Central Administrative Tribunal - Chandigarh
Chandan Pandey vs Union Of India Through Secretary To ... on 20 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
Filed on: 31.03.2015
Reserved on: 14.09.2016
Pronounced on:20.09.2016
OA No. 060/00284/2015
Coram: Honble Mr. Justice L.N. Mittal, Member(J).
Honble Mrs. Rajwant Sandhu, Member(A).
1. Chandan Pandey, aged 29 years, S/o Sh. Davinder Narain Pandey, Emp. ID No. HRCDA 3050715.
2. Santosh Kumar, aged 36 years, S/o Sh. Yogendra Prasad, Emp. ID. HRCDA 3050710.
3. Bal Govind Tiwari, aged 38 years, s/o Sh. Shambhu Nath Tiwari, Emp. ID. HRCDA 3050717
4. Raj Singh, aged 43 years, S/o Sh. Balbir Singh, Emp. ID. HRCDA 3050720
5. Devender Singh Meena, aged 29 years, S/o Sh. Sube Singh Meena, Emp. ID. HRCDA 3050716.
6. Krishna Chandra Panjiyar, aged 34 years, S/o Sh. Krishna Chander Panjiyar, Emp/ID. HRCDA 3050713
7. Dinesh Kumar Dalal, aged 28 years, S/o Sh. Om Parkash Dalal, Emp. ID. HRCDA 3050694.
(All are working as Assistant Audit Officers in the office of Principal Accountant General (Audit), Haryana, Chandigarh.
..Applicants
By Advocate : Sh. R.K. Sharma
Versus
1. Union of India through Secretary to Government of India, Ministry of Finance, Department of Expenditure, New Delhi 110 003.
2. Comptroller and Auditor General of India, Pocket No. 9, Deen Dayal Upadhyay Marg, New Delhi.
3. Principal Accountant General (Audit), Haryana, Plot No. 4-5, Sector 33-B, Chandigarh.
..Respondents
By Advocate : Sh. Barjesh Mittal
O R D E R
By Honble Mrs. Rajwant Sandhu, Member(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
8.(i) Quash notification dated 29th August, 2008 (Annexure A-1) issued by respondent No. 1 notifying Rules called Central Civil Services (Revised Pay) Rules, 2008 to the extent whereby an anomaly has been created in the manner of fixation of pay firstly of the promoteees to the cadre of SO/AAO between 01.01.2006 and 29.08.2008 and thereafter in as much as those incumbents of the feeder cadre for these posts who were promoteed w.e.f. 01.01.2006 to 29.08.2008 have been placed in PB-2 Rs. 9300-34800 with Grade Pay of Rs. 4800 with minimum pay fixation at Rs. 13950/- whereas those who have been promoteed from the Feeder Cadre after 29.08.2008, have been placed in the minimum of the pay band plus Grade Pay i.e. Rs. 9300-34800 plus Grade Pay of Rs. 4800 of course by fixing their pay at the level after taking into consideration pay drawn by them in the feeder cadre and quashing of the provisions of the notification dated 29.08.2008 to that extent as it creates a classification having no nexus with the object sought to be achieved and attracts provisions of Articles 14 and 16 of the Constitution of India and as such liable to be quashed to that extent. Second anomaly has been created in the said notification (Schedule I Part II) to the extent that promoteees have been placed at disadvantageous position as there is no pay fixation beyond minimum, whereas direct recruits have been allowed the minimum start of Rs. 13350 as compared to the promoteees, whereas this benefit has been denied to the promoteees and quashing thereof on the ground of Articles 14 and 16 of the Constitution of India for the simple reason that there cannot be discrimination on the basis of source of recruitment particularly when direct recruits are appointed as probationer without qualifying even SAS examination whereas promoteees are appointed on regular basis only after qualifying SAS examination and after joining the cadre, they are fused in one cadre extinguishing their source of recruitment.
(ii) Quash order No. Circular No. 22-Staff (Entt.I)/2011 dated 13.06.2011 issued by respondent No. 2 (Annexure A-2) whereby it has been clarified that pay band of SO/AAO working as on 01.01.2006 will be fixed with reference to fitment table of the pre-revised scale of Rs. 6500-10500/7450-11500 and in case of officials who were promoteed as SO/AAO between 01.01.2006 and 29.08.2008, their pay will be fixed as per the option exercised by them.
