Central Administrative Tribunal - Ernakulam
Pushparaj T R vs Defence on 13 December, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00081/2022
Tuesday, this the 13th day of December 2022
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Pushparaj.T.R.,
Aged 59 years,
S/o.late Raman.M.K.,
UDC, Naval Ship Repair Yard, Head Quarters,
Southern Naval Command, Kochi - 682 004.
Residing at Thypparambil, Karipalangadu,
Kulammavu (via), Idukki - 685 601. ...Applicant
(By Advocates Mr.S.Radhakrishnan & Mr.Aditya Thejus Krishnan)
versus
1. Union of India
represented by the Secretary to the Government of India,
Ministry of Defence, New Delhi - 110 001.
2. The Flag Officer Commanding in Chief,
Head Quarters, Southern Naval Command,
Kochi - 682 004.
3. The Admiral Superintendent, NSRY,
Naval Base, Kochi - 682 004.
4. Accounts Officer (Navy),
Area Accounts Office (Navy),
DAD Complex, Perumanoor,
Kochi - 682 015. ...Respondents
(By Advocate Mr.P.K.Ramkumar, Sr.PC)
This application having been heard on 15 th November 2022, the
Tribunal on 13th December 2022 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant at the time of filing this Original Application (O.A) was working as an Upper Divisional Clerk (UDC) in the Naval Ship Repair Yard (NSRY), which is under the Headquarters Southern Naval Command (HQ SNC), Kochi (Respondent No.2). He filed this O.A in February 2022 and has since retired from service on superannuation on 31 st March, 2022. The applicant is aggrieved by the letters produced as impugned orders at Annexure A-1, Annexure A-2, Annexure A-3 and Annexure A-3(a). By the combined effect of these letters, the 1 st ACP and 2nd MACP benefits granted to him with effect from 01.01.2008 and 18.09.2009 under the respective Assured Career Progression Scheme (ACPS) and Modified Assured Career Progression Scheme (MACPS) were cancelled. In this connection, Annexure A-2 is a letter from the office of the Area Accounts Office (Navy) to the NSRY, on a reference made by the NSRY to them. The letter draws attention to Paragraph 2 (i) of DOPT O.M.No.35034/3/2008-Estt.(D) Vol.II dated 4 th October 2012, which is dealing with "Financial Upgradation under MACPS in the case of Staff who have joined another unit public/organisation on request". The said paragraph reads as under :
" This Department's OM No.35034/3/2008-Estt.(D) (Vol.II) dated 01.11.2010 provides that in case of transfer 'including unilateral transfer on request', regular service rendered in previous organisation/office shall be counted alongwith the regular service in the new organisation/office for the purpose of getting financial upgradations under the -3- MACPS. However, financial upgradation under the MACPS shall be allowed in the immediate next higher grade pay in the hierarchy of revised pay bands as given in CCS (Revised Pay) Rules, 2008. It is now further clarified that wherever an official, in accordance with terms and conditions of transfer on own volition to a lower post, is reverted to the lower Post/Grade from the promoted Post/Grade before being relieved for the new organisation/office, such past promotion in the previous organisation/office will be ignored for the purpose of MACPS in the new organisation/office."
(emphasis supplied)
2. The Area Accounts Officer (Navy) has indicated in the Annexure A-2 letter that, in the case of the applicant, it had been noticed that he had been 'struck off' from the strength of Air Headquarters (his previous unit) with effect from 01.03.2005 to join in the post of Lower Division Clerk (LDC) in Defence Security Corps (DSC) Records, Cannanore and later from the DSC Records to the Headquarters, Southern Naval Command with effect from 01.03.2008. Hence, it is indicated that action should be taken to refix his pay on his transfer from DSC Records, Cannanore to NSRY, Kochi (under the HQ SNC) and also to review the ACP and MACP given to him with reference to Paragraph 24 of the DOPT OM No.35034/3/2008-Estt.(D) dated 19.05.2009 and also the DOPT OM No.35034/3/2008-Estt.(D) Vol.II dated 01.11.2010.
3. It appears that the applicant had joined service as a LDC in the Armed Forces Headquarters (AFHQ) Clerical Services in New Delhi in 1989. The scale of pay of LDCs' under the Fifth Central Pay Commission, which was implemented with effect from 01.01.1996, was Rs.3050-4590/-. -4- He was regularised as LDC in the AFHQ with effect from 18.09.1989. He was then promoted to the post of UDC with effect from 01.08.1996 in the scale of pay of Rs.4000-6000/-. Later he was promoted to the post of Assistant with effect from 30.06.2004 and was transferred to the Air Headquarters. On his promotion his pay was fixed in the scale of Rs.5500- 9000/- with effect from 30.06.2004. In November, 2004 he made an application for transfer on compassionate grounds to Kerala from Delhi on personal grounds. He was transferred on permanent duty and posted vide Annexure A-5 order dated 05.11.2004 at the DSC (Records), Cannanore. The Annexure A-5 order indicates that the applicant has been transferred from NHQ C-Wing, Sena Bhavan to the DSC Records, Cannanore. The order has the subject title "Posting/Transfer on compassionate grounds; CIVS". The paragraph 1 of the order indicates that the individuals mentioned in the Appendix A to this letter are 'transferred on permanent duty' to the Units/Establishments shown against their names. Further, Paragraph 6 of the letter at Annexure A-5 is as under :
" 6. The pay of the individual will be fixed in accordance in accordance with the following provisions of CPRO 82/80 : -
(a) In case where posting/transfer involve no change in trade/grade, the service rendered, prior to such posting/transfer will be treated as continuous and the individuals may be allowed to draw the last pay drawn. The date of increment will remain unaltered.
(b) In case where posting/transfer involves change in trade/grade, the service rendered in the previous post will be treated as continuous. In such case the pay of the individual will be fixed in the new pay scale at the stage equal to the pay drawn in the old pay scales or if there is no such stage, at the stage -5- next below that pay, the difference being treated as personal pay to be absorbed in the next increment. The service rendered on the pay last drawn in the old pay scale will count towards the next increment in the new pay scale.
(c) In case where posting/transfer involves reduction in the grade/trade the pay of the individual will be fixed by giving the benefit of completed years of service rendered in the previous post.
(d) When the appointment is made to a new post and the maximum pay in the time scale of that post is less than his quasi-
permanent/substantive pay in respect of the old post, the individual will draw that maximum as initial pay."
(emphasis supplied)
4. It is the contention of the applicant that as per the paragraph 6 (c) above, wherever the posting/transfer involves reduction in the grade/trade, the pay of the individual has to be fixed by giving the benefit of completed years of service. In other words, the benefit of continuous service in the previous post has been protected. The same order also indicated that he was being transferred and posted as an LDC. He would lose his seniority in the grade but the benefits of his length of service have to be protected. He submits that he then tendered technical resignation from the post of Assistant at Air Headquarters and was relieved from duty on 03.02.2005. He has produced a copy of the relieving order dated 03.02.2005 at Annexure A-6. The relieving order indicates that technical resignation without leave in respect of the applicant has been accepted by the Competent Authority. He was relieved from the Headquarters to take the appointment of the LDC in the DSC, Cannanore. Further, the letter states as follows "He has been struck off the strength of this HQ with effect from the -6- same day and directed to report to you." The letter also indicates that his basic pay was Rs.5500/-, which reveals that he was in the scale of pay of Assistant. The contention of the applicant is that technical resignation to be accepted by the competent authority is a procedural/administrative requirement in certain establishments. Further, it is also indicated in the same Annexure A-6 letter that his Service Book along with leave account will be forwarded in due course. This, he submits, shows that he is being transferred with continuity of service and that the service he has rendered in the previous establishment is to be reckoned for service benefits. These records were to be forwarded to DSC Records for further processing in due course.
