Central Administrative Tribunal - Cuttack
Umesh Prasad Panda vs Accountant General on 29 April, 2025
1 O.A.260/00564 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00564 of 2022
Reserved on 15.04.2025 Pronounced on :29.04.2025
Coram : Hon'ble Mr. Sudhi Ranjan Mishra, Member (J)
Hon'ble Mr. Pramod Kumar Das, Member (A)
Umesh Prasad Panda, aged about 59 years, S/o- Late Jagneswar
Panda, At- Qr. No. Type-III-70, Old A.G. Colony, Unit-4,
Bhubaneswar-751001.
......Applicant
VERSUS
1. Union of India represented through its Secretary to the
government, Ministry of Finance, Department of Expenditure,
North Block, New Delhi.
2. The Comptroller and Auditor General of India, At Pocket- 9,
Deen Dayal Upadhyay Marg, New Delhi-110124
3. The Accountant General (A&E), Bhubaneswar, Orissa.
......Respondents
For the applicant :Mr. A.K. Bose, Counsel
For the respondents :M/s. S.K. Patra, B.R. Rath , Counsels
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O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
The gist of the matter is that the respondents department issued order dated 18.06.2018, for grant of Non Functional Upgradation (NFU) to the official on completion of four years in the grade of Rs. 4800/- to GP Rs. 5400/-. In letter dated 05.09.2018, the respondents clarified that service rendered as AAO (Ad hoc) and AAO (RT) should not be counted for calculating four years service so as to be eligible for NFU. Since the case of applicant falls within the parameter of the letter dated 05.09.2018, he submitted representation against the aforesaid order which was rejected on 29.09.2021. Thus, being aggrieved by the order of rejection, the applicant has approached this Tribunal in the instant OA with prayer to declare that he is entitled to Non-Functional Upgradation (NFU in short) Grade Pay of Rs. 5400/- w.ef. 01.01.2016 in Pay Matrix Level-9 and, accordingly, direct the respondents 2 and 3 to pay him the differential arrears by quashing the order of rejection dated 29.09.2021 and letter dated 05.09.2018.
2. Respondents filed their counter contesting the case of the applicant, the grounds raised in support of their stand have been highlighted by learned counsel for the respondents, in course of 3 O.A.260/00564 of 2022 hearing, besides stating that similarly situated/circumstanced employees working in the office of the AG (A&E), Kerala, Thiruvanathapuram approached before CAT, Ernakulam Bench in OA No. 753/2009 (Hema T.M. & Ors Vs. UOI and Ors.) with the same and similar reliefs as in the present case. The Ernakulam Bench of the Tribunal after taking into consideration the facts of the case, rule position and the decisions of Hon'ble Apex Court in various cases have ultimately rejected their prayers vide order dated 12.04.2004.
It is stated that the present case being same and similar, it is stated that by applying the doctrine of precedence as held by the Hon'ble Apex Court in the case of S.L.Rooplal & Anr. Vs. Lt. Governor through Chief Secretary, Delhi & Ors, AIR 2000 SC 594, this OA being devoid of merit is liable to be dismissed.
3 It is the specific case of the respondents that similarly situated/circumstanced employees working in the office of the AG (A&E), Kerala, Thiruvanathapuram approached before CAT, Ernakulam Bench in OA No. 753/2009 (Hema T.M. & Ors Vs. UOI & Ors.) with the same and similar reliefs as in the present case and the Ernakulam Bench of the Tribunal in a detailed order dismissed their cases and the present case being one and the same, this OA is also liable to be dismissed.
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4. We have examined the pleadings and arguments advanced by the Ld. Counsel for the applicant noted above with reference to the case before the Ernakulam Bench in the case of Hema T.M. & Ors.
(supra). The relevant portion of the decision is extracted herein below:
26. We have heard the contentions of both sides in detail during oral submissions. The learned counsel for the respondents Shri Vineeth Komalachandran (appearing for K.I. Mayankutty Mather) brought forth a few additional points, by citing some judgments that he felt were relevant in this context. He drew attention to the observations of the Hon'ble Supreme Court in Union of India & Anr. vs. Amrik Singh & Ors. 1994 (1) SCC 269. This judgment was in relation to a matter of whether instructions dated March 21st 1978 issued by the C&AG of India, prescribing the minimum period of service as Section Officer for eligibility for promotion as Accounts Officer was inconsistent with any of the provisions in the Indian Audit and Accounts Department (Administrative Officers, Accounts Officers and Audit Officers) Recruitment Rules, 1964 etc. It was observed by the Apex Court in paragraph 9 as follows:... As is held by this Court in the Accountant General vs. S. Doraiswamy, AIR 1981 SC 783, the Comptroller and Auditor General of India has the necessary competence to issue Departmental Instructions on matter of conditions of service of persons serving in his Department as its head, even after rules are made by the President on conditions of service of such persons in exercise of his powers under Article 148(5) of the Constitution'. It was further held that 'It is no doubt true that the Administrative Instructions so issued on matters relating to conditions of service of persons in the Department cannot prevail over the rules issued by the President under Clause (5) of Article 148 of the
5 O.A.260/00564 of 2022 Constitution, if the same comes in conflict with any provision made in the rules on such matter. It was then held that the concerned provision in relation to the Instructions dated March 21st 1978 under consideration is made with the required competence by the Comptroller & Auditor General of India. It is submitted by learned counsel that this proves the ability and competence of the C&AG to make the required arrangement and issue instructions in relation to the terms and conditions of lower level staff working under him. This includes in this conted the creation of the position of AAD (Adhoc/RT) as a temporary measure for the specific purpose of providing more promotional scope for those working for long periods in the lower posts.
27. Learned counsel for the respondents also drew our attention to K. Madhavan & Anr, vs Union of India & Ors, 1987 (4) SCC 566, where the Hon'ble Apex Court went into the issue of what the expression on a regular basis implies. According to him, this is very relevant as the respondents ha taken the position in this OA that since the applicants had been holding their positions as AAO (Adhoc/RT) on a temporary basis, they cannot be considered as fulfilling the condition of 4 years 'regular service to be granted NFU. The Hon'ble Supreme Court had held that the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contra-distinction to appointment on an adhoc/stop-gap or purely temporary basis Similarly. in Union of India & Ors vs KB Raajoria, 2000 (3) SCC 562. the Hon'ble Supreme Court had held that the High Court had erred in construing the words 'regular service in the grade' as actual physical service. It was held that if that were so then an adhoc appointee who actually serves in the port could also claim to be qualified to be considered for the post of Director General of the CPWD in the matter therein. Further, while considering the definition of the word 'regular the Concise Oxford Dictionary in K.B. Rajoria (supra), it was held that the word regular does not mean actual. The Hon'ble Apes Court in this connection also referred to the findings in K. Madan (supira) that the expression on a regular basis 6 O.A.260/00564 of 2022 would mean the appointment to the post am a regular basis in contra-distinction to appointment on an adhoc or stop-gap or purely temporary basis. Hence, it is submitted by the learned counsel for the respondents that these pronouncements of the Hon'ble Supreme Court are clearly in favour of the respondents, as the rules for NFU provide that there has to be 4 years regular service in the Grade Pay/Pay Level concerned for the NFU to be granted to the next Grade Pay/Pay Level.
28. Learned counsel for the respondents also drew our attention to Parmod Kumar vs State of Haryana, 2018 (0) Supreme (P&H) 4495, where it was held that the petitioners were not entitled to count their period of adhoc/work charged/temporary service towards seniority in the cadre before the dane they were regularized and became members of service for the Orst time in terms of the relevant policies of State Government. Learned coutusel also pointedly drew our attention to a similar matter as in the present OA had been considered by the Jabalpur Bench of this Tribunal in Anand Purohit vs Union of India & Ors, in 0.A.No.1010/2010 decided on 07.08.2013. This was in the matter of pay fixation in a case of adhoc promotion followed by regular promotion without break. The contention therein was that sunce there is te definition of 'regular service' either in the Fundamental Rules (FR) or by a specific Circular, any service from the date of adhoc promotion should be considered as regular service, particularly since the applicant therein had been getting all increments in the month of July, based on the date of his adhoc promotion. The Tribunal however held that while it is true that the regular service has not been specifically defined in the FR, there was still no reason to accept adhoc service as regular service, as otherwise, there would have been no need to make a separate mention about adhoc promotion' in FR 22 and other rules under the FR. Hence, drawing from this, the Tribunal observed that the approved scheme for grant of a higher Grade Pay of Rs.5400/- by way of Non Functional Upgradation specifically mentions that only those officers were eligible, who had completed four years of regular service as an 7 O.A.260/00564 of 2022 Income Tax Officer. Thus, it was held that the four year period was to be counted from the date of regular promotion and not from the date of adhoc promotion. In other words, learned counsel for the respondents submitted that in effect in a similar matter of eligibility for entitlement to Grade Pay of Rs.5400/- to an officer who wanted his adhoc service to be counted, the Jabalpur Bench of this Tribunal had not agreed with the contention.
29. Learned counsel for the respondents also drew attention to an Office Memorandum (O.M) of the Department of Personnel & Training No:F.No.5/4/2005- CSI(S) dated 14.09.2022 which was in relation to grant of Non Functional Scale to Section Officers of Central Secretariat Service and Central Secretariat Stenographers Service. This had indicated, inter-alia, as follows: "..It is reiterated that in terms of FR 17(1), Section Officers of CSS cadre appointed to the aforesaid grade from CSSS cadre ie, PS (Adhoc/regular), were not holding the post of Section Officer as on the date of grant of NFS ie., 01.07.2019, but were officers of CSSS holding the post of PA/PS (Adhoc). Hence, the actual financial benefit is not admissible to them from 01.07.2019 but is admissible only from the date of their assumption of the charge of the post of Section Officer on regular basis." In addition, learned counsel for the respondents submitted that the matter was part of the discussions held on 16.09.2019 by the Dy.C&AG (HR & Training) with the office bearers of the All India Audit & Accounts Association. It appears that in relation to the demand for grant of NFU to Level 9 to adhoc AAOs, it was responded as: "SAS is the qualifying examination for promotion as AAO. In some field offices especially in A&E offices sufficient vacancies are not available for granting promotion to the SAS qualified personnel. The RT/Adhoc posts were created to encourage the SAS qualified staff waiting for promotion as AAOs. The AAO (Adhoc/RT) continue to perform the work of the posts, from which the official was appointed as AAO (Adhoc/RT), Such officials are not regular AAOs. Hence granting of NFU is not possible. The benefits of financial upgradation under ACP/MACP are however permissible to 8 O.A.260/00564 of 2022 ΑΛΟ (Adhoc/RT). This agenda item may be treated as closed."
30. It is thus contended that in terms of the DoP&T O.M above, as well as the results of the discussion with the IA&AD Association, it has been fairly well accepted by the Government as well as by the IA&AD that the matter of granting NFU to AAOs holding (Adhoc/RT) positions is not possible. In fact the matter is to be treated as closed. We examined the issues carefully. We must note that the above detailed contentions made by the respondents both in their reply statements and in the oral submissions were not effectively countered by the applicants. It is specifically the issue raised by the respondents that Adhoc/RT services of the applicants cannot be counted as regular service, both by way of established judicial precedents or even as is generally understood, however much the applicants contend that they were doing similar work as regular AAOs and, in some cases, even work of a supervisory nature. Just performing additional or even supervisory duties does not prove that the applicants were in regular service. What is required by the NFU Scheme is to be in regular service and that is the main criteria before the grant of upgradation to Rs.5400/- Grade Pay/Pay Level 9 in the Pay Matrix on completion of 4 years in the Lower Grade Pay of Rs.4800/-. This is clearly a settled matter for the DoP&T, which is in charge of the establishment issues of the Government of India. It appears settled in the C&AG as well, as evidenced by the record note of discussion with the employees association as above. In any case, the respondents have provided more than enough material in their reply statement in relation to the powers of C&AG to establish that the 1 st respondent (C&AG) has full powers in relation to creation of temporary posts or the effective management of the cadre under him. Thus, we agree that a temporary measure which was effected in order to provide some opportunities to the staff who had passed the required qualifying examination. but had been waiting for years together without promotion cannot be held to establish grant of further benefits.
