Central Administrative Tribunal - Ernakulam
K.A. Abdul Vahid Kunju vs Union Of India on 17 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH, ERNAKULAM
O.A.No. 180//00040/2014
Dated Tuesday , this the 17th day of May, 2016
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE MRs. MINNIE MATHEW, ADMINISTRATIVE MEMBER
1. K.A. Abdul Vahid Kunju, aged 67 years,
S/o Abdul Rahiman Kunju, Senior Audit Officer (retired)
O/o the Principal Accountant General (Audit),
Kerala, Residing at TC 12/1056, Barton Hill,
Trivandrum 695035.
2. P.C. Mathew, aged 67 years,
S/o late Chacko, Senior Audit Offier (retired)
O/o the Principal Accountant General (Audit),
Kerala, residing at 'Pulickathottil', Peroor P.O,
Kottayam. .... Applicants
(Applicant Mr. Shafik M.A., Advocate)
v.
1. Union of India,
represented by the Secretary,
Department of Expenditure,
Ministry of Finance, North Block,
New Delhi 110 001.
2 The Secretary to the Government of India,
Department of Personnel, Ministry of Personnel,
Public Grievances and Pensions,
New Delhi 110 001.
3. The Comptroller and Auditor General of India,
New Delhi.
4. The Principal Accountant General (Civil & Comml. Audit)
Kerala, Trivandrum -695001. . . . . . Respondents
(Respondents by Mr.Vineeth Komalachandran for
Mr. K.I. Mayankutty Mather, Advocate (R1- 4) )
This Application having been finally heard and reserved for orders on 08.03.2016 and the
the Tribunal on 17/05/2016 delivered the following:
ORDER
Per: MR. U. SARATHCHANDRAN, JUDICIAL MEMBER:
M.A.No.180/00048/2014 for joining together of applicants is allowed. Applicants were working as Senior Audit Officers in the office of respondent No.4. The first applicant retired on superannuation with effect from 1.4.2006. The second applicant also retired on 30.4.2006. Both of them were drawing the maximum pay of Rs.13,500/- in the pre-revised scale of Rs. 8000-13500/-with effect from 1.3.2005 . Their pay in the revised pay scale was fixed at Rs.30,510/- with effect from 1.1.2006. As per first proviso to Rule 10 of the C.C.S. (Revised Pay) Rules 2008 [CCS(RP) Rules 2008] for persons drawing maximum of the existing scale for more than a year as on 1.1.2006 an increment in the new scale would be given on fixation of pay on coming over to the new scale on 1.1.2006 and thereafter they would be given the next increment on 1.7.2006. Applicants have reached the aforesaid one year period on 1.3.2006. They are aggrieved as the benefit under the proviso was limited to those who reached maximum of the scale on 1.1.2005 only, they were deprived of the benefits of the said proviso as well as the normal increment due to them on 1.3.2006 even though they have satisfied the condition in the proviso i.e. 'persons who had been drawing maximum of the existing scale for more than a year' before retirement. The applicants allege that they are incurring a monthly financial loss of Rs. 460/- per month, loss in pensionary benefits and also loss in the quantum of terminal benefits like DCRG, leave encashment and commutation of pension totaling Rs. 36200/- approximately.
2. Applicants contend that in para 2.2.19 sub para (xii) of the recommendations of the 6th Central Pay Commission (CPC) the pay scales were made in such a way that no employee ordinarily stagnates at any stage in his/her career. It was also stated that 'to ensure that no stagnation takes place, in any case, it was further recommended that a person stagnating at the maximum of any pay band for more than one year continuously shall be placed in the immediate next higher pay band without any change in the grade pay.' Though the applicants had reached the maximum of the existing scale on 1.3.2005, the benefit of increments as per first proviso to Rule 10 was not allowed to them on 1.3.2006, even though they drew the maximum of the existing scale for more than a year as on that date. According to the applicants just because the date of their last increment happened to be 1.3.2005 as against 1.1.2005, this amounted to attaching more importance to a particular date than to the spirit and intention of the VIth C.P.C. recommendations.
3. Applicants argue that the wording in Rule 5 of the CCS (RP) Rules 2008 providing for option to come over to the revised scale either from 1.1.2006 or from the next date of increment or from the date of promotion has introduced severe limitations on availing the benefit of the option on a later date thereby negating even the spirit of an option. They contend that the wording has the effect of excluding those who are on the verge of retirement with no increment or promotion due beyond 1.1.2006. According to the applicants this is highly irregular and arbitrary and therefore has to be interfered by this Tribunal. As applicants and their service association have sent representations and as the issue was taken up by the member of the JCM, the matter was considered by the National Anomaly Committee in its meeting on 17.7.2012. But respondent No.2 informed the applicant no.1 that the issue falls in the domain of respondent No.1. Finally by A/14 website information the applicants came to know that the case has been closed and that the request for enhancement of the pay of applicants could not be acceded to as per the provisions in the CCS (RP) Rules 2008. Hence the applicants have approached this Tribunal seeking relief as under:
(i) To call for the records relating to A-1 to A-3 and to declare that the denial of the increment on stagnation in the scale, to the applicants as illegal and arbitrary and against the principles of natural justice.
(ii) To direct the respondents to permit the applicants to opt the revised scale corresponding to Rs.8000-13500 with effect from 1.3.2006 the date on which they have completed drawing maximum of the existing scale for more than a year, on the analogy of 1.1.2005, 1.1.2006 and allow the benefit as per provision (1) to Rule 10.
(iii) To pass such other or directions as deemed just fit and necessary in the facts and circumstances of this case.
(iv) To award costs of this application.
4. Respondents filed reply statement with the following contentions:
As per the proviso to Rule 10 if an employee reaches the maximum of his pay band he shall be placed in the next pay band after one year of reaching such maximum and at the time of placing in the next higher pay band the benefit of one increment will be provided. Thereafter he will continue to move in the higher pay band till his pay in the pay band and reaches in the maximum of Pay Band No.3 after which no further increment will be granted. Since the applicants did not draw maximum of the existing scale of pay for more than one year as on Ist day of January 2006, the said proviso has no application in their case. As per Rule 5 of CCS (RP) Rules 2008, the option to switch over to the revised pay structure from a date later than 1.1.2006 is available to a Government servant:
(i) Who elects to continue to draw pay in the existing scale until the date on wich he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw py in the scale.
(ii) Who hs been placed in a higher pay scale between 1.1.2006 and the date of notification of these rules (29.9.2008) on account of promotion, upgradation of pay scale etc. The Government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc.)
5. Respondents contend that the employees who were due to get their annual increment between February to June during 2006 should be granted one increment on 1.1.2006 in the pre-revised scale as an one time measure and thereafter will get the next increment in the revised pay structure on 1.7.2006 as per Rule 10 of CCS (RP) Rules 2008. Since the applicants were drawing at maximum scale in their post with effect from 1.3.2005 and since stagnation increment falls due only on completion of two years i.e. with effect from 1.3.2007, they are eligible for earning increment in March 2006.
6. A rejoinder was filed by the applicant stating that the 6 th Pay Commission has not specified the date of completion of more than one year after reaching the maximum existing scale. According to the applicants, on implementation of the Revised Pay Rules, 2008 with effect from 1.1.2006 and by unification of the date of increment as on Ist July by the Government of India employees have been grouped into two broad categories i.e. one those who reached maximum of the existing scale of pay for more than a year as on 1.1.2006 and those whose next date of increment falls between 1.1.2006 and 31.12.2006. According to the applicants these two categories belonged to the following five sub categories:
(i) Those whose date of next increment falls between 1.2.2006 to 1.6.2006.
