Central Administrative Tribunal - Mumbai
Ramanrao Shankar Darade vs M/O Agriculture on 9 August, 2023
A GA No S88 of 2015 Central Administrative Tribunal Mumbai Bench, Mambai O.A. No S89/2015 & tak. ONO of July, 2023
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O accsavrad sy get Neserved on 28 Pronounced on 09° of August, 2023 Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J) Hon'ble Mr. Shri Krishna, Member {A} Ramanrao Shankar Darade, Age : 59 years, Assistant Chief Technical Officer (T = 3/8), LAR. Regional Station, GanerPhata, Aundh, Pune-411 007. (R/at. Vinayak Nagar-[. S.No.53/1B, Pimple Gauray, Pune-411 061 , svt diwnsnilbedenetngeenesqsteneetieenecbiglinebaloeag «. Applicant (Mrs. Priyanka Mehndiratia, Advocate) Yorsus i, The Union of India, through The Secretary, Ministry of Agriculture, - Krishi Bhawan, New Delhi-] 1G 114.
2. he [Nrector General, Indian Council of Agricultural-Research, Krishi Bhawan, Dr. Rajendra Prasad Road, New Delhi-110 114:
3. The Director, indian Agricultural Research-Institute Pusa Road, New Dethi-110 012, OA No.589 of 2018
4. The Head and Officer-in-Charge, indian Agricultural Research-Institute, Regional Station, BanerPhata, IT. Road, Aundh, Pune-400 067. .. Respondents (UM. B. Palsi, Adyoeste) ORBER Mrs. Harvinder Kaur Oberoi:-
The applicant has filed the instant OA u's 19 of the AT Act, = 1985, seeking the following reliefs:
{b) To quash and set aside the inypugned letters dated 05.09.2015, 06.10.2015 and 11.06.2012, {c} To hold and declare that, advance increments already granted way back from 03.02.2005, as per the relevant rules / scheme in force thal time, cannot be withdrawn by letter dt. 11.12.2012, in respect of Applicant,
(d) To direct the Respondents to restore Applicant's basic pay back to Rs.31,470/- p.m. and calculate his pension and other retirement benefits as per the Pension Rules, taking his last pay of Rs.31,470/- for calculation of retiral benefits,
(e) To direct the Respondents to refimd any amount of pay or other retiral benefits which is recovered from Applicant by way of recovery, () To pass any other order which may be just and equitable in the facts and circumstances of the case, OA No S89 of ZHIS (ge) To award the cost of application."
Z. The fects in sutshell, as stated in the OA, are that the applicant is a civilian groug 'A* employee, presently working as Assistant Chief Technical Gificer (T-7/8) at the Regional Station of LA.R.L, Pune-07. His date of buth is 23.10.1955, and his date of retirement from service is 31.10.2015 (AN), on attaining the age of superannuation.
2.1 Tt is stated that under the provisions of Rule-G of the Yechnical Services Rules and on the recommendations of the Assessment Committee for Category-IV Technical Personnel ional. Group Filed / Farm and Technicians and Lab Technician, the Director LAR. is competent to grant merit promotions to Technical Officers from their present grade to the next higher grade, Accordingly, vide office order No.18-3/97-P-V dated §9.01.2006, the applicant, who was working as Technical Officer/T-6 Grade, was granted three advance increments in the existing grade wet 03.02.2008, The basic pay of the applicant was increased by three advance increments, and he was in receipt of mereased pay regularly every month since 03.02.2005, oS ay 2.2 Subsequently, he was granted regular promotion from the eadre of Technical Officer/T-G to the next cadre/erade of Technical Officer T-7/8, wef 03.02.2009 vide office arder No.3- 2/2010-P-V dated 31.08.2010. Thereupon, his pay was fined in PB-
OA No.389 of 20153 (Rs. 15,600-39,100}+GP of Rs.6600/- p.m. with regular annual increments as per rules.
