Central Administrative Tribunal - Delhi
Dr Bharti Jain vs Employees State Insurance Corporation ... on 20 November, 2025
1
OA No. 3019/2023
Item No.36/C-4
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3019/2023
Reserved on : 14.10.2025
Pronounced on : 20.11.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Bharti Jain, Group-A
W/o Dr. Kuldeep Jain
Aged about 62 years
R/o 23, 24, Gagan Vihar, Delhi-110051
Retired as Specialist Grade-II from
ESIC Hospital, Noida, Uttar Pradesh.
... Applicant
(By Advocate: Mr. Ramesh Rawat)
Versus
1. Director General
ESIC Headquarters
Panchdeep Bhawan, CIG Marg
New Delhi-110002.
2. Addl. Commissioner
ESCI Headquarters
Panchdeep Bhawan, CIG Marg
New Delhi-110002.
...Respondents
(By Advocate: Mr. Raj Kumar with
Mr. Abhishek Tomar, departmental representative)
2
OA No. 3019/2023
Item No.36/C-4
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
"(a) Quash the impugned orders dated 13.01.2016, 25.03.2019, 12.04.2019 and 28.06.2019.
(b) Direct the respondents to recalculate the pension of the applicant by taking her last drawn pay in the Grade pay of Rs.
8700/-.
(c) As a consequence, to prayer (b) above direct the respondents to pay the higher pension to the applicant in the future.
(d) Direct the respondents to pay the applicant the arrears of pension due to the applicant of the lower pension to the applicant on basis of wrongful calculation made by the respondents.
e) ....
f) Direct the respondents to accord all the consequential benefits on the basis of grant of the above said prayers.
(g) Direct the respondents to pay the GPF to the applicant which has been illegally withheld by them.
(h) Direct the respondents to pay interest to the applicant on delayed payment of pension and further to pay the applicant interest on the arrears of pension paid to her on the basis of the above calculation.
(i) Direct the respondents to exemplary cost to the applicant for constraining her to approach this Hon'ble Tribunal for the belief (sic. relief) sought.
(j) Pass such other suitable order or order(s) as this Hon'ble Tribunal may deem fit to meet the ends of justice."
2. Brief facts of the case as narrated by learned counsel for the applicant are:
3OA No. 3019/2023
Item No.36/C-4 2.1 The applicant is a qualified medical officer who initially joined the Employees' State Insurance Corporation (ESIC) as Insurance Medical Officer Grade-II on a contractual basis on 30.11.1987. Later, she was appointed to the same post on regular basis vide office memorandum dated 17.06.1991 and joined reported for duty on 24.06.1991. Her appointment was approved through office order dated 04.10.1991. During the course of her service, she earned promotion to Insurance Medical Officer Grade-I on 15.09.2003 and, thereafter, granted Non-Functional Selection Grade (NFSG) w.e.f. 30.06.2008 in Pay Band-4 with Grade Pay of Rs. 8700/-. 2.2 While serving in that capacity and drawing the said grade pay, the applicant applied through proper channel for the post of Specialist Grade-II in Radiology, pursuant to an advertisement issued by the Respondents. Upon qualifying in the selection process and interview held on 22.12.2008, she received offer of appointment dated 24.03.2009. The terms of her appointment clearly state that her pay shall be governed by the Office Memorandum (OM) dated 31.01.1986 and 31.03.1987 issued by the Government of India, which specifically allow for negotiation and protection of pay in cases where the new post carries a lower pay scale. 2.3 Pursuant to this, and given that she is already drawing Grade Pay of Rs. 8700/-, her pay is protected as personal to her. This is not only implemented by the respondents but is consistently reflected in her salary and pay slips throughout her tenure as Specialist, until 4 OA No. 3019/2023 Item No.36/C-4 her Voluntary Retirement on 15.02.2015. The pay slip for the year 2013 clearly indicates that she continuously received the protected Grade Pay of Rs. 8700/-. Similarly placed employees, such as Dr. Sujata Gupta, also drew the same grade pay upon joining as Specialist, thereby affirming the existence of a consistent administrative practice within the Respondent Organization. 2.4 Following her voluntary retirement, the Respondents, after a prolonged delay, issued an office order dated 22.09.2015 stating that the Grade Pay of Rs. 8700/- was wrongly granted and unilaterally downgraded her pay to Rs. 6600/-. Simultaneously, they recovered an amount of Rs. 7,27,499/- from her terminal dues, without issuing any show cause notice, in complete breach of the principles of natural justice and without affording the applicant any opportunity to be heard.
