Central Administrative Tribunal - Jodhpur
Kalu Ram Patel vs M/O Science And Technology on 4 September, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No.290/00481/2016
With Misc. Application No. 290/00268/2017
Reserved on : 16.08.2018
Pronounced on : 04.09.2018
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
Kalu Ram Patel s/o Shri Chamana Ji aged about 62 years
resident of Village-Rohida, P.O. Rohida, Distt-Sirohi, last
employed on the post of Draftsman Grade-II in Survey of
India.
...Applicant
(By Advocate: Shri J.K.Mishra)
Versus
1. Union of India through Secretary to the Government of
India, Ministry of Science & Technology, Department of
Science and Technology, Technology Bhawan, New
Mehrauli Road, New Delhi-110010.
2. Superintending Surveyor, O/o Surveyor General of
India, Post Box No.37, Dehra Dun-248001.
3. Director, Gujarat, Daman & Diu, GEO-SPATIAL DATA
CENTRA, Sir Creek Bhavan, Sector 10-A, Gandhinagar-
382010
4. Senior Accounts Officer, Regional Pay and Accounts
Office, Survey of India, GREAT ARC BHAWAN-2, Sector
10, Vidyadhar Nagar, Jaipur-302039.
5. The Pay and Accounts Officer, Central Pension
Accounting Office, Ministry of Finance, Govt. of India,
Trikoot II Complex, Bhikaji Cama Place, R.K.Puram, New
Delhi-110 066.
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...Respondents
(By Advocate: Shri B.L.Tiwari)
ORDER
The applicant has filed the present OA u/s 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
(i) That impugned order dated 1.9.2016 (Annexure A-1) may be declared illegal and the same may be quashed.
(ii) That the applicant may be declared entitled for the pay already allowed to him vide order Annexure A/2, A/3, & A/4 and allow to continue the pension as per last pay drawn vide PPO dated 17.12.14 (Annexure A/7).
(iii) The respondents may be directed to refund the amount if recovered in pursuance of impugned order dated 1.9.16 (Annexure A/1) with all consequential benefits with market rate of interest.
(iv) That any other direction, or orders may be passed in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
(v) That the cost of this application may be awarded."
2. Brief fact of the case are under:-
The applicant was appointed on the post of Draftsman Grade IV after qualifying the Limited Departmental Competitive Examination on 16.3.2000. He was promoted as Draftsman Grade-III w.e.f. 1.1.2003. Thereafter he was 3 further promoted to the post of Draftsman Grade-II w.e.f. 1.1.2005. The pay of the applicant was upgraded and fixed in the scale of Rs. 5000-8000 in the post of Draftsman Grade-II while his earlier pay in Draftsman Grade-III was 4000-6000. The pay of the applicant was revised and fixed in the revised pay scale as per 6th CPC in the pay band of Rs. 9300-34800 + 4200 (GP) w.e.f. 1.1.2006 with DNI 1.7.2006 vide order dated 10.7.2012 (Ann.A/5). The difference of pay from 1.1.2005 till 31.7.2012 on fixation of pay due to upgradation in the higher pay was allowed and he was granted the same along with arrears vide Ann.A/6.
Thereafter the applicant retired on superannuation on 31.12.2014 and was issued PPO vide letter dated 15/17.12.2014 and pensionary benefits were duly allowed as per last pay drawn by him (Ann.A/7). The applicant was issued a letter dated 9.9.2015 (Ann.A/8) requesting that as excess payment towards pay and pensionary benefits have been made due to wrong pay fixation, he is required to deposit an amount of Rs. 3,05,271 immediately with the department on the ground that he has already given undertaking to that effect. Earlier, he was also served with reminders dated 3.6.2015, 20.7.2015 and 13.8.2015 as mentioned in letter dated 9.9.2005. Accordingly, the 4 applicant replied vide representation dated 7.1.2016 requesting the authorities not to make any recovery as he has already spent the amount and he would have to face great hardship. It is his contention that he has not made any mis-representation or any fraud is played by him in fixation of his pay to get any excess payment, therefore, no recovery should be made. The applicant states that copy of the said representation/letter dated 7.1.2016 has been misplaced and, therefore, the same is not being filed by him. The applicant states that he retired from service on 31.12.2014 and great injustice would be caused to him if his pension is reduced and any amount is recovered due to wrong fixation made by the respondents. He further states that no authority except President of India can make order of recovery from the pensionary benefits and applicant will have to face humiliation and would have to suffer financially. Therefore, he prayed that he has no other option but to approach this Tribunal for redressal of his grievance.
