Central Administrative Tribunal - Delhi
M/S Drdo Technical Officers ... vs Union Of India on 21 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO. 3593 OF 2013
With
MA No. 2725 of 2013
&
M.A.No.3407 of 2013
New Delhi, this the 21st day of March, 2014
CORAM:
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
&
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBMER
1. M/s DRDO Technical Officers Association,
through its General Secretary,
185, Shaniwar Path,
PUNE 411030
2. Bhag Chand, s/o late Assar Singh, TO B, DRDO-IRDE, Dehradun
3. K.S.Rana, s/o late JS Rana, TO B, DRDO-IRDE, Dehradun
4. NK Khattri, s/o S.B.Khatri, TO B, DRDO-IRDE, Dehradun
5. M.Ahmad, s/o late N.Ahmad, TO B, DRDO-IRDE, Dehradun
6. RP Kotnala, TO B, DRDO-IRDE, Dehradun
7. BB Nautiyal, s/o R.K.Nautiyal, TO B, DRDO-IRDE, Dehradun
8. Virendra Singh, s/o late Tulsi Singh, TO B, DRDO-IRDE, Dehradun
9. Raghubir Singh, s/o late B.Sapanwar, TO, DRDO-IRDE, Dehradun
10. Anil Basnet, s/o late M.S.Basnet, TO, DRDO-IRDE,Dehradun
11. VK Lakhanpal, s/o late K.C.Lakhnpal, TO B, DRDO-IRDE, Dehradun
12. Bachan Singh, s/o Paltu Ram, , TO B, DRDO-IRDE, Dehradun
13. Pal Chand, s/o Hariram, TO B, DRDO-IRDE, Dehradun
14. Vinod Kumar, s/o S.G.Singh, TO B, DRDO-IRDE, Dehradun
15. D.L.Dabral, s/o late PD Dabral, TO, DRDO-IRDE,Dehradun
16. RC Nautiyal, s/o G.P.Nautiyal, TO A, DRDO-IRDE, Dehradun
17. Sanjay Kumar, s/o Darsan Singh, TO A, DRDO-IRDE, Dehradun
18. A.K.Gaur, s/o late R.C.Gaur, TO A, DRDO-IRDE, Dehradun
19. G.S.Negi, s/o late K.S.Negi, TO A, DRDO-IRDE, Dehradun
20. A.K.Khattri, s/o M.S.Khatri, TO A, DRDO-IRDE, Dehradun
21. Monica Tandan, w/o A.Tandon, TO A, DRDO-IRDE, Dehradun
22. Amrik Singh, s/o late B.Singh, TO A, DRDO-IRDE, Dehradun
23. Dharam Pal Singh Negi, s/o late C.S.Negi, TO A, DRDO-IRDE, Dehradun
24. Ashwani Kumar, s/o late D.Singh, TO, DRDO-IrDE, Dehradun
25. Rajeev Dubey, s/o late R.C.Dube, TOB, DRDO-IRDE, Dehradun
26. N.S.Negi, s/o late M.S.Negi, TOB, DRDO-IRDE, Dehradun
27. P.K.Dargan, s/o late D.S.Dargan, TOB, DRDO-IRDE, Dehradun
28. Vinay Kumar Chauhan, s/o PS Chauhan, TOB, DRDO-IRDE, Dehradun
29. Balbir Singh, s/o late Attar Singh, TOB, DRDO-IRDE, Dehradun
30. B.R.Kalra, s/o Sh.Bhagwandas, TO B, DEAL, DRDO, Dehradun
31. Virender Nautiyal, s/o late Sh.S.M.Nautiyal, TO B, DEAL, DRDO, Dehradun
32. Ram Kumar, s/o late Sh.Mukhtyar Singh, TO B, DEAL, DRDO, Dehradun
33. Vikas Kara, s/o Sh.Laxmi Chand, TO B, DEAL, DRDO, Dehradun
34. Mohd Yunus, s/o Sh.Nazir Ahmad, TO B, DEAL, DRDO, Dehradun
35. Narendar Singh, s/o Sh.Attar Singh, TO B, DEAL, DRDO, Dehradun
36. Som Pal Singh, s/o late Sh.Kirpa Ram, TO B, DEAL, DRDO, Dehradun
37. Sanjay Kumar-I, s/o late Sh.Satya Pal Singh, TO B, DEAL, DRDO, Dehradun
38. R.K.Petwal, s/o Sh.D.D.Sharma, TO B, DEAL, DRDO, Dehradun
39. Ishak Lal Jawalia, s/o Sh.M.R.Jawalia, TO B, DEAL, DRDO, Dehradun
40. Sanjay Kumar-II, S/o Sh.Satyender Singh, TO B, DEAL, DRDO, Dehradun
41. Mange Ram, s/o late Sh.Phool Singh, TO A, DEAL, DRDO, Dehradun
42. Ritu Gopal, d/o Sh.S.K.Aggarwal, TO A, DEAL, DRDO, Dehradun
43. Rajender Kumkar, s/o late Sh.Ram Nath, TO A, DEAL, DRDO, Dehradun
44. Satender Kumar, s/o late Sh.Phool Singh, TO A, DEAL, DRDO, Dehradun
45. Sant Ram Singh, s/o late Sh.Chand Ram, TO A, DEAL, DRDO, Dehradun
46. R.S.Kapil, s/o late Sh.Nihal Chand, TO A, DEAL, DRDO, Dehradun
47. Som Prakash, s/o late Sh.R.R.Parandiyal, TO A, DEAL, DRDO, Dehradun
48. Mohan Chand Joshi, s/o Sh.N.D.Joshi, TO A, DEAL, DRDO, Dehradun
49. Mahi Pal Paliwal, s/o late Sh.Jairam, TO A, DEAL, DRDO, Dehradun
50. Rajesh Kumar, s/o Sh.Hari Singh, TO A, DIPAS, DRDO, Delhi
51. A.S.Rawat, s/o late Sh.S.S.Rawat, TOA, CFEES, DRDO, Delhi
52. Rajesh Kumar, s/o Shri R.S.Rajora, TO A, CFEES, DRDO, Delhi
..APPLICANTS
(By Advocate: Shri Mukesh Kumar)
-versus-
1. UNION OF INDIA
Through its Secretary,
Ministry of Defence, South Block, NEW DELHI 110011
2. Department of Defence Research & Development,
Ministry of Defence,
Through its Secretary, DG of DRDO
& Scientific Advisor to Raksha Mantri,
DRDO Bhawan, Raja ji Marg,
NEW DELHI 110105
3. Director,
Centre for Personnel Talent Management(CEPTAM),
Defence Research & Development Organization (DRDO),Ministry of Defence, Metcalfe House,
DELHI 110054 . RESPONDENTS
(By Advocate: Shri Amit Anand)
.
ORDER
Raj Vir Sharma,Member(J):
1. After hearing the learned counsel for the applicants, we allow MA No.2725 of 2013 and permit the applicants to join together and file the present single O.A.
