Central Administrative Tribunal - Mumbai
Dr A Ramesh Kumar vs M/O Health And Family Welfare on 2 January, 2025
1 OA.2164/2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH,
CAMP AT NAGPUR.
O.A.2164/2017
Dated this Thursday the 02nd day of January, 2025.
Coram : Hon'ble Mr. Shri Krishna, Member (Administrative)
Hon'ble Mr. Umesh Gajankush, Member (Judicial).
Dr. A. Ramesh Kumar,
Aged about 47 years, working in the post of
Senior Scientist, CSIR-National Environmental
Engineering Research Institute, Nagpur - 440 020.
R/o: S-12, NEERI Colony, Laxminagar,
Nagpur - 440 020. .. Applicant.
( By Advocate Shri B. Lahiri ).
Versus
1. Union of India, through
Secretary,
Department of Health Research,
Ministry of Health & Family Welfare,
V. Ramalingaswami Bhawan,
Ansari Nagar, New Delhi - 100 029.
2. The Director General,
Indian Council of Medical Research,
V. Ramalingaswami Bhavan,
Ansari Nagar, New Delhi - 110 029.
3. The Director-in-Charge,
National Institute of Occupational Health,
Meghani Nagar, Allahabad - 380 016. .. Respondents.
( By Advocate Shri A.V. Shinde & Shri B.D. Pandit ).
Order reserved on : 23.09.2024
Order pronounced on : 02.01.2025
2 OA.2164/2017
ORDER
Per: Shri Krishna, Member (A)
The applicant is aggrieved by incorrect fixation of his pay and recovery of Rs.2,21,000/- vide impugned O.M. Dated 13.07.2016 (Annex-A-1 of the OA) has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:-
"(i) quash and set aside letter No.P-11(17)A/12-
Pers. Dated 09.10.2015 & 05.07.2016 issued by respondent no.2 (Annx.A2 & A1) and the Office Memo No.P/6/38/15-16/4654 dated 05.11.2015 issued by respondent no.3 (Annx.A3) regarding withdrawal of pay protection and pay fixation granted to the applicant under FR 22(1)(a)(i) and in the same order direct the respondent no.2 and 3 to restore the fixation of the pay done vide ICMR letter No.P-11(17)A/12- Pers. dated 24/09/2013 (Annx.A6) as admissible under FR 22 (1)(a)(i) with effect from 24/09/2012 and pay arrears with 12% penal interest and thereby direct the respondent no.2 and 3 to refund the pay and allowances recovered from the applicant amounting Rs.2,24,533/- (Two Lakhs twnety four thousand five hundred and thirty three only) with 12% penal interest.
(ii) Direct the respondents to issue revised Last Pay Certificate (LPC) of applicant to the present employer (NEERI).
(iii) Award cost of litigation; and/or pass such other or further orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case as well as in the interest of justice."
3 OA.2164/2017
2. Brief facts as stated by the applicant are that while working as Assistant Chemist in the Central Ground Water Board, Central Region, Nagpur under the Ministry of Water Resources, Government of India, he got selected to the post of Scientist-C at National Institute of Occupational Health (NIOH), under the Indian Council of Medical Research (ICMR), Department of Health Research, Ministry of Health and Family Welfare, Government of India. He joined the said post on 24.09.2012, after technical resignation from his erstwhile employer i.e. Central Ground Water Board, Nagpur. The proposal for pay fixation as per FR 22 (1)(a)(i) was sent to ICMR by NIOH on 06.05.2013. 2.1 The respondents vide order dated 07.10.2013 fixed the pay of the applicant as per FR 22 (1)(a)(i) as 22,090+6600 in Pay Band-3 in the pay scale of Rs.15600-39100+6600 as Grade Pay as per ICMR letter dated 24.09.2013. Thereafter, the respondents issued an OM dated 05.11.2015 stating that FR 22(1)(a)(i) is not applicable to the applicant and asked to refix the pay on the basis of audit observation which was approved by ICMR. The applicant made representation dated 12/11/2015 to ICMR which was forwarded by NIOH followed by reminder dated 18.03.2016 to expedite the matter. The applicant submitted a grievance letter to ICMR Grievance Committee through NIOH, 4 OA.2164/2017 Ahmedabad on 25.05.2016. Thereafter, he submitted his technical resignation on 01.07.2016 to the respondents on his appointment to the post of Senior Scientist, in National Environmental Engineering Research Institute (NEERI), Nagpur under CSIR.