(iii) Circular No. 32-Staff (Entt-I)/2011 dated 22.09.2011, issued by respondent No. 2 (Annexure A-3) whereby matter has further been clarified.
(iv) Quash letter No. 1684/Staff.HK.1/174-2014 dated 08.12.2014 (Annexure A-4) issued by respondent No. 2 whereby request of the applicants for removal of their pay anomaly viz-a-viz those who were promoteed after the said date including the applicants has been declined.
(v) Quash order No. Entt.III & Exam/Au/Chandan/2014-15/1228-37 dated 31.12.2014 issued by Respondent No. 3 (Annexure A-5 colly) whereby request of the applicant to fix their pay on the same analogy as in respect of those who were promoteed between 01.01.2006 to 29.08.2008 have been declined.
(vi) Quash Circular No. 1-Staff Wing/2015 dated 06.01.2015 issued by respondent No. 2 (Annexure A-6) whereby it has been decided to give one time relaxation for revision of the earlier exercised option for fixation of pay in the revised pay structure only to the persons who were in service prior to 01.01.2006 and were promoteed as AAO after 01.01.2006 from the date of their promotion to the cadre if the option is more beneficial to them without giving that benefit to the applicants, who were also promoteed as AAO after 01.01.2006 and quashing thereof.
(vii) Quash order No. Entt.III & Exam/Au/Option/AAO/2014-15/1543-49 dated 13.02.2015, qua all the applicants (Annexure A-7 colly) whereby representations of the applicants have been rejected and they have been permitted to exercise option for fixation of their pay in the revised pay structure from the date of their promotion to the cadre i.e. before promotion their pay is to be fixed in the pre-revised pay structure.
(viii) For issuance of directions to the respondents to fix pay of the applicants who were appointed as auditor/clerk and promoteed as AAO after 29.08.2008 from the date of their promotion as AAO in the same manner as has been fixed in respect of those who were promoteed between 01.01.2006 and 29.08.2008 as all of them form one uniform class and there cannot be discrimination in the matter of their pay fixation by creating this artificial classification with all consequential benefits. In any case, pay of the applicants (promoteees) after 01.01.2006 cannot be fixed at rate lower than directly recruited probationer, who are not even members of service etc.
2. It is stated in the OA that all the applicants initially joined the respondent department, P.A.G. (Audit) as Clerks/Auditors after 01.01.2006. Their complete particulars are as per Annexure A-8. Since common points of facts and law are involved, the applicants state that they wish to jointly file this OA on behalf of all the applicants. It is further stated that there was a cadre known as Subordinate Audit Services (SAS) for which Part I and Part II examinations had to be qualified for being appointed as Section Officer (Audit). This Cadre was governed by the Recruitment Rules known as Indian Audit and Accounts Department Section Officer (Accounts) and Section Officer (Audit) Recruitment Rules, 1988 (Annexure A-9). The next channel of promotion from the post of Section Officer was to the post of Assistant Audit Officer (AAO) which was governed by the Recruitment Rules known as Indian Audit and Accounts Department (Assistant Accounts Officer/Assistant Audit Officer) Recruitment Rules, 1989 notified on 22.02.1989 (Annexure A-10). In the Recruitment Rules of 1988 of Section Officer (Audit), there is provision for method of recruitment in the following manner:-
Promotion, failing which by transfer/on deputation failing both by direct recruitment. and there was no provision for direct recruitment in the cadre of AAO as per Recruitment Rules of 1989. Promotion was from the cadre of SO (Audit). On the recommendation of the 6th CPC, pay scales of the employees of the respondent department were revised. The cadres of SOs and AAO were merged and were placed in pay scale PB-2 Rs. 9300-34800 with Grade Pay of Rs. 4800.
3. Though there was no formal amendment to the Recruitment Rules, however, before merger of SOs and AAOs, i.e. before recommendation of the 6th CPC, recruitment for the post of SO(Audit) was initiated by the respondents through Staff Selection Commission and ultimately the selected candidates were offered appointment in the year 2010 as Assistant Audit Officers who were to remain on probation for two years. The respondent department on the basis of Notification regarding Pay Rules dated 29.08.2008 (Annexure A-1) treating these persons as AAOs, fixed their pay at Rs. 13350. Subsequently, the Ministry of Finance (Department of Expenditure) issued Rules called the Indian Audit and Accounts Department (Assistant Accounts Officer and Assistant Audit Officer) Recruitment Rules, 2012 vide notification dated 10.01.2013 (Annexure A-11).
