Central Administrative Tribunal - Delhi
Mahender Singh vs M/O Urban Development on 18 March, 2020
1 OA No.660/2015
Central Administrative Tribunal
Principal Bench
OA No.660/2015
Order reserved on : 05.03.2020
Order pronounced on: 18.03.2020
Hon'ble Mrs. Justice Vijay Lakshmi, Member (J)
Hon'ble Mr. Pradeep Kumar, Member (A)
Mahendra Singh (Ex. Assistant Engineer CPWD),
Age 61 years,
S/o Lt. Sh. Jai Narain Ram,
R/o F-61, Sector-56, Noida,
Distt. Gautam Budh Nagar, U.P.
... Applicant
(By Advocate: Ms. Karishma Singh with Sh. Ankit)
VERSUS
1. Union of India
Through Director General C.P.W.D.
Nirman Bhawan,
New Delhi-110001.
2. Executive Engineer (Civil),
SSK Hospital Division, C.P.W.D.,
Panchkula Road,
New Delhi-110001.
... Respondents
(By Advocate: Ms. Shivangi Sharma for Sh. Raj Pal Singh)
ORDER
By Hon'ble Mr. Pradeep Kumar, Member (A) Applicant was appointed as Junior Engineer (JE) on 23.04.1977 in pay scale Rs.425-700, in CPWD. He passed prescribed "Simple Accounts Examination for JEs" at that 2 OA No.660/2015 time. He was promoted to the post of Assistant Engineer (AE)(Civil) in the pay scale of Rs.2000-60-2300-EB-75-3300- 100-3500 vide order dated 25.02.2002, when 125 JEs were promoted. Applicant‟s name appears at Sl. No.4 of the list. This order specifies following in respect of pay fixation:
"6. The Junior Engineers on promotion may exercise their option under FR 22-1 (a) (i) for pay fixation within a period of one month from the date they assume the charge of the higher post. However, those who have already got the higher scale as personal to them will neither be entitled to re-fixation of pay nor for exercising the option on promotion. Further, those who have availed ACP Scheme and exercised the option for pay fixation under FR-22-1 (a) (i), will not be entitled for exercising this option again on their regular promotion."
He superannuated from that post on 31.03.2014. 1.1 The applicant was already granted this pay scale, on completion of 15 years of service, vide office order dated 27.03.1991 and crossed the EB stage and reached the level of Rs.2375/- p.m. as of 01.06.1995.
2. There was no condition prescribed for appearing and qualifying the departmental accounts examination for the post of AEN either as per RRs or as per this promotion order, to enable drawing of second annual increment. He was accordingly granted normal annual increments from year to year till he superannuated.
3. Applicant is aggrieved that subsequent to his promotion OMs dated 05.01.2006, 04.04.2006 and 23.05.2006 have 3 OA No.660/2015 been issued to the effect that those AE (Civil) who do not pass the departmental accounts exam shall not draw second annual increment and onwards.
On the basis of such instruction, the respondents are now trying to reduce his salary at the time of his superannuation for the period 01.07.2006 till 01.07.2013 and recovered an amount of Rs.5,20,902/- on account of increments from gratuity. Office Order was issued to this effect on 28.01.2014.
He made representation on 21.10.2013 which was not decided. Feeling aggrieved, this OA has been filed.
4. Applicant pleads that such recoveries are not permissible from retiring employees in terms of judgment by Hon‟ble Apex Court in State of Punjab and others etc. vs. Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334. 4.1 Applicant also relies upon a judgment by this Bench in OA No.2534/2019 (Jai Bhagwan vs. Union of India) wherein relief has since been given in similar circumstances vide judgment dated 25.10.2019.
5. Relief has been sought to declare OMs dated 05.01.2006, 04.04.2006 and 23.05.2006 as ultra vires. He also seeks refund of amount so deducted along with interest. 4 OA No.660/2015
6. Per contra, respondents opposed the OA. It is pleaded that the entire matter of OMs needs to be seen keeping in view the provision of CPWD Manual and the instruction issued.
