Central Administrative Tribunal - Hyderabad
M Ravi Shanker vs M/O Information And Broadcasting on 27 February, 2024
OA/128/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/21/128/2016
HYDERABAD, this the 27th day of February, 2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
Hon'ble Shalini Misra, Administrative Member
1. M. Ravi Shanker, S/o. Late M.Vidyasagar, aged 59 years, Upper Division
clerk, All India Radio, Hyderabad
2. N.Bhaskthavatsalam, S/o. Late N.Narasimham, aged 59 years,
Accountant/Assistant, All India Radio, Warangal
3. V.S.H.H.N. Suri Sarma, S/o. Late V. Radhakrishna, aged 55 years, Head
clerk/Assistant Admistrative Division, All India Radio, Saifabad, Hdyerabad.
4. S.Nagarajan, S/o. Late S.Sankarasubbu, aged 55 years, Administrative
officer, All India Radio Saifabad, Hdyerabad.
5. M.Johnchellam, S/o. Late A.Moses, aged 55 years, Head Clerk/Assistant
All India Radio, Saifabad, Hyderabad.
6. T.R.Rekha, W/o. G.Vinod Kumar, aged 54 years, Accountant/Assistant All
India Radio, Saifabad, Hyderabad,
7. A, Mohan Reddy, S/o. A.V.Narayana Reddy, aged 52 years,
Upper Division clerk, Doordarshan Maintenance Centre, Kurnool.
8. Ch. Nagaraju S/o. Ch.Srivasulu, aged 52 years, Administrative officer, All
India Radio, Kadapa.
...Applicants
(By Advocate: Dr. P.B. Vijay Kumar)
Vs.
1. The Union of India, Represented by its Secretary, Ministry of Information
& Broadcasting, Shastri Bhavan, New Delhi-110 001.
2. The Secretary, Ministry of Finance, Department of Expenditure.
Government of India, New Delhi.
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OA/128/2016
3. Prasar Bharati rep., by its Chief Executive Officer, 2nd Floor, P.T.I
Building, Parliament Street, New Delhi-110 001.
4. The Director General, All India Radio, Akashvani Bhavan,
Parliament Street, New Delhi, 110 001.
5. The Director General, Doordarshan, Doordarshan Bhavan, Copernicus
Marg, New Delhi. 110 001.
6. The Pay & Accounts Officer, All India Radio, Mylapore, Chennai-600 004.
7. The Pay & Accounts Officer, Doordarshan, Swami Sivananda Salai,
Chennai-600 005.
8. The Dy. Director General (E), All India Radio, Saifabad, Hyderabad.
9. The Head of Office, Marketing Division, Prasar Bharati, All India Radio,
Hyderabad.
10. The Head of Office, All India Radio, Warangal.
11. The Head of Office, Doordarshan Maintenance Centre, Kurnool.
12. The Head of Office, All India Radio, Kadapa.
...Respondents
(By Advocate: Mrs. K. Rajitha, Sr. CGSC)
----
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OA/128/2016
ORAL ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) By this OA, the applicants sought the following relief:
"..........6015/03/2014BAP dated: 29-10-2015 of the 1st respondent, File NO: Misc: 1/330/2012-PPC dated: 31-12-2015 and F.NO: A-26022/02/2012-S.II dated: 05-01-2016 of the 3rd respondent directing refixation of the pay of the applicants and ordering resultant recovery as illegal, arbitrary, bad in law, violative of Art.14 and 21 of the Constitution of India and consequently by nullifying all the proceedings direct the Respondents to extend the pay and pay band on par with ASSISTANTS in Central Secretariat together with arrears of difference of the emoluments or alternatively waive the recovery due to alleged wrong fixation of pay by the respondents and pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case are that the applicants herein are the Head Clerk/Assistants and other employees as per the recommendations of the 5th Pay Commission, Head Clerk / Accountant / Senior Store Keeper of All India Radio and Doordarshan have been placed in the pay scale of Rs.4500-125- 7000. Subsequently, the pay has been revised to Rs.5000-150-8000 in pursuance of Min. of Information & Broadcasting Order No. 45011/110/97- B(A), dated 6.5.1999. The designation of the post of Head Clerk / Accountant/Senior Store Keeper has been re-designated as ASSISTANT vide Min of 1 & B Order dated 6.5.1999.