5. On being relieved from Air Headquarters and being transferred to the DSC Records, Cannanore as LDC, his pay was reduced from Rs.5500/- (basic) and was fixed at Rs.4030/- plus Rs.670/- in the lower scale of LDC (Rs.3050-4590/-). It is also indicated in paragraph 11 of the OA that his balance pay was protected as personal pay to be absorbed in future increments in accordance with the pragraph 6 (b) of the Annexure A-5 order dated 05.11.2004. After working for some time as LDC at the DSC Records, Cannanore the applicant again applied for a unilateral tranfer to Kochi on personal grounds. An order was issued on 08.02.2008 posting/transferring the applicant on compassionate grounds as LDC to the Headquarters Southern Naval Command (HQSNC) at Kochi as per Annexure A-7. The letter at Annexure A-7 is similar to the letter at -7- Annexure A-5, which was relating to his transfer from AFHQ, New Delhi to DSC Records Cannanore. Paragraph 6 at Annexure A-5 is reproduced at paragraph 6 of Annexure A-7 and reads the same as was indicated earlier at paragraph 4 of this order. The applicant contends that he lost seniority because of transfer from DSC Records, Cannanore to SNC, Kochi but has retained the benefits of the continuous years of service by virtue of the paragraph 6 (c) of the letter at Annexure A-7. However, as he was already working in the lowest grade of LDC there was no further reversion due to the unilateral transfer. The applicant assumed duty on 03.03.2008 and was taken on strength of INS Venduruthy with effect from 03.03.2008, as the 1 st and 2nd of March 2008 were Saturday and Sunday holidays.
6. The applicant has been working under the establishment and control of the Southern Naval Command, Kochi from 03.03.2008 onwards. When the Central Civil Services (Revision of Pay Rules) (CCS [RP] Rules, 2008 were passed, his pay was fixed in the post of LDC at Rs.8,540/- in the Pay Band I in the scale of pay of Rs.5200-20200/- with Grade Pay of Rs.1900/- with effect from 01.01.2006. It is submitted that the pay was fixed by multiplying his 5th Pay Commission pay of Rs.4590/- in the pay scale of Rs.3050-4590/- of LDC by the factor of 1.86 which fixed him at Rs.8540/-. The copy of the relevant order in this connection has been produced at Annexure A-9.
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7. What the applicant seeks to draw attention to from the above factual position is that he had chosen to avail an unilateral transfer on two separate occasions. At each point he had surrendered his seniority and his pay was fixed pursuant to the functional promotion which had been earned. In other words, his past service has always been protected as per the extant rules. He had first joined service in 1989 and thus by 2008, he had 19 years of regular service to his credit counting his previous service in Delhi in AFHQ as well as DSC Records, Cannanore. When the MACPS was introduced he submits he was granted his first financial upgradation (FUG) in the pay of Rs.9880/- in Pay Band - I with a Grade Pay of Rs.2000/- in the post of LDC at the HQSNC with effect from 01.09.2008 (the date of implementation of MACPS). He was then granted the 2 nd FUG in the MACPS fixing his pay at Rs.10,610/- in PB - I with a Grade Pay of Rs.2400/- in the post of LDC with effect from 18.09.2009, the date when he completed 20 years of continuous service including his service at AFHQ Delhi and DSC Records, Cannanore. A copy of the relevant orders dated 12.02.2013 fixing his pay due to grant of MACP as indicated above has been produced at Annexure A-10. Later, however, the HQSNC issued another order produced at Annexure A-13 dated 24.07.2018 correcting and modifying the orders at Annexure A-10. As per the Annexure A-13 order, he was granted 1 st ACP with effect from 01.01.2008 in PB - I in the scale of Rs.5200-20200/- with Grade Pay Rs.2400/-. He was also granted 2 nd MACP with effect from 18.09.2009 in PB - I in the scale of pay of Rs.5200-20200/- with Grade Pay of Rs.2800/-. Therefore, in other words, the 1 st and 2nd MACP which was -9- granted by the Annexure A-10 order in 2013 was cancelled and Annexure A-13 order giving him 1 st ACP with Grade Pay of Rs.2400/- with effect from 01.03.2008 and 2nd MACP with Grade Pay of Rs.2800/- with effect from 18.09.2009 was issued.
8. The applicant submits that the order at Annexure A-13 from the NSRY (HQSNC) clearly establishes that after his unilateral transfer requests were approved while he had lost his entire seniority he has been granted 1st ACP with effect from 01.03.2008 by protecting the years of continuous service. This is the date on which he had joined on the strength of HQ SNC. Further, 2nd MACP was also granted to him immediately on completion of 20 years of continuous service. His contention is that this is the correct fixation and the grant of ACP/MACP to him and is in accordance with the Rules. The respondents, by the impugned orders, are seeking to remove this grant of ACP/MACP. He thus seeks the following relief in the O.A :
"(a) Call for the records connected with the case;
(b) Declare the the protection of financial upgradation granted to the applicant in the new establishment by reckoning the service in the previous organisation is perfectly legal and in accordance with the rules, norms and clarifications issued by the Government;
(c) Declare the the grant of Grade Pay of Rs.2400/- as the 1st financial upgradation, Rs. 2800/- as the 2 nd financial upgradation to the applicant, approved by the Area Accounts Office from time to time is perfectly in order and there is no mistake or illegality in the grant of ACP/MACP benefits to the applicant;-10-
(d) Declare that Annexures A-1, A-2, A-3 and A-3(a) are patently illegal and not sustainable in the eye of law and set aside the same;
(e) Direct the respondents to grant the 3 rd financial upgradation to the applicant w.e.f. 18.09.2019, the date of completion of 30 years of regular service from the date of entry in the service.
(f) Grant such other reliefs as this Hon'ble Tribunal may deem fit, just and proper in the facts and circumstances of the case."
9. Later, in 2016 the applicant was functionally promoted within the HQSNC to the post of UDC in Pay Band - I with the GP of Rs.2400/- (PML-4 of 7th CPC). However, he was obviously not granted any financial benefits after this promotion as he was already drawing the higher Grade Pay under MACPS of Rs.2800/-. He assumed duty as UDC on 01.10.2016 and was retained at the NSRY, Kochi. After the introduction of 7 th CPC, the CCS (RP) Rules, 2016 came into effect and his pay was fixed as Rs.41000/- at Pay Matrix Level (PML) - IV with effect from 01.01.2016.
