1 (iii) provides that no further extension beyond the fifth year shall be considered. Para 4 of the said OM contemplates that option once exercised by the employee shall be final. The applicant has even executed a form of option dated 02.03.2017 which contain an undertaking prescribed under Rule 6 7 OA.No.170/00312/2021/CAT/BANGALORE (2) of CCS (RP) Rules, 2016, given at the time of revision of pay as per 7th CPC with effect from 01.01.2016. In terms of the said undertaking, the applicant is bound in law to refund the excess payment received by him to the government either by adjustment against future payments due or otherwise. In view of the said undertaking submitted, the applicant upon the direction to recover the excess payment received by him, is bound to accept the recovery.
8. Placing reliance on the OM dated 17.06.2010 learned counsel submitted that based on the internal audit team's report, the wrong pay fixation of the applicant has been rectified. Learned counsel further submitted that during the loan period, the officer is deemed to be under the administrative control of his/her parent office. The appointment of the applicant on deputation and subsequently on loan basis has been made on the willingness of the applicant in the light of the prevailing rules in consultation with the IFD and with the approval of the competent authority i.e. CEO, UIDAI, further necessary directions for rectifying the discrepancy and processing the recovery of excess payment were initiated. On these grounds, seeks for dismissal of the application. 8
OA.No.170/00312/2021/CAT/BANGALORE
9. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
10. OM dated 17.06.2010 issued by Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training deals with the transfer on deputation/foreign service of Central Government Employees to ex-cadre posts under the Central Government/ State Governments/Public Sector Undertakings/Autonomous Bodies, Universities/UT Administration, Local Bodies etc. and vice-versa -- Regulation of pay, Deputation (duty) Allowance, tenure of deputation/foreign service and other terms and conditions. Clause 4 deals with the exercise of option and the same reads thus:
"4. Exercise of option 4.1 An employee appointed on deputation/foreign service, may elect to draw either the pay in the scale of pay of deputation/foreign service post or his/her basic pay in the parent cadre plus deputation (duty) allowance thereon plus personal pay, if any. However, in case of Government employees on deputation/ foreign service to CPSEs, this option will not be allowed and their pay will be governed in terms of the orders issued by Department of Public Enterprises vide OM dated 26.11.2008 and clarifications issued thereafter.9
OA.No.170/00312/2021/CAT/BANGALORE 4.2 The borrowing authority shall obtain the option of the employee within one month from the date of joining the ex-cadre post unless the employee has himself furnished the option. 4.3 The option once exercised shall be final. 4.4 However, the employee may revise the option under the following circumstances which will be effective from the date of occurrence of the same:
(a) When he/she receives proforma promotion or is appointed to non-functional selection grade or up-gradation of scale in the parent cadre;
(b) When he/she is reverted to a lower grade in the parent cadre;
(c) When the scale of pay of the parent post on the basis of which his emoluments are regulated during deputation/foreign service or of the ex-cadre post held by the employee on deputation/foreign service is revised either prospectively or from a retrospective date.
(d) Based on the revised/same option of the employee, in the event of proforma promotion/appointment to non-functional Selection Grade/revision/upgradation of scales of pay in the parent cadre, his/her pay will be re-fixed with reference to the revised entitlement of pay in the parent cadre. However, if the initial option was for the pay scale of the deputation post and no change in option already exercised is envisaged, the pay already drawn in deputation post will be protected if the pay re-fixed is less.
Note: Revision in the rates of DA, HRA or any other allowance either in the parent or borrowing organisation shall not be an occasion for revision of the earlier option."
11. Placing reliance on this OM, learned counsel for the respondents strongly argued that the option exercised by the applicant to opt for IDA scale is final and sanction proceedings dated 17.04.2017 allowing the applicant to switch over to CDA for fixation 10 OA.No.170/00312/2021/CAT/BANGALORE of pay under CCS (RP) Rules, 2016 with effect from 01.01.2016 is invalid. It is hard to accept the said argument. It is not in dispute that the said order of sanction has not been withdrawn by the respondents. Pursuant to the request made by the applicant, the applicant was allowed to switch over to CDA vide sanction proceedings dated 17.04.2017. Accordingly, revised pay fixation was made under Rule 7 (A) of CCS (RP) Rules, 2016. Suddenly, vide office order dated 16.02.2021, the pay fixation made on 17.04.2017 has been revised and re-fixed reducing the pay with effect from 01.01.2016 unilaterally. It is trite that a right accrued to the applicant cannot be altered/annulled without providing an opportunity of hearing to the applicant. Re-fixation of pay as per office order dated 16.02.2021 (Annexure-A9) retrospectively, after a period of 5 years, is in utter violation of the principles of natural justice. On this ground alone, the application has to succeed. Even if the audit objection ought to be considered, retrospective revision of pay whether is reasonable having regard to the hardship that would result on recovery, for no fault of the applicant, has to be examined after application of mind by the respondents.
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12. The applicant has submitted a representation dated 18.02.2021 (Annexure-A10). In response, Respondent No. 3 has issued an order dated 20.04.2021 (Annexure-A11) impugned herein.
13. In our considered view, ex facie this order (Annexure- A11) is cryptic and non-speaking. It is well-settled that any order passed without assigning reasons is void ab initio and deserves to be set aside. Application of mind to the representation not being established, the same being in violation of the principles of natural justice, we find it appropriate to set aside the orders dated 16.02.2021 at Annexure-A9 and the order dated 20.04.2021 at Annexure-A11.
14. For the reasons aforesaid, we pass the following :ORDER:
1) Annexure-A9 dated 16.02.2021 issued by the Respondent No.4 and Annexure-A11 dated 20.04.2021 issued by the Respondent No. 3 are quashed. The matter is restored to the file of Respondent No. 3 to re-consider the matter after issuing the show cause notice to the applicant. All the rights and contentions of the parties are left open.12
OA.No.170/00312/2021/CAT/BANGALORE
2) Respondent No. 3 is directed to pass an appropriate reasoned and speaking order in accordance with law after considering the reply to be filed by the applicant to the show cause notice.
3) Compliance shall be made in an expedite manner in any event not later than six weeks from the date of receipt of the reply/objections to the show cause notice.
4) OA stands disposed of accordingly. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/