Central Administrative Tribunal - Delhi
Vinod Kumar Sharma vs Govt. Of Nctd on 25 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 3480/2017
Reserved on:16.10.2018
Pronounced on:25.10.2018
Hon'ble Ms. Praveen Mahajan, Member (A)
Shri Vinod Kumar Sharma
Aged 65 years
(Retd. Pharmacist) Group-C
R/o C-9/43,
Yamuna Vihar
Delhi - 110 053. ... Applicant
(By Advocate: Shri J.S. Mann)
VERSUS
1. The Govt. of NCT Delhi
Through its Chief Secretary
Delhi Secretariat
New Delhi - 110 001.
2. The Chief District Medical Officer
North-East District
Directorate of Health Services
GNCT of Delhi
A-14, G-1, DDA Flats,
Dilshad Garden
Delhi - 110 095.
3. The Accounts Officer
P.A.O. VIII, GTB Hospital Complex
Dilshad Garden
Delhi - 110 095. ...Respondents
(By Advocate: Shri Amit Anand)
2
ORDER
Through the medium of this OA, the applicant has sought the following reliefs :-
"(a) Quash impugned reply dated 15.09.2017 (ANNEXURE A-1) issued by and direct the respondents to restore basic pay and grade pay as per previous fixation of pay with consequential revision of retirement benefits including pension and arrears thereof; and/or
(b) Quash impugned order dated 26.11.2012 (ANNEXURE A-4) issued by C.D.M.O. (NED) and direct the respondents to restore basic pay and grade pay as per previous fixation of pay with consequential revision of retirement benefits including pension and arrears thereof; and/or
(c) the respondents may be directed to produce the orders passed by the Competent Authority/respondents for deduction of Rs/2,37,090/- from the Gratuity and quash the same; and/or
(d) The respondents may be directed to refund Rs.2,37,090/- to the applicant with interest @ 12% p.a.; and/or Pass such other and further order which this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The brief facts of the case are that the applicant was appointed as Pharmacist in L.N.J.P. Hospital (Now Lok Nayak Hospital). The applicant retired as Pharmacist from DHS, North East District, Dilshad Garden, Delhi on 30.11.2012. On 16.05.2012, the pay of the Pharmacist including the applicant was re-fixed and the applicant was placed in pay of Rs.20,340/- + GP of Rs.5400/-. However, shortly before his retirement on 3 30.11.2012 the pay was again re-fixed under MACP Scheme on 26.11.2012. Vide this order, the pay of the applicant was reduced to basic pay of Rs.20,280/- + GP of Rs.4800/-. The applicant states that the said reduction/refixation is arbitrary and against the principles of natural justice, since no show cause notice was issued to him in this regard.
3. The applicant submits that vide letter dated 01.06.2011 a clarification was issued by DHS regarding revised pay structure of the common category of posts of Pharmacists on the basis of implementation of Track Committee‟s recommendations. As per the aforesaid letter dated 01.06.2011 (Annexure A-2) the applicant states that he is entitled for ACP/MACP in the following manner :-
Date Event Grade Pay/Basic Pay due
25.09.1973 Date of joining the ---
service in LNJP
Hospital, Delhi.
25.09.1975 Completed two 4200/- with corresponding
years of regular Basic Pay
service
25.09.1983 Completed ten years 4600/- with corresponding
of regular service Basic Pay
25.09.1983 Completed twenty 4800/- with corresponding
years of regular Basic Pay
service
25.09.2003 Completed thirty 5400/- with corresponding
years of regular Basic Pay.
service
4. Vide Office Order dated 16.05.2012, the Competent
authority re-fixed the pay of the Pharmacists, including the 4 applicant, and thereby the pay of the applicant was placed at Rs.20340/- in GP of Rs.5400, with date of next increment as 01.07.2012. Subsequently, vide another Office Order dated 26.11.2012, the pay of the applicant was again re-fixed under MACP Scheme and the pay of the applicant was reduced to Rs.20280/- in GP of Rs.4800/- This was done arbitrarily, without notice and opportunity of being heard. The retirement benefits of the applicant were released on 19.12.2012 after deduction of Rs.2,37,090/- from the Gratuity. As such the applicant has suffered huge monitory loss attributable in action/unlawful action of the respondents. (Annexure A-5). The applicant retired as Pharmacist from DHS on 30.11.2012.