2.5 The applicant challenged this illegal action by filing O.A. No. 3491/2016 before this Tribunal. Vide order dated 04.12.2018, this Tribunal found that no proper show cause notice had been issued prior to the pay reduction, and held that the action is unsustainable in law; and directed the Respondents to issue a proper show cause notice regarding the proposed pay downgrade and refund the recovered amount of Rs. 7,27,499/- to the applicant within three weeks of receipt of the certified copy of the order. 5 OA No. 3019/2023
Item No.36/C-4 2.6 While the Respondents refunded the amount, they did not issue any valid show cause notice. Instead, they relied on prior internal communications, which relate solely to the recovery and not to the downgrade of pay. The applicant was, thus, compelled to file Contempt Petition (CP) No. 169/2019 before this Tribunal. During the proceedings, the respondents placed on record documents purporting to be notices, none of which relate to the issue of pay downgrade. These documents were placed on record only during the contempt proceedings and were not served on the applicant earlier. 2.7 This Tribunal, while disposing of the ibid CP on 12.12.2022, recorded that these documents are claimed to be compliance, but the applicant submitted that they did not satisfy the requirement of a show cause notice and, in fact, gave rise to a fresh cause of action from the date of their disclosure.
2.8 Learned counsel further submitted that the present O.A. is within limitation, as the cause of action arose afresh on 12.12.2022, the date on which the alleged documents were supplied. Moreover, in terms of the judgment of the Hon'ble Supreme Court in M.R. Gupta vs Union of India, (1995) 5 SCC 628 and Union of India vs Tarsem Singh, (2008) 8 SCC 648, issues relating to pay fixation and pension constitute a continuing cause of action, and limitation cannot defeat a claim based on such continuing wrongs. 6 OA No. 3019/2023 Item No.36/C-4 2.9 Learned counsel for the applicant submitted that the respondents seek to justify their actions by invoking FR 15(a), suggesting that the applicant voluntarily opted for a lower post, which is entirely misconceived. The applicant is not transferred to a lower post but was appointed through a fresh selection process. The post of Specialist carries distinct responsibilities and higher functional importance. Hence, the case does not fall within the scope of FR 15(a), and the pay protection granted to her remains lawful and binding.
2.10 Learned counsel for the applicant also submitted that the delay in releasing pension and the continued withholding of the applicant's GPF amount, reinforces the mala fide intent of the respondents. Despite repeated representations, the applicant was compelled to knock on the doors of this Tribunal once again, only because the respondents, while claiming compliance, have in fact subverted the very purpose of the earlier judgment. 2.11 Learned counsel further contended that the respondents cannot now resile from their earlier conscious decision to grant pay protection. The principle of legitimate expectation applies squarely in the applicant's favour, especially when she continued to receive the protected pay for over six years of her service post-selection. When the similarly situated officer, Dr. Sujata Gupta, is allowed to retain Grade Pay of Rs. 8700/- under identical circumstances, there is no basis or justification for a contrary treatment to the applicant, 7 OA No. 3019/2023 Item No.36/C-4 and the selective targeting amounts to hostile discrimination. The respondents, as model employers, are bound to uphold fairness, equity, and the law. The unilateral action taken post-retirement, reversing a benefit lawfully granted during service, is not only arbitrary but constitutionally impermissible. The act of adjusting terminal benefits, without lawful authority, violates Article 14 and Article 21 of the Constitution of India.
2.12 In light of these facts and circumstances, learned counsel for the applicant prayed for the aforementioned reliefs.
3. Opposing the grant of relief, learned Counsel for the respondents reiterated the averments made in the counter affidavit. He contended that the Original Application is hopelessly barred by limitation under the provisions of the Administrative Tribunals Act, 1985. The relief sought pertains to events and orders dated as back as 22.09.2015, which the applicant is fully aware of, and acted upon, including receipt of pension and General Provident Fund (GPF). The applicant now sought to reopen the settled matters after more than eight years, under the guise of alleged non-compliance, without explaining the inordinate delay.