10. We now come to the specific submissions and points made by the applicant after outlining the factual details above. He states that the order regarding his 1st ACP/2nd MACP with effect from 01.03.2008 and 18.09.2009 respectively along with his pay fixation was given to the Area Accounts Office (Navy), being the 4th respondent in this O.A., for approval after the Annexure A-13 order dated 24.07.2018 was passed. The Area Accounts Office (Navy) by the impugned Annexure A-1 letter dated 10.01.2019 to the NSRY (HQSNC) returned the documents raising some -11- objections and seeking for a clarification on the nature of his posting at DSC Records Cannanore ie., asking whether he had 'resigned' from the post of Assistant from Headquarters. The AAO sought clarification as to whether he had been reappointed or had been transferred on compassionate grounds from Air Headquarters to DSC Records, Cannanore. There were also other observations and clarifications sought in the said letter. It is stated that the NSRY did send a clarification to the letter sent by the AAO that the applicant had only 'technically resigned' from Air Headquarters and he had joined at DSC Records on transfer on compassionate ground. However, this contention was apparently rejected by the impugned Annexure A-2 letter dated 24.06.2019. It was noted in that letter that his name seems to have been 'struck off' from the strength of Air Headquarters when he joined as LDC at DSC Records, Cannanore and further to join at HQ SNC from the DSC Records. Hence, the AAO directed the NSRY (HQSNC) to take action to refix the applicant's pay on transfer from DSC Records, Cannanore to NSRY, Kochi (HQ SNC) and also to review the ACP/MACP granted to him in light of the relevant DoPT O.M's. This then resulted in the impugned orders at Annexure A-3 and Annexure A-3(a) reviewing the 1 st ACP and 2nd MACP granted by the Annexure A-13 order dated 24.07.2018.
11. The applicant points out that the 4th respondent, Area Accounts Office (Navy), is relying on contents of the DoPT OM dated 04.10.2012, outlined at paragraph 1 of this order, which provides that on unilateral transfer, employees who relinquish the functional promotions received in -12- the earlier establishment and are reverted to the lower post are eligible for MACPS benefits. He states that this is exactly what had happened in his case. He had been working as an Assistant in the earlier establishment and at the AFHQ, New Delhi on unilateral transfer he had joined as LDC in DSC Records, Cannanore which is fully in accordance with the O.M dated 04.10.2012. However, the AAO has come to the wrong conclusion that due to his technical resignation as his name had been struck off at the Air Headquarters (AFHQ) the posting at DSC Records, Cannanore is to be treated as a fresh appointment. This conclusion by the AAO (Navy) has ignored the contents of the Annexure A-5 transfer order issued by Headquarters. The Annexure A-2 letter of the AAO has also referred to the MACP Order of 19.05.2009 and its clarification on 01.11.2010 to deny him the MACP benefits. However, his position is that these letters do not actually deny the benefits of MACP even in the case of unilateral transfer. The paragraph 24 of the MACP Order dated 19.05.2009 was later amended by the OM dated 01.11.2010 and it had been clearly clarified that in the case of transfer, including unilateral transfer on request, regular service rendered in the previous organisation/office shall be counted along with the regular service in the new organisation for the purpose of getting financial upgradation under the MACPS. A Copy of the DoPT OM of 01.11.2010 is produced at Annexure A-14. Thus, from Annexure A-14 it is clear that the stand taken by the AAO in Annexure A-2 was wrong and illegal and against the Orders of the DoPT because it mentioned that even in the case of unilateral transfer to a lower post, the service rendered in the -13- previous establishment has to be counted along with the regular service in the new establishment for the purpose of grant of MACP benefits. This was done in his case by the NSRY HQSNC before the intervention of the AAO (Navy).
12. It is also submitted that this matter is no longer res integra. An employee in the entry grade is eligible to draw the pay of the promoted post on completion of 12 years service under the ACP Scheme. It is stipulated in the ACP Scheme that the benefit of regular service, wherever rendered, will have to be reckoned for the purpose of upgradation under the Scheme. In other words, even if the applicant had been transferred under the Fundamental Rule (FR) 15 (A), he would be eligible to be granted the higher pay on completion of 12 years service. Further in the clarification issued on the ACPS by OM dated 09.08.1999 the DoPT has clarified at point No.39 that the condition No.14 of the ACP states, inter alia, that in the case of transfer including unilateral transfer on request, regular service rendered in previous organisation shall be counted with regular service in the new organisation for the purpose of granting financial upgradation under the Scheme. This condition covers cases where a unilateral transfer is to a lower post. However, the financial upgradation under the ACP shall be granted in the hierarchy of the new post. In other words it is clearly laid down that the service rendered in the previous organisation has to be counted along with the service rendered in the new establishment for the purpose of grant of financial upgradation under the ACPS and that benefit -14- of regular service rendered by the applicant in the previous organisation is not lost by the unilateral transfer to the new organisation. What is lost is only the seniority and not the service.
13. Drawing from the above it is contended by the applicant that the Annexure A-1 and Annexure A-2 orders are illegal and based on unsound reasoning. Further supplementing the point, he states that the respondents seem to have taken a position that since he had been struck off from the earlier assignment, his appointment at DSC Records, Cannanore should be taken to be a fresh appointment. This conclusion is due to a misunderstanding of the nature of 'technical resignation', which had been clarified by the DoPT in an O.M dated 17.08.2016, produced at Annexure A-16. This OM has defined the meaning of technical resignation and has also stated that the benefit of past service if otherwise admissible under the rules may be given in such cases. From Annexure A-16 it is evident that when a resignation is merely a technical formality to be complied with when an employee is posted in another establishment, it must be treated only as a 'technical' resignation, with the employee eligible for reckoning past service, provided it is otherwise admisible under the Rules. His services are clearly covered under the ambit of Annexure A-16 and the benefit of his earlier service rendered has been guaranteed under the said OM of the DoPT. Despite this the NSRY informed the HQSNC that the Assistant Controller of Defence Accounts (ACDA), Navy had made certain observations against his previous fixations under the 6 th CPC and -15- ACP/MACP benefits given to him and had directed recovery of the excess amount received by him by Annexure A-17 dated 22.10.2020. It was pointed out in the letter that the ACP and MACP granted to him were not in order and a request was made to review the same with reference to paragraph 24 of the DoPT OM dated 19.05.2009 and the O.M of 01.11.2010. It was subsequent to this that the Headquarters, Southern Naval Command then issued the Annexure A-3 letter dated 29.01.2021 to the NSRY that the issue of the applicant was examined and that the observations made by the audit authorities had been taken as correct and that his pay has to be reviewed and fresh proforma has to be issued.
