Central Administrative Tribunal - Cuttack
Khitish Chandra Das vs Pr Accountant General (A And E) Orisha ... on 7 February, 2025
1 O.A.No. 260/00285 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00285 of 2022
Reserved on 28.01.2025 Pronounced on 07.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Khitish Chandra Das, aged about 64 years, S/o- Late
Madan Mohan Das, a retired Supervisor from the
office of Accountant General (Audit-I), Odisha,
Bhubaneswar, resident of Vill. Dhumat, P.O.-
Indupur, Nikirai, Dist- Kendrapara, Odisha-754214
at present residing at Flat No. B-1B, Trishna Manor
Apartment, Nuasahi, Nayapalli, Bhubaneswar-12.
......Applicant
VERSUS
Union of India represented through;
1. The Comptroller and Auditor General of India,
Pocket-9, Dindayal Upadhyaya Marg, New Delhi-
110124.
2. The Principal Accountant General (Audit-I), Odisha,
Sachibalaya Marg, Bhubaneswar-751001, Dist-
Khurda, Odisha.
......Respondents
For the applicant : Mr. K.C.Kanungo, Counsel
For the respondents : Mr. S.K.Patra, Counsel
2 O.A.No. 260/00285 of 2022
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
As per the recommendation of the 7th CPC, in the Resolution dated 25.07.2016 (para 11-12-140), it was provided that all officers in organized accounts cadre, who are in Grade Pay (GP) of Rs. 4800/- should be upgraded on completion of four (4) years of regular service to the Grade Pay Rs. 5400/- (PB-2) in Pay Level-9 of the Pay Matrix. Accordingly, Government of India, Ministry of Finance, Department of Expenditure vide Office Memorandum dated 18.06.2018 ordered that the pay scales of the post of Assistant Accounts Officers in Indian Audit and Accounts Department, Indian Civil Accounts Organization and P&T Accounts shall be Level-9 in Pay Matrix on completion of four years of regular service in Grade Pay of Rs. 4800/-. This was made effective w.e.f. 01.01.2016. The CAG of India also issued letter to all concerned in line with the aforesaid OM for grant of GP Rs. 5400/- PB-II, i.e. pay level 9 of pay matrix in case 3 O.A.No. 260/00285 of 2022 of Supervisors in IA & AD with the terms and conditions provided therein. The aforesaid position is not in dispute.
2. The summation and summarization of the case of the applicant are as under:
(i) On 25.05.1981, applicant was appointed as Clerk and in due course was promoted to the post of Auditor and then to Sr. Auditor;
(ii) With effect from 01.01.2014, he was promoted to Supervisor in PB-II (Rs. 93,000-34,800 with GP Rs.
4800/-);
(iii) In the afternoon of 31.12.2017, while continuing in GP Rs. 4800/-, he superannuated from service on reaching the age of retirement;
(iv) By order dated 08.02.2021, 12 Supervisors were granted NFU to Rs. 5400/- upon completion of four years of regular service in GP Rs. 4800/-;
(v) He was not given the NFU to GP of Rs. 5400/-
although, he having been promoted to GP Rs.
