Central Administrative Tribunal - Patna
Vijay Kumar Singh vs East Central Railway on 21 February, 2024
1 OA 566/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00566/2023
050/00
Order Reserved
R on :- 09.02.2024
Order Pronounced
P on :- 21st Feb, 2024
CORAM
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER [J]
Vijay Kumar Singh, S/o Late Ram Baleshwar Prasad Singh, resident
of Village
Village-Gopinathpur, PO-Sri
Sri Sia Jagdish, District-Muzaffarpur-
District -
843111. Retired on attaining age of suppernnuation on 28.02.2022.
Correspondence Address ::- Narayan Niwas, Salimpur Ahra, Lane No.
02, Kadamkuan
Kadamkuan, Patna-800003.
.......... Applicant.
-Versus
Versus-
1. The Union of India through the General Manager, East st Central
Railway, Hajipur, Di
District-Vaishali
Vaishali at Hajipur-844101.
Hajipur
2. The Pr. Chief Personnel Officer/General Manager (Personnel)
East Central Railway
Railway, Hajipur, District-Vaishali at Hajipur--
844101.
3. The Principal Chief Commercial Manager, East st Central
Railway, Hajipur, Dis
District-Vaishali
Vaishali at Hajipur-844101.
Hajipur
4. The Assistant Personnel Officer (Personnel), O/o Pr. Chief
Personnel Officer/General Manager (Personnel), East Central
Railway, Hajipur, District
District-Vaishali
Vaishali at Hajipur-844101.
Hajipur
5. The Assistant Personnel Officer
Officer// ESM, for General Manager
(Personnel)/Hajipur
(Personnel)/Hajipur-844101.
......... Respondents.
Shri Jayant Kr. Karn, Learned Counsel for Applicant
Applicant.
Shri T.N. Thakur, Learned Addl. Standing
anding Counsel for Respondents
ORDER
AS PER : AJAY PRATAP SINGH, MEMBER [JUDICIAL] [JUDIC The present Original Application has been filed under Section 19 of Administrative Tribunal Tribunals Act, 1985 to set-aside set order dated 16.09.2022,, whereby pay fixation carried out and benefits granted in light of Railway Board instructions contained in RBE No. 33/2016 has been withdrawn and again pay fixation done pursuant to RBE No. 33/2016. So also seeking 2 OA 566/2023 direction to re re-fixation of pension and all ll other pensionary benefits in terms of last pay drawn in month of January 2022 with basic pay @ Rs. 66000/ 66000/--
with all consequential benefits and consequence thereto refund amount of Rupees two lacs forty nine thousand five hundred and ninety four.
PRAYER
2. The applicant has claimed following main relief (as extracted from the OA) as under ::-
"A. Order dated 16.09.2022, issued under the signature of Assistant Personnel Officer/ESM, for General Manager (Personnel)/Hajipur, as contained in Annexure A/1, mayma be quashed and set aside, whereby the representation of applicant dated 14.07.2022, challenging his erroneous reduction of his basic pay from Rs. 66,000/- to Rs. 64100/7 at the time of his retirement and recovery from his DCRG amounting to Rs. 2,49,594/- has been rejected.
B. The respondent authorities may be directed to carry out re- re fixation of his pension and all other pensionary benefits in terms of his last pay drawn in the month of January 2022, by taking into consideration his basic pay as Rs. 66000/-
6600 and to allow arrears of all his pensionaqry benefits as well as arrears of balance amount of his pension along with statutory interest thereupon.
C. Any other relief/reliefs as the applicant is entitled and Your Lordships may deem fit and proper in the ends of justice."
FACTS IN BRIEF
3. Briefly, stated the facts as adumbrated by the applicant in the Original Application that he stood superannuated on 28th February 2022 whereas in the month of January 2022, his basic pay drawn @ 66000 (Level--7, 7th CPC). In the month of February 2022 basic pay reduced from Rs. 66000/ 66000/- to Rs. 64100/- without any notice no reasons assigned and pension and other pensionary benefits fixed on reduced basic pay @ Rs. 64100/ 64100/-.. So also on superannuation also recovered Rs. 2,49,594/-
2 as over payment from DCRG service gratuity. There was nothing wrong in pay fixation and recovery on erroneous fixation of pay, same cannot be effected from amount of DCRG in view of RBE No. 72/2016 issued in light of OM dated 2nd March 2016 by DoPT PT following laid down in case of State of Punjab vs. Rafiq Masih (White Washer) reported in (2015) 2 SCC 33: 2015 (4) SCC 334. Hence (L&S) 33 ence the OA to set-aside set side order dated 16.09.2022 withdrawing benefits given by pay fixation in light of RBE No. 3 OA 566/2023 33/2016. So also seeking direction to carry out re-fixation re fixation of pension and other benefits on basis of last pay drawn in month of January 2022 basic pay @ Rs. 66 66000/- with arrears, statutory benefits etc.
