Central Administrative Tribunal - Bangalore
V Narayanaswamy vs Intelligence Bureau on 28 March, 2024
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OA.No.54/2023/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0054/2023
ORDER RESERVED ON: 23.02.2024
DATE OF ORDER: 28.03.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sri.V.Narayanaswamy, 60 years,
S/o Sri.Venkataswamy,
Assistant Central Intelligence Officer (Retired)
Office of Subsidiary Intelligence Bureau (MHA),
Government of India,
11th Floor, CGO Building,
Sir. Visvesvaraya Kendriya Bhavan,
Domlur, Bengaluru: 560 071.
Residing at No: 39, Chinnakote Village,
S.G.Kote Post, Bangarpet Taluk,
Kolar District: 563 114. ....Applicant
(By Advocate Shri P.A. Kulkarni)
Vs.
1. Union of India
By its Secretary,
Intelligence Bureau,
Ministry of Home Affairs,
North Block,
New Delhi: 110 001.
2. Pay and Accounts Officer (IB)
Central Pension Accounting Office,
Trikoot-11,
Bhikaji Cama Place,
New Delhi: 110 066.
3. Joint Deputy Director,
Subsidiary Intelligence Bureau (MHA),
Government of India,
11th Floor, CGO Building,
Sir. Visvesvaraya Kendriya Bhavan,
Domlur, Bengaluru: 560 071.
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OA.No.54/2023/CAT/Bangalore Bench
4. Secretary, Ministry of Finance
Department of Expenditure
Room No. 76
New Delhi: 110001. ....Respondents
(By Shri H.R. Sreedhara, Addl. Central Government Standing Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To direct the Respondents to release the arrears due in terms of the revised pay structure as provided under CCS (RP) Rules 2016 and in terms of the paragraph 6 of the Government's Resolution bearing GIM F No. 1-2/2016-IC dated 25.07.2016 (Annexure-A9) along with admissible interest.
b) To direct the Respondents to return the recovered amount of Rs.
4,12,413/- from the applicant's DCRG amount after holding that such recovery in case of the applicant is inadmissible.
c) To direct the respondents to restore the applicant's last pay of Rs.
58,600/- which he was getting as on superannuation date of 31.07.2022 and to cause re-working of his pension and pensionary benefits on the basis of last pay as Rs. 58,600/-.
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d) Pass any other order or direction that this Tribunal may deem fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) Applicant initially joined Karnataka Government service as Police Constable on 10.09.1990. While working as Police Constable (PC 671) in First battalion KSRP Bengaluru, he was sent on deputation to Subsidiary Intelligence Bureau of the Ministry of Home Affairs of Govt. of India for a period of five years. He joined at SIB office Bengaluru on 04.10.2001.
b) After completion of the 5 years deputation period, the applicant came to be absorbed on transfer of service basis in the IB of Government of India service w.e.f 04.10.2006 as a Security Assistant/Executive. After his absorption, he came to be promoted as 'Junior Intelligence Officer-II' in the year 2007 and 'Jr. Intelligence Officer-I' in the year 2010. He came to be promoted as 'Assistant Central Intelligence Officer/Gr-II (General)' vide office order dated 31.03.2016 w.e.f. 1.4.2016. He retired from Government Service on attaining superannuation on the afternoon of 31.07.2022.
c) The controlling authority at Bengaluru on 22.06.2022 forwarded applicant's pension papers to the Sr. Accounts Officer (Pension), Pay & Accounts Office, Intelligence Bureau (MHA) 4th Floor, AGCR 4 OA.No.54/2023/CAT/Bangalore Bench Building New Delhi. Applicant received a communication from his controlling authority at Bengaluru on 22.08.2022 asking him to revise the option tendered earlier on the basis of the circumstances explained in paragraphs 3 and 4 of this communication. Copy of this communication is produced as Annexure-A4.