b) In compliance to the order passed on 21.1.2004 by Hon'ble CAT, Principle Bench, New Delhi in OA No.469/2003 filed by the Akashvani and Doordarshan Administrative Staff Association and Others, the pay scale of the post of HC/ Assistant in AIR & DD has been revised from the pay scale of Rs.5000-8000 to Rs 5500-9000 w.e.f. 01.01.1996 on the condition that this is Page 3 of 18 OA/128/2016 subject to the SLP filed/being filed in the Court. The Pay scale has been granted on par with ASSISTANTS in Central Secretariat.
c) It is further submitted that as mentioned in the order dated 19.01.2005 "the condition that this is subject to the SLP filed / being filed in the Court" was deleted in view of the dismissal of SLP No.22976-22980/2005 filed by Union of India before the Hon'ble Supreme Court of India on 12.2.2007. Consequently, the HC/ Assistant in AIR & DD would continue to draw the pay scale of Rs.5500-9000 w.e.f. 01.01.1996.
d) In the 6th Pay Commission, the replacement scale for HC/Assistant is Rs. 9300-34800 + GP of Rs.4200/- w.e.f. 01.01.2006 and accordingly the pay fixations were made. Subsequently, on 01.01.2006 in the revised pay structure in respect of HC / Assistant / Steno Grade II working in AIR & DD with reference to 6th CPC recommendations Section II of Part B and as per illustration 4A in accordance with Note 2A below Rule 7 of 6th CPC gazette notification. However, the pay scale will remain same i.e., in PB-2 Rs.9300- 34800 + GP of Rs.4200/- w.e.f. 01.01.2006. Accordingly eligible staff pay fixations have revised.
e) It further submitted that as per the Note 2A below Rule 7 states that where a post has been up-graded as a result of the recommendations of the 6 th CPC the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with clause (A) (i) and (ii) of Rule 7 by multiplying existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of 10. The Grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or Part-C of the Gazette notification will be payable in addition.
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OA/128/2016
f) The post in the pre-revised pay scales of Rs.5000-8000, Rs.5500- 9000; and Rs.6500-10500 should be merged in case it is not feasible to merge the post in these pay scales on functional considerations the posts in the scale of Rs.5000-8000 and Rs.5500- 9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in the Payband PB-2 i.e., to the grade pay of Rs.4600/- corresponding to the pre- revised pay scale of Rs.7450-11500.
g) The pay has to be fixed to the minimum of the upgraded pay scale. Accordingly, the pay of HC/Assistant has been revised and fixed to the minimum of Rs.12090 corresponding to pre-revised scale of Rs.6500-10200. However, the grade pay has been restricted to Rs.4200/- only as per the DG:AIR: New Delhi Letter No.A-26022/2012-SII, dated 03.10.2012.
h) It is further submitted that Prasar Bharati Secretariat vide their letter dated 10.06.2013, the pay fixation done in respect of HC/Assistant / Steno Gr.II stated that there is no provision of bunching in 6 CPC and hence the pay fixations in respect of the above said cadres may be re-checked accordingly and over payment made if any may be recovered from the employees concerned and the same has been conveyed vide DG:DD:New Delhi Lr.No. 22/1/2010-SII A/602 to 608, dated 10.06.2013. However no objection was mentioned regarding fixation of pay to the minimum of Rs.12090 corresponding to pre-revised scale of Rs.6500-10200.
i) Accordingly, the office has forwarded clarification letter to DG:AIR:New Delhi vide their letter of even number dated 08.07.2013, 04.10.2013 and 14.02.2014 regarding fixation of pay done in the pre-revised scale of 6500- 10200. In the said letter, the office has mentioned that if the clarification from the Directorate is not received, there would be a huge Page 5 of 18 OA/128/2016 recovery and the retirement due officials will be put to heavy burden by way of recovery from their retirement benefits. In this crucial situation, Directorate General has not given any reply to the said letter which led to present dues and burdensome problem.
j) After a period of two years, the DG AIR New Delhi vide their letter number A-26022/02/2012-511/1325, dated 11.09.2014, stating that the pay in respect of HC / Assistant has to be done as per Note 2B of Rules 7 and illustration 4B of CCS (RP) Rules 2008. They did not stick to their stand and within a period of 8 days, DG AIR New Delhi vide their letter dated 19.09.2014, for the communication dated 11.09.2014 issued by the Directorate has been kept it in abeyance till further orders. Thus extending the burden of recovery to further period.
k) Prasar Bharati Secretariat letter dated 18.06.2015, the decision of the competent authority that the post of HC / Assistant / Steno Gr.II falling in the pre-revised pay scale of Rs. 4500-7000; and Rs.5000-8000 (subsequently upgraded to Rs.5500-9000) stands upgraded to the pre-revised pay scale of Rs.6500-10500 and as such the pay fixations is to be done under Note 2A of Rule 7 and Part - B of the First Schedule of CCS(RP) Rules 2008 as per illustration 4A given in the explanatory memorandum to the said rules. The pre-revised pay scale as on 01.01.2006 shall be multiplied by a factor of 1.86 and given the benefit of bunching if admissible subject to a minimum of corresponding stage of Rs.6500.
l) The above said order dated 18.06.2015 was kept in abeyance, the PAO, DDK, Guwahati has issued Pension Payment Order to a retired Page 6 of 18 OA/128/2016 Assistant of All India Radio, Guwahati by allowing the method of fixation of pay as per the order dated 18.06.2015.
m) It is submitted that the Prasar Bharati Secretariat Letter No: Misc.- 1/330/2012-PPC, dated 31.12.2015 reiterated the method of fixation of pay of HC/Assistant by deleting the sentence "subject to a minimum of corresponding stage of Rs.6500". Accordingly the office has issued re- fixation orders to the officials concerned.
n) The employees in the OA have not asked for any increase in their pay but the Directorate General itself has issued the order on 03.10.2012 and accordingly the pay fixations were made w.e.f 01.01.2006, arrears were drawn by the eligible officials.
o) Now, after a lapse of three years, Min. of I & B, Prasar Bharati Secretariat and DG: AIR: New Delhi have withdrawn the Order dated 03.10.2012 by which the eligible employees were put in huge financial crisis. If the Competent authority had withdrawn the order at appropriate time i.e., within a short period of six months from the date of issue of the first order dated 03.10.2012 the problem would have not arised. The Pay of Head Clerk/Accountant/ Assistants working in All India Radio may be protected as they have been deprived of the parity given to them on par with ASSISTANTS of Central Secretariat in 5 CPC w.e.f. 01.01.1996. The parity was not maintained in the 6th CPC with that of Assistants of Central Secretariat Services. The Supreme Court has upheld the aspect of parity with that of Assistant of Central Secretariat Services by dismissing the SLP No.22976- 22980/2005 filed by the department. Whereas vide F. No.7/7/2008-CS.I(A), dated 13.01.2014 issued by DOPT clearly stating that the Assistants of Central Secretariat Services have been granted the upgraded Page 7 of 18 OA/128/2016 scale and the fixation of pay is to be done as prescribed in Note 2A below Rule 7 (i) and illustration 4A of CCS (RP) 2008.
p) The Department has failed to extend the already existing parity in the 6 CPC to the Assistants working in All India Radio & Doordarshan which is illegal, arbitrary and violation of the fundamental rights of the constitution. If the parity would have continued the pay scales would have remain same and this pathetic situation of recovery would have not arisen. The injustice meted out to the Assistants working in All India Radio & Doordarshan needs immediate legal relief in terms of pay fixations and pay scale as per the 5 CPC. Feeling aggrieved, the applicants approached this Tribunal.
3. After Notice, respondents have appeared through their counsel and filed reply vehemently opposing the relief on the ground that the matter was subsequently re-examined by DG:AIR in consultation with their Internal Financial Unit (IFU), it was found that there was an error apparent in giving bunching effect, therefore, it was decided to withdraw the pay fixation of Head Clerks, Assistants and Stenographers Grade-II done by applying the multiplication factor of 1.86 at Rs. 6500 as on 01.01.2006 and further giving bunching effect as described in previous paragraph and to recover the overpayment made to these categories of employees and the representations against the said action was again received by DG: AIR and in view of representations from employees associations, DG:AIR referred the matter to Prasar Bharati Secretariat for confirmation of the proposed action vide their I.D. No. A-26022/02/2012-S.II dated 22.05.2013.