4. Per contra, respondents have contested the claim of applicant icant by filing written statement stating that applicant on 21.11.1983 appointed as Commercial Clerk (revised GP Rs. 2000) promoted to Senior Commercial clerk on 01.04.1993 in revised GP Rs. 2800. Further promoted to the post of Commercial Inspector Grade Grade-III III in G.P. Rs. 5000-8000.
50005. The further submission of respondents in W.S. that applicant was promoted from pos postt of Commercial Inspector Gr-III Gr in G.P. Rs. 5000--
8000 to the next post of Commercial Inspector Grade Grade-II in scale of Rs.
5500-9000 9000 and pay was fixed at Rs. 5850 w.e.f. 04.01.2008.
6. The respondents have made further averment that on implementation of 6th CPC recommendation w.e.f. 01.01.2006 applicant pay was fixed as Rs. 10140+G.P. Rs. 4200 in scale of Rs. 9300 9300-34800.
7. The respondents further stated that on o 01.07.2006 006 further pay fixation done @ 10,570+G.P. Rs. 4200 as normal annual increment.
8. The Railway Board issued RBE No. 33/2016 dated 08.04.2016 guidelines for fixation of pay in cases of promotion taking place in pre-revised revised pa payy structure between 01.01.2006 and date i.e. 29.08.2008 29.08.2008 of notification of CCS ((RP) Rules 2008 and subsequent merger of pre-revised pre revised pay scale of promotional and feeder post in common grade.
9. The Railway Board instructed that in cases where promotion took ok place in pre pre-revised revised pay structure dealing the period between 01.01.2006 and date of notification i.e. 29.08.2008 of CCS (RS) Rule 2008, when pre pre-revised revised and revised pay scale were different. The post carried character of feeder and promotional grade pa payy fixation on such promotion shall not be entitled as per Rule 13 CCS (RS) Rule 2008.
10. The respondents further stated that the the applicant was given pay fixation benefit on 04.01.2008 promoted from Commercial Inspector Grade III in scale Rs. 5000 5000-8000, Commercial ommercial Inspector Grade II in scale Rs. 5500 5500-9000 9000 and pay fixed as Rs. 5850 w.e.f. 04.01.2008 from 5600 to 5850 along with promotional increment. Since applicant was already given in pre--revised revised grade benefit of increment from Rs. 5000-8000 5000 to Rs. 5500--
9000, hence on implementation of 6th CPC w.e.f. 01.01.2006 applicant cannot be again allowed pay fixation under Rule 13 CCS(RP) Rules 2008 4 OA 566/2023 and impermissible one more additional increment in merger of GP Rs. 5000-8000 8000 and GP Rs. 5500 5500-9000 9000 to next common grade.
grad
11. The further averment made in W.S. that the the applicant is seeking grant of benefit of double increment for pay fixation whereas in light of RBE No. 33/2016 erroneously benefits granted of double increment one at pre pre-revised grade Rs. 5000-8000 8000 and other at the time of promotion to scale Rs. 5500-9000 and same has been subsequently withdrawn being benefit of double pay fixation not permissible under Rule 13 of CCS (RP) Rules ules 2008.
12. The respondents further stated in the W.S. that the the applicant was given over payment on incorrect fixation to applicant as per RBE No.33/2016 said benefit of additional increment was withdrawn and excess amount calculated deducted from DCRG of applicant. ARGUMENTS
13. Shri J.K.Karn learned counsel appearing for applicant argued that respondents have reduced basic pay @ Rs. 66000 to Rs. 64100 at the time of his superannuation without following principles of natural justice. The recovery of Rs. 2,49,594/- excess payment due to fixation of pay by respondents recovered from the amount due as DCRG, the respondents have already recovered over payment made. There is no misrepresentation or fraud on part of applicant.