2.3 It is further stated that the ces New Delhi sent a letter dated 11.06.2012 to all Directors of Institutes / National Research Centres / Bureaus / Directorates / Zonal Project Directors under ICAR on the subject of granting of advance increments fo Technical employees of ICAR consequent to the implementation of recommendation of 6" Pay Commission. The applicant states that he was given three advance increments w.e.f, 03.02.2005, much before the appointed/ cut-off date of 01.01.2006 when the 6" Pay Commission revised the pay scale, and he was due for retirement an 37.10.2015.
24 The applicant states that he was orally informed by respondent No.4 that an amount of Rs.3,37,016% (Three Lakhs Thirty Seven Thousand and Sixteen only} is required to be recovered from him on the ground of recovery of amount of adverse increment given to him during the period 01.01.2006 to O1.08.2015. No recovery has still been made. However, the respondents have neither issued any show cause notice in respect of withdrawal of advance increments given to him nor respondent No.4 has passed any office order in this regard, but they have decided to recover the said amount quietly from his retirement benefits, lke gratuity. Respondent No.4 reduced the applicant's pay by letter dated 05.09.2015.
peal OA Na. 589 of 20148 2.5 Respondent No. had forwarded pension and other retirement benefits papers to the AAO (Pension) since he was to be superannuated w.e.f 31.10.2018. However, the AAO (Pension) ~ has made certain enquiries to respondent Nod in regard fo recovery of Rs.3,37,0164 from the applicant towards alleged averpayment to him. The AAO asked an undertaking to be given by respondent Na.4 § DDO that the amount may be recovered. Hence, the applicant's retirement benefits are not yet finalised by AAO (Pension).
«& he applicant had submitted his representation dated O3.102015 to the Director, LARA, New Delhi, through respondent No.4 praying for not recovering the amount of alleged "overpayment, However, no response has been received by him to_ the said representation, The applicant is apprehending that the espondents will recover Rs.3,37,016/- fro the gratuity or any other retirement benefits, which would result not only | in reduction of his basic pension but also reduced amount of retiral benefits.
Hence, he has filed the present OA, visd Per contra, respondents have filed their counter affidavit, stating that the OA filed by the applicant is bad on account of mis- joinder of parties and non-joinder of proper parties. That ICAR is A society registered under Societies Registration Act, 1860 and it can sue or be sued through its Secretary only. However, the Secretary, [CAR has not been impleaded as party in the OA, On the other hand, respondent Nos.! & 2 are neither necessary nor Soko sey _ ee"
ee Fadl pa) bay mo a proper parties for adjudication of issues raise roa GA No S89 of 2015 such the present OA is lable to be dismissed on this ground alone and/or respondent Nos.1 & 2 should be deleted from the array of parties, 3,1 That respondent No.3 is a consequent unit of (CAR, ICAR iS @ Society registered under the Societies Registration Act, 1860 and by virtue of its Rules & Byelaws / Memorandum of Association, the Governing Body of the ICAR is competent to frame rules and amend the same which include the power to give retrospective effect to the rules so framed. Since the circular dated 11" Fone, 2012 is within the rule making powers of ICAR / respondents and relates to policy decisions of the respondents, the same is final and binding on all concerned and the applicant is no exception,
3.2 It is stated that the reliefs sought by the applicant in the OA relate to the impugned letter dated 05.09.2015, 06.10.2015 and ICAR's order dated 11.06.2012. That the letters dated 05.09.2015 and 06.10.2015 are the outcome of the impugned order dated 11.06.2012, the contents of these letters need not be dealt with at the cost of repetition, and thus, the answering respondent dealt with the order dated 11.06.2012 exclusively for the sake of brevity.