5. The applicant avers that, surprisingly, the respondents have granted Grade Pay of Rs.5400/- to some of his colleagues, namely, Ravinder Dutt Tiwari - 131499, Pharmacist, K.G. Ahuja, Pharmacist and Shri Krishan Gopal Ahuja - 117430 whereas this benefit has been denied to him. All the three Pharmacists named above have been granted Grade Pay of Rs.5400/- till the date of their retirement. The basic pay paid to them at respective rates was not reduced by the respondents and even the retirement benefits have been paid on the basis of basic pay drawn by them. The applicant has enclosed the pay slips in respect of the three Pharmacists mentioned above for their respective months of 5 superannuation at Annexures A-6, A-7 and A-8. The applicant has also given details regarding their designation, date of superannuation, last basic pay & grade pay & reduction thereof. The same are as follows :-
Name, Date of Last basic pay Reduction in Remarks designation retirement and grade pay Basic pay and and deptt. Grade pay of the employee Applicant, 30.11.2012 BP=Rs.20.340 BP=Rs.20,280 Applicant Pharmacist GP=Rs.5400 as G.P.=Rs.4800 suffered DHS on 01.07.2011 loss of about Rs.7 lakhs on account of recover and consequent less payment of retirement benefits.
R.D. Tiwari, 30.11.2014 BP=Rs.21,470 BP=Rs.21,470 Suffered Pharmacist, GP=Rs.5400 as GP=Rs.4800 lesser loss Lok Nayak on 30.11.2014 as Hospital recovery not made and only consequent loss of payment of retirement benefits.
K.G. Ahuja, 30.11.2016 BP=Rs.19510 BP=Rs.19510 Suffered
Pharmacist. GP=Rs.5400 as GP=Rs.5400 no loss as
Guru Teg on 30.11.2016 recovery
Bahadur and nor
Hospital consequent
loss of
payment of
retirement
benefits.
In view of the aforementioned facts, the respondents have caused discrimination to the applicant.6
6. The applicant sent a representation-cum-legal notice dated 17.08.2017 requesting the respondents to refund the recovered amount of Rs.2,37,090/- with interest @ 12% and to grant Grade Pay of Rs.5400/- to him along with corresponding basic pay. His request was declined by the respondents vide their reply dated 15.09.2017.
7. The applicant has mentioned two OAs - OA No.2983/2017 (R.P.Sharma Vs. GNCT Delhi and Ors.) and OA 2984/2017 (Bhan Prakash Vs. GNCT Delhi & Ors.) where, in similar circumstances, notices have been issued to the respondents. The applicant has relied upon the decision of Hon‟ble Supreme Court passed in Civil Appeal No.11527 of 2014 @ S.L.P. 11684 of 2012 wherein it has been held that such type of over payment cannot be recovered from the applicant, being a retiree.
8. Per contra, the respondents in their counter affidavit state that the law laid down in State of Punjab Vs. Rafiq Masih SLP(C) No.11684 of 2012 is not applicable in this case as the judgment was pronounced on 18.12.2014 whereas the order in the case of the applicant was passed in the year, 2012. They submit that prior to the decision in State of Punjab Vs. Rafiq Masih, the ratio in Chandi Prasad Uniyal Vs. State of Uttarakhand (2012) 8 SCC 417 prevailed wherein it has been observed that :-
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"The question that arises for consideration in this appeal is whether overpayment of amount due to wrong fixation of 5th and 6th Pay Scales of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who are serving as teachers. The Division Bench of the High Court rejected the writ petition filed by the appellants and took the view that since payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judgment, this appeal has been preferred."
Further, at page 423 of the same judgment, it has been held that :-
"The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that the excess payment made be recovered from the appellant‟s salary in twelve equal monthly instalments starting from October, 2012."
9. The respondents further state that Doctrine of prospective overruling is applicable in this case. They have relied on Naryanan Nair v. State of Kerela and Golaknath case, on the Doctrine of Prospective overruling. In the said case the Chief Justice Subba Rao had first invoked the doctrine of prospective overruling. He had taken import from American Law where Jurists like George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo had considered this doctrine to be an effective judicial tool. In the words of Canfield, the said expression means :
"... a court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction 8 that an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place."
The respondents contend that the applicant retired from service on 31.11.2012 and vide order dated 19.12.2012 the amount of Rs.2,37,090/- was recovered from him as per the prevailing OM of DOP&T dated 06.02.2014. This order has since attained finality, any disruption of this settled matter would be against the Doctrine of Prospective overruling.
10. It is further submitted that benefits of 3rd MACP have not been withdrawn, but have been refixed as per the order of Competent Authority (Copy of letter No.6/30/TRC/H&FW/2010 dated 20.09.2013). The same is a clarification regarding implementation of Fast Track Committee in respect of common category of Pharmacists. The said letter clearly mentions that the 2nd and 3rd financial upgradation under MACPS are in the GPs Rs.4600/- and Rs.4800/- only. It is also mentioned in the order that the grant of higher pay scale is subject to the undertaking that in the event of overpayment, which may be detected at a later stage, the same shall be recovered from their pay. The respondents have relied upon the case of Union of India Vs. S.R. Dhingra (2008) 2 SCC 229 at page 234, holding that a mistake does not confer any right to any party and can be corrected. Finally, the respondents contend that grade pay of the 9 applicant has been correctly fixed at Rs.4800/- as 3rd financial upgradation as per clarification dated 20.09.2013.
