Central Administrative Tribunal - Delhi
Jagmohan S/O Shri Dilip Singh vs Govt. Of Nct Of Delhi on 23 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.768/2012 O.A. No.772/2012 O.A. No.773/2012 O.A. No.775/2012 Order Reserved on: 15.04.2013 Order Pronounced on: 23.05.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Mr. Sudhir Kumar, Member (A) OA 768/2012 Jagmohan S/o Shri Dilip Singh R/o H.No.76, Village Paprawat, Najafgarh, New Delhi. Applicant. (By Advocate: Shri Rajat Rathee) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 2. Delhi Transport Corporation Through its Chief Managing Director Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 3. Depot Manager, DTC Dichaon Kalan Depot New Delhi-110043. Respondents. (By Advocate: Shri Ajesh Luthra) OA 772/2012 Surender Singh S/o Shri Charan Singh R/o Village Mudhela Kalan, Post Office Ujwa, New Delhi. Applicant. (By Advocate: Shri Rajat Rathee) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 2. Delhi Transport Corporation Through its Chief Managing Director Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 3. Depot Manager, DTC Dichaon Kalan Depot New Delhi-110043. Respondents. (By Advocate: Shri Ajesh Luthra) OA 773/2012 Ashok Kumar S/o Shri Mahinder Pratap R/o Village Sawada, Post Office Nizampur, New Delhi. Applicant. (By Advocate: Shri Rajat Rathee) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 2. Delhi Transport Corporation Through its Chief Managing Director Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 3. Depot Manager, DTC Dichaon Kalan Depot New Delhi-110043. Respondents. (By Advocate: Shri Ajesh Luthra) OA 775/2012 Sunil Kumar S/o Shri Mahinder Singh R/o H.No.463, P.P.Colony, Village Bapdola, New Delhi. Applicant. (By Advocate: Shri Rajat Rathee) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 2. Delhi Transport Corporation Through its Chief Managing Director Delhi Secretariat, Players Building, I.P. Estate, New Delhi. 3. Depot Manager, DTC Dichaon Kalan Depot New Delhi-110043. Respondents. (By Advocate: Shri Ajesh Luthra) O R D E R Honble Mr. Sudhir Kumar, Member (A):
These four applications were heard together, reserved for orders together, and are, therefore being disposed of through a common order. However, for the sake of convenience, we will take the facts from OA No.768/2012, which was filed earliest in point of time, and just mention differences, if any, with the other cases.
OA No.768/20122. The applicant was appointed with the respondents on 09.12.1998 as Retainer Crew Conductor on temporary basis w.e.f. 10.12.1998 (Annexure A-2 of his OA). On 26.05.2004, the applicant was brought on monthly rates of pay w.e.f. 01.06.2004 in the pay scale of Rs.3200-85-4900.
3. In January 2005, 50% of the Dearness Allowance was merged into the basic pay, and the applicants pay was fixed @ Rs.4800/-, and his pay was subsequently properly re-fixed on subsequent dates of increments. On 29.08.2008, the Central Civil Services (Revised Pay) Rules, 2008 (CCS (RP) Rules, 2008 in short) were notified, with the directions that the pay scales shall be deemed to have come into effect on 01.01.2006 (Annexures A-4 & A-5 of the OA). Later, the same year Government of NCT of Delhi also adopted the same pay scales, and the respondent-Corporation also extended the same benefit to its employees. The applicant has submitted that in September 2008, his pay was fixed at Rs.8880/- effective from July, 2008, and that in December 2008, a statement of VI Pay Commission arrears was prepared accordingly (Annexure A-6 of the OA). The applicant is aggrieved that in June 2009, the Respondent No.2 re-fixed the basic pay of the applicant at Rs.10/- higher at Rs.8890/-, but have now on 18.10.2011, through the impugned Annexure A-1, without giving him any show cause notice, reduced his basic pay with retrospective effect, and fixed his pay at a level much lower than the entry level basic pay of his post as prescribed under the CCS (RP) Rules, 2008.
4. The applicants grievance is that this interpretation was not adopted across the Board, as in December, 2011, another employee one Shri Om Prakash, working at the same post in Dwarka-II Depot of the Respondent-Corporation, got salary of Rs.10130/- through Annexure A-8, while in January 2012, the respondents reduced the basic pay of the applicant to the level of Rs. 9710/- through Annexure A-9.