2. In this Original Application, the applicants have prayed for the following relief:
(a) To set aside or partially modify the impugned orders dated 10.5.2013, 13.5.2013, 30.5.2013 & 9.9.2013, copies placed as ANNEXURE A-1 (Colly), page no. 22 -31, to the extent they are adversely affecting the Applicants herein and delaying their promotion to the next grade, i.e., TO B;
To set aside or partially modify the impugned Orders dated 10.5.2013, 13.5.2013 & 30.5.2013, copies placed as ANNEXURE A-1 (Colly), page no.22 -31, in respect of the proceedings for recovery of overpayment from the Applicants herein for the difference in reducing Grade Pay from Rs.4800 to Rs.4600 in TO A designation;
To set aside or partially modify the impugned Orders dated 30.5.2013 & 9.9.2013, copies placed as ANNEXURE A-1 (Colly), page no.25 31, in respect of the proceedings for Review Assessments within the feeder cadre or the erstwhile STA C / TO A/equivalent designations in response to reduction in GP Rs.4800 to Rs.4600 in TO A designation;
To direct the Respondents to promote those erstwhile TO A/GP Rs.4800 in the next grade, i.e., TO B, retrospectively from the back date who actually got promotion to TO A/GP Rs.4800 after completing residency period at STA C/GP Rs.4600;
To allow cost(s) to the Applicants against the Respondents, in the interest of justice;
To pass such other order(s) and further reliefs which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.
3. Brief facts of the applicants case run thus: Applicant no.1 is an Association of Technical Officers of DRDO. Applicant nos. 2 to 52 are members of applicant no.1 Association. They are working as Technical Officers/ Technical Officers A/Technical Officers B in different Units/Laboratories of the Defence Research & Development Organization (DRDO). They were promoted to the said posts from the respective feeder grades as per the Defence Research and Development Organization Technical Cadre Recruitment Rules, 2000 (hereinafter referred to as DRDO Technical Cadre Recruitment Rules). The DRDO Technical Cadre Recruitment Rules prescribe two categories of DRDO Technical Cadre, namely, Category A and Category B. Their promotions to the posts of Technical Officer in Category A (TO in Category A) and Technical Officer A in Category B (TO A in Category B) took place during 2006 to 2012 from the feeder grades of Senior Technician C/Technical Assistant C in Category A (TA C in Category A ) and Senior Technical Assistant C in Category B (STA C in Category B) respectively. The applicants, who are presently working as Technical Officers B, were in the meantime promoted from the feeder grades of TO in Category A and TO A in Category B of the DRDO Technical Cadre. The post of Senior Technician B/Technical Assistant B in Category A (TA B in Category A) was the feeder grade for promotion to TA C in Category A, whereas Senior Technical Assistant B in Category B (STA B in Category B) was the feeder grade for promotion to STA C in Category B.
3.1 As per the letter dated 5.6.2009 (Annexure A-2 Collectively) issued by respondent no.1, the 5th CPC pay scale of Rs.7450-11500 for the post of TO in Category A, and TO A in Category B was replaced by Pay Band-2 (Rs.9300-34800)/Grade Pay of Rs.4800 with effect from 1.1.2006.
3.1.1 As per letter dated 8.6.2009 (Annexure A-2 collectively) the different grades of Category A and Category B of the DRDO Technical Cadre were re-designated. The posts of Technical Assistant A (5000-8000) and Technical Assistant B(5500-9000) in Category A were merged and re-designated as Technical Assistant B. The posts of Senior Technical Assistant A (5000-8000) and Senior Technical Assistant B(5500-9000) in Category B were merged and re-designated as Senior Technical Assistant B in Category B. The aforesaid merged posts of Technical Assistant B and Senior Technical Assistant B were placed in the 6th CPC pay scale/Pay Band-2(9300-34800)/Grade Pay Rs.4200. The 5th CPC pay scale of Rs.6500-10500 for the post of TA C of Category A, and STA C in Category B was replaced by 6th CPC Pay Band-2 (Rs.9300-34800)/Grade Pay Rs.4600. The 5th CPC pay scale of Rs.7450-11500 for the post of TO in Category A, and TO A in Category B was replaced by the 6th CPC Pay Band-2 (Rs.9300-34800)/Grade Pay of Rs.4800. The 5th pay scale of Rs.8000-13500 for the post of TO B in Category B was replaced by Pay Band-3 (Rs.15600-39100)/Grade Pay of Rs.5400/-. All the aforesaid merger, re-designation and placement in the 6th CPC Pay Band/Grade Pay were with effect from 1.1.2006.
3.2 The posts of TA B of Category A, and STA B in Category B and the posts of TA C of Category A and STA C in Category B were classified as Group B Non Gazetted Non-Ministerial, whereas the posts of TO in Category A and TO A in Category B were classified as Group B Gazetted Non-Ministerial.
3.3 In compliance with the order dated 13.3.2013 passed by the Chandigarh Bench of the Tribunal in OA No.571-CH/2011, the respondents issued orders/letters dated 10.5.2013, 13.5.2013, 30.5.2013 and 9.9.2013 (Annexure A-1 Collectively.). By the orders/letters dated 10.5.2013 and 13.5.2013 the posts of TO and TO A were placed in Pay Band-2 (Rs.9300-34800)/Grade Pay Rs.4600/- with effect from 1.1.2006, and Pay Band -2 (Rs.9300-34800)/Grade Pay Rs.4800/- earlier granted for the posts of TO and TO A was withdrawn with effect from 1.1.2006. By order dated 30.5.2013, the erstwhile posts of TO and TA C were merged and re-designated as TO at PB-2/Rs.4600/- in Category A, and the erstwhile posts of TO A and STA C in Category B were merged and re-designated as TO A at PB-2/Rs.4600/- in Category B. In the order dated 30.5.2013 (ibid) it was stipulated that the Review Assessment of affected personnel shall commence forthwith under the provisions of the DRDO Technical Cadre Recruitment Rules, with all previous assessments from the year 2006 to 2012 for promotions involving PB-2/Rs.4800/- having been rendered infructuous due to withdrawal of PB-2/Rs.4800/-. It was also laid down therein that the pay of all such affected personnel is to be fixed as per the CCS (RP) Rules, 2008 and over-payment recovered. Thereafter, the respondent no.3, vide letter dated 9.9.2013 (ibid), communicated the Draft Eligibility List of DRTC personnel to the Directors/Heads of Establishment of different units of the DRDO. By the letter 9.9.2013 (ibid), respondent no.3 requested the said Directors/Heads of Establishment of different units of the DRDO to verify and confirm the Draft Eligibility List and to furnish the required information for the purpose of Special Review Boards of erstwhile STA C, TA C and TO and TO A for the assessment years 2011, 2012 and 2013 to be held on 14.10.2013.
3.4 It is the applicants case that they are not aggrieved by the reduction of Grade Pay from Rs.4800/- to Rs.4600/- for the TO and TO A. Their grievance is with regard to its implication on the applicants, who were TA C and STA C and, after completing the residency period of 5 years in the said grade, were promoted to the posts of TO and TO A under merit-based limited Flexible Complementing System (FCS) during 2006 to 2012.
3.5 The aggrieved TO A and TO B posted to Chandigarh unit of DRDO under the lead of the applicant No.1 Association filed OA No.846/CH/2013 before the Chandigarh Bench of the Tribunal. The Tribunal by order dated 17.6.2013 granted stay of recovery of overpayment purportedly made on account of grant of Grade Pay Rs.4800/- to the TO and TO A during 2006 to 2012, which was withdrawn with effect from 1.1.2006. However, the Chandigarh Bench of the Tribunal, vide order dated 30.8.2013, modified its earlier order dated 17.6.2013 with the observation that the interim order 17.6.2013 had been granted qua the applicants, who approached this Tribunal, and the respondents are at liberty to implement the impugned order qua other employees. 3.6 It is the contention of the applicants that they never asked for granting the 6th CPC replacement PB-2/Grade Pay Rs.4800/- for TO and TO A w.e.f. 1.1.2006. The PB-2/Grade Pay Rs.4800/- was granted to the TO and TO A as per the sanction accorded by His Excellency the President of India. The said Grade Pay Rs.4800/- having been withdrawn by subsequent amendment to the rules, the respondent-authorities could have re-fixed the pay of the TO and TO A with effect from 1.1.2006 on the basis of the Grade Pay Rs.4600/-, without ordering any recovery from the applicant nos. 2 to 52 who were promoted to the posts of TO and TO A during 2006 to 2012.