d) Subsequent to the CCS (RP) Rules 2016, the applicant, while getting his pay fixation under Rule 7 of CCS (RP) Rules 2016, had tendered his option to get his pay revised after getting the next increment due on 01.07.2016, as per the scope available under Rule 5 of the said Rules. After his superannuation, on the basis of the last pay drawn, the Pension papers came to be submitted on 22.06.2022 indicating his last pay drawn as Rs. 58,600/-. Vide letter dated 22.08.2022, the applicant was informed that pay fixation done in his case as per 7th CPC is not in order as per IB New Delhi Headquarters memo dated 29.01.2021.
e) Revised option form was obtained from this applicant by the Controlling Authority at Bengaluru and Pension papers came to be resubmitted on 15.09.2022. Copies of the revised option form and the pension papers forwarded once again under the communication dated 15.09.2022 are produced as Annexures-A6 & A7 respectively. Revision of the pension under communication dated 15.09.2022 was made on the basis of the reduced last pay drawn at Rs.53,600/ - as against the actual last pay of Rs. 58,600/ - drawn by the applicant as on the date of his retirement. Applicant's grievance is directed against this action of the authority in particular against the unilateral recovery 5 OA.No.54/2023/CAT/Bangalore Bench of Rs. 4,12,413/- (classified as 'over payment of pay and allowances including leave salary') from his terminal benefits.
f) Under paragraph 6 of the Government resolution dated 25.07.2016, it is stated that "the Commission's recommendations and Government's decision thereon with regard to revised pay structure for civilian employees of the Central Government and personnel of All India Services as specified at Annexure-I and the consequent pay fixation therein as specified at Annexure-II shall be effective from the 1st day of January 2016. The arrears on this account shall be paid during the financial year 2016-17". The arrears accumulated in this regard are not paid to this applicant so far. On the other hand, unilaterally as stated above, a sum of Rs. 4,12,413/- is recovered from the gratuity amount payable to this applicant without caring to make payment of arrears in terms of the Government resolution stated above so far.
g) As per Rule 10 of Revised Pay Rules 2016, referred to above, which deals with date of next increment in revised pay structure, it is stated that there shall be two dates for grant of increment namely, 1st January and 1st July of every year instead of existing date of 1st July. Proviso to 10(1) states that an employee shall be entitled to only one annual increment either on 1st January or 1st July depending upon date of his appointment, promotion or grant of financial up gradation. Rule 10 (2) states that an employee promoted during the period between the 2nd day of January and 1st day of July (both inclusive) shall be granted his increment on 1st day of January and the increment in respect of an 6 OA.No.54/2023/CAT/Bangalore Bench employee appointed or promoted or granted financial up gradation including up gradation under MACPs during the period between 2nd day of July and 1st day of January (both inclusive) shall be granted on 1st day of July.
h) As per Rule 5 of the CCS (Revised Pay) Rules 2016, it is stated as follows:
"Rule 5: Drawal of pay in the revised pay structure- Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure:
Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be.
Explanation 1.- The option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band and Grade Pay or scale.
Explanation 2.- The aforesaid option shall not be admissible to any person appointed to a post for the first time in Government service 7 OA.No.54/2023/CAT/Bangalore Bench or by transfer from another post on or after the 1st day of January, 2016, and he shall be allowed pay only in the revised pay structure.
Explanation 3.- Where a Government servant exercises the option under the provisos to this rule to retain the existing pay structure of a post held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that pay structure under Fundamental Rule 22, or under any other rule or order applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing pay structure in respect of the permanent post on which he holds a lien or would have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher"
i) Prior to implementation of 6th CPC report, the pay fixation on promotion was governed by provisions of FR 22 (I) (a) (1). In 6th CPC context, the first part of FR 22 (I) (a) (1) was replaced by Rule 13 of CCS (Revised Pay) Rules 2008. Similarly, consequent on implementation of CCS (RP) Rules 2016 in 7th CPC context, the pay fixation on promotion is regulated by the provisions of Rule 13 of CCS (RP) Rules 2016. DOPT OM dated 27.07.2017 deals with availability of option for fixation of pay on promotion from the date of next increment (DNI) in the lower post and method of fixation of pay from DNI, if opted for, in context of CCS (RP) Rules 2016. A copy of the same is produced as Annexure-A10.
