Central Administrative Tribunal - Mumbai
Smt Meena Dilip Pillay vs Earth Sciences on 14 February, 2025
1 OA No.487/2021
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, CAMP AT NAGPUR
ORIGINAL APPLICATION No.487/2021
Dated this Friday the 14th February, 2025
CORAM : HON'BLE MR. SHRI KRISHNA, MEMBER (A)
Smt Meena Dilip Pillay W/o Dilip
Shiv Murthy, aged 60 years,
Occupation : Pensioner, R/o Flat
No.404/A, N.I.T. Complex,
Ayurvedic Layout,
Sakkardara, Nagpur. - Applicant
(By Advocate Shri R.K. Srivastava )
Versus
1) The Union of India, through
The Secretary, Ministry of
Earth Sciences, Mousam Bhavan,
Lodhi Road, New Delhi - 110 003.
2) The Director General of
Meteorology India Meteorology
Department, Mousam Bhavan,
Lodhi Road, New Delhi - 110 003.
3) The Controller of Accounts,
Ministry of Earth Sciences,
Principal Accounts Officer, A-20,
Mousam Bhavan, Lodhi Road,
New Delhi - 110 003.
4) The Pay and Accounts Officer,
India Meteorology Department,
Shivaji Nagar, Pune - 411 005.
5) The Deputy Director General
Of Meteorology, Regional
Meteorological Centre, Airport,
Nagpur - 440 005. - Respondents
(By Advocate Shri P.H. Khobragade )
Page 1 of 19
2 OA No.487/2021
ORDER
The applicant was working as Assistant Meteorologist Grade-II, which is a Group 'B' Gazetted post. She retired on superannuation on 31.03.2019. She has filed this OA to quash and set aside the impugned orders dated 20.03.2020 and 28.12.2018 by which her last pay was fixed at Rs.70,000/- (Level-8, Index-
14) for the pension purpose and seeks direction to the respondents to calculate her pension on her last pay drawn of Rs.72,100/- and to refund amount of Rs.2,05,866/- recovered from her DCRG.
2. Brief facts as stated by the applicant in her OA are that she was appointed as Observer with the respondent No.5 w.e.f. 04.11.1982 and was promoted as Senior Observer w.e.f. 05.11.1991 and later on as Assistant Meteorologist Grade II w.e.f. 30.12.2015 and retired from that post on 31.03.2019. While she was working as Observer, she was directed to officiate as Senior Page 2 of 19 3 OA No.487/2021 Observer in short term vacancy on different spells from 01.01.1988 to 30.03.1991 for a total period of 1068 days. However, each spell was less than 91 days. After her promotion as Senior Observer, the respondent No.5 refixed her pay considering her officiating service of 1068 days from 01.01.1988 onwards and advanced her increment by 2 years 11 months and 18 days vide order dated 20.02.1996.
2.1 The respondent No.5 under office note dated 17.04.1996 (Annexure A-5) has sought advice from respondent No.2 whether further one increment can be advanced for remaining broken period. The respondent No.5 received some instructions from respondent No.2. Thereafter, office order dated 24.10.1996 (Annexure A-6) was passed in partial modification of office order dated 20.02.1996 and advanced her increment by counting the broken period of officiating service and granted her increments from 01.04.1992 Page 3 of 19 4 OA No.487/2021 raising her pay to Rs.1440/-. The applicant continued to draw the pay as per above fixation with annual increment drawn every year till her retirement on 31.03.2019. 2.2 The respondent No.2 vide circular dated 03.08.2016 (Annexure A-7) has directed to all filed offices of respondent No.3 and pointed out that antedating of annual increment of the officials for short term promotion on higher post for more than one year without taking approval of DoPT was objected by Pay and Accounts Office, Pune. Such short term officiating was given over a period of time from 1991-2005 but these discrepancies were never pointed out earlier by Audit or Pay and Accounts Office. It was directed that all retiring officials, who were given officiating/ad-hoc promotion from more than one year and increment was antedated, may be allowed to draw justifiable pension after withdrawing the antedated increment till the decision of Department of Page 4 of 19 5 OA No.487/2021 Expenditure is obtained. It was stated that the Department is trying to get the approval of Department of Expenditure for waiver in terms of DoPT OM dated 02.03.2016. 2.3 It has been submitted that the respondent No.3 vide letter dated 09.08.2016 (Annexure A-8) has directed the respondent No.4 that the pension may be calculated after ignoring the benefits of antedating increments given on short term officiating on account of ad-hoc promotion to the higher post in different cadres for more than one year in different spells and also withheld the Gratuity amount for excess pay and allowances till the decision of Department is obtained. However, even after 3 years, no decision has been taken in this regard. 2.4 The applicant filed OA No.2077/2020 before this Tribunal. The Tribunal was pleased to dispose of this OA at the admission stage itself by directing the respondents to consider and decide her Page 5 of 19 6 OA No.487/2021 representation dated 19.08.2019 by passing a reasoned and speaking order. The respondent No.5 by impugned order dated 20.03.2020 rejected the claim of the applicant. 