14. It is submitted by the applicant that by the Annexure A-3(a), the respondents have effectively and wrongly cancelled the 1 st ACP and 2nd MACP granted to him with effect from 13 years back. He states that this Tribunal had earlier upheld several similar O.As on the same issue as evidenced by O.A.No.440/2012 and O.A.No.1094/2012 produced at Annexure A-18 and Annexure A-19. The applicant submits that orders have been passed by this Tribunal in various O.As and the benefits of the principle declared should be granted to all the similarly placed officials by the Southern Naval Command. However, the respondents are refusing to extend these directions without assigning any sustainable reason. It is his submission that the decisions of the Tribunal in Annexure A-18 and Annexure A-19 are declaratory in nature. These orders have been implemented and benefits have been extended to respective applicants. The -16- AAO (Navy), which is the auditing authority has therefore wrongly rejected the ACP/MACP upgradations sent by the NSRY in his case by Annexure A-13 dated 24.07.2018 and has wrongly directed recovery of the excess payment. Further, all his earlier pay fixations and MACP upgradation had been approved by the AAO. His pay had been audited and approved by the AAO after his unilateral transfer to HQSNC after the fixation pursuant to the 6th CPC and after grant of ACP benefits. This is necessary in any case after any fixation is done. The AAO cannot now be allowed to turn around and say that they did not verify the pay fixation for 14 years. Another misconception by the AAO is that the applicant was freshly admitted to the GPF account and that it was allotted only with effect from March, 2008. The Last Pay Certificate produced at Annexure A-20 shows the same GPF number of 1208139 that was allotted to him at his post at AFHQ New Delhi before his unilateral transfer to HQSNC, as well as to the earlier office at DSC Records Cannanore from Air Headquarters. He draws attention to the GPF records and Last Pay Certificate produced at Annexure A-20 and Annexure A-21 in this connection to prove that he has retained the same GPF Account Number throughout his service and is another clear indication that his was an unilateral transfer on request on compassionate grounds.
15. Further, the applicant submits that he is entitled to be granted his 3 rd financial upgradation on completion of 30 years with effect from 18.09.2019, which is 10 years after completion of the 2 nd financial upgradation under MACPS to the GP of Rs.2800/- with effect from -17- 18.09.2009. The financial upgradations that have been granted to him have been given without any misrepresentation on his part. He claimed that no recovery can be made from his salary on the ground of wrong pay fixation made many years back. He relies on State of Punjab & Ors. v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] and the consequent DoP&T OM No.F.No.18/03/2015-Estt.(Pay-1), dated 02.03.2016. In this connection, when the matter first came up before this Tribunal on 23.02.2022, it was ordered that since the balance of convenience was in favour of the applicant in the light of Rafiq Masih's case (supra), any recovery from his salary was to be stayed till reply statement is filed. This interim order was later extended on 05.07.2022 to continue till final disposal of OA.
16. A reply statement has been filed on behalf of the Respondents 1-4 by the Principal Administrative Officer, SNC, Cochin, who presumably works under the 2nd respondent. It is stated that the applicant had been 'transferred on compassionate ground' from AFHQ to the DSC Records, Kannur on 04.02.2005 and was again transferred on 03.03.2008 under the 2 nd respondent HQSNC. The Grade Pay of the applicant was fixed at Rs.1,900/- in accordance with FR 15 A. However, additional hierarchichal financial upgradations of Grade Pay of Rs.2,000/- and Rs.2,400/- were erroneously granted to him as 1st and 2nd MACP (presumably referring to Annexure A-10 dated 12.02.2013). This mistake was committed in 2013 with effect from 2008 but found out only later in 2018 when the proforma for fixation of pay -18- by Annexure A-13 order granting the 1st ACP in Grade Pay of Rs.2,400/- w.e.f. 01.03.2008 which is the date of joining under the 3 rd respondent and 2nd MACP in Grade Pay of Rs.2,800/- with effect from 18.09.2009 on completion of 20 years of regular service was forwarded. When the proforma was forwarded for fixation of pay, the 4 th respondent (Accounts Officer of the Defence Accounts Department), had observed that granting of ACP and MACP on unilateral transfer was not in accordance with the extant rules and had directed the 3rd respondent to review the same.
17. The respondents state that when an individual seeks an unilateral transfer from one Department to another, such transfers and fixation of pay relating to them are governed by FR 15 (A) and OMs issued by the Government of India, DoPT from time to time. It is submitted that on unilateral transfer to a lower post the official is to be treated as a fresh recruit to the post he has been reverted to. The last pay drawn by the official will be protected and the service rendered will be counted towards MACP and pensionary benefits. The procedure for pay fixation on unilateral transfer should be done on the basis of DoPT's OMs dated 14.02.2006 produced at Annexure R-1, 21.10.2009 produced at Annexure R-2, 05.11.2012 produced at Annexure R-3 and 31.03.2017 produced at Annexure R-4. In the instant case the applicant was granted the 1 st ACP in the Grade Pay of Rs.2,400/- w.e.f. 01.03.2008 (date of joining the HQSNC) and 2nd MACP in the Grade Pay of Rs.2,800/- w.e.f. 18.09.2009 (date of completion of 20 years of service). The 4 th respondent, AAO (Navy), had -19- observed that there was an anomaly in the fixation of pay of the applicant when this proforma was forwarded. He returned the proposal seeking clarification on whether the applicant had joined at DSC Records, Kannur on compassionate grounds or had rejoined on resignation. It is stated in the reply statement that the direction of the 4th respondent to review the ACP and MACP was given not based on the type of relieving or rejoining but since the pay of the applicant was not fixed in accordance with the extant Rules on the subject. It is submitted the applicant had reported under the 2 nd respondent the pay was fixed 'construing' the MACP guidelines wherein the service rendered in the previous organization shall be reckoned for the purpose of counting qualifying service towards MACP in the new organization. Accordingly, the pay of the applicant was fixed in accordance with FR 15(A), but the applicant was further granted the benefit of 1 st ACP or 2nd MACP w.e.f. 01.09.2008 and 18.09.2009. As a result of this omission the applicant continued drawing the Grade Pay of Rs.2,400/-. He was promoted as UDC with effect from 01.10.2016 with the same Grade Pay since he was already drawing the same Grade Pay. He was then proposed after 30 years of service to be granted 3 rd MACP. However, Area Accounts Officer, Navy, Cochin had directed to review the grant of 1 st ACP and 2nd MACP in accordance with the DoPT OMs dated 19.05.2009 and 01.11.2010 produced at Annexures R-5 and Annexure R-6. Accordingly, the 3 rd respondent initiated action for reviewing the benefits of ACP and MACP and the same was intimated to the applicant via Annexure A-3 cancelling the ACP and MACP granted.
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18. It is submitted that the applicant's pay was fixed when he 'rejoined' the Southern Naval Command (INS Venduruthy) at Rs.8,540/- thereby protecting the last pay drawn in his previous unit. His Grade Pay was fixed at Rs.1,900/- in accordance with FR 15(A). But he was erroneously granted 1st MACP in the Grade Pay of Rs.2,000/- w.e.f. 01.09.2008 and 2 nd MACP in Grade Pay of Rs.2,400/- w.e.f. 18.09.2009 (presumably by Annexure A-10) when he was working in INS, Venduruthy and the same was approved by the 4th respondent. These errors were found later and sought to be rectified in 2018 vide Annexure A-13. When the anomaly was observed in Annexure A-13 by the 4th respondent it was returned with a direction to review the ACP/MACP. The 4 th respondent had observed then that the grant of 1st ACP in Grade Pay in Rs.2,400/- and 2 nd MACP in Grade Pay of Rs.2,800/- by Annexure A-13 also was not in order as the applicant had availed two promotions in the previous department first as UDC w.e.f. 30.06.2004 and second as Assistant w.e.f. 04.02.2005. As he has already availed two promotions, he would be ordinarily be eligible only for 3 rd MACP on completion of 30 years of service counting the previous service rendered in the previous Department.