In the grounds the applicant states that the impugned order dated 1.9.2016 is illegal, arbitrary and discriminatory as the same is in violation of rules as well as Article 14, 16 and 21 of the Constitution of India. He states that as he 5 belonged to Group-C, he is covered by DOPT OM dated 2.3.2016. According to the said OM, no recovery of any over payment can be made from him as there is no mis- representation or any fraud on the part of the applicant in excess payment made to him. He further relied on the judgment of the Hon'ble Apex Court in State of Punjab & Ors. etc. vs. Rafiq Masih (While Washer) etc., (2015) 4 SCC 334 and states that as per the criteria laid down by the Hon'ble Apex Court in the aforesaid judgment, his case is completely covered and, therefore, the impugned order deserves to be quashed and set-aside as the same is ex- facie illegal and in violation of the rules on the subject.
3. The respondents have filed their reply dated 9.8.2017. They have stated that the applicant was appointed as Draftsman w.e.f. 19.9.1999 through Limited Departmental Competitive Examination. Subsequently, he was promoted to the post of Draftsman Grade-III w.e.f. 1.1.2003 and further promoted as Draftsman Grade-II w.e.f. 1.1.2005 and he worked on the said post till his superannuation on 31.12.2004.
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The respondents referred to Para-2(ii) of SGOI's letter No.E2-16113/14660-Draftsman dated 21.12.2010, which reads as under:-
"In case of Draftsman who exercise an option for Trade Test under CO 435 (Admn.) and qualify the same, the pay will be fixed in the existing/prevailing scales of pay (i.e. 4000-6000 for Grade-III and 4500- 7000 for Grade-II (5th CPC scales)."
The respondents state that applicant's pay was accordingly fixed in the pay scale of Rs. 4500-7000 at the time of upgradation as Draftsman Grade-II w.e.f. 1.1.2005. As per Ministry/Department of Science and Technology, New Delhi letter dated 16.10.2000 and as per Para 3(iii) of SGOI letter dated 21.12.2010, the pay of Draftman upgraded as Grade-II was to be fixed in the pay scale of Rs. 5000-8000 (5th CPC) corresponding to pay band Rs. 9300- 34800 + Rs. 4200 GP (6th CPC), after completion of five years service in the two grades combining Grade-III and Grade-II.
The respondents further state that in the case of the applicant, his pay was erroneously fixed in the scale of Rs. 5000-8000 w.e.f. 1.1.2005 instead of 1.1.2008 as he was promoted/upgraded as Draftsman Gde-III w.e.f. 1.1.2003 and upgraded as Draftsman Gde-II w.e.f. 1.1.2005 respectively. Hence, his pay w.e.f. 1.1.2005 was correctly 7 fixed in the pay scale of Rs. 4500-7000 and after completion of five years' service in two grades combining Grade-III and Grade-II i.e. 1.1.2008 his pay was correctly refixed in the pay scale of Rs. 5000-8000/PB-2 - 9300- 34800 + GP Rs. 4200 ( as per 6th CPC).
On his superannuation on 31.12.2014, his scale of pay was shown as Rs. 9300-34800 + GP Rs. 4200 (6th CPC) corresponding to the pay scale of Rs. 5000-8000 (5th CPC) and accordingly his pension was settled. It is only when another retired official of the Department Shri Bhanwar Singh, Draftsman Grade-II of Rajasthan GDC has asked the information regarding the fixation of scale of pay of the present applicant under RTI, at that juncture, wrong fixation of pay of the applicant came to the notice of the respondents. Thereafter, immediately the pay of the applicant was revised as per the clarification issued by the Ministry/Department of Science and Technology, letter dated 16.10.2000 and accordingly, revised pension was prepared vide letter dated 13.1.2016.
The respondents have relied upon the judgment of the Hon'ble Supreme Court in the matter of Chandi Prasad Uniyal and Ors. vs. State of Uttrakhand and Ors, 8 reported in AIR 2012 SC 2951 wherein in para-14 Hon'ble Apex Court held as under:-
"14. We are concerned with the excess payment of public money which is often described as a tax payers money which belong neither to these officers who how effected over payment not that of the recipient...."while considering a specific issue whether the appellant- therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation for fraud on his part."
The respondents further state that the Hon'ble Apex Court judgment in the case of State of Punjab and Ors. vs. Rafiq Masih is not applicable in the case as the applicant has already given undertaking and such question of undertaking was not involved in that case.
The respondents further state that DOPT OM dated 2.3.2016 is also not applicable in the case of the applicant and the applicant is bound by his undertaking dated 31.08.2014 furnished before the authority for settlement of his pension case prior to his retirement. The respondents relied upon the judgment of the Hon'ble Apex Court in High Court of Punjab and Haryana vs. Jagdev Singh reported in 2016 (0) AIJEL-SC 58951 wherein in para-11 of the judgment Hon'ble Apex Court had observed that in the present case, the officer to whom the payment was made on notice that any payment found to have been made in 9 excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. Accordingly, Hon'ble Court was of the view that the recovery should be made in reasonable/equated monthly instalments and observed that the judgment of the High Court which set-aside the action of recovery is unsustainable. The respondents also rely to the judgment of the Hon'ble Supreme Court in the case of U.T. Chandigarh vs. Gurcharan Singh, reported in 2013 (0) AIJEL-SC 54623. In the said judgment the Hon'ble Apex Court held that the High Court was not correct in allowing the Writ Petition and therefore, the order of the High Court was quashed and set-aside and restored the order passed by the Tribunal dated 20th March, 2008 and accordingly ordered to give effect to the pay fixation order dated 13th October, 1998. It had also observed that the submission that no amount should be recovered from the salary of the respondent paid per month, cannot be accepted as if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered.
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4. Heard Shri J.K.Mishra, learned counsel for the applicant and Shri B.L. Tiwari, learned counsel for the respondents.
5. It is clear that the applicant was appointed as Draftsman Grade-IV w.e.f. 16.9.1999. Thereafter he was promoted as Draftsman Grade-III w.e.f. 1.1.2003 and Draftsman Grade-II w.e.f. 1.1.2005. Accordingly, his pay was to be fixed in the scale of Rs. 5000-8000/PB Rs. 9300- 34800 + Rs. 4200 GP as per 6th CPC w.e.f. 1.1.2008 instead of 1.1.2005. His pay was fixed as per Govt. of India, Ministry of Science and Technology order dated 16.10.2000. Hence, his pay was downgraded at the time of his superannuation on 31.12.2014 and recovery of excess payment was processed vide letter dated 9.9.2015, 27.10.2015 and 30.9.2016. It is clear that the applicant was served with proper show-cause notice vide letter dated 9.9.2015 with reminder dated 27.10.2015 requesting the applicant to deposit the excess paid amount worth Rs. 3,05,271/-. The so called representation/letter of the applicant dated 7.1.2016 has not been received by the respondents and, therefore, it is clear that in lieu of the undertaking dated 31.8.2014 (Ann.R/5) given by the 11 applicant to the respondents, the recovery of excess payment made, which appears to be justified.
As held in Chandi Prasad Uniyal's case (supra) if an undertaking is given, the respondents are justified in recovery of the said amount and therefore, the principles laid down in Rafiq Masih (supra) are not squarely applicable to the present case.
The principle enunciated in Rafiq Masih case particularly with reference to sub-clause-2 pertaining to recovery from the retired employee or the employees who are due to retire within one year of the order of recovery cannot apply to a situation such as in the present case, the official to whom 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 official furnished an undertaking while opting for revised pay scale, therefore, he is bound by such undertaking.
6. For the reasons mentioned above, the action of recovery vide order dated 1.9.2016 does not require any interference as the same is just and proper. However, the recovery in question shall be done in equal instalments of 12 Rs. 3000/- per month, as the excess amount of recovery would be intolerable burden on the pensioner. The OA is accordingly dismissed with no order as to costs.
7. In view of dismissal of the OA, MA No. 290/00268/2017 for vacation of stay order has become infructuous and it stands disposed of as having become infructuous.
(HINA P.SHAH) MEMBER (J) R/