5. The applicant has, therefore, assailed the actions of the respondents in having implemented the VI CPC pay scales through a pick and choose policy, and not having followed fair and impartial way of fixation of pay, and that they have reduced his salary without even issuing him a show cause notice for the reduction of pay. He has sought shelter behind the observations of Honble Apex Court in Bhagwan Shukla vs. Union of India & Ors. AIR 1994 SC 2480 that when civil consequences have been visited upon him, he should have been asked to show cause in the matter. His contention is that the respondents have arbitrarily fixed his pay and have violated Rule 7, note 7 of CCS (RP) Rules, 2008, which states as under:-
Note 7- where in the fixation of pay under sub-rule (1), the pay of a Government, who, in the existing scale was drawing immediately before the Ist day of January, 2006 more pay than another Government servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped upto the same stage in the revised pay band as that of the junior.
6. The further ground taken by the applicant is that as on 01.01.2006, he was getting basic pay of Rs.4927.50, and according to the CCS (RP) Rules, his pay fixation in the revised pay scale ought to have been Rs.9280/- with grade pay of Rs.2000/- as on 01.01.2006, with the increments as due being eligible later on 1st of July, 2006,2007,2008,2009,2010 & 2011. He, therefore, assailed that the actions of the respondents are in violation of his rights under Articles 14 & 16 of the Constitution of India, and that they have illegally and arbitrarily deprived the applicant of his legitimate due. The applicant, therefore, sought for the following reliefs & Interim Relief:-
i) That the Honble Tribunal may graciously be pleased to quash the impugned order dated 18.10.2011 (Annexure A-1) and pass an order to direct the respondent No.1 to 3 to refix the pay scale of applicant according to CCS (Revised Pay) Rules, 2008.
ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant alongwith the cost of litigation, in the interest of justice.
Interim Order if any, prayed for:
Pending final disposal of original application, respondent No.1 to 3 may be directed to stay the impugned order dated 18.10.2011 (Annexure A/1) and may be further directed to not to recover any amount according to this impugned order.
7. In support of his contentions, he has filed his pay slips etc. for the relevant periods at Annexures A-7, A-8 & A-9.
8. The respondents filed their counter reply on 13.08.2012. In this, they had mentioned that after the applicant was brought on monthly rates of pay w.e.f. 01.06.2004 in the pay scale of Rs.3200-85-4900, he completed his period of probation satisfactorily on 31.05.2005, and was also confirmed on the post of Driver as on that date. They have submitted that he was given due increments as follows:-
Date Basic Pay (Scale) 1.6.2004 Rs.3200/-Rs.3200-85-4900 (5thC.P.C. Pay Scale) 1.6.2005 Rs.3285/-
1.6.2006 Rs.3370/-
1.6.2007 Rs.3455/-
1.6.2008 Rs.3540/-
9. It was submitted by the respondents that now, by following the CCS (RP) Rules, 2008, the pay fixation of the applicant was done in the following manner:-
Old Basic Pay Dated Pay Fixed in revised pay scale: 5200-20200+G.P.2000 3285/- 1.6.2005 (Scale:3200-85-4900) 1.1.2006 8110/- 1.7.2006 8360/- 1.7.2007 8620/- 1.7.2008 8880/- Considering the factor/formula of 1.86+GP Rs.2000/- as on 1.1.2006.
10. It was further submitted that the applicant had represented on 07.01.2009 that his pay may be fixed at Rs.8460/- as on 01.01.2006, as per the admissibility of pay for a new entrant driver from that day instead of the pay as on 01.01.2006 as computed above, and initially the Depot Manager had acceded to his request, and re-fixed his salary on 19.06.2009 as under:-
Date Basic Pay Scale : 5200-20200+GP Rs.2000/- (in the new scale) 1.1.2006 8460/- 1.7.2006 8720/- 1.7.2007 8990/- 1.7.2008 9260/- 1.7.2009 9540/- 1.7.2010 9830/- 1.7.2011 10130/-
11. Later on, when the Accounts Department of the respondent-Corporation had pointed out that the salary of the Government servants, who are already in service before 1.1.2006, cannot be fixed with reference to the Schedule (2) of Part-A of the CCS (RP) Rules, 2008, which has clarified the entry level pay in the revised pay structure in respect of the direct recruits on or after 1.1.2006, and since there were no direct recruitments made in the respondent Corporation between 1.1.2006 to 01.07.2007, there was no directly recruited fresh junior employee, with reference to whom the pay of the applicant could be stepped up, and, therefore, they had to re-assign and refix the pay of the applicant, by the impugned order dated 18.10.2011, by which, as on 01.07.2007 itself, his pay got fixed much above the minimum of the pay scale, which is as under:-
