Central Administrative Tribunal - Chandigarh
Dr. C.B. Pandey S/O Sh. Kedar Nath Pandey vs Union Of India on 1 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(ORDER RESERVED ON 17.02.2016)
O.A No. 1354/HR/2011 Date of decision: 01.03.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. Dr. C.B. Pandey S/o Sh. Kedar Nath Pandey, presently posted as Principal Scientist, Central Soil Salinity Research Institute, Kacchwa Road, Karnal 132001.
2. Dr. Satya Pal Yadav S/o Sh. Hukam Chand, presently posted as Scientist, Central Institute for Research on Buffaloes, Sirsa Road, Hisar.
APPLICANTS
BY ADVOCATE: Sh. Aalok Jagga.
VERSUS
1. Union of India, Ministry of Agriculture, New Delhi, through its Secretary.
2. Indian Council of Agricultural Research, Krishi Bhawan, Dr. Rajinder Prasad Road, New Delhi - 110001, through its Secretary.
3. Central Soil Salinity Research Institute, Kacchwa Road, Karnal 132001, through its Director.
4. Central Institute for Research on Buffaloes, Sirsa Road, Hisar, through its Director.
5. Central Agricultural Research Institute, Post Box No.181, Port Blair - 744001, through its Director.
RESPONDENTS
BY ADVOCATE: Sh. R.K. Sharma.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A):-
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(i) Quash the impugned order dated 16.09.2011 (Annexures P-9 and P-10) issued by respondent no.5, vide which, in an absolutely illegal and arbitrary manner and in complete contravention of the law laid down in Budh Ram case (supra), recovery is sought to be effected without there being any misrepresentation or concealment on the part of the applicants.
(ii) Set aside the order dated 17.10.2011, (Annexures P-13 and P-14), rejecting the representation of the applicants which have been passed without considering the judgment in the case of Budh Ram (supra).
(iii) Direct the respondents to refund the amount already recovered from the applicants in pursuance to the impugned orders dated 16.09.2011 with interest @ 12% per annum.
(iv) Issue appropriate directions to the respondents restraining them from effecting any recovery from the salary of the applicants for the ensuing months.
2. It is stated in the OA that vide office order dated 10.07.2000 issued by respondent no.2, the applicant no.1 was appointed as Senior Scientist at respondent no.5 Institute at Port Blair, Andaman and Nicobar Island (Annexure A-1). Vide letter dated 22.10.1999, applicant no.2 was appointed as Scientist on probation (Annexure A-2). Later, vide letter dated 06.01.2000, this order was partially modified to the extent that applicant no.2 was directed to join the respondent no.5 Institute at Port Blair (Annexure A-3). It is claimed in the OA that the employees of Central Government who are appointed at distant places like Port Blair which is an island, are entitled to Special Allowance, namely, ISDA, keeping in view the hard conditions of life in which the employees are made to render their duty. Thus, the special allowance, as the name suggests was granted to the applicants who were posted at Port Blair at respondent no.5 Institute. The relevant extract of the admissibility clause under the rules is reproduced:-
Admissibility Central Government employees having All India Transfer liability on their posting to the Andaman and Nicobar Island and Lakshdeep. This is in lieu of Special (Duty) Allowance. Both the applicants have been serving the respondent no.5 Institute since the year 2000. Since their date of joining, they were being granted the special allowance which is 20% of the basic pay. The applicants are placing on record salary slips to show the grant of the special allowance to them (Annexure A-4 and Annexure A-5).
