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2.2 The Department of Personnel & Training (DoPT), following the implementation of 6th Central Pay Commission (CPC) recommendations, issued O.M. dated 24.04.2009 (Annexure A-5), which provides for grant of non-functional upgradation for officers of Organized Group 'A' Services in Pay Band - 3 & 4. The order reads as under:-

"Subject: Non-Functional upgradation for Officers of Organised Group 'A' Services in PB-3 and PB-4 Consequent upon the acceptance of the recommendations of the Sixth Central Pay Commission, the following orders are issued:-
3.3 The action of the respondents has caused discrimination amongst the equally placed officers of various Services drawing Grade Pay of `10000/-.

The respondents have failed to notice that the Chief Engineers are in the same pay scale and Grade Pay as that of a Joint Secretary to the Government. Hence, decision taken to withdraw the facility of transport allowance @ `7000/- + DA per month to the non-functional upgraded officers is not justified.

3.4 Hon'ble Supreme Court in the case of Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 has clearly held that an official concerned cannot be punished by effecting recovery of the amount paid without misrepresentation of the employee concerned or wrong interpretation of any rule or instructions.

6. I have considered the arguments of learned counsel for the parties and have also perused the pleadings and documents annexed thereto.

7. From the records, it is quite apparent that not only in the CEA but also in other Ministries of the Government, all the officers, who were granted Grade Pay of `10000/- in Pay Band - 4 and above, were allowed to draw transport allowance @ 7000 + DA thereon in terms of Annexure A-4 O.M. dated 29.08.2008 of the Department of Expenditure. The Audit, however, pointed out that only officers in the Grade Pay of `10000/- & `12000/- and in HAG + scale, and who are otherwise entitled for official car, can draw transport allowance of `7000/- + DA in case they choose not to avail the facilities of availing official car. In the present case, the applicants have been granted non-functional upgradation to the Grade Pay of `10000/- in Pay Band - 4 in terms of DoPT O.M. dated 28.01.1994, but they were not placed at the level of Joint Secretary posts. It is well known that there is a process of empanelment involved for empanelling officers of various Services to the grade of Joint Secretary, albeit the Joint Secretary post also carries the Grade Pay of `10000/- in Pay Band - 4. The HAG + level officers of all Services are, however, entitled for official car. Indisputably, the applicants had not been empanelled as Joint Secretary when they were granted the Grade Pay of `10000/- in Pay Band - 4. Thus, they were not entitled for transport allowance @`7000/- + DA per month. They were only entitled to the transport allowance @`3200/- + DA per month in accordance with Annexure A-4 O.M. dated 29.08.2008 of the Department of Expenditure. The Audit was well justified in pointing it out, which ultimately led to the CEA - respondent No.2, seeking refund of excess payment made to them towards transport allowance.

"4. After hearing the parties in the proceedings before it, the Tribunal found that according to the OM No. 21(1)/97/E.II(B) dated 3rd October, 1997 as amended by OM dated 22nd February, 2002, only, those officers (at the level of Joint Secretary) who had been provided wpc 5555.13 Page 3 with the facility of staff car and who had the option to either avail of the facility or to switch over the payment of transport allowance were entitled to the allowance of rate of Rs.7,000/- per month + DA thereon. It observed that merely because the respondent officers were in the grade pay of Rs.10,000/- - by virtue of the non functional upgrade - they could not claim all the benefits or allowances entitled to Joint Secretary and above and that the said benefit of transport allowance was available only to those officers who are promoted to Joint Secretary grade on regular basis. It further observed that a perusal of the OM dated 24th April, 2009 would reveal that the upgrade and consequential grade pay of Rs.10,000/- would not bestow any right to the officers to claim promotion or deputation benefit and that the same is personal to the officer. Accordingly, it held that the Grade Pay Officers would not be entitled to the transport allowances."