Central Administrative Tribunal - Madras
P G Narendran vs M/O Information And Broadcasting on 2 March, 2023
1 OANo.310/00277/2021 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/00277/2021 Dated Thursday the 2™ day of March Two Thousand Twenty Three CORAM: | HON'BLE MS. LATA BASWARAJ PATNE, Member (J) P..G. Narendran Steno Grade II, AIR Civil Construction Wing Post Bag No. 418 Swami Sivananda Salai Chennai -- 600.005. Applicant By Advocate M/s, Paul & Paul Vs 1. Union of India Rep. by Secretary, Ministry of Information and Broadcasting, 'A' Wing, Shastri Bhavan, New Delhi - 110 001. 2. The Director General, All India Radio, Akashvani Bhavan, Parliament Street, New Delhi --- 110.001. 3, The Deputy Director (Admin), All India Radio, Akashvani Bhavan, Parliament Street, New Delhi --- 110 001. 4, The Chief Engineer ©, Civil Construction Wing, Soochana CGO Complex, Lodhi Road, New Delhi ~ 110 003. AS 0) 5. The Superintending Engineer (Civil) Civil Construction Wing Post Bag No. 418, Swami Sivananda Salai Chennai -- 600 005. 6. Engineer Assistant to SE(C) Civil Construction Wing, Post Bag No. 418, Swami Sivananda Salai Chennai -- 600 005. ? By Advocate Mr. M. Kishore Kumar OA No.310/00277/2021 Respondents 3 OA No.310/00277/2021 ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA seeking the following reliefs: | "a. To set aside the impugned order dated 03.03.2021 which is contrary to law laid down by the Hon'ble Supreme Court in Rafiq Masih case and the DoP&T OM dated 02.03.2016, and consequently direct the 5" respondent to place the case of the applicant before the Department of Expenditure for obtaining an express approval for waiver as done in the case of Shri. Kannan, Steno Gr. I (a similarly placed employee of Doordarshan, Chennai) as per OM dated 02.03.2016.
b. To declare that the case of applicant covered under the exceptions No. 3 and 5 of the Rafiq Masih case, and therefore there cannot be any recovery of excess payment from the applicant.
c. For such further or other relief or reliefs as this Tribunal may deem fit and proper in the circumstances of the case and thus render justice. "
2. The brief facts of the case in nutshell is as follows:
The applicant has cleared the Clerks Grade Examination in the Central Secretariat Clerical Services, Cadre of Ministry of Home A fhiirs, and appointed as LDC vide posting order No.A.12025/14/86-Ad. I (B) dated 11th March 1987 and posted at Prime Minister's Office at New Delhi. Then the applicant was selected to the post of Stenographers Grade 'D' on ad-hoc basis vide order No.12025/8/88-Ad. 1(B) dated 07.04.1988 for a period of two months and thereafter the said period was extended for further two months regularly. Subsequently, the applicant has cleared the departmental examination for the post of Stenographers Grade 'D' in April O 4 OA No.310/00277/2021 1990, and he was appointed as Stenographers Grade 'D' on temporary basis in the pay scale of Rs.1200-30-1560-EB-40-2040 with effect from 05.09.1990 vide order dated 30.11.1990.
3. Then the applicant applied for transfer to DDK, Gulbarga after obtaining the offer of appointment as Stenographer (Junior) vide order dated 09.09.1991 and thereafter he had submitted his technical resignation in his parent cadre, and relived with effect from 30.08.1991. Subsequently, the applicant joined as Stenographer (Junior) in Doordarshan Kendra at Gulbarga on 03.09.1991. Thereafter, the applicant on his own request transferred from Gulbarga to Tirupathi vide order dated 02.09.1996 and Joined there as Stenographer Grade - III (Jr). The applicant was promoted to the Post of Stenographer Grade-II. The applicant was granted the II MACP and he was granted the Grade Pay of Rs. 4600/-.
