Central Administrative Tribunal - Hyderabad
S Bala Ram vs M/O Urban Development on 9 February, 2024
OA/444/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/21/444/2016
HYDERABAD, this the 9th day of February, 2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
S. Bala Ram, S/o Sri Late Sri S. Venkata Rajam, Aged about 56 years, Occ.
Assistant Engineer (E) (P), Hyderabad Central Electrical Division I, Central
Public Works Departmment, 1 Floor, Nirman Bhavan, Koti, Hyderabad-500
095, Telangana State., R/o Hyderabad.
...Applicant
(By Advocate: Mr. K. Ram Murthy)
Vs.
1. 1. Union of India, Represented by its Director General, Central Public
Works Department, Nirman Bhavan, New Delhi-110 011.
2. The Deputy Controller of Accounts(SZ), Ministry of Urban Development,
Internal Audit Wing, Shastri Bhavan Annexe, II Floor, 26, Haddows Road,
Chennai-600 006, Τ.Ν.
3. The Superintending Engineer(E), HCEC, Central Public Works
Department, 2nd Floor, Nirman Bhavan, Koti, Hyderabad-500 095, Telangana
State.
4.The Executive Engineer(E), HCED-I, Central Public Works Department, 1st
Floor, Nirman Bhavan, Koti, Hyderabad-500 095, Telangana State.
...Respondents
(By Advocate: Mrs. K. Rajitha, Sr. PC for CG)
----
Page 1 of 9
OA/444/2016
ORAL ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) By this OA, the applicant sought the following relief:
"...........to quash Impugned Orders No.LR.8(14)2016 / HCEC / 586-87(H) dated 12.04.2016 and 12(13)2016 /HCED1/EC-1(H)676, dated 25.04.2016 issued by 3rd and 4th respondents, regarding recovery of excess pay and allowances on alleged incorrect pay fixation pertaining to period during 18.11.1996 to 18/11/2005 and declare the same as illegal, arbitrary, discriminatory and violative of article 14 and 16 of the Constitution of India and against Rules made under the Proviso o article 309 of the Constitution of India and set aside.
b) to issue directions to the respondents not to recover anything from the applicant since, these are belated and without any scientific work-out of basic fixation done statements in the interest of justice and be pleased to pass such other Order or Orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case are that the applicant was working as Assistant Engineer (E) (P) to the utmost satisfactory of superiors and he has been issued Impugned Orders dated 12.4.2016 and 25.04.2016 regarding recovery of excess pay and allowances on alleged incorrect pay fixation pertaining to the period during 18/11/1996 to 18/11/2005. He has submitted representations dated 20.02.2015 and 24.6.2015 to 4 th respondent for providing a copy of statement of fixation of pay after completion of 15 years of service and it was replied that these are already weeded out and not available as per 3rd and 4th respondents. It is further submitted by the learned counsel for the applicant that the payment is of 11 years old and no records are available with applicant.