3.3. The respondents state that the legality of the Council's Circular dated 11" June, 2012 was challenged by Shri Kay Prasad, Executive Engineer (T-2), LAR. in OA No 8623/2014 Aled before the Principal Bench of this Tribunal. After hearing both the z OS Na S89 of BOIS parties, the Tribunal upheld the validity of the Couneil's said Cireuler dated L1O6.2012 and 22.04.2013 vide its order dated D8.12.2015 passed in OA No.862/2014 titled as Ray Prasad v.
oom, iNrector General, CAR &Ors, Thas, they submit that the issues raised in the present OA have already been settled In OA No.862/2014. They also deny that the applicant joined the service of the respondents on 16.07.1977, Instead, they state that the applicant joined the services ofthe respondents on 16.08.1977, 4, Counsel for the applicant submits that the three advance increments given to the applicant as per the provisions of my Technical Service Rules and based on best performance of the work done by him, continued as per CAR order dated 18.01.2010, which affidavit, according to which, maximum advances increments that can be given were three. Again on 11.06.2012, the rules have changed under which only one advance increment is granted w.e.f. 2006, and that too, retrespectively from back date of more than tive years. The amended miles are said to be notified on 22.04.2013, She submits that the applicant was granted three advance increments wef. 03.02.2005, the revised scheme of aranting only one increment notified and circulated vide letter dated 11.06.2012 cannot be applied to his case. The applicant is covered by the rules/scheme prevalent at the relevant time which was the scheme of February, 2008. By misreading the letter of 11.06.2012 and also by misapplication of the provisions of above letter, respondent No.4 has withdrawn/reduced two out of three cetera, ON Stra 2 eerie OA No.S89 of 215 increments given to him way back on 03.02.2005. The provisions of letter dated 11.06.2012 cannot be given any retrospective effect, so far as the applicant is concerned. The action of ordering recovery vide para 5 of the letter dated 11.06.2015 is not sustainable in law, because at the time of grant of those increments in Feb, 2005, the applicant was not told that such increments could be recovered after a period of ten years. She submits that the recovery of three advance increments from Jan, 2006 to Aus, 2015 oe amounting to Rs3.37,016/ was made from Death-cum- Retirement Gratuity of the applicant on 30.10.2015, on his superannuation. A perusal of revised pay fixation from 01.01.2006 till now would reveal that the basic pay of the applicant has been reduced from Rs.31,470/- to Rs.29.330/- mm, which has adversely affected his pension and other retiral benefits.
5, Counsel for the applicant points out that in a similar case, Principal Bench of this Tribunal has prohibited the recovery in OA No.862/2014 and CP No.167/2020 dated 05.01.2021 in the case of Kay Prasad vy, Director General, ICAR & Ors. All the due payments had to be made by the ICAR to the applicant therein as per the orders of the Tribunal.
6. Counsel for the applicant further submits that the applicant is covered by ratio as laid down by the Apex Court in the case of State of Punjab & others v. Rafiq Masih (White Washer) & others (2015) 4 SCC 334. She submits that the guidelines of the Apex Court were notified by DoPT vide its order dated 02.03.2016. Based on the DoPT guidelines, the ICAR issued oe SERN BY 5 *, if we we * G vt OA Mo.58e oP Z0}4 officer order dated 23.01.2019 to waive off overpayments mace to Technical emnloyee o nt ot adv: However Techrical employee on account of advance increments. However, this order of higher authority dated 22.03.2017 has not been implemented by the office.
