Central Administrative Tribunal - Ernakulam
Tomy Mathew vs Union Of India on 31 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 659 of 2008
Monday, this the 31st day of May, 2010
CORAM:
HON'BLE Mr. JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. Tomy Mathew, aged 50 years, son of Mathew K.A.,
Investigator Grade-III, National Sample Survey Organization
(Field Operation Division), TUDA complex, S.T. Nagar,
Thrissur-1, residing at Kudippara House, Mekad PO,
near K.B. Hospital, Athani.
2. K.C. Johnson, aged 49 years, S/o. Chacko, Investigator
Grade III, National Sample Survey Organization, (Field
Operation Division), Sub Regional Office, Salem, residing at
Kalliathuparambil House, PO, Amala Nagar, Thrissur.
3. T. Sasidharan, aged 47 years, son of K. Raman Nair, I
Investigator Grade III, National Sample Survey Organization,
(Field Operation Division), Dr. Rajaram Building,
Chakkorathukalam, PO, Eranhippalam,
Kozhikode. ..... Applicants
(By Advocate - Mr. Pratap Abraham for Mr. P. Ramakrishnan)
v e r s u s
1. Union of India, represented by the Secretary, Ministry of
Statistics and Programme Implementation, Sardar Patel
Bhavan, Parliament Street, New Delhi.
2. The Director General, M/O Statistics and Programme
Implementation, National Sample Survey Organization (Field
operation Division), East Block 6, lever 4 to 7, R.K. Puram,
New Delhi.
3. The Deputy Director General (Administration), National
Sample Survey Organization (Field operation Division),
East Block 6, lever 4 to 7, R.K. Puram, New Delhi.
4. The Joint Director, NSSO (FOD), Regional Officer,
Kerala North, Dr. Rajaram Building, Chakkarathukuam,
PO, Eranhipalam, Calicut. ..... Respondents
(By Advocate - Mr. Sunil Jacob Jose, SCGSC)
This application having been heard on 20.5.2010, the Tribunal on
31.05.2010 delivered the following:
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicants in this OA challenge the refixation of their pay and consequent recovery of excess payments and seek directions to the respondents to restore the original pay and reimburse the amount recovered from their salary and to hold that the applicants are entitled to be considered for absorption as Statistical Investigator Grade-II.
2. The applicants had joined the National Sample Survey Organization as Investigators in the year 1983 and 1984. They were promoted as Ad hoc Assistant Superintendents in 1998 and 1999. They were drawing a basic pay of Rs. 5500-9000 on 01.04.2002. On the same day they were absorbed in the Subordinate Statistical Service (SS Service, for short) which was newly formed. As insisted by the 4th respondent, the applicant exercised their option for absorption in the grade of SS Service corresponding to the pay scale of Rs. 5000-8000. They had been absorbed in the said pay scale without any change in the basic pay of Rs. 7425/- on 01.04.2004. In the year 2007, the 4th respondent refixed their pay in the scale of Rs. 5500-8000 with effect from 01.04.2004 which entailed a reduction of Rs. 175/- in their basic pay. The excess payment of Rs. 15312/- already made was recovered from their salary starting from June, 2007.
3. The applicants contend that as Assistant Superintendents, they were in Group-B service prior to formation of SS Service. The initial constitution of SS Service was from Group-B officials with suitability for absorption as Subordinate Statistical Service Group-B determined by a Selection Committee. Asper Rule 8
(iv), ( v) and (vi) those group of departmental candidates who were not absorbed at the initial constitution of service would continue to work as at present and they would be considered for appointment at a subsequent stage. As per Annexure A/3 dated 03.06.2004, an incumbent holding the post in the pay scale of Rs. 5500-9000 on regular basis prior to the constitution of SS Service and who could not be absorbed and appointed in the pay scale of Rs. 6500-10500 would continue to maintain Group-B status personal to him. The applicants who were holding the post of Assistant Superintendent prior to the constitution of SS Service are entitled to be accorded the same status. The applicants had been granted ACP on 09.08.2009. Their pay was Rs. 7425/- as on 01.04.2004, the date of constitution of SS Service. They continued to draw the same pay even after the constitution of SS Service. There was no element of promotion or reversion in their appointment under SS Service. There was no justification in reducing their pay. Annexure A-19 provides for retaining the Assistant Superintendent in the scale of Rs. 5500-9000 in a separate list till they are absorbed and appointed as Statistical Investigator Grade-II. The exclusion of the applicants from the list is discriminatory. The orders at Annexures A-7 and A- 8 based on which the pay of the applicants was refixed at a lower level were superseded by order at Annexure A-16. Therefore, the reliefs prayed for by the applicants should be allowed.
