Central Administrative Tribunal - Delhi
Sh. Sukhbir Singh vs Union Of India Through on 20 November, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.197/2012 Reserved on: 13.10.2014 Pronounced on:20.11.2014 Honble Dr. B. K. Sinha, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Sh. Sukhbir Singh s/o late Sh. R.A.S. Chauhan, R/o RZ 17B, Street No.30, Indra Park, Palam Colony, New Delhi 45. Applicant (By Advocate: Shri T.D. Yadav) Versus Union of India through: 1. The Secretary, Ministry of Defence, South Block, New Delhi. 2. AGE (Plam) G.E. Air Force Station, Tughlakabad, New Delhi. 3. Engineer in Chief Branch, Army Headquarters, Kashmir House, Rajaji Marg, DHQ P.O. New Delhi. 4. The Chief Engineer, Western Command, Chandi Mandir, Chandigarh. Respondents (By Advocate: Ms. Rinchen O Bhutia) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant has filed the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 impugning sudden reduction of his pay from Rs.11,310/- to Rs.10,850/- since September, 2010 till date without issuing any show cause notice to him and initiating recovery of arrears paid to him for the period w.e.f. 01.01.2006 to 18.03.2007, the total being Rs.39,589/-.
2. The applicant has prayed for the following relief(s):-
(a) To set aside & quash the impugned order as Annexure A.
(b) To direct the respondents to refix the pay of the applicant w.e.f. Aug.2010 in the pay of Rs.11310/-.
(c) To direct the respondents to refund the recovered amount of arrears to the applicant
(d) To direct the respondents to grant all the consequential benefits like arrears to the applicant.
(e) To pass any other order/s as may be deemed fit and proper in the facts and circumstances of the case.
(f) Award costs.
3. The applicant was initially appointed as Motor Pump Attendant in skilled grade of Rs.210-290 on 19.03.1983 and was promoted vide OM dated 23.12.1997 after having passed the trade test. Subsequently, first ACP was granted to the applicant on 09.08.1999 and his pay was fixed at Rs.4300/- and the second ACP was granted to him on 19.03.2007 whereby his pay was fixed in the pay scale of Rs.5000-8000. The grievance of the applicant is that the respondents suddenly reduced his pay from Rs.11310/- to Rs.10870/- since September, 2010 which continues to this date and have also made recoveries, as stated earlier. The applicant states that his pay was revised as per the recommendations of the 6th CPC w.e.f. 01.01.2006 and arrears were granted to him w.e.f. 01.01.2006 to 18.03.2007. The applicant further states that the impugned order is non-speaking as no show cause notice has been issued to him either before reducing the pay or making deductions of the arrears at the reduced scale. The case of the applicant is that the impugned order of the respondents is not only against the rules of natural justice but also against the circulars issued in this regard.
4. The respondents have filed their counter affidavit resisting all the points raised in the OA. The respondents submit that the applicant FGM (HS) had been drawing basic pay of Rs.4900 + Rs.2450 DP + DA as applicable on 10.01.2006 in pay scale of Rs.4000-6000. He had been granted the benefit of 1st ACP on completion of 12 years of service on 09.08.1999 in the scale of Rs.4000-6000 vide order dated 16.10.2000 and his pay was fixed at Rs.4300. Subsequently, on completion of 24 years of service, the applicant was granted the benefit of 2nd ACP w.e.f. 19.03.2007 in the next higher pay scale of Rs.5000-8000 vide order dated 23.07.2007 and his pay was fixed at Rs.5300/- which has been considered as promotion. Thus, the pay of the applicant was revised in the scale of pay of Rs.9300-34800 + Rs.4200 Grade Pay w.e.f. 19.03.2007 as per the CCS (Revised Pay) Rules, 2008. The applicant has filed OA No. 197/2012 in this Tribunal seeking fixation of his pay from 01.01.2006 in the scale of Rs.5000-8000 (revised scale Rs.9300-34800+4200 Grade Pay), grant of promotion from FGM(SK) to FGM(HS-II) category and refund of excess amount of Rs.39,589/- recovered. The respondents further submit that the applicant had already given option dated 16.12.2010 for fixation of his pay w.e.f. 19.03.2007 i.e. date of grant of 2nd ACP which was more beneficial to him in terms of para 5 of OM dated 05.07.2010 of the respondents. Accordingly, his salary was fixed at Rs.9580/- + Rs.4200/- Grade Pay in PB-2 (Rs.9300-34800+4200 grade pay) with effect from 19.03.2007 in place of 01.01.2006. The applicant is seeking fixation of his pay from 01.01.2006 in PB-2 (Rs.9300-34800+Rs.4200 Grade Pay) whereas he was drawing basic pay of Rs.4900+2450 DP in pre-revised scale of Rs.4000-6000. The deductions of Rs.39,589/- made is in respect of the payment wrongly given to the applicant for the period from 01.01.2006 to 19.03.2007 and has been made on the advice of the Accounting Authorities who are competent to check the accounts and issue suitable directions. The simple argument of the respondents is that having given option on 16.12.2010 opting for fixation of his pay in the pay scale of Rs.9300-34800 with Grade pay of Rs.4200/- w.e.f. 19.03.2007 and re-fixation w.e.f. 01.07.2007 on accrual of increment in the lower grade in terms of para 3(1) of the government of India, DOP&T OM dated 09.11.1987, the pay of the applicant has been correctly fixed in the above scale w.e.f. 19.03.2007 and the amount involved in the incorrect fixation earlier from 01.01.2006 i.e. Rs. 39,589/- has been realized upto 19.03.2007.