j) Respondents are in error in fixing his pension on the basis of the pension papers submitted on 15.09.2022 and consequential recovery of 8 OA.No.54/2023/CAT/Bangalore Bench a sum of Rs. 4,12,413/- effected as stated above. Applicant's case is that his pension ought to have been fixed on the basis of the pension papers initially submitted on 22.06.2022 (Annexure-A3).
k) The applicant's last pay drawn as on the date of his retirement was reduced to Rs. 53,600/- from 58,600/- which was his actual pay as on the last date of his retirement. The administration is not empowered to reduce the last pay drawn from Rs. 58600/- to Rs. 53600/- on unilateral basis.
l) The applicant being a Group 'C' employee, recovery of sum of Rs.
4,12,413/- from his gratuity classifying the same as over payment of pay and allowances including leave salary is inadmissible in terms of DOPT OM dated 02.03.2016 (Annexure-A12) read with DOPT latest OM dated 03.10.2022 (Annexure-A13).
m) Applicant's primary submission is that there is no enrichment on his side either by misrepresentation or playing fraud on the administration in getting these claims initially. In other words, it is his humble submission that administration is primarily responsible for its action and applicant is not supposed to suffer in any manner.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The Government of India has implemented the CCS (Revised Pay) Rules, 2016 and revised the pay scales of the Government Servants 9 OA.No.54/2023/CAT/Bangalore Bench from 01.01.2016. Government servants have been allowed the option to switch to the new pay as mentioned below:-
i) Revision of pay with effect from 1st January, 2016.
ii) Option to continue on pay Band and Grade Pay of their substantive/officiating post until their date of next increment / the date of subsequent increment raising their pay / the date of vacate or cease to draw pay in the existing pay structure / the date of promotion or financial up gradation and Revision of pay with effect from the aforesaid dates.
b) The applicant during August, 2016, on implementation of CCS (Revised Pay) Rules, 2016, opted for fixation of his pay in the revised scale after getting his next increment on 01.07.2016 (Annexure - R1).
Accordingly, his pay was fixed at Rs. 49,000/- at Level 7 vide SIB Bengaluru order dated 24.08.2016 (Annexure - R 2). The applicant was holding the post of JIO I/G as on 01.01.2016 (drawing pay of Rs. 13190/- + Grade Pay of Rs.2800/-) and promoted to the rank of ACIO II/G w.e.f., 01.04.2016. As such, his pay was notionally fixed at Rs.14170/- + 4600 GP as on 01.07.2016 and subsequently revised to Rs. 49,000/- as on 1.7.2016 as per CCS (Revised Pay) Rules, 2016.
c) This pay fixation was initially reviewed/audited by the Accounts Officer, PAO during 2017. As such, the applicant subsequently drew his pay as given below:
Date Pay
1.7.2017 50,500/-
1.7.2018 52,000/-
1.7.2019 53,600/-
1.7.2020 55,200/-
1.7.2021 56,900/-
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1.7.2022 58,600/-
d) The applicant stood retired from Government service on
superannuation on 31.07.2022. His pension calculation sheet along with nomination papers were forwarded to Pay & Accounts Office (IB), Ministry of Home Affairs for sanction of pensionary benefits vide SIB Bengaluru letter dated 22.06.2022 on the basis of his last pay drawn at Rs.58,600/-.
e) The PAO (IB) returned the pension papers with the observation that "Pay fixation of the official as per 7th CPC statement is not in order". Accordingly, his pay fixation was re-examined which revealed that subsequent clarification on the subject issued by Ministry of Finance vide ID No.3-10/2018-E/IIIA dated 14.09.2020 and circulated by the department i.e. IB vide memo dated 29.01.2021 stating "the officers who were granted promotion/financial upgradation during the period of 1.1.2016 to 30.6.2016 will have the option to switch over to the 7th CPC either w.e.f., 1.1.2016 or from the date of such promotion/financial upgradation, however, the applicant cannot exercise option to switch over to 7th CPC w.e.f., the date of accrual of next increment i.e. 1.7.2016" is applicable/relevant to the applicant.