3.7 It is also the contention of the applicants that the posts of TO in Category A and TO A in Category B having merged with the posts of TA C in Category A and STA C in Category B respectively, the applicants, who were promoted as TO and TO A after completing 5 years residency period in the feeder grades and upon assessment by the Assessment Board during 2006 to 2012, will lose their residency period already exhausted by them at their respective feeder grades and will also be required to complete further 5 years residency period to become eligible for promotion to the post of TO B and to once again appear at the interview before the Review Assessment Board.
3.8 The applicants claim to have made several representations to the respondents during June 2013 against the order dated 10.5.2013 (Annexure A-1 Collectively). It is noted here that the applicants have not filed, along with the O.A., copy of any one of the representations stated to have been made by them during June 2013. However, a copy of the representation stated to have been made by applicant no.50 on 1.10.2013 has been filed as Annexure A-4.
4. A counter reply has been filed on behalf of the respondents resisting the claim made by the applicants. In the counter reply, it is stated that respondent No.1 Association and some of its members had filed OA No.841 of 2013 before the Hyderabad Bench of the Tribunal challenging the letter dated 30.5.2013. The Tribunal, vide its order dated 8.7.2013(Annexure R-I), had disposed of the said O.A. Therefore, the challenge to the letter dated 30.5.2013, in the present O.A., is barred under the principle of res judicata. The 6th C.P.C. had recommended the Grade Pay Rs.4600/- in respect of TO and TO A. Since the Grade Pay of Rs.4800/- was granted by the respondent-authorities to the TO and TO A without prior sanction of the Ministry of Finance, the order dated 5.6.2009(ibid) was ab initio invalid and therefore, the applicants cannot claim the benefit of higher Grade Pay of Rs.4800/- on the basis of invalid order. The 5th CPC pay scale of Rs.7450-11500/- for the TO and TO A was replaced by the 6th CPC Pay Band-2(9300-34800)/Grade Pay of Rs.4600/-, as would appear from First Schedule, Part A, Section I (Annexure R-II) and First Schedule, Part C, Section II of the C.C.S.(R.P.) Rules, 2008 (Annexure R-III).
4.1 The decision to grant higher Grade Pay of Rs.4800/- in PB-2 to the TO A was challenged by STA C before the Chandigarh Bench of the Tribunal in OA No.571/CH/2011. The Chandigarh Bench of the Tribunal, vide order dated 13.3.2013(Annexure R-VI), disposing of the said O.A., quashed the order dated 30.9.2010 whereby the respondent nos. 1 and 2 declined to merge the posts of TA C and STA C with TO and TO A. The Chandigarh Bench also directed the Director General, DRDO to submit a status note in the matter to the Secretary, Department of Expenditure, Ministry of Finance who should take steps to get the matter decided at the appropriate level in the Government of India, in accordance with the Government of India (Transaction of Business) Rules,1961.
4.2 As regards the applicants, who were already promoted to the post of T.O. B, their promotion is being regularized through a Special Review of the earlier Assessment Results and therefore, they cannot be said to have any grievance. As regards the applicants, who were earlier promoted from the post of TA C/STA C to the grade of TO/TO A will now be considered for promotion to the next higher post of TO B for the assessment years 2011 and 2012 through a Special Review. Therefore, they are now getting an opportunity for further promotion and therefore, they also cannot be said to have any grievance. In fact, considering the O.A.Nos.707 and 841 of 2013 on the same issue, the Hyderabad Bench of the Tribunal issued direction for implementation of the letter dated 30.5.2013 (ibid) as early as possible.
4.3 In view of the above, the respondents have prayed for dismissal of the O.A.
5. In the rejoinder reply, the applicants have controverted the averments contained in the respondents counter. It is stated by the applicants that OA No.841 of 2013 was filed by the Association and some TO B before the Hyderabad Bench of the Tribunal for redressal of the grievance of those TO B as regards their entitlement to promotion to TO B by way of Review Assessment for the year 2011 and, therefore, the instant Original Application filed before the Principal Bench will not be barred by principle of res judicata. It is stated by the applicants that they have only challenged the recovery of overpayment in question in the instant application. It is also stated by the applicants that due to merger of the posts of the TA C and STA C with TO and TO A respectively, the incumbents who were holding the posts of TA C and STA C and were either ineligible or failed to be promoted to the posts of TO and TO A during 2006 to 2012, are now entitled to be considered for promotion to TO B and therefore, unequals are sought to be treated equally, which is hit by Articles 14 and 16 of the Constitution of India. The other averments contained in the rejoinder reply are merely reiteration of the same facts and grounds as in the O.A.
6. The respondents have not filed further counter reply to the applicants rejoinder.
7. MA No.3407 of 2013 was filed by the applicants on 16.12.2013 seeking interim relief of staying the operation of the letter/order dated 10.12.2013 (Annexure B-1 to the MA) wherein the names of applicant nos. 2 to 52 and several others find place for the purpose of Special Review Boards for 2011 & 2012 and Assessment Board for promotion to the post of TO B. In the said letter, it is also stated that the Review Assessment Board 2011 & 2012 and Assessment Board 2013 were to start from 16.1.2014.
8. We have perused the pleadings and heard the learned counsel appearing for the parties.
9. As both the applicants and the respondents have referred to different orders passed by the Madras Bench, Principal Bench, Hyderabad Bench, and Chandigarh Bench of the Tribunal in the O.As. filed by applicant no.1 Association and members of the DRDO Technical Cadre as well as DRDO Technical Assistants Association and some of its members, which have some bearing on the issues raised before us, it would be useful to take the same into account while deciding the present O.A. 9.1 Some STA C had filed O.A.No.611 of 2009 before the Madras Bench seeking the following relief:
To call for the proceedings of the first respondent in No.DHRD/ 16342/ 6thCPC/ DRTC/C/P/05(iv) 1633/D(R&D)/2009 dated 5.6.2009 and the consequential proceedings No. DHRD/16342/6th CPC/DRTC/C/M/01 dated 8.6.2009 and quash the same and consequently direct the respondents to implement the recommendations of the 6th Pay Commission as accepted by Govt. of India and also notified by the proceedings No. DHRD/76664/DPC/H/2009/C/M/01 dated 13.5.2009 of the first respondent by directing merger of the category STA C with TO A retrospectively with effect from 1.1.2006 with all consequential and attendant monetary benefits. The Madras Bench had observed that there was no specific recommendation of merger of the post of STA C with that of TO A and that no specific order was produced by the applicants to show that the post of STA C was merged with that of TO A, and had accordingly held that the applicants therein had not made out a case for interference and dismissed the said O.A. by order dated 28.10.2009 (ibid). Writ Petition No.9548 of 2010 filed against the Madras Benchs order dated 28.10.2009(ibid) was dismissed by the Honble Madras High Court, vide order dated 19.7.2011.