4. In the reply statement, the respondents contested the OA and submitted that the SS Service was constituted on the recommendation of the V Central Pay Commission. Accordingly, three pay scales of Group-B and Group-C statistical posts were regrouped with effect from 01.01.1996 into 4 grades carrying pay scales of Rs. 5000-8000, Rs. 5500-9000, Rs. 6500-10500 and Rs. 7450-11500 respectively. It was further submitted that the applicants were promoted as Assistant Superintendent on ad hoc basis purely as a temporary measure on stop-gap arrangement subject to cancellation of the promotion at any time without any reason. The ad hoc promotion did not bestow upon the applicants any claim for regular appointment, therefore, they cannot claim any parity with the regular incumbent in so far as their absorption and appointment in SS Service is concerned. 107 Assistant Superintendents who were functioning on regular basis as on the date of operationalization of SS Service were placed in a separate list in view of Rule 8(iv) of SS Service Rules. In pursuance of the orders of CAT, Principal Bench, New Delhi, in OA Nos. 2292/05, 862A/2006 and 206/07, order No. 12016/3/2006/SSS dated 12.08.2008 was issued placing 107 Assistant Superintendents in a separate reserve list and they were absorbed as Statistical Investigators Grade-II in the pay scale of Rs. 6500-10500. As the applicants were holding Group-B posts on ad hoc basis at the time of absorption in SS Service, they cannot be considered for absorption on regular basis at par with other regular Assistant Superintendents who could not be absorbed in the pay scale of Rs. 6500-10500 due to lack of vacancy in the grade at the time of initial constitution of the SS Service.
5. With regard to cancellation of refixation of the pay as per Annexure A-16, it was submitted that the applicants herein were not the applicants in OA 1023/2007 and the stay order dated 06.06.2007 that "the pay of the applicant shall not be reduced" is applicable to the applicants in that OA only and not similarly placed.
6. With regard to quashing of Annexure A-8 order dated 17.01.2007 based on which Annexures A-9 and A-10 orders were issued refixing the pay of the applicants, it was submitted that the matter is under consideration in consultation with the Department of Personnel and Training and whatever decision is taken will be applicable to the applicants herein also.
7. During the course of arguments, this Tribunal had directed the respondents to file an affidavit showing the number of year-wise vacancies of Assistant Superintendents available from 1999 to 2004 and whether the ad hoc Assistant Superintendents were eligible for promotion in accordance with the then existing Recruitment Rules. In compliance, the respondents submitted as under:
Year No. of vacancies No. of promotions done
available on ad hoc basis
As on 31st August, 1999 83 67
As on January, 2000 91 56
As on January, 2001 161 1
As on January, 2002 198 -
As on January, 2003 208 -
As on January, 2004 228 -
5. It is submitted that all the investigators promoted as Assistant Superintendents on ad hoc basis during 1998-1999 were eligible for promotion according to existing Recruitment Rules."
8. It was further submitted by the respondents that the regularization of the applicants at this juncture will disturb the whole structure of SS Service. Further, the MACP guidelines take due care of the past services rendered by the employees and, therefore, financial interest is taken care of. Hence, the O.A. may be dismissed.
9 Arguments were heard and documents perused.
10. Admittedly, the applicants were drawing a pay of Rs. 7425/- on 01.04.2004 when they were inducted into SS Service. The SS Service was constituted on the recommendation of the V Pay Commission, which is reproduced as under:
"81.17: A large number of posts of Junior and Senior Statistical Investigators in the scales of Rs. 1400-2300 and Rs. 1640-2900 are spread over different Ministries and offices of the Government of India.. We observe that some of these posts are isolated and the chances of promotions for the incumbent in such cases are very bleak. We recommend that all such posts with statistical functions be constituted into a Subordinate Statistical Service and all recruitment to the feeder posts in Indian Statistical Service be centralised and place under the ISS cadre Controlling Authority......."
