Central Administrative Tribunal - Delhi
Pawan Kumar vs M/O Commerce on 3 August, 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3539/2016
Order reserved on 19th July 2017
Order pronounced on 3rd August 2017
Hon'ble Mr. K.N. Shrivastava, Member (A)
1. Mr. Pawan Kumar, aged about 50 years
Presently working as Advisor
Office of Chief Advisor (Cost)
Department of Expenditure
Ministry of Finance
New Delhi
2. Mr. Debiprasad Mohapatra
Aged about 56 years
Presently working as Additional DGFT
Office of Additional DGFT, Ahmedabad
Department of Commerce
Ministry of Commerce & Industry, New Delhi
3. Mr. Rajiv Arora, aged about 55 years
Presently working as Additional DGFT
Directorate General of Anti-Dumping & Allied Duties
Department of Commerce
Ministry of Commerce & Industry, New Delhi
4. Mr. Satyam Sharda, aged about 53 years
Presently working as Additional DGFT
Office of Additional DGFT, Hyderabad
Department of Commerce
Ministry of Commerce & Industry, New Delhi
5. Mr. Susanta Sekhar Das
Aged about 53 years
Presently General of Anti-Dumping & Allied Duties
Department of Commerce
Ministry of Commerce & Industry, New Delhi
6. Ms. Shubhra
Aged 50 years
Presently working as Director
Directorate General of Anti-Dumping & Allied Duties
Department of Commerce
Ministry of Commerce & Industry, New Delhi
2
O.A.No.3539/2016
7. Mr. Raj Kamal
Aged about 56 years
Presently working as Director
Department of Commerce
Ministry of Commerce & Industry, New Delhi
..Applicants
(Mr. Sudhir Kumar Makkar, Senior Advocate (Ms. Saumya Gupta, Advocate
with him)
Versus
1. Govt. of India
Through its Secretary
Department of Commerce
Ministry of Commerce and Industry
Udyog Bhawan, New Delhi
2. Ministry of Finance
Through its Secretary
Department of Expenditure
Ministry of Finance, New Delhi
..Respondents
(Mr. Hanu Bhasker, Mr. Manuk Kaushik and Mr. Ramjan Khan, Advocates)
ORDER
Through the medium of this O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following main reliefs:-
"a. Set aside or quash the impugned Office Memorandum No. G 25/1/2016-C-I dated 09.05.2016 issued by the Government of India, Department of Commerce.
b. Set aside the Office Memorandum No.21(2)/2016-E.II (B), dated 19th August, 2016 issued by the Government of India, Department of Expenditure.
c. Grant consequential benefits after setting aside / quashing aforesaid orders;"
2. Factual matrix of this case is as under:-
2.1 The applicants are members of Indian Trade Service (ITS) and Indian Cost Accounts Service (ICAS) - both Group 'A' Service of Central 3 O.A.No.3539/2016 Government. As per the recommendations of 6th Central Pay Commission (CPC), the Central Government introduced non-functional upgradation (NFU) Scheme vide Department of Personnel & Training (DoPT) Annexure A-1 O.M. dated 24.04.2009. Accordingly, these applicants were granted financial upgradation in the Grade Pay `10000/- in Pay Band - 4 - `37400-
67000.
2.2 For senior officers of the Central Government, the Ministry of Finance had issued Annexure A-2 O.M. dated 30.10.1997 (sic 03.10.1997) for granting them transport allowance as per the recommendations of 5th CPC. The relevant paragraph 3 (iii) & (iv) of the said O.M. is reproduced hereinbelow:-
"(iii) The allowance shall not be admissible to those employees who have been provided with the facility of Government transport.
(iv) In case of employees who have opted to draw pay in the pre-
revised scales of pay, the transport allowance shall be regulated in accordance with the revised scales of pay to which such employees would have been entitled to, had they opted to come over to revised scales."
2.3 The Department of Expenditure, Ministry of Finance (respondent No.2), after the acceptance of the recommendations of 6th CPC by the Central Government, issued a new Annexure A-3 O.M. dated 29.08.2008 on the issue of transport allowance to the senior officers modifying the Annexure A-2 O.M. dated 03.10.2017. The relevant paragraph 3 of the said O.M. is reproduced hereinbelow:-
"3. Officers drawing grade pay of Rs.10,000 & Rs.12000 and those in the HAG +Scale, who are entitled to the use of official car in terms of O.M. No.20(5)-E-II(A)/93 dated 28.1.94 shall be given the option to avail themselves of the existing facility or to draw the Transport 4 O.A.No.3539/2016 Allowance at the rate of Rs.7,000/- p.m. plus dearness allowance thereon."
On the basis of Annexure A-3 O.M. dated 29.08.2008 of respondent No.2, these applicants were allowed to draw transport allowance @ `7000/- + DA per month.
2.4 Respondent No.2, vide its Annexure A-4 O.M. dated 05.03.2009, clarified that Directors/equivalent at the Centre, notwithstanding the fact that they may have been granted non-functional upgradation to the next higher grade pay of `10000/- would be entitled to draw transport allowance @ `3200 + DA per month.