2.2 The respondents vide OM dated 13.07.2016, informed the applicant that his representation has already been examined and pay fixation was correct and asked to recover the excess payment of Rs.2,24,533/- towards excess payment due to refixation of pay on 29.07.2016 and relieved him on 12.08.2016. He joined NEERI, Nagpur on 16.08.2016. Thereafter, he submitted a representation dated 23.09.2016 to the Grievance Committee of Respondent No.2 i.e. Director General, ICMR, New Delhi followed by grievance petition dated 22.12.2016. 2.3 The respondents vide communication dated 10.01.2017 informed the applicant that his matter has already been examined and communicated to him vide letter dated 05.07.2016 followed by reply dated 01.02.2017. Not satisfied with the above communications, the applicant has filed this O.A. 2.4 The applicant contends that the Respondent No.2 neither considered the applicant's representation nor clarified the rule position rather replied by letter dated 10.07.2017 that the 5 OA.2164/2017 matter has already been examined and communicated vide their reply reminder letters dated 09.10.2015 and 05.07.2016. He contends that the respondents have failed to clarify the rule position to the audit party, therefore, due to their arbitrary action right of the applicant is violated adversely affecting him and future consequential benefits.
3. On notice, the respondents have filed their reply affidavit and contested the O.A. It has been contended that the OA is beyond limitation period prescribed under Section 21 of the AT Act, 1985 as the respondents have communicated their decision dated 05.11.2015 (Annex-A-3) and the applicant submitted his representation dated 12.11.2015 (Annex-A-8) which was disposed of by the respondent no.2 i.e. ICMR vide letter dated 05.07.2016 and communicated to the applicant vide letter dated 13.07.2016. Therefore, the application filed on 28.07.2017 before this Tribunal is time-barred.
3.1 On merits, it has been submitted that the applicant was offered the post of Scientist-C in PB-3 in the pay scale of Rs.15600-39100 + Grade Pay of Rs.6600/- which is the cadre post vide appointment letter No.ICMR/NIOH/2/20007-Pers. dated August, 2012. The applicant before joining the said post asked for certain clarification vide letter dated 03.09.2012 wherein he 6 OA.2164/2017 has not asked for any clarification with respect to protection of pay or fixation of pay under FR 22(1)(a)(i). However, after joining the above said post, the applicant vide letter dated 15.02.2013 has requested for protection of his pay under FR 22 (1)(a)(i). It has been submitted that the applicant was selected as direct recruitee based on All India advertisement and interview and no written examination was held. Since the applicant has joined from ex-cadre post in the year 2012 to a cadre post, the Rule 8 of the CCS (RP) Rule 2008 is applicable in case of the applicant, which reads as under:
"Rule 8: Fixation of pay in the revised pay structure of employees appointed as fresh recruits on or after 01.01.2006.
Section II of Part 'A' of the First Schedule of these Rules indicates the entry level pay in the pay band at which the pay of direct recruits to a particular post carrying a specific grade pay will be fixed on or after 01.01.2006.
This will also be applied in the case of those recruited between 01.01.2006 and the date of issue of this Notification. In such cases, where the emoluments in the pre-revised pay scale(s) [i.e., basic pay in the pre-revised pay scale(s) plus Dearness Pay plus Dearness Allowance applicable on the date of joining] exceeds the sum of the pay fixed in the revised pay structure and the applicable dearness allowance thereon, the difference shall be allowed as personal pay to be absorbed in future increments in pay"7 OA.2164/2017
Section II Entry pay in the revised pay structure for direct recruits appointed on or after 01.01.2006.
PB-1 (Rs.5,200-20,200) 3.2 In view of the above rule position, it has been submitted that the pay in the PB-3 fixed as Rs.18,750 + Grade Pay of Rs.6600 totaling to Rs.25,350/- was fixed by the Director, NIOH, who is the Competent Authority to fix the pay, which was communicated to the applicant vide Order No.P/6/38/12-13/3855 dated 13.02.2013.