4. The applicants who qualified SAS examination for promotion to the post of AAO (Audit) after 01.01.2006 and were promoteed as regular AAO (Audit) after 1.1.2006, were promoteed as regular AAO (Audit) and their dates of appointment were 01.05.2014, 11.10.2013, 15.10.2014, 31.10.2012, 05.05.2014, 12.04.2013 and 11.10.2013 (Annexure A-8). Their pay was fixed by taking into consideration minimum of the pay band i.e. Rs. 9300-34800 plus Grade Pay of Rs. 4800 without benefit of pay fixation in the Pay Band and pay fixation was done under Rule 13(1) of the CCS (Revised Pay) Rules, 2008 that reads as follows:-
13. Fixation of pay on promotion on or after 1.1.2006 In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows:-
(i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay band will be stepped to such minimum.
In the same notification dated 29.08.2008 (Annexure A-1), without mentioning any specific post, the directly recruited persons after 01.01.2006 had been ordered to be fixed with Grade Pay of Rs. 4800 at the stage of Rs.13350.
5. Subsequently two circulars have been issued by the CAG, Respondent No.2 on 13.06.2011 and 22.09.2011, copies attached as Annexure A-2 and A-3, clarifying that Assistant Audit Officers who were promoteed between 01.01.2006 to 29.08.2008, have been allowed fixation at the minimum stage of Rs.13950/-. Since there is an anomaly in the manner of pay fixation of the pay of the member of the same cadre merely on the basis of promotion from various dates, therefore, applicants made representations. A copy of representation dated 18.09.2014 made by applicant No.1 is attached as Annexure A-12.
6. It is further stated that the representation made by the applicants and similar representations made by others, were rejected by the respondents vide order dated 31.12.2014. While rejecting their claim vide order dated 31.12.2014, the respondents relied upon letter dated 08.12.2014 of Respondent No.2. Copy of decision dated 08.12.2014 of Respondent No.2 is attached as Annexure A-4 and letter dated 31.12.2014 is attached as Annexure A-5 (Collectively.). The respondent No.2 issued Circular dated 06.01.2015 on the subject Revision of option for fixation of pay in the revised pay structure for persons promoteed to the grade of Assistant Accounts/Audit Officer (AAO) after 01.01.2006, copy attached as Annexure A-6. After issuance of clarification dated 06.01.2015 (Annexure A-6) applicants submitted individual representations to the respondent No.3. Copy of representation dated 30.01.2015 made by applicant No.1 is attached as Annexure A-13. Similar representations were made by other applicants. Again, the respondents rejected the representations of the applicants vide order dated 13.2.2015 stating that the pay of the applicants on promotion had been fixed in terms of Rule 13 of CCS (Revised Pay) Rules, 2008. The respondents had not replied as to why the pay of the directly recruited AAOs was higher than that of the promoteee AAOs (Annexure A-7 colly). Hence this OA.
7. In the grounds for relief, it has, interalia been stated as follows:-
(i) Admittedly applicants are the regular incumbents of the cadre of Assistant Audit Officer who were promoteed as such on qualifying SAS Examination though after 01.01.2006. Same was the position of those, who were promoteed between 01.01.2006 to 29.08.2008 and as such, there cannot be any discrimination in the manner of fixation of pay merely on the basis of artificial date, though all of them were appointed after revision of the pay scale i.e. on 01.01.2006 as Assistant Audit Officer.
(ii) Giving higher start to those who were promoteed w.e.f. 01.01.2006 to 29.08.2008 particularly when both of them are at par and after qualifying prescribed examination, there cannot be any discrimination. Law is well settled that there cannot be two manner of the pay fixation of the members of the same cadre who were appointed after qualifying the same requisite examination.
(iii) There cannot be discrimination on the basis of source of recruitment and there cannot be discrimination on the basis of date of appointment particularly when all the appointments are after date of implementation of recommendations of the 6th CPC. Pay Commission has not put any cut of date in the recommendations.