5. The learned counsel for the respondents strongly submits that the applicant cannot now turn back and claim the benefits of re-fixation of his pay w.e.f. August, 2010 at Rs.11310/- or seek refund of the recovered amount to the applicant.
6. The applicant has submitted a rejoinder application whereby he has repeated the arguments. However, during the course of hearing on 16.04.2014, the learned counsel for the applicant submitted that the respondents had wrongly relied upon the OM dated 09.11.1987. Instead, it has now been superseded by another OM dated 25.02.2003. He has also produced a copy of the relevant rules and OMs. He further submitted that there was a provision for making option under 1987 OM but he could not have made his option because he was unaware of the rules and the authorities had also not taken any step whatsoever to implement the rules. This argument was refuted by the learned counsel for the respondents on the ground that since he was required to exercise his option within one month from the issue of the concerned OM and he has failed to exercise that option within the stipulated period, he is not entitled for fixation of his pay under FR 22(1)(a)(1).
7. The only issue for our consideration here is whether applicants failure to exercise option is sustainable on the plea of lack of knowledge or failure on part of the respondents in dissemination of the contents of the OM dated 25.02.2003?
8. It is an admitted position that OM dated 19.02.1986 was subsequently revised vide OM dated 25.02.2003. In this regard, the applicant has produced a copy of CCS (RP) Rules 2008. A clarification has been provided in respect of second point of issue which is identical to the issue under consideration. Here also, some of the employees promoted before 01.01.2006 as well as after 01.01.2006 but before notification of Revised Pay Rules, 2008 implementing the 6th CPC recommendations, had opted for their pay fixation on promotion from dates of their next increment which was falling after 01.01.2006 in the 5th CPC scale as per the rules/pay structure then in force. Consequent upon implementation of the 6th CPC in August/September, 2008 effective from 01.01.2006, options submitted by a number of employees, which turned out to be disadvantageous, then a decision was taken that the concerned employees may submit their revised options under FR 22(1)(a)(1). However, the clarification refers to OM dated 25.02.2003, which provides that a Government servant may give a revised option for pay fixation under FR 22(1)(a)(1) within one month from the date of orders of such unforeseen developments or change of rules. In any case, it has resulted from the notification of CCS (RP) Rules, 2008, Government servants may be allowed to exercise a revised option for fixation of their pay in the promotion post within one month from the date of issue of these clarifications in case they have not already been allowed to do so under OM dated 25.02.2003.
9. The argument of lack of knowledge and failure on part of the respondents to disseminate the contents of OM dated 25.02.2003 does not cut much ice with us for the simple reason that ignorance of rules is not legal and sustainable defence provided under law. If the applicant has failed to be vigilant about his own interest, he cannot turn about to say that it was the responsibility of the respondents to widely disseminate and bring the contents of the OM to his notice. Since Central government employees are more than 3.12 millions, circulars are issued and there is method prescribed for dissemination of the circulars by pasting them on board and/or by forwarding their copies to different organizations. If the applicant has omitted to notice the same, the said omission cannot be attributed to the respondents.
10. There is further argument of the applicant qua recovery of the amount on the ground that the decision of the Honble Supreme Court in the matter of Chandi Prasad Uniyal & Others versus State of Utrakhand & Others [2012 (8) SCC 417] is not applicable to the facts of the instant case. Prior to the judgment in Chandi Prasad Uniyal & Others versus State of Utrakhand & Others (supra), the rule had been set in Shyam Babu Verma versus Union of India [1994 (2) SCC 521] wherein a view had been taken that even if the payment had been erroneously made to the employees for no fault of theirs, the same was not liable to recovery or adjustment. This view was modified in Paras Nath Sinha versus State of Bihar and Others [2009 (6) SCC 314] and Syed Abdul Qadir & Others versus State of Bihar & Others [2009 (3) SCC 475]. The latter decision formed the basis of decision of this Tribunal in the case of Mahabir Singh versus Delhi Police (OA No.2809/2012 decided on 03.04.2013). However, in Chandi Prasad Uniyal & Others versus State of Utrakhand & Others (supra), the Honble Supreme Court categorically stated that it had not laid down any law where the amount paid in excess cannot be recovered except in cases where fraud or misrepresentation is involved. The Honble Supreme Court has held in an ambiguous terms:-
14. 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. The above decision has also been relied upon by the Tribunal while deciding the case of S.K. Chakraborty versus Union of India [OA No.1183/2011 decided on 13.12.2013] wherein the Tribunal was faced with similar issues and after dealing with the same dismissed the OA.
11. In view of the above discussions, we are of the opinion that even though that the applicant has failed to avail the opportunity of giving option as provided under OM dated 25.02.2003 but for that he himself is acceptable. Therefore, the plea of negligence of the respondents pertaining to insufficient dissemination of the OM fails to sustain. Moreover, we also find that the decision of Chandi Prasad Uniyal & Others versus State of Utrakhand & Others (supra) is fully applicable to the facts of the case and the recovery has been correctly made. With this, we reach to inescapable conclusion that the instant OA is devoid of merit and is accordingly dismissed with no order as to costs.
(Raj Vir Sharma) (Dr. B. K. Sinha
Member (J) Member(A)
/naresh/