Central Administrative Tribunal - Jabalpur
Produt Kumar Mandal vs M/O Defence on 30 March, 2023
O.A.No. 200/00429/2012 CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH JABALPUR Original Application No.200/00429/2012 Jabalpur, this Thursday, the 30th day of March, 2023 HON'BLE JUSTICE SHRI AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER Produt Kumar Mandal, S/o Late Shri P Mandal, aged about 60 years, R/o 88/A, Narbada Road, Ratan Colony, Jabalpur
-Applicant (By Advocate - Shri V Bhide) Versus
1. Union of India, through the Secretary, Ministry of Defence, South Block. New Delhi 110011.
2. Office in-charge Records, A B Area, JAK RIF, Jabalpur
3. Controller of Defence Accounts, Ridge Road, Jabalpur - 482001
- Respondents (By Advocate- Shri S P Singh) (Date of reserving order: 03.03.2023) Order By Shri Kumar Rajesh Chandra, AM.
The Original application has been filed by the applicant against the inaction on behalf of the respondents for not considering the increment in salary and pension of the applicant for the intervening period and treating the period as Dies-Non. Page 1 of 9
O.A.No. 200/00429/2012
2. Briefly, stated facts of the case as projected in the Original Application are that the applicant being an Ex Servicemen candidate was appointed on the post of Lower Division Clerk in JAK Rifles on 02.11.2001. Since then the applicant was working continuously and in 2006 he was served with a show cause notice dated 13.03.2006. It was alleged that the Local Accounts Officer had objected to his appointment as he was over age by 65 days and pending regularization of his irregular appointment, he was called upon to show cause. Accordingly, a Court of Inquiry was conducted to investigate the circumstances under which the applicant was enrolled. Respondent no. 2 vide order dated 23.12.2007, conveyed that the applicant was overage and in the light of objection of audit authorities and the Ministry of Defence, his appointment was held irregular. Being aggrieved by said the order dated 23.12.2007, the applicant approached this Tribunal challenging his termination. Vide order dated 21.07.2008 (Annexure A/2), this Tribunal directed the respondents to regularise the service and to release the pay and allowances due to the applicant between the period of 13.03.2006 to 23.12.2007 and further directed to pass a speaking order in view of the directions as contained in the aforesaid order. Later on, action was taken in compliance to the order issued by the respondent no. 1, to the Chief of Army Staff for the relaxation of age limit for recruitment to Page 2 of 9 O.A.No. 200/00429/2012 the applicant by 65 days and his reinstatement into service. Thereafter, the applicant was regularised in his services and respondent directed applicant to report the office vide letter dated 14.02.2009 (Annexure A/4). The applicant applied before the respondents to release the pay and allowances for the period from 01.03.2006 to 14.02.2009, which include period 01.03.2006 to 23.12.2007 and 23.12.2007 to 14.02.2009 (Period of termination) and 40% arrears of pay and allowances for the period upto 23.12.2007. Vide letter dated 12.01.2009 (Annexure A/5) the applicant was accorded sanction of the payment of Rs. 134,086/- (one lakh four thousand eighty six only) towards arrears of pay and allowances for the period from 01.03.2006 to 23.12.2007 for which the applicant worked. Further the applicant was granted increment in his salary for the intervening period. The CGDA Delhi offered comments vide order dated 21.10.2010 that relaxation of the rules does not make applicant entitled for pay and allowances during which applicant has not performed the duty and the period from 24.12.2007 to 15.02.2009 will be treated as DIES NON to regulate the intervening period as the applicant has not performed any duty during that period. The O/C Records JAK Rifles Office vide order dated 28.02.2011 and CDA (Controller of Defence Accounts) had not accorded the pay and allowances and the increment on pay for the year 2008 and 2009 as Page 3 of 9 O.A.No. 200/00429/2012 the case of the applicant comes under dies non. Further the applicant applied for the pension to the respondent along with the increments for the intervening period (From the date of termination to the date of reinstatement into service). The applicant was served with a communication dated 08.11.2010, whereby the applicant was informed that the respondent CGDA Delhi had recommended that the intervening period between the termination of the applicant and his reinstatement by virtue of the order of this Tribunal to be treated as dies-non/non-duty. On this basis, the respondent no. 2 issued the order on the note sheet to recover the increment amount paid for the year 2008-09.
