Central Administrative Tribunal - Chandigarh
Dr Rakesh Gupta vs Education Deptt., Ut Chandigarh on 11 May, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
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O.A. No.60/1013/2017 Date of decision: 11.05.2018
(Reserved on: 20.03.2018)
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CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J).
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Dr. Rakesh Gupta S/o Sumer Chand, aged 62 years, House No.292,
Sector7-A, Chandigarh. Associate Professor.
...APPLICANT
VERSUS
1. Union Territory of Chandigarh through its Higher Education
Secretary.
2. The Director, Higher Education, Chandigarh.
3. Principal, Post Graduate Govt. College, Sector-11, Chandigarh.
...RESPONDENTS
PRESENT: Sh. Sushant Kareer, counsel for the applicant.
Sh. Vinay Gupta, counsel for the respondents.
ORDER (Oral)
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SANJEEV KAUSHIK, MEMBER (J):-
1. Applicant assails order dated 12.10.2015 whereby respondents have not granted him benefit of three non-compounded increments earned by him by virtue of Ph.D. degree acquired by him during service at the time of his retirement. He has sought direction to the respondents to re-calculate the basic pay of the applicant by considering three non-compounded increments and thereafter fix his pension and grant him difference of pensionary benefits w.e.f. 28.02.2015 along with 18% interest.
2. Facts which led to filing of this O.A. are that the applicant joined the respondent department as lecturer in Economics on 9.1.1987. His service was regularized retrospectively w.e.f. 15.01.1987. The post 2 of Lecturer was re-designated as Associate Professor w.e.f. 1.1.2006. Govt. of Punjab keeping in view the decision of Govt. of India pursuant to recommendations of UGC revised pay scale of Teachers and equivalent cadres in Universities and Colleges in the State w.e.f. 01.1.2006 by issuing notification dated 02.9.2009. The said notification was adopted by Chandigarh Administration vide letter dated 29.9.2009. As per the above notification, those teachers who have acquired Ph.D. degree during service shall be entitled to three non-compounded advance increments. Applicant acquired Ph.D degree during service. Pursuant to Rule 7(iv) of the notification dated 02.9.2009 and letter dated 29.09.2009, the applicant was granted three non-compounded increments @3% as an incentive for completing Ph.D. degree during his service vide office order dated 21.08.2014. A clarification has also been issued by UGC vide letter dated 10.06.2013 to the effect that three non-compounded advance increments payable on acquiring Ph.D. degree shall be merged in the basic pay. The above three non-compounded increments granted to him were merged in the basic pay of the applicant.
3. The applicant retired on attaining the age of superannuation on 28.02.2013 but continued in service by virtue of grant of extension and as a matter of fact demitted office on 28.02.2015. While fixing his pension, the respondents have reduced his basic pay from Rs.54,770/ to Rs.49,490/- by not including three increments in his basic pay. Aggrieved against above action, the applicant submitted representation by referring UGC clarification dated 10.06.2013, but the same has not been decided by the respondents. The applicant has also pointed out in his representation that he retired on 3 28.02.2015 on attaining the age of superannuation but his retiral benefits have been paid after inordinate delay of 12 months. Therefore, he becomes entitled to award of interest on delayed payment.
4. Respondents while filing written statement have not disputed the factual accuracy. They have submitted that by virtue of notification dated 13.01.1992, rules applicable to State of Punjab to corresponding post in Chandigarh Administration are applicable to the employees of Chandigarh and as such the applicant was awarded three advance increments on acquiring of Ph.D. degree while he was in service. Accordingly, three non-compounded increments were included in the basic pay of the applicant. On the date of retirement, basic pay is to be considered for fixation of pension and since benefit of non-compounded increments is not part of basic pay, therefore, it cannot be counted for the purpose of fixation of pay and release of pensionary benefits. Hence they have rightly refixed the pay of the applicant and accordingly fixed pension. They have also submitted that despite there being various requests to Govt. of Punjab to clarify whether these three non-compounded increments are to be included in basic pay while calculating pension of the employee, they have not received any clarification yet. Therefore, he submitted that in absence of any rule in State of Punjab, desired benefit cannot be allowed. Lastly, he prayed that O.A. be dismissed.
5. The applicant has filed replication wherein he did not dispute the averment. However, he submitted that since UGC guidelines are governing the field in Punjab as well as U.T. therefore in view of clarification given by UGC, respondents are under obligation to count 4 three increments while fixing his last pay and accordingly fix his pension.