14. Shri J.K.Karn further vociferously ociferously canvassed that fixation of pay was done by respondents and due to objections by Accounts Department has withdrawn benefits and re-fixed re fixed pay in such situation in view of law laid down in case of State of Punjab versus Rafiq Masih (White Washer) reported in 2015 (4) SCC 334, in situation no. (i) (ii) &
(v) and RBE No. 72/2016 dated 22.06.2016 recovery is impermissible in law and recovered amount deserves to be refunded with interest.
15. Shri Karn learned counsel for applicant further contended that order dated 16.09.2022 re re-fixation fixation of pay due to withdrawal of pay benefit granted in view of RBE No. 33/2016 is barred by law of promissory estoppels estoppels.
16. Shri T.N.Thakur, learned Additional Standing Counsel appearing for respondents vehemently argu argued that applicant was promoted as Commercial Inspector Grade III in GP 5000 5000-8000 8000 and again promoted as Commercial Inspector Grade Grade-II in scale of Rs. 5500-9000 5500 9000 and his pay was 5 OA 566/2023 fixed at Rs. 5850 w.e.f..04.01.2008 with promotional increment. Whereas implementation of 6th CPC w.e.f. 01.01.2006 his pay fixed as Rs. on implem 10140+GP Rs. 4200 in scale of Rs. 9300 9300-34800.
34800. Further his pay was fixed as on 01.07.2006 as 10,570 +GP 4200 as normal annual increment hence again fixed on an an annual nual increment as on 01.07.2007 Thus given illegal benefits of two promotional incrementss in grade merged to next higher grade.
17. Shri T.N.Thakur learned ASC further contended that Railway Board issued guidelines RBE No. 33/2016 dated 08.04.2016 for correct fixation of pay in cases of pro promotion motion taking place in the pre-revised pre revised pay structure between 01.01.2006 and the date of notification of Rs (RP) Rules 2008 and subsequently merger of pre pre-revised revised pay scales of the promotional and feeder post in the common grade. In such promotion cases likee case of applicant pay fixation shall not be allowed under Rule 13 of CCS (RS) Rules 22008.
008. There is no merit in the OA as erroneous fixation made has been corrected accordance with RBE No. 33/2016 rules appl applicable icable to all employees as general condition of service.
18. Shri T.N.Thakur ld. ASC further contended that applicant was erroneously granted benefit of double pay fixation and same has been withdrawn under RBE No. 33/2016 and same has been informed vide impugned order dated 16.09.2022. Excess amount ppaid aid as over payment has been recovered. There is no legal infirmity in the impugned impugned order and no interference warr warranted.
19. No other point is pressed at the Bar by the learned counsel appearing for the parties.
DISCUSSION
20. This Tribunal has bestowed towed anxious considerations on the rival contention contentions of the learned counsel appearing for the parties and perused the material placed on record as well as considered precedents relied on.
21. From the above submissions of the learned counsel for the parties an and d material placed on record and precedents, the issue for determination is "Whether the respondents correct by carried out pay fixation accordance with RBE No. 33/2016, if yes whether applicant is entitled for refund of over payment made to him ?
6 OA 566/202322. The undisputed facts in this case is that applicant group 'C' employee promoted as Commercial Inspector Grade III in scale Rs. 5000 5000--
8000. Thereafter again promoted as Commercial Inspector Grade II in scale Rs.5500 Rs.5500-9000 and his pay was fixed from Rs. 5600 to @ Rs. 5850 w.e.f. 04.01.2008. Vide ide order dated 04.01.2008 total 24 with applicant promoted as C.I. Grade II scale 5500 5500-9000 9000 and applicant pay fixed from bsic @ Rs. 5600 to Rs. 5850 with promotional increment w.e.f. 04.01.2008.
23. The dispute in the presentt case is that respondents have taken stand that since applicant has been promoted as C.I. Grade II IIII in scale Rs.
8000. His pay on 6th CPC (w.e.f. 01.01.2006) was fixed as Rs. 10140 5000-8000.
+GP 4200 in scale Rs. 9300 9300-34800.
34800. Further fixed as on 01.07.2006 as Rs.
Rs.