19. It is submitted that the pay of the applicant was fixed at Rs.8,540/- which was his protected pay as on the date of transfer. This pay had included the benefits of promotions which were earned in the previous unit. This was done on the basis of the Office Memorandum produced at Annexure R-1. Further, Annexure R-2 dated 21.10.2009 is relating -21- to fixation of pay in case of employees who seek transfer to a lower post under FR 15(A). The first two paragraphs of this memorandum read as under :
" The undersigned is directed to refer to instructions issued vide this Department's OM NO. 16/6/2001-Estt(Pay-I) dated 14.2.2006 on the above subject. It was clarified therein that on transfer to the lower post/scale under FR 15(a), the pay of a Government servant holding a post on regular basis will be fixed at a stage equal to the pay drawn by him in the higher grade. If no such stage is available, the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. If the maximum of the pay sc~le of the lower post is less than the pay drawn by him in the higher post, his pay may be restricted to the maximum under FR 22(a)(a)(3).
2. Consequent upon implementation of the revised pay structure comprising grade pays and running Pay Bands, w.e.f. 1.1.2006 in cases of appointment of Government servants to posts carrying lower Grade Pay under FR 15(a) on their own request, the pay in the pay band of the Government servant will be fixed at a stage equal to the pay in the pay band drawn by him prior to his appointment against the lower post. However, he will be granted grade pay of lower post. Further, in all cases, he will continue to draw his increments based on his pay in the pay band +grade pay (lower).
...................
..................."
20. The respondents submit that the Grade Pay of Rs.1,900/- was fixed on the basis of the OM at Annexure R-1. This clarifies that the pay in the Pay Band of the Government servant will be fixed at a stage equal to the pay in the pay band drawn by him prior to the appointment against the lower post. However, he will be granted Grade Pay of the lower post. Further, in all cases he will continue to draw his increments based on his pay on the Pay -22- Band plus Grade Pay (lower). Since the applicant joined DSC, Records, Kannur and later under the Southern Naval Command under the 3 rd respondent as LDC, the entry grade of the clerical cadre, the pay was fixed after protecting promotional benefits along with the lower Grade Pay as per the Government instructions. It is further mentioned that the matter was also taken up with the concerned authorities in the Ministry of Defence, Navy and they have indicated vide their letter at Annexure R-7 that the pay fixation is correct. In this letter it is indicated as follows (at paragraphs 2 and 3 of Annexure R-7) :
"2. The matter has been examined and attention of HQSNC is invited to para 2(i) of DOPT OM No.35034/3/2008-Estt.(D) (Vol.II) dated 4th October 2012 which stipulates the following :
'In case of transfer including unilateral transfer on request' regular service rendered in previous organisation/office shall be counted along with the regular service in the new organisation/office for the purpose of getting financial upgradation under the MACP Scheme. However, financial upgradation under the MACP Scheme shall be allowed in the immediate next higher grade pay in the hierarchy of revised pay bands as given in CCS (RP) Rules, 2008. It is now further clarified that wherever an official, in accordance with terms and conditions of transfer on own volition to a lower post, is reverted to the lower post/grade from the promoted post/grade before being relieved for the new organisation/office, such past promotion in the previous organisation/office will be ignored for the purpose of MACP Scheme in the new organisation.
3. In view of the above, it is intimated that in respect of those cases where reversion has not taken place before being relieved from parent organisation and benefits of pay protection have been allowed at the time of unilateral transfer to other organisation/unit and thus the employees had carried the financial benefit of promotion, the promotion earned in previous organisation has to be reckoned for the purpose of -23- MACP Scheme otherwise it would amount to double benefit to the individual. Therefore, views of audit authorities seems to be correct."
(Emphasis supplied) Thus, in view of the above, it is submitted that the contentions of the respondents are sustainable and the pay of the applicant has to be refixed in accordance to FR 15(A) and DoPT guidelines on the subject.
21. Regarding the issue raised by the applicant about his 'technical resignation' it is submitted that the respondents did not actually make an objection to the grant of financial upgradation on the ground that the applicant had only tendered a 'technical resignation' from the previous unit to join the DSC Records, Kannur. The 4 th respondent had just sought a clarification whether the applicant had resigned from service to join the DSC Records, Kannur when the proforma of the applicant was forwarded for approval to the fixation of pay on grant of 1 st ACP and 2nd MACP. The applicant has misconceived this normal query as a 'decision' to review the grant of financial benefit on the ground that he had resigned from service from the parent unit. This is not the case. Further, the respondents reiterate that the protection of pay in respect of the last pay drawn from the previous organization was done as the basic pay of the applicant had been fixed at Rs.8,540/- thereby protecting his last pay drawn and reckoning his service. The additional grant of 1 st ACP and 2nd MACP will result in double benefit to the applicant. Further, it is submitted that the judicial pronouncements in the cases referred to cannot be treated as a precedent since these were -24- granted to the applicants in the said case only in those circumstances and the question of law is still open. It is submitted that none of the respondents have objected to the counting of the service of the applicant in the previous unit. The 4th respondent has objected only to the grant of 1 st ACP in the Grade Pay of Rs.2,400/- and 2 nd MACP in the Grade Pay of Rs.2,800/- after opting for unilateral transfer. Since the applicant had, on his own volition, opted for compassionate transfer to INS Venduruthy, under the 3 rd respondent HQSNC, he should have been not only reverted to the entry post of clerical cadre i.e. LDC but, also should have been eligible only to draw Grade Pay of Rs.1,900/- along with the last pay drawn prior to the unilateral transfer as per DoPT OM and not in the scale of UDC of Grade Pay Rs.2400/- as was done. The basic pay was correctly fixed at Rs.8540/- thereby protecting his last pay drawn and also taking into account his service. This is why the respondents are insisting that the additional grant of the 1st ACP and 2nd MACP would result in a double benefit to the applicant. The correct fixation at the time of his second unilateral transfer to INS, Venduruthy would result in the applicant drawing the same basic pay in the lower pay of Rs.1,900/- and would then be promoted to the post of UDC in the Grade Pay of Rs.2,400/-. Since either 3 rd MACP can be granted on completion of 30 years of service or one promotion after the grant of second promotion/financial upgradation whichever is earlier to an employee, in the instant case, the applicant is not eligible for 3 rd financial upgradation as he has already availed three promotions before completion of 30 years of service. The matter was taken up with the competent authority at -25- Ministry of Defence, IHQ, New Delhi and the decision to cancel the 1 st ACP and 2nd MACP was finalized in accordance with the directives received from them as brought out at Annexure R-7 referred earlier. It is submitted that this is the correct procedure and the applicant was aware of the same as he had accepted the terms and conditions governing the compassionate ground transfer as laid down in Annexure R-1 to Annexure R-4. The reduction of Grade Pay is a guideline of the provision for compassionate ground transfer.
22. It is submitted by the respondents that the Hon'ble Apex Court in Raj Kumar Batra v. State of Haryana [(1992) 1 SCC 129] and Chandigarh Administration v. Narang Singh J.T. [(1997) 3 SCC 536] has held that as and when the mistake is detected the authority is within its right to rectify the same and the mistake can be corrected at any time. Hence, it is a well settled law that a factual mistake can be rectified. The error in fixation of pay that has crept in due to misconstruing the ACP guidelines has to be rectified even at a later date. The same cannot be allowed thereby incurring monetary loss to the Government. Thus, it is prayed that the applicant's prayers in the Original Application should be dismissed.