f) Thus SIB Bengaluru (Respondent 3) conveyed to the applicant the extant provisions and the circumstances under which the office was constrained to seek his option to revise his pay and vide letter dated 22.08.2022 requested him to furnish his revised option. The applicant opted to switch over to the 7th CPC w.e.f. 01.01.2016 and opted for 11 OA.No.54/2023/CAT/Bangalore Bench pay fixation in the rank of ACIO II/G with effect from his date of promotion on 01.04.2016.
g) Accordingly, his pay was revised vide SIB Bengaluru order dated 26.08.2022 as given below:
Date Pay
1.1.2016 41,600 (Level 5)
1.4.2016 44,900/- (Level 7, on promotion
to the rank of ACIO II/G)
1.1.2017 46,200/-
1.1.2018 47,600/-
1.1.2019 49,000/-
1.1.2020 50,500/-
1.1.2021 52,000/-
1.1.2022 53,600/-
h) Due to revision of pay as per rules, the over payment of Rs. 4,12,413/-
for the period 01.01.2016 to 31.07.2022 paid to the applicant was recovered from his gratuity as per the undertaking given by the applicant.
i) The records available with this office reveal that the arrears due on account of revised pay structure has been drawn and paid to him with reference to the option exercised by the applicant on the subject (Annexure - R3).
j) The recovery of the said amount of Rs. 4,12,413/- is a consequential result of implementation of extant clarification on Rule (5) of CCS(RP) Rules 2016 issued by Ministry of Finance vide ID No. 3-10/2018-EIIIA dated 14.09.2020.
k) During exercising the option for pay fixation dated 22.08.2016 done earlier, the officer had also signed an undertaking that in the event of 12 OA.No.54/2023/CAT/Bangalore Bench his pay having been fixed in a manner contrary to the provisions contained in the said rules, any excess payment so made shall be refunded by him to the Government either by adjustment against future payments due to him or otherwise.
l) In view of the above facts and circumstances of the case, it is stated that the applicant is not eligible for any reliefs claimed in the above application and no case has been made out by the applicant in support of his case. All other averments, which are not specifically traversed or admitted, hitherto, are hereby denied and the applicant is put to strict proof of the same.
m) The applicant was drawing inaccurate pay. The Ministry of Finance clarification dated 14.09.2020 was applicable, but not implemented in the applicant's case due to non-receipt of revised option as per the clarification. On observation of Pay and Accounting Officer, his case was re-examined and revised option was sought in view of extant rules, which led to rectification of his pay and consequent recovery of sum of Rs. 4,12,413/- from the gratuity amount. All the action taken by the Respondent No. 3 are as per the extant rules/clarifications issued by Ministry of Finance.
n) The pay of the applicant was revised only after receipt of revised option dated 22.08.2022 from the applicant vide SIB Bengaluru order dated 26.08.2022. The recovery of the said amount is a consequential result of implementation of extant. clarification on Rule (5) of CCS(RP) Rules 2016 issued by Ministry of Finance vide ID No.3-10/2018- 13 OA.No.54/2023/CAT/Bangalore Bench E/IIIA dated 14.09.2020 as cited above and subsequent due and drawn statement for the period 01.01.2016 to 31.07.2022 prepared in pursuance of SIB Bengaluru order dated 26.08.2022.
o) Ministry of Finance vide ID No.3-10/2018-E/IIIA dated-14.09.2020 (circulated vide IB vide memo dated 29.01.2021) clarified on Rule (5) of CCS (RP) Rules 2016 that the officers who were granted promotion/financial upgradation during the period of 01.01.2016 to 30.06.2016 will have the option to switch over to revised pay structure under 7th CPC either w.e.f., 01.01.2016 or from the date of such promotion/financial upgradation, however, they cannot exercise option to switch over to 7th CPC w.e.f., the date of accrual of next increment. As the applicant had opted to switch over to revised pay structure w.e.f., date of next increment i.e., 01.07.2016 which is not applicable in view of above-mentioned clarification, hence, the respondent had to seek revised option. The DoP&T OM dated 27.07.2017 mentioned by the applicant is relevant while opting for pay fixation on promotion i.e., from date of next increment or date of promotion. The said OM is not relevant while opting to switch over to the revised pay structure under 7th CPC which is guided by CCS (RP) Rules 2016 and further clarification by Ministry of Finance.