10570+4200 as normal annual increment. Thereafter again pay fixed as Rs. 11020+4200 on an annual increment on 01.07.2007. Further applicant promoted to C.I. Grade II scale Rs. 5500 5500-9000 9000 and pay was fixed from 5600 to Rs. 5850/ 5850/- with promotional increment incremen w.e.f. 04.01.2008. The Railway Board issued RBE No. 33/2016 guidelines for fixation of pay in case promotion taking place in pre-revised revised pay structure between 01.01.2006 and date of notification of CCS (RP) Rules 2008 and subsequent merger of pre pre-revised d pay scale of the feeder and promotional post in the common grade. Further Railway Board directed that in case where promotion took place in the pre pre-revised revised pay structure during period between 01.01.2006 to date of notification to when pre-revised and revised ised pay scale were different and post carried character of feeder and promotional grades pay fixation on such promotion cannot be allowed under Rule 13 of CCS (RP) Rules 2008 subject to conditions provided in para 6.
24. Before dealing with rival contentions contentions advanced at the Bar, it is apposite to quote relevant portion of language of impugned order dated OM dated 16th October, 2015) relates to re-- 16.09.2022, RBE No. 33/2016, (OM fixation of the pay of applicant from basic pay @ Rs. 66000 (L (L-7)
7) to Rs.
64100 ((L-7).
(i) The impugned order dated 16.09.2022 for ready reference is extracted as under :-
"आपको सं दिभत अभयवे दन के आलोक म सू िचत िकया जाता है की समापक भु गतान के म म आपको से वा पु का की स क जाँ च की गई तथा यह पाया गया की आपके प म पूव म RBE No. 33/2016 के आलोक म बे तन िनधारण िकया गौए था।7 OA 566/2023
रे लवे बोड के अ तन िदशा िनदश एबं मु ालय लेखा िवभाग ◌ा आलोक म RBE No. 33/2016 के लाभ को वापस लेते ए आपके वे तन का पुनिनधारण िकया गया है , जो सही है "
(ii) the Ministry of Railways (Railway Board) vide RBE No. 33/2016 dated 08.04.2016 has issued instructions. For ready reference relevant portion is extracted as under :-
:
No. F-2--1/2005-EIII(A) Government of India Ministry of Finance Department of Expenditure Expendi New Delhi, the 1th October, 2015 Office Memorandum Subject: Cases of promotion taking place in the pre-revised pre pay structure between 1.1.2006 and the date of notification of CCS(RP) Rules, 2008 and the subsequent merger of the pre- pre revised pay scales of the promotional and the feeder posts in a common Grade- fixation of pay-- Regarding. The undersigned is directed to say that consequent upon coming into force of the CCS(RP) Rules, 2008, which were notified on 29.8.2008 but are effective from 1.1.2006, 1.1 fixation of pay on promotion on or after 1.1,2006 is carried out as per Rule 13 thereof. This Rule is invoked only in cases of promotion from one Grade pay to another in the revised pay structure.
2. In terms of Section I of Part-A Part of the First Schedule of the CCS(RP) Rules, 2008, which provides for revised pay structure in the form of applicable pay Bands and Grades pay corresponding to various pre-revised revised pay Scales, certain pre-revised pre pay Scales have been merged in a common Grade pay in the revised revis pay structure w.e.f. 1.1.2006, In view of this, the posts in those pre-
pre revised pay scales which have been merged in a common Grade pay w.e.f. 1,1.2006, are normally required to be merged even if these posts constituted feeder and promotional grades in the t pre- revised pay structure.
3. However, in cases where such merger of feeder and promotional posts in the wake of their come to lie in the Same grade pay has not taken place due to administrative reasons and the posts continue to retain their promotional and feeder character as per the relevant Recruitment Rules, this Ministry issued instructions vide OM 10/2/2011-E.III 10/2/2011 A dated 7.1.2013 providing for fixation of pay on promotion in such cases under Rule 13 of CCS (RP) Rules, 2008 subject to the conditions laid down therein.
4. Now, instances have been brought to the notice of this Ministry where the feeder and promotional posts have been merged in view of the merger of the pre- revised pay scales applicable to the erstwhile feeder and promotional posts in a common grade/post after the promulgation of CCS(RP) Rules), 2008, due to which the character of posts being promotional and feeder grades as existing during the period from 1.12006 to the date of notification of CCS(RP) Rules, 2008 stood rescinded with retrospective r effect from 1.12006 and, consequently, a question has been raised as to whether Rule 13 of CCS(RP) Rules, 2008 may apply for fixation of pay on promotion taking place during the period between 1.1.2006 and the date of notification of the said Rules, when the fixation of pay was actually done as applicable in the event Of promotion in the pre-revised revised Structure.
