Central Administrative Tribunal - Hyderabad
Y Balaji Rao vs M/O Agriculture on 21 September, 2023
OA No.21/731/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/731/2020
Reserved on: 16.08.2023
Pronounced on: 21.09.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Y. Balaji Rao, S/o. late Y.S. Murthy,
Aged about 61 years,
Occ: Assistant Plant Protection Officer (Chem) (Retd.),
O/o. Dept of Agriculture, Cooperation & Famers Welfare,
Directorate of Plant Protection, Quarantine & Storage,
NH-IV, Faridabad - 121 001, Haryana,
R/o. Flat No. 301, Golden Annapurna Nilayam,
Somasundara Nagar, Street No.12,
Bagh Amberpet, Hyderabad - 500013.
.....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. Union of India, Rep. by its Secretary,
Ministry of Agriculture and Famers Welfare,
Department of Agriculture, Cooperation & Famers Welfare,
Krishi Bhavan, New Delhi - 100 001.
2. The Plant Protection Adviser to the Govt. of India,
Directorate of Plant Protection, Quarantine & Storage,
NH-IV, Faridabad - 121 001, Haryana.
3. The Chief Administrative Officer,
Directorate of Plant Protection, Quarantine & Storage,
NH-IV, Faridabad - 121 001, Haryana.
4. The Head of Office,
Directorate of Plant Protection, Quarantine & Storage,
NH-IV, Faridabad - 121 001, Haryana.
5. The Assistant Director,
Regional Pesticides Testing Laboratory, T-2,
Ratan Lal Nagar, Kanpur - 208 022, Uttar Pradesh.
6. The Pay and Accounts Officer,
Plant Protection & Misc.,
Old CGO Building, NH-IV,
Faridabad - 121 001, Haryana.
....Respondents
(By Advocate: Mr. V. Vinod Kumar, Sr. PC for CG)
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OA No.21/731/2020
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed the OA seeking the following relief:
"..to call for the records pertaining to the 4th respondent Lr. No. 7- 91/1985-Admn-II dated 23.09.2020 rejecting the prayer of the applicant for waiver from recovery an amount of Rs.1,74,309/- recovered under the guise of overpayment on the basis of an alleged wrong pay fixation on grant of MACP in the ad-hoc post in SSA.II and declare the same as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and rules on the subject matter and consequently direct the respondents to pay back the amount recovered from the applicant in the interest of justice..."
2. The undisputed facts of the case are that the applicant joined the respondents organization as Junior Technical Assistant [re-designated as SSA-III (Chem.)] on 14.10.1985. He was promoted on ad-hoc basis as Scientific Assistant (Chem) [re-designated as SSA-II] on 30.04.2001 in the pay scale of Rs.5500-175-9000 (pre-revised). He was granted 1st MACP on 01.09.2008 and his pay was fixed at Rs.19950/- vide office order dt. 12.11.2010. The posts of SSA-II and SSA -III were merged and re- designated as Assistant Plant Protection Officer (Chem) vide order dt. 17.02.2011, with effect from 01.01.2006. The applicant retired on superannuation on 30.09.2019.
3. It is the case of the applicant that just before his retirement, his pension papers were sent back by Sr. Accounts Officer vide letter dt. 18.07.2019 with the following observations:
1. Shri Y. Balaji Rao was promoted to SA-II on Ad-hoc basis w.e.f. 30.04.2001;Page 2 of 9
OA No.21/731/2020
2. Shri Y. Balaji Rao was granted 1st MACP on 01.09.2008 and his pay was fixed with reference to the pay drawn in the post held on Ad-hoc basis
3. Shri Y. Balaji Rao was reverted to his substantive post of SA- III on 17.07.2009.
It is further observed that since adhoc promotion granted to the applicant was withdrawn, the position would revert to the pay scale as it prevailed prior to 30.04.2001 (date of adhoc promotion) and therefore, the increments granted following the adhoc promotion in the higher scale may not be permissible and that pay fixation on grant of MACP may be with reference to the pay drawn in the post held on regular basis and not on the post held on adhoc basis and thus, sought a clarification. On coming to know about the same, the applicant submitted a representation dt. 24.09.2019, stating that recovery after long gap of time on ground of wrong pay fixation is not permissible in view of the judgment of the Hon'ble Apex Court in Rafiq Masih, which was implemented vide DOPT OM dt. 02.03.2016. The said representation did not result in any fruitful result and the applicant retired on suppuration on 30.09.2019. At the time of his retirement, a sum of Rs.1,74,309/- was recovered from the pensionary benefits towards the alleged overpayment. Thereafter, the applicant submitted representation dt. 31.08.2020, requesting for waiver of the recovery made. Without considering the applicant's representations, the respondents issued the impugned order dt. 23.09.2020 rejecting the request of the applicant for waiver of the recovery, against which, this OA is filed. Page 3 of 9
OA No.21/731/2020
4. It is contended by the applicant that CCS (Pension) Rules, 1972, the Head of Office can verify the correctness of emoluments for the period of 24 months only preceding the date of retirement and not for any period prior to that. In similar circumstances, even the Dept of Posts, upon clarification issued by the DoP &PW, issued a proceeding No. 100-1/2020- Pension, dt. 27.07.2020, directing not to go back to a period earlier than a maximum of 24 months preceding the date of retirement for raising observations relating to pay fixation etc.
5. Respondents filed a reply statement mainly contending that the applicant was granted 1st MACP w.e.f. 01.09.2008 when he was working as SSA-II on adhoc basis at RPTL Kanpur, a sub office of DPPQS and his service book was being maintained at RPTL, Kanpur. It is further stated that the dealing hand, due to ignorance of rule, had fixed the pay of the applicant in the post held on adhoc basis i.e. SSA-II, instead of fixing the pay in the substantive post i.e. SSA.III, which resulted in payment of one excess increment. The applicant was transferred from RPTL, Kanpur to Central Insecticides Laboratory (CIL), DPPQS Hqrs, Faridabad w.e.f. 12.06.2017 and his pay and allowances were under scrutiny of PAO, Faridabad. He was reverted to his substantive post on 17.07.2009 and still he continued to draw the pay of higher post. The respondents further stated that though the applicant was aware of drawal of enhanced pay, he remained silent. As his superannuation was on 30.09.2019, his pension papers along with the Service Book were sent to PAO, Faridabad for authorization of pensionary benefits.
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6. It is further stated that, on noticing the same, revised pay fixation order was issued on 30.07.2019 i.e. before retirement itself and the excess payment was worked out and intimated to the applicant and the applicant submitted letter dt. 08.08.2019 that the amount paid in excess may be deducted from his pensionary benefits. Thereafter, the pension papers were re-processed and the pensionary benefits were paid after adjusting the excess amount. After retirement, the applicant requested for waiver of the recovery, which was not acceded to vide the impugned order. In regard to the Dept of Posts (Pension Section) letter dt. 27.07.2020, cited by the applicant, the respondents stated that while processing pension case, the Head of Office, normally does not go back to 24 months with reference to scrutiny of pay and allowances of the retiring official. They submitted that revision of pay fixation by Head of Office is provided under sub-rule 3 of Rule 73 of CCS (Pension) Rules, 1972. It is also stated by the respondents that the applicant has not been put to extreme hardship on account of recovery of Rs.1,74,309/- as he has been paid substantial amounts towards retirement benefits. They cited the judgment of the Hon'ble Apex Court in High Court of Punjab & Haryana & ors v. Jagdev Singh (Civil Appeal No. 3500 of 2006) dt.29.07.2016, in support of their contention that the recovery is tenable. Thus, they prayed to dismiss the OA.
7. Heard learned counsel for parties and perused the pleadings and material on record.
8. Learned counsel for the applicant argued that there was no fraud or misrepresentation on the part of the applicant in fixation of his pay nor it is the case of the respondents that the applicant was responsible for the same. Page 5 of 9
OA No.21/731/2020 Therefore, recovery is not permissible after so much delay and therefore, the impugned order is liable to be set aside and the amount already recovered from the pensionary benefits of the applicant is to be refunded to him. It is further argued by the learned counsel for the applicant that proceeding No.100-1/2020-Pension dt.27.07.2020 was issued by the Dept. of Posts in consultation with DoP & PW and thus, the same is applicable to the case of the applicant case as well. I have perused the said proceedings, which reads as under:
"There are number of instances brought to the notice of this Office wherein pensioners retiring from this Directorate have to suffer financial loss as well as harassment due to delay in finalization of their pensionary benefits on account of observations raised by DAP relating to pay fixation on account of MACP/ stepping up of pay etc, which date back to many years. In some cases it relates to even 10 years prior to the date of retirement.