3. It is further stated that posts of Principal Scientists came to be available for being filled at respondent no.3 Institute. The same were to be filled by direct competition in which applicant no.1 participated. He was appointed on the post of Principal Scientist (Forestry), at respondent no.3 Institute at Karnal. A copy of the office order dated 17.10.2008 is annexed in this regard (Annexure A-6). Applicant no.2 was transferred vide order dated 24.11.2008 issued by respondent no.2 from respondent no.5 Institute to respondent no.4 Institute at Hisar (Annexure A-7). On 16.09.2011, both the applicants separately received similar letters issued by respondent no.5, wherein it was mentioned that in pursuance to a letter dated 25.07.2011 issued by respondent no.2, the special allowance (ISDA) was erroneously granted to the applicants during the period 06.10.2001 to 31.08.2008 and hence recovery has been ordered for an amount of Rs.2,74,283/- against applicant no.1 who was depicted at serial no.37 of the list enclosed and an amount of Rs.1,14,509/- against applicant no.2 who was depicted at serial no.26 of the list enclosed. On 28.09.2011 and 29.09.2011, both the applicants separately filed their detailed representations wherein they had highlighted that they had been rightly granted the benefit of the special allowance while they were posted at Port Blair. Moreover, their services were transferable in nature and they had never misrepresented or concealed any fact from the respondents for the grant of the benefit. The allowance was granted voluntarily by the respondents and hence according to the well settled proposition of law as laid down by the Honble Supreme Court, no recovery can be effected in such circumstances. Copies of the representations dated 28.09.2011 and 29.09.2011 are annexed (Annexures A-11 and A-12). Vide letter dated 17.10.2011 issued by respondent no.5, it was intimated to the applicants that their representations had not been considered favourably and the same had been disposed of in view of the decision rendered on the representation made by one Dr. TVRS Sharma. The representation filed by Dr. TVRS Sharma was decided vide letter dated 28.07.2011, a copy of which was enclosed with the letter dated 17.10.2011. This letter stated that there is a decision rendered by the Honble Supreme Court in the case of Union of India Versus S. Vijaya Kumar, wherein it had been held that Central Government employees who have All India Transfer Liability are entitled to the grant of special duty allowance on being posted to any station in the North Eastern Region from outside the region and special duty allowance would not be payable merely because of a clause in the appointment letter relating to All India Transfer Liability. Be that as it may, nowhere in the entire letter, it has been mentioned that by virtue of the decision rendered by the Honble Supreme Court, the respondents were entitled to recover any benefit which had been conferred upon an employee without any misrepresentation or concealment of fact. A copy of the letter dated 17.10.2011 alongwith the letter dated 28.07.2011 issued to applicants no.1 and 2 are annexed (Annexures A-13 and A-14). Hence this OA.
4. In the grounds for relief it has, interalia, been stated as follows:-
i) That at the outset, it is submitted that it is the positive case of the applicants that they have never misrepresented or concealed any fact from the respondents while they were being granted the benefit of Special Allowance in the shape of ISDA. The issue as to whether in such circumstances, the respondent/employer can recover any benefit is no longer res integra and has been settled by the Honble Full Bench of Honble High Court in the case of Budh Ram (supra). It has been conclusively held that in such circumstances, it shall not be open for the employer to recover any benefit which has already been conferred by the employer without any misrepresentation by the latter. Thus applying the aforesaid ratio of law, the respondents are clearly estopped from effecting any recovery and the impugned order dated 16.09.2011 ordering recovery from the salary of the applicants is absolutely illegal. Even the letter dated 17.10.2011 rejecting the representation of the applicants is also contrary to the law laid down by the Honble Full Bench in Budh Rams case (supra) and hence the same is liable to be set aside.
(ii) Even otherwise, the applicants were entitled for the said refund. Both the applicants have served at respondent no.5 Institute during 2000-2008. ISDA as the name suggests, is applicable and available to employees who are serving at the Island of Port Blair, which allowance is admissible due to extreme hard conditions of living there. Such employees, like the applicants, are made to render their duty on the Island which is to be performed in hard conditions. The rules, as reproduced in the preceding paras, would reveal that 20% of the basic salary is to be granted as Special Allowance to such employees. No reasons have been mentioned in the impugned order as to the reason of recovery. The orders impugned in the present OA are cryptic as it was incumbent upon the respondent to at least divulge the reasons / basis of the recovery proposed to be effected. Since no reasons have been assigned, the orders are illegal on this account as well.
(iii) With implementation of the 6th Pay Commission recommendations the Special Allowance of ISDA has been made available to all the employees posted at Port Blair, without any discrimination or position. This further substantiates the plea of the applicants that the Special Allowance was rightly granted to them in terms of their posting orders at Port Blair.
5. In the written statement filed on behalf of respondents, it is stated that clarification for determining the All India Transfer Liability was issued vide Ministry of Finance OM dated 20.04.1987. It was stated therein that all India Transfer liability of the members of any service/cadre or incumbents of any posts/group of posts had to be determined by applying the tests of recruitment zone, promotion zone etc. i.e. whether recruitment to service/cadre/posts had been made on all India basis and whether promotion was also done on the basis of an All India common seniority list for the service/cadre/post as a whole. A mere clause in the appointment letter to the effect that the person concerned is liable to be transferred anywhere in India, did not make him eligible for the grant of Special Duty Allowance. The Honble Supreme Court had upheld the submissions of the Government of India in Civil Appeal No.3251 of 1993 that Central Government civilian employees who have All India Transfer Liability are entitled to grant of Special Duty Allowance on being posted to any station in the North Eastern Region from outside the region and ISDA would not be payable merely because of a clause in the appointment order relating to all India Transfer Liability. At para 6 of the O.M. dated 29.05.2002, it was stated as under:-
(i) The amount paid on account of Special Duty Allowance to the ineligible persons not qualifying the criteria mentioned in para 5 above on or before 05.10.2001, which is the date of Judgment of the Supreme Court, will be waived. However, recoveries, if any, already made need not be refunded.