3.1 The judgments relied upon by the applicant, such as M.R. Gupta (supra) and Tarsem Singh (supra), are clearly distinguishable on facts and not applicable in the present case. The 8 OA No. 3019/2023 Item No.36/C-4 applicant is put to strict proof regarding the maintainability and timeliness of the O.A. 3.2 On merits, learned counsel for the respondents submitted that the pay fixation of the applicant is carried out strictly in accordance with the rules and binding instructions of the Government of India. The applicant initially served as General Duty Medical Officer (GDMO) and subsequently joined as Specialist Grade-II pursuant to her technical resignation from the earlier post. Her appointment to Specialist Grade-II in ESIC Hospital Noida, as per Offer of Appointment dated 04.10.2012 [Annexure C], clearly mentions that the pay scale attached to the post carries Grade Pay of Rs. 6600/-, and no clause regarding protection or negotiation of earlier Grade Pay is either included or implied.
3.3 In fact, the pay is revised strictly in accordance with FR 15(a) and DoPT Office Memorandum No. F13/9/2009-Estt. (Pay-I) dated 21.10.2009, which governs pay fixation in cases of technical resignation followed by appointment to a lower post. This instruction, which has statutory force under service jurisprudence, mandates that, in such cases, the employee's pay shall be fixed at a stage equal to the pay drawn in the pay band of the lower post, but the Grade Pay shall be that of the new post only. Thus, the applicant was never eligible to continue in Grade Pay of Rs. 8700/- upon her appointment to the post of Specialist Grade-II, which carries Grade Pay of Rs. 6600/-.
9OA No. 3019/2023 Item No.36/C-4 3.4 In compliance with this directive, the applicant's pay is correctly revised vide communication dated 22.09.2015 issued under File No. DM(H)A/19/13/01/2011 [Annexure-A]. This office memorandum demonstrates that she is drawing pay of Rs. 37400+8700 on 30.03.2009 as GDMO and is fixed at Rs. 37400+6600 upon joining as Specialist on 31.03.2009. Her pay is, thereafter, correctly increased upon promotion to Senior Scale (PB-3 + GP 7600), and pension is calculated based on this revised structure. The pension order issued vide PPO No. A.40/13/1024/2015-A/Cs.IV dated 21.09.2015 is, thus, in accordance with law.
3.5 Learned Counsel for the respondents also submitted that the contention regarding violation of principles of natural justice is also misplaced. The recovery of excess amount is made only after verifying that the pay has been wrongly fixed and pursuant to the above DoPT instructions. Furthermore, a detailed communication is issued to the applicant in the form of the office memorandum dated 22.09.2015, which not only informs her of the revised pay fixation but also explains the rationale in light of applicable rules. There is no legal or procedural infirmity in the issuance or implementation of the said communication.
3.6 Learned counsel submitted that with respect to the applicant's comparison with Dr. Sujata Gupta, it is submitted by the respondents that her pay fixation is carried out at ESIC Hospital 10 OA No. 3019/2023 Item No.36/C-4 Jhilmil, and any data regarding her case must be obtained from that unit. However, to assist the Tribunal, the respondents have placed on record Order No. 4 of 2018 received from ESI Hospital, Jhilmil, regarding Dr. Gupta's pay fixation [Annexure B]. The records clearly show that Dr. Gupta is promoted to Specialist Grade-I under DACP scheme based on her service as Specialist Senior Scale and not based on any continuation of GDMO grade pay. The applicant's attempt to draw a parity is, therefore, factually and legally untenable. 3.7 Learned counsel for the respondent further submitted that the applicant's own appointment letter, annexed as Annexure-C, unambiguously states that she is appointed as Specialist Grade-II on a temporary basis, drawing Grade Pay of Rs. 6600/-. No representation or assurance regarding pay protection or continuation of NFSG benefits is either promised or implied. The appointment is governed by the ESIC (Staff and Conditions of Service) Regulations, 1959, and the applicable Central Government Rules. There is no contractual, administrative, or legal basis for the applicant to claim continuation of Rs. 8700/- as Grade Pay post her resignation from the earlier post.
3.8 Regarding terminal dues, learned counsel for the respondents submitted that the applicant's GPF amount of Rs. 8,73,287/- is fully paid to her on 06.03.2017 through voucher Nos. OB11216002470 and PV11216003702 and no amount remains pending in this regard. Her pension is issued promptly as per the last revised basic pay in 11 OA No. 3019/2023 Item No.36/C-4 accordance with law, and no delay or denial of dues is attributable to the Respondents.
3.9 The learned counsel for the respondents also submitted that the allegations of discrimination, arbitrariness, or mala fides are wholly baseless. The department has the lawful authority to rectify any error or anomaly in pay fixation, even post-retirement, particularly where the same results in overpayment. The Supreme Court has consistently upheld the right of the State to recover undue payments made to public servants, especially where the overpayment is the result of clear error. No mala fide intent or procedural impropriety is made out in the present case.
4. Refuting to the averments put forth by the learned counsel for the respondents, learned counsel for the applicant placed on record a comparative chart, viz-a-viz, the applicant and Dr. Sujata Gupta, which is extracted hereinbelow:
"Comparative Chart: Dr. Bharti Jain vs. Dr. Sujata Gupta in terms of 05.08.2025 Aspect Dr. Bharti Jain Dr. Sujata Gupta Before Was working as Was working as Specialist GDMO GDMO Grade-II Initial Appointed on Appointed on Appointment 24.03.2009 as 19.05.2011 as as Specialist specialist Grade-II specialist Grade-II Grade-II after tendering after tendering (Grade Pay of technical resignation technical resignation Rs.8700/-) from earlier post by from earlier post by giving pay protection giving pay protection in view of OM dated in view of OM dated 31.01.1986. 31.01.1986.
12 OA No. 3019/2023 Item No.36/C-4 Pay Fixation Salary negotiated at Salary negotiated at GP ₹8700; ESIC GP ₹8700; ESIC continued same grade continued same grade pay initially. Later, pay. Her pay at GP after VRS (effective ₹8700 was personal 15.02.2015), ESIC to her and duly retrospectively protected. She reduced GP from continued to draw ₹8700 to ₹7600, same GP without citing DoP&T OM retrospective
dated 21.10.2009. reduction. She was Applicant took VRS further promoted from service. as Specialist Grade-
I vide office order dated 22.05.2018 Department's ESIC argued pay had ESIC did not apply the Stand to be revised under DoP&T OM in her DoP&T OM 21.10.2009 case. Higher GP was (Rule 15(a)), treating it allowed to continue as transfer to lower without reduction.
post on request.
Applicant's Reduction after Received protected argument acceptance of VRS is Grade Pay illegal and arbitrary. throughout service. - Discriminatory since Her case demons-
same benefit given to trates consistent Sujata Gupta and departmental practice DoP&T OM 21.10.2009 of allowing "personal would not apply as it pay" protection.
was not a voluntary DoP&T OM 21.10.2009
transfer on the lower was not applied as
post. appointed on the same
post of Specialist
Grade-II on which the
applicant was also
appointed.
"
5. In contrast, a comparative chart has also been placed on record by the learned counsel for the respondents, below which special remarks have been put, which is reproduced below:-
"Comparative Chart: Dr. Bharti Jain vs Dr. Sujata Gupta in terms of order dated 05/08/2025 of Hon'ble CAT, PB New Delhi in OA No.3019/2023.