3.3 It has been further submitted that the applicant vide letter dated 19.03.2013 requested that as per the provisions of FR 22(1)(a)(i) pay protection has to be given to a Central Government servant when a person is appointed to higher post through proper channel. The said representation was forwarded by respondent no.3 to the respondent no.2 i.e. DG, ICMR, who is the Appellate Authority in case of the applicant. The DG, ICMR fixed the pay at Rs.22,090 + GP of Rs.6600/- in PB-3 in the pay scale of Rs.15600-39100 vide letter dated 24.09.2013 (Annex-A-
6) which was communicated to the applicant vide letter dated 07.10.2013 (Annex-A-7).
8 OA.2164/20173.4 It has been submitted that the Indian Audit and Accounts Department, Office of the Principal Director of Audit (Central), Audit Bhawan, Ahmedabad while auditing the accounts of the Institute as well as projects for the year 2013-14, 2014-15 observed that the pay fixation made in respect of the applicant at Rs.22,090 + GP of Rs.6600/- with effect from 24.09.2012 in the PB-3, Rs.15600-39100 plus GP Rs.6600/- under the provisions of FR 22 (1)(a(i) by giving one notional increment in the old pay is irregular. The provisions under FR 22 and Government of India decisions thereunder read with OM No.12/3/2009-Pay-I dated 30.03.2010 would be applicable in the instant case. Accordingly, the pay of the applicant should have been fixed at Rs.19,500 plus GP 6600 with effect from 24.09.2012 by giving pay protection of his old pay.
3.5 The observation of the Audit was forwarded to the respondent no.2 i.e. the DG, ICMR and the same was reviewed by ICMR Headquarter. The Competent Authority observed that the provision of FR 22 1(a)(i) is not applicable in his case, however, last pay drawn by him i.e. Rs.21,300 + GP 4800 = Rs.26,100/- is to be protected as per the DoPT Order dated 30.03.2010. The decision of DG, ICMR (Annex-A-2) was communicated to the applicant by Speaking Order dated 9 OA.2164/2017 5/7.11.2015 (Annex-A-3) and his pay was re-fixed as Rs.19,500 + GP 6600 as per DoPT Orders referred to above and the applicant was clearly informed that excess payment made to him required to be recovered and vide letter dated 13.07.2016 the applicant was directed to deposit Rs.2,21,000/- on account of excess amount of salary paid to him. The applicant accepted the order dated 5/7.11.2015 and 13.07.2016 and vide letter dated 29.07.2016 submitted a cheque bearing no.162405 dated 29.07.2016 for Rs.2,24,533/- towards recovery of excess payment due to wrong pay fixation. The applicant accepted the final order and not preferred for legal remedies and deposited the said amount.
3.6 It is submitted that a Speaking order dated 5/7.11.2015 was issued to the applicant (Annex-A-3) wherein it was communicated to him that the provision of FR 22(1)(a)(i) is not applicable and the Government of India decision vide OM dated 30.03.2010 is applicable in his case, against which the applicant has submitted the cheque towards recovery of excess payment. The abstract under FR 22 (1)(a)(i) is reproduced herein as under:-
"[Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have 10 OA.2164/2017 the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be re-fixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promoted is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment."
