Central Administrative Tribunal - Bangalore
N N Ramaprasad vs Survey Of India on 12 January, 2023
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OA.No.170/699/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00699/2019
DATED THIS THE 12TH DAY OF JANUARY, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
N.N. Ramaprasad,
Aged about 46 years,
S/o N.S. Narayanachar,
Officer Surveyor, DAW,
KGDC (Karnataka Geospatial Data Centre),
Survey of India,
Sarjapur Road, Koramangala II Block,
Bangalore-560 034.
Residing at House No.282,
67th Cross, 5th Block,
Rajajinagar, Bangalore-560 010. ..Applicant.
(By Advocate Shri K. Hanifa)
Vs.
1. Surveyor General of India,
Survey of India,
Post Box No.37, Hathibarkala Estate,
Dehradun, Uttarakhand,
India-248001.
2. Union of India,
Represented by the Secretary,
Ministry of Science and Technology,
Department of Science and Technology,
Technology Bhavan, New Mehrauli Road,
New Delhi-110016.
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OA.No.170/699/2019/CAT/Bangalore Bench
3. Director,
Karnataka Geospatial Data Centre (KGDC),
Survey of India,
Sarjapur Road, Koramangala II Block,
Bangalore-560 034. ....Respondents
(By Shri K. Gajendra Vasu Sr. Panel Counsel)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash order No.A/539/2-A(NNR) dated 02.4.2019 (Annexure A-
12) issued by Respondent No.3, vide which the audit party has intimated wrong fixation of pay of the applicant as Rs.13860/- instead of Rs. 12690/- from 27.01.2006 and has ordered for recovery of the excess drawn pay and allowances amounting to Rs.5,46,496/-.
b) To direct Respondent No.3 to restore the pay of the applicant after giving the benefit of bunching vide above tables, the applicant should be fixed at Rs.14,280/- with grade pay of Rs.4600/- from the date of promotion i.e., 27.01.2006 with all consequential benefits within time frame.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The Applicant was working as surveyor and was drawing Rs.6550/-
(5500-175-9000) on 1st January 2006. The applicant was promoted to the post of Officer Surveyor on 27th January 2006 and at first, his pay 3 OA.No.170/699/2019/CAT/Bangalore Bench was fixed at Rs. 6900/- (Scale of Rs. 6500-200-10500) in the 5th CPC on the date of promotion as Officer Surveyor, as per the provisions of O.M F.No.1/1/2008-IC dated 13.11.2009 (Annexure-A3). The Applicant exercised the option of switching over to 6th CPC from the date of his promotion, i.e. from 27.01.2006. His pay was accordingly fixed at Rs.13860/- with grade pay of Rs.4600/-, which is the minimum pay for the Rs.4600/- grade pay as per fitment table provided for the pre-revised pay scale (S-13) of Rs.7450-225-11500 annexed with O.M F.No.1/1/2008-IC dt.30.08.2008 (Annexure-A2). The pay of the Applicant from 1st January 2006 to 26th January 2006 was drawn as per 5th CPC, i.e., Rs. 6550/- (surveyor in the Scale of Rs. 5500-175- 9000). The 6th CPC benefits were effective to the Applicant only from 27th January, 2006 onwards.
b) The pay of the Applicant has been fixed in 2009 by thoroughly following the relevant Rules and Regulations of pay fixation under the guidance of the then Director, KGDC with relevant sanctions and approvals from Regional Pay and Accounts Officer, Hyderabad. The Auditors have wrongly pointed out that the pay of the Applicant has been wrongly fixed as Rs.13860/- and auditors have fixed the pay of the applicant from 01st January 2006 at Rs.12190/- with grade pay Rs. 4200/- instead of from 27th January 2006 (i.e., from date of promotion, which was the exercised option date of the applicant for switching over to 6th CPC). The option of switching over to 6th CPC from the date of his promotion, i.e., from 27.01.2006, is as per the provisions cited in OMs at Annexure-A2, Annexure-A3, Annexure- A4 and as per R-1's 4 OA.No.170/699/2019/CAT/Bangalore Bench letter No.EI-1098/1904 PC(VI) Dated 29th January 2010 (Annexure- A5) and letter No.EI-9504/1904-PC(VI) Dated 29th July 2010 (Annexure-A7) and also Illustration 4A.