It was pleaded that it was necessary for AE (Civil) to pass departmental accounts examination in terms of CPWD Manual and since many employees did not pass it, this time was extended from time to time and in case of those who did not pass the examination despite such relaxations in time, increments were withdrawn and recoveries were ordered.
Further, if increments are still granted to those who did not pass the said examination, there will be no distinction left vis-à-vis those who passed it and this will lead to injustice.
7. Respondents drew attention to the CPWD Manual and the Oms in question, wherein the provisions were made and the same are reproduced below.
7.1 CPWD Manual-1992 "(d) Assistant Engineers promoted from the grade of Junior Engineers:
(iii) An Assistant Engineer promoted from the grade of Junior Engineer is required to pass the departmental Examination in Simple Accounts prescribed for Junior Engineers before they are allowed to draw the first increment in the post of Assistant Engineer, unless they have already passed the examination while employed as Junior Engineer or they pass the departmental examination in Accounts (3 papers) prescribed for Assistant Engineers before completing one year‟s service as 5 OA No.660/2015 Asstt. Engineers. In any case, before they are allowed to cross the efficiency bar stage in the post of Assistant Engineer, they must pass the departmental examination in Accounts (three papers) prescribed for Assistant Engineers. The Assistant Engineers who might have been appointed to the grade of Junior Engineer prior to 17-3-58 are, however, allowed their normal increments in the grade of Assistant Engineer, even if they have not passed the Accounts Examination prescribed for Junior Engineer:
(ii) An Assistant Engineer who is promoted from the grade of Junior Engineer is allowed a period of two years from the date of his/her promotion to pass the departmental Examination in Accounts (three Papers).
(iii) On his/her passing the departmental examination within the said period of two years from the date of his/her promotion, such promotee Assistant Engineer may be deemed to have passed the Departmental Examination from the respective date of his/her promotion; and allowed to cross the Efficiency Bar, if otherwise found fit, from the due date (Office Order No.5/2/81-EC. I datd 4-3-82 refers)"
(emphasis supplied) 7.2 OM dated 02.03.2000 "Subject:- Departmental Accounts Exam for AEs -
Release of increment - Clarification regarding. The undersigned is directed to convey the approval of the competent authority to the effect that those Promotee AEs whose pay has been fixed in the pre- revised scale of pay of Rs.2000-60-2300-EB-75-3200- 100-3500 at the stage beyond the EB stage of Rs.2300/- will draw annual increments in his pay scale even if he has not passed the departmental accounts exam prescribed for AEs provided that he has passed the simple accounts exam prescribed for Junior Engineers."
(emphasis supplied) 7.3 OM dated 05.01.2006 "Subject:- Departmental Accounts Exam for AEs -
Release of increment - Clarification regarding. The undersigned is directed to convey the approval of the competent authority to the effect that the promotee 6 OA No.660/2015 Assistant Engineers will; (i) Earn their first increment only if they have passed the simple accounts exam as Junior Engineer (or if they pass the Departmental Exam of Accounts for Assistant Engineers in that one year)/ (ii) Earn 2nd increment only if they clear the Departmental Exam for Assistant Engineers."
7.4 OM dated 04.04.2006 "Subject:- Departmental Accounts Exam for AEs -
release of increment - clarification regarding. The provisions of this Directorate O.M. of even No. dated 5.1.2006 on the above mentioned subkect, are further clarified as under:
I) The clarifications are with reference to relevant Paragraph of CPWD Manual Volum-I and will be effective prospectively i.e. from 5.1.2006. II) The Assistant Engineers shall be allowed a further period of two years to clear the departmental accounts exam.
III) No recovery from any Assistant Engineer on this account will be made, for the increments release in the past.
IV) The clarification have similar effect in case of ACP also.