4. The issue was examined in Prasar Bharati Secretariat and a reference Page 8 of 18 OA/128/2016 with certain recommendations was made to the Ministry of I&B by the Prasar Bharati Secretariat vide I.D. No. Misc. 1/330/2012--PPC dated 10.02.2014. Ministry of 188 in its turn examined the issue in consultation with the Deptt. of Expenditure and clarified vide their letter No. A-26015/3/2014-BAP dated 20.8.2014 that the pay of Head Clerks, Assistants and Stenographers Grade-II in All India Radio and Doordarshan were to be fixed as per Note 2 (B) of Rule 7 of CCS(RP) rules 2008 as per illustration 4 (B) and also enclosed by the Ministry of I&B along with their clarification dated 20.8.2014.
5. It is submitted that another reference was made by Prasar Bharati Secretariat to the Ministry vide letter No.Misc.1/330/2012-PPC(Pt.) dated 20.10.2014 reiterating that the case of Head Clerks, Assistants and Stenographers Grade-II of All India Radio and Doordarshan, was a case of upgradation of pay scales and as such pay fixation in respect of such employees would need to be considered as per illustration 4 (A) read with clause (A) (i) and (ii) of Rule 7 and further that similar view had been taken by CAT (Ernakulam Bench) in respect of its staff in its order dated 07.03.2013 and also that the CAT (Ernakulam Bench) had also directed that the said decision be considered as a judgment in rem i.e. similarly situated persons be also granted the same benefit in order to avoid multiplicity of litigation. The Ministry of I&B took up matter with the Department of Expenditure again. The Department of Expenditure in their I.D. Note dated 19.2.2015 advised as follows:-
"The provision of the Rule 7, read with Note 2A and 28 below this are quite clear. The same may be invoked based on the facts of this case and the provision of the CCS (RP) Rules, 2008. But it may be ensured that fixation of pay in the applicable pay band will be done by multiplying the Page 9 of 18 OA/128/2016 existing basic pay (pay drawn in the pre-revised pay scale) as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of 10 and thereafter the applicable grade pay will be payable."
6. That the Department of Expenditure vide order dated 28.7.2015 addressed to the Ministry of I&B with copy to Prasar Bharati Secretariat informed that the instructions issued by Prasar Bharati Secretariat vide its order dated 18.6.2015 were not in conformity with CCS(RP) Rules 2008. According to the Department of Expenditure:
"As per Rule 7 of the CCS (PP) Rules, 2008, where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule, the pay in the pay band will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. To ease the complexity of multiplication and rounding off, this Department had issued Fitment Tables for various pre-revised pay scales. In the case of posts which have been upgraded as a result of the recommendations of the Sixth CPC, the fitment tables of the pre-revised scale of pay in which the officer has drawn his pay as on 1.1.2006 has to be used for arriving the pay in the Pay Band and thereafter the Grade Pay corresponding to the upgrades pay as indicated in Column 6 of Part B or C will be payable."
7. In view of the above instructions issued by Prasar Bharati Secretariat to give the minimum of the corresponding stage of Rs.6500/- in the pre-revised scale of pay of Rs.6500-10500/- was wrong and needed to be rectified immediately.
8. The Department of Expenditure OM No. FTS154226/2015//E-III(A) dated 28.7.2015, Instructions were issued to the DGAIR among others, to put on hold the Prasar Bharati Secretariat's Order No.Misc 1/330/PPC dated 18.6.2015 regarding fixation of pay of Head Clerks, Assistants and Page 10 of 18 OA/128/2016 Stenographers Grade-II. But the Ministry of I&B advised Prasar Bharati to implement the directions given by the Ministry of Finance, Department of Expenditure vide its OM No. FTS154226/2015/E-III(A) dated 28.7.2015. Consequently, revised instructions were issued to the DGAIR by the Prasar Bharati Secretariat vide letter dated 31.12.2015 to fix the pay of Head Clerks, Assistants and Stenographers Grade-II working in AIR and Doordarshan as per CCS (RP) Rules, 2008. Based on Prasar Bharati Secretariat letter dated 31.12.2015, further instructions were issued by the DGATR vide letter No. 26022/02/2012 S.II dated 05.01.2016 to all offices of AIR and Doordarshan.
