Central Administrative Tribunal - Ernakulam
Sunny Thomas vs Union Of India Represented By Its ... on 13 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO.665 OF 2009
Wednesday, this the 13th day of July, 2011
CORAM:
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. Sunny Thomas
Senior Accountant
Office of the Director of Accounts (Postal)
Kerala Circle, Thiruvananthapuram
2. Parameswaran K.V.
Junior Accountant
Office of the Director of Accounts (Postal)
Kerala Circle, Thiruvananthapuram
3. Philip Antony
Senior Accountant
Office of the Director of Accounts (Postal)
GPO Complex, Thiruvananthapuram
4. Varghese Chacko
Senior Accountant
Office of the Director of Accounts (Postal)
Corporation Building, Thiruvananthapuram
5. Christi G Mathai
Senior Accountant
Office of the Director of Accounts (Postal)
GPO Complex, Thiruvananthapuram
6. Bindu Devaki Namboodiri
Senior Accountant
Office of the Director of Accounts (Postal)
GPO Complex, Thiruvananthapuram
7. Sathyabhama Devadasan
Senior Accountant
Office of the Director of Accounts (Postal)
Corporation Building, Thiruvananthapuram ... Applicants
(By Advocate Mr.K.T.Shyam Kumar )
versus
1. Union of India represented by its Secretary
Ministry of Communications
New Delhi - 1
2. The Director General (Posts)
Dak Bhavan, Parliament Street, New Delhi
3. The Deputy Director General (PAF)
Dak Bhavan, Parliament Street
New Delhi ... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC )
The application having been heard on 13.07.2011, the Tribunal
on the same day delivered the following:
O R D E R
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER There are seven applicants. At the time of filing the OA, they were working in Postal Department (Accounts) in Trivandrum. They were originally appointed in places outside Kerala and later were transferred to Kerala on their request. It was a case of unilateral transfer involving a reversion. Annexures A-1 to A-7 are the copies of the transfer orders issued in the case of the applicants. Even though separate orders are issued, it is not necessary to refer to all such orders since the orders issued are almost similar and to the extent to which the terms apply which are relevant for consideration, there is no difference. We will refer to Annexure A-1 dated 27.12.1998 issued in the case of 1st applicant. Which is extracted below:
OFFICE ORDER Consequent on the approval of Postmaster General, MP Circle, Bhopal for inter circle transfer of Shri Sunny Thomas, Senior Account to office of the Deputy Director of Accounts (Postal) Trivandrum under Rule 38 of P & T Manual IV, the said Shri Sunny Thomas, Senior Accountant in the scale of ` 1400-40-1600-50-2300-EB- 60-2600 stands reverted as Junior Accountant in the scale of ` 1200-30-1560-EB-40-2040 with effect from 2nd January 1989 AN."
2. Accepting the above conditions the applicants joined at Trivandrum as Junior Accountants in the scale of ` 1200-2040. Respondents did not protect the scale of pay on placing reliance of the clarifications issued by Ministry of Communications by order No. 12(1)/96-PA-Admn dated 06.09.1996 , a copy of which is produced as Annexure A-8. According to the applicants, subsequently yet another OM was issued by the Ministry of Personnel on 14.02.2006, a copy of which is produced as Annexure A-9. By Annexure A-10 O.M dated 11.01.2007 issued by Ministry of Personnel , it was clarified that the prospective effect given as per para 5 of Annexure A-5 was deleted by Annexure A-10 , as a result though at the time of issuance of Annexure A- 9, it had only prospective effect but by virtue of the subsequent order Annexure A-10 issued, it continued to have application retrospectively. Accordingly, pay of the applicants were revised protecting their pay which they had received prior to their transfer and orders were issued vide Annexure A-11. Thus they have received the monetary benefits pursuant to Annexure A-11. Subsequently, Government had issued an O.M dated 10.07.2009 stating that where a transfer to a lower post is made subject to certain conditions, then the pay may be fixed according to such terms and conditions. It is stated that instructions regarding fixation of pay of the employees transferred to a lower post at their own request under Rule 38 of the P&T Manual Vol. IV is governed by Annexure A-8 produced in this case and Annexure A-9 will have no application. Copy of this O.M is produced as Annexure A-12. According to the applicants, Annexure A-12 is arbitrary, illegal and unsustainable in the eye of law. The statement of law contained in Annexure A-12 that request transfers, under Rule 38 of P & T Manual will be governed by provisions contained in the order dated 06.09.1996, (a copy of which is produced as Annexure A-6 in this