2. These clarifications are issued with the approval of Competent Authority."
7.5 OM dated 23.05.2006 "Subject:- Departmental Accounts Exam for AEs -
Release of increment - Clarification regarding. The undersigned is directed to refer to SE, DECE-II, CPWD, New Delhi‟s letter No. 08(29)/E-I/DCEC- 2/2006/255 dated 9.5.2006 on the above mentioned subject and to say that the clarification No. II of the O.M. is quite clear and AEs, who have not yet passed the departmental accounts examination have been given a further chance of two years w.e.f. 5.1.2006 to clear the exam prescribed for the AEs. Their next increment is to be released/regulated as per Para 13 (d) of the CPWD Manual Volume-I, and their next (2nd ) increment will be granted only after clearing the departmental accounts exam." 7 OA No.660/2015
8. Applicant has also brought out that there was a demand by All India CPWD Engineers Association for one time waiver from the condition of qualifying the accounts examination to the AE (Civil) promoted during the period 01.01.1997 to 05.01.2006. In this regard, following instruction was issued by DG (CPWD) on 18.12.2008:
"I am directed to say that the demand of All India CPWD Engineers Association for one time waiver from the condition of qualifying the Accounts exam to the AEs promoted during the period from 1.1.1997 to 5.1.2006 is under examination/ consideration in this Directorate. You are requested to send the details/names of AEs who are promoted during the period from 1.1.1997 to 5.1.2006 and wants one time waiver from the condition of qualifying the Accounts exam to the AEs immediately to this Directorate."
In response thereto, applicant sought one time relaxation and this request was communicated to CPWD Headquarters by his Controlling Superintending Engineer on 15.01.2009, whereupon the Headquarter‟s office communicated exemption vide letter dated 20.11.2014. The respondent drew attention to a condition specified in this exemption which reads:
"The above officer will not be eligible for either notional or actual financial benefit from the back date on which he had attained the prescribed age of 57 years as per the provisions contained in this Directorate O.M. dated 28.05.2014."
9. In view of above, it is pleaded by respondents that all selected AE (Civil) except those who were appointed as JE 8 OA No.660/2015 prior to 17.03.1958, were required to pass the departmental examination and since applicant was appointed as JE later to 05.01.2006 and did not pass the said examination for AE, non-drawal of increment and recovery of excess payment is in order.
10. Matter has been heard at length. Ms. Karishma Singh with Sh. Ankit, learned counsel represented the applicant and Ms. Shivangi Sharma for Sh. Raj Pal Singh, learned counsel represented the respondents.
11. CPWD Manual made a provision that all newly selected AE (Civil) except those who were appointed as JE prior to 17.03.1958, are required to pass the departmental examination within a period of two years meaning thereby that drawal of second increment and onward is contingent upon passing such examination (para 7.1 supra).
However, this stipulation for those who were appointed as JE after 17.03.1958 was relaxed vide OM dated 02.03.2000 in respect of such AEs who had crossed the efficiency bar (EB) stage of Rs.2300 while working in the scale of Rs.2000-60-2300-EB-75-3200-100-3500. It was stipulated that if they had passed the sample accounts examination prescribed for JEs, they will continue to draw annual increments (para 7.2 supra).
9 OA No.660/2015
12. The subsequent OMs dated 05.01.2006, 04.04.2006 and 23.05.2006 are only a further clarification of OM dated 02.03.2000 and have to apply prospectively only. The applicant was promoted as AE on 25.02.2002 and is thus covered under this exemption vide OM dated 02.03.2000 (Para 7.2 supra).
13. Further, respondents themselves made a policy of granting one time relaxation vide OM dated 18.12.2008 and granted the same to applicant on 20.11.2014, though after eight months subsequent to his superannuation.
14. In view of foregoing, the insistence on applicant‟s passing the departmental examination for accounts as AE (Civil), to enable him for drawing second annual increment and onward, cannot be sustained. Pleas by applicant are gaining acceptance.
15. In view of foregoing, the OM dated 28.01.2014 is quashed and set aside to the extent of column "Due" shown therein. The respondents are directed to settle all his retiral dues including pension on the basis of figures shown in the column "Drawn" in the OM dated 28.01.2014, within a period of eight weeks from the date of receipt of a certified copy of this order.
10 OA No.660/2015
Amount recovered and arrears, if any, on this account, shall also be released in this period. It will not carry any interest if released in this period.
However, if the same are not released during this time, they will carry interest at GPF rate from the date of superannuation till they are actually paid. No costs.
( Pradeep Kumar) ( Justice Vijay Lakshmi) Member (A) Member (J) „sd‟