Date Old Basic Pay 1.1.2006 Rs.8110/-
1.7.2006 Rs.8360/-
1.7.2007 Rs.8610/-
1.7.2008 Rs.8870/-
1.7.2009 Rs.9140/-
1.7.2010 Rs.9420/-
1.7.2011 Rs.9710/-.
12. It was submitted that thereafter an amount of Rs.34030/- was determined to have been paid in excess to the applicant, which was decided to be recovered in installments from January, 2012 onwards. However, after the stay order issued by this Tribunal on 07.03.2012, the recovery had been stopped from the salary of March 2012 onwards. The respondents have, therefore, submitted that since the first direct recruitment after 01.01.2006 took place in the respondent-Corporation on 11.12.2007, stepping up of pay of all the seniors to the entry level pay scale of Drivers Rs.8,460/- at least from that date, from 11.12.2007, has now been ordered, which was applicable not only to the applicant, but to all such similarly placed employees. Thereafter, the respondents denied all other contentions in detail. It was also pointed out that the mistake in fixation of the pay of the said Shri Om Prakash, Driver, who is a batch mate of the applicant, has also since been discovered, and the Depot Manager has been directed to modify the pay fixation of said Shri Om Prakash also. Any wrongdoing on the part of the respondents was denied, and it was submitted that since the re-fixation of the applicants pay was done only on account of the correct eligibility, and excess payments were made due to the misinterpretation of the guidelines of the VI Central Pay Commission, the question of issuance of show cause notice does not arise, which is required to be done only in the case of any penalty imposed on the person concerned. They had, therefore, prayed that the interim order stopping recovery of excess amount paid may be vacated, and the OA may be dismissed.
13. The applicant filed a rejoinder on 05.12.2012, more or less reiterating his contentions as already given in the OA, and submitted that the respondents have tried to mislead this Tribunal, as the applicant is legally entitled for the minimum pay of Rs.8460/- w.e.f. 01.01.2006, as the same was fixed for any fresh recruitment for the post of driver on or after 01.01.2006, and that the respondents cannot be allowed to take the flimsy ground that since the first direct recruitment of Drivers took place only on 11.12.2007, the stepping up of pay eligibility arises only from that date.
OA No.772/2012, OA No.773/2012 & OA No.775/2012
14. All the facts of the aforesaid three cases are also the same, the impugned orders are also the same, all the pleadings from the side of the applicants, the counters from the side of the respondents, and the rejoinders from the side of the applicants being similar and mostly the same, their contents are not being repeated here in detail.
15. Heard. The case was argued vehemently by both the sides. The applicants have only tried to emphasize that since as per the First Schedule Part-A of the CCS (RP) Rules, their erstwhile pay scale S-6 of Rs.3200-85-4900 has now been fixed in the Revised Pay Structure of Pay Band-1 Rs.5200-20200 with the Corresponding Grade Pay of Rs.2000/-, their pay as on 01.01.2006 should be fixed at the minimum of the pay scale of a direct entrant into that Pay Band and Grade Pay, which has not been prescribed in Part-A Section-I of the First Schedule, but has rather been prescribed in Part-A Section-II of the First Schedule, of the CCS (RP) Rules, and hence they are eligible for the pay of Rs.8460/- w.e.f. 01.01.2006, as per the Annexure A-4 (pages 32 & 33 of the OA No.768/2012). However, the respondents have rather contended that the pay fixation will have to be governed as per Rule-7 of the CCS (RP) Rules, Para-7 (1) (A) of which lays down as follows:-
7. Fixation of initial pay in the revised pay structure:
(1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of rule 6 to be governed by the revised pay structure on and from the Ist day of January, 2006, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:-
(A) in the case of all employees:-
(i) the pay in he pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and round off the resultant figure to the next multiple of 10
16. We have given our anxious consideration to the facts of these cases. Section-II of Part-A of the First Schedule actually relates to Rule-8 of the CCS (RP) Rules, which lays down as follows:-
8. Fixation of pay in the revised pay structure of employee appointed as fresh recruits on or after 1.1.2006Section II of Part A of the First Schedule of these Rules indicates the entry level pay in the pay band at which the pay of direct recruits to a particular post carrying a specific grade pay will be fixed on or after 1.1.2006.
This will also be applied in the case of those recruited between 1.1.2006 and the date of issue of this Notification. In such cases, where the emoluments in the pre-revised pay scale(s) [i.e., basic pay in the pre-revised pay scale(s) plus Dearness Pay plus Dearness Allowance applicable on the date of joining] exceeds the sum of the pay fixed in the revised pay structure and the applicable dearness allowance thereon, the difference shall be allowed as personal pay to be absorbed in future increments in pay.