p) The applicant may prefer an application seeking waiver/refund of Rs.4,12,413/- recovered from gratuity to the prescribed authority as per the DoPT OM dated 06.02.2014, 02.03.2016 and 03.10.2022 cited by him in his application to enable the Respondents to further examine the 14 OA.No.54/2023/CAT/Bangalore Bench same in consultation with appropriate ministries/departments including the Ministry of Finance.
q) The applicant has no right to claim to fix his pay at Rs. 58, 600/- on the date of retirement. Further, agreeing to of his claim may lead to multiple claims from other government servants to increase their pay contrary to the extant rules. The applicant's pay was refixed in pursuance of the subsequent clarification on the subject by the Ministry of Finance. The applicant had submitted an undertaking that in the event of his pay having been fixed in a manner contrary to the provisions contained in the said rules, any excess payment so made shall be refunded by him to the Government either by adjustment against future payments due to him or otherwise. The action is a consequential follow up to the observation made by the Accounting Officer of this department and as per the provision of the relevant rules on the subject. Since re-fixation and recovery of the excess payment is within the provision of the relevant rule on the subject, the applicant is not entitled to any relief.
r) If the applicant reconciles to seek refund of the amount recovered from gratuity under question, without insisting on restoration of pay drawn earlier prior to the refixation, this Tribunal may kindly allow the department to consider/examine the case in consultation with Ministry of Finance which is the Competent Authority in the case.
4. Heard learned counsel for the parties and perused the pleadings made by them.
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5. In the present case, the applicant is seeking refund of the amount of Rs.
4,12,413/- recovered from his DCRG amount, subsequent to revision of his pay fixation w.e.f., 01.01.2016, consequent to revision of pay under the CCS (RP) Rules, 2016.
6. The applicant is also seeking release of the arrears due to him in terms of the revised pay structure as provided under the CCS (RP) Rules, 2016 in terms of the paragraph 6 of the Government Resolution bearing no. GIMF No. 1-2/2016-IC dated 25.07.2016 (Annexure-A9). However, the respondents have clarified that the arrears due to him consequent to his pay revision provided under CCS (RP) Rules, 2016 had already been released to him at that point of time vide pay bill No: 294/16-17 dated 23.8.2016 (Annexure R-3) with reference to the option exercised by him. Hence, this specific prayer of the applicant is rendered infructuous keeping in view the clarification given by the respondents that these arrears stand already released to the applicant.
7. The recovery of Rs. 4,12,413/- from the applicant is on account of his reduction in pay fixed as on 01.01.2016 based on the clarification issued by IB vide their memo dated 29.01.2021. This is based on Ministry of Finance ID No. 3-10/2018-E/IIIA dated 14.09.2020.
8. The applicant had been promoted as ACIO/Grade-II (General) vide order dated 31.03.2016 (Annexure-A2). The fixation of pay in the revised pay structure as notified by the Government vide its notification no. G.S.R. 721(E) dated 25.07.2016 is as follows:-
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OA.No.54/2023/CAT/Bangalore Bench "5. Drawal of pay in the revised pay structure.- Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure:
Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be, Explanation 1.- The option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band and Grade Pay or scale.
Explanation 2.- The aforesaid option shall not be admissible to any person appointed to a post for the first time in Government service or by transfer from another post on or after the 1st day of January, 2016, and he shall be allowed pay only in the revised pay structure.
Explanation 3.- Where a Government servant exercises the option under the provisos to this rule to retain the existing pay structure of a post held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that pay structure under Fundamental Rule 22, or under any other rule or order applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing pay structure in respect of the permanent post on which he holds a lien or would 17 OA.No.54/2023/CAT/Bangalore Bench have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher.