2.5 The Internal Audit Wing (HQ of respondent No.1), in its Audit para 06.04.2016, quoting the Annexure A-4 O.M. of respondent No.2, stated that officers, not having the rank of Joint Secretary and drawing Grade Pay of @ `10000/- and who have not been provided the facility of staff car, shall be eligible to draw transport allowance @ @ `3200/- + DA per month. Acting on the Audit report, respondent No.1 issued impugned O.M. dated 09.05.2016 (page 78 of the paper book), which is reproduced hereinbelow:-
"Office Memorandum Subject: Recovery of transport allowance - reg The undersigned is directed to convey that pursuant to Audit para dated 6th April 2016 of the Internal Audit Wing (HQ) for the year 2013-14 and 2014-15 on the subject mentioned above, only officers of the rank of Joint Secretary and above who are entitled for the use of staff car for journeys from residence to office and back are eligible to draw transport allowance @ Rs.7000/- plus DA. Hence, 5 O.A.No.3539/2016 other officers not having the rank of JS & drawing Grade pay of Rs.10000/- and who have not been provided the facility of staff car shall be eligible to draw transport allowance @ Rs.3200/- plus DA as per Department of Expenditure's O.M. No.21(2)/2008-E II (B) dated 29th August 2008 and 5th March 2009. (Copy enclosed).
2. In pursuance of Audit Para, it has been decided with the approval of competent authority to pay transport allowance to these Officers & Rs.3200/- + DA from April, 2016 onwards and to recover the excess payment of transport allowance already paid to these officers from May, 2016 in monthly instalments as per details given in Annexure-I."
2.6 The impugned O.M. entailed in recovery of the excess payment of transport allowance already paid to the officers of respondent No.1, including the applicants in this O.A. 2.7 Aggrieved by the impugned O.M., the applicants submitted several representations to respondent No.1. These are at Annexures A-5, A-6, A-7 & A-9. Taking cognizance of such representations emanating in various Ministries / Departments across the Central Government, respondent No.1 issued Annexure A-8 clarificatory O.M. dated 19.08.2016, which is reproduced below:-
"Subject : Clarification on admissibility of Transport Allowance in the cases where the officers are drawing Grade Pay of Rs. 10,000/- in PB- 4 -- regarding.
Reference is invited to this Department's Office Memorandum No.21 (2)/2008- E.II(B) dated 29.08.2008. Para '3' of the O.M. stipulates that Officers drawing Grade Pay of Rs.10,000/- & above and those in the HAG + Scale, who are entitled to the use of official car in terms of Department of Expenditure (DOE) O.M. No. 20(5)/E.II (A)/93 dated 28.01.1994, shall be given the option to avail themselves of the existing facility or to draw the Transport Allowance at the rate of Rs.7,000/- p.m. plus Dearness Allowance thereon.
2. Several references have been received in this Department seeking clarification on the admissibility of Transport Allowance to officers drawing Grade Pay Rs. 10,000/- under Dynamic ACP Scheme or NFU Scheme, A few cases have also been filed in the Courts in this regard. Hon'ble Central Administrative (CAT), Principal Bench, New 6 O.A.No.3539/2016 Delhi, in Order dated 13.05.2014 in O.A. No.4062/2013 filed by Shri Radhacharan Shakiya & Others V/s union Of India & Others, held that the Applicants were not entitled t0 draw Transport Allowance @ Rs.7,000/- p.m. plus DA thereon. The said order of the Tribunal has also been upheld by Hon'ble High Court of Delhi in their Order dated 03.09.2014 passed in writ petition (Civil) NO. 3445/2014, filed by Shri Radhacharan Shakiya & Others.
3. Accordingly. it is clarified that the officers, who are not entitled for the use of official car for commuting between residence to office and back, in terms of DoE's OM 20(5)E-II(A)/93 dated 28.01.1994, are not eligible to opt for drawal of Transport Allowance @ Rs.7000/- p.m. + DA thereon, in terms of DoE O.M, No.21(2)/2008-E.II(B) dated 29.08.2008, even though they are drawing Grade pay of Rs. 10,000/- in PB-4 under Dynamic ACP Scheme or under the scheme of Non-Functional Upgradation (NFU)."
Aggrieved by O.M. dated 09.05.2016 (page 78) of respondent No.1 and Annexure A-8 O.M. dated 19.08.2016 (both impugned in this O.A.), the applicants have filed the instant O.A. praying for the reliefs as indicated in paragraph (1) supra.
3. Pursuant to the notice issued, the respondents entered appearance and filed reply, to which a rejoinder was also filed by the applicants.
4. Arguments of learned counsel for the parties were heard on 19.07.2017.
5. I notice that the issues involved in this O.A. as well as reliefs prayed for by the applicants are completely akin to the issues / reliefs mentioned in O.A. No.3858/2016 - A.K. Panda v. Union of India & another. The said O.A. was allowed by the Tribunal vide order dated 31.07.2017 whereby the reliefs prayed for by the applicant therein were granted. The law points raised in this O.A. as well as in O.A. No.3858/2016 are also common. In this view of the matter, I am of the view that without going into the 7 O.A.No.3539/2016 pleadings and arguments of the parties, this O.A. can be disposed of in terms of the order dated 31.07.2017 passed in O.A. No.3858/2016.
6. In view of the discussions in the pre-paragraph, this O.A. is allowed in terms of order dated 31.07.2017 passed in O.A. No.3858/2016. Interim order passed on 19.10.2016 is made absolute.
No order as to costs.
( K.N. Shrivastava ) Member (A) /sunil/