(ii) Those whose date of next increment falls between 1.8.2006 to 1.12.2006.
(iii) Those who reached maximum of the existing scale for more than a year as on 1.1.2006.
(iv) Those who reached maximum of the existing scale for more than a year before 1.1.2006.
(v) Those who reached maximum of the existing scale for more than a year after 1.1.2006.
Applicants state that the case of sub categories (i) to (iv) above were addressed by Government of India as follows:
(i) O.M. 10/2/2011 E. Dated 19.3.2012 by which they were given increment in advance on 1.1.2006.
(ii) Rule 10 of CCS (Revised Pay) Rules by which they were given increment in advance on 1.7.2006.
(iii) Proviso (1) to Rule 10 by which they were given an increment in the new scale on 1.1.2006.
(iv) O.M. No. F.10/2/2011/E III(A) dated 4.7.2014, by which they were given an increment in the new scale in 1.1.2006.
(v) The case of the persons who reached maximum of the existing scale for more than a year after 1.1.2006 still remains to be settled.
7. Applicants suggest that the anomaly can be settled by allowing them to opt the revised scale with effect from the date on which they completed drawing the maximum of the existing scale for more than a year between 1.2.2006 and 1.12.2006, as they have done in their case, on 1.3.2006.
8. An additional reply statement was filed by respondents reiterating their contentions.
9. Heard Mr. Shafik M.A., Advocate for the applicants and Shri Vineet Komalachandran, Advocate representing Mr. Mayankutty Mather, for respondents Nos 1 to 4.
10. At the outset itself, we feel it appropriate to extract the Rule 10 and 11 of the CCS (Revised Pay) Rules 2008:
'10. Date of next increment in the revised pay structure: - There will be a uniform date of annual increment, viz Ist July of every year. Employees completing 6 months and above in the revised pay structure as on Ist of July will be eligible to be granted the increment. The first increment after fixation of pay on 1.1.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date of next increment was between Ist July 2006 to Ist January 2007.
Provided that in the case of persons who had been drawing maximum of the existing scale for more than a year as on the Ist day of January 2006, the next increment in the revised pay structure shall be allowed on the Ist day of January 206. Thereafter, the provision of Rule 10 would apply.
Provided that in cases where an employee reaches the maximum of his pay band, shall be placed in the next higher pay band after one year of reaching such a maximum. At the time of placement in the higher pay band, benefit of one increment will be provided. Thereafter, he will continue to move in the higher pay band till his pay in the pay band reaches the maximum of PB-4 after which no further increments will be granted.
Note 1: In cases where two existing scales, on being a promotional scale for the other, are merged, and the junior Government Servant, now drawing his pay at equal or lower stage in the lower scale of pay, happens to draw more pay in the pay band in the revised pay structure than the pay of the senior Government servant in the existing higher scale, the pay in the pay band of the senior government shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with Rule 10.
11. Fixation of Pay in the revised pay structure subsequent to the ist day of January, 2006. - Where a Government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from a date later than the Ist day of January, 2006, his pay from the later date in the revised pay structure shall be fixed in the following manner:
(i) Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 1.1.2006. This figure will be rounded off to the next multiple of 10 and will then become the pay in the applicable pay band. IN addition to this, the grade pay corresponding to the pre-revised pay scale will be payable. Where the Government servant is in receipt of special pay or non- practising allowance, the methodology followed will be as prescribed in Rule 7 (i) (B), (C) or (D) as applicable, except that the basic pay and dearness pay to be taken into account will be the basic pay and dearness pay applicable as on that date but dearness allowance will be calculated as per rates applicable on 1.1.2006.'
11. Mr. Shafik, leaned counsel for the applicants, brought to our attention that by the operation of the CCS (RP) Rules 2008, two categories of officials have been created amongst those who have been drawing the maximum in the pre-revised pay scale i.e. (i) those who have been drawing maximum in the pre-revised pay scale for more than one year as on 1.1.2006 and (ii) those drawing maximum pay in the pre-revised pay scale for a span of one year which completes only after 1.1.2006. According to Shri. Shafik this is an arbitrary exercise of power by the Government of India segregating two similarly situated persons simply by fixing an artificial barrier of the date i.e. 1.1.2006. Shri Shafik brought to a sharp focus that the 6 th Pay Commission recommendations did not contemplate any specific date and that what it recommended was a financial benefit for those who have been drawing the maximum in the pre-revised scle for more than one year, to eschew the drudgery of stagnation. According to him the applicants started getting the maximum of the pay in the pre-revised pay scale with effect from 1.3.2005 and though they would complete the length of one year of drawing such maximum pay only on 3.2006, they, in the eyes of the 6 th Pay Commission, are in no way different from those who complete one year of enjoying of such maximum pay as on 1.1.2006. Though the polemics of the above arguments of the learned counsel appear to be quite attractive, we feel they fall foul of syllogism. We are of the opinion that in view of the CCS (RP) Rules 2008, the contentions raised by the applicants are not legally sound.
12. Recommendations of the pay commissions are recommendatory in nature. It has been judicially taken note of by the Apex Court that the Pay Commission Reports are subject to acceptance/rejections or acceptance with modifications by the Government . In K.S. Krishnaswamy v. UOI and Anr. (2006)13 SCC 215 it was observed that it is well- settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modification of the appropriate government. Reports and recommendations of the Pay Commission are having only a recommendatory status and hence no court of law can rely on such recommendations until they are translated into legally enforceable rules or executive orders-which power remains in the exclusive domain of the policy decisions of the Government. In our view the VIth Pay Commission Report, as accepted or modified by the Government, finds its legally enforceable form in the Revised Pay Rules(RP Rules, for short). The CCS (RP) Rules 2008 has the status of a statutory rule as envisaged in the proviso to Article 309 of the Constitution of India. Therefore, the fact that 6th Pay Commission had not stipulated any date for computing the period of one year for the purpose of granting the benefits of an increment as on 1.1.2006 and yet another increment in the revised pay scale on 1.7.2006 to those employees who were drawing the maximum pay in the pre-revised scale for more than one year, is not debatable in a judicial proceeding in view of the statutory shape the Government of India has given in the RP Rules by modifying the recommendations of the 6th CPC.
13. The afore-quoted provisions of Rule 10 and its first proviso make it abundantly clear that a cut off date has been consciously fixed by the Government as 1.1.2006 for the purpose of availing the benefits of two increments ie. one on 1.1.2006 and another on 1.7.2006 if the employee was drawing the maximum in the pre-revised scale for more than a year as on 1.1.2006. In view of the express statutory provisions in this regard, the argument that those similar employees who will complete one year at a later period i.e. in between 1.2.2006 and 30.6.2006 will also come within the ambit of the 'one year' as contemplated in Rule 10 of the CCS (RP) Rules 2008 is fallacious. Any change proposed in this regard is a policy matter which is within the province of the Government. It is said, dura lex sed lex [law is hard but it is the law].
14. It appears that not only applicants but also the employees associations and a member of the JCM had taken up the issue before the National Anomaly Committee as can be seen from Annexure A/13 communication. Although the issue was taken up as item No.14 in the National Anomaly Committee held on 17.7.2012, it appears that no decision was taken on the issue. Annexure A/14 screen shot of the status report downloaded from the website of the Government of India shows that the applicant's request has been treated as 'case closed'. It is stated in Annexure A/14 status report that the request for enhancement of the pay of the applicant No.1 could not be acceded to as per CCS (RP) Rules 2008. In the above circumstances, we hold that the case of the applicants does not have merit in view of the express statutory provisions contained in CCS (RP) Rules 2008. Hence we dismiss the O.A.
15. Parties shall suffer their own costs.
(MINNIE MATHEW) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER Sj*