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31. We have also noted that a process has been undertaken by the respondents to provide a channel of movement from the lower level first by upgrading the posts to the position of AAO (Adhoc) and then further to the position of AAO (RT) and to final regularization as AAO. Such a process cannot be held to be identical or even similar to the process of regular promotion/appointment to the post of AAO. These are completely two different processes which cannot be confused with each other Further, even if there may be some overlap in terms of duties and responsibilities between AAOs (regular) and AAOs (Adhoc/RT) that cannot be held as sufficient as we have seen. It is not that this is a simple matter of 'equal pay for equal work as is being sought to be established by the applicants. There was a specific contention by the respondents as we have seen that the purposes behind these positions were different and that one cannot be confused with the other, however much the nomenclature or even duties are the same Further, they have contended that there has been no change in the number of posts within the cadre as a whole. In sum, we are in agreement with the detailed contentions made by the respondents in this O.A.
32. Thus, in view of all the above comaderations and in light of the findings of the Hon'ble Supreme Court brought out earlier, we are unable to accept the contentions made by the applicants. The OA is accordingly dismissed. We make no order as to cost.
5. Further similar matter came up before this Tribunal in O.A. No.325 of 2022 (V. Ananda Bhatta Vs. Union of India and Others) which was disposed of on 14.11.2024 and this Bench placing reliance on the aforesaid decision also dismissed the O.A. on 14.11.2024.
6. It is note worthy that one Sri Ashutosh Das, who was similarly situated like the present applicant, also approached this Tribunal in 10 O.A.260/00564 of 2022 OA No. 301/2022 and, this Tribunal, with detailed discussions and deliberation, in a well reasoned order, by following the decision in the case of Hema T.M. & Ors. (supra), dismissed the OA by observing as under:
"7 Add to the above, it may be recorded that it was specifically decided by the competent authority that only four years "regular" service is to be counted for grant of NFU, as a matter of policy, and self restraint by the Tribunal in such policy matter is mandated by law. Accordingly, we see no ground to take a different view than the view already taken by the Ernakulam Bench, especially, in view of the well settled proposition of law that the precedents which enunciate rules of law form the foundation of administration of justice under judicial system as held by the Hon'ble Apex Court in SL.Roop lal and another (supra) On examination, we find that not only the applicants before the Ernakulam Bench but also the present applicant belong to the same department and same cadre, the foundation led in both the cases are also same and simular leaving no scope for this Bench in the present case to take a different view than the view already taken by the Coordinate Bench of this Tribunal Therefore, since the Ernakulam Bench after analyzing and answering all the points dismissed the OA, we do not find any justifiable reason to resterate the same discussions herein again"
7. In this case, no material has been placed by the learned counsel for the applicant that orders referred to above have been set aside by any higher forum or reviewed by this Tribunal. No such new 11 O.A.260/00564 of 2022 material has been brought to our notice by the applicant to take a different view than the view taken in earlier cases referred to above.
8. Thus, on examination of this case with the cases referred to above, we find no merit in this O.A. which is accordingly dismissed.
Pending M.As if any, is accordingly disposed of. No costs.
(PRAMOD KUMAR DAS) (SUDHI RANJAN MISHRA) MEMBER (A) MEMBER (J) KB/PS