case.) according to them, is wrong. It is the further case of the applicants that as per Rule 38 of the P&T Manual, the only condition is that officials transferred will rank junior and they had to forfeit their lien in the unit from which they are transferred and does not speak of pay at all. Subsequently, the applicants were served with an order dated 04.09.2009 issued from the Office of the Director of Accounts (Postal), Trivandrum whereby it was ordered to recover the excess amount paid by way of mistake. Copy of the order issued is produced as Annexure A-15. Impugning Annexures A-8, A-12 and A-15 orders, the applicants have filed this OA and seeks a direction to quash the same. There is also a prayer for a declaration that they are entitled to the benefit of Annexure A-9 and for a further direction to respondents 2 to 5 to continue to grant the benefits which they have enjoyed consequent to Annexure A-11.
3. In the reply statement by the respondents it is averred that the applicants were direct recruit Junior Accountants working in Postal Accounts Offices of various circles were later promoted as Senior Accountants in their parent offices. While working as Senior Accountants, they requested for unilateral transfer under Rule 38 of P & T Manual, Vol.IV by furnishing terms and conditions applicable thereunder. There is no provision under Rules for unilateral transfer in the cadre of Senior Accountants from one Postal Accounts Office to another Postal Accounts Office as per the policy of the Government since the recruitment to the post of Senior Accountants is 100% by promotion from the feeder cadre of Junior Accountant and governed by Recruitment Rules. The applicants while holding the post of Senior Accountants applied for reversion from the post of Senior Accountants to the post of Junior Accountants to avail unilateral transfer at their request. Accordingly, they were reverted to Junior Accountants and transferred to their circles and posted as Junior Accountants. In such a situation, there is no protection of pay drawn in the higher post. The pay regulations is covered by the accepted terms and conditions. The Fundamental Rules providing for regulation of pay does not apply to unilateral transfer. They have also placed reliance on a decision of the Apex Court in Comptroller and Auditor General of India and Others vs.Farid Sattar, AIR SC 2000 SC 1557 and also a decision of the Bangalore Bench of the Tribunal in OA 236/06 dated 31.01.2007, a copy of which is produced as Annexure R-4. It is their contention that the applicants have given individual undertaking to abide by the Office Order dated 01.08.2007, copies of which are produced as Annexure R-3 series. They pray that the application be dismissed.
4. We have heard the arguments of Mr.K.T.Shyam Kumar, the learned counsel for applicant and Mr.Sunil Jacob Jose, the learned SCGSC for the respondents
5. The admitted facts are that the applicants were working in different places outside the Kerala Circle. They were originally holding the post of Junior Accountants and they were promoted to the next higher post of Senior Accountant and they requested for a transfer to Kerala Circle to a lower post, viz., Junior Accountant. . Their request having been acceded to, they were reverted to the post of Junior Accountant and transferred to Kerala Circle. Accordingly, they have joined at Trivandrum Division within the Kerala Circle. It is true that earlier the pay drawn by them as Senior Accountant was protected before they were reverted and promotion orders were issued and they were enjoying the benefits. It was found subsequently that they are not entitled for such pay protection in so far as their cases is not governed by FR 15 (a) read with FR 22 (1) (a)(1) and this is a case of transfer involving reversion under Rule 38 of the P&T Manual. According to the Department Rule 38 of the P & T Manual read with clarification issued vide Annexure A-8 dated 06.09.1996 makes the position very clear that they are not entitled for protection of their pay as drawn by them in the higher grade. According to the applicants Annexure A-8 has since been modified by Annexure A-9, the benefit of which was extended to them subsequently even though at the time Annexure A-9 was issued which was only with prospective effect by Annexure A-10 circular it is given retrospective effect. It is on this basis subsequently they were given protection of pay and arrears by a subsequent order passed in this regard. The present stand taken by the Department that they are governed by Annexure A-8 departmental instructions and their transfer is governed by Rule 38 of the P&T Manual is per se wrong. According to them, transfer is under FR 15 (a) read with FR 22(1) (a) (1).