5. The matter has been considered in the light of the provisions contained in the OM No. 20020/4/2010-Estt.D 20020/4/2010 dt.13.9.2012 issued by the Department of Personnel & Training, which has been issued in the context of the posts/grades merged in pursuance Of the recommendations of the 6th Central pay Commission. This 8 OA 566/2023 OM provides, inter-alia, alia, that the Status of a government servant as on 29.8.2008 including those who have earned promotion between 1.12006 and 29.09.2008 will be protected as appointment/promotions are made as per the provisions of the recruitment rules applicable to the post/grade.
6. Accordingly, it has been decided that in cases where wh promotion took place in the pre-revised revised pay structure during the period between 1.12006 and the date of notification of CCS(RP) Rules, 2008 when the pre-revised revised and revised pay scales were different and the posts carried the character of feeder and promotional pro grades, pay fixation on such promotion Shall be allowed under Rule 13 of the CCS(RP) Rules, 2008, subject to the following conditions:-
(i) The promotion had taken place between 1.1.2006 and the date of notification of CCS(RP) Rules, 2008 as per thet Recruitment Rules then in vogue, which clearly provided for such posts being promotional grade for the feeder grade from where the promotion took place and where the posts were subsequently merged in a single post/grade consequent upon promulgation of the t CCS(RP) Rules, 2008.
(ii) FR. 22 (I) (a) (I), which was applicable for fixation Of pay on promotion before promulgation of CCS(RP) Rules, 2008, was invoked for fixation of pay in these cases in the pre-revised revised structure during the period between 1.1.2006 1.1.200 and the date of notification of the CCS(RP) Rules 2008.
(iii) The concerned employees had opted to come over to the revised pay structure from a date occurring prior to the date of notification of CCS(RP) Rules, 2008.
(iv) The concerned Recruitment Rules have been amended subsequently to provide for merger of these grades into a single grade/post.
7. This order applies only in case of promotions carried out in the pre-revised revised structure during 1.1.2006 and the date of notification of CCS(RP) Rules, 2008. Thus, the benefit of Rule 13 of CCS(RP) Rules, 2008 would not apply in Cases of appointment to the post which was in the higher pay scale in the pre-revised pre pay structure, where such appointment is made after the date of notification of CCS(RP) Rules, 2008.
8. In its application to the employees serving under the Indian Audit and Accounts Department, this order issues with the concurrence of the office of C&AG.
[Emphasis supplied]
25. Now again coming to the facts of the case the respondents by way of impugned order dated 16.09.2022 as extracted herein above, informed applicant that at the time of final settlement, service book of applicant was properly verified. It was found that earlier pay fixation carried out contrary to instructions given in RBE No. 33/2016. On the basis of updated instructions of Railway Board and so also of Accounts Department of Head Quarter Quarter, the benefits already granted erroneously in contravention of RBE No. 33/2016 has been withdrawn being erroneous fixation and again pay ffixation carried out correctly in light of RBE No. 33/2016.
9 OA 566/202326. The respondents on objection of Accounts Department vide memo dated 13.12.2021 (Annexure R/2) has corrected mistake made when pay fixation was carried out in accordance with instruction in RBE No. 33/2016. There after withdrawn benefits granted by way of erroneous pay fixation pursuant to RBE No. 33/2016 and recovered over payment from DCRG.
27. The applicant has filed extract of service book obtained under RTI. The relevant facts are as -
* 10.02.2003- The applicant while working as Senior commercial Clerk grade Rs. 4000-6000 6000 was posted in O/O CCM, ECR, HJP. * 29.01.2004- Promoted as Head Commercial Clerk in scale Rs. 5000-8000 8000 w.e.f. 17.03.2003 Pay fixed Rs. 5000 w.e.f. 17.03.2003 in scale Rs. 5000-8000.
8000. Pay fixed Rs. 5000 w.e.f. 17.03.2003 in scale of Rs. 5000-8000 8000 raised to Rs. 5150 in scale Rs. 5000-8000 5000 w.e.f. 01.03.2004 Rs. 5300 in scale Rs. 5000-80005000 w.e.f. 01.03.2005.