It is further submitted by the learned counsel for the applicant that in the Impugned Order dated 25.04.2016, it is proposed to recover in 4 installments @ Rs.9468/- in 4/2016, 5/2016, 6/2016 & Rs.9470/-in 7/2016. Feeling aggrieved, the applicant approached this Tribunal. Page 2 of 9
OA/444/2016
3. After Notice, respondents have appeared through their counsel and filed reply vehemently opposing the relief on the ground that the applicant joined the respondent department as Junior Engineer (Electrical) on 12.10.1981 in the scale of Rs.1400-40-1600-50-2300-60-2600 and after 15 years, his pay was fixed as Rs.2375/- in the pay scale of Rs.2000-60-2300-EB-75-3200-100- 3500. As per the OM.No.A-11014/91-EC-VI dated 29.03.1991 of DGW, CPWD, New Delhi, Junior Engineers, who has completed 15 years of service, have been granted the personal promotion in higher pay scale of Rs.2000-60- 2300-EB-75-3200-100-3500 and he was also granted personal promotion in the grade of Rs.2000-3500 w.e.f. 18.11.1996 and accordingly, the pay has been fixed at R.2375/- On implementation of 5th Pay Commission w.e.f. 01.01.1996, the existing pay scale of Rs.2000-3500 had been revised to Rs.6500-200-10500. Accordingly, the pay of the applicant has been revised and refixed in the new scale w.e.f. 01.01.1996 at Rs.6725/- and on upgradation w.e.f. 18.11.1996 at Rs.7300/-. Later on, in the process, the Internal Audit Wing has checked the pay fixation cases in respect of Gazetted Staff of Visakhapatnam Central Electrical Division (VCED), CPWD, Visakhapatnam during April-June 2014 when the applicant was working in VCED and observed that his pay was wrongly fixed at Rs.7300/- instead of Rs.7100/- for the period from 18.11.1996 to 18.11.2005 on grant of personal promotion to the officer as stated by their letter dated 25/27.06.2014. Thereafter, the applicant was transferred from VCED to Hyderabad Central Electrical Division, Hyderabad. The Audit Objection was transferred to HCED-I by Executive Engineer (Electrical), Visakhapatnam Central Electrical Division, Visakhapatnam vide letter dated 01.09.2014 and the matter was conveyed to him on 10.09.2014 with regard to recovery or the Page 3 of 9 OA/444/2016 excess pay and allowances paid to him and to raise objection, if any, within 15 days of time. After lapse of four and half months, he made a representation to the 4th respondent on 20.02.2015, not to recover the excess pay and allowances due to wrong fixation of his pay. The fourth respondent rejected the said representation and the same was intimated to him vide letter dated 03.06.2015.
4. It is further submitted that as per the office procedure, after fixing the pay of any official, copy of pay fixation will be issued to the concerned official and also entry in the service book of the concerned official will be made. The entry in the service book was checked by the Internal Audit Wing, which found that the pay fixed was wrong and asked the department to recover the excess pay paid. The due and drawn statement for the period from 18.11.1996 to 18.11.2005 has been prepared by the 4 th respondent and furnished to the applicant vide letter dated 03.06.2015. Thereafter, the allegation made by the applicant that records are not provided is baseless. The due and drawn statement has been prepared by the 4 th respondent based on the drawn statement received from the concerned offices, where the applicant had previously worked. The decision of the Apex Court Order in CA No.11527 of 2014 is not applicable in the present case. Learned counsel for the respondents prayed for dismissal of the OA.
5. Heard both sides and perused the records.
6. Learned counsel for the applicant heavily relied upon the judgment of Hon'ble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White Washer) etc. in Civil Appeal No.11527/2014 in support of his contention that the recovery is illegal and the same is liable to be set aside. Per contra, learned Standing Counsel for the respondents vehemently opposed the arguments of learned counsel for the applicant and submitted that excess Page 4 of 9 OA/444/2016 money paid to the applicant due to wrong pay fixation has rightly been recovered from him and the respondents are within their right to do so. It is further submitted that Hon'ble Courts have held that it is a public money and if any amount paid in excess can be recovered. The applicant cannot unjustly enrich himself.
7. In a similar facts, coordinate Bench of this Tribunal at Chennai decided a matter vide OA/494/2020 on 16/08/2022 and the same is squarely applicable to this case. It is appropriate to re-produce the relevant paras, as under:-
"4. Respondents in support of their submission in the matter of refixation as well as recovery, the respondents have relied upon the following judgments :
i. In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 it is held that : -
"15. We are not convinced that this Court in various judgments referred to herein before has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations.
Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."
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OA/444/2016 ii. In the Principal Bench OA 1857 of 2014, wherein one of the similarly situated employee Mr. P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been taken that wrong fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have gone into the interpretation of illustration 4A in accordance with note 2A below Rule 7 of 6th CPC gazette notification. The relevant paras are reproduced as under:-
"2. According to the applicant, as per Section II of Part B of the Gazette Notification, notifying the CCS (Revised Pay) Rules, 2008, revised pay scale of `6500-10500 has been recommended for Stenographer Grade II in PB-2 + Grade Pay of `4200/-. It is also stated that the Government has provided the procedure for initial pay fixation as on 01.01.2006 in Note 2A below Rule 7 of the Notification, which is reproduced below:-
"Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these Rules."