Particulars Dr. Bharti Jain Dr. Sujata
/Aspect Gupta
Name & Specialist Gr. II (Sr. Scale) (Voluntarily Specialist Gr. I
13
OA No. 3019/2023
Item No.36/C-4
Designation Retired on 15/02/2015, ESIC Model Hospital (Voluntarily at Retire- Basaidarapur) Retired on ment 01/03/2023, ESIC Hospital jhilmil) Initial IMO Grade II (GP 5400) on 24/06/1991 IMO Grade - II Appointment on 26/07/1991 /Subsequent IMO Grade I (GP 6600) on 15/09/2003 Promotions/ Rest of the Change of CMO (GP-7600) - not known /readily records neither Cadre & Next available. available in Promotions ESIC Medical CMO (NFSG) @ GP 8700 on 01.07.2008 College and Specialist Grade-II (Jr. Scale) @ GP 6600 on Hospital, 31.03.2009 Basaidarapur nor could be in Pay Band 3 (Rs.15600-39100/-) with provided by IG an initial pay of Rs. 25,350/-(Rs.18,750 ESICH Jhilmil, + Rs.6600/- as Grade Pay) as per the where from she Offer of Appointment No. took voluntary A12/13/7/Delhi/2009. Med. IV Spl. retirement Recruitment dated 24/03/2009 However, as per Specialist Grade - II (Sr. Scale) @ GP - 7600 Office Order on 30/03/2011 no 635 / 2011 dated 15/11/2011 circulated vide letter no.
19(11)2/353/2 011--Med.4.
she was entitled
to PB-3 + GP
6600 w.e.f
19/05/2011 i.e.
her date of
appointment as
Specialist
Grade-II.
Pay before
change of
cadre from 37400 + 8700 w.e.f.
GDMO to 19/05/2011
Specialist 40220 + 8700
Grade-II (Jr.
Scale)
Final Pay- Crucial Pre- Revis Revis Remarks w.e.f.
Fixation Date/ revised ed ed 01/07/2011
done after Date of (Erron (Final 39100 + 4690
change of Next eous (difference
cadre from Increm Pay allowed as
GDMO to ent Fixat Personal Pay to
Specialist (DNI) ion) be absorbed
Grade-II (Jr. /absorbable
Scale) 30/03/ 37400 18750+ 37400 Pay against future
2009 +8700 6600 +8700 actually increase in pay)
drawn + GP 6600 =
as 43790 + 6600 =
GDMO
14
OA No. 3019/2023
Item No.36/C-4
(NFSG) 50390
Note : Initial
31/03/ 37400 - 37400 Joined pay fixed at a
2009 +8700 +660 as Spl stage in the
0 Gr-II scale of pay
Cadre attached to the
(PB-3 post of
+ GP Specialist / a
6600) stage just below
at in the scale of
ESICH the post to
Noida which she was
on recruited
30/03/ through DR as
2009 Specialist Grade
(AN) -II (Jr. Scale),
in the event of
01/07/ 38790 Not such a stage not
2009 +8700 eligible being available,
- for -
so that there is
annual no loss in the
increm Pay and
ent Dearness
Allowance
01/07/ 40220 19510+ 38720 Annual
already being
2010 +8700 6600 +6600 Incre
drawn by her in
ment
the cadre of
30/03/ 40220 20300 39100 Promot GDMO as CMO
2011 +8700 +7600 +7600 ed as Spl (NFSG) or in
Gr-II (Sr. the alternative,
Scale) such loss could
(PB-3 + be minimized,
GP 7600) to the extent
possible - as
01/07/ 41690+ - 39100 Reasons per extent FR
2011 8700 +7600 can only on Fixation of
be
provided Pay.
by
Finance On 01/07/2012
Division, BP ₹40480 +
Hqrs & / Personal Pay
or Local ₹3310 + GP
Finance ₹6600 = 43790
of ESIC + 6600 +
MCH
50390
Basaidar
apur as (Personal Pay
to why reduced from
further 4690 to 3310
incremen after
ts were adjustment of
not paid 3% of (39100 +
or why 6600) towards
bifurca- annual
tion of increment i.e.
Pay Fixed
off setting
was not
compart Rs.1380 from
mented annual
into increment)
Basic Pay
+Personal
Pay
15
OA No. 3019/2023
Item No.36/C-4
01/07/ 43210+ 21140+ 39100 - Do-
2012 8700 7600 +7600
01/07/ 44770+ 22010 39100 - Do-
2013 8700 +7600 +7600
01/07/ 46380 22900 39100 - Do-
2014 +8700 +7600 +7600
01/07/ 46380 22900 39100 - Do-
2015 +8700 +7600 +7600
Pay Fixation w.e.f.
on promotion 19/05/2013
as Specialist As provided in the previous ROW [Promotion
Grade-II (Sr. to Specialist
Scale) Gr. II (Sr.