17. While the applicants have taken care to reproduce the fitment Table concerning their erstwhile pay scale, which forms a part of Annexure-I of the CCS (RP) Rules, reproduced at Page-42 of their O.As, they have actually argued against that Fitment Table, and have contended that the fixation of pay for the pre-revised basic pay of Rs.3285/- at the revised basic pay of Rs.8110/- as per the provisions of Rule-7 of the CCS (RP) Rules, 2008, should not be made applicable to them.
18. We find no merit in the contentions of the four applicants of these four OAs. Under the provisions of Rule-7 (1) (A) of the CCS (RP) Rules, the applicants were entitled to the benefit of their initial pay fixation as on 01.01.2006 at Rs.8110/- per month only, as per the Fitment Table produced by themselves in their OAs, and they were not entitled to the applicability of Section-II of Part-A of the First Schedule of the said Rules, which relates to Rule-8 of the CCS (RP) Rules, 1980, which is applicable only to those who are fresh appointees on or after 01.01.2006.
19. The respondents are right in submitting that the benefit of stepping up of pay at par with the entry level pay structure of the pay of Rs.6460+Grade Pay of Rs.2000/- = the total of Rs.8460/- in Pay Band-1 Rs.5200-20200 can be made applicable to these applicants only under the applicability of the Next Below Rule, from the date any of their freshly appointed junior joins such service. In this context the respondents cited the Clarification dated 20.03.2009 issued by the Govt. of India, Ministry of HRD, Department of School Education, Literacy addressed to the Commissioner of KVS which states as below:-
(3) Stepping up of pay of direct recruit seniors appointed before 1.1.2006 with reference to direct recruit juniors appointed on or after 1.1.2006: Stepping up of pay of the directly recruited seniors is permissible with reference to such of their directly recruited juniors who were recruited on or after 1.1.2006 and whose Entry Pay was actually more than pay of the seniors provided no advance increments have been granted to the juniors at the time of recruitment. This would further be subject to the condition that there should be some element of direct recruitment in that particular cadre. As such no claim of stepping up can be entertained merely with reference to Entry pay for direct recruits as per Section II of Part A of the First Schedule if thee is no junior in the cadre drawing basic pay higher than the seniors.
[Clarification vide No.F.3-43/2008/UT.2 dated 20th March, 2009 given by the Government of India, Ministry of H.R.D. Department of School Education & Literacy (U.T.-2 Section) addressed to the Commissioner, Kendriya Vidyalaya Sangathan]
20. We are of the considered opinion that this clarification states the correct position of law and the Rules, and that the applicants can only be entitled to stepping up of their pay with regard to the juniors, and cannot seek fixation of their pay as on 01.01.2006 under Section-II Part-A of the First Schedule under Rule-8 of the CCS (RP) Rules, 2008, which Rule itself is not applicable to them.
21. If any of the juniors of these four applicants had joined service freshly as on 01.01.2006 itself, or on any date soon thereafter, but before 01.06.2007, when these applicants crossed that threshold entry level pay, these four applicants would have been beneficiaries of stepping up of their pay under the Next Below Rule, since those fresh appointees would have got the benefit of Rule-8 of the CCS (RP) Rules, 2008, rather than merely Rule-7 of the CCS (RP) Rules, 2008, as has happened in the case of the present applicants.
22. The applicants are faced with the recovery of around Rs. 34030/- per head on account of this interpretation. However, as had been stated by the Honble Apex Court in State of Tamil Nadu & Ors. vs. St. Joseph Teachers Training Institute and Another MANU/SC/0589/ 1991, the role of this Tribunal is only to interpret the Rules, and not to grant relief to parties on humanitarian grounds. The power to do such ultimate justice, and grant relief to a party on compassionate grounds even when it may not be due legally, is vested only with the Honble Apex Court under Article 142 of the Constitution of India.
23. The next issue is as to whether the respondents can recover the excess payments made to the applicants on account of wrong fixation of their pay, even though such wrong fixation of their pay was not on account of any fault or mis-representation, or mischief on the part of these four applicants. The law in this regard also has been well settled recently by the Honble Apex Court in the case of Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417=2012 AIR (SCW) 4742=JT 2012 (7) SC 460. We are, in this context, reminded of two Latin Maxims: dura lex sed lex, meaning the law is hard, but it is the law, and A Verbis Legis Non Est Recedendum meaning that from the words of law, there must be no departure. Therefore, the respondents would be fully within their rights to recover in easy installments the excess amounts disbursed to the applicants on a mistaken interpretation of the Pay Fixation Rules by the concerned Depot Manager.
24. With these observations, these four OAs are rejected, but there shall be no order as to costs.
25. Let a copy of this order be also kept in the case file of each case.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.