* 13.04.2005- Declared surplus re-deployed re against corresponding grade in commercial Inspector Scale Rs. 5000-8000.
5000 Py raised as Rs. 5450 in scale rs. 5000-8000 8000 w.e.f. 01.03.2006, Rs. 5600 in scale Rs. 5000-8000 8000 w.e.f. 01.03.2007.
* 04.01.2008- Promoted from post of Commercial Inspector III pay scale Rs. 5000-8000 to o Commercial Inspector II pay scale Rs. 5500-9000. The pay fixation was carried out on promotion w.e.f. 04.01.2008 from Rs. 5600 to Rs. 5850.
28. The sixth Pay Commission recommendation were implemented w.e.f. 01.01.2006 and applicant as Commercial Inspector in scale Rs. 5000 5000-8000 8000 pay fixation was done in PB 2 Rs. 9300-34800+ 9300 34800+ GP Rs. 4200 w.e.f. 01.01.2006 as under ::-
On 01.01.2006 Pay Rs. 9860 + GP Rs. 4200 On 01.07.2006 Pay Rs. 10290 + GP Rs. 4200 On 01.07.2007 Pay Rs. 10730 + GP Rs. 4200 On 01.07.2008 Pay Rs. 11,180 + GP Rs. 4200 On 01.07.2009 Pay Rs. 11650 + GP Rs. 4200 On 01.07.2010 Pay Rs. 12,130 + GP Rs. 4200 On 01.07.2011 Pay Rs. 12,620 + GP Rs. 4200
29. As per RBE No. 40/2012 dated 23.03.2021 Railway employees due to get their annual iincrement ncrement between Feb to June during 2006 were granted one on 01.01.2006 in pre pre-revised revised scale as one time measure thereafter given next increment in revised pay structure on first July. The applicant pay fixation as per RBE No. 40/2012 as under ::-
01.01.2006- Rs. 10,140 + GP Rs. 4200 01.07.2006 Rs. 10570 + GP Rs. 4200 01.07.2008 Rs. 11,480 + GP Rs. 4200 01.07.2009 Rs. 11,950 + GP Rs. 4200 01.07.2010 Rs. 12,240 + GP Rs. 4200 01.07.2011 Rs. 12,940 + GP Rs. 4200 01.07.2012 Rs. 13,640 + GP Rs. 4200 10 OA 566/2023
30. On n 05.11.2014 third MACP granted and pay fixation as Commercial Inspector Rs. 4200, Rs. 13,460- 13,460 01.07.2012 Rs. 4600+ Rs.
13990 Pay + third MACP.
31. On furnishing option pursuant to memo dated 28.03.2014 pay fixation done done-
01.07.2013 Rs. 14,540 + GP Rs. 4600
32. On restructuring promoted in year 05.04.2016 from GP Rs. 4200 to 4600, pay fixation at time of promotion rs. 14540 + 4600 GP (MACP) and on restru restructuring cturing promotion pay fixation as under-
under 01.11.2013-Rs.
Rs. 14,540 + 4600 GP 01.07.2014 Rs. 15,120 + 4600 GP 01.02.2015 Rs. 15720 + 4600 GP (Pay revised).
On 01.01.2016 7th CPC pay fixation as on 01.01.2006, the applicant's pay was further raised as under due to annual increment as 01.07.2016 Rs. 55,200/- to 01.07.2017 Rs. 56,900/-
56,900/
33. Pay fixation was carried out erroneously in light of RBE No. 33/2016 as under ::-
RBE No. 33/2016 pay fixation for Rs. 11,950 + GP Rs. 4200 as on 01.07.2008 and 7th CPC pay fixation for Rs. 55,200/-
55,200/ as pm 01.01.2016 vide dated 16.11.2018.
34. 01.01.2016 as per 7th CPC pay fixation to Rs. 55200 (L-7), (L 7), 01.07.2016 annual increment pay fixed @ Rs. 56,900 (L (L-7),
7), 01.07.2017 @ Rs. 58,600 (L (L-7),
7), 01.07.2018 @ Rs. 60,400 (L-7) (L pay fixed 01.07.2019 (L--
7) Rs. 62,200. 01.07.2020 Rs. 64,100 and 01.07.2021 Rs. 66000 (Pay revised to annual increment).