4. The pay of the applicant was re-fixed pursuant to the recommendation of the 6th pay commission, whereby his pre-revised scale of Rs, 5000-8000 was taken for arriving the basic pay in the revised pay scale of 9300-34800+ GP 4200, and his basic pay was taken as Rs. 6050 (5900 Pay as on 31.12.2005 and Rs. 150/- one increment, total = 6050/-), and pay in the revised pay band was arrived as Rs. 11,260/-. Pay of the applicant again re-fixed pursuant to the order issued by the DG-AIR dated 03.10.2012, whereby his existing emoluments as on 01.01.2006 was taken as Rs, 6050/- and he was granted three bunching benefits (3% each) as he has earned 7 increments in his pre-revised scale, finally his pay in pay 5 OA No.3 10/00277/2021 band after including the bunching was arrived in the pre-revised scale of Rs. 6500-10500 (upgraded scale) as Rs. 13,200 + 4200 GP = 17,400/-.
While carrying out the re-fixation, no underataking was obtained from the applicant.
5. The pay of the applicant was re-fixed again, and the bunching benefits which was granted earlier was taken away and his pay finally was arrived as Rs.15,460/- (126044200 GP = 15460). Asum of Rs. 11040 was recovered from the salary of the applicant on the ground that he was paid excess of Rs. 3,75,040/-.
6. The Senior Accounts Officer vide his audit memo instructed that the order dated 02/03.10.2012 was rectified vide SE office letter dated 16.06.2014 and therefore the excess amount paid has to be recovered from the applicant.
7. Pursuant to the audit memo, the Superintending Engineer passed an order whereby he has informed that the recovery will commence from teh month of March 2021 and the excess amount will be recovered in 35 instalments at the rate of Rs. 10,400/-. The applicant gave a representation against hte order passed by the 5" respondent on 05.03.2021 which is still pending for consideration. Hence this OA,
8. After notice the respondents have appeared through their counsel and filed reply statement. It is stated that the applicant's pay was initially fixed in PB 2 9300-34800 with GP Rs. 4200/- as per sixth CPC recommendations. However, later Directorate General, AIR, New Delhi oO 6 OA No.310/00277/2021 issued a O.M. No. A-26022/02/2012-S.IV/1328 to 1330, dated 03/04.10.2012 clarifying that fixation in respect of Head Clerk/Assistant/Steno Gr.J] working in AIR & Doordarshan will be made as per illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC Gazette Notification. However, the pay scale in respect of Head Clerk/Assistant/Steno Gr-II will remain in PB-2 Rs. 9300-34800 with Grade Pay of Rs. 4200/-. Based on the above OM many stations of AIR & Doordarshan across the country revised the pay fixation of granting bunching for Head Clerks/Assistants/Stenos and UDCs in the grade Pay of Rs. 4200/- Where, in the fixation of pay, the pay of Government Servants drawing Pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. This was objected to by the fifth respondent as there is no provision for bunching in the 6" CPC in normal cases.
9. Further, it is contended that the recommendations of the 6" CPC regarding, pay fixation clearly states that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of ten, and if this is below the minimum of the corresponding pay of revised pay grade, then the basic pay will be fixed at the minimum of 7 OA No.310/00277/2021 the revised pay grade. The Ministry of Finance, Department of Expenditure vide OM FTS No. 154226/2015/E.ITI(A) dated 28.07.2015 has clarified that Prasar Bharati's instruction on fixation of the pre-revised scale of Rs.6500-10500 is not in conformity with the CCS (RP) Rules, 2008. It is further submitted that the Ministry of Finance vide Para 5 has stated that "in view of the above provisions in CCS (RP) Rules, 2008, the instructions issued by Prasar Bharati Secretariat to give the minimum of the corresponding stage of Rs. 6500/- in the pre revised scale of Rs. 6500- 10500 is wrong and needs to be rectified immediately." Hence, Director General vide letter No. A-26022/02/2012, dated 05.01.2016 has withdrawn the 2012 instruction on fixation of pay and instructed all the stations ty re- fix the pay accordingly. The pay of all similarly placed officials across all AIR & DD were revised including the applicant. Further it is submitted that the applicant has given undertaking during the pay fixation consequent to the revision of pay during 6" CPC as well as 7" CPC. Thus, the act of non-submission of undertaking during the fixation made as per illustration 4A is deliberate and intentional act by the applicant. It is further submitted that Hon'ble Supreme Court of India in the case of State Bank of Punjab Vs Rafiq Masih do not apply to the applicant as she falls under Group B category and still has service for more than 8 years. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment if the excess payment if any made. Also as per Rafiq Masih i 8 OA No.310/00277/2021 cas¢ recovery not permissible only when employees on the verge of retirement. Whereas the applicant has cight more years tefl before his retirement. The revision of 6" CPC fixation was done in January 2013 and subsequently withdrawn in January 2016. Hence there is no excess payment made for more than five years. Hence the respondents pray for the dismissal of the OA.