3. It is further stated in Rule 7 (1) (A) (i) & (ii), which reads as follows:-
"(A) in the case of all employees:-
(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
(ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale."
4. In paragraph 4 (i) of the O.A., the applicant has stated that the Government, vide their Notification, has recommended the benefit of one 4 increment after bunching for every two stages so bunched. In fact, the applicant has also purportedly quoted the abstract of the Report as follows:-
"Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching."
5. First of all, what is contained in the Report is not important but the Notification of Government of India, based on the Report, is to be followed. Secondly, at Annexure A-4, the applicant has enclosed paragraphs 3.1.13 and 3.1.14, perhaps of the Report of 6th Central Pay Commission, which does not mention anything about bunching and as pointed out by the respondents in the Page 6 of 9 OA/444/2016 impugned order, there is no provision for bunching in the Report. In fact, at Annexure A-10, the applicant has annexed a clarification from Ministry of Finance, Department of Expenditure issued on 14.12.2009, in which the first point raised and the clarification given thereto read as follows:-
Point raised Clarification
(a) The manner in which The pay in the pay band of
pay of Assistants/ Pas in Assistants/Pas working as
position on 1.1.2006 is to on 1.1.2006 will be fixed
be fixed as per the with reference to the
provisions of CCS (RP) fitment table of the
Rules, 2008. Whether prerevised pay scale of
there will be any bunching Rs.5500-9000 annexed with
in this case. this Department's O.M.
No.1/1/2008-IC dated 30th
August, 2008 and they will
be granted the grade pay of
Rs.4600. Since the
minimum pay in the pay 5
band in the revised pay
structure corresponding to
the stage of Rs.5500 (pre-
revised) scale of Rs.5500-
9000) is more than the
minimum of the pay band
PB-2 i.e., Rs.9300, no
benefit of bunching is
admissible in this case.
Therefore, from the above, it is clear that there is no provision of bunching while fixing the pay as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that was an error, which is rightly rectified by the respondents.
6. The pay of the Government servant has to be fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay) Rules, 2008 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre- revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade. This is exactly what the respondents have clarified in their affidavit filed on 18.01.2016 and also placed before us an Office Memorandum dated 28.07.2015 (Annexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimum of the corresponding stage of `6500/- of the pre-revised scale of pay of `6500- 10500.
We are, therefore, clear in our opinion that there is no inconsistency or error in the impugned orders dated 12.04.2014 and 21/22.04.2014 and 6 these are issued as per the instructions of the Government of India contained in CCS (Revised Pay) Rules, 2008.
7. The O.A. is, therefore, completely misplaced and on an absolute misunderstanding of the Rules/instructions. It is accordingly dismissed. Respondents are at liberty to recover any excess amount paid to the applicant. No costs. "
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OA/444/2016 iii. The Patna Bench of this Tribunal, in a similar context in OA 24 of 2016, reiterated the same ratio and dismissed the said OA. iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking a similar relief as under :-
"......The applicant would say that even at the time of erroneous fixation in 2012, he was a Group-B (Non-Gazetted) officer and with effect from 2017, he became a Group-B(Gazetted) officer. The applicant would claim that since erroneous fixation is with effect from 1.1.2006 and the excess has been paid for more than 5 years, as per the White Washer judgment, this cannot be recovered from him. As already seen, the wrong fixation was done on 13.12.2012 and this was corrected on 23.2.2016. Therefore, it cannot be said that he was drawing this excess pay for more than 5 years since it had been modified within four years of the original wrong fixation. Further, the Annexure-A13 which was issued in February 2016 was not challenged by the applicant at all. This leads to the suspicion that the refixation was done correctly and that prima-facie the applicant had no objection to it. We fail to understand as to how the respondents did not take any action to recover whatever the excess that had been paid to him between 2012 and 2016. It is possible that being an Accountant in the same office, the applicant could have had juncture in the nonrecovery also. Be that as it may, it is clear that he is clearly not eligible for nonrecovery based on the White Washer judgment. His other contentions relating to the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3rd MACP etc., do not deserve any consideration since the concerned instructions are not relevant in his case. His citing the case of one more person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply statement wherein they had shown that Sri Sadashiva was actually drawing the Basic Pay of Rs.7250 as on 1.1.2006 while the applicant was drawing Rs.5675 on the same date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed. No costs. "