4800/- w.e.f. 01.01.2014, had completed four years 4 O.A.No. 260/00285 of 2022 on 31.12.2017, the day he superannuated from service;
(vi) Since, his date of birth is 01.01.1958 and he retired in the afternoon of 31.12.2017 but for all purposes his service subsisted till 01.01.2018 ;
(vii) After coming to know about the grant of NFU on completion of four years in GP Rs. 4800/-, which was also granted to other Supervisors, he submitted representation on 08.03.2022 praying for grant of NFU to GP Rs. 5400/-;
(viii) Since, no action was taken on his representation, he approached this Bench in OA No. 200/2022, which was disposed of on 05.05.2022; directing respondents to consider the representation;
(ix) Respondents considered the representation but rejected the same vide order dated 30.05.2022 stating that to avail the benefit of NFU, an employee is required to be on duty on the due date. Since in terms of Fundamental Rule 17(1) the applicant 5 O.A.No. 260/00285 of 2022 ceased to discharge the duties of Supervisor on 01.01.2018 due to retirement on 31.12.20l7, he was not entitled to the NFU;
(x) It is well settled law that once an employee rendered unblemished service for a definite period, he/she is entitled to annual increment of pay or any other benefit. Since applicant was promoted to the post of Supervisor on 01.01.2014 and completed four years of regular service as on the date of his retirement, in the cadre of Supervisor he is entitled to NFU on 01.01.2018 taking into consideration his unblemished four years service like annual increment;
(xi) The rejection order dated 30.05.2022 is without due application of mind;
(xii) Hence, by filing this OA, he has prayed for a direction to the respondents to grant him NFU in Pay Level-9 with GP Rs. 5400/- w.e.f. 01.01.2016 and to revise 6 O.A.No. 260/00285 of 2022 pension and to pay the arrears by quashing the order of rejection dated 30.05.2022.
3. The gist and kernel of the opposition in the counter filed by the respondents are as under:
(a) The NFU is being granted to the Supervisors, who continued to perform the duty after completion of four years of regular service in the said cadre satisfactorily without any promotion hence stagnated. Thus, it is understandable that NFU ought not to be granted to Supervisor, who ceases to perform the duty on the due date of NFU;
(b) Applicant assumed the charge of Supervisor on promotion on 01.01.2014 (FN) and retired on 31.12.2017 (AN), thus, he was not in service as on the date when the NFU was due to him, i.e. on 01.01.2018;
(c) FR 17(1) provides that an officer shall begin to draw the pay and allowances attached to the post w.e.f. 7 O.A.No. 260/00285 of 2022 the date when he assumes the duty of that post and shall cease to draw as soon as he ceases to discharge those duties. Since the applicant was no more in service as on the date when NFU was due to him, i.e. on 01.01.2018, his request was considered and rejected;
(d) As per Rule 35 (1) of CCS (Pension) Rules, 1972, a govt. servant having date of birth on the 1st day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of retirement. Since the applicant's date of birth is 01.01.1958, he retired on superannuation in the afternoon of 31.12.2017, i.e. the last day of the preceding month, attaining the age of 60 years;
(e) 12 Supervisors were granted NFU after they completed four years of regular service in the cadre and also continued to perform the duties of Supervisor without promotion. 3 Supervisors, out of 12, who were in service at the time of becoming 8 O.A.No. 260/00285 of 2022 eligible for upgradation but retired by the time the order was issued, therefore, NFU was allowed to them;
(f) The applicant is badly misconceived to construe the annual increment of pay as an upgradation or promotion in service.NFU in pay matrix is granted in lieu of promotion and promotion is not granted after cessation from govt. service either on retirement, resignation or death. Thus, the applicant was rightly not granted the NFU;
(g) No promotion or financial upgradation is granted to a govt. servant if it becomes due after date of his retirement or death;
(h) Accordingly, respondents have prayed for dismissal of this OA.
4. Ld. Counsel for the applicant in course of hearing has placed reliance on the decisions of the Hon'ble Apex Court in the case of The Director (Admn. and HR), KPTCL & Ors Vs. C.P.Mundinamani & 9 O.A.No. 260/00285 of 2022 Ors, Civil Appeal No. 2471/2023 (SLP (C) No. 6185/2020) and in the case of UOI & Ors Vs. M.Sidharaj, Special Leave Petition (C) No. 4722/2021 dated 06.09.2024, to state that entitlement of annual increment to the govt. servant who retired from service day prior to date of increment (1st January/1st July of the year) after completing unblemished service came up for consideration in the above case and the Hon'ble Apex Court set the matter at rest by holding that the employee concerned is entitled to annual increment earned on the last day of their service (31st of June and 31 of December of the year) and, therefore, by applying the same principle since the applicant rendered four years unblemished service on 31.12.2017, he would have been given the NFU that falls due on 01.01.2018. Therefore, rejection of the request of the applicant for gnat of NFU is bad in law and is liable to be quashed.