23. The applicant filed a detailed rejoinder to the above. It is pointed out therein that even in paragraph 3 of the reply statement it has been stated that on joining at HQSNC, the Grade Pay of the applicant was fixed at Rs.1,900/- in accordance with FR15(A). Therefore, even according to the -26- respondents their procedures were perfectly right up to this point. However, it is then submitted by the respondents that after fixing the Grade Pay at Rs.1,900/- the applicant was granted financial upgradation to Grade Pay of Rs.2,000/- from 01.09.2008 and Rs.2,400/- from 18.09.2009 (by Annexure A-10 dated 12.02.2013) as 1st MACP and 2nd MACP. According to the respondents this was the first mistake and an error committed in case of the applicant. In Paragraph 4 of the reply statement at page 3 it is clearly admitted that in cases of unilateral transfer the service rendered would be counted towards MACP benefits. The applicant had completed more than 12 years in total as on 01.09.2008 as he entered service in 1989. It is reiterated that he was granted the 1 st ACP in the absence of any functional promotion vide Annexure A-13. The 1st ACP granted was to the pay to the next promotion i.e. UDC with Grade Pay of Rs.2,400/-. On 18.09.2009 when he had completed 20 years he was granted 2 nd MACP to Grade Pay of Rs.2,800/-. All these steps taken were in complete accordance with the law and followed the right procedure in accordance with the ACP/MACP scheme. Admittedly he had joined service on 18.09.1989 and when he joined as HQSNC on 01.03.2008 in the Grade Pay of Rs.1,900/- as per Annexure A-9, he had completed 19 years of countable service. Therefore, he was granted 1st ACP (12 years) in Grade Pay Rs.2400/- (UDC) w.e.f. 1.3.2008 and 2nd MACP in Grade Pay Rs.2800/- w.e.f. 18.9.2009. Paragraph 8 of the reply statement states that the applicant had availed two promotions in the previous Department, first as UDC w.e.f. 30.06.2004 and second as Assistant w.e.f. 04.02.2005. Therefore, it is contended by the respondents -27- that as he had already availed two promotions he would ordinarily be eligible for the 3rd MACP on completion of 30 years of service duly counting the previous service rendered in the previous Department. But from his Service Book it is clearly evident that while working as an Assistant in the pay scale of Rs.5,500-9,000/- he had granted unilateral transfer to the post of LDC in DSC, Records, in the pay scale of Rs.3,050- 4,590/-. Only his basic pay was protected at Rs.4,590/-. His Service records have been produced at Annexure A-23(a). Even when he was posted at HQSNC his pay was fixed with Grade Pay of Rs.1,900/- which is of LDC. Hence, it is clear from the records that he had joined the DSC, Records, Cannanore and HQSNC after reversion from the post of Assistant to the entry post of LDC. Therefore, he was no longer enjoying any functional promotional benefits when he joined at DSC, Records, Cannanore or at HQSNC.
24. The applicant states that what has been produced at Annexure R-1 to Annexure R-4 O.M's of the DoPT only deals with the pay fixation on unilateral transfer under FR 15(A). The applicant's salary was fixed as per these O.Ms' on unilateral transfer of reversion. Following the ACP and MACP schemes he was subsequently given the 1 st ACP and 2nd MACP financial upgradations. There is no distinction between ACP and MACP as far as these benefits are concerned, but the respondents are keeping silent on this issue. It is clear from the Annexure A-14 clarification relating to MACPS that regular service in the previous organization has to be counted -28- along with the regular service in the new organization for the purpose of MACPS under the Paragraph 24 of the Scheme which has been amended. Further, the clarification issued to the OM dated 09.08.1999 at point No.39 also makes the same point. Thus, there is no mistake even in cases of fixation of the pay of the applicant under FR 15(A) to be given the benefit of ACP and MACP in accordance with the provisions.
25. An important point made in the rejoinder by the applicant is that the benefit of pay protection under FR 15(A) has nothing to do the benefits under ACP/MACP schemes. The fixation under FR 15(A) is a pay protection granted by the rule to the applicant whereas the benefits under ACP and MACP is application of the specific scheme which has to be granted based on the eligibility and completion of the requisite periods of regular service as per the scheme . It is submitted that there can be no question of any double benefit being granted to the applicant as he was reverted to the pay scale of the entry grade of LDC on unilateral transfer from the pay scale of Assistant. Admittedly, therefore, the financial benefits of functional promotion in the earlier establishment were thus cancelled and he was posted at DSC Records, Cannanore in the entry grade of LDC which is Rs.3,050-4,590/-. Even if he got the benefits of the highest pay in that Scale, it is still a fact that he had been reverted to the entry grade of LDC. The reply statement seems to have been filed in complete ignorance of all the clarifications issued by DoPT in regard to the -29- ACPS and MACPS. In Paragraph 4 of the reply it has been stated that on unilateral transfer to a lower post the official is to be treated as fresh recruit in the post he has been reverted to, however, last pay drawn by the official will be protected but the service rendered will be counted towards MACP and pensionary benefits. In fact, therefore, in light of the statement there can be no doubt regarding the eligibility of the applicant for ACP and MACP and it is clear that the respondents are aware of the fact that what is claimed and what was granted are just the benefits secured under the ACP/MACP schemes.
26. It is reiterated that Annexure R-1 to Annexure R-4 are related to pay fixation in case of unilateral transfer pure and simple. They do not take into account the effect of financial upgradation under ACP/MACP benefits. The case of protection of ACP/MACP benefits are provided under point No.39 of the DoPT OM dated 09.08.1999, which is been brought out in Paragraph 23 of the OA and Paragraph 24 of the DoPT OM dated 19.05.2009, which is been brought out in Paragraph 22 of the OA. The respondents have ignored these documents and are attempting to project that the case is that of a unilateral transfer only. However, actually it is a case of protection of financial upgradation gained under the ACP and MACP on unilateral transfer. The case is covered by Annexure A-18 and Annexure A-19 orders passed by this Tribunal. In addition, another order passed by this Tribunal in O.A.No.124/2021 followed the earlier orders and held that the benefit -30- granted under ACP/MACP cannot be truncated on unilateral transfer (Annexure A-24). It is thus submitted that Annexure R-1 to Annexure R-4 OMs will stand modified therefore, to the extent indicated by the ACP/MACP guidelines dated 09.08.1999 and 19.05.2009 respectively. From this it is evident that what is lost in a unilateral transfer is seniority and not service and even so, in the case of unilateral transfer, the employee will carry the benefit of the service earned by him.