35. The service book of applicant was verified and in continuity it was pointed out by Accounts Department on 30.09.2021 and on such objections. The benefits of pay fixation earlier carried out under RBE No. 33/2016 was corrected.
36. The applicant being given benefit of pay fixation on 04.01.2008 from 5600 to 5850 with promotional increment and same was withdrawn as in pre pre-revised revised grade already applicant was given benefit of promotional increment from Rs. 5000-8000 8000 to 5500-9000.
5500 000. Hence, further due to merger of above two grades cannot be given again additional increment w.e.f. 01.01.2006.
37. It is clear as noon day from the memo dated 13.12.2021 (Annexure R/2) that promotional increment granted and fixation fixation done in scale 550 5500-9000. Thereafter on Accounts Department written objections 11 OA 566/2023 dated 12.03.2021 applicant's pay fixation carried out and promotional increment granted on earlier was withdrawn. The erroneously granted pay 11950 + 4200 was corrected and correct pay fixation ddone one since 01.07.2008 @ Pay Rs. 11,480 + 4200 with normal annual increment. Thereafter vide memo dated 13.12.2021, the applicant's pay has been correctly fixed as basic pay @ Rs. 64100 as on 01.07.2021 instead of basic pay @ Rs. 66000.
38. In view, whereof what comes out loud and clear that on 29.01.2004 applicant was promoted in pre pre-revised scale Rs. 5000-8000.
8000.
The pay was fixed @ Rs. 5000 w.e.f. 17.03.2003 in pre pre-revised revised scale Rs.
5000-8000.
8000. Pay was further raised to @ Rs. 5150 in scale 5000 5000-8000 8000 w.e.f.
01.03.2004.
1.03.2004. The pay raised to @ Rs. 5300 in scale Rs. 5000 5000-8000 8000 w.e.f.
01.03.2005. The he applicant was further promoted on 04.01.2008 from Commercial Inspector grade III pre pre-revised revised scale Rs. 5000-8000 5000 8000 to Commercial Inspector Grade II in pre pre-revised revised scale Rs.
Rs 5500-9000.
9000. The applicant was once again granted benefit of promotional increment on promotion from pay @ Rs. 5600 raised to pay @ 5850 w.e.f 04.01.2008.
39. The he CCS (RP) Rules 2008 were notified on 29.08.2008 and on account of merger of pre pre-revised pay scales of Rs. 5000-8000, 5000 Rs. 5500--
9000 and Rs. 6500 6500-10500 10500 posts which constituted feeder grades and promotion grades merged in identical grade.
40. Accordance ccordance with Rule 13 of CCS (RP) Rules 2008 in case of promotion from one grade pay to another in revise revised d pay structure, the fixation will be done as provided therein not otherwise.
41. The Railway Board has issued RBE No. 33/2016 dated 08.04.2016 with copy of OM dated 16.10.2015 of Ministry of Finance, Department of Expenditure applicable mutatis-mutandis mutatis on the Railways.
The OM dated 16th October 2015 relates to fixation of pay in cases of promotion taking place in pre pre-revised revised pay structure between 01.01.2006 and the date of notification of CCS (RP) Rules 2008 i.e. 29.08.2008. The para 1 of OM states that on coming into force of CCS (RP) Rules 2008 notified on 29.08.2008 effective from 01.01.2006 fixation of pay on promotion on or after 01.1.2006 is carried out as per Rule 13 CCS (RP) Rules 2008 thereof only in cases of promotion from one grade pay to another er in revised pay structure. The Para 2 reads that in terms of Sec 1 of Part A of first schedule of CCS (RP) Rules 2008, which provides for revised pay structure certain pre-revised revised pay scales have been merged in a 12 OA 566/2023 common grade Pay in revised pay structure w.e.f. 01.01.2006 even posts feeder and promotional grades in pre pre-revised revised pay structure to be merged in common GP.
42. The Para 6 of said OM provides that in cases like applicant, where promotion took place in pre pre-revi revised ed pay structure during period between en 01.01.2006 and 29.08.2008 date of notification of CCS, when pre pre--
revised and revised pay scales were different and posts carried character of feeder and promotional grades pay fixation on such promotion.