5. Per contra, Ld. Counsel for the respondents by placing reliance on the clarification issued by the DoP&T on NFU has submitted that the decision relied on by the Ld. Counsel for the applicant have no application to the present issue because the annual increment is allowed to an employee after completion of one year's unblemished 10 O.A.No. 260/00285 of 2022 service as a matter of right unless the same is ordered to be withheld as a measure of punishment whereas all promotional norms are to be adhered to and assessment is to be made by the Screening Committee before granting NFU to an employee, thus promotion cannot be given as a matter of right. The Rules for grant of NFU provides that one is entitled to NFU on completion of four (4) years of regular service in the Grade of Rs. 4800/-. According to the applicant since he completed four years of regular service in the afternoon of 31.12.2017 and, therefore, he is entitled to NFU is not correct because as per law he can be treated to have completed four years only on 01.01.2018 but since he ceased to be an employee from the afternoon of 31.12.2017, i.e. before one day of completion of four years for becoming eligible to get NFU to GP Rs. 5400/-, he was rightly not given the NFU. Hence, the Ld. Counsel for the respondents reiterated his stand taken in the counter and has prayed for dismissal of this OA.
6. We have considered the submissions of the respective parties and perused the records. We have examined the case of the applicant 11 O.A.No. 260/00285 of 2022 with reference to the decisions relied on by the learned counsel for the Applicant.
7. We find that the Hon'ble High Court of Madras in W.P. (C) No.13225/2010, M. Subramaniam Vs. Union of India & Ors., which has also been affirmed by the Hon'ble Supreme Court, has clarified as to how four years' regular service is to be counted for the purpose of granting non-functional upgradation to Group-B officer. The relevant portion of the judgment of the Hon'ble High Court of Madras is reproduced below for convenience:
"6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay to Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/- in Pay Band
2. According to the petitioner, he has already reached the pay scale of Rs. 7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four years, he is entitled to the grade pay of Rs. 5400/- with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008- AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the petitioner 12 O.A.No. 260/00285 of 2022 was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised pay-scale of 7500- 12000 (corresponding to grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non- financial upgradation the pre-revised pay-scale of Rs. 8,000- 13,500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the Pre- revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre- revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre- revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non- functional upgradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4-year in the pay scale of Rs. 7,500-12000 (pre- revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government on India, having accepted the recommendations of the 6th pay 13 O.A.No. 260/00285 of 2022 commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to (C-II, item - 31) the Group B Officers in pay Band 2 on non-financial basis after four Group B Officers in pay Band 2 of Rs. 4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
9. Accordingly, the writ petition is allowed setting aside the order of the Tribunal, dated 19.4.2010 passed in O.A. No. 167 of 2009. The respondents are directed to extend the benefit of grade pay of Rs. 5400/- to the petitioner from 1.1.2008 as per the resolution dated 29.8.2010. No costs."
8. Thus, from the above, it is clear that since the applicant got the pay scale in GP Rs. 4800/- on 01.01.2014, therefore, he would be entitled to NFU in GP Rs. 5400/- only on 01.01.2018. But fact remains that he retired from service on attaining the age of superannuation of 60 years on 31.12.2017, i.e. one day before the NFU would have become due to him on 01.01.2018.
9. It is also noteworthy that payment of salary and increment to a central government servant is regulated by the provisions of F.R., CSR and Central Civil Services (Pension) Rules, 1972. Pay defined in 14 O.A.No. 260/00285 of 2022 F.R. 9(21) means the amount drawn monthly by a central government servant and includes the increment. A holistic reading of applicable provisions leaves no ambiguity that annual increment is given to a government servant for the successful service rendered by an employee for previous one year. The increment in case of progressive appointment is specified in Article 151 of the CSR to mean that increment accrues from the date following that on which it is earned. Annual Increment in pay is thus an integral part of progressive appointment and accrues from the day following which it is earned. Further, the Annual Increment is paid to an employee, as rightly pointed out by the Respondents' Counsel, as a matter of right unless otherwise the employees is debarred from getting such Annual Increment by way of any punishment for which the case of an employee is assessed/considered through any DPC/Selection Committee. Therefore, the Hon'ble Apex Court considering all aspects of the matter held that an employee is entitled to Annual increment even if retires one day prior to the said Annual Increment falls due. Whereas in case of grant of financial upgradation under NFU, an employee cannot claim the same as a matter of right 15 O.A.No. 260/00285 of 2022 to get the next GP from 4800/- to Rs. 5400/- merely because he had completed four years regular service. Such entitlement shall be subject to fulfillment of all the norms applicable for promotions and on the recommendation of selection committee. As a normal principle, an employee is entitled to be considered for grant of promotion or NFU by the Screening Committee/DPC, as the case may be, provided the employee concerned is in service on the date the NFU/Promotion falls due. Admittedly, the Applicant ceased to be an employee from the afternoon of 31.12.2017; in other words, he was no more in service on 01.01.2018, i.e. the date on which he would have been treated to have completed four years, as per the decision in the case of M. Subramaniam (supra), the applicant was rightly not granted the NFU, which he is also not entitled to under law.
10. The provisions of NFU are not in challenge in this OA. We are reminded by a few of the decisions of the Hon'ble Apex Court; one of which is in the case of Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, wherein the Hon'ble Supreme Court held that, "It must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be 16 O.A.No. 260/00285 of 2022 found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the, Act purports to remedy and correct."
11. In C.I.T., Madras v. T.Sundram Iyengar (P) Ltd., (1976) 1 SCC 77, the Hon'ble Supreme Court held that, if the language of the statute is clear and unambiguous and if two interpretations are not 17 O.A.No. 260/00285 of 2022 reasonably possible, it would be wrong to discard the plain meaning of the words used, in order to meet a possible injustice.
12. In Ku. Sonia Bhatia v. State of U.P. and others, 1981 (2) SCC 585, the Hon'ble Supreme Court held that a legislature does not waste words, without any intention and every word that is used by the legislature must be given its due import and significance.
13. In Nyadar Singh v. Union of India, AIR 1988 SC 1979, the Hon'ble Apex Court observed that ambiguity need not necessarily be a grammatical ambiguity, but one of the appropriateness of the meaning in a particular context.
14. In Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577, the Hon'ble Supreme Court held that "35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom...".
15. In the case of Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749, Hon'ble Apex Court observed that, "the spirit of the law may well be an elusive and unsafe guide and the supposed spirit can 18 O.A.No. 260/00285 of 2022 certainly not be given effect to in opposition to the plain language of the Sections of the Act."
16. Another important aspects which we would like to put it on record that though the applicant retired from service on 31.12.2017, he rose from slumber after near about five years claiming the NFU w.e.f. 01.01.2018 by making representation for the first time 08.03.2022 i.e. after a lapse of near about five years and the settled principle of law that disposal of representation on the strength of an order of Court cannot revive the period of limitation (Ref. C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115).
17. In view of the discussions made above, the decisions relied on by the Learned Counsel for the Applicant have no application to the present case. Further, since the provision of NFU is clear and unambiguous to the extent that an employee on completion of four years regular service in the grade of Rs. 4800/- will be entitled to be considered by the Screening Committee for grant of next GP Rs. 5400/- and, admittedly, the applicant had ceased to be a govt. servant after his retirement on 31.12.2017 and NFU became due to him on 01.01.2018 as per the decision of the Hon'ble Apex court in 19 O.A.No. 260/00285 of 2022 the case of Subramaniam (supra), this Tribunal cannot interpret the provision and law in a different manner, only because of harsh consequences arising therefrom to the Applicant.
18. In the result, this OA stands dismissed by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS