Central Administrative Tribunal - Delhi
Radhacharan Shakiya (Director/Se) vs Union Of India & Ors. Through on 13 May, 2014
CENTRAL ADMINSITRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 4062/2013
New Delhi this the 13th day of May, 2014
Honble Mr. G.George Paracken, Member (J)
Honble Mr. P.K. Basu, Member (A)
1. Radhacharan Shakiya (Director/SE)
S/o Late Sh.G.R.Shakiya
R/o R-4, Andrews Ganj Extn.
New Delhi.
2. Mahendra Kumar Yadav (Director /SE)
S/o Shri Moti Lal Yadav
R/o 84, Rashi Apts., Sec-7
Plot No.3, Dwarka
New Delhi 110 075
3. Sanjeev Gupta (Director/SE)
S/o Shri Bisakhi Ram
R/o 12-A, Janyug Apartment
Sec-14, Ext., Rohini
New Delhi 110 085
4. Kulwinder Kumar (Director/SE)
S/o Shri Gurdial Supra
R/o Qtr. No.T-V/ATBL-2B
Banashree BSNL Colony
Nonghrim Hills, Shillong 793003
5. R.L.Meena (Director/SE),
S/o Shri Ram Khiladi Meena
R/o D-25, Anand Vihar Rly Colony
Jagatpura, Jaipur - 302017
6. Sathya Priyadarshini (Direcot/SE)
S/o Shri K.Mariappan
R/o A-1, Kalyani Tower
15th Street Annai, Theresa Nagar
Puzhudhivakam
Chennai 600091.
7. Alok Jaimal (Director/SE)
S/o Shri B.R.Jaimal
R/o 36/7 Type V BSNL colony,
Kali Bari Marg
New Delhi 110 001.
8. Arun Kumar Verma (Director/SE)
S/o Shri Permanend Verma
R/o D-II/50, Pandara Road
New Delhi 110 003.
9. N.S.Deepu (Director/SE)
S/o Shri N.P.Salim
R/o E-2 Qtrs. Saibaba Colony
Telephone Exchange, Alagesan Road
Coimbatore 641011
10. S.Sudhakar (Director/SE)
S/o Shri M.Sambandam
R/o F-1, 883, 18th Street
J-Block, Anna Nagar,
Chennai - 600040
11. Mohan Lal (Director/SE)
S/o Late Shri S.R.Bhagat
R/o 1110-A, Sector 46B
Chandigarh-1600472
12. Hawa Singh Jakhar (Director/SE)
S/o Shri Hardeo Singh Jakhar
R/o Q. No.V/3, Kosi Block
ALTTC, Raj Nagar, Ghaziabad
UP.
13. Sanjay Kumar Choudhary (Director/SE)
S/o Late T.P.Choudhary
R/o E-1, WMS Compound
9th Main, 47th Cross, Jayanagar
5th Block, Bangalore 560 041.
14. Rajendra Meshram (Director/SE)
S/o Shri Harichand Meshram
R/o Sheel, Plot No.7
Prince Hsg. Society, Tejaswani Nagar
Wathoda Chowk, Nagpur
MH 440009
15. Atul Kumar Chaudhary (Director/SE)
S/o Late Sh. Gauri Shankar
R/o 33/6, Type-V, BSNL Colony
Kalibari Marg
New Delhi 110 001.
16. Syed Tausif Abbas (Director/SE)
S/o Syed Asghar Ali
R/o SKA-905, Shipra Krishna Vista
Indirapuram, Ghaziabad 201014
17. Y.G.S.C. Kishore Babu (Director/SE)
S/o Shri Y.Ramamurthy
R/o S-57, Hudco Place
CPWD Qtrs., New Delhi 110 049.
18. Jayant Kumar (Director/SE)
S/o Shri Daya Singh Dahiya
R/o 39/6, II Floor,
East Punjabi Bagh
New Delhi 110 026
19. R.Saji Kumar (Director/SE)
S/o Shri K.Rajayyam
R/o E-9, Type-5, B-Hudco Place Extn.,
Andrews Ganj,
New Delhi 110 049.
20. Om Prakash Manhas (Director/SE)
S/o Late Shri Hari Singh Manhas
R/o D-II/50, Kaka Nagar
New Delhi 110 003.
21. Rajesh Kumar Singh (Director/SE)
S/o Shri Rattan Singh
R/o Flat No.113, Sri Vinayak Apptt.
Plot No.5-C, Sec-22, Dwarka
New Delhi 110 077.
22. Beerbal Prasad (Director/SE)
S/o Late Shri Sommar Prasad
R/o C-64, Pkt-6, Kendriya Vihar-2
Sec-82, Noida (UP)-201304.