11. During the course of hearing both sides emphasised the issues already raised in the OA as well as the counter affidavit filed by the respondents.
I have gone through the facts carefully. I am not convinced by the arguments advanced by the respondents that the law laid down in the State of Punjab Vs. Rafiq Masih (supra) passed by the Hon‟ble Apex Court is only prospective in nature. This issue has been discussed in OA No.4285/2017 vide order dated 08.05.2018. In my view the rationale discussed therein, would be applicable to the facts of the present case as well. In para 13 of the said order it has been held that :-
"13. The respondents have tried to make out a case that the law aid down in Rafiq Masih is only prospective in operation, hence the recovery from the applicant is legal as per the O.M. of DoP&T dated 06.02.2014. Here, a reference needs to be made to the decision of 8 OA-4285/2017 the Apex Court in the case of M.A. Murthy Vs. State of Karnataka and Others, 2003(7)SCC 517, para-8 of which reads as under:- "The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr. (AIR 1967 SC 1643). In Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. (1993 (4) SCC
727) the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest.
The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. (1997) 5 SCC 201, Baburam v. C.C. Jacob (1999) 3 SCC 362). It is for this Court to indicate as to whether the decision in 10 question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision......"
The Hon‟ble Apex Court held that it is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling unless it is so indicated in the particular decision. It is for the Apex Court to indicate whether a particular decision will apply prospectively. It is apparent that no such direction has been given by the Apex Court in the case of Rafiq Masih, hence the law laid down cannot be held to be only prospective in operation. The plea of the respondents that the recovery was legal and valid as per O.M. dated 06.02.2014, therefore is not tenable."
12. In view of the foregoing, I am convinced that the law laid down by the Hon‟ble Apex Court in the case of Rafiq Masih would be applicable to the facts of the present case. Merely because the applicant retired on 31.11.2012, does not take away the fact that he is a retired group „C‟ employee from whom recovery was ordered to be made for no fault of his. There was no collusion or misrepresentation of facts from his side. In my view, this recovery clearly goes against the tenets laid down by the Hon‟ble Apex Court in the Judgment of Rafiq Masih (para 12).
13. The respondents have raised a preliminary objection about the case being hit by limitation, since the cause of action to the applicant arose in December, 2012 and he has sought legal remedy five years later. However, I feel that cases such as these, would qualify for the special dispensation which the courts in their discretion can exercise. While ignorance of law may not be an excuse but post retirement, the applicant, not being in the 11 mainstream, would (very fairly) have been unaware of the judicial remedies, now available to him also the applicant is a retired group „C‟ employee who will be caused extreme financial hardship by way of the impugned order. In view of the same I condone the delay in the interest of justice.
14. Normally, I would go by the clarification issued by letter dated 20.09.2013 vide which it has been clarified that Pharmacists with entry Rs.2800/- in PB-I and in receipt of NF grade in the GP Rs.4200/- on completion of 2 years of service are eligible for 2nd and 3rd financial upgradation under MACPS in the GPs Rs.4600/- and Rs.4800/- only. The respondents in case of the applicant, have acted according to this clarification which seems to warrant no intervention. However, I cannot help but observe that the respondents have been evasive regarding the allegation made by the applicant about grant of similar benefits to some of his colleagues, named in the OA. In letter dated 15.09.2017 (A-1) - it is simply mentioned that "As regards the non recovery of pay with GP of Rs.5400/- to colleague employees as mentioned in his representation/legal notice, it is intimated that the said colleague employees do not belong to this District for the period mentioned therein." Obviously, a weak and unconvincing reply - which does not explain the contradictory stance of the respondents qua the applicant. Admittedly, the 12 benefit denied to the applicant has been granted to three of his colleagues i.e. Ravinder Dutt Tiwari, Shri K.G. Ahuja and Shri Krishan Gopal Ahuja. If all the said pharmacists are similarly placed like the applicant (as alleged in the OA) then the circumstances/reasons due to which the retirement dues were paid to them on a higher grade pay and denied to the applicant, tantamount to discrimination and needs to be looked into.
15. In view of the foregoing, I direct the respondents to refund the amount of Rs.2,37,090/- recovered from the gratuity of the applicant within a span of three months from the date of issue of a certified copy of this order. Simultaneously, the respondents are directed to constitute a Committee to look into the allegations of the applicant that similarly situated persons/colleagues have been granted benefits denied to him. This Committee must submit its report to the competent authority to ensure that no discrimination was/is meted out to the applicant. The entire exercise (of the refund and constitution of the committee and its report) must be completed within three months from the date of receipt of a certified copy of this order including rectification (in case of pay fixation etc.), if any. No costs.
(Praveen Mahajan) Member (A) /uma/ 13