6. Exercise of option.-
(1) The option under the provisos to rule 5 shall be exercised in writing in the form appended to these rules so as to reach the authority mentioned in sub-rule (2) within three months of the date of notification of these rules or where any revision in the existing pay structure is made by any order subsequent to the date of notification of these rules, within three months of the date of such order:
Provided that-
(i) in the case of a Government servant who is, on the date of such notification or, as the case may be. date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his taking charge of his post in India; and
(ii) where a Government servant is under suspension on the 1st day of January, 2016, the option may be exercised within three months of the date of his return to his duty if that date is later than the date prescribed in this sub-rule.
(2) The option shall be intimated by the Government servant to the Head of his Office along with an undertaking, in the form appended to these rules.
(3) If the intimation regarding option is not received by the authority within the time specified in sub-rule (1), the Government servant 18 OA.No.54/2023/CAT/Bangalore Bench shall be deemed to have elected to be governed by the revised pay structure with effect from the 1st day of January, 2016.
(4) The option once exercised shall be final.
Note 1: Persons whose services were terminated on or after 1st January, 2016 and who could not exercise the option within the prescribed time limit, on account of discharge on the expiry of the sanctioned posts, resignation, dismissal or discharge on disciplinary grounds, shall be entitled to exercise option under sub- rule (1).
Note 2: Persons who have died on or after the 1st day of January, 2016 and could not exercise the option within prescribed time limit are deemed to have opted for the revised pay structure on and from the 1st day of January, 2016 or such later date as is most beneficial to their dependents if the revised pay structure is more favorable and in such cases, necessary action for payment of arrears shall be taken by the Head of Office.
Note 3: Persons who were on earned leave or any other leave on 1st day of January, 2016 which entitled them to leave salary shall be entitled to exercise option under sub-rule (1)."
9. As per the first proviso of Rule 5, it is categorically clarified that "a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure". However, there is a second proviso which specifies that "provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account 19 OA.No.54/2023/CAT/Bangalore Bench of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be."
10. In the present case, the applicant had been promoted vide orders dated 30.3.2016 w.e.f. 01.04.2016. Hence, as per the 2nd proviso, he was entitled to elect to switch over to the revised pay structure either from 1.1.2016 or from the date of his promotion i.e., 01.04.2016. In his case, the first proviso which allowed him to elect to switch over to the revised pay structure from the date of his next increment in the existing pay structure i.e. from 1.7.2016 was not applicable. This was also clarified by the respondents vide their memo dated 29.1.2021.
11. However, the applicant had initially, on 22.08.2016, opted to get his revised pay fixed from the date of his next increment in his existing pay structure which was due on 01.07.2016. Since he had already earned his promotion on 01.04.2016, his pay was accordingly fixed at Rs. 49000/- as on 1.7.2016 at level-7 vide SIB Bengaluru order dated 24.08.2016. He earned subsequent increments and his pay at the time of his superannuation was Rs. 58,600/-.
12. His pension papers were prepared and forwarded to the PAO (IB), for grant of pension on the basis of his pay being Rs. 58,600/- at the time of his superannuation. However, these papers were returned by the PAO with the observations that his pay fixation was not in order. It was clarified that the applicant cannot exercise option to switch over to 7th CPC w.e.f., the date of accrual of his next increment, in the existing pay scale i.e., 01.07.2016. He 20 OA.No.54/2023/CAT/Bangalore Bench was required to opt to switch over to 7th CPC either w.e.f., 01.01.2016 or from the date of his promotion/financial upgradation i.e., 01.04.2016.
13. The applicant was asked to submit his revised option of getting his pay fixed either from 01.01.2016 or from 01.04.2016, subsequent to his promotion vide letter dated 22.8.2022. The applicant, gave his option on 22.08.2022, to get his pay fixed w.e.f., 01.01.2016 and to draw his pay in the revised pay scale of Level-7 after promotion w.e.f., 01.04.2016. Consequently, his pay fixation was revised to Rs. 41,600/- as on 01.01.2016 in his existing pay scale prior to his promotion. Subsequently, his pay was revised to Rs. 44,900/- (Level 7, on promotion to the rank of ACIO II/G) on 01.04.2016. His date of next increment was fixed on 01.01.2017. His last pay drawn at the time of superannuation was revised to Rs. 53,600/- accordingly.