6. The question as to whether a unilateral transfer of reverting to a lower post will be governed by the ordinary rule of transfer enjoyed by FR 15 (a) read with FR 22 (1)(a)(1) had arisen for consideration before the Hon'ble Apex Court in the case of Comptroller and Auditor General of India & Ors vs. Farid Sattar, AIR 2000 SC 1557. That was a case where mutual transfer was not permissible in the cadre of Senior Accountants and the respondents therein applied for unilateral transfer after seeking a reversion to the lower post of Junior Accountant. In para 5 of the judgment it was held that unilateral transfer is not contemplated under Fundamental Rules, but what contemplated is the transfer on written request under FR
15. But if the transfer is not one contemplated under FR, the provisions are in applicable. Hence protection of pay under FR 22(1)(a)(2) would be applicable where it is an ordinary transfer, not a transfer involving reversion to the lower post and in the later case FR 22(1)(a)(3) is applicable where an employee is transferred to a new post on his own request under sub-rule (a) of Rule 15, and further in such a transfer also no reversion is involved. In such a transfer to a new post if the maximum pay in the time scale of the transferred post is lower than his pay in respect of the old post held regularly, he is required to draw that maximum as his initial pay. In the present case, the terms and conditions provided that the transfer of the respondents would be to a post lower to the post which he was holding prior to his transfer and he was also required to tender technical resignation from the post which he was holding with a view to join the lower post as a direct recruit and was to rank as the junior most employee in the cadre of Accountant. Further he was required to forgo any benefit of passing any departmental examination while working in the higher post. It was after their reversion that they were transferred to Trivandrum Division is beyond dispute. Thus, this is not a case of transfer from one post to a new post but a unilateral transfer involving reversion. Following the decision of the Supreme Court cited supra it has to be held that the applicants are not entitled for for the benefit flowing from the provisions of Rule 15 read with FR 22 (1)(a)(1).
7. A similar case arose for consideration before the Bangalore Bench of the Tribunal where after considering the relevant O.M issued in this behalf, viz., Annexure A-8. Vide Annexure A-9, they accepted the stand taken by the respondents. But we find that after referring to Annexure A-9, the question as to whether there are conditions attached with the order of transfer as in the case considered by the Apex Court was not examined.
8. It is pointed out by the counsel for applicant that except that they have accepted the reversion to a lower post, there was no conditions attached with the order of transfer as in the case considered by the Apex Court. We have already extracted the relevant portion of the order of transfer in the case of the 1st applicant. We find that there was no stipulation in Annexure A-1 regarding the fixation of pay. In such situation, we have to consider whether the applicants are entitled to the benefit of any other rule including Rule 38 of P&T Manual and any other instructions issued by the Department. In this regard heavy reliance is placed by the Department on Rule 38 of the P&T Manual, which is extracted as under :-
38. Transfer at one's own request:
(1) Transfers of officials when desired for their own convenience should not be discouraged if they can be made without injury to the rights of others. However, as a general rule, an official should not be transferred from one unit to another, either within the same Circle, or to another Circle unless he is permanent. As it is not possible to accommodate an official borne in the gradation lists of both the offices, the official brought in should take the place in the new gradation list according to the date of his entry into the grade or the place vacated by the official with whom he exchanges appointment, whichever is the lower.
(2) When an official is transferred at his own request but without arranging for mutual exchanging, he will rank junior in the gradation list of the new unit to all the officials of that unit who on the date on which the transfer is ordered, are either permanent or Quasi-
permanent, irrespective of length of service, and also to those temporary officials borne on that date on the approved list for appointment in the new unit who have been appointed against regular vacancies.
