Recovery of excess pay from retiring employee impermissible if no fraud or misrepresentation, per Rafiq Masih guidelines.

ORDER

(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member)

Challenging the impugned order, dated 09.05.2019, of recovery for an amount of Rs.5.41 lakhs, consequent to refixation of his pay in terms of the clarification issued by the Ministry of Finance that NFSG granted w.e.f. 01.01.2016 will be counted as one financial upgradation for MACP Scheme, the applicant has filed the OA.

2. The facts leading to the filing of the OA, are as follows:

The applicant currently serves as Assistant Commissioner of Customs in the office of the 3rd respondent. He began his career with the Central Excise Department in 1982 as an Inspector (ordinary grade) after passing the Staff Selection Commission Examination in 1980. Initially posted at the Central Excise Collectorate in Indore, he subsequently served in the Raipur Division. His career progressed through various postings in Madhya Pradesh until July 16, 1999, when he was confirmed after a probationary period. Under Establishment Order No. 51/1999, dated 14.12.1999, he received his first financial upgradation as Superintendent of Central Excise. Following this, he was deputed to the Enforcement Directorate in Chennai, where his pay was fixed on 13.01.2000 under Establishment Order No. 02/2000. He was further promoted to the post of Superintendent of Central Excise under Establishment Order No. 9/2001, dated 08.03.2001 and subsequently served in various roles, including Senior Intelligence Officer at DGCEI, CZU Chennai. On completion of 24 years of service by June 22, 2006, he was granted his second financial upgradation by an Office Order No. 02/2008, dated 22.04.2008 to the Assistant Commissioner's scale, viz., Rs.8000-275-13500. Consequent on the implementation of the VI Pay Commission, the applicant's pay was fixed in PB3 (15600-39100) with the Grade Pay of Rs.5400/-.

3. The applicant further submits that consequent on the introduction of the Modified Assured Career Progression Scheme (MACP), he was granted third financial upgradation with effect from 22.06.2012, on completion of 30 years of service , in the Pay Ban of Rs.15600-38100 with the Grade Pay of Rs.6600/-. It is also submitted that one similarly placed person, R. Chandrasekaran had moved this Tribunal for grant of Grade Pay of Rs.6600/- in PB3 on completion of 30 years, when the same was rejected by th respondents. The Tribunal rejected his claim which led to filing of W.P. No.19024 of 2014 before the Hon'ble High Court of Madras which directed the DOPT to consider the issue of counting of non- functional scale for the purpose of ACPs, afresh. Pursuant to the same, the DOPT opined that the said officer is entitled to grant the 3^rd MACP in the Grade Pay of Rs.6,600/- Subsequently, the same was withdrawn by the 2^nd respondent vide proceedings, dated 20.06.2016. Hence, the Ministry of Finance vide its proceedings, dated 23.11,.2017 had issued a clarification on grant of NFSC of Grade Pay of Rs.5400/- during 01.01.2006 to 31.08.2008. It was clarified that NFG granted from 01.01.2006 is to be counted as one financial upgradation and officers who had got such NFG would not be eligible for Grade Pay of Rs.6600/- in PB3 completion of 30 year of service.

4. The said decision, coming just before his scheduled retirement on May 31, 2019, has caused undue financial distress, particularly as the recovery of Rs. 5.41 lakhs from his salary has been ordered. The applicant asserts that this decision was hasty and violated principles of natural justice, as well as relevant DOPT circulars and case law on recovery. With no effect