2. With a view to end this situation, clarification was sought from the Deptt. Of Pension and Pensioner's Welfare as to whether, in light of Rule 5(b)(v) of CCS (Pension) Rules, 1972 there is any provision that prevents Accounts Officer to raise observations related to the period prior to the 24 months from the date of retirement. DoP & PW has clarified that Rules are very clear and provisions available in Chapter 7 of the Civil Accounts Manual for the HOD and Pay Accounts Officer, etc may be brought to the notice of the Accounts Officer in this regard. Relevant portion of Chapter 7 of the Manual is reproduced below:
"7.3.2 Role of Pay and Accounts Officer:
The Pay & Accounts Officer on receiving the pension papers, will verify the service records and apply prescribed checks with reference to the applicable Pension rules, and assess the amount of pensionary benefits. The PAO concerned, keeping in mind that the intention is not a total overhaul or audit of the entire Service Book or records, but only a scrutiny limited to the immediate purpose on hand, that is the preparation of the pension papers. Any deficiency or imperfection or omission which still remains in the service records will be ignored at this stage and the determination of the qualifying service will be proceeded with on the basis of entries in the service records, whatever the degree of perfection to bring them by that time. However, for any such check of the correctness of past emoluments, the check should be the minimum that is absolutely necessary, and it should in any case not go back to a period earlier than a maximum of 24 months preceding the date of retirement."
As per the above provision, the respondents cannot go beyond the period of 24 months preceding the date of retirement while checking the Page 6 of 9 OA No.21/731/2020 correctness of the past emoluments and this is not disputed by the respondents.
9. Learned counsel for the applicant further cited the judgment of the Hon'ble Apex Court in Civil Appeal No. 7115 of 2010 dt.02.05.2022, in the matter of Thomas Daniel v. State of Kerala & Ors. and submitted that the judgment of the Hon'ble Supreme Court in State of Punjab & Ors v. Rafiq Masih (While Washer) & Ors, (2015) 4 SCC 334, has been reiterated and in view of the same, the impugned recovery is liable to be set aside.
10. On the contrary, learned counsel for the respondents submitted that the above judgment of the Hon'ble Supreme Court in Thomas Daniel v. State of Kerala & ors is not applicable to the present case as the facts and circumstances of the case on hand and the case before the Apex Court are distinct and submitted that there is no illegality in recovering the excess payment made to the applicant. In support of his case, he relied upon the judgment of the Hon'ble Supreme Court in High Court of Punjab & Haryana & ors v. Jagdev Singh (Civil Appeal No. 3500 of 2006) dt.29.07.2016. However, the respondents did not file any specific undertaking given by the applicant at the time of opting for pay fixation on grant of MACP, as in the case before the Hon'ble Supreme Court.
11. I have perused the judgment of the Hon'ble Apex Court in Civil Appeal No. 7115 of 2010 dt.02.05.2022, in the matter of Thomas Daniel v. State of Kerala & Ors, wherein it has been observed as under:
"(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334, wherein this court examined the validity of an Page 7 of 9 OA No.21/731/2020 order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"8 xxxx
18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) 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.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General."
12. On a careful reading of the judgment of the Hon'ble Supreme Court supra, wherein the Hon'ble Apex Court reiterated the judgment in Rafiq Masih (supra), the said judgment is squarely applicable to the facts of the present case. In the instant case, wrong fixation done in 2008 was sought to be rectified in the year 2019, that too, just two months before retirement of the applicant and recovery was made from retirement benefits of the Page 8 of 9 OA No.21/731/2020 applicant. Admittedly, the applicant did not misrepresent and he was not responsible for wrong fixation of his pay and the respondents clearly admitted that the concerned dealing officer is responsible. For the fault of the respondents, the applicant cannot be made to suffer on the eve of his retirement. It is also not correct on the part of the respondents in contending that the applicant is not put to hardship due to recovery of Rs.1,74,309/- as he has been paid substantial pensionary benefits. The applicant has been paid the amounts as per his entitlement. For the applicant, being a pensioner, the amount recovered cannot be said to be small amount.
13. As per the law laid down by the Hon'ble Supreme Court in Rafiq Masih case, recovery is impermissible under certain circumstances. The case of the applicant is covered under clauses (ii) & (iii) of Para 18 of the said judgment, which are extracted supra and apart from the recovery being contrary to the Chapter 7 of the Civil Accounts Manual, extracted supra.
14. In view of the above facts and circumstances and the law laid down by the Honble Supreme Court, this Tribunal finds no justification in recovering the amount from the applicant and accordingly, the impugned order is set aside.
15. In the result, the OA is allowed and the respondents are directed to refund the amount recovered from the applicant, within a period of two months from the date of receipt of this order. No order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER /evr/ Page 9 of 9