43. Thus in light of RBE No. 33/2016 since applicant applicant was promoted on 29.01.2004 in pre pre-revised revised grade Rs. 5000-8000 5000 8000 thereafter further promoted from feeder grade Rs. 5000 5000-8000 8000 to promotional grade Rs. 5500 5500-9000 on 04.01.2008. The he applicant Commercial Inspector Grade II promotional grade falls within period 01.01.2006 to date of notification of Rules 2008 and such promotional grade posts stood rescinded retrospective effect from 01.01.2006. So there is no question of fixation of pay on promotion taking place dur during ing 01.01.2006 to 29.08.2008. Thus in view of RBE No. 33/2016 benefits of Rule 13 of CCS (RS) Rules 2008 shall not be applicable in case of applicant as pre pre-revised revised grade promotional post was in higher pay scale in pre pre-revised revised pay structure.
44. Thus in light ight of executive instructions contained ontained in RBE No. 33/2016 employer corrected mistake made in fixation of pay. The fixation of pay scales is essentially an executive function and exercising statutory power regarding such service condition as to fixation ooff pay rules by way of general application. The principles of natural justice is not attracted. So also doctrine of estoppels not applicable in this case. Hon'ble Supreme Court in case reported in M. Ramanatha Pillai Vs. State of Kerala (1973) 2 SCC 650 held that " Doctrine of estoppels is not applicable against agains the state while acting in public or sovereign capacity." This Tribunal in view of above finds that the he impugned order dated 16.09.2022 remains unassailable and deserves to be upheld. So far as impugned ed order there is no merit in the OA.
45. So far as recovery made due to erroneous pay fixation earlier in light of RBE No. 33/2016, the applicant was Group 'C' employee and also superannuated. The respondents have carried out pay fixation re re--
fixation of pay at fag end of service career. Admittedly there is no misrepresentation or fraud on part of applicant for grant of benefits on pay 13 OA 566/2023 fixation done in year 2019. Now the arises "whether he issue arises, whether recovery of Rs. 2,49,594/ 2,49,594/- of excess paid pay and allowances can be recovered in manner at fag end of service career ?. the learned counsel for applicant submits that DoPT OM dated 02.03.2016 regarding recovery of excess payment made to Government servant has advised department to deal in accordance with law laid down in case of Refiq Masih (supra). The relevant Para 4 & 5 of OM reads as -
"4. The Hon'ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-
(i) Recovery from employees belonging to Class-III Class and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even e though he should have rightfully been required to work against an inferior post.
(iv) (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
5. The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No.11527 of 2014 (arising out of SLP (C) No.11684 of 2012) in State of Punjab and others etc. vs Rafiq Masih ih (White Washer) etc. However, wherever the waiver of recovery in the above -mentioned mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department's OM No.18/26/2011-EsttEstt (PayI) dated date 6th February, 2014."
46. The Hon'ble Supreme Court in case of Thomas Daniel versus State of Kerala & Ors reported in 2022 SCC OnLine 536 seisin with similar issue of recovery from pensionary benefits has held as:
as:-
"9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation of fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the he pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right r of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. The Court has further held that if in a given case, it 14 OA 566/2023 is proved that an employee had knowledge k that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances c of any particular case order for recovery of amount paid in excess."
[Emphasis Supplied] "13. In State of Punjab v. Rafiq Masih (White Washer) wherein this court examined the validityof an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse reimbu the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment ment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
[Emphasis Supplied] 15 OA 566/2023
47. The Hon'ble Supreme Court in case of Thomas Daniel (supra) and case of Rafiq Masih white Washer (supra) already settled that recovery from employee, retired employee when excess has been paid due too erroneous fixation and not by any misrepresentation or fraud same is impermissible in eye of law.
48. In view, whereof, the impugned order dated 16.09.2022 remains unassailable and upheld with a direction to respondents to verify and refund if already recovered amount Rs. 2,49,594 (two lakhs akhs forty nine thousand ninety four) to applicant within ninety days from date of receipt of certified copy of this order.
49. OA is partly allowed to the extent indicated herein above.
50. There shall be no order as to costs.
51. Any Miscellaneous Application(s), lication(s), if any, pending shall stands disposed of.
Sd/-
[Ajay Pratap Singh ] Judicial Member Central Administrative Tribunal Patna Bench, Patna 21.02.2024 Pkl/