(ii) The amount paid on account of Special Duty Allowance to ineligible persons after 05.10.2001 will be recovered.
The OM dated 29.05.2002 was endorsed to all the research Institutes of ICAR vide ICAR endorsement no.9-3/98-Cdn (A&A) dated 18.06.2002 for information, guidance and necessary action. The external audit had raised an audit para directing recovery of overpayment of ISDA made during the period 06.10.2001 to 31.08.2008 to ineligible Scientists of CARI, Port Blair, in contravention of the Govt. of India, Deptt. of Expenditure O.M. dated 29.05.2002. In order to settle the audit para, the issue was taken up with the Govt. of India, Ministry of Finance. The Ministry of Finance vide U.O. No.11(1)/E.II(B)04-Pt. file dated 09.07.2004 had clarified as under:-
ISDA is admissible to Central Government Employees on posting from outside to North Eastern Region (including Sikkim)/Andaman and Nicobar Islands, Lakshadweep Group of Islands. This allowance is not admissible unless the appointment in the region is from outside even though the individual has All India Transfer Liability. The conditions prescribed by the Ministry of Finance are applicable to all Ministries / Department and any such dispensation in respect of employees of ICAR cannot be agreed to. Pursuant to the 6th CPC recommendations, the Ministry of Finance, Department of Expenditure vide OM NO.12(3)/2008-E-II (B) dated 29.08.2008 clarified as under:-
Island Special Duty Allowance shall be admissible to the Central civilian employees including All India service officers on their transfer including on initial appointment to any place in Andaman & Nicobar and Lakshadweep group of Islands irrespective of whether the transfer from outside or from within the Islands without insisting on an All India Transfer Liability. These orders were made effective from 01.09.2008.
6. Since the Government of India, Ministry of Finance vide OM dated 29.08.2008 dispensed with almost all the pre conditions viz. All India Transfer Liability, initial appointment in NE Region, transfer from outside the region in regard to drawal of ISDA by all central civilian employees, the issue of waiver of recovery of overpayment on account of grant of ISDA made to ineligible Scientists of the CARI, Port Blair for the period 06.10.2001 to 31.08.2008 was again taken up with the Govt. of India, Ministry of Finance. The Ministry of Finance vide I.D. No.11(1)/E-II3/2014 (pt. F/A) (Pt. F.1) dated 27.05.2011 reiterated its earlier stand and did not agree to the waiver of recovery of overpayment of ISDA made to scientists of the CARI, Port Blair. Hence, the over payment on account of ISDA made to ineligible scientists including the applicants during the period 06.10.2001 to 31.08.2008 was in contravention of Govt. of India, Ministry of Finance OM Dated 29.05.2002 and the ICAR has no option but to effect recovery of overpayment on account of grant of ISDA paid to ineligible scientists of the CARI, Port Blair, for the period 06.10.2001 to 31.08.2008.
7. In response to the interim direction of the Tribunal of 03.12.2014, MA No.060/00260/2015 was filed on 09.03.2015 to further clarify the position. It is stated therein that during the relevant period i.e. 06.10.2001 to 31.08.2008, 61 Scientists were posted at Port Blair, who got the benefits of Island Special Duty Allowance which were not admissible to them in terms of Government of India, Ministry of Finance, Department of Expenditure, F. No.11(5)/97-E-II (B) dated 29.05.2002 (Annexure R-1). When the efforts made by the ICAR with the Ministry of Finance for waiver of the recovery of the payment, failed, a letter was written vide F. No.20-12/2005-IAB dated 25.07.2011 to effect the recovery of ISDA to ineligible scientists of CARI of Port Blair for the period from 06.10.2001 to 31.08.2008, in pursuance whereof, the notices were issued to 45 scientists (Annexure R-2), who had been transferred to different Institutes. Notices were not issued to the 16 scientists working at Port Blair at that time. 29 scientists approached the Honble High Court of Calcutta, Circuit Bench at Port Blair, by filling various writ petitions and the list of 29 scientists alongwith the status of their cases is attached as Annexure R-5. A list of 33 scientists who were not to get the benefit of the judgment alongwith their current position is attached as Annexure R-6. Out of 33 scientists, 8 filed court cases in different locations (Annexure R-7). Dr. T.V.R.S. Sharma who was one of the affected Scientists filed WP No.107/2014 before the Honble High Court of Calcutta, Circuit Bench at Port Blair, which was dismissed for want of jurisdiction. Cuttack Bench of this Tribunal after taking note of the judgments of the Honble Supreme Court and Honble Calcutta High Court, dismissed the Original Applications No.252 & 261 of 2012 filed by Dr. R.C. Srivastava and Dr. R. Raja respectively vide order dated 09.09.2014 (Annexure R-9).