11. The underlying idea of this recommendation is to increase the promotional chances of the Statistical Investigators spread over different Ministries, sometimes in isolation. Promotion results in higher pay. In the case of the applicants, the very purpose for which the SS Service was constituted is defeated when their existing pay was reduced. It is clear that the reduction in pay was not contemplated in the constitution of SS Service as per recommendation of the V Central Pay Commission. The applicants' pay was reduced in 2007 with retrospective effect from 01.04.2004. The excess pay on account of refixation was not drawn by the applicants on the basis of any fraud or misrepresentation. The pay of Rs. 7425/- was drawn by the applicants when they were Assistant Superintendents. If any reduction was contemplated upon the induction of the applicants in the SS Service, principles of natural justice demand that they should have been made fully aware of the same before induction. Otherwise, in the normal course, the protection of pay should have been afforded to them. The order of the C.A.T., Principal Bench, New Delhi, setting aside the order dated 17.01.2007 nullifies the orders of refixation of pay based on the same. The respondents submit that the matter is under consideration of the Government and whatever decision is taken will be applicable to the applicants herein also. If that is so, the stay order dated 06.06.2007 issued in the very same O.A. (OA 1023/07 before CAT, PB) should also be made applicable to the applicants herein as far as non reduction of the pay is concerned. The refixation of pay and the recovery from the applicants are totally unjust and unfair.
12. The respondents state that the applicants are not eligible for the benefit of Group-B status and the pay scale of Rs. 5500-9000 under Rule 8(iv), (v) and (vi) because they are not Assistant Superintendents appointed on regular basis. Their promotions were on ad hoc basis purely as temporary measure on stop gap arrangement subject to cancellation without assigning any reason and, therefore, they cannot claim parity with regular incumbents. The applicants were promoted in 1998 and 1999 on ad hoc basis. If it is a temporary measure as a stop gap arrangement it should be regularised or cancelled at the earliest. It appears that after making ad hoc promotions no steps were taken to regularise the applicants. As per the statement showing the year-wise vacancies of Assistant Superintendents submitted by the respondents, there were large number of vacancies when the applicants were promoted on ad hoc basis. As per the submission of the respondents, all the Investigators promoted as Assistant Superintendents on ad hoc basis during 1998 and 1999 were eligible for promotion according to the then existing Recruitment Rules. If that is so, when the applicants are eligible for promotion as Assistant Superintendents against regular vacancies, there was no reason for the respondents to promote them on ad hoc basis as Assistant Superintendents. Having given the promotions on ad hoc basis as Assistant Superintendents, they should have regularised the promotions at the earliest. At the latest, they should have regularised the applicants before inducting them into the SS Service. It is seen that the applicant were continued on ad hoc basis for more than five years without any compelling reason not to regularise. The submission that the regularisation of the applicants at this juncture will disturb the whole structure of SS Service is without any merit. There are only 124 ad hoc appointees to be regularised. Their right to regularisation cannot be nullified due to administrative lethargy. Prudence demanded that pending matters were sorted out before the applicants were transited from the old regime to the new regime of SS Service. The argument that the MACP guidelines would take care of the financial interest of the applicants is also not acceptable because the MACP guidelines are not a substitution for regularisation. The present circumstances wherein the applicants are put to substantial prejudice is only due to the inaction on the part of the respondents to regularise the Assistant Superintendents. If they were regularised in time, they could have been appointed as Statistical Investigator Grade-II straight away. In the interest of justice, they should be deemed to have been regularised in the pay scale of Rs. 5500-9000 before they were inducted into SS Service.
13. In the light of the above discussion, the O.A. succeeds. The orders of refixation of the pay of the applicants and the orders of recovery as Annexures A-9, A-10, A-13, A-14 and A-15 are hereby quashed and set aside. The respondents are directed to reimburse the amount recovered from their salary, restore their original pay and consider them for absorption as Statistical Investigator Grade-II as envisaged in Annexure A-19 within a period of three months from the date of receipt of a copy of this order. If the deducted salary is not reimbursed within three months as allowed, it would carry 6% interest until it is paid.
14. No order as to costs.
(Dated, the 31st May, 2010)
K. GEORGE JOSEPH JUSTICE K THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.