c) The applicant has given representation on 25th April 2019 regarding the error in audit observation and rightness in his pay fixation with facts and OM's followed along with Judgments where similar cases of pay fixation were established. The representation of the applicant is still pending at Surveyor General of India's office for disposal. The Office has revised the applicants pay wrongly without any official notification.
d) The Applicant further submits Letter of Ministry of Finance, D/O. Expenditure, IC U.O.No.10.01.2010-IC dated 27.01.2010 (Annexure- A4) in support of the methodology of pay fixation as per the Illustration 4A. The Judgment of the Hon'ble Court and CAT in Para-3 states that "In the case of Assistants/ PAs who are promoted after 1-1-2006, and who are opted to switch over to the revised pay structure with effect from the date of their promotion as Assistants/PAs, their pay will be fixed with reference to the fitment table of the corresponding table of the revised scale of Rs.7450-11500. However, they shall not be entitled to any arrears of pay with effect from 01st January 2006 till the date of option".
e) The Applicant submits that in a similar case of Assistant Director (OL Subordinate cadre of CPWD) is also upgraded by 6th Pay Commission wherein the benefit of bunching has been allowed by CPWD 5 OA.No.170/699/2019/CAT/Bangalore Bench Directorate vide their O.M No.5/7/2010-EC-IV (SC) dt.06.05.2010 (Annexure-A6). Further, it is clarified herein that, the pay of the Applicant is fixed as per Illustration 4A and SG's letter No.El- 1098/1904- PC(VI) dated 29th January 2010 (Annexure-A5), which endorses the statutory order O.M F.No.1/1/2008-IC dated 13.11.2009 (Annexure-A3).
f) Similarly, in O.A.No.141/2012 dt.28.02.2013 (Annexure-A9) in the case of S.C.Sharma V Union of India & others, CAT Jaipur has granted the benefit of bunching as per illustration 4A of Rule- 7(1) of CCS(RP) Rules 2008, which is equal to 3% of Pay Band + corresponding Grade Pay after granting the benefit of bunching. The applicant's pay has to be fixed at Rs.14280/- with grade pay of 4600/- after granting the benefit of bunching.
3. The respondents have filed their written statement wherein they averred as follows:
a) The fixation of pay of the applicant done earlier at Rs. 13860/- as on 27.01.2006 at the minimum of the Fitment Table of Grade Pay Rs.4600/- is not correct. In this regard Rule 7 (1) (Aii) of CCS (RP) Rules, 2008 (Annexure-1) is reproduced below:
"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"6
OA.No.170/699/2019/CAT/Bangalore Bench
b) Thus, if the revised pay arrived at is less than the minimum of the Pay Band then it is to be fixed at the minimum of the Pay Band and not at the minimum of the Fitment Table of the Grade Pay as stated by the applicant. The correct revised pay of the applicant as on 01-01-2006 should have been Rs. 12190 in the Pay Band PB-2 Rs.9300- 34800. The revised pay of the applicant is more than the minimum of the Pay Band.
c) As per para 1(i) and (iii) of DoP&T's OM issued under F.No. 7/7/2008- CS.I(A) dated 03-01-2014 (Annexure-R2), the fitment tables are to be used for pay fixation as done on 01-01-2006 only and not thereafter. Thus, the contention of the applicant that his pay should be at the minimum of the fitment table of Grade Pay Rs. 4600 on his date of promotion i.e. on 27.01.2006, is not correct.
d) The applicant has opted to fix his pay from the date of his promotion i.e. w.e.f. 27.01.2006. The contention of the applicant that his pay was fixed earlier by fixing his pay at the minimum of pre-revised pay scale of Rs.7450-225-11500 and then revised to Rs. 13860/- in fitment table of Grade Pay Rs.4600. This method of fixation of pay is not correct.
e) The pay scale of Officer Surveyor was upgraded w.e.f. 01.01.2006, whereas the applicant was promoted to the post of Officer Surveyor w.e.f. 27-01-2006. Thus, his pay on the date of promotion is to be fixed as per Rule 13(i) of CCS (RP) Rules, 2008 and not as per illustration 4 A. Thus, illustration 4-A is not applicable in the case of the applicant. 7
OA.No.170/699/2019/CAT/Bangalore Bench
f) With regard to grant of benefit of bunching, Rule 7 of CCS (RP) Rules, 2008 is reproduced below:-
"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.
g) As per the rule position cited above, if two or more consecutive stages of pay in the pay scale prior to 01.01.2006 are fixed at the same stage in the revised pay structure based on the formula for fixation of pay, then the benefit of bunching was to be given. This rule position has been further clarified by giving examples 1 and 2 in Annexure II of Ministry of Finance, Department of Expenditure OM No. 1-6/2016-
IC/E-IIIA dated 07.02.2019. In the case of the applicant, his revised pay is not getting bunched with any stage of the pre-revised pay scale.
4. In the rejoinder to the reply, the applicant has pleaded as follows:
a) The applicant exercised his option of switching over to 6th CPC from the date of his promotion i.e., from 27.01.2006. His pay was accordingly fixed at Rs.13860/- with Grade Pay of 4600/-. As per 8 OA.No.170/699/2019/CAT/Bangalore Bench Office Memorandum of Ministry of Finance, Department of Expenditure, Implementation cell dated 13.11.2009 at Ann-A3, Ann-
A5 and Ann-A7 clearly states that "the posts in the scale of Rs.5000- 8000 and Rs. 5500-9000 should be merged and granted a grade pay of 4200. The scale Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2 with grade pay of Rs. 4600/- corresponding to the pre-revised scale of Rs. 7450-11500". Hence, minimum pay in the pay band for the pre-revised scale of Rs.7450/-is Rs. 13860/- with grade pay Rs.4600/- as per the fitment table of Ann-A2. Which is the minimum revised pay of the applicant after 27.01.2006 as per Rule 11 and clarification produced at Ann-A4 vide para IV (4).
b) Revision of pay fixation as per para 7(1)(A)(ii) of CCS (RP) Rules 2008 as on 27.01.2006 after granting benefit of bunching due to up- gradation of Scale of Officer Surveyor in Survey of India from Pre- revised Pay Scale of Rs. 6500-200-10500/- to Rs. 7450-225-11500/- will be as per table given below.
Basic pay in the pre- PB-2 Rs.9300- 34800 Pay in the pay band of PB-2 revised pay scale of + Rs.4600 with initial Rs.9300-34800 + Rs.4600, Stages Rs. 6500-200-10500 pay corresponding to after including the benefit of (S-12) multiplying the up-graded pre- bunching @ 3% of the pay in factor of 1.86 revised pay scale of the pay band without Grade Rs.7450-225-11500 pay in the pre-revised pay scale.
1 6500x1.86=Rs.12090 Rs.13860 Rs.13860/-
2 6700x1.86=Rs.12462 Rs.13860 3 6900x1.86=Rs.12834 Rs.14280 Rs.13860+420=Rs.14280/- 4 7100x1.86=Rs.13206 Rs.14280 5 7300x1.86=Rs.13578 Rs.14710 Rs.14280+430=Rs.14710/- 9
OA.No.170/699/2019/CAT/Bangalore Bench
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is challenging the re-fixation of pay which had earlier been fixed at Rs.13,860/- subsequent to pay revision by 6th CPC. He had obtained his promotion in the pay scale of Rs.6500-10500 on 27.1.2006. Prior to that he was working in the pay scale of Rs.5000-175- 9000 as on 01.1.2006. He has given the option for getting his pay fixed in the higher pay scale granted to him on promotion w.e.f. the date of his promotion and subsequently on switching over to 6th CPC, revision of pay scale w.e.f. the same date i.e., 27.1.2006. He has drawn his pay from 01.1.2006 to 26.7.2006 in the old pay scale, which was available to him prior to his promotion in the scale of Rs. 5000-175-9000.
7. The case of the applicant is squarely covered under Rule 11 of the CCS(RP) Rules, 2008, which is as follows:
"11. Fixation of pay in the revised pay structure subsequent to the 1st day of January, 2006:- Where a Government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from a date later than the 1st day of January, 2006, his pay from the later date in the revised pay structure shall be fixed in the following manner:-
(i) Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 1.1.2006. This figure will be rounded off to the 10 OA.No.170/699/2019/CAT/Bangalore Bench next multiple of 10 and will then become the pay in the applicable pay band. In addition to this, the grade pay corresponding to the pre-revised pay scale will be payable. Where the Government servant is in receipt of special pay or non-practising allowance, the methodology followed will be as prescribed in Rule 7 (i), (B) (C) or (D) as applicable, except that the basic pay and dearness pay to be taken into account will be the basic pay and dearness pay applicable as on that date but dearness allowance will be calculated as per rates applicable on 1.1.2006.
8. The respondents on the other hand have taken the stand that his revised pay has to be fixed as on 01.1.2006 as provided under Rule 7 of the CCS(RP), 2008.
9. The controversy therefore in this case is as to whether the revised pay under the CCS (RP), 2008 rules has to be fixed under Rule 7 or Rule 11 of the rules, in cases of upgradation of pay due to promotion on 27.01.2006.
10. This issue has been examined in detail by various courts and the matter is no more res integra since it stands already confirmed in the latest judgement passed by the Hon'ble High Court of Allahabad vide its order dated 01.12.2022 in Writ Petition Nos. 13860/2013, 11270/2016, 20477/2013, 33288/2014, 33711/2014, 33712/2014, 60422/2014. In this judgement the Hon'ble High Court of Allahabad has observed as under: 11
OA.No.170/699/2019/CAT/Bangalore Bench "22. Hon'ble Supreme Court considered the circumstances where Rule 7 or Rule 11 would be applicable and held in the case of Raj Kumar Anand (supra), as under :-
"It is apparent from the first proviso to Rule 5 of Rules of 2008, that option was given to the government servant to continue to draw the pay scale until the date on which his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that pay scale.
Second proviso to Rule 5 which is attracted also made it clear that where the government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scale etc., the government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. It is not in dispute that the ACP was granted to the respondent between 01.01.2006 and 29.8.2008 i.e. the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the respondent in between the aforesaid dates.
Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable. 12
OA.No.170/699/2019/CAT/Bangalore Bench Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first schedule to the Rules 2008. The respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case.
Coming to the decision rendered by this Court in K.V. Rama Raju & Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted 13 OA.No.170/699/2019/CAT/Bangalore Bench for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju & Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner.
Resultantly, we have no hesitation to hold that the appeal is bereft of merit. Pay fixation has to be done under Rule 11 and not Rule 7 as discussed. Let pay revision be worked out and arrears, if any, be paid within a period of 3 months from today. The appeals deserve to be dismissed and are hereby dismissed. Parties to bear their own costs."
23. In the afore quoted judgement, the Hon'ble Supreme Court has distinguished its own decision in the case of Union of India and others vs. K.V. Rama Raju and others (supra) and observed that decision in the said case cannot be applied where up-gradation has been made otherwise than as per schedule of the Rules, 2008. Bare reading of Rule 11 of the Rules 2008 itself clearly reveals that Rule 11 shall be attracted where a government servant continues to draw his pay in the existing scale and is brought over to the revised pay scale from the later date his pay from the 14 OA.No.170/699/2019/CAT/Bangalore Bench later date in the revised pay structure shall be fixed in the manner as provided in the Clause (I). By the impugned order, the Tribunal has remitted back the matter to the petitioners herein to consider the claim of the respondents herein regarding fixation of their pay in the revised pay structure from the date of their promotion as SO (A) in the light of the observations made in the body of the order. Thus, we find no infirmity in the impugned order of the Tribunal."
11. In the present case, the applicant has been promoted on a date subsequent to 1.1.2006 i.e. on 27.1.2006. Hence, it is squarely covered under Rule 11 of the CCS (RP) Rules, 2008 as held by various court judgements. Accordingly, the pay fixed by the Respondents earlier as Rs. 13,860/- as per the provisions under Rule 11 is correct and the stand of the Respondents that the pay needs to be fixed as on 1.1.2006 as per Rule 7 cannot be countenanced.
12. The 2nd prayer of the applicant is for providing him bunching benefits. A perusal of the CCS (RP) Rules, 2008 indicates that the provision of bunching benefits is provided under Rule 7 of the rules only. However, since his pay has been fixed under Rule 11 of the CCS(RP) Rules, 2008, hence, he would not be entitled to bunching benefits, which are provided only in cases where the fixation of pay after revision has been provided under Rule 7 of the CCS(RP) Rules, 2008 w.e.f. 1.1.2006.
13. Accordingly, the OA is partly allowed. The order No.A/539/2-A(NNR) dated 02.4.2019, vide which his pay has been revised downwards from 15 OA.No.170/699/2019/CAT/Bangalore Bench Rs.13860/- to Rs.12690/- w.e.f. 01.1.2006 and consequential recovery of Rs.5,46,496/-, has been ordered, is quashed, and set aside.
14. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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