6. We have heard learned counsel for respective parties at considerable length.
7. Learned counsel appearing on behalf of the applicant vehemently argued that once pay of the applicant is being regulated by UGC norms, then respondents cannot be allowed to blow hot and cold in the same breath by not accepting the clarification given by UGC that additional increments are to be counted in the basic pay of the employee. Therefore, he submitted that direction be issued to the respondents to calculate basic pay of the applicant by including three increments and to grant him consequential benefits thereafter. He also argued that since respondents have not given any reason for not releasing amount of retiral dues on the date of his retirement and have paid after considerable delay of one year, therefore, they are liable to pay interest @18% p.a. To buttress his submissions, he placed reliance on judgment in the case of Abhay Kumar Singh vs. State of Jharkhand through the Director, Higher Education Deptt. of HRD, Govt. of Jharkhand, Ranchi and others. (2013 (5) S.C.T. 310), Dr. Uma Agrawal vs. State of U.P & Another. (1999 (3) SCC 438), State of Uttar Pradesh and Others vs. Dhirendra Pal Singh (2016 AIR (SC) 5239), The Punjab and Haryana High Court vs. Priya Sood and Others (L.P.A. No.970 of 2011 (O&M)) decided on 30.05.2011.
8. Per contra, learned counsel for the respondents reiterated what has been stated in the written statement. Apart from that, he referred to order dated 11.12.2013 in the case of Dr. (Mrs.) Promilla Kaushal 5 w/o Shri S.K. Kaushal vs. UOI & Others (O.A. No.1225/HR/2012) where this Court directed the respondent Chandigarh Administration to consider and decide the claim of the applicant as UGC guidelines are binding upon the State of Punjab but no decision has been taken thereupon as they have not received clarification, therefore, he prayed that this petition be also disposed of in same terms, as and when respondents will receive clarification from State of Punjab, then case of the applicant will also be decided accordingly.
9. We have given our thoughtful consideration to entire matter and perused pleadings available on board.
10. In the present controversy, Rule 7 (iv) in Annexure-II is relevant. It is not disputed that applicant acquired Ph.D. degree while in service. In terms of Rule 7 (iv) in Annexure-II of the notification dated 02.09.2009 as adopted by Chandigarh Administration vide letter dated 29.09.2009 teachers who complete their Ph.D. degree while in service becomes entitled to three non-compounded increments. The relevant reads as under:
"Teacher who complete their Ph.D. degree while in service shall be entitled to three non-compounded increments if such Ph.D. is in the relevant discipline and has been awarded by a University complying with the process prescribed by the UGC for enrolment, course-work and evaluation etc."
Since applicant acquired Ph.D. degree while in service, respondents have granted him benefit of three increments @3% each and included the same in his basic pay and the same was enhanced to Rs.54,770/- but on his retirement vide order dated 21.08.2014, the respondents have withdrawn the benefit of three increments from basic pay of the applicant and reduced it to Rs.49,490/-. It is also not disputed by Chandigarh Administration that they have sought clarification from State of Punjab 6 but have not received yet. Be that it may, vide letter dated 10.06.2013 on the subject of "Grant of Non-Compounded increments on acquiring M.Phil/Ph.D. Degree" UGC has clarified that the amount of increments are to be included in the basic pay of the employee. Relevant reads as under:-
"With reference to the subject cited above, I am directed to state that advance increments, on acquiring M.Phil/Ph.D. Degree shall be calculated on non-compounded basis but will be merged with the Basic Pay (Pay in the Pay band + AGP) In the light of above clarification, which has been issued by UGC which governs the field, view taken by the respondents cannot be accepted merely on the ground that Rule governing service conditions of the applicant does not provide for including increment in basic pay.
11. Accordingly, view taken by the respondents cannot be allowed to sustain and the same is invalidated. There is another reason to invalidate the decision as it has been rightly held by the Hon‟ble Supreme Court that Educational Qualification are always basis for grant of higher pay. Acquiring of higher qualification certainly add- on for a post like Associate Professor, which the applicant is holding. There is no rule in the department for withdrawing the benefit of advance increments given in due course of time. Thus, view taken by the respondents is contrary to clarification given by UGC. Accordingly, the respondents are directed to calculate three advance increments in the basic pay of the applicant and calculate all consequential benefits thereafter.
12. With regard to grant of interest on delayed payment of retiral benefit, since respondents have not paid the same on plea that under 7 relevant rule they can withheld but there are no departmental proceedings pending against the applicant or it is neither a case where department is contemplating to initiate the same. Thus, they have withheld the amount for no fault of applicant and deprived him of for utilizing his money. It has been held in the case of State of Kerala vs. M. Padmanabhan Nair (1995 (1) SCC 429) that pension and gratuity are no longer any bounty to be distributed by the government to its employees on the retirement but are valuable rights in their hands and any culpable delay in disbursement thereof must be visited with the penalty of payment of interest. Therefore, applicant becomes entitled to award of interest after excluding three months from date of his retirement @8% p.a. till the same is actually released in his favour.
13. The O.A. stands allowed in the above terms.
(SANJEEV KAUSHIK) MEMBER (J) Date: 11.05.2018.
Place: Chandigarh.
„KR‟