(3) If the old and new unit form parts of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit.
9. As per Clause 2 of Rule 38, when an official is transferred at his own request, without arranging for mutual exchange, he will rank junior in the gradation list of the new unit to all the officials of that unit who on the date on which the transfer is ordered, are either permanent or Quasi- permanent, irrespective of length of service, and also to those temporary officials borne on that date on the approved list for appointment in the new unit who have been appointed against regular vacancies. Though the applicant would contend placing reliance on Clause 2 above that he can be ranked as junior only in the new unit in the same grade, he is estopped for raising such a contention after accepting the transfer following a reversion to a lower grade of Junior Accountant. That it was a unilateral transfer request. After accepting the terms and conditions he joined at Trivandrum Division as Junior Accountant. Thus he cannot be heard to contend that his transfer can only be as juniormost in the same cadre. But the Manual is silent regarding as to how the pay should be fixed when they join in the transferred post as Junior Accountants. The respondents placed reliance on Annexure A-8 whereas the applicant would contend that the same has been modified by Annexure A-9. We may first consider whether Annexure A-9 is in modification of Annexure A-8. Annexure A-8 dated 06.09.1996 issued by Ministry of Communications, Department of Posts, is a clarification issued regarding fixation of pay.
10. It is clarified that their pay has to be fixed in the manner as laid down therein. Annexure A-8, for the purpose of convenience is extracted as under:-
" Sub: Fixation of pay of employees transferred to a lower post at their own request.
Sir, It has come to our notice that some of the PAOs do not specify the mode of fixation of pay of employees transferred to a lower post under Rule-38 of P & T Manual Vol.IV in the terms and conditions prescribed for such cases. It is clarified that their pay is required to be fixed as follows :-
1) On reversion to the lower cadre post, his pay should be fixed at the stage at which he would have drawn had he not been promoted to the higher post
2) Subsequently. on his transfer to the same post his pay should be fixed under FR 22 1 (a) (2) It may be kept in view that he may be reverted to the lower post before his transfer to the new postal Accounts Office. The terms and conditions should also specifically contain the manner of fixation of pay in respect of such employees. "
11. Annexure A-9 is on the other hand issued on 14.02.2006 and no reference is made to Annexure A-8 therein. Therefore, it is not a modification or clarification issued to Annexure A-8 on the same subject. The subject noted in Annexure A-9 is as under :-
Sub:- Fixation of pay in case of employees who seek transfer to a lower post under FR 15(a) - Clarification regarding."
12. In view of the Apex Court decision, FR15 (a) has no application to a case of unilateral transfer. Hence, it has to be held that Annexure A-9 has no application to the present transfer. Therefore, if any benefit is extended to the applicant in terms of Annexure A-9 can only be a mistake of law. But then, by virtue of Annexure A-8, the applicant will be entitled to have his pay fixed at a stage he would have drawn had he not been promoted to the higher post. In other words, the number of years of service rendered in the higher post will be deemed as service rendered in the lower post ignoring promotion and his pay will be accordingly fixed in the lower post of Junior Accountant. Admittedly, this has not been done. Even though as per para 2 of Annexure A-8 , it is provided that his pay should be fixed under FR 22(1)(a)(2). The same is contrary to law as laid down by the Apex Court. Accordingly, we hold that para 2 of Annexure A-8 is contrary to law and hence illegal and arbitrary. We quash para 2 of Annexure A-8. We hold that the applicants case for pay fixation will be governed by Para 1 only. In the circumstances, we direct the respondents to fix the pay of the applicants in terms of para 1 of Annexure A-8 and the excess amount already paid may be adjusted against the amount payable as per such fixation and balance excess amount, if any, shall be recovered in easy instalments as may be decided by the respondents. Till consequential orders are passed, the status quo will be maintained.
13. OA is disposed of as above. No costs.
Dated, the 13th July, 2011.
K GEORGE JOSEPH JUSTICE P.R.RAMAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs