Karnataka High Court
Union Of India vs K V Gopalkrishnan on 3 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 481, 2020 (3) AKR 226
Bench: Alok Aradhe, M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.14295 OF 2019 (S-CAT)
BETWEEN:
1. UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF TEXTILES,
NEW DELHI - 110 001.
2. TEXTILES COMMITTEE
GOVERNMENT OF INDIA,
MINISTRY OF TEXTILES,
P.BALU ROAD, PRABHADEVI,
MUMBAI - 400 025
REPRESENTED BY ITS SECRETARY.
3. THE VICE CHAIRMAN
REPRESENTED BY THE SECRETARY,
TEXTILES COMMITTEE,
GOVERNMENT OF INDIA,
MINISTRY OF TEXTILES,
P.BALU ROAD, PRABHADEVI,
MUMBAI - 400 025.
... PETITIONERS
(BY SRI MADHUKAR M. DESHPANDE, ADVOCATE)
2
AND:
K.V. GOPALKRISHNAN
S/O A.V.ACHUTHAN NAIR,
ASST. DIRECTOR (RETIRED)
RESIDING AT NO.57, MATHRU LAYOUT,
YELAHANKA NEW TOWN,
BENGALURU - 560 065.
... RESPONDENT
(BY SRI RAGHAVENDRACHAR M., ADV. FOR C/R)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS AND SET ASIDE THE FINAL ORDER
DATED 13.02.2019 PASSED IN O.A.NO.170/00178/2018
VIDE ANNEXURE - A BY THE CENTRAL ADMINISTRATIVE
TRIUNAL, BENGALURU BENCH AND DISMISS THE
O.A.NO.170/00178/2018 FILED BY THE R-1 HEREIN ETC.
THIS WRIT PETITION COMING ON FOR FINAL
DISPOSAL, THIS DAY, M. NAGAPRASANNA J., MADE THE
FOLLOWING:
ORDER
Aggrieved by the order dated 13.2.2019 passed by the Central Administrative Tribunal, Bangalore Bench, in Original Application No.170/00178/2018, whereby the Tribunal allowed the Original Application and declared that respondent-applicant was eligible for Grade Pay of Rs.7,600/-, the benefit of which was to be extended within one month, and granted further consequential benefits, the 3 respondent-Union of India has preferred the instant writ petition.
2. The respondent was appointed as a Quality Assurance Officer with effect from 2.11.1979. While working so, the recommendation of the V Central Pay Commission was accepted by the Government of India, in terms of which, the Government of India, on 9.8.1999, introduced Assured Carrier Progression Scheme ('ACP Scheme' for short). The ACP Scheme was introduced for the reason that the Government Servants stagnating in a particular scale would be given financial upgradation in the pay scale of promotional hierarchy on completion of 12 years and 24 years of regular service.
3. In terms of the ACP Scheme, the respondent herein was granted second financial upgradation on 3.11.2003. The second financial upgradation was from Rs.5500-175-9000 to the pay scale of Rs.8000-275-13500 in the post of Assistant Director and to the pay scale of 4 Rs.10,000-325-15200 in the post of Deputy Director on completion of 12 and 24 years of service respectively.
4. In terms of the recommendations of VI Central Pay Commission, the ACP scheme came to be replaced by the Modified Assured Career Progression Scheme ('MACP Scheme' for short), whereby the Government Servants stagnating in the relevant pay scale were to be granted financial upgradation to the next higher pay after the completion of 10 years, 20 years and 30 years of regular service. The MACP Scheme came into effect from 19.5.2009. The 2nd petitioner, in terms of the order dated 19.5.2009, granted the III MACP to the respondent herein, in terms of the new scheme, and while fixing the pay scale, the 2nd petitioner, ought to have fixed the pay band to the respondent at Rs.15600-39100 and Grade Pay at Rs.7600/-.
5. On a review of the entire matter, the petitioners herein, found that, the grant of financial upgradation in the Grade Pay of Rs.7600/- to all the Quality Assurance Officers 5 including the respondent was erroneous. In those circumstances, a show cause notice was issued to the respondent, on 4.8.2017, calling upon him to show cause as to why action should not be initiated for recovery of the excess payment made to him on wrongful grant of Grade Pay at Rs.7600/- instead of Rs.6600/- under the III MACP Scheme with effect from 2.11.2009 till date. The respondent replied to the show cause notice and after considering the reply, an order was passed on 30.11.2017 holding that the respondent was entitled to the Grade Pay at Rs.6600/- and an order was also passed withholding the release of Rs.1,90,547/- from the gratuity payable to the respondent, since the respondent was to retire on 30.11.2007, his basic was also calculated taking reduced Grade Pay at Rs.6600/.
6. The respondent, aggrieved by the office order dated 30.11.2017, approached the Tribunal in Original Application No.170/00178/2018. The Tribunal, allowed the application and directed that the benefit of the III MACP in 6 the Grade Pay of Rs.7600/- should be made available to the respondent, within one month. Aggrieved by the order of the Tribunal dated 13.2.2019, the Union of India and others have filed the instant petition.
7. We have heard Sri Madhukar M. Deshpande, learned counsel appearing for the petitioners and Sri Raghavendra M., learned counsel appearing for the respondent.
8. Learned counsel for the petitioners would contend that the order of the Tribunal is erroneous inasmuch as the Tribunal assumes to itself that the respondent was promoted as Assistant Director and then, as Deputy Director, and the post was later merged to that of Joint Director, and on that ground, the respondent was made eligible for the Grade Pay of Rs.7600/- under the MACP Scheme. He would contend that the Grade Pay fixed of the respondent was to be in terms of I Schedule to Rules 3 and 4 of Central Civil Services (Revised Pay) Rules, 2008 ('Rules' for short), wherein the Government of India had 7 indicated the Pay Bands and the corresponding Grade Pay therein, in terms of which the respondent was entitled to Grade Pay of Rs.6600/-, and by mistake, he was granted Grade Pay of Rs.7600/-.
9. The learned counsel would further submit that it is not, only in the case of the respondent, but for all the officers, who were granted this Grade Pay under the Rules, it was held that the grant of Grade Pay was erroneous and recovery of the excess pay was ordered.
10. Per contra, learned counsel for the respondent, placing reliance upon the order of the III MACP to the respondent, would submit that the Grade Pay to be fixed to the respondent under III MACP Scheme was Rs.7600/- as it was the next grade to be granted under said MACP. The learned counsel would further submit that the respondent was granted III MACP with Grade Pay of Rs.7600/- in terms of the Office Order dated 5.3.2012 and action was initiated to correct and recover the alleged excess payment in the 8 year 2017, which is five years after the said order and the action is hit by delay.
11. We have given our anxious consideration to the contentions urged by both the learned counsel for he petitioners and the respondent and have perused the papers before us.
12. The only question that arises for our consideration is :
"Whether the MACP Scheme requires the Grade Pay to be adhered in the hierarchy and in terms of that, whether the respondent was entitled to the grant of Grade Pay of Rs.6600/- or Rs.7600/-?"
13. The Government of India introduced ACP scheme as per the recommendation of the V Central Pay Commission with effect from 9.8.1999 which envisaged an upgradation in the pay sale of promotional hierarchy on completion of 12 years and 24 years of regular service. 9 This ACP Scheme was in operation from 9.8.1999 to 31.8.2008.
14. On 3.11.2003, in terms of the ACP Scheme, the respondent was granted two financial upgradations from the pay scale of Rs.5500-175-9000 to the pay scale of Rs.8000-275-13500, which was in the promotional post of Assistant Director on completion of 12 years of service in the year 1991, as the respondent had joined the service in the year 1979, and further pay scale attached to the post of Deputy Director was granted on completion of 24 years of service.
15. With the implementation of the Pay Bands after the 6th Central Pay Commission made recommendations, various erstwhile pay scales were merged in a common Pay Band and a higher grade pay was given to the posts with onerous and higher responsibilities. The Assured Career Progression Scheme was replaced by the Modified Assured Career Progression Scheme (MACPS) as per DOPT OM dated 19.5.2009 which envisaged 3 financial upgradations, 10 the first after 10 years of service, the second after 20 years of service and the third after 30 years of service.
16. Para 2, 8 and 8.1 of the Modified Assured Career Progression Scheme (MACPS) are relevant and they are noted as under:-
"2. The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section I, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion.
8. Promotions earned in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.
118.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs. 5,400/- is now in two pay bands viz., PB-2 and PB-3. The grade pay of Rs. 5,400/- in PB-2 and Rs. 5,400/- in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."
In terms of the afore-extracted relevant clauses of the MACP Scheme, it is to be considered as to whether the respondent was entitled to the Grade Pay of Rs.7600/- or Rs.6600/-, in terms of Section 1 of Part A of the First Schedule of the Rules, which clearly depicts the Pay Bands and the corresponding Grade Pay. In terms of the Schedule appended to the Rules, the pay of the respondent had to be fixed. The office order dated 5.3.2012 granting financial upgradation under III MACP, is extracted hereunder for the purpose of ready reference.
Annexre-D Emp. Code: 121343 Textiles Committee (Government of India, Ministry of Textiles) P Balu Road, Prabhadevi Chowk Prabhadevi, Mumbai - 400 025.
12No.121/343/2007/AD/Vol.VI Date: 05.03.2012 Office Order Consequent upon grant of 3rd Financial upgradation to the next higher grade pay of Rs.7600/- w.e.f.02.11.2009 under the modified Assured Career Progression Scheme and the option exercised vide his letter dated 15.02.2012, the pay of Shri K.V.Gopalakrishnan, Quality Assurance Officer (EP & QA) posted at Regional Office, textiles Committee, Bengaluru, is fixed as per rules as under:
MACP Due and PB and GP on due Pay and GP on due Next GP Option PAY TO BE FIXED effective date date of MACP date of MACP granted UNDER MACP under MACP PAY GP 3RD MACP ON Rs.15600- Rs.24500+Rs.6600 Rs.7600 Date of Rs.25440 Rs.7600 02.11.2009 39100+Rs.6600 upgradation (PB-3) Summary of fixation Pay as on Rs.25440 Rs.7600 02.11.2009 Increment of Rs.26440 Rs.7600 01.07.2010 Increment of Rs.27470 Rs.7600 01.07.2011 This is issued in supersession of office order dated 01.03.2012 Sd/-
Assistant Secretary Shri K.V. Gopalakrishnan Quality Assurance Officer (EP & QA) Regional Office Textiles Committee Bangalore 13
17. The order granting the financial upgradation of the respondent in the scale of Rs.15600 - 39100, the Grade Pay ought to have been fixed at Rs.6600/- as the MACP Scheme envisaged hierarchy in the Grade Pay and not the Grade Pay in the hierarchy of the posts. This was the mistake committed by the petitioners herein while granting the III MACP to the respondent as it was the 3rd financial upgradation under MACP Scheme with Pay Band-3 from S- 10 to S-20.
18. Noticing this, a show cause notice was issued to the respondent calling upon him to show cause to as to why action should not be initiated for recovery of excess amount that was paid to him on 4.8.2017 and the respondent replied to the same on 21.8.2017. On consideration of the reply, the order dated 30.11.2017 was passed fixing the Grade Pay of the respondent at Rs.6600 with effect from the date on which he was granted and on the same day, the respondent retired from service on attaining the age of superannuation and as a measure of recovery, the excess 14 amount of Rs.1,90,547/- was withheld from the gratuity payable to the respondent.
19. The Tribunal allowed the Original Application filed, and in terms of the order impugned dated 13.2.2019 did not consider any of the aspects urged either by the petitioners or the respondent and on its own, arrived at the following conclusions:
" 6. As we examined it, we found that the applicant was first promoted Assistant Director and then as Deputy Director and later this post was merged with that of Joint Director. This merger will not operate as a promotion. Therefore, he is now eligible for the next grade pay under MACP of Rs.7600.
7. Therefore, we hold and declare that applicant is eligible for Grade pay of Rs.7600 benefit to be extended to him within one month next. The benefit which was available to the applicant and granted earlier will be restored to him within two months next without interest and thereafter at the interest at the rate of GPF which is normally available. "15
20. It was neither the case of the petitioners nor the respondent that, initially, the respondent was promoted as Assistant Director and then as Deputy Director, and later, it was merged to that of Joint Director and on that ground, the Tribunal held that the respondent was eligible to the next Grade Pay at Rs.7600 under MACP Scheme. The fact is that there is no merger and the concept of merger of the Deputy Director with that of the Joint Director was neither pleaded nor argued before the Tribunal. It is the ipse dixit of the Tribunal. The fact remains that there is no order passed in favour of the respondent by the Government of India that the post of Deputy Director later got merged with that of the Joint Director. Thus, in terms of III MACP Scheme, the financial upgradation that was granted to the respondent in the Pay Band of Rs.15600-39100, the Grade Pay had to be fixed at Rs.6600/-, and not at Rs.7600/-. Hence, the order of the Tribunal, being contrary to the facts, and the Scheme, warrants appropriate interference. 16
21. The respondent is a Group-A officer and knowing fully well that he was not entitled to the Grade Pay of Rs.7600 took the benefit for over five years from 2012. It was a mistake committed by the petitioners herein granting the respondent a Grade Pay of Rs.7600 instead of Rs.6600, rectification of a mistake is always available in law and the recovery of the excess payment is consequential to the such rectification. The only requirement of law is that the person against whom recovery is made should be heard in the matter. The respondent was issued with a show cause notice directing to show cause as to why recovery of excess payment should not be made, to which, he replied and on consideration of the same, the order impugned came to be passed. Thus, it was an action in compliance with principles of natural justice.
22. In somewhat identical circumstances with regard to the power of rectification of mistake, the Hon'ble Supreme Court in the case of National Institute of Technology v.U.Dinakar, (2014) 13 SCC 180, has held as follows:
17
20. It is not the case of Respondent 1 that the Central scale of pay of Rs.3000-4500 as shown in his letter of appointment was notified by the Institute. The case of Respondent 1 is also not a case of promotion so as to enable him to claim Central scale of pay which he was drawing against lower post of Deputy Registrar. The case of Respondent 1 being that of the direct recruitment pursuant to Notification dated 29.7.1994, Respondent 1 cannot claim that he was promoted to the post of Registrar.
In the letter of appointment, it was mentioned that Respondent 1 i.e."Sh.u.Dinakar is promoted and appointed as Registrar" in the office of the Karnataka Regional Engineering College, Surathkal.
21. We do not intend to go into the question whether Respondent 1 manipulated and inserted the word promoted in the letter of appointment. Admittedly, the appointment order has been issued pursuant to the notification of direct recruitment, therefore, it should be treated as direct recruitment.
Mistake if any committed by clerical staff or any other authority in mentioning the word "promoted and appointed" in place of "appointed" and showing higher scale of pay 18 of Rs.3000-100-3500-125-4500, it is always open to the competent authority to correct the mistake.
22. However, before such correction it is incumbent on the part of the authority to inform the officer concerned that there is a mistake in his order of appointment and competent authority intends to correct the same so as to enable the officer to submit an effective reply and show that it was not a mistake but the order was genuine and in accordance with law.
23. In the present case, the authority had given notice to Respondent 1 and brought to his notice that there is a genuine mistake in his letter of appointment and he has been wrongly given a higher pay scale of Rs.3000-4500. Respondent 1 submitted his reply and has not taken any plea that he had not applied pursuant to the notification of direct recruitment but his case was considered by way of promotion. In that view of the matter, we hold that the competent authority has inherent power to correct the mistake if any committed in the order of appointment after giving proper opportunity to the employee/officer concerned.
19
24. In view of the aforesaid finding we hold that the appellant had committed no error in correcting the letter of appointment by replacing the correct scale of pay to which Respondent 1 was entitled i.e. Rs.2375-75- 2900-100-3700-125-4450 as provided in the advertisement/Notification dated 29-7-1994. In terms of the judgment of the Hon'ble Supreme Court as extracted hereinabove, the competent authority had inherent power to correct the mistake, which was committed in the order, after giving proper opportunity to the employee/officer concerned. In the instant case, the mistake that was committed by the 2nd petitioner recording that the respondent was entitled to Rs.7600/- Grade Pay was contrary to the Schedule to the Rules mentioned hereinbefore. Hence, it was open to the petitioners to rectify the mistake committed and direct recovery of the excess payment made, as the excess payment, neither belongs to the officers who have effected wrongful payment nor, the recipient of the same, it is 'public money'. 20
23. For the reasons stated hereinabove, we pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The order dated 13.2.2019 passed by the Central Administrative Tribunal, Bangalore Bench, in Original Application No.170/00178/2018 is hereby set aside.
(iii) The application in Original Application No.170/00178/2018 filed by the respondent before the Tribunal is dismissed.
(iv) There shall be no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Cs/-