8. In the written statement filed on behalf of the respondents No. 1-3, it has been stated that the Government of India, Ministry of Finance, Department of Expenditure issued Notification dated 29.08.2008 (Annexure A-1) formulating the rules called the Central Civil Services (Revised Pay) Rules, 2008 which became effective w.e.f. 01.01.2006. Relevant Rules of CCS (RP) Rules, 2008 as applicable in the present case are reproduced hereunder:-
Rule 5: Drawal of pay in the Revised Pay Structure Save as otherwise provided in these rules, a Government servant shall draw pay in the revised pay structure applicable to the post to which he is appointed;
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
.
Explanation 2:- The aforesaid option shall not be admissible to any person appointed to a post on or after the 1st day of January, 2006, whether for the first time in Government service or by transfer from another post and he shall be allowed pay only in the revised pay structure.
Rule 8: Fixation of pay in the revised pay structure of employees appointed as fresh recruits on or after 1.1.2006 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 1.1.2006.
PB-2 (Rs. 9300-34800) Grade Pay Pay in the Pay Band Total 4200 9300 13500 4600 12540 17140 4800 13350 18150 Further, Rule 13 of CCS (RP) Rules, 2008 is reproduced hereunder:-
Rule 13: Fixation of pay on promotion on or after 1.1.2006 In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows:-
(i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay band will be stepped to such minimum.
The perusal of Rule 5 Explanation 2 reproduced above clinches the issue of the applicants against them in the present case as it is categorically provided in the said explanation that option shall not be admissible to any person appointed to a post on or after the 1st day of January, 2006 as the applicants were initially appointed in the office of respondent No. 3 in the year 2010/2009 respectively and were thus not liable to exercise any option for drawal of pay in the revised pay structure.
9. In the present case, the applicants were initially appointed in the office of answering respondent No. 3 as Clerk/Auditor after 01.01.2006. Subsequently, some of them were promoteed as Senior Auditor and later after passing the SOGE/SAS Exam as AAO w.e.f. different dates in 2012-2014. A few of them who were appointed as Auditor after clearing the SAS Exam, were promoted as Assistant Audit Officers also on different dates between 2012-2014. Consequently, on their promotion as Assistant Audit Officer, the pay of the applicants in the promoted post of Assistant Audit Officer was fixed as per Rule 13 of the CCS (Revised Pay) Rules, 2008. Earlier, prior to 01.01.2006, the pay scale of the post of Section Officer was 6500-10500 and the pay scale of the post of Assistant Audit Officer was 7450-11500. However, the cadres of Section Officer and Assistant Audit Officers were merged and redesignated as AAO by the office of respondent No. 2 and was granted the pre-revised scale of Rs. 7500-12000. Thereafter, with the implementation of 6th CPC recommendations and CCS (RP) Rules, 2008, the scale of Rs. 7500-12000 was further revised to Rs. 9300-34800 + GP 4800. Large scale references were received from the field offices/individuals/SAS Associations regarding fixation of pay of persons promoted to the grade of SO/AAO between the period from 01.01.2006 to 29.08.2008 and who had opted for fixation of their pay in the revised pay structure from the date of their promotion after 01.01.2006. Consequently, respondent No. 2 CAG issued a circular dated 13.06.2011 (Annexure A-2) clarifying the points raised by various offices/associations.
10. It is further stated that the pay of the direct recruit Assistant Audit Officers who were appointed after 01.01.2006, was fixed as per Rule 8 of CCS (RP) Rules, 2008 viz entry level pay of Rs. 13350 with Grade Pay of Rs. 4800 in PB-2 (Rs. 9300-34800). In the case of the applicants who were appointed as Auditor/Clerk after 01.01.2006 i.e. in 2010/2009, their pay was fixed as per Rule 8 of CCS (Revised Pay) Rules, 2008 and on promotion as AAO was refixed as per Rule 13(1) of the Rules.
11. Through interim order dated 02.02.2016, it was directed that a separate reply be filed on behalf of Ministry of Finance, respondent No. 1, to clarify why higher starting pay of Rs. 13,350 plus Grade Pay has been given to the direct recruits and the same has been denied to the promotees who get the minimum of Rs. 9300 only plus some increments due to their service in the feeder cadre but still far below the starting pay of Rs. 13,350 being given to the direct recruits. Accordingly, additional affidavit was filed in this regard on 16.5.2016. Extracts of 6th CPC report have been extensively quoted in the affidavit to show why higher starting pay had been allowed to the direct recruits. Para 2.2.22 of the report is relevant in this regard (Annexure R-8).
12. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicants reiterated the content of the OA and rejoinder at great length. He referred to the anomaly that had been created on account of the CCS (Revised Pay) Rules, 2008 (Annexure A-1) in the pay admissible to the persons promoted as Assistant Audit Officers and those directly recruited to the very same post. He also stated that artificial distinction had been created between SOs/AAOs promoted as such prior to 01.01.2006, between 01.01.2006 to 29.08.2008 and thereafter. The applicants fell in the last category as they were promoted as AAOs in 2012-2014. Their pay fixation orders that had been annexed with the OA showed that they were drawing far less pay on promotion than the directly recruited AAOs. Learned counsel also stated that although the National Anomaly Committee had on a reference made to it, concluded that there was indeed an anomaly in this matter, but the Ministry of Finance had not had not accepted the recommendations of the National Anomaly Committee.
13. Learned counsel for the respondents stated that the higher start was allowed to the directly recruited Assistant Audit Officers in view of the recommendations of the Sixth CPC in respect of persons joining posts in the Grade Pay of Rs. 4800. The applicants had joined service as Clerks/Auditors much after 2006. In fact, they had joined as late as 2010 and were promoted as Senior Auditors thereafter. After they had qualified SAS examination, they were eligible to be promoted as Assistant Audit Officers and had got their promotions in 2012/2013/2014. Since their promotion was from the rank of Senior Auditor to AAO, their pay fixation was governed by Rule 13(1) of the CCS (Revised Pay) Rules, 2008. He further stated that the recommendations of the 6th CPC had been accepted and the CCS (Revised Pay) Rules, 2006, had been notified. Any tinkering with Rule 13 of the Rules would have a cascading effect as large number of cadres would be affected and there would be a flood of litigation on this account. Learned counsel also stated that the higher start had been allowed in respect of direct recruits for posts with Grade Pay of Rs. 4800 keeping in view the fact that as per the recommendation of the 6th CPC, the number of Pay Bands had been reduced to 4 and hierarchy within the same pay band was determined by the Grade Pay. Since there were a number of Grade Pay levels within the same pay band and persons were being directly recruited for posts with different Grade Pay, the persons joining these posts could not be given the minimum of the pay band, but had to be fixed at the intermediate level prescribed for each level of Grade Pay. This had been adequately explained in the Additional Affidavit filed on behalf of Ministry of Finance.
14. We have given our careful consideration to the matter. The applicants have listed eight sub paras in their claim for relief and much has been said about the fixation of pay of persons in the cadre of SO/AAO prior to 01.01.2006 between 01.01.2006 and 2008 and thereafter. Since the applicants only joined service in 2010 and were Clerks/Auditors/Sr. Auditors upto the dates in 2012-2014 when they were promoted as AAOs, the impugned circulars of 13.06.2011 (Annexure A-2), 22.09.2011 (Annexure A-3) and 06.01.2015 (Annexure A-6) can have no relevance to the claim of the applicants and hence, prayers as per clause 8 (ii) (iii) and (vi) are rejected. So far as the pay fixation of the applicants on promotion is concerned, this has been effected on their promotion as AAO, in accordance with Rule 13(1) of the CCS (Revised Pay) Rules, 2008.
15. The UO Note No. 10(2)/2011/EIIIA dated 23.01.2013 issued by Ministry of Finance, Department of Expenditure to DOPT on the subject of Minutes of the Meeting of the National Anomaly Committee held on 17th July, 2012 : Follow up Action: Item No. 5(ii), (iv) (with 32 & 33), (v) (vii) Rule 8 of the Revised Pay Rules Fixation of pay on promotion (Annexure R-12) has been seen. Paras 3, 4, 5, 6 and 7 of this note reads as follows:-
(3) The recommendation of the National Anomaly Committee has been carefully considered in this Ministry in the light of the recommendations of the 6th CPC relating to the new scheme of the Pay Band & Grade Pay which marks a significant modification of the pre-revised scheme of specific pay scales for various posts and the mechanism recommended by the commission for fitment of fresh recruits joining after 1.1.2006 in the new scheme of Pay Bands and Grade Pay. In order to ensure a smooth transition to the new structure of running Pay Bands and Grade Pay from the old structure, the Commission recommended for different mechanisms for fixation of pay in case of future recruits/direct recruits appointed directly in revised structure of Pay Band and Grade Pay on or after 1.1.2006 (adopted as per Rule 8 of the CCS (RP) Rules, 2008) and fixation of pay on promotion from one post to another either in same Pay Band or from one Pay Band to another (Adopted as per Rule 13).