Scale)]
40480+
Personal Pay
2310 + 7600 =
42790+7600=
50390
Exercised
option for her
Pay Fixation
w.e.f.
01/07/2013
43360 +
Personal Pay 0
+7600=50960
01/07/2014
44890+7600=
52490
Subsequent
annual
increments in
6th / 7th CPC
regime were
allowed as per
rules.
Promotion to
Specialist Gr.
Promotion to Question does not arise as she took VRS on I (PB-3) with Specialist 15/02/2015 Grade Pay Grade-I 8700 given subsequently after the coming into force of 7th CPC w.e.f.
01/01/2016
Grade Pay / Level-13 (7th
Level at CPC)
Retirement PB-03 + GP 7600 in 6th CPC [previously or
(VRS) replacement/
equivalent to
Grade Pay @
8700 in 6th
CPC]
203500 (from
01/07/2022 to
16
OA No. 3019/2023
Item No.36/C-4
28/02/2023) +
NPA @ 34000
= Rs.237500
Pension Pension fixed by Hqrs Office on the 50% of
Fixed basis of revised Pay Fixation vetted by Rs.237500 =
Finance Division, HQ downscaling Rs.118750
Grade Pay initially from ₹8700 to (Basic Pension
Grade Pay ₹6600 and thereafter i.e. before
elevation to Grade Pay 7600 on commutation of
promotion as Specialist Grade - II (Sr. pension)
Scale). She did not reach the stage for promotion as Specialist Grade - I in Pay Level 13 of 7th CPC (effective from 01/01/2016) equivalent to Grade Pay 8700 of 6th CPC since she took VRS on 15/02/2015, almost 08 years before Dr. Sujata Gupta, Specialist Grade-I. Special Dr. Bharti Jain was appointed as Specialist Grade-Il on Remarks 31/03/2009, much before Dr. Sujata Gupta was appointed in the same position in similar circumstances on 19/05/2011 i.e. more than 02 years before. Whereas, their initial appointments as IMO Grade-II in GDMO Cadre were 24/06/1991 and 26/07/1991 respectively, which are almost in close proximity but the then prevailing dates of increment and options exercised by them could make a difference in the pay that was being drawn by them from time to time in identical capacities /posts/designations.
However, the most crucial fact is that both opted to accept Grade Pay of Rs. 6600 from Rs. 8700, entailing a deficit of Rs. 2100 in Grade Pay alone, whereas, pay protection by way of corollary action on the count of technical resignation and entitlement & eligibility of past service for reckoning of the minimum period for grant of annual increment was required in a non-partisan and non- discriminatory & equitable manner. Nevertheless, on the face of it, it does not appear that Dr. Bharti Jain has been granted Personal Pay to safeguard her emoluments she was drawing as CMO (NFSG) just before her appointment as Specialist Grade - II (Jr. Scale). This disparity can be looked into by Hqrs Office alone and not by the field unit since the Pay Protection to Dr. Sujata Gupta was granted by Hqrs Office vide A-19/11/2/353/2011-Med.IV dated 24/07/2012 while no such communication in respect of Dr. Bharti Jain exists in her records available in this office and probably in other offices such as IG ESICH Jhilmil, ESICH Noida. In respect of Dr. Sujata Gupta, no excess payment was made by IG ESICH Jhilmil and therefore, there was no question of any recovery. However, the recovery of Rs. 7,27,499/- made from Dr. Bharti Jain (since refunded to the ex-employee with the approval of 218th Standing Committee that held its meeting on 28.01.2020) shall also be open to revisitation / review as per the new Pay Fixation that would be undertaken in her case (request would be made from this end) because the Pay Protection, under the principles of fairness, natural justice and equitability & parity, would be subject to 17 OA No. 3019/2023 Item No.36/C-4 "absorption of such element against future increments". The Hon'ble Tribunal may kindly be requested to consider these observations and order that the Pay Fixation of both these ex-employees / Pensioner Medical Officers or Specialists may be examined afresh in toto and ab-initio by ESIC Hqrs Office.
6. Learned counsel for the respondents tried to justify by way of above comparative chart the difference between Dr. Bharti Jain and Dr. Sujata Gupta. It is not in dispute that Dr. Sujata Gupta has been granted the benefit of exercising options while working in Headquarters, whereas it is the contention of the learned counsel for the respondents that no such option was exercised ever by the applicant at any point of time, neither there is a clarity as to whether such option was given to the applicant at relevant point of time. It is also not in dispute that the applicant was working in a Unit not in Headquarters.
7. Furthermore, it is more importantly pointed out by the learned counsel for the applicant that this is 2nd round of litigation and in the earlier round of litigation in O.A. No. 3491/2016, the following order was passed:-
"14. The respondents have not filed any response regarding the allegation of the applicant that a similarly placed person Dr. Sujata Gupta had been extended similar benefit of pay protection. The contention of the applicant that the terms of her salary were negotiated at the time of her joining is not supported by any document annexed with the O.A., hence it is not possible to adjudicate the down gradation of pay on merit. However, it is seen that before down grading the pay of the applicant from Rs.8700/- to Rs.6600/-, no show cause of notice was issued to the respondents, which tantamount to denial of principles of natural justice. In view of the same, the respondents are directed to issue a show cause notice to the applicant to enable her to avail the opportunity of presenting 18 OA No. 3019/2023 Item No.36/C-4 her side of the picture, and then take necessary action as per law.
14.1 The respondents are directed to refund the amount of Rs.7,27,499/- to the applicant within three weeks from the date of receipt of a certified copy of this order. The O.A. is disposed of with these directions. No costs."
8. It is not in dispute that the amount has been released, pursuant to which a show cause notice dated 25.03.2019 (Annexure- A2) was issued to the applicant, in following manner, which reads as under:-
"4. Her attention is invited to the undertaking he submitted at the time of joining the service to the effect that he has understood the provisions of CCS (Conduct) Rules. As per direction dated 04/12/2018 of Hon'ble CAT Principal Bench, New Delhi in OA 3491/2018, a copy of which is downloaded on 11/03/2019 from official website of CAT on receipt of reference from the applicant, Dr. Bharati Jain is hereby directed to show cause as to why the recovery of overpaid-pay and allowances may not be made from her dues and explain reasons within 7 days from the date of receipt of this letter. She is also required to explain as to how the above recovery would cause "Extreme Hardship to her". She is also required to furnish her Income Tax returns of last 5 years in support of her claim, if any. She is also required to explain as to how the pay fixation in question is incorrect in her opinion."
which is further followed by an explanation vide memorandum dated 10/12.04.2019 (Annuxure-A3).
9. Highlighting the said memorandum dated 10/12.04.2019, it is the contented by the learned counsel for the applicant that the respondents have sidelined the issue and directions of this Tribunal, inasmuch as the issue was to be decided and show cause notice ought to be with respect to downgrading, viz-a-viz, Dr. Sujata Gupta. 19 OA No. 3019/2023 Item No.36/C-4 However, through the said show cause notice / memorandum, an explanation is sought on recovery from the applicant.
10. Heard the learned counsel for the respective parties at length and perused the pleadings/judgments placed on record.
11. As regards limitation, we accept the applicant's contention that the cause of action revived only upon disclosure of the alleged compliance documents on 12.12.2022, and keeping in view the Apex Court's decisions in M.R. Gupta (supra) and Tarsem Singh (supra), according to which the matters of pay fixation and pension have been consistently treated as giving rise to a continuing cause of action.