5. To counter the reply filed by the respondents, the applicant has filed rejoinder and submitted that the refixation which is carried out in the year 2012 is correct. Therefore, further refixation and recovery is contrary to the guidelines given by the Hon'ble Supreme Court in Rafiq Masih as well as DoPT OM dt. 02.03.2016. "
xxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxx "11. Learned senior counsel for respondents, Mr. Su. Srinivasan, SCGSC has rightly pointed out that OM dt. 28.07.2015 issued by the Ministry of Finance, Department of Expenditure and also he has rightly pointed out that the observations of the Hon'ble Supreme Court in the matter of Chandi Prasad Uniyal in paras 15, 16 and 17 as quoted above. In view of this, the impugned order which is passed by the respondents considering all the guidelines issued by the Hon'ble Supreme Court as well as the OM issued by the DoPT, the respondents have justified in passing the said order of rejection. It is to be noted that the learned counsel for applicant has agitated before this Court that no show cause has been issued while issuing the recovery order and that is issued moreover, after the five years and when the proposal has been forwarded by the HoD to the competent authority and the same has not been placed before the Department of Expenditure. It is to be noted that a bare perusal from the record, as the applicant has submitted representations to the respondents, it is clear that the said actions related to the refixation initiated by the Department as well as corrections of pay is well within the Page 8 of 9 OA/444/2016 knowledge of the applicant. As rightly noted above that after the recommendation of 6th CPC when first time in the year 2008, the applicant's pay has been fixed as per the illustration 4A in accordance with Note 2A below Rule 7 of 6th CPC gazette notification, the same has been accepted by the applicant and he has not raised any objection stating therein that his pay has been fixed wrongly. When again, the pay has been refixed in the year 2012, the applicant has accepted the same knowing fully well that it is not as per illustration 4A in accordance with Note 2A below Rule 7 of 6 th CPC gazette notification. The applicant is a degree holder working as Stenographer Grade I in the office of AIR since 2015. The applicant has raised an objection and made representation before the authorities in the year 2016. The applicant cannot be said to be innocent. Since he is making repeated representations, it cannot be said that there is no show cause. The said recovery has been effected within the three and half year from 2012 to 2016. It is to be noted that the applicant has neither challenged his first pay fixation carried out in the year 2008 nor in the year 2016. Also, the reliance is placed by the applicant in the matter of K. Kannan who had retired and the recovery had been effected from his retiral benefits ie., DCRG. Looking to the extreme hardship, this Tribunal, while passing the order dt. 15.07.2016 had set aside the recovery. The applicant is still working and since from 2016, the applicant has agitated his claim before the authorities though the same has been rejected. When this matter has been filed aggrieved by the said impugned order, the applicant is having three more years of service from that date. Hence, no hardship is going to be caused to the applicant as well as respondents have rightly considered that the case of the applicant is not fit to for waiver. In view of the aforesaid facts, the orders passed by the co-ordinate Benches of this Tribunal as well as the observations made in the judgment of Chandi Prasad Uniyal by the Hon'ble Supreme Court in addition to the observations made in the matter of Rafiq Masih as well as Thomas Daniel and Ministry of Finance, Department of Expenditure OMs, the respondents are justified and have rightly passed the order of refixation and recovery. In view of this, the applicant's case does not fall under the criteria of Rafiq Masih and K.Kannan as well as DoPT OM dt. 02.03.2016. Hence, in my considered view, the OA deserves to be dismissed. No order as to costs.„
8. In view of the above discussion, this Tribunal finds that the case of the applicant is squarely covered by the above order and as such, he is not entitled for relief and the OA is accordingly dismissed. No costs.
(DR. LATA BASWARAJ PATNE) JUDICIAL MEMBER /al/ Page 9 of 9