27. The applicant, therefore, contends that the Annexure A-13 ACP/MACP granting order was issued relying upon the OMs dated 09.08.1999 and 19.05.2009 (as also allowed by the Tribunal in Annexure A-18 and Annexure A-19 orders). Even the Annexure R-7 letter about his case produced by the respondents only indicates that where reversion of the employee has not taken place before being relieved from parent organization and benefits of pay protection had been allowed at the time of unilateral transfer to other organization and thus the employee has carried the financial benefit of promotion, the promotion earned in previous earned organization has to be reckoned for the purpose of MACP scheme otherwise it will amount to double benefit. In this case the applicant who was unilaterally transferred was eligible for counting the service he had rendered in the previous organization for getting the ACP/MACP benefits. This was done by Annexure A-13 because he had relinquished the benefit of his previous promotion. He had been reverted and had lost all benefits of -31- that promotion. However, what was lost was seniority but not service. The benefits of service cannot be denied to the applicant at any costs. There is no meaning in saying that after protecting the ACP benefits or MACP benefits that the Grade Pay corresponding to the lower scale alone will be granted. What is stated in Annexure R-7 is that on unilateral transfer the incumbent will have to sacrifice the functional promotions and consequential financial benefits gained. The idea underlining the principle is that on unilateral transfer the incumbent will have join in the entry grade with bottom seniority. Therefore, he cannot carry with him the promotion granted to him in earlier establishment. In Annexure R-7 all that is stated is that in cases where reversion has not taken place on unilateral transfer and thus the employee has carried the financial benefit of the promotion, the promotion earned in the previous organization has to be reckoned for the purpose of MACPS. But this cannot be intertwined with the eligibility to get financial benefit under the ACP and MACPS since as per the scheme itself the previous service is to be reckoned for the grant of financial benefit under the ACP and MACPS in the new establishment.
28. Further, it is relevant to note that proposal to grant him the benefit of the 3rd MACP has been rejected on the ground that he had 'already availed three promotions' during service. It is submitted that the respondents seem confused about the nature and effect of an unilateral transfer. An unilateral transfer by nature entails reversion and loss of promotions earned and the joining at bottom seniority, which is clear by the Annexure A-5 and -32- Annexure A-9 orders which showed that he had to join HQSNC as an LDC. Thus, on 01.03.2008 when he joined HQSNC as LDC he carried no promotion benefit whatsoever. That's why he was granted the 1 st ACP and 2nd MACP immediately on joining at HQSNC by considering the fact that he had 20 years of regular service to his credit. It was only as late as 01.10.2016 by Annexure A-11 that he was finally regularly promoted to the post of UDC. Hence, it is wrong to contend that the applicant had three promotions to his credit when he was promoted to UDC only in 2016. In other words, after grant of the Grade Pay of Rs.2,800/- with effect from the date of completion of 20 years of service on 18.09.2009, he was not granted any further upgradation and, hence, he was eligible to get the grant of 3 rd MACP on completion of 30 years of continuous service on 18.09.2019. This is also covered by the MACP scheme produced at Annexure R-5 Paragraph
28. He had received only one regular promotion to the post of UDC in his total service and, hence, due to this, there should not be any doubt that he is eligible to get 3rd financial upgradation on completion of 30 years of service, i.e. with effect from 18.09.2019. Hence Annexure A-25 order dated 18.06.2022 issued turning down his 3 rd financial upgradation under MACP during the time this matter has been under consideration by the Tribunal herein is illegal.
29. We have considered all the above averments and we must note at the outset that the applicant and the respondents have furnished very detailed statements along with records. This normally should make our task -33- easier but it is so only after we cut through the unnecessary repetitions and convoluted explanations. However, in what has been elaborately brought out earlier, we have tried to focus on the essential and relevant points only. We find that it is in the rejoinder that the applicant has specifically addressed the main issues directly. We broadly agree with the points made by the applicant in the rejoinder. In its essence, the case boils down to the basic question of whether, the applicant having been reverted to the post of LDC, albeit after joining the DSC Records, Kannur from the AFHQ (though not before being released from the AFHQ) can be considered to have therefore been 'reverted' to the post of LDC in terms of the clarification given by DoPT in its OM No.35034/3/2008-Estt.D Vol.II, dated 4 th October, 2012 at paragraph 2(i)? In our view after cutting through all the details it does not matter whether the reversion took place before he was released to join at the post or if it was done after he had joined at the new post of DSC, Kannur. What appears relevant is that he was initially fixed in the pay scale of LDC at the maximum (to enable his right for pay protection) but with Grade Pay of Rs.1,900/- after implementation of the 6 th CPC at HQSNC. Therefore, in effective terms, as has been brought out in the rejoinder, his point that he has to be treated as fully reverted to the post of LDC with his promotions given at AFHQ to UDC as well as Assistant effectively being removed has to be accepted. If we accept this position it is then clear to us that he is eligible for the grant of ACP and MACP, as per the OMs of the DoPT as per his entitlements at the relevant point of time. Thus, from a perusal of all the documents that have been provided, we find that there -34- does not appear to be any mistake which was committed by the respondents (unlike what has been advised by the audit authority) in granting the ACP/MACP benefits with effect from 01.03.2008 and 18.09.2009 respectively as per the Annexure A-13 order in his case.
30. The AAO (Navy), the 4th respondent, seems to have gone into issues relating to technical resignation etc. in his initial communications, though later, they appear to have tried to keep some distance from such issues in the contentions in the reply statement. To our mind these issues were raised completely out of context and pushed the matter in a different direction. At the same time it is indeed trite that every case is different and has to be judged in the facts and circumstances obtaining in the unique situation. This is particularly true in cases of pay fixation and grant of ACP/MACP. Our findings herein need not necessarily lead to lessons being drawn to cover all cases of grant of ACP/MACP after unilateral transfer or reversion to bottom seniority in a new Establishment. For example, we feel that the cases that have been produced by the applicant as being similar appear to be for situations which are a little different from this particular case. The cases at Annexure A-18 and Annexure A-19 seem to cover matters where the applicants were given the benefit of a specific Grade Pay in the original post and when they were reverted to the new post at the new Establishment the benefit of the earlier Grade Pay was not retained and the Grade Pay was fixed at a lower level. It was found by this Tribunal in those OAs that such cuts in Grade Pay was not correct, because Grade Pay had been defined to -35- be part of basic pay. In contrast in this case the Grade Pay of Rs.1900/- (LDC) was given only after he came to the HQSNC to which post he had moved from DSC Records, Kannur. All increases in the Grade Pay given to the applicant because of ACP/MACP were from this lower level. Hence, we are not relying on the other decisions produced while passing this order and we have come to our conclusions independently of them.