3.7 It has been submitted that it is very clear from the starting sentence "[Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], and since the applicant was appointed from ex-cadre post on direct recruitment basis, the FR 22 (1)(a)(i) is not applicable. It is also emphasized that Indian Council of Medical Research is registered under the provisions of the Societies Act XXI of 1860 (Autonomous Body) under the administrative and financial control of Department of Health Research, Ministry of Health and Family Welfare, New Delhi. Hence the applicant is eligible for pay protection only as per DoPT Order dated 30.03.2010 referred to above. 3.8 It is further submitted that the Government of India Order No.18 placed below FR 22 also relate to fixation of pay and 11 OA.2164/2017 grant of increment in the revised pay structure - clarification. The relevant part of the order is reproduced as below as mentioned in Sr.No.1 of clarifications is as under:
(18)"Fixation of pay and grant of increments in the revised pay structure-clarification :- Following the notification of the CCS (Revised Pay) Rules, 2008, this Department has received references from some administrative departments, seeking clarification regarding various aspects of fixation of pay in the revised pay structure as also pay fixation and grant of increments in future under the revised pay structure. The matter has been considered in this Department. The points of doubt raised by administrative departments and the clarifications thereto are issued as under:-
Point of Doubt Clarifications
1. As per the provisions of FR DoPT's OM
22(1)(a)(i) , split option has to No.168/2000-Estt.(Pay-
be submitted by the eligible I), dated 25.02.2003 (not
employee (other than those printed), provides that a
appointed on deputation to ex Government servant
cadre post or ad hoc basis or may give a revised
on direct recruitment basis) option for pay fixation
within one month of promotion under FR 22(1)(a)(i)
Some of the employees, within one month from
promoted before 01.01.2006 the date of orders of
as well as after 01.01.2006 such unforeseen
but before notification of developments or change
Revised Pay Rules, 2008 of rules. In any such
implementing Sixth Central cases that have resulted
Pay Commission from the notification of
recommendations, had opted CCS(Revised Pay)
for their pay fixation on Rules, 2008,
promotion from the date of Government servants
their next increment which may be allowed to
was falling after 01.01.2006 in exercise a revised option
the Fifth Central Pay for fixation of their paying
Commission scales as per the the promotion post within
rules/pay structure then in one month from the date
force. Consequent upon of issue of these
12 OA.2164/2017
implementation of clarifications, if they have
recommendations of Sixth already not been allowed
Central Pay Commission in to do so under DoPT's
August/September 2008 OM dated 25.02.2003
effected from 01.01.2006, the mentioned above.
option submitted by a number
of employees has now turned
to be disadvantageous.
Whether such employees may
be allowed to revise their
options under FR 22(1)(a)(i)
It has been submitted that FR 27 relate to grant of premature increment which is not relevant to the applicant. It has been further submitted that the applicant's contention that pay fixation of pay in the new post shall be regulated as per Government of India decision (GID) (a) below FR 22 read with ID (1) below Rule 26 of CCs Pension Rule is not relevant as Government of India decision 9 placed below FR-22, relate to condonation of resignation for the purpose of fixation of pay and Rule 26 of CCS Pension Rule deal with forfeiting of service on resignation. There is no dispute that the resignation tendered by the applicant was a technical resignation and his past services rendered in parent department was not forfeited.
3.9 It has been submitted that the DOPT Order No.12/3/2009-Pay-I dated 30.03.2010 is applicable to employees employed in PSU, Semi. Govt. Organizations, 13 OA.2164/2017 Universities or Autonomous Bodies etc. appointed in Central Government and vice-versa. The applicant was working with Central Ground Water Board, Ministry of Water Resources, GOI, and appointed in the service of ICMR i.e. Society/Autonomous Body. Since ICMR is an autonomous body and the applicant joined service from Central Govt. service, order dated 30.03.2010 is applicable in his case and, therefore, the OM dated 5/7.11.2011 that FR 22 (1)(a)(i) is not applicable in his case. If he was not satisfied with the final decision dated 13.07.2016 of the Appellate Authority, he had the opportunity to redress his grievance in the court of law. However, to revive the time barred case, he made grievance application dated 22.12.2016 and the same was also disposed off by the Appellate Authority on 14.03.2017 and was intimated that the decision of Appellant Authority was already communicated to him vide letter dated 09.10.2015, 05.07.2016 and 10.01.2017.
3.10 The applicant has filed rejoinder to the reply reiterating that the pay fixation under FR 22(1)(a)(i) is applicable to him as there is no place for cadre-based rules in FR and Service Rules of Government of India. It has been submitted that as per Ministry of Finance O.M. No.3379-E- 14 OA.2164/2017 III(B)/65 dated 17.06.1965 and subsequent OM No.13/24/92- Estt. (Pay-I) dated 22.01.1993, it has been clarified to all concerned that in case of Government Servants applied for the posts in the same or other Departments through proper channel and on selection, they are required to resign the previous posts for administrative reasons, the benefit of past service, if otherwise admissible under Rules be given for fixation of pay in the new posts treating the resignation as 'technical formality'. The pay in such cases may be fixed under FR 27. Accordingly, the fixation of pay in the new post shall e regulated as per Government of India's Decision (GID) (9) below FR 22 incorporated.
3.11 It has been submitted that even if the applicant's parent department (CGWB) has forwarded Last Pay Certificate (LPC) and Service Book, the applicant was forced to submit several representations to the respondents to get his pay fixed as per rules. He has placed reliance on the decision in the case of Dr. M.C. Gupta Vs. Union of India in W.P.(C) No.1759/1998 regarding the pay fixation and protection on his Professors in AIIMS. The Hon'ble Delhi High Court observed that the claim to the protection of pay is a fundamental right coming within the ambit of Article 16 of 15 OA.2164/2017 the Constitution and allowed the Writ Petition vide order dated 05.10.1998. It has been further submitted that the contents of bye-laws of respondent's organization i.e. ICMR- NIOH are that "In regard to all matters concerning the service conditions of employees of ICMR, the Fundamental and Supplementary Rules framed by the Government of India and such other rules and orders issued by the Government of India from time to time shall mutatis mutandis apply to the employees of ICMR.
3.12 It has been submitted that provisions of FR 22 (1)(A)(i) is very well being followed by the Respondents' organization for regulating the pay on promotion to its employees. However, the respondents deny to implement the same to in the case of appointment as evidenced by the applicant's case, though FR 22 (1)(a)(i) is applicable both to Appointment/Promotion.
3.13 The respondents have not filed any sur-rejoinder to the rejoinder submitted by the applicant.
4. During the arguments the learned counsel for both the sides have advanced arguments on the basis of their pleadings and no new point has been made.
5. We have heard rival submissions and perused the 16 OA.2164/2017 pleadings and documents filed on record.
6. It is an admitted fact that the applicant before joining the ICMR-NIOH was working as Scientist in Central Ground Water Board(CGWB), which is a Government Department and not a Public Sector Undertaking or a Society or an Autonomous Body. The reason for denial to the applicant's claim that his pay should be fixed as per FR 22 (1)(a)(i) is that the said Rule is not applicable to him as pay fixation has been done as per the OM dated 30.03.2010. We find that the OM No.12/3/2009-Pay-I dated 30.03.2010 issued by the DOPT is regarding guidelines for fixation of pay of candidates working in Public Sector Undertakings etc., recommended for appointment by the Commission based on recruitment by selection. Thus, this OM is applicable to the candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies who are appointed as direct recruits on or after 1.1.2006 on selection through interview by a properly constituted agency including Departmental Authorities making recruitment directly, their initial pay may be fixed by granting them the Grade Pay attached to the post. Thus, the above OM, which has been relied upon by the respondents is 17 OA.2164/2017 applicable to the candidates coming from Public Sector Undertakings, Universities, Semi. Government Institutions or Autonomous Bodies to the Government Department and not to the candidates who were/are already working in the Government and going to the Public Sector Undertakings, Universities, Semi. Government Institutions or Autonomous Bodies. The above OM nowhere mentions that it will be applicable to candidates coming from Government Department to the Public Sector Undertakings. Therefore, reading something which is not mentioned in the DOPT OM is contrary to the law. In view of the above facts, we are of the considered view that the applicant's pay is required to be fixed as per the provisions of FR 22 (1)(a)(i). The impugned orders are quashed and set aside. The respondent no.2 and 3 are directed to restore the fixation of the pay done vide ICMR letter No.P-11(17)A/12-Pers. dated 24/09/2013 (Annx.A6) as admissible under FR 22 (1)(a)(i) with effect from 24/09/2012 and pay arrears. The respondents No. 2 and 3 are further directed to refund the recovered amount of Rs.2,24,533/-. However, the prayer for grant of interest is rejected. The respondents are directed to comply with the order within a period of eight weeks from receipt of certified 18 OA.2164/2017 copy of this order.
7. The OA is allowed in terms of above order and directions. No costs.
(Umesh Gajankush) (Shri Krishna)
Member (J) Member (A)
H.