9. It is submitted that a similar OA.1854/2014 was filed by Sh.P.Chandra Sekhar, Stenographer Grade-II in the Principal Bench, CAT, New Delhi. He aggrieved by the pay fixation order dated 12.4.2014 and corrigendum dated 21/22.4.2014 accordingly he prayed the Hon'ble Tribunal that his pay has been wrongly fixed at a level lower than what should have been fixed according to pay fixation rules. He challenged the order dated 11.2.2014 which is a letter addressed to DDO, AIR, New Delhi by the PAO, AIR, New Delhi, pointing out that the pay of Head Clerk / UDCs / Stenos / Accountants drawing pay scale of Rs.5500-9000 has wrongly been upgraded in the pay scale of Rs.6500-10500 after giving the benefit of bunching, as there is no provision of bunching in the 6th CPC. The said letter also enclosed an example as to how the pay is to be fixed in cases where the pre-revised pay scales have been merged, pay fixation will not be done after multiplication by a factor of 1.96 the existing basic pay as on 1.1.2006 and not Rs.6500/-. The Applicant also challenged the letter of Prasar Bharati to DG, Doordarshan, Page 11 of 18 OA/128/2016 Mandi House, New Delhi on the subject of 'wrong fixation of pay recovery thereof, which again clarifies that 6th CPC does not have any provision of bunching and therefore the pay of those personnel who were drawing pre- revised pay scale of Rs.5000-8000 and 5500-9000 has wrongly been upgraded in the pay scale of 6500-10500/- after giving the benefit of bunching.
It is submitted that in another OA/24/2016 filed by ADSA & Ors (AIR & DD Stenographers Association) at CAT Patna Bench, where the identical issue of fixation of pay was raised the CAT Patna Bench in its order dated 9.9.2016 has held that Respondents have correctly revised the pay of the Applicants in terms of Note 2 A of Rule 7 of the CCS (RP) Rules illustration 4 A.
10. Accordingly, Hon'ble Principal Bench dismissed the OA.1854/2016 and passed an order dated 1.6.2016 (Annexure-IV), the abstract of the order as follows:-
"the pay of Government servant has to be fixed as per the recommendations of the 6th CPC strictly according to the CCS (Revised Pay) Rules, 2008 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be multiplied by a factor of 86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade. This is exactly what the Respondents have clarified in their affidavit filed on 18.1.2016 and also placed before us an office Memorandum dated 28.7.2015 (Annexure-V) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimum of the corresponding stage of Rs.6500/- of the pre- revised scale of pay of Rs.6500-10500/-.
Therefore, there is no inconsistency or error in the impugned orders dated 12.4.2014 and 22.4.2014 and these are issued as per the instructions of the Government of India contained in CCS (Revised Pay) Rules, 2008".Page 12 of 18
OA/128/2016 Learned counsel for the respondents further prayed for dismissal of the OA.
11. In a similar facts, coordinate Bench of this Tribunal at Chennai decided a matter vide OA/494/2020 on 16/08/2022 and the same is squarely applicable to this case. It is appropriate to re-produce the relevant paras, as under:-
"4. Respondents in support of their submission in the matter of refixation as well as recovery, the respondents have relied upon the following judgments :
i. In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 it is held that : -
"15. We are not convinced that this Court in various judgments referred to herein before has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations.
Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."
ii. In the Principal Bench OA 1857 of 2014, wherein one of the similarly situated employee Mr. P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been taken that wrong fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have Page 13 of 18 OA/128/2016 gone into the interpretation of illustration 4A in accordance with note 2A below Rule 7 of 6th CPC gazette notification. The relevant paras are reproduced as under:-
"2. According to the applicant, as per Section II of Part B of the Gazette Notification, notifying the CCS (Revised Pay) Rules, 2008, revised pay scale of `6500-10500 has been recommended for Stenographer Grade II in PB-2 + Grade Pay of `4200/-. It is also stated that the Government has provided the procedure for initial pay fixation as on 01.01.2006 in Note 2A below Rule 7 of the Notification, which is reproduced below:-
"Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these Rules."