oe {nm rebuttal, counsel for the respondents arguimg on merits submitted that the circular dated 11° June, 2012 is consequent to the implementation of C.C.S (Revised) Pay Rules dated ars x 31.08.2008 of the Union of [ndia-Respondent No.1. The said rule were given effect thereafter during the year 2009 and in the fee & < arocess certain problems pertaining to pay fination were observed, t t ae' + al as the very purpose of granting additional increments as a matter of compensation in lieu of promotion was found to be exceeding and thereby defeating. In this connection, the decision of Govt. of India letter No. F. No. LICTSV2006-Estt. TV dtd. 8th January 2010, issued by the Additional Seoretary, DARE & Secretary ICAR is self speaking. He submits that the said additional increments were granted on the prewaiiin ag pay scale under the 5 EPC which orovided separate pay scales for each grade / of employ The Ss" CPC recommended 4 pay bands with 3% imcrement whereby number of rmning pay scales were merged under each pay band and while fixing the revised pay, it was observed that the promoted employee was drawing less than the compensate = Ore. As the applicant was thereby creating further anomalies, in order to overcome such problems, respondent No.1, Govt. of India, took a policy decision to that effect whereby the said three additional teas Lee OA No s89- of 2015 increments were restricted to one without attendant benefits in the revised pay of the S°CPC.
8. He submits that the impugned order dated 11° Jume, 2012 was challenged before the Principal Bench of this Tribunal in Q.A. No, 62/2014 and the said OA was disposed of on 0s" December, 2013 whereby the competency of the authority of the said order was upheld by the Tribunal. He points cut to relevant portion of para 7 of the order dated 08" December 2015, which is reproduced herein below:
"7, It is the admitted position between the parties that the Governing Body of the ICAR js competent to frame Rules and also to amend the same. As rightly a (osama tottended by the respondents, the power of the Governing Body of the [CAR to make Rules and amend them also includes its power fo give retrospective offect to the Rules so framed. In the circular dated 22.4.2013, iid. & has been clearly stated that the Governing Body of the ICAR, inits 226" meeting held on 142.2013, approved the amendment in Rule 6.1 and paragraph 10 of Appendix Hi for Categories [, I] and Hi under Rule 6.13 of the Technical Service Rules to the extent that only one advance increment would be granted in the same grade on the basis of assessment of performance ofthe employees in the Technical Service after expiry of the number of the prescribed years of service, and that the rate of advance increment wef 1.1.2006 would be as mentioned in the circular dated 11.6.2012, ibid..."
tA No S8o-af 201 § in view of the above, counsel for the respondents submits that the contention and challenge to respondents' competency as well as their order dated 11" Sune, 2012 is arbitrary and irrational and does nar survive 8, {nm rebuttal to the applicant's contention that he is covered by the law laid down by the Apex Court in the case of State of Punjab & others v. Rafig Masih {supra} and also the order dated 08" December, 2015 passed by the Principal Bench of this Tribunal in OA No.862/2014, counsel for the respondents submits that the said order of the Apex Court relates to the excess payment mistakenly made by the employer and not that of the employee. Rut in the instant case, the hasis of recovery is different and Tt is settled law that even the accrued cights or vested rights can be taken away, if it is so expressly provided by the legislature or rule naking authority, as the case may be. Counsel for the respondents submits that ina similar issue, the Principal Bench of this Tribunal 4 ' > : 5 2 , oth has dealt with the same at length in its order date 08" December £2 2018 {supra} and the relevant extract of para 4 of the order reads as uncer:
.. The Governing Rady, constituted in terms of its Memorandum of Association, manages its affairs. The Governing Body is competent io frame Rules ene also to amend ther. The power to make Rules and amend them also includes the power to give rettoapeotive e effect to the Rules so framed. In the present case, the Governing Body took a conscious decision to amend Rule 6.1 and paragraph 6.13 of hae rs Pa Foy a.
are Pas LY, yZih ye 2 S 12 OA No See of 20135 Appendix HI for Categories 1, Ul and If under Rule 6.13 of the Technical Service Rules retrospectively.
It is settled law that even the accrued rights, or vested rights, can be taken away, if it is expressly provided by the legislature, or the Rule making authority, as the case may be, In the present case, it has been expressly provided that the amendment would be effective fom 2006, ie, retrospectively. The concept of vested rights, ar acerued rights, would arise only, if it is expressly provided that the amendment would not be retrospective. The Technical Service Rules, as originally framed, provided for three advance increments to compensate an employee for lack of promotional avenues, However, it was found that advance increments granted were way beyond the benefits that would accrue to the same employee consequent upon promotion. It is in that perspective that the matter was reviewed, and the Rule was amended. Thus, it cannot be said that the amendment providing for one advance increment is arbitrary or unreasonable..."
Thus, he submits that since the order dated 117% June, 2012 is not arbitrary or unreasonable, it cannot be concluded that the excess payments were made mistakenly by the employer which the employee was not aware of, iQ. Counsel for the respondents points out to para 10 of the judgment in the case of State of Punjab & others v. Rafiq Masih {supra} to submit that the instant case is different. The relevant part of para 10 of the said judgement, which has been relied upON by counsel for the respondents, reads as under:
i3 OA Na S8 of ZOTS .An Action of the Stale, ordering recovery from an employee, wonld be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongf, more improper, and more unwarranted, than the corresponding right of the enployer..."
ie submits that the applicant was aware of the excess payment made to him by the policy decision of the respondents and not made mistakenly, which is in contrast to the general view taken by the Apex Court In State of Punjab & others v. Rafiq Masih isupra} as it was not possible to postulate all situations which would govern employees on the issue of recovery, where payments have mistakenly made by the employer in excess of their entitlement. In the instant case, the payments were as a matter of compensation at the discretion of the employer and not as the entitement of the employee. He further submits that the present issue does not fall under the category of "mistakenly payment" where the Involvement of employee was not there. On the contrary, the issue is governed by the specific provisions and as a matter of financial policy decision which the employee is well aware of and accordingly subscribed to the same by submitting the urideriaking/option dated 03.11.2008, 05.10.2609 and O3.09.2015.
wae li, Counsel for the respondents submits that the above view was confirmed by the Apex Court in its judament / order dated Juby 29, 2016 in High Court of Punjab & Haryana vs. Jagdey Singh, Gale) 14 SCC 267, which is in addition to the view wo hahitrs .
cal we : 3 ie are is :
~ is SS 2 tg >-ooR 3 So XS g) 14 QA No 589 of 2018 expressed in State of Punjab & others v, Rafiq Masih (upra). He relies upon Para 11 of the judgment dated July 29, 2016 in dagdev Singh (supra), which is reproduced herein below:
"Li. The principle enunciated in Proposition ay above cannot apply to a situation such as in the present case, In the present case, the officer to wham the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised payscale, He is bound by the undertaking,"
Moreover, he submits that the case of recovery also does not fall within the scope-of the proposition laid down in State of Punjab & others v. Rafiq Masih (supra) which says recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued, He has referred to the chronological developments leading to the present case, which is stated below:
a. The Applicant was given 3 increments w.ef. 03.2.2005 in the pay scale under V in C.P.C. and was drawing the same till the pay fixation under VI CPC b, It was revised as per VI of the C.P.C. applicable wef, 01.01.2006 and c. The pay was implemented as per C.C.S {RP} rules 318.2008 d The Govt. of India's policy decision was conveyed on O8.01.2010 a5 GA No. S8% of 2014 &. The recovery order was issued on 11.06.2012.
XY a pee e submits that the above facts also clearly establish that the issue falls under the scope of the estegory (ii) of the judgment/order in "
Fausiow Olssesh Searecen' Joag siak anetinakla ¥ ~ . Jagdev Singh (supra) and as such apglicable to the present case, That the instant recovery is as per recovery and adjustment of government dues under Rule 6) 7b) which says "dues other than those pertaining to Government accommodation namely balance of house building or conveyance or any other advance, over payment of pay and allowances or advance salary and arrears of incame tan deductible at source under the Income Tax Aet, 196! ie. In view of the above facts and orders, he prays that the ad-
interim relief dated 15.10.2015 granted to the applicant be withdrawn and the GA be dismissed with cast, IS. We have considered the submissions of the parties and the documents an tecord, is The crucial document te our mind in the present case is the £ Circular dated 11.06.2012 , issued by the ICAR to all institutes, research centers under it, The same reads as follows:
"i, fhe pay of ihe employees who have heen granted advance incremment(s) prior to O1.01 2008 may fe fixed in the ee pay structure COPPESPONG fing ie the Siage at hich thelr basic pay wes as on OF 07 2006, ey én ihe case af employees wha fave been granted advance increments) beheeen (2.01. 2006 16 QA No.d69 af 2015 and 31.08.2008 under the Revised Pay Rules, 2008, such employees will only be granted annual increments an I" day af July af every year. No advance increments corresponding to the advance increments Sranted under the pre-revised pay scale will be granted ia than during the periad Seiwees O1.01,2006 and 31.08.2008 while making their due- drawn statement During this period, advance increment will be given as per the fixed amount approved by the Ministry of Finance.
3, Only one advance increment at the following rates may be granted to those technical personnel who have been recommended / approved for grant of advance increment wef 01.07, 2006.
Grade | Pay Band Grede bAmoun? of one Fe ntti e eae nL Mtl nee cannes ee Pay oo uae fuorement P38 af the minimum pay inthe Pay Band T-l | [email protected]/ PR. -J 20OQ= {36 P.2 5200-20.000 / PB <7} rings 136 F-3 ) $300-20.000 PBF 3800" 136 Ped) SOO 8007 PR $200 FFY TS | 9300-32 860/ PB -2 4800" 278 TO | 5600-39700 7 PB-3 S400/- 488 Te-8) | F3.600-39)007 PBF S600R 488 Po PS 600-307000 PBF F800 ASS 4, The advance increment so given would be treated as a separate element distinct from basic pay.
Ne increment / allowance will be earned on this element of advance increment, "explanted by the respondents. The Principle Bench of thi pod es, if 3 in cases where more than one advance x increments have already been paid from 01.01.2008 fhe same may be restricted to only one fo be paid at J pre-poge and necessary wrt the rates indicated at Sr.No recoveries be made for the excess payment, if any."
a AS can be seen above, repeatedly in para 2, 3 and 3 of the Circular, it has been stated that policy of grant of one increment to Teehnical officers will be applicable from 1.01.2006 Admittedly, the applicant was granted advance increments as per rules wie, 03.02.2008. Then, how recovery of the advance inerements granted to him could have been ordered, could not be ss 3 Tribunal has e the validity of the Council's Circular date 11.06.2012 and 22.04.2013 vide its order dated 08.12.2015 passed in OA No.862/2014 tiled as Kay Prasad v. TNrector General, FCAR &Ors, is not in dispute, in the present OA. Both the Circulars upheld by the Tribunal are annexed with the OA and bath state that the amendment in rules is done wet. 01.01.2006, Vhe same has been made applicable in the case of the applicant retraspectively, which is the challenge herein.
is. In May Prasad vy. Director General, ICAR & Ors., advance increment had been granted wef, 01.01.2007 (refer para 2.3 of the judgement ), in such circumstances, the Tribunal was pleased to uphold decision of respondents to withdraw the advance increments, however, even then recovery was prohibited.
48 OA No.389 of 2015ls. In-the present case the advance increment Was granted prior to the cut-off date. We, being in agreement with the order of the Tribunal in Kay Prasad v. INreetor General, ICAR & Ors,, quash and set aside the statement of pay fixation issued on 05.09.2015 and the order of recovery dated 06.10.2015, Consequential to the above, we direct the respondents to settle the pension and pensionary benefits taking Into account the three advance increments granted to him wef 03.02.2005 and to release all pending dues to the applicant within a period of three months from the date of receipt of the certified copy of this order.
IY. In terms of the above directions, the OA is allowed.
Pending MAs, if any, stand closed. No COSTS Shri Krishiia) (Harviiider Kaur Oberoi) Member (A) Member (J) isk/