10. Heard both sides. Perused the OA and other connected materials placed on record.
1]. When matter is taken up for hearing, learned counsel for the respondents has submitted that this matter is squarely covered by the order of this Tribunal in OA 494/2020 dated 16.08.2022. The relevant paras of the order are extracted as hereunder:-
"7. Admittedly, after the recommendation of 6" CPC, the applicant's pay has been rightly fixed in the year 2008 as per the illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC gazette notification as his existing pay as on 01.01.2006 as Rs, 6050/-. The applicant hus accepted the same and never raised any objection about. the said pay fixation, However, in the year 2012, the respondents, to remove the doubts again directed the concemed Head of Departments in the mutter of Clerks / Assistants / Steno Grade 2 to fix the pay according to the illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC gazette notification. While dealing so, the applicant's pay has been fixed at Rs. 6500/- and applicant has been paid accordingly along with arrears. It is to be noted that as the applicant has submitted that according to. the illustration 4A. in accordance with Note 2A below Rule 7 of 6 CPC gazette notification, his pay has to be fixed and initially the same. has been fixed at Rs. 6050/- accordingly with this proposition, Therefore, the applicant cannot say that the order which is passed for refixation and recovery to rectify the mistake occurred in the year 2012 and the order which is impugned in this OA is contrary to the law or bad in law, &. It is to. be noted that the matter of fixation of pay as un 61.01.2006 pursuant to the 6 CPC recommendation has been re- examined in consultation with the [FD of Prasar Bharti Secretariat in the light of clarification of Department of Expenditure conveyed by the Ministry of Information and Broadcasting vide their letter dt. 09.03.2015. Therefore, ihe competent authority has issued a clarificatory letter.and directed all: the All India Radio / Doordarshan. offices and 9 OA No,310/00277/2021 issued a clarification dt. 18.06.2015. By letter dt. 05.01.2016, respondent no..3 has informed all the All India Radio / Doordarshan offices to do the pay fixation as per the clarification provided by the Prasar Bharti Secretariat by letter dt. 31,12.2015 with a direction to recover the excess amount paid if any immediately.
9. It is tobe noted that immediately after the knowledge of the said action of the respondents, the applicant has preferred a representation dt. 21.01.2016 and requested for not to revise the fixation of pay. 'The representations of the applicant as well as other employees on the same request have been forwarded to the competent authority. In the meantime, on 27.01.2016, the applicant's pay has been refixed to Rs, 6050/- which was his existing pay as.on 01.01.2006. It is to be noted that applicant has not challenged any of these letter by which the refixation has been carried out in the year 2012 according to the illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC gazette nolification, Even by letter dt. 18.06.2015, clarification has been issued and the matier has been re-examined in respect of pay fixation and direction has been issued by letter dt. 31.12.2015 and accordingly a direction for implementation has been issued on 05.01.2016. The applicant has not challenged any of these letters nor his refixation. It is to be noted that while. considering similar cases; the Principal Bench, Patna Bench, Bangalore Bench have gone into the details with the rule positions, illustrations and observed that the wrong fixation has been done in the year 2012 and thereafter the said mistake of wrong fixation has been rectified within a span of between three to four years and issued orders of correct refixation of pay. Observing the same, the co-ordinate Benches of this Tribunal have rejected the claim of the applicants therein against the same department who are the respondents herein above. Moreover, the Court has granted liberty for recovery.