3. It is further stated in Rule 7 (1) (A) (i) & (ii), which reads as follows:-
"(A) in the case of all employees:-
(i) the pay in the 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 rounding off the resultant figure to the next multiple of 10.
(ii) 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."
4. In paragraph 4 (i) of the O.A., the applicant has stated that the Government, vide their Notification, has recommended the benefit of one 4 increment after bunching for every two stages so bunched. In fact, the applicant has also purportedly quoted the abstract of the Report as follows:-
"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."
5. First of all, what is contained in the Report is not important but the Notification of Government of India, based on the Report, is to be followed. Secondly, at Annexure A-4, the applicant has enclosed paragraphs 3.1.13 and 3.1.14, perhaps of the Report of 6th Central Pay Commission, which does not Page 14 of 18 OA/128/2016 mention anything about bunching and as pointed out by the respondents in the impugned order, there is no provision for bunching in the Report. In fact, at Annexure A-10, the applicant has annexed a clarification from Ministry of Finance, Department of Expenditure issued on 14.12.2009, in which the first point raised and the clarification given thereto read as follows:-
Point raised Clarification
(a) The manner in which The pay in the pay band of
pay of Assistants/ Pas in Assistants/Pas working as
position on 1.1.2006 is to on 1.1.2006 will be fixed
be fixed as per the with reference to the
provisions of CCS (RP) fitment table of the
Rules, 2008. Whether prerevised pay scale of
there will be any bunching Rs.5500-9000 annexed with
in this case. this Department's O.M.
No.1/1/2008-IC dated 30th
August, 2008 and they will
be granted the grade pay of
Rs.4600. Since the
minimum pay in the pay 5
band in the revised pay
structure corresponding to
the stage of Rs.5500 (pre-
revised) scale of Rs.5500-
9000) is more than the
minimum of the pay band
PB-2 i.e., Rs.9300, no
benefit of bunching is
admissible in this case.
Therefore, from the above, it is clear that there is no provision of bunching while fixing the pay as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that was an error, which is rightly rectified by the respondents.
6. The pay of the Government servant has to be fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay) Rules, 2008 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre- revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade. This is exactly what the respondents have clarified in their affidavit filed on 18.01.2016 and also placed before us an Office Memorandum dated 28.07.2015 (Annexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimum of the corresponding stage of `6500/- of the pre-revised scale of pay of `6500- 10500.
We are, therefore, clear in our opinion that there is no inconsistency or error in the impugned orders dated 12.04.2014 and 21/22.04.2014 and 6 these are issued as per the instructions of the Government of India contained in CCS (Revised Pay) Rules, 2008.
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OA/128/2016
7. The O.A. is, therefore, completely misplaced and on an absolute misunderstanding of the Rules/instructions. It is accordingly dismissed. Respondents are at liberty to recover any excess amount paid to the applicant. No costs. "
iii. The Patna Bench of this Tribunal, in a similar context in OA 24 of 2016, reiterated the same ratio and dismissed the said OA. iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking a similar relief as under :-
"......The applicant would say that even at the time of erroneous fixation in 2012, he was a Group-B (Non-Gazetted) officer and with effect from 2017, he became a Group-B(Gazetted) officer. The applicant would claim that since erroneous fixation is with effect from 1.1.2006 and the excess has been paid for more than 5 years, as per the White Washer judgment, this cannot be recovered from him. As already seen, the wrong fixation was done on 13.12.2012 and this was corrected on 23.2.2016. Therefore, it cannot be said that he was drawing this excess pay for more than 5 years since it had been modified within four years of the original wrong fixation. Further, the Annexure-A13 which was issued in February 2016 was not challenged by the applicant at all. This leads to the suspicion that the refixation was done correctly and that prima-facie the applicant had no objection to it. We fail to understand as to how the respondents did not take any action to recover whatever the excess that had been paid to him between 2012 and 2016. It is possible that being an Accountant in the same office, the applicant could have had juncture in the nonrecovery also. Be that as it may, it is clear that he is clearly not eligible for nonrecovery based on the White Washer judgment. His other contentions relating to the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3rd MACP etc., do not deserve any consideration since the concerned instructions are not relevant in his case. His citing the case of one more person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply statement wherein they had shown that Sri Sadashiva was actually drawing the Basic Pay of Rs.7250 as on 1.1.2006 while the applicant was drawing Rs.5675 on the same date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed. No costs. "
5. To counter the reply filed by the respondents, the applicant has filed rejoinder and submitted that the refixation which is carried out in the year 2012 is correct. Therefore, further refixation and recovery is contrary to the guidelines given by the Hon'ble Supreme Court in Rafiq Masih as well as DoPT OM dt. 02.03.2016. "
xxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxx "11. Learned senior counsel for respondents, Mr. Su. Srinivasan, SCGSC has rightly pointed out that OM dt. 28.07.2015 issued by the Ministry of Finance, Department of Expenditure and also he has rightly pointed out that the observations of the Hon'ble Supreme Court in the matter of Chandi Prasad Uniyal in paras 15, 16 and 17 as quoted above. In view of this, the impugned order which is passed by the respondents considering all the Page 16 of 18 OA/128/2016 guidelines issued by the Hon'ble Supreme Court as well as the OM issued by the DoPT, the respondents have justified in passing the said order of rejection. It is to be noted that the learned counsel for applicant has agitated before this Court that no show cause has been issued while issuing the recovery order and that is issued moreover, after the five years and when the proposal has been forwarded by the HoD to the competent authority and the same has not been placed before the Department of Expenditure. It is to be noted that a bare perusal from the record, as the applicant has submitted representations to the respondents, it is clear that the said actions related to the refixation initiated by the Department as well as corrections of pay is well within the knowledge of the applicant. As rightly noted above that after the recommendation of 6th CPC when first time in the year 2008, the applicant's pay has been fixed as per the illustration 4A in accordance with Note 2A below Rule 7 of 6th CPC gazette notification, the same has been accepted by the applicant and he has not raised any objection stating therein that his pay has been fixed wrongly. When again, the pay has been refixed in the year 2012, the applicant has accepted the same knowing fully well that it is not as per illustration 4A in accordance with Note 2A below Rule 7 of 6th CPC gazette notification. The applicant is a degree holder working as Stenographer Grade I in the office of AIR since 2015. The applicant has raised an objection and made representation before the authorities in the year 2016. The applicant cannot be said to be innocent. Since he is making repeated representations, it cannot be said that there is no show cause. The said recovery has been effected within the three and half year from 2012 to 2016. It is to be noted that the applicant has neither challenged his first pay fixation carried out in the year 2008 nor in the year 2016. Also, the reliance is placed by the applicant in the matter of K. Kannan who had retired and the recovery had been effected from his retiral benefits ie., DCRG. Looking to the extreme hardship, this Tribunal, while passing the order dt. 15.07.2016 had set aside the recovery. The applicant is still working and since from 2016, the applicant has agitated his claim before the authorities though the same has been rejected. When this matter has been filed aggrieved by the said impugned order, the applicant is having three more years of service from that date. Hence, no hardship is going to be caused to the applicant as well as respondents have rightly considered that the case of the applicant is not fit to for waiver. In view of the aforesaid facts, the orders passed by the co-ordinate Benches of this Tribunal as well as the observations made in the judgment of Chandi Prasad Uniyal by the Hon'ble Supreme Court in addition to the observations made in the matter of Rafiq Masih as well as Thomas Daniel and Ministry of Finance, Department of Expenditure OMs, the respondents are justified and have rightly passed the order of refixation and recovery. In view of this, the applicant's case does not fall under the criteria of Rafiq Masih and K.Kannan as well as DoPT OM dt. 02.03.2016. Hence, in my considered view, the OA deserves to be dismissed. No order as to costs.„ Page 17 of 18 OA/128/2016
12. In view of the above discussion, this Tribunal finds that the case of the applicants are squarely covered by the above order and as such, they are not entitled for relief and the OA is accordingly dismissed. No order as to costs.
(SHALINI MISRA) (DR. LATA BASWARAJ PATNE)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
/al/
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