Central Administrative Tribunal - Ernakulam
Gopinathan C vs Sree Chitra Tirunal Institute For ... on 4 July, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No.180/00781/2016
Wednesday, this the 4th day of July, 2018
CO RAM :
HON'BLE Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
Gopinathan.C., S/o.G.Chellappan Nair,
Retired Chief Accounts Officer,
SCTIMST, Trivandrum.
Residing at Govinda Mandiram, JNPRA-48,
Jayaprakash Lane, Kudappanakkunnu,
Thiruvananthapuram - 695 043. ...Applicant
(By Advocate - Mrs.K.P.Geethamani)
Versus
1. Sree Chitra Tirunal Institute for Medical Sciences & Technology,
represented by Director, Thiruvananthapuram - 695 011.
2. Union of India represented by Secretary to Government,
Ministry of Finance, Department of Expenditure,
Implementation Cell, New Delhi - 110 001. ...Respondents
(By Advocates - Mr.T.R.Ravi [R-1]
& Mr.N.Anilkumar,Sr.PCGC[R] [R-2])
This Original Application having been heard on 28 th June 2018, the
Tribunal on 4th July 2018 delivered the following :
ORDER
O.A.No.180/781/2016 is filed by Shri.Gopinathan.C., retired Chief Accounts Officer (CAO for short), SCTIMST, Thiruvananthapuram against the action on the part of the 1st respondent in denying him increment in the scale of pay of CAO. The reliefs sought in the O.A are as follows :
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1. To set aside Annexure A-13 order, since the same is issued in violation of Rule 9, 10 and 13 of CCS (Revised Pay) Rules, 2008, as clarified by the Government of India decision dated 13.9.2008, and also in violation of Fundamental Rule 22(1)(a)(1) as clarified by Annexure A-5 Office Memorandum and Fundamental Rule 26.
2. To direct the respondents to re-fix and disburse applicant's pay in CAO cadre post by adding 3% increment as stipulated in FR 22(1)
(a)(1), read with Rule 9 and 13 of CCS (Revised Pay) Rules, 2008.
3. To direct the respondent to sanction and disburse the applicant's increments in CAO post w.e.f 1.7.2009 based on Rule 10 of CCS (Revised Pay) Rules 2008 and Fundamental Rule 26.
4. To direct the respondents to sanction and disburse the full retirement benefits due to the applicant in the revised scale of pay attached to CAO post applying Rule 9, 10 and 13 of CCS (Revised Pay) Rules 2008 as also Fundamental Rule 22(1)(a)(1) and 26, without any further delay.
5. To grant such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The applicant had joined service under the respondent organization as an Accounts Officer on 29.9.1992. He was promoted as Accounts Officer Grade B on 11.4.2001. The respondents had notified the vacancy of Chief Accounts Officer to be directly recruited and the applicant had applied for the same. After due process he was selected for the post and joined as Chief Accounts Officer with effect from 9.12.2008. He retired from service on 31.10.2009 and hence could not complete ten years of service in the CAO cadre. The normal increment in the Accounts Officer Grade B post held by the applicant was with effect from 1 st July every year and the last increment in that particular grade had been drawn by the applicant on 7.9.2008. He was not allowed the next increment on the ground that he had joined the higher post of CAO with effect from 9.12.2008.
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3. The recommendations of the 6th Pay Commission Report had been implemented by the Central Government with retrospective effect from 1.1.2006 and resultant Central Services Rule (Revised Pay) Rules, 2008. However, the applicant maintains that while fixing his pay in the CAO post he was not given the fixation benefit of 3% of the sum of the pay in the Pay Band as stipulated in Rule 13 of the 2008 Pay Rules. This has been clarified in FR 22(1)(a)(1).
4. Aggrieved by the inaction of the 1st respondent, the applicant petitioned the respondents. But he was issued with a rejection order dated 8.4.2009 (Annexure A-4). At this point the Office Memorandum issued by Department of Expenditure, Ministry of Finance dated 29th September 2009 (Annexure A-5) came to the knowledge of the applicant. It clarified the impact of FR 22(1)(a)(1) on the implementation of the Pay Commission Order. However, the respondents continued with their inaction. Further representations were filed by the applicant dated 11.12.2015 and 10.6.2016 (Annexure A-11 and Annexure A-12). Again through Annexure A-13 reply dated 13.6.2016, the 1st respondent had rejected the applicant's request and hence the O.A has been filed.
5. As grounds, the applicant stresses the fact that he had not drawn any increment for 16 months from 1.7.2008 which was a grave error on the part of the respondents. It is also being maintained that while refixing his .4.
eligible scale of pay in the post of CAO as provided in the 6 th Pay Revision Order, he has not been given increment equivalent to the 3% of the sum of the pay in the Pay Band.
6. The respondents have filed a reply wherein the contentions of the applicant have been denied. It is affirmed that the post of CAO was not under Vacancy Oriented Promotion Scheme. It was an Open Recruitment and the applicant applied for the same as an open candidate. Hence it is altogether wrong to consider the applicant as having been promoted to the CAO post. Yet considering his past service it was decided to protect his emoluments while fixing his pay in the new post. To illustrate, as per 6 th CPC the post of CAO would have been in the Rs.15600-39100 scale with Grade Pay of Rs.6600/-. But instead of being fixed at Rs.18750 the applicant was allowed to retain Rs.22920/-, that emolument being drawn by him before being recruited as CAO. FR 22(1)(a)(1) and Rule 13 (1) of CCS (RP) Rules, 2008 and the fixation benefit of 3% of the pay drawn mentioned therein is available only in the case of promotion and not in the case of direct recruitment. It is also worthwhile to note that the applicant had not exercised his option to indicate under which rule he wanted his pay to be fixed.
7. I have heard Smt.Geethamani, learned counsel for the applicant and Shri.T.R.Ravi for Respondent No.1 and Shri.N.Anilkumar,Sr.PCGC[R] for Respondent No.2. The sole bone of contention between the two sides is the .5.
fact that the applicants claim that he had come to the CAO post as a 'promotion' whereas the respondents maintain that it was an open recruitment and he can be treated only as a direct recruit open candidate. In his earlier posting as an Accounts Officer he had been drawing his increment on the 1st of July. He could not get any annual increment after 1.7.2008 as by the time his next increment was due, he had joined as a CAO and was being treated as a fresh recruitee. In the higher post, unfortunately, he could not get the benefit of an increment as he did not complete 12 months in that position. While considering the issue from the perspective of the applicant, he appears to have missed both the opportunities, namely, the increment he would have been eligible for if he had continued as an Accountant and the increment which he could have claimed on completion of 12 months as CAO.
8. I do not wish to go into the controversy of whether the elevation of the applicant as CAO was a promotion or direct recruitment as the contending parties have understood the same in different ways. FR 22(1)(a) (1) has the following clause :
Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or (rupees one hundred only) whichever is more.
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9. The applicant cannot claim the benefit under the above clause if the posting is considered as a direct recruitment. In so far as the respondents are concerned they have chosen to affirm that it was an open recruitment although the applicant was an insider candidate. At the same time the Tribunal should not lose sight of the fact that the applicant was also given a higher fixation taking into account the emolument he drew in the lower post. Now he is faced with a dilemma of a lesser pension than what he would have got, had he continued as an Accounts Officer thereby earning one more increment. Clearly leaving aside all aspects of the case, there is a discrepancy in the situation which has to be remedied. Considering the facts before the Tribunal the 1 st respondent is ordered to grant the relief sought to the extent of allowing him one additional increment either on the strength of the fact that he would have been eligible for one had he continued as Accounts Officer or as CAO. All other aspects relating to the issue such as whether the applicant's case is to be considered as promotion or as direct recruitment are being left untouched. Action consequent to this direction shall be taken within two months from the date of receipt of a copy of this order.
10. The O.A is disposed of as above. No order as to costs.
(Dated this the 4th day of July 2018) (E.K.BHARAT BHUSHAN) ADMINISTRATIVE MEMBER asp .7.
List of Annexures in O.A.No.180/00781/2016
1. Annexure A-1 - A true copy of the offer of appointment letter No.P & A.11/319/CAO/SSSC/SCTIMST/2008 dated 4.12.2008.
2. Annexure A-2 - A true copy of the order No.P&A/XI/24/SCTIMST/2008 dated 25.11.2008.
3. Annexure A-3 - A true copy of the representation dated 16.3.2009 submitted before the 1st respondent.
4. Annexure A-4 - A true copy of the rejection letter dated 8.4.2009 issued by the 1st respondent.
5. Annexure A-5 - A true copy of the office memorandum dated 29.1.2009 issued by the 2nd respondent.
6. Annexure A-6 - A true copy of the representation dated 16.6.2009 submitted before the 1st respondent.
7. Annexure A-7 - A true copy of the representation dated 29.10.2009 submitted before the 1st respondent.
8. Annexure A-8 - A true copy of the representation dated Nil submitted before the 1st respondent.
9. Annexure A-9 - A true copy of the order No.P&A.I/X/38/SCTIMST/2012 dated 27.9.2012.
10. Annexure A-10 - A true copy of the representation dated 14.11.2012 submitted before the 1st respondent by the Staff Union.
11. Annexure A-11 - A true copy of the representation dated 4.2.2015 submitted before the 1st respondent.
12. Annexure A-12 - A true copy of the representation dated 10.6.2016 submitted before the 1st respondent.
13. Annexure A-13 - A true copy of the rejection letter No.P&A.IV/PF- 1415/SCTIMST/2016 dated 13.6.2016.
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