14. This downward revision in his pay from 1.1.2016 till his superannuation on 31.7.2022 resulted in recovery of an amount of Rs. 4,12,413/- on account of excess pay drawn between 01.01.2016 and 31.07.2022. His pensionary benefits were also revised to a lower level based on his revised last pay drawn as Rs. 53,600/- instead of Rs. 58,600/- as provided earlier.
15. From the above facts, it is evident that there was an error in fixation of pay of the applicant consequent to his pay revision after Seventh CPC due to incorrect application of the CPC Pay Rules by the respondents. This pay fixation, based on the option given by the applicant to draw the revised pay from 1.7.2016, had been reviewed and audited by the Accounts Officer, PAO in the year, 2017. The option given by the applicant had been accepted by the respondents and his pay had been revised, accordingly. It is, therefore, 21 OA.No.54/2023/CAT/Bangalore Bench abundantly clear that the applicant is nowhere responsible for the mistake in his pay fixation, which resulted in over payment of Rs. 4,12,413/-. This overpayment has been deducted from the DCRG of the applicant at the time of release of his pensionary benefits.
16. The applicant has relied on the Hon'ble Apex Court judgment in State of Punjab & Others vs. Rafiq Masih (White Washer), 2012 case in order to contend that no recovery could have been made from his retirement dues. He has also quoted the OMs issued by DOPT dated 2.3.2016 as well as 3.10.2022 which reiterate the same point.
17. In State of Punjab & Others vs. Rafiq Masih (White Washer), 2012, the Honourable Apex Court had observed as follows:
"2. All the private respondents in the present bunch of cases, were given monetary benefits, which were in excess of their entitlement. These benefits flowed to them, consequent upon a mistake committed by the concerned competent authority, in determining the emoluments payable to them. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the concerned employee was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the concerned employee; or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay-scales; or for having been granted allowances, for which the concerned employee was not authorized. The long and short of the matter is, that all the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due.
3. Another essential factual component in this bunch of cases is, that the respondent-employees were not guilty of furnishing any incorrect 22 OA.No.54/2023/CAT/Bangalore Bench information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the private respondents, in all these cases, was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved monetary benefits to the respondent-employees, is totally ruled out. It would therefore not be incorrect to record, that the private respondents, were as innocent as their employers, in the wrongful determination of their inflated emoluments.
4. The issue that we have been required to adjudicate is, whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. For the applicability of the instant order, and the conclusions recorded by us hereinafter, the ingredients depicted in the foregoing two paragraphs are essentially indispensable....
........
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.23
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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
18. The issue has also been reiterated by the DOPT in its OM dated 02.03.2016 (Annexure-A12). The respondents in their reply have stated that the applicant may prefer an application seeking waiver/refund of Rs. 4,12,413/- recovered from gratuity to the prescribed authority as per the DOPT OMs dated 02.03.2016 and 03.10.2022 cited by him. It is also observed that no prior notice was given to the applicant before making this recovery from the DCRG of the applicant.
19. Keeping all the above points in view, the case of the applicant is squarely covered by the Apex Court directions in Rafiq Masih (supra). The applicant is entitled to the refund of Rs. 4, 12,413/- recovered from his gratuity by the respondents. Since the recovery is not as per law laid down by Rafiq Masih (supra) as well as contrary to the relevant DOPT OM dated 02.03.2016, he shall also be entitled to interest at GPF rates on this amount, from the date of release of his gratuity, till such time as the refund is actually made to him. 24
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20. The second prayer of the applicant is to restore his pay at Rs. 58,600/- on the date of his retirement from Rs. 53,600 as refixed by the respondents. It is apparent that his earlier pay fixation w.e.f. the date of his next increment on 1.7.2016 was based on an incorrect interpretation of the Rules. It is amply clear from the Rule position under Rule 5 of CCS (RP) Rules, 2016 that he was not entitled to switch over to 7th CPC with effect from the date of accrual of next increment i.e., 01.07.2016. He was entitled to switch over to 7th CPC pay scales either from 01.01.2016 or from the date of his promotion i.e., from 01.04.2016.
21. The applicant furnished his revised option on 22.08.22 to switch over to the 7th CPC w.e.f., 01.01.2016 and also opted for pay fixation in the rank of ACIO II/G w.e.f., his promotion on 01.04.2016. This has resulted in his last pay drawn at the time of his superannuation being fixed at Rs. 53,600/-, instead of Rs. 58,600/-.
22. It is apparent that if the applicant had opted for switching over to the 7th CPC pay scales w.e.f., the date of his promotion i.e., 01.04.2016, instead of 1.1.2016, he would have benefited with a higher pay fixation as on 01.04.2016 and consequently would have been entitled to a higher pay at the time of his superannuation on 31.07.2022, as compared to the option exercised by him to switch over to the 7th CPC w.e.f. 01.01.2016.
23. The option to submit his revised option for switching over to 7th CPC was asked by the respondents from the applicant vide their letter dated 22.08.2022. The applicant had already retired by that time and was waiting for release of his retirement benefits. The applicant submitted his revised 25 OA.No.54/2023/CAT/Bangalore Bench option form on the 22.8.2022 itself. It is apparent that the applicant submitted his option to draw the revised pay scales from 1.1.2016, instead of 1.4.2016 without a complete understanding of the implications of the option which was to be exercised by him. In such a situation, it would have been appropriate for the respondents to suitably guide the applicant about the implications of this option on his revised pay fixed at the time of his superannuation. This would have enabled the applicant to make an informed choice in the matter and choose an option most beneficial to him. He would not have suffered due to lack of sufficient knowledge/information with regards to the financial implications of the option now being asked from him. The option was exercised by the applicant almost immediately on the date of the letter received by him from the respondents i.e. on 22.8.2022. It was done apparently in a hurry, possibly since his pensionary benefits were getting delayed and he had been asked to exercise his revised option so that his pension papers could be finalised.
24. Keeping the above in view, it would, be appropriate, in the circumstances of the case, for the applicant to be allowed for a fresh revised option to get his revised pay fixed either from the date of his promotion i.e. 01.04.2016 or from 1.1. 2016, whichever is beneficial to him. Before exercising such a revised option, the respondents shall provide all necessary guidance/information to the applicant with regards to the financial implications of both the options in terms of his revised pay entitlement as on the date of his superannuation.
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25. If consequent to the revised option so exercised by him, his last pay drawn exceeds the last pay drawn of Rs. 53,600/- fixed earlier based on his option to get his pay fixed from 1.1.2016, then the pensionary benefits due to the applicant shall be revised by the respondents appropriately. All consequent arrears in terms of retiral benefits including pension shall also be released to the applicant within a period of 08 weeks from the date of a certified copy of this order.
26. The present OA is therefore disposed of with the following directions:
a) The respondents are directed to refund the amount of Rs. 4,12,413/-
recovered from the gratuity of the applicant along with interest calculated at the applicable GPF rates, calculated from the date of release of his gratuity, till the time this amount is refunded to the applicant. This total amount shall be released to the applicant within a period of eight weeks from the date of receipt of a certified copy of this order.
b) The applicant may submit a fresh revised option to get his revised pay fixed either from the date of his promotion i.e. from 01.04.2016 or from 01.01.2016, whichever is beneficial to him. Before exercising such a revised option, the respondents shall provide the necessary information to the applicant with regards to the financial implications of both these options in terms of his revised pay as on the date of his superannuation. This information shall be provided to the applicant within four weeks from the date of receipt of a certified copy of this order. The applicant may give his revised option, if he so desires, within a period of four 27 OA.No.54/2023/CAT/Bangalore Bench weeks, subsequent to the receipt of information provided by the respondents.
c) If, consequent to the receipt of a revised option so exercised by the applicant, his last pay drawn exceeds the last pay drawn of Rs. 53,600/- fixed earlier by the respondents based on his earlier option to get his revised pay fixed from 1.1.2016, then the pension as well as all other pensionary benefits due to the applicant shall be revised by the respondents appropriately. All consequent arrears in terms of retiral benefits including pension arrears shall also be released to the applicant, without interest, within a period of 12 weeks from the date of receipt of the revised option submitted by the applicant.
27. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/hy/