9.2 O.A. Nos.700 of 2010 and 3610 of 2009 were filed by some STA C before the Principal Bench. The Principal Bench, vide order dated 19.7.2010, disposed of the said O.As. with the following observation and direction:
14. In view of the submissions of the applicants that the decision of the Madras Bench of this Tribunal was based on material furnished to it before the issue of the Government of India, Ministry of Finance, Department of Expenditures OM dated 13.11.2009 and in view of the settled position of law that questions relating to policy matters such as upgradation/merger of posts, interpretation and giving effect to pay commissions recommendations, etc., would lie exclusively in the executive domain and should be left to them and also keeping in view of the fact that the representations made by the applicants in the matter are stated not to have been responded to by the respondents, we deem it appropriate to direct the respondents to look into the representations of the applicants in the matter keeping in view the latest orders issued by the Ministry of Finance, Department of Expenditure on 13.11.2009 and the decision of the Madras Bench of this Tribunal in OA NO.611 /2009 in mind, and pass a reasoned and speaking order thereon, within a period of two months of the receipt of a copy of this order.
15. OA No.710/2010 and OA No.3610/2009 are disposed of as above. We make no order as to costs. 9.3 In compliance with the Principal Benchs order dated 19.7.2010 passed in O.A. Nos.700 of 2010 and 3610 of 2009, the Government of India, Ministry of Defence, Defence Research & Development Organization issued order No.DHRD/76066/Court Case/CVRDE/C/M/01 dated 30th September 2010, the relevant portion of which reads thus:
2. In view of the position explained above the following decisions have been taken:-
(i) It is not considered appropriate and justifiable in the interest of service to merge the post of STA C with TO A in DRDO.
(ii) The service rendered in the grades of Senior Technical Assistant A and Senior Technical Assistant B prior to merger shall be considered for eligibility for promotion to the next higher grade as per prevailing instructions of the Government of India that are applicable to all the employees of Government of India that were in the posts in the pre-revised scales of Rs.5000-8000 and Rs.5500-9000 and that have been merged as per SRO 21(E) dated 09 Sep. 2008.
3. The representations of the applicants are disposed of accordingly.
4. This issues with the approval of Secretary, Deptt. of defence (R&D), Secretary, Director General R&D and Scientific Advisor to Raksha Mantri. 9.4 Thereafter, DRDO Senior Technical Assistants Association and five STA C working in TBRL of DRDO, filed OA No.571-CH-2011 before the Chandigarh Bench of the Tribunal seeking the following relief:
(i) To quash and set aside the impugned order dated 30.9.2010 and direct the respondents to effect the merger of the post of TO A and STA C and release all consequential benefits including arrears of pay.
(ii) To direct the respondents to re-designate the post of STA C as to (sic) A w.e.f. 01.01.2006 and consider their cases for further promotion with all consequential benefits. The Chandigarh Bench of the Tribunal, vide its order dated 13.3.2013, disposed of the said OA as follows:
1. The impugned order No.DHRD/76066/Court Cases/CVRDE/C/M/01 dated 30.9.2010 (A-1) is quashed and set aside.
2. Respondent No.1 is directed to submit a status note in this matter to respondent no.5 who should take steps to get the matter decided at the appropriate level in the Government of India, in accordance with the Government of India (Transaction of Business) Rules,1961. Action in this regard should be completed within a period of six months from the date of receipt of a copy of this order. No costs. 9.5 In compliance with the above order dated 13.3.2013 passed by the Chandigarh Bench of the Tribunal, (i) Letter No. DHRD/ 16342/ 6th CPC/ DRTC/ C/P/ 05 (iv)/1112/D(R&D) /2013, dated 10.5.2013; (ii) Letter No. DHRD/ 16342/6th CPC/ DRTC/C/P/ 05(iv), dated 13.5.2013; and (iii)Letter No. DHRD/16342/6th CPC/ DRTC/ C/P/05(iv), dated 30.5.2013 were issued by respondent nos. 1 and 2.
9.6 The DRDO Technical Officers Association (applicant no.1 herein) and some TOs B, who are working in Research Centre Imarath (RCI) of DRDO, Hyderabad, filed OA No.841 of 2013, seeking implementation of the Letter No. DHRD/16342/6th CPC/ DRTC/ C/P/05(iv), dated 30.5.2013 relating to finalization of regularization of promotion of TO B through a Special Review of the earlier Assessment Results till 2010. The Hyderabad Bench of the Tribunal disposed of the said O.A.No.841 of 2013, vide order dated 8.7.2013, which reads thus:
MA 541/2013 is allowed. Registry to number the O.A.
2. The applicants filed the O.A. with a grievance that the proceedings issued vide letter No. DHRD/16342/6th CPC/ DRTC/ C/P/05(iv), dated 30.05.2013 wherein it was stated that regularization of promotion shall first be finalized through a special review of the earlier Assessment Results till 2010, etc., are not being followed.
3. Learned Senior Standing Counsel appearing for the respondents reports that action in pursuance of the letter dated 30.05.2013 is being taken and that review assessment is being taken up with effect from 2006 onwards.
4. Learned counsel for the applicants now reports that in case the O.A. is disposed of with a direction to the respondents to consider the proposed review as referred in the letter dated 30.05.2013, the applicants would be satisfied.
5. In the circumstances, O.A. is disposed of with a direction that the respondents shall take up and complete the process that is mentioned in the letter dated 30.05.2013 as early as possible. No order as to costs. 9.7 In compliance with the direction contained in the order dated 8.7.2013 passed by the Hyderabad Bench in OA No. 841 of 2013, respondent no.3 issued Letter No.DRDO/CEPTAM/AD/20017/DEL/C /M/ 2013, dated 9.9.2013.
9.8 DRDO Technical Officers Association (applicant no.1 herein) and some erstwhile TO and TO A again filed OA No.846/CH/2013 before the Chandigarh Bench of the Tribunal questioning the recovery/reduction of grade pay. The Chandigarh Bench, by order dated 17.06.2013, directed that the impugned recovery/reduction of grade pay shall stand stayed. On MA 914/2013 filed by the respondents, the Tribunal, vide its order dated 30.8.2013, clarified that the interim order dated 17.06.2013 (ibid) had been granted qua the applicants who approached the Tribunal and the respondents are at liberty to implement the impugned order qua other employees.
9.9 In the present case also, the applicants have prayed for interim relief of staying the operation of the order issued by the respondent nos. 1 and 2 for recovery of the overpayment from applicant nos. 2 to 52.
10. In order to consider the purported grievances of the applicants in the present O.A, it would be appropriate to refer to (i) letter No. DHRD/16342/6th CPC/DRTC/C/P/05(iv)/1112/D(R&D)/2013, dated 10.5.2013 issued by the Department of Defence Research & Development; (ii) letter No. DHRD/16342/6th CPC/DRTC/C/P/05(iv), dated 13.5.2013 issued by the DRDO; (iii) letter No. DHRD/16342/6th CPC/DRTC/C/P/05(iv), dated 30.5.2013 issued by the DRDO; and (iv) letter No.DRDO/CEPTAM/AD/20017/DEL/C/M/2013, dated 9.9.2013 issued by the Centre for Personnel Talent Management, which are quoted in extenso:
(i) Letter No. DHRD/ 16342/ 6th CPC/ DRTC/ C/P/05 (iv)/1112/D(R&D)/2013, dated 10.5.2013:
Subject: Pay Scales for the post of Technical Officer A(TO A) and Technical Officer (TO) in DRDO-Revision thereof.
Sir, Consequent to the Ministry of Finance/ Department of Expenditures advice recorded in their UO No.7.10/12/2009-IC dated 11.7.2012, I am directed to convey the sanction of the President to withdraw the pay scale of Pay Band 2 (Rs.9300-34800/Grade Pay Rs.4800/- to posts of Technical Officer A & Technical Officer in DRDO and place these posts in Pay Band 2 (Rs.9300-34800)/Grade Pay Rs.4600/-, i.e., the 6th CPC replacement scale of their pre-revised pay scale of Rs.7450-11500, with effect from 1st January 2006.
2. The provisions of GOI/MoD letter No. DHRD/ 16342/ 6th CPC/ DRTC/ C/P/05 (iv)/1633/D(R&D)/2009, dated 5th June 2009 are hereby superseded/ cancelled/ annulled.
3. Modalities of recovery and other administrative instructions for the implementation are being issued separately.
4. This issues with immediate effect and the concurrence of Ministry of Defence/Finance (R&D) vide their Dy.No.371/MoD/Fin(R&D) dated 7th May 2013.
(ii) Letter No. DHRD/16342/6th CPC/DRTC/C/P/ 05(iv), dated 13.5.2013:
Sub: Pay Scale for the post of Technical Officer A(TO A) and Technical Officer (TO) in DRDO Revision thereof.
1. Please refer to GOI letter No. DHRD/ 16342/ 6th CPC/ DRTC/ C/P/05 (iv)/1112/D(R&D)/2013, dated 10TH May 2013 (copy enclosed).
2. Consequent to the withdrawal of PB-2/Rs.4800/- from the DRDO Technical Cadre and resultant placement of erstwhile TO/TO A in the 6th CPC replacement scale of PB-2/Rs.4600/-, it may be ensured that the pay of all such DRTC personnel presently in PB-2/Rs.4800/- may be re-fixed at PB-2/Rs.4600/- with immediate effect.
3. Other modalities on effecting the ibid withdrawal, including recovery etc. are being issued with due approval of competent authority.
(iii) Letter No. DHRD/16342/6th CPC/ DRTC/ C/P/05(iv), dated 30.5.2013:
Sub: Pay Scale for the post of Technical Officer A (TO A) and Technical Officer (TO) in DRDO Modalities of Revision.
Further to this HQA letter of even reference dated 13 May 2013.
2. The following modalities, with due approval of Secretary, Department of Defence (R&D) & DG, DRDO, on effecting the withdrawal of PB-2/Rs.4800/- from the DRDO Technical Cadre and resultant merger of erstwhile pay scales of Rs.6500-10500 and Rs.7450-11500 in the VI CPC replacement scale of PB-2/Rs.4600/- including recovery of overpayments and de novo placement of affected personnel are herein specified.
All the erstwhile posts of Technical Officer and Technical Assistant-C are re-designated as Technical Officer at PB 2/Rs.4600/- in Category A of the DRTC.
All the erstwhile posts of Technical Officer A and Senior Technical Assistant-C are redesignated as Technical Officer A at PB2/Rs.4600/- in Category B of the DRTC.
As per existing classification, all TOs and TO As at PB2/Rs.4600/- stand automatically categorized as Group B gazetted.
Review Assessment of affected personnel shall commence forthwith under the provisions of the DRDO Technical Cadre Recruitment Rules, with all previous assessments from the year 2006 to 2012 for promotions involving PB-2/Rs.4800/- having been rendered infructuous due to withdrawal of PB2/Rs.4800/-. This will involve:
I. Regularization of promotion till the Assessment Year 2010, of all TO B at PB-3/Rs.5400/- (who had been assessed and promoted to PB-3/Rs.5400/- from the earlier pay scale of PB-2/Rs.4800/-) shall first be finalized through a Special Review of the earlier Assessment Results.
II. For the erstwhile STAC and TA C of pre-1.1.2006 and TO A and TO of pre-1.1.2006 (not covered under para c-I above), procedure for their assessment for the Assessment Years 2011 & 2012, shall be as follows:
For the Assessment Year 2011 through Special Review of the earlier Assessment Results in respect of those already promoted as TO Bs at PB-3/Rs.5400/- in 2011, through Special Review Boards in respect of the remaining eligible personnel.
For the Assessment Year 2012
- through Special Review of the earlier Assessment Results in respect of those already promoted as TO Bs at PB-3/Rs.5400/- in 2012,
- through Special Review Boards in respect of the remaining eligible personnel.
III. For the Assessments through Special Review Boards of erstwhile STA C, TA Cand TO A and TO of pre-1.1.2006 (as at para c-II above) whose pay will now be fixed at PB-2/Rs.4600/-, the following criteria of residency shall be adhered to:
for those who were in the erstwhile pay grade of Rs.7450-11500 before 1.1.2006, now placed in the VI CPC upgraded scale of PB-2/Rs.4600/-, their service in the grade shall be counted for eligibility for assessment to PB-3/Rs.5400/-, for those who were in the erstwhile pay grade of Rs.6500-10500 before 1.1.2006, now placed in the VI CPC upgraded scale of PB-2/Rs.4600/-, their service shall be counted w.e.f. 1.1.2006 for eligibility for assessment to PB-3/Rs.5400/-.
Pay of all such affected personnel are to be fixed as per CCS (RP) Rules, and over-payments recovered.
3. This issues with due approval of Secretary, Department of Defence (R&D) & DG, DRDO.
(iv) Letter No.DRDO/CEPTAM/AD/20017/DEL/C/M/2013, dated 9.9.2013:
SUB: SPECIAL REVIEW BOARDS OF ERSTWHILE STA C, TA C AND TO A, TO.
Special Review Boards for Assessment Years 2011, 2012 and 2013 for the erstwhile ranks of TA-C, STA-C, TO and TO-A is likely to be held from 14th October, 2013.
2. The Draft Eligibility List of DRTC personnel from your lab/estt., who are eligible for 2011, 2012 and 2013 Review Board(s) as per DHRD letter No. Letter No. DHRD/16342/6th CPC/ DRTC/ C/P/05(iv), dated 30th May 2013, is enclosed herewith as Annexure-I.
3. Please verify and confirm the Draft Eligibility List and give your observations on the data mentioned against the records of DRTC Personnel of your lab/estt.
4. It is also requested to forward your remarks w.r.t. EOL (in rank as shown in col.6 of Annexure-I) giving details like period and ground (e.g. personal or medical), if any, as per EOL Data format (Annexure III) in respect of the DRTC personnel figuring in the Draft Eligibility List. It is also requested to give details of disciplinary/court cases, suspension, re-instatement in service, lien, voluntary retirement or resignations etc. if any, as per the CEPTAM Discipline Data Format attached herewith as Annexure-II. A NIL report should be sent where no such cases are to be reported.
5. Please send the duly authenticated list to Director, CEPTAM by 20th September, 2013 to facilitate timely issue of schedule for the said boards. If no response is received by that date, it will be assumed that data is correct and assessment schedule will be fixed accordingly.
6. Request for any change including Subject of Assessment WILL NOT BE CONSIDERED once the interview schedule is fixed.
7. The list has also been uploaded on DRONA. Please accord Top Priority.
11. In P.U.Joshi & Ors. v. The Accountant General of Ahmedabad, ATJ 2003(2) SC 624, the Honble Supreme Court held that policy decisions of the Government should not to be interfered with by this Tribunal, nor should the Tribunal direct the State to adopt a particular method for avenues of promotion, etc., by substituting its own views for that of the State. The relevant observations of the Honble Supreme Court in the case of P.U.Joshi (supra) are extracted below:
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be for ever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
12. Similarly, in S.P.Shiv Prasad Pipal vs. Union of India & Ors., JT 1998 (3) SC 216, the Honble Supreme Court took the view that the merger of posts was essentially a policy decision of the Government and cannot be interfered with even if it affects the promotion of a category of employees.
13. Keeping in mind the law laid down by the Honble Supreme Court in P.U.Joshi (supra) and S.P.Shiv Prasad Pipal (supra) and various orders passed by different Benches of the Tribunal and the provisions contained in the orders/letters issued by the respondents, as referred to above, we proceed to consider the rival contentions of the parties.
14. It is the submission of the learned counsel for the applicants that promotions of applicant nos. 2 to 52 from the post of TA C/ STA C (Grade Pay of Rs.4600/-) to the post of TO/TO A (Grade Pay of Rs.4800/-) effected during 2006 to 2012 should not have been made infructuous in the year 2013 retrospectively w.e.f. 1.1.2006.
14.1 The relevant portion of First Schedule Part A, Section I of the CCS (RP)Rules, 2008, is quoted below:
THE FIRST SCHEDULE (SEE RULES 3 & 4) PART-A Section I Revised Pay Bands and Grade Pays for posts carrying present scales in Group A, B, C & D except posts for which different revised scales are notified separately.
Present Scale Revised Pay Structure Sl.
No. Post/ Grade Present Scale Name of Pay Band/ Scale Corresponding Pay Bands/Scales Corresponding Grade Pay (1) (2) (3) (4) (5) (6) XX XX XX XX XX XX 10 S-9 5000-150-8000 PB-2 9300-34800 4200 11 S-10 5500-175-9000 PB-2 9300-34800 4200 12 S-11 6500-200-6900 PB-2 9300-34800 4200 13 S-12 6500-200-10500 PB-2 9300-34800 4200 14 S-13 7450-225-11500 PB-2 9300-34800 4600 15 S-14 7500-250-1200 PB-2 9300-34800 4800 XX XX XX XX XX XX 14.2 The relevant portion of First Schedule Part C, Section I of the CCS (RP) Rules, 2008, is extracted below:
PART C REVISED PAY STRUCTURE FOR CERTAIN POSTS IN MINISTRIES, DEPARTMENTS AND UNION TERRITORIES Section I The revised pay structure mentioned in Column (5) and (6) of this part of the Notification for the posts mentioned in Column (2) have been approved by the Government. The initial fixation as on 1.1.2006 will be done in accordance with Note 2 below Rule 7 of this Notification.
(ii) On account of merger of pre-revised pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, some posts which presently constitute feeder and promotion grades will come to lie in an identical grade. The specific recommendations about some categories of these posts made by the Pay Commission are included (sic) Section II of Part C. As regards other posts, the posts in these three scales should be merged. In case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.5000-8000 and Rs.5500-9000 should be merged, with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in pay band PB-2, i.e., to the grade pay of Rs.4600 corresponding to pre-revised pay scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.
Posts in the scale of Rs.6500-10500 carrying minimum qualification of either Degree in Engineering or a Degree in Law should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.
(iv) Posts of scientific staff in the scale of Rs.6500-10500 carrying minimum qualification of engineering degree or a post-graduate degree should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.
(v) Upgradation as in (ii) above may be done in consultation with Department of Expenditure, Ministry of Finance. Regarding (iii) and (iv) above, upgradation may be done by the Ministries concerned in consultation with their Integrated Finance. 14.3 Admittedly, the 5th CPC pay scale for the erstwhile posts of TO and TO A was Rs.7450-11500/-, and as per the First Schedule Part A, Section I of the CCS (RP)Rules, 2008, the said pay scale of Rs.7450-11500/- was replaced by the 6th CPC Pay Band-2(Rs.9300-34800)/ Grade Pay of Rs.4600/-. The 5th CPC pay scales for the posts of TA A and TA B and TA C in Category A and STA A, STA B and STA C in Category B of the DRDO Technical Cadre were Rs.5000-8000/-, Rs.5500-9000/- and Rs.6500-10500/- respectively, and all the said three 5th CPC pay scales were merged and replaced by the 6th CPC Pay Band-2(Rs.9300-34800/-)/Grade Pay of Rs.4200/-. As per the recommendation of the 6th CPC and First Schedule Part C, Section I of the CCS (RP)Rules, 2008, the posts of TA A and TA B in Category A were merged and re-designated as TA B, and STA A and STA B were merged and re-designated as STA B. Both the said re-designated posts of TA B and STA B were placed in PB-2(Rs.9300-34800/-)/Grade Pay of Rs.4200/-. Though the erstwhile posts of TA C and TO in Category A and STA C and TO A in Category B were to be merged and re-designated as TO and TO A and were to be placed in PB-2(Rs.9300-34800/-)/Grade Pay of Rs.4600/-, yet as per the erroneous orders issued by the respondent nos. 1 and 2, TA C in Category A and STA C in Category B were placed in PB-2(Rs.9300-34800/-)/ Grade Pay of Rs.4600/- and TO in Category A and TO A in Category B were placed in PB-2 (Rs.9300-34800/-)/Grade Pay of Rs.4800/-. After the respondent no.1s order dated 30.9.2010 (ibid) was quashed by the Chandigarh Bench, vide order dated 13.3.2013 passed in OA No.571-CH-2011, the orders dated 10.5.2013, 13.5.2013 and 30.5.2013 were issued by respondent nos. 1 and 2, whereby and whereunder TO and TO A were placed in PB 2 (Rs.9300-34800/-)/Grade Pay of Rs.4600/-, i.e., the 6th CPC replacement scale of the pre-revised pay scale of Rs.7450-11500/- with effect from 1.1.2006; all the erstwhile posts of TO and TA C were re-designated as TO at PB 2(Rs.9300-34800/-)/ Grade Pay of Rs.4600/- in Category A; and all the erstwhile posts of TO A and STA C were re-designated as TO A at PB 2(Rs.9300-34800/-)/ Grade Pay of Rs.4600/- in Category B. Both the re-designated posts of TO and TO A were classified as Group B Gazetted. As a consequence, the restructured DRDO Technical Cadre, which came into being with effect from 1.1.2006, is as follows:
Designation 5th CPC Pay Scale Re-designation 6th CPC Pay Scale/PB & Grade Pay CATEGORY A Technician A 3050-4590 Technician A PB-1(5200-20200) Grade Pay Rs.1900.
Technician B 4000-6000 Technician B PB-1(5200-20200) Grade Pay Rs.2400.
Technician C 4500-7000 Technician C PB-1(5200-20200) Grade Pay Rs.2800.
Technical Assistant A 5000-8000 Technical Assistant B 5500-9000 Technical Assistant C 6500-10500 Technical Officer 7450-11500 CATEGORY B Senior Technical Assistant A 5000-8000 Senior Technical Assistant B 5500-9000 Senior Technical Assistant C 6500-10500 Technical Officer A 7450-11500 Technical Officer B 8000-13500 Technical Officer B PB-3(15600-39100) Grade Pay Rs.5400 Technical Officer C 10000-15200 Technical Officer C PB-3(15600-39100) Grade Pay Rs.6600 Technical Officer D 12000-16500 Technical Officer D PB-3(15600-39100) Grade Pay Rs.7600 As would appear from the above, the erstwhile TA C and STA C (applicant nos.2 to 52), who were in the 5th CPC pay scale of Rs.6500-10500/-, were promoted to the posts of TO and TO A in the 5th CPC pay scale of Rs.7450-11500/- during 2006 to 2012. On such promotion, their pay was fixed in the 6th CPC Pay Band-2/ Grade Pay of Rs.4800/- by virtue of the erroneous orders dated 5.6.2009 and 8.6.2009 issued by the respondent nos. 1 and 2. The said orders dated 5.6.2009 and 8.6.2009 were apparently issued in complete disregard of the provisions contained in the First Schedule Part A Section I and First Schedule Part C, Section I of the CCS (RP)Rules, 2008. As per the orders issued by the respondent nos. 1 and 2, the Grade Pay of Rs.4800/- earlier erroneously granted to the TO and TO A was withdrawn and the posts of TA C and TO were merged and re-designated as TO, and STA C and TO A were merged and re-designated as TO A in PB-2/Grade Pay of Rs.4600/- with effect from 1.1.2006. As the said feeder grades and the promotional grades carried the same Grade Pay of Rs.4600/- with effect from 1.1.2006 and promotion within the posts carrying the same Grade Pay is ineffectual, promotions of the erstwhile TA C and STA C to the erstwhile TO and TO A during 2006 to 2012 have been rightly termed as infructuous, vide order dated 30.5.2013(ibid). Thus, it cannot be held that promotion of the erstwhile TO and TO A effected during 2006 to 2012 has been withdrawn and their Grade Pay reduced from Rs.4800/- to Rs.4600/- in 2013 with effect from 1.1.2006. Therefore, we do not find any substance in the submission of the learned counsel for the applicants in that regard.
15. The next submission of the learned counsel for the applicants is that the TA C and STA C, who were ineligible or failed to get promotion to the posts of TO and TO A in the Grade Pay of Rs.4800/- during 2006 to 2012 are now treated as TO and TO A at par with the erstwhile TO and TO A like the applicant nos. 2 to 52, which is hit by Article 14 of the Constitution of India. In paragraph 2(c)(III) of the letter No.DHRD/ 16342/ 6th CPC/DRTC/C/P/(iv), dated 30.5.2013, it is clearly stipulated that for the assessments through Special Review Boards of erstwhile STA C, TA C and TO A and TO of pre-1.1.2006, whose pay would be fixed at PB-2/Rs.4600/-, the residency criteria for those who were in the erstwhile pay grade of Rs.7450-11500 before 1.1.2006, now placed in the 6th CPC upgraded scale of PB-2/Rs.4600/-, their service in the grade shall be counted for eligibility for assessment to PB-3/Grade Pay of Rs.5400/-, and for those who were in the erstwhile pay grade of Rs.6500-10500/- before 1.1.2006, now placed in the VI CPC upgraded scale of PB-2/Grade Pay of Rs.4600/-, their service shall be counted w.e.f. 1.1.2006 for eligibility for assessment to PB-3/Grade Pay of Rs.5400/-. It is thus clear that the service of the erstwhile TA C and STA C, who were re-designated as TO and TO A and placed in the PB-2/Grade Pay of Rs.4600/- shall be counted with effect from 1.1.2006 for promotion to TO B in PB-3/Grade Pay Rs.5400/-. It is found that the erstwhile TA C & STA C after being merged and re-designated as TO and TO A with effect from 1.1.2006, are entitled to be treated at par with the erstwhile TO and TO A in as much as all of them constitute one class. None of the rights and privileges has been taken away from the erstwhile TO and TO A consequent upon the aforesaid merger and re-designation. Besides, the erstwhile TO and TO A cannot be said to have any grievance on this count also in view of the fact that they are to be assessed, along with the re-designated TO and TO A, for promotion to the higher grade of TO B in PB-3/Grade Pay Rs.5400/-.
16. It is also submitted by the learned counsel for the applicants that the erstwhile TO and TO A, like the applicant nos.2 to 52 herein, who had undergone assessment for their promotion from the posts of TA C and STA C in Grade Pay of Rs.4600/- to the posts of TO and TO A Grade Pay of Rs.4800/- during 2006 to 2012, should not have been required to undergo Special Review Assessment for their promotion to the TO B in the Pay Band-3/Grade Pay Rs.5400/- for the assessment year 2011 onwards. This submission of the learned counsel is wholly untenable for the following reasons. The posts of TA C and STA C and the posts of TO and TO A have been merged and re-designated as TO and TO A and placed in the PB-2/Grade Pay of Rs.4600/- w.e.f. 1.1.2006. The assessment, which they had undergone during 2006 to 2012, is totally different from the assessment that is required for promotion to TO B in the PB-3/Grade Pay of Rs.5400/- in terms of the DRDO Technical Cadre Recruitment Rules. The reference to their promotion from Grade Pay of Rs.4600/- to the Grade Pay of Rs.4800/- during 2006 to 2012 is wholly misplaced in as much as the Grade Pay of Rs.4800/- earlier erroneously granted to TO and TO A has been withdrawn with effect from 1.1.2006. Therefore, there is no infirmity in the actions taken by the respondents to hold Special Review Boards to assess the suitability of the erstwhile STA C, TA C(re-designated as TO and TO A w.e.f. 1.1.2006) and the erstwhile TO A and TO for the Assessment Years 2011, 2012 and 2013 for promotion to TO B in PB-3/Grade Pay of Rs.5400/-, vide letter dated 9.9.2013 (ibid). Consequently, the letter dated 10.12.2013 (Annexure B-1 to the MA No.3407 of 2013 filed by the applicants for interim stay) wherein the names of some of applicant nos. 2 to 52, along with many others, find place for the purpose of Special Review Boards 2011 & 2012 and Assessment Board 2013 for promotion to the post of TO B cannot be faulted. It is for them either to appear or not to appear at the interview for the said Special Review Boards and Assessment Board for promotion to the post of TO B, but they cannot be allowed to stall the entire assessment process undertaken by the respondents in accordance with the letter dated 30.5.2013 (ibid), the legality and validity of which has not been challenged by the applicants in the present Original Application. Besides, the Special Review Boards have to be held in compliance with the orders passed by the Hyderabad Bench of the Tribunal, as mentioned earlier.
17. The last submission of the learned counsel for the applicants is that the stipulation contained in the orders dated 10.5.2013, 13.5.2013 and 30.5.2013 (ibid) regarding recovery of overpayment is bad and illegal in as much as the erstwhile TO and TO A, like the applicants, were not in any way responsible for the drawal of Grade Pay of Rs.4800/- but for the erroneous rule/order issued by the respondent nos. 1 and 2 and therefore, the said respondents are estopped from recovering the said overpayment. In support of his contention, the learned counsel has relied on the decision of the Honble Supreme Court in Purshottam Lal Das and others v. The State of Bihar and others, JT 2006 (12) SC 581, and the decision of the Tribunal in Rajesh Chandra v. Union of India, OA No.1291 of 2009, decided on 31.3.2011.
18. The learned counsel appearing for the respondents, on the other hand, submitted that as the excess payment was admittedly made to the applicants owing to invalid/erroneous orders issued by the Department and as the applicants were not entitled to the Grade Pay of Rs.4800/- under the rules, the respondents cannot be estopped from recovering the over-payment. In support of his contention, the learned counsel relied on the decision of the Honble Supreme Court in Chandi Prasad Uniyal and others v. State of Uttarakhand and others, Civil Appeal No.5899 of 2012, decided on 17.8.2012.