31. As earlier stated, we are in agreement with the contention made by the applicant in his rejoinder that his previous service at AFHQ Delhi has to be counted as per the MACP/ACP circulars which govern the field, notwithstanding whatever is contained in the matter of fixation of pay in the Annexure R-1 to Annexure R-4 circulars. Those circulars specifically relate to the fixation of pay, whereas, the MACP and ACP circulars clearly bind the authorities to grant the financial upgradation after taking into account service in the previous organisation. Overall therefore, we do not found any error committed by the respondent authorities in HQSNC in fixing the pay as per Annexure A-13. In this connection, we also note that while audit authorities do have the right to prefer their advice in such cases there have to be some time limits. We have come across a recent circular of the DoPT which has laid down that audit authorities should not wake up so many years after a particular pay has been fixed. In addition to this, with regard to recovery of wrongful/excess payments made to Government servants the same DoPT O.M., No.18/03/2015-Estt.(Pay-I) dated 03.10.2022, at Paragraphs 4 and 5 states as follows :
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"4. In this context, it is observed that the time taken by the Ministries/Departments/Offices to discover mistakes/clerical faults in pay fixation of their employees is highly avoidable. The situation of overpayments occurs on account of erroneous calculation of payments due to an employee. If not detected in time, amount becoming due for recovery due to these excess payments keep accruing. In many cases, these overpayments come to notice of the administrative authority at a very late stage resulting in substantial amounts becoming due for recovery. However, in the wake of the order dated 18.12.2014 of the Hon'ble Supreme Court referrd above, these recoveries are to be considered for waiver in the types of cases identified therein. As a result, the administrative authorities concerned are compelled to explore other alternatives available to recover the amount involved or seek approval of the D/o.Expenditure to waive off the same in accordance with the procedure prescribed in this Department's OM dated 02.03.2016 read with the instructions contained in DoPT's OM No.18/26/2011-Estt.(Pay-I) dated 06.02.2014.
5. The matter has been examined in consultation with the D/o.Expenditure. It is advised that -
(i) Ministries/Departments/Offices may exercise extreme caution and take suitable measures while handling pay fixation of their employees as also in other cases involving payments so as to ensure that such lapses/mistakes do not occur.
(ii) Pay fixation orders issued due to grant of MACP/ACP/financial upgradation/increment/promotion etc. may necessarily be audited by the internal audit and/or the Pay & Accounts Office concerned within 3 months of issuing such orders; and
(iii) In cases where the employee is due to retire within next 4 years, audit of previous pay fixation orders shall be done on priority."
32. Having therefore considered all the relevant issues we are allowing the reliefs sought for in full. The respondents are directed not to take further steps pursuant to Annexure A-1, Annexure A-2, Annexure A-3 and -37- Annexure A-3(a). The respondents may also take necessary steps for granting the 3rd MACP to the applicant as per the due date when he had completed 30 years of service on 18.09.2019. They may also release all the pension, gratuity and other retirement benefits on this basis, which have been held up pending the finalization of this OA. All the relevant steps in this regard should be completed within a period of two months from the date of issue of this order. The O.A is accordingly allowed.
33. In view of the above orders in O.A., M.A.No.180/612/2022 is closed. No order as to costs.
(Dated this the 13th day of December 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00081/2022
1. Annexure A-1 - A copy of the Communication
No.PAY/112/CIV/CORRS/VOL.XI/023 dated 10.01.2019.
2. Annexure A-2 - A copy of the Communication No.PAY/112/CIV/CORRS/VOL-XIV/006 dated 24.06.2019.
3. Annexure A-3 - A copy of the Letter CS 2762/33/MACP dated 29.01.2021.
4. Annexure A-3(a) - A copy of the CE List No.66/2021 dated 19.06.2021.
5. Annexure A-4 - A copy of the Appointment Order No.A/34121/R.No.1725/CAO/R-1 dated 21.09.1989.
6. Annexure A-4(a) - A copy of the relevant extract of the Office Order No.223/VB/III/PC-I/2004 dated 01.12.2004 issued by the Air Headquarters.
7. Annexure A-5 - A copy of the posting/transfer Order No.15984/Nov/2004/MP-4(Civ)(b) dated 05.11.2004 and the relevant extract of the employees transferred.
8. Annexure A-6 - A copy of the Letter No.Air HQ/22940/45266/Tech Resig/III/PC-I dated 03.02.2005 issued from the Air Headquarters to the Officiating Chief Records Officer, DSC Records.
9. Annexure A-7 - A copy of the Order No.15984/Jan/2008/MP-4(Civ)
(b) dated 08.02.2008 and the relevant extract of the employees transferred.
10. Annexure A-8 - A copy of the Civilian Establishment List No.10/2008 dated 11.03.2008.
11. Annexure A-9 - A copy of the relevant extract of CE List No.41/2010 dated 22.12.2010.
12. Annexure A-10 - A copy of the Civilian Establishment List No.05/2013 dated 12.02.2013 granting the applicant his 1 st and 2nd financial upgradation under the MACPS.
13. Annexure A-11 - A copy of the Civilian Establishment List No.127/2016 dated 12.10.2016 showing promotion of the applicant to the post of UDC.
14. Annexure A-12 - A copy of the Civilian Establishment List No.142/2016 dated 08.11.2016.
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15. Annexure A-13 - A copy of the Order No.CS 2762/33/MACP dated 24.07.2018 and relevant extract of the list of employees.
16. Annexure A-14 - A copy of the DoPT OM No.35034/3/2008-Estt.(D) (Vol.II) dated 01.11.2010.
17. Annexure A-15 - A copy of the Letter No.PA/05/5030/01 dated 20.07.2019.
18. Annexure A-16 - A copy of the DoPT OM No.28020/1/2010-Estt.(C) dated 17.08.2016.
19. Annexure A-17 - A copy of the Letter No.PA/05/5030/01 dated 22.10.2020.
20. Annexure A-18 - A copy of the order passed by this Tribunal in O.A.No.440/2012 dated 19.06.2015.
21. Annexure A-19 - A copy of the order passed by this Tribunal in O.A.No.1094/2012 dated 19.06.2015.
22. Annexure A-20 - A copy of the Last Pay Certificate dated 19.09.2005 issued by the Air HQ on his transfer to DSC Records.
23. Annexure A-21 - A copy of the admission form of the applicant to the GPF account issued by the office of the CDA (Navy) signed by the Accounts Officer (Navy) dated 03.06.2009.
24. Annexure A-22 - A copy of the O.M.No.f.No.18/03/2015-Estt.(Pay-
1) dated 02.03.2016.
25. Annexure A-23 - A copy of the interim order dated 05.11.2021 in O.A.No.570/2021.
26. Annexure A-23(a) - A copy of the relevant extract of the service book of the applicant with the endorsement of pay fixation as on 04.02.2005.
27. Annexure A-24 - A copy of the order of this Hon'ble Tribunal in O.A.No.124/2021 dated 11.05.2022.
28. Annexure A-25 - A copy of the Order No.PA/05/2420/1366 dated 18.06.2022.
29. Annexure A-26 - A copy of the Order No.PA/05/2420/1366 dated 09.04.2022.
-40-30 Annexure R-1 - A copy of the DoPT OM F.No.16/6/2001-Estt., dated 14.02.2006.
31. Annexure R-2 - A copy of the doPT OM F.No.13/9/2009-Estt.(Pay- I) dated 21.10.2009.
32. Annexure R-3 - A copy of the DoPT OM No.16/4/2012-Pay-I dated 05.11.2012.
33. Annexure R-4 - A copy of the DoPT OM No.12/1/2016-Estt.(Pay-I) dated 31.03.2017.
34. Annexure R-5 - A copy of the DoPT OM No.35034/3/2008-Estt.(D) dated 19.05.2009.
35. Annexure R-6 - A copy of the DoPT OM No.35034/3/2008-Estt.(D) (Vol.II) dated 01.11.2010.
36. Annexure R-7 - A copy of the Integrated Headquarters of Ministry of Defence (Navy), New Delhi Letter No.CP(P)/8416/MACP dated 28.10.2020.
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