10. Here, the applicant is the Stenographer who is attached to the office of AIR. The Ministry of Finance, Department of Expenditure by their OM dt. 28.07.2015 has clarified that :-
"3. In view of the above provisions in the CCS (RP) Rules, 2008, the instructions issued by the Prasar Bharti Secretariat to. give tne minimum: of the corresponding stage of Rs. 6500/- in the pre-revised scale of pay of Rs, 650- 10500 is wrong and needs to be rectified immediately."
Il. | Learned senior counsel for respondents, Mr. Su. Srinivasan, SCGSC has rightly pointed out that OM dt. 28.07.2015 issued by the Ministry of Finance, Department of Expenditure and also he has rightly pointed out that the observations of the Hon'ble Supreme Court in the matter of Chandi Prasad Uniyal in paras 15, 16 and 17 as quoted above. In view of this, the impugned order which is passed by the respondents considering all the guidelines issued by the Hon'ble Supreme Court as well as the OM issued by the DoPT, the respondents have justified in passing the said order of rejection. It is to be noted that the learned counsel for applicant has agitated before this Court that no show cause has been issued while issuing the recovery order and that is issued 10 OA No.310/00277/2021 moreover, after the five years and when the proposal has been forwarded by the HoD to the competent authority and the same has not been placed before the Department of Expenditure. [t is to be noted that a bare perusal from the record, as the applicant has submitted representations to the respondents, it is clear that the said actions related to the refixation initiated by the Department as well as corrections of pay is well within the knowledge of the applicant. As rightly noted above that. after the recommendation of 6" CPC when first time in the year 2008. the applicant's pay has been fixed ag per the: illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC gazette notification, the same has been accepted by the applicant and he has not raised any objection Stating therein that his pay has been fixed wrongly. When again, the pay has been refixed in the year 2012, the applicant has accepted the same knowing fully well that it is not as per illustration 4A in accordance with Note 2A below Rule 7 of 6" CPC gazette notification. The applicant is a depree holder working as Stenographer Grade I in the office of AJR since 2015. The applicant has raised an objection and made representation before the authorities in the year 2016. The applicant cannot be said -o be innocent. Since he is making repeated representations, it cannot be said that there is no show cause. The said recovery has been effected within the three 'and half year from 2012 to 2016. It is to be noted that the applicant has neither challenged his first pay fixation carried out in the year 2008 nor in the year 2016. Also, the reliance is placed by the applicant in the matter of K. Kannan who had retired and the recovery had been effected from his retiral benefits ie., DCRG. Looking to the extreme hardship, this Tribunal, while passing the order dt. 15.07.2016 had set aside the recovery. The applicant is still working and since from 2016, the applicant has agitated his claim before the authorities though the same has been rejected. When this matter has been filed aggrieved by the said impugned order, the applicant is having three more years of service from that date. Hence, no hardship is going to be caused to the applicant-as well as. respondents have rightly corisidered that the case of ihe applicant is not fit to for waiver. In view of the aforesaid facts. the orders passed by the co-ordinate Benches of this Tribunal as well as the observations: made in the judgment of Chandi Prasad Uniyal by the Hon'ble Supreme Court in addition to the observations made in the matter of Rafiq Masih as well as Thomas Daniel and Ministry of Finance, Department of Expenditure OMs, the respondents are justified and have rightly passed the order of refixation and recovery. In view of this, the applicant's case does not fall under the criteria of Rafiq Masih and K.Kannan as well as DoPT OM. dt. 02.03.2016. Hence, fn my considered view, the OA deserves to be dismissed. No order as tu costs,"
12. On perusal it is seen that this matter is squarely covered by the order passed in OA 494/2020 on 16.08.2022. The respondents are justified and have rightly passed the order of recovery. In view of that, the applicant's case does not fall under the criteria of Rafiq Masih and K. Kannan (OA 1649/2015) as well as DoPT OM dated 02.03.2016. Hence, in my ul OA No.3 10/00277/2021 ey ~ considered view, no interference is called for. OA is dismissed. No order as to costs. : _-- .
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