3. The respondents have filed their reply, wherein it has been submitted by the respondents that the audit authorities vide letter dated 23.04.2002, observed that the applicant was overage by 65 days at the time of his enrolment. Later on, in compliance of this Tribunal's order, the applicant's case was processed by IHQ of MoD (Army) who had accorded sanction of the president of India vide GOI, MoD letter No. C/90316/JAK RIF/Inf(Legal)/342/09/D(AG) dated 03.02.2009, for relaxation of age limit for recruitment of the applicant as LDC by 65 days, as a special case (Annexure A/3) and the applicant was reinstated into service w.e.f. 16.02.2009. The case of the applicant to regularise the intervening period w.e.f. 24th Page 4 of 9 O.A.No. 200/00429/2012 December 2007 to 15th February, 2009 was forwarded to IHQ of MoD (Army) which was in turn processed to CGDA. After due examination, CGDA clarified that the appointment of the applicant was not covered under the Recruitment Rules. The relaxation of rules does not make him entitled to pay and allowances for the period for which he has not performed the duty. He could have been allowed pay and allowances had he been eligible for appointment earlier. The respondents further submitted that the period from 24.12.2007 to 15.02.2009 may be treated as non-duty/EOL/dies-non to regulate the intervening period since the individual was neither eligible for appointment during this period nor had he performed any duty. Also, as per 6th CPC, 1st MACP is to be granted to an employee after completion of 10 years of service. The applicant has rendered 09 years, 04 months and 07 days of qualifying service. The applicant is not meeting the requirement of mandatory period of 10 years service, after excluding his intervening period from 24.12.2007 to 15.02.2009 and the intervening period has not been regularised with full pay and allowances as per clarification of the CGDA on the principle of "No Work No Pay". In the meanwhile, the individual was granted two annual increments during the year 2008 and 2009. When the service documents were forwarded to the audit authorities it was observed that the grant of increment to the applicant was not in order and the Page 5 of 9 O.A.No. 200/00429/2012 same should be recovered from him. Accordingly, the same has been recovered from the applicant vide order dated 29.12.2012.
4. The applicant has also filed rejoinder, wherein it has been submitted by the applicant that in the order dated 03.02.2009 it was categorically conveyed that, the applicant is reinstated into service pursuant to the order dated passed in O.A. No. 55/2008. The word "REINSTATEMENT", according to Webster Dictionary, means to place again (as in possession or in a formed position). Therefore, the respondents have erred in reinstating the applicant into service w.e.f. 16.02.2009 and he should be entitled to be reinstated from 24.12.2007. The applicant further submitted that this Tribunal vide order dated 21.07.2008 had categorically held that the Applicant could not be blamed for any irregularity, if any committed by the respondents. It is a particular finding that the applicant had fairly submitted the records before the selection committee and there is no misrepresentation on the part of the applicant. The contention of the respondents that relaxation of rules does not entitle him to pay and allowances is totally misconceived because once the order of reinstatement was issued, it goes to show that the action of terminating him was held to be illegal and he would be treated to continue.
Page 6 of 9
O.A.No. 200/00429/2012
5. This Tribunal has considered the matter and perused the documents annexed herewith the Original Application. The written submissions on behalf of the respondents have also been taken into consideration.
6. It is clear from the record that after due examination and deliberations on the matter of the applicant, the CGDA clarified that "the appointment of the individual was not covered under the Recruitment Rules. Therefore, his services were terminated w.e.f. 24.12.2007. The relaxation of rules was granted by DoP&T as a special case and consequently, he was re-appointed w.e.f. 16.02.2009. The relaxation rules does not make him entitled to pay and allowances for the period for which he has not performed the duty. He could have been allowed pay and allowances had he been eligible for appointment. Hence, the period from 24.12.2007 to 15.02.2009 may be treated as Non-Duty/EOL/Dies Non to regulate the intervening period. Therefore the individual was neither eligible for appointment during this period nor he had performed any duty."
7. The submission made by the applicant that his case was processed late by the department and had his case been processed on time, his dies-non/Non duty period could have been averted. He further submitted that it was up to the respondents to consider the case Page 7 of 9 O.A.No. 200/00429/2012 of the applicant earlier and no fault was there on his behalf. It is clear from the record that since the procedure as per rules was followed, it took some time for presenting the case of the applicant for seeking approval of higher authorities. In this regard, it is clear as per annexure A/6, that appointment of the applicant was not covered under the rules as it was an erroneous appointment, so his services were terminated. After the order of this Tribunal, respondents were directed to release the pay and allowances due to the applicant between the period from 13.03.2006 to 23.12.2007 and reconsider the case of the reinstatement. Thereafter, the case of the applicant was processed and submitted before the Higher Authorities i.e. IHQ of MoD (Army) who had accorded the sanction of the president of India vide GOI, MoD letter dated 03.02.2009 thereafter the applicant was granted 65 days' relaxation in his age and as a special case, he was granted relaxation of rules by DoP&T and consequently reappointed. The relaxation rules does not make him entitled to pay and allowances for the period for which he has not performed the duty that is from 24.12.2007 to 15.02.2009.
8. The authorities, by taking a lenient view, reconsidered the case of the applicant sympathetically and granted relaxation of age limit for recruitment of the applicant as LDC by 65 days as special case and vide order dated 03.02.2009 (Annexure A/3), the applicant Page 8 of 9 O.A.No. 200/00429/2012 was reinstated. It is settled principle of law that backwages can only be claimed when there is specific direction by the competent court of law and this Tribunal has nowhere stated anything to grant backwages etc to the applicant. Therefore, impugned order passed by the respondent no. 3 by treating the period from 24.12.2007 to 15.02.2009 as dies-non does not call for any interference.
9. Accordingly, in view of the aforesaid, this Original Application is dismissed. No costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
VK/-
Page 9 of 9