2.5 It has been submitted that the concerned authority has not applied his mind, while arriving to the decision and relied on the letter dated 28.12.2018 issued by the respondent No.4. It has been submitted that the respondents have pointed out one increment given to the applicant at the time of retirement wherein he has accepted to refund the excess amount of retirement benefits, if any, subsequently comes to notice. Thus, the respondents have tried to mislead by mixing her undertaking for retirement benefits with the pay and allowances and, therefore, this OA.
3. After notice, the respondents have filed their reply and contested the OA. 3.1 It has been submitted that the impugned order dated 20.03.2020 is absolutely Page 6 of 19 7 OA No.487/2021 just and proper and there is no substance and merits in the present OA filed by the applicant and deserves to be dismissed. 3.2 It has been submitted that the Audit Authorities IMD, Pune Office have recommended towards the recovery of extra payment made in respect of 625 IMD officials including the applicant who were given short-term officiation/ad-hoc promotion for more than one year during the period 1982 to 2013. It has been submitted that as para 3 of DoPT OM dated 06.02.2014 states as under:
"In all cases where excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc. come to notice, immediate corrective action must be taken.
However, DoPT OM dated 02.03.2016 states that :-
"As per the point 4(iii) of the above mentioned DoPT OM, the Hon'ble Supreme Court has observed that recovery from the employees, when the excess payment has been made for a period in excess of five years before the order of recovery is issued is impermissible in law. However, as per Point 5 of the same OM, it has also been advised that wherever the matter of waiver of recovery in the above mentioned situation is considered, the same may be allowed with the express approval of D/o Expenditure in terms of DoPT OM No.18/26/2011-Estt (Pay-I) dated Page 7 of 19 8 OA No.487/2021 06.02.2014"
In order to have a corrective & justified action, the case is taken up with MoF, Department of Expenditure through MoES. MoF(D/o Exp) ID No.09(01)2022-E.II(A) dated 09.05.2022 requested MoES to re-examine the proposal in light of the observation raised by DoP&T vide their ID No.1438136/20/CR dated 02.03.2021 in the first instance. Consequently, MoF was apprised the matter personally and as per advice, the proposal was made in accordance of DoPT OM No.18/03/2015-Estt (Pay-I) dated 02nd March, 2016.
3.3 It has been submitted that recovery from the retired employee or employees who are due to retire within one year of the order of recovery - a list of 154 employees of Group 'C' and 'D' and 318 employees pertaining to Group 'B' employees who are either retired employee or due to retire Page 8 of 19 9 OA No.487/2021 within one year was prepared. It was found that in case of 153 Group 'B' employees excess payment has been made for a period in excess of five years. Thus, covering all 625 employees who were granted short-term officiating/ad-hoc promotion for more than one year during the period from 1982 to 2013. 3.4 It has been submitted that Ministry of Finance vide ID No.09(01)2022-E.II(A)(C No.300534627) dated 22.07.2022 advised MoEs that as IMD granted such adhoc promotions as per DoP&T norms as contained at Para 3(ii) of their OM No.28036/8/87-Estt(D) dated 30.03.1988, MoES is advised to obtain the views of DoP&T and request to confirm the applicability of their OM dated 02.03.2016 in the matter since the ibid OM deals with waiver of recovery of the overpayment made to the Government servants on account of wrongful grant of monetary benefits in excess of their entitlement and also to seek DOPT views in respect to seeking ex-post facto Page 9 of 19 10 OA No.487/2021 approval for the regularization of appointments made on adhoc/officiating basis in IMD in relaxation of DoP&T ibid OM. 3.5 It has been submitted that as per Pay and Accounts Office, IMD, Pune letter dated 28.12.2019, there has been overdrawn pay and allowances due to grant of officiating/adhoc promotion beyond one year. If it is granted without DoPT's approval, then recovery of excess allowances drawn due to such wrong granting of adhoc promotion spells beyond one year (from 01.01.1988 to 22.02.1989) may be recovered from 23.02.1989 onwards. 3.6 It has been submitted that the increment granted on account of adhoc promotion for the period of more than one year required approval of the Department of Personnel & Training. Hence, in the absence of DoPT approval beyond one year, her basic pay was revised from 72100/- to 70000/- as per the calculation sheet dated 28.12.2018 (Annexure A-7 to the OA).
Page 10 of 19 11 OA No.487/2021 3.7 It has been submitted that grant of adhoc promotion without approval of DoPT, position is already on record and IMD is putting efforts to seek ex-post facto approval of DoPT/Ministry of Finance for grant of ad-hoc promotion given to the applicant and also other similar employees. The applicant was aware of this fact as it was communicated to her orally. It has been submitted that the judgment in the case of State of Punjab Vs. Rafiq Masih (White Washer)(AISLJ 2015(2)
151) cited by the applicant is not applicable in the instant case as the applicant at the time of retirement was a Group 'B' Gazetted Officer.
4. The applicant has filed the rejoinder to the reply submitted by the applicant. It has been submitted that the Principal Bench of this Tribunal in the case of Fatema Parveen Vs. Government of NCD & Anr., 2016(2) (CAT) 209 has held that candidate should not suffer for the mistake of the Department (Annexure A-14 of Page 11 of 19 12 OA No.487/2021 the OA).
4.1 It has been submitted that the Department acted unilaterally to reduce the basic pay of the applicant from 72,100/- to 70,000/- without giving any notice to the applicant and without giving her the calculation on the basis of which her basic pay was reduced from Rs.72,100/- to Rs.70,000/- and how the amount of Rs.2,06,080/- which was deducted from DCRG was calculated.
5. The respondents have filed pursis to place on record the undertaking given by the applicant wherein it has been stated that the applicant has given undertaking from time to time towards refund of any amount of excess of pay and allowance drawn in the pay scale due to incorrect fixation or any excess payment detected in the light of discrepancies noticed subsequently against future payment due to applicant or otherwise. These undertakings are dated 27.10.1986, Page 12 of 19 13 OA No.487/2021 04.05.2012, 07.09.2016 and lastly on 12.03.2019. On 22.03.2019, the office order intimation was given to the applicant regarding re-fixation of pay from 23.02.1989 to 01.07.2018 as scrutinized by Pay and Account Pune vide their letter dated 28.12.2018. The letter dated 28.12.2018 was also submitted to support the impugned orders on the ground that earlier pay of Rs.72,100/- granted to the applicant was wrongly fixed and her correct pay in Level-8 Index 14 comes to Rs.70,000/- only and, therefore, there was no illegality in the impugned orders. It has been submitted that recovery of Rs.2,05,866/- made from the DCRG of the applicant has already been refunded to her.
6. During the arguments, learned counsel for the applicant admitted that the respondents have refunded the amount of Rs.2,05,866/- recovered from the Gratuity of the applicant and thus there is no grievance of the applicant regarding the recovery. He Page 13 of 19 14 OA No.487/2021 submitted that the applicant's prayer is for restoration of her last pay drawn at Rs.72,100/- instead of Rs.70,000/-.
7. Learned counsel for the applicant has placed reliance on the FR-49 and decision of Hon'ble Supreme Court in the case of Smt P. Grover Vs. State of Haryana and Anr., 1983 SCC (4) 291 and the decision of Hon'ble High Court of Delhi in the case of Commissioner of Police & Ors. Vs. H.C. Durgesh Kumar, AISLJ, IX-2008(3) 78.
8. Learned counsel for the respondents has reiterated the argument taken in the reply affidavit and also on the letter dated 28.12.2018 of the Senior Accounts Officer, PAO(IMD) Pune, letter dated 03.08.2016 issued by the office of the Director General of Meteorology, New Delhi, letter dated 09.08.2016 issued by the Ministry of Earth Sciences, New Delhi.
9. I have heard learned counsels for both the sides at length and perused the pleadings filed on record.
Page 14 of 19 15 OA No.487/2021
10. The applicant has sought relief to quash and set aside the impugned order dated 20.03.2020 (Annexure A-1) which pertains to recovery of excess amount of Rs.2,06,080/- from her retiral dues. It is an admitted by learned counsel for both the sides that the amount of Rs.2,05,866/- has been refunded to the applicant and thus this prayer does not survive. The applicant is further seeking restoration of her pension on her last pay drawn by her at Rs.72,100/- in place of Rs.70,000/-.
10.1 I find that the applicant was being paid higher salary in violation of DoPT Office Memorandum for holding the additional charge. It is a settled law that if a wrong payment is being made to an employee, the employee cannot claim a vested legal right to continue with such wrong payment. It is seen that the pension of the applicant was fixed at Rs.70,000/- after giving detailed calculation as per order No.131/07/794 dated Page 15 of 19 16 OA No.487/2021 22.03.2019. The applicant has not been able to point out any mistake in the above pay fixation order by which her last pay has been fixed at Rs.70,000/- (Level-8 Index 14) w.e.f. 01.07.2018. This order has not been even impugned by the applicant. Therefore, I do not find any reason to interfere with the order dated 22.03.2019 by which her last pay was correctly fixed at Rs.70,000/-.
11. Learned counsel for the applicant has placed reliance on the decision of Hon'ble Supreme Court in the case of Rafiq Masih (supra). The said judgment relates to recovery of the excess payment made. The Hon'ble Apex Court has not given any direction to continue with the excess payment being made to the applicant. Therefore, the said judgment is not applicable to the facts of the applicant's case regarding fixation of her pay.
12. The applicant has placed reliance on the decision of Hon'ble Supreme Court in the Page 16 of 19 17 OA No.487/2021 case of Smt P. Grover (supra). In the said case, the officer was promoted to the higher post and she was granted the salary of such higher post. However, in the case under consideration, the applicant was not granted promotion to the higher post. She was only holding the additional charge for temporary period in different spells. Therefore, the said judgment is not applicable.
13. In the case of Commissioner of Police & Ors. Vs. H.C. Durgesh Kumar (supra), the issue was that the applicant had been shown as OBC when he joined service. However, the department has wrongly took him as ST and promoted him and realized the mistake after 12 years and wanted to relegate him by denying him the promotion. Thus, the facts of that case are totally different from the facts under consideration.
14. Learned counsel for the applicant has placed reliance on the decision of Principal Bench in the case of Fatema Parveen (supra). Page 17 of 19 18 OA No.487/2021 I have gone through the above decision. The above decision relates to the issue of selection based on the advertisement of post of PGT (Urdu/Female) for the OBC category. It has not discussed the wrong fixation of pay and its continuation indefinitely. Therefore, the said judgment is not applicable.
15. The applicant has further placed reliance on the Office Memorandum issued by the DoPT dated 02.03.2016 which was issued pursuant to the judgment of Hon'ble Supreme Court in the case of Rafiq Masih (supra). The said OM relates to recovery of the excess payment made and does not deal with the continuation of the excess payment.
16. It is seen from the document submitted by the respondents that the applicant has given the various undertakings dated 27.10.1986, 04.05.2012, 07.09.2016 and 12.03.2019 that any excess payment made to her will be refunded by her. However, the respondents have already refunded the Page 18 of 19 19 OA No.487/2021 recovery of Rs.2,05,866/- which was recovered from her retiral dues on 01.11.2023. Therefore, the cause of action in respect of recovery is no more there.
17. In view of the above facts, I do not find any merit in the prayer of the applicant that her pay which was wrongly fixed earlier at Rs.72,100/- should be restored in place of correct fixation of pay at Rs.70,000/-. Therefore, the Original Application is, accordingly, dismissed. Pending MAs, if any, stand closed. No costs.
(Shri Krishna) Member (A) ma.
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