12. From a careful perusal of the record, it is evident that the core controversy in the present O.A. pertains to the downgrading of the applicant's Grade Pay from Rs.8700/- to Rs.6600/- after her voluntary retirement, and the consequential recalculation of pension. The case of the applicant primarily rests on the following grounds:
(i) pay protection was granted and implemented during her service;
(ii) violation of principles of natural justice in effecting pay reduction post-retirement; and
(iii) discrimination vis-a-vis similarly placed officer, Dr. Sujata Gupta.20
OA No. 3019/2023
Item No.36/C-4
13. It is undisputed that the applicant was drawing Grade Pay of Rs.8700/- as CMO (NFSG) prior to her appointment as Specialist Grade-II and that this higher pay continued to be reflected in her salary till retirement. However, the respondents later, vide order dated 22.09.2015, downgraded her pay retrospectively and recovered an amount of Rs.7,27,499/-, which action was admittedly taken without issuance of a show cause notice. This aspect has already adjudicated upon in the earlier O.A. No. 3491/2016, wherein this Tribunal specifically directed the respondents to issue a show cause notice and to refund the recovered amount, vide Order dated 04.12.2018. However, the so-called show cause notice dated 25.03.2019 issued by the respondents in compliance of the ibid Order, was confined merely to the issue of recovery, and not to the downgrading of pay, which was the principal issue of the Tribunal's earlier direction. Thus, the requirement of affording the applicant a reasonable opportunity to explain the basis of her pay fixation in compliance with the earlier Order was not met, and the respondents' subsequent reliance on internal communications cannot be termed as legally valid show cause notice or a reasoned order.
14. Furthermore, on the aspect of discrimination, it is acknowledged by the respondents themselves in the "special remarks" below the comparative chart that while Dr. Sujata Gupta was granted pay protection of Rs.8700/- by Headquarters, no such communication or consideration exists in the case of the applicant, 21 OA No. 3019/2023 Item No.36/C-4 despite both being similarly circumstanced. The respondents' own note suggests that "this disparity can be looked into by Headquarters Office alone and not by the field unit" and also requested "to order that the pay fixation of both these ex-employees / Pensioner - Medical Officers or Specialists may be examined afresh in toto and ab-initio by ESIC Hqrs Office". This admission reinforces the applicant's grievance of unequal treatment and administrative inconsistency.
15. The record establishes that the respondents failed to comply with the Tribunal's earlier directions in letter and spirit. The so- called show cause notice dated 25.03.2019 does not address the issue of pay downgrade and, thus, cannot cure the procedural defect. The continued denial of pay protection, while extending the same to a similarly placed officer, viz. Dr. Sujata Gupta, prima facie, reflects arbitrary and discriminatory treatment against the applicant.
16. Para 3 of the DoP&T OM dated 31.01.1986 inter alia provides as under:
"3. Pay fixation:
A Government servant selected for a post in a Central Public Enterprise will be free to negotiate his emoluments with the enterprise. On appointment to a post in a public sector enterprise on immediate absorption basis, a Government servant will be at par with other employees of the enterprise and will be governed by the rules of the enterprise in all respects."22 OA No. 3019/2023
Item No.36/C-4
17. As per the settled position of law, the principles of fairness, transparency, and non-discrimination are fundamental to administrative action, particularly when it concerns matters related to pension and pay fixation. The respondents' action in downgrading the applicant's pay after her retirement and subsequently recalculating her pension without following due process of law, coupled with discriminatory treatment vis-a-vis Dr. Sujata Gupta, are clearly in violation of constitutional principles under Articles 14 and 21 of the Constitution of India. Furthermore, the respondents' reliance on internal communications to justify their actions cannot stand, as these documents were not shared with the applicant at the relevant time, thereby violating her right to a fair hearing.
18. In light of the above, we allow the O.A. with the following directions:
(i) The impugned orders dated 13.01.2016, 25.03.2019, 12.04.2019, and 28.06.2019 are quashed and set aside.
(ii) The respondents are directed to recalculate the applicant's pension by taking into account her last drawn pay in the Grade Pay of Rs. 8700/-.
(iii) The applicant shall be entitled to the arrears of pension based on the revised pension calculated in terms of point (ii) above.
(iv) The respondents are further directed to release the withheld GPF amount, if any, to the applicant.
23OA No. 3019/2023 Item No.36/C-4
(v) The applicant shall also be entitled for payment of interest on the arrears of revised pension at the rate applicable to GPF deposits from the due date till the date of actual payment.
The respondents are directed to comply with the aforesaid directions and release all the payments due to the applicant within a period of eight weeks from the date of receipt of a copy of this order.
19. Pending MAs, if any, shall also stand disposed of. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/