23. Gautam Kumar (Director/SE)
S/o Shri Munja Ram
R/o E-189, Sushant Lok-III
Sec-57, Gurgaon
Haryana-122002
24. Ram Gopal Yadav (Director/SE)
S/o Shri Balu Ram Yadav
R/o 24, Bhomia Nagar, Kalwar Road
Jhotwara, Jaipur-12
25. Gollamudi Adam (Director/SE)
S/o Shri G.Jaya Rao
R/o 103, 4th Lane, New P&T Colony-II
Near Saibaba Temple
Vijaywada -520 008
(A.P.)
26. Tullimelli Varaprasad (Director/SE)
S/o Shri T.Ramdas
R/o D.No.54/14/6-1B-Plot No.19
Road No.12, Bharathi Nagar
Vijaywada 520008
(A.P.)
27. P.Sanjeev (Director/SE)
S/o Shri P.Subba Rao
R/o E-1, Telecom Officers Qtrs.
Gurudwara Road
Perumanoor, Ernakulam-682015
28. K.S.R.Suresh Kumar (Director/SE)
S/o Shri K.S.Ramaswamy
R/o Plot No.5, Kattaboman Street
Agastseeswara Nagar, Polichaloor
Chennai.
29. Ajay Kamal (Director/SE)
S/o Shri Chotte Lal Kamal
R/o Flat No.6, Saraswati BSNL Colony
Juhu Tara Road, Santacruz,
West Mumbai
30. U.K.Nanda Purkar (Director/SE)
S/o Shri Prabhakar Nanda Purkar
2102, Shanti Residency, Dhankari Road
Raipur
31. Kuljeet Kaur (Director/SE)
W/o Shri R.S.Sethi
R/o C-7A, Guru Arjan Dev Nagar
PO Khalsa College, Amritsar
Punjab
32. S.K.Talware (Director/SE)
S/o Late Shri Kondwaji Talware
R/o 12, Narmada Sanchar Vihar
BSNL Quarters, Nagpur
33. Dinesh Sharma (Director/SE)
S/o Shri Bal Krishan Sharma
R/o 305-K, MDI Gurgaon
34. V.K.Hirna (Director/SE)
S/o K.L.Hirna
R/o 284, Arunodaya Appt.
F-Block, Vikas Puri, New Delhi 110 018.
35. Rama Rani (Director/SE)
W/o Shri Subhash Verma
R/o D-I/68, Bharti Nagar
New Delhi 110 003.
36. Balbir Singh (Director/SE)
S/o Shri Hardev Singh
R/o 319, Chand Nagar
New Tilak Nagar
New Delhi . Applicants
(By Advocate: Shri M.K.Bhardwaj)
VERSUS
Union of India & Ors. through:
1. The Secretary
Govt. of India
Department of Telecommunication
Sanchar Bhawan
New Delhi 110 001
2. The Secretary
Govt. of India
Department of Expenditure
North Block
New Delhi - 110 001
3. The Secretary
Govt. of India
Department of Personnel and Training
North Block
New Delhi 110 001 ... Respondents.
(By Advocate: Shri Ashok Kumar)
ORDER
Mr. P.K. Basu, Member (A) All the applicants belong to Organized Group-A Service of Indian Telecom & P&T Services and are presently serving as Director/ SE at different places in the Department of Telecommunication (DoT) in PB-4 (37400-67000) with Grade Pay Rs.10000/- equivalent to the post of Joint Secretary, Government of India. According to the applicants, the 6th Central Pay Commission (CPC) in para 4.2.40 of its report stated as follows:
Transport Allowance was recommended by the Fifth CPC to defray the cost of travel between office and residence. This allowance was introduced w.e.f. 1/8/1997. This allowance is one of the very few allowances that are payable on the basis of pay sale rather than pay range. Again in para 4.2.42, the report of the 6th CPC states as follows:
In the revised scheme of pay scales, all the allowances and facilities will be governed by Grade Pay.
2. The applicants state that accordingly all allowances such as travelling allowance/ daily allowance, residential accommodation etc. are also governed with the Grade Pay only. However, the Department of Expenditure, Government of India issued instructions as contained in OM dated 29.08.2008 for giving option to avail the facility of transport allowances @ Rs.7000/- + DA thereon to officers drawing Grade Pay of Rs.10000/- and Rs.12000/- and those in the HAG Scale, who are entitled to the use of official car in terms of OM dated 28.01.1994.
3. The grievance of the applicants is that they are not being given transport allowance at the rate of Rs.7000/- on the ground that they were granted financial upgradation in the higher Grade Pay i.e. from Rs. 8700/- to Rs. 10000/- on non-functional basis and those granted Grade Pay of Rs.10000/- on non-functional basis were not entitled to use official car in terms of 1994 OM. This is the bone of contention.
4. The applicants have sought the following reliefs:
i) To declare the action of the respondents in reducing the Transport Allowance from Rs.7000/- + DA to Rs.3200/- + DA as illegal arbitrary and unconstitutional and issue directions for restoring the Transport Allowances Rs.7,000 with all consequential effects.
To quash and set aside the impugned OM No.1-4/2013-PB(Pt) dated 24th October, 2013.
iii) To declare the action of respondents in reducing the TA arbitrarily and effecting recoveries as illegal and arbitrary.
5. Heard both the parties.
6. The applicants argue that DoP&Ts OM dated 24.04.2009 which was issued consequent upon the recommendations of the 6th CPC provides as follows:
Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers belonging to batches of Organized Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre.
7. It is argued that based on this OM, the applicants were given Grade Pay of Rs.10000/- vide various orders from October 2011 to May 2013. According to them, since they were in the equivalent grade of Joint Secretary, they were entitled to all the benefits attached to the post of Joint Secretary including transport allowance at the rate of Rs.7000/- which is allowed vide 2008 circular to Joint Secretaries and above. Vide OM dated 24.10.2013, the Department of Telecommunication (DoT) issued a clarification. This was after consultation with the Ministry of Finance and it was clarified that non-functional upgradation does not entitle them to draw transport allowance at the rate of Rs.7000/- plus admissible DA thereon because such officials do not fulfill the eligibility conditions as enumerated in 2008 circular. Therefore, such officers would be entitled to transport allowance at the rate of Rs.3200/- plus admissible DA in accordance with 2008 circular. The applicants have challenged this order. They further point out that in the OM dated 5.03.2009, the government has issued following clarification:
It is clarified that such officers will continue to be entitled for Transport Allowance @ Rs.3200 p.m. + DA thereon as long as they continue as Director/ equivalent at the Centre, notwithstanding the fact that they may have been granted non-functional upgradation to the next higher grade pay of Rs.10000 under the scheme of grant of non-functional upgradation to officers of All-India Services/ Organized Group `A Services in PB-3 and PB-4 linked to the posting of IAS officers at the Centre introduced as a result of Sixth CPCs recommendations. It is argued that this means that as long as they were not given Rs.10000/- grade pay on deputation to the Centre, they will be drawing travelling allowance at the rate of Rs.3200/- per month and in case they get Rs.10000/- grade pay, they should be given TA at the rate of Rs.7000/- per month.
8. Respondents in their reply state that the 1994 circular was for a specific purpose to provide facility to officers of the rank of Joint Secretaries and above in the ministries for the use of staff car for journeys from their residence to office and back. That order was not made applicable to everybody who draws the same pay scale as the Joint Secretary. In fact, clarification dated 5.03.2009 also states the same thing that mere getting Grade Pay of Rs.10000/- does not entitle an officer to Rs.7000/- transport allowance and they would continue to draw Rs.3200/- p.m. towards TA. The respondents also clarified that while granting non-functional upgradation in terms of OM dated 24.04.2009, it was made clear that this will be a purely non-functional upgradation, personal to the officer and would not bestow any right to the officer to claim promotion or deputation benefits based on non-functional upgradation in such a manner. It is clarified that the applicants are not entitled to use official cars for coming to office and to go back home. Hence the question of Rs.7000/- p.m. transport allowance to the applicants does not arise.
9. The respondents have also cited the judgment of the Honble Supreme Court in Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others, (2012) 8 SCC 417 in which the Court has held that in case 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. Similarly our attention was drawn to OM dated 6.02.2014 issued by the DoP&T based on this judgment of the Honble Supreme Court. The respondents also relied on the judgment of the Honble High Court of Delhi in Union of India and anr. Vs. JS Sharma and ors, WP ) No.5555/2013 in which the Court again reiterated the principle enunciated by the Honble Supreme Court in Chandi Prasad Uniyal (supra). Respondents also referred to the judgment of this Tribunal in J.S. Sharma Vs. Director General Works in OA 363/2012 in which the question of transport allowance at the rate of Rs.7000/- per month had been raised. The Tribunal held as follows:
13. The OM dated 23.04.2009 (Annexure A3) under which the applicants got the non-functional upgradation and the consequential Grade Pay of Rs.10000/- itself clearly reveals that the upgradation would not bestow any right to the officers to claim promotion or deputation benefits and that the same is personal to the officer. In view of the same, the contention of the applicants that they are entitled for the Transport Allowances at the rate of Rs.7000/- per month plus DA thereon is untenable and cannot be accepted.
10. After going through the relevant records and arguments of both sides as also the judgments cited, it is clear that there is no error committed by the respondents in not allowing Rs.7000/- per month to the applicants. The 1994 circular made a specific provision for the officers of the rank of Joint Secretaries and above, which is not applicable to other officials just on the ground that they draw the same Grade Pay. Therefore, the respondents had to issue a clarification in 2013 also. The Honble Supreme Court in Chandi Prasad Uniyal (supra) has also held that recoveries can be made in such circumstances and, therefore, the order dated 24.10.2013 directing recovery of transport allowance paid in excess is valid in law.
11. In view of above, we are not inclined to interfere in this matter. The OA is dismissed. No costs.
(P.K.BASU) (G.GEORGE PARACKEN) MEMBER (A) MEMBER (J) dkm