(4) Accordingly, considering that the system of Entry Pay for Direct Recruits and the manner of fixation of pay on promotion have been devised by the Pay Commission to cater to two different situations altogether, it is to be appreciated that it is not appropriate to allow the Entry Pay as prescribed for Direct Recruits in case of those employees who are appointed to a post not through Direct Recruitment but on promotion, until and unless an anomaly arises where the pay of senior promotee happens to be actually lower than that of a junior DR due to application of the entry in case of the junior DR appointed on or after 1.1.2006.
(5) In view of the above, in cases where no Direct Recruitment has actually taken place and no anomaly has actually arisen whereby an employee appointed on promotion basis is not actually drawing less pay than a direct recruit for the reason that no DR has yet joined, it is not possible to, ipso facto, extend the Entry Pay prescribed for DRs to those appointed on promotion to the concerned grade. Such a blanket extension of the Entry Pay prescribed for DRs to promotees in grades where both direct recruitment and promotion are modes of recruitment, will place employees, holding analogous posts with the same Grade Pay where direct recruitment is not a prescribed mode of recruitment, at a disadvantageous position, and they may also demand similar dispensation.
(6) Notwithstanding the above, however, this Ministry has agreed to remove anomaly in cases where a senior employee who is appointed to a post on promotion happens to actually draw pay less than an employee appointed on direct recruitment basis on or after 1.1.2006 where such a DR is junior to the employee appointed on promotion as per the relevant seniority list. The same principle of removal of anomaly shall be adopted in all cases where such an anomaly occurs, subject to the same principles, namely:-
(a) Stepping up of the pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basis pay than the seniors. In such cases, the basic pay of the seniors will be stepped up with reference to the pay of the directly recruited junior provided they belong to the same seniority list for all purposes.
(b) Government servants cannot claim stepping up of their revised basic pay with reference to the entry pay in the revised structure for direct recruits appointed on or after 1.1.2006, as laid down in Section II of Part A of the First Schedule to the CCS (RP) Rules, 2008, if their cadre does not have an element of direct recruitment or in cases where no junior is drawing basic pay higher than them.
(c) Stepping up of pay of the seniors shall not be applicable in cases where direct recruits have been granted advance increments at the time of recruitment.
(7) This decision has the approval of the Finance Minister.
16. It is also seen that OA No. 4135/2013 titled Sh. M.S. Raja, Secretary General, All India Audit & Accounts Association Vs. UOI was decided by the CAT Principal Bench, New Delhi vide judgement dated 23.09.2014 (Annexure R-13). The paras 10 and 11 of this order reads as follows:-
10. They have also stated that in view of the above, the benefit of Entry Pay cannot be granted to all regardless of whether there is an element of Direct Recruitment in that cadre or not. Hence, the OA of the Applicant is not sustainable and is liable to be dismissed. Further, there is no valid ground on the basis of which the Applicants seek amendment of Rule 13 of the CCS (RP) Rules, 2008 or seek arrears of pay, if any. In this regard, the respondents have relied upon the judgment of the Honble High Court of Punjab and Haryana in the case of Ram Milan & Ors vs. Central Administrative Tribunal bearing W.P.(C) No.21738 of 2012 has already held that the pay of the Petitioners therein were to be fixed in terms of Rule 13 of the CCS (RP) Rules, 2008. It has been held that the claim of the Petitioners therein for revised pay scale at par with direct recruits from the date of their promotion is not tenable.
11. We have heard the learned counsel for the applicant Shri S K Vyas and learned counsel for the respondents Ms. Eshita Baruah for Shri Gaurang Kanth. In our considered view, the recommendation of the Anomaly Committee are not binding on the Govt. The respondents in their reply have explained as to why the aforesaid recommendation cannot be implemented. Therefore, it would not be within the jurisdiction of this Tribunal to enforce the aforesaid recommendation of the Anomaly Committee through a judicial order. We, therefore, do not find any reason to interfere with the decision of the respondents in this matter. Accordingly, this OA is dismissed. There shall be no order as to costs. It is noted, however, that when this judgement was pronounced, no case had been brought to the notice of the Tribunal where direct recruited AAOs had actually been appointed and were drawing starting pay of Rs. 13,350 plus Grade Pay 4800.
17. In the present OA, Annexure A-14 placed on record on behalf of the applicants as rebuttal to the Additional Affidavit dated May, 2016 filed on behalf of the respondents shows that eight persons have been directly recruited as AAOs after 1.1.2006. Their dates of joining stretch from 02.07.2009 to 20.09.2010 and these AAOs have got the starting salary of Rs. 13,350 plus Grade Pay Rs. 4800.
18. A reading of the Indian Audit and Accounts Department (Assistant Accounts Officer and Assistant Audit Officer) Recruitment Rules, 2012 notified on 10.01.2013 however gives a different complexion to the matter. While it is stated therein that Assistant Audit Officer is a selection post, the post can be filled through promotion failing which by deputation or absorption failing both by direct recruitment. For promotion, departmental candidates who have passed the Subordinate Audit Service Examination conducted by the C & AG of India or any authority specified by it would be eligible while the direct recruits would be selected on the basis of the entrance examination conducted by the UPSC. For promotion, there is no requirement of qualifying service nor is there any indication as to whether any of the feeder categories who could be Clerks/Auditors/Sr. Auditors would have any preference for consideration. From a reading of para 2.2.22 of the 6th CPC report, it is clear that the higher start of Rs. 13350 is in general given to direct recruits joining posts with Grade Pay Rs. 4800 keeping in view the qualifying service for moving from Grade Pay Rs. 4200 to Rs. 4800 and providing one increment for each year of qualifying service required on the sum total of the minimum of the Pay Band and the lowest Grade Pay for the Band.
19. In the present case, on promotion as AAO, after qualifying the SAS Exam, the applicants have moved to PB-2, Grade Pay Rs. 4800 without any requirement of qualifying service although they were earlier in PB-1 with far lower Grade Pay. The selection and appointment of the eight persons appointed as AAOs in 2009/2010 did not take place under the 2013 Rules, but they had applied for the post of Section Officer (Audit) (1988 Rules) for which selections were made through the SSC prior to 2008. Their appointments were ultimately made in 2010. Since by then, the posts of SOs had been merged with AAOs, these eight persons were designated as AAOs and got the entry level pay of direct recruit AAOs. After 2010, there has apparently been no direct recruitment of AAOs. It is also apparent that no junior of the applicants is getting higher pay than the applicants in the grade of AAO. In view of the formulation in the RRs relating to selection of AAOs, direct recruitment is an unlikely eventuality since departmental candidates who have qualified the SAS Exam would always be available for promotion. Besides, the U.O. note of the Finance Ministry dated 23.1.2013 makes it clear that any promotee AAO who is getting lesser pay than his junior direct recruit would be entitled to stepping up of his pay to bring the same at par with the junior and thus offers ample protection to the promotee AAOs.
20. It is apparent that only eight persons appointed as AAOs in 2009/2010 were given the entry level pay of Rs. 13,350 plus Grade Pay 4800 and their appointments as such were made prior to notification of the RRs of 2013. It has also been clarified by the respondents that after 2010, there has been no appointment of direct recruit AAOs. From this, it would appear that the appointments in 2009/2010 were a one of a kind event and the same cannot be quoted /referred to by the applicants to their benefit as they were only promoted as AAOs in 2012/2013/2014.
21. In view of the discussion above, it does not appear necessary to consider the claim of the applicants who are promotee AAOs and whose pay had been fixed on their promotion as such under Rule 13(1) of the CCS (Revised Pay) Rules, 2008 for grant of entry level pay prescribed for direct recruit AAOs. Hence, this OA is rejected. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE L.N. MITTAL) MEMBER(J) Dated:
ND* 1 OA No. 060/00284/2015