8. Arguments advanced by the learned counsel for the parties were heard. Learned counsel for the applicant narrated the background of the matter and sought to show that the applicants were eligible to draw the ISDA. He also stated that the applicants were paid the allowance without any misrepresentation on their part and hence keeping in view the judgments in Budh Ram case (supra) and State of Punjab and others versus Rafiq Masih and others 2015 (4) SSC page 334, the payment made to the applicants could not be recovered at this belated stage. He also stated that on account of decision of the Honble High Court of Calcutta that was also affirmed by the Apex Court, recovery of the allowance in respect of a number of scientists was not being effected, while the respondents were insisting of recovery of this allowance paid to the applicants, although there was no ground of discriminate between the two groups. Learned counsel also stated that even as per Rafiq Masih case (supra) recovery could not be made in respect of payments made five years earlier to the date of the recovery order, and hence, recovery for the period September 2001 to September 2008 was unwarranted.
9. Learned counsel for the respondents stated that vide judgment dated 09.09.2014 in OAs No.252 and 261 of 2012 the Cuttack Bench of CAT held as follows:-
17. In view of the discussions held above and having regard to the latest judgment of the Honble Apex Court in Chandi Prasad (supra), I am of the view that the action of the respondents in the matter of recovery is irrefutable and at the same time, order of recovery is justified. I also further hold and declare that OM dated 29.05.2002 in so far as applicants are concerned, spent its force only on 29.08.2008 when OM dated 29.08.2008 came to be issued by rationalizing the ISDA based on the recommendations of the 6th CPC. Therefore, the ISDA paid to the applicants illegally is liable to be recovered. In the circumstances, I am not inclined to interfere with the orders of recovery which are impugned herein.
18. In the result, both the OAs being devoid of merit are dismissed. Parties to bear their own costs. Hence, the admissibility of the ISDA to the applicants while posted at CARI, Port Blair, could not be adjudicated over again. Since the applicants were not entitled to the payment of ISDA during their stay at Port Blair, this amount had perforce to be recovered from them as per the direction of ICAR that had been issued after due consultation with the Ministry of Agriculture and Ministry of Finance. Learned counsel also pressed that the basic order on account of which the recovery was being affected i.e. OM No.11(5)/97-E-II(B) dated 29.05.2002 (Annexure R/1) had not been impugned through the present OA nor had ICARs letter dated 25.07.2011 (Annexure R/2) been challenged by the applicants. He pressed that the applicants were liable for recovery of the ISDA paid to them during their postings at Port Blair, since they were not entitled to such allowance. Therefore, the over payment of ISDA made during the period 06.10.2001 to 31.08.2008 and had to be recovered from the applicants.
10. We have given our careful consideration to the matter. It is settled vide order dated 09.09.2014 of the CAT, Cuttack Bench, that scientists posted at CARI, Port Blair, were not entitled to ISDA. Recovery has been ordered for the period 06.10.2001 to 31.08.2008 from the ineligible scientists. We observe however that although the payment of ISDA was made to the scientists up to 31.08.2008, recovery notices were only issued to them on 16.09.2011, which have been impugned through the present OA. As per Rafiq Masih (supra) payments made more than five years ago are not to be recovered. Hence, the applicants would only be liable for recovery of ISDA payment made to them from 16.09.2006 to 31.08.2008, since it is also to be noticed that after the recommendations of the 6th Pay Commission, ISDA has been made applicable for the Andaman Nicobar Island w.e.f. 01.09.2008. Keeping in view the judgment of the Apex Court in Civil Appeal No.5899 of 2010 (arising out of Special Leave Petition (C) No.30858/2011 and I.A. Nos.2 & 3 decided on 17.08.2012 (Chandi Prasad Unyual & Ors. vs. State of Uttrakhand & Ors.), we are of the view that the applicants would in the normal course be required to refund the payment of ISDA for this period since they were ineligible for the same. However, it is seen that as a result of court cases recovery is not being affected from 28 scientists who are similarly situated to the applicants. Similarly situated employees should be treated similarly. Hence, we direct the ICAR to waive of the recovery on account of overpayment of ISDA in respect of the scientists posted at CARI during this period, keeping in view the fact that as per orders of the Calcutta High Court and Apex Court no recovery on this account is being effected from 28 other similarly situated scientists. OA is disposed of accordingly.
(RAJWANT SANDHU) MEMBER (A) (JUSTICE L.N. MITTAL) MEMBER (J) Place: Chandigarh.
Dated: 01.03.2016 rishi 12 O.A NO. 1354/HR/2011 (Dr. C.B. Pandey & Anr. Vs. UOI & Ors.)