19. In Purshottam Lal Das and others (supra), the facts of the case were that except some of the appellants who were Class IV, the remaining appellants were holding Class III posts. They were promoted to the post of Clerk in the year 1992. The State Government was of the view that promotions granted were illegal and accordingly, the appellants were reverted to the original post held by each one of them. Being aggrieved by the said order, some of the appellants moved the Honble High Court which quashed the orders on the ground that adequate opportunity was not granted to show cause before the action was taken. Thereafter, show cause notices were issued to which the appellants responded. Ultimately, they were reverted to the original post held by each of them and direction was given to recover the excess amounts which had been paid. Writ Petitions were filed challenging the orders in that regard. In each case the learned Single Judge dismissed the writ petition and the Letters Patent Appeals were also dismissed. The Honble Supreme Court, while not accepting the challenge to the orders of reversion, directed that no recovery shall be made from the amounts already paid in respect of the promotional posts.
20. In Rajesh Chandras case (supra), the facts of the case were that the applicant was initially appointed as Battery Man on 13.2.1973 and thereafter confirmed on 1.3.1976. Under the provisions of One Time Bound Promotion (OTBP), the applicant was granted promotion on 14.12.1989, after completion of 16 years of service, w.e.f. 12.12.1989. His salary was thus fixed at Rs.965/- in the scale of Rs.800-1150/- w.e.f. 23.2.1989.The applicant superannuated at the age of 60 years on 30.3.2008. At the time of superannuation, the pay of the applicant was Rs.6,970/- in the scale of Rs.4720-150-6970 and accordingly his pension was calculated keeping in view the last pay drawn. By an order dated 7.7.2008, the respondent-authority had modified the date of OTBP from 12.2.1989 to 1.12.1990 without any pre-notice to the applicant. Again, by 1.8.2008, the respondent-authority issued another last pay certificate reducing the applicants pay from Rs.6970/- to Rs.6,820/-. Recovery of Rs.26, 957/- was also ordered through the said communication. In the facts and circumstances of the case, the Tribunal quashed the impugned orders and declared that the applicants pay could not be depleted from Rs.6970/-. The Tribunal also restrained the respondents from giving effect to the revised/reduced last pay and recovery.
21. In Chandi Prasad Uniyal and others (supra), the facts of the case were that the appellants 1 and 2 were not in the pay scale of Rs.4,250-6,400 and as such they could not have got the revised pay scale of Rs.10,000-15,200/- w.e.f. 01.07.2001. Only if they were getting pay scale of Rs.8000-13500/- on 01.01.1996, they would have been entitled to be placed in the pay scale of Rs.10,000-15,200/- as on 01.07.2001. Further, appellants 3 to 5 were working as Assistant Teachers and drawing pay scale of Rs.3,600-5,350/- as on 01.01.1996 and were placed in the pay scale of Rs.5,000-9,000/- as on 01.07.2001. Further, it was noticed that none of the appellants were working as Principals and were never placed in the pay scale of Rs.8,000-15,500/- as on 01.01.1996 to get the benefit of the pay scale of Rs.10,000-15,200/- as on 01.07.2001. It was also found that only few persons like the appellants had been getting higher pay scale in the District of Haridwar w.e.f. 01.07.2001 and similarly situated persons in the rest of Uttarakhand were getting the same pay scale of Rs.10,000-15,200/- only from 11.12.2007 and it was to rectify this anomaly, the District Education Officer, Haridwar passed the order dated 24.10.2009 and issued the letter dated 18.11.2009 directing deposit of the excess payment made to the applicants in the Treasury. The question that arose for consideration of the Honble Supreme Court was whether over-payment of amount due to wrong fixation of 5th and 6th pay scale of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who were serving as teachers. The Division Bench of the Honble High Court rejected the writ petition filed by the appellants and took the view that since payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judgment, the appeal was preferred before the Honble Apex Court. Taking note of the decisions in Shyam Babu Verma v. Union of India, [(1994) 2 SCC 521], Sahib Ram v. State of Haryana [1995 Supp.(1) SCC 18], State of Bihar v. Pandey Jagdishwar Prasad, [(2009) 3 SCC 117] and Yogeshwar Prasad and others v. National Institute of Education Planning and Administration and ors, [(2010) 14 SCC 323], Col.B.J.Akkara (retd.) v. Government of India and Ors, [(2006) 11 SCC 709], Syed Abdul Qadir & ors v. State of Bihar & ors, [(2009) 3 SCC 475], the Honble Supreme Court, in paragraphs 15, 16, 17 and 18 of the judgment, held thus:
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as tax payers money which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col.B.J.Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellants salary in twelve equal monthly instalments starting from October 2012. The appeal stands dismissed with no order as to costs. IA Nos. 2 and 3 are disposed of.
22. In the instant case, as already noted, the posts of TA C and STA C and TO and TO A were merged and re-designated as TO and TO A and were placed in the PB-2/Grade Pay of Rs.4600/- and the Grade Pay of Rs.4800/- was withdrawn w.e.f. 1.1.2006, vide orders dated 10.5.2013, 13.5.2013 and 30.5.2013 (ibid) which have been issued in accordance with the First Schedule, Part A, Section I and First Schedule, Part C, Section I of the CCS (RP) Rules, 2008. Instead of merging the post of TA C with the post of TO in Category A and STA C with TO A in Category B and placing them in PB-2/ Grade Pay of Rs.4600/- in accordance with First Schedule, Part C, Section I and First Schedule, Part C, Section I of the CCS (RP) Rules, 2008, the respondent nos. 1 and 2 had erroneously placed TA C and STA C in PB-2/ Grade Pay of Rs.4600/- and TO and TO A in PB-2/Grade Pay of Rs.4800/- and treated the posts of TA C and STA C as feeder posts for promotion to TO and TO A. This mistake was rectified by the respondent nos. 1 and 2 by issuing orders dated 10.5.2013, 13.5.2013 and 30.5.2013 (ibid) whereby and whereunder the order dated 5.6.2009 (ibid) was cancelled/annulled, the posts of TA C and STA C were merged with TO and TO A and the re-designated TO and TO A were placed in PB-2/Grade Pay of Rs.4600/- with effect from 1.1.2006 , and the excess payment was directed to be recovered from the applicants and other similarly placed officers. In the instant Original Application, the applicants have not challenged the legality and validity of the order withdrawing the Grade Pay of Rs.4800/- which was earlier erroneously granted to the posts of TO and TO A by an invalid order. It is also found that the applicants were not entitled to the Grade Pay of Rs.4800/-. Thus, the Grade Pay of Rs.4800/- was paid to the applicants and others without any authority of law and payments have been received by the applicants also without any authority of law. In view of the decision of the Honble Supreme Court in Chandi Prasad Uniyal and others (supra), such amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships. It is noted here that the applicants are holders of Group B Gazetted posts. It is also not their case that they will face extreme hardship in the event of recovery of the excess payment from them. Therefore, in our considered view, the ratio decidendi laid down by the Honble Supreme Court in Chandi Prasad Uniyal and others (supra) is squarely applicable to the facts and circumstances of the present case. However, we order that the excess payment made be recovered from the applicants salary in twelve equal monthly instalments.
23. In the light of the above discussions, we hold that the Original Application is devoid of merit and liable to be dismissed.
24. Accordingly, the Original Application is dismissed. MA No. 2725 of 2013 and MA No.3407 of 2013 are disposed of. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN