2024 Supreme(Online)(CAT) 13362

Central Administrative Tribunal Principal Bench: New Delhi O.A. No.2047/2018 Reserved on 11.09.2024 Pronounced on 24.09.2024 Hon’ble Mr. Manish Garg, Member (J)
Hon’ble Dr. Anand S Khati, Member (A)
Sh. Darshan Lal S/o Late Shri Ladha Ram, Aged 56 years, R/o 341, First Floor, Guru Ram Das Nagar, Laxmi Nagar, Delhi-110092 (Working as Assistant Director (OL), Government of India Press, Ring Road, Mayapuri, New Delhi-110064)
Applicant (By Advocate: Mr. S.K. Gupta)
Versus
1. Union of India through Secretary, Ministry of Housing &
Urban Affairs, C-Wing, Nirman Bhawan, New Delhi-110011
2. Director (Printing), Directorate of Printing, Ministry of Housing & Urban Affairs, B-Wing, Nirman Bhawan, New Delhi-110011
3. Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
4.Principal Accounts Office, Office of the Controller of Accounts, Ministry of Housing & Urban Affairs, Nirman Bhawan, New Delhi-110011 …Respondents (By Advocate: Mr. R.K. Sharma)
ORDER By Hon’ble Mr. Manish Garg, Member (J)
By way of the present O.A., the applicant is seeking the following relief(s):
“(i) quash and set aside communication dated 28.09.2016 as conveyed to the applicant along with the communication dated 16.12.2016 through the communication dated 04.01.2017 (Annexure- A-1 (Colly) by which, it has been ordered to re-fix the pay of the applicant and also quash and set aside the communication dated 16.04.2018 (Annexure-A-1A);
(ii). quash and set aside the communications dated 29.04.2016 and 12.07.2016 (Annexure-A-
1B Colly);
(iii). direct the respondents not to disturb the pay fixation and pay of the applicant which was fixed in PB-3, Grade Pay Rs. 5400 w.e.f. 01-02-2007 on account of 2nd financial upgradation granted in existing local promotional hierarchy and in PB-3, Grade Pay Rs. 6600 w.e.f. 01-02-2013 on account of 3rd financial upgradation under MACP Scheme granting higher grade pay in the hierarchy of grade pay and being drawn as on date, in any manner whatsoever;
(iv). May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice”
2. Highlighting the facts of the case, the learned counsel for the applicant had drawn attention to the office memorandum dated
04.05.2007, which reads as under:

3. The learned counsel for the applicant highlighted the Recruitment Rules for the post of Hindi Officer. He specifically invited attention to the following portion:-

4. He had further drawn reference to the ACP Scheme, which reads as follows:
“In this Department's O.M. No. 22012/5/97-Estt. (D), dated 12-1-1998. while prescribing guidelines for reconstitution of the Departmental Promo- tion Committees (DPCs) for certain Secretariat/Non- Secretariat appoint ments, a list showing the designated nominee of the Department of Personne and Training on the DPC of each Ministry/Department was also endorsed to the various Ministries/Departments for appropriate action to amend the composition of DPCs in the relevant Recruitment/Service Rules. References have been received in this Department for clarification whether the nomin98 of this Department as conveyed in Office Memorandum, dated 12-1-1998 referred to above will function in Assessment Boards, Selection Committees, etc., set up for considering promotions under FCS. It is confirmed that this Department's nominee indicated in the Office Memorandum of 12-1-1998 will also be the nominee of this Department in Assessment Boards, Selection Committees or equivalent constituted for considering promotions under FCS, after the screening process is over, for posts carrying scales of pay covered in this Department's Office Memorandum, dated 12-1-
1998.
2. Various Ministries/Departments administering FCS for their Scien- tists/Technologists may take necessary action to make appropriate amend- ments to their Rules covering scientific/technical posts.
Assured Career Progression Scheme for the Central Government civilian employees G.I., Dept. of Per. & Trg., O.M. No. 35034/1/97-Estt. (D), dated the 9th August, 1999 The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be viewed as a 'Safety Net' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, after careful consi- deration, it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder”
5. He also referred to para 7 of the said scheme, which is reproduced herein below:-
“7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification, dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay scales S-5 and S- 6. Financial upgradation on a dynamic basis (i.e., without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay scale) when vacated. Posts which are part of a well- defined cadre shall not qualify for the ACP Scheme on 'dynamic' basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;”
6. The learned counsel for the applicant contended that the applicant is entitled to a higher grade in the promotional hierarchy. Further, he made a reference to Office Order A/R-3 dated 22.03.2013. The learned counsel for the applicant had drawn attention to a chart depicted by the respondents themselves, which shows that the 2^nd ACP was granted with effect from 01.02.2007, in the pay scale of 6500-10500, as detailed in Annexure R/1 dated 04.05.2007.
7. He had further drawn attention to the office order dated 14.01.2011, wherein the post of Hindi Officer was re-designated as Assistant Director (OL). It is explicitly stated that the date of the 2^nd promotion is not, in fact, a promotion but rather a re-designation, and has already been adjusted against the 2^nd ACP.
8. The learned counsel for the applicant also relied upon the reply filed by the learned counsel for the respondents in response to grounds B and E, which read as follows:
“B. That the contents of this para except a matter of records is denied. However, it is submitted that DOP&T has clarified that generally the judgment passed by any Hon'ble Court of Law is applicable to specific case only unless there is specific direction from the Court to extend similar benefits to other similarly placed persons. That the facts of the case are different, hence contents of corresponding para wrong & hence denied.
E. That the contents of corresponding para are wrong & hence denied. Identical issue is sub-judice before the Supreme Court of India. That the facts of the case mentioned in this are different from the applicant's case. Hence contents of corresponding para wrong & hence denied. However, DOP&T has clarified that generally the judgment passed by any Hon'ble Court of Law is applicable to specific case only unless there is specific direction from the court to extend similar benefits to other similarly placed persons.”
9. In support of his submissions, learned counsel for the applicant relied on the judgment rendered by the Hon’ble Apex Court in State of Uttar Pradesh & Ors. vs. Arvind Kumar Srivastava (2015), SCC 374. The learned counsel for the applicant argued that the benefits in terms of the hierarchy and as per the RRs, could not have been withdrawn voluntarily by the respondents without issuing a show cause notice. Furthermore, such a withdrawal is illegal and contrary to the established rule of law.
10. Opposing the grant of relief, the learned counsel for the respondents relied on the averments made in the counter reply.
“1. The applicant was appointed as Lower Division Clerk in Government of India Press, Faridabad on
01.02.1983 in pay scale of Rs. 260-400/-.
2. That the applicant was promoted as Hindi Translator vide Order dated 30.10.2003 in compliance of Hon'ble CAT (PB) judgement dated 02.12.2002, the order of promotion was given w.e.f. 23.01.1998 in the pay scale of Rs. 5000-150-8000.
3. After completion of 24 years of regular service the applicant was granted 2nd financial up-gradation under ACP scheme w.e.f. 01.02.2007 in the pay scale of Rs. 6500-10500 vide Directorate of Printing OM No.
2/20(1)/2007-AV dated 04-05-2007 (Annexure-R-I).
4. Earlier the nomenclature of the post of Assistant Director (OL) was Hindi Officer. As per Directorate of Printing Office Order No. 60/7/2008/A- IV, dated 14.01.2011 the post of Hindi Officer was re-designated as Assistant Director (OL) and granted the revised pay structure of Grade Pay of Rs. 5400/- in Pay Band-3 (15,600-39,100) corresponding to the pre- revised pay scale of Rs. 8000-13500 w.e.f. 01.01.2006 (Annexure R-
II).
5. That the applicant was promoted as Assistant Director (Official Language) in pay scale PB-3, Rs. 15600-39100 with Grade Pay Rs. 5400/- and posted in Government of India Press, Ring Road, Mayapuri, New Delhi vide Directorate of Printing Order dated 28-01- 2011.cadre/category of posts and the next hierarchy of Hindi Translator was Hindi Officer in pay scale Rs. 6500-10500 (As per 6th CPC post was re-designated as AD (OL) with upgraded pay scale i.e. PB-3, GP Rs. 5400 w.c.f. 01.01.2006), accordingly his 2nd Financial Up-gradation under ACP was upgraded to GP Rs. 5,400 in PB-3 w.e.f. 01-02-2007.
7. That on completion of 30 years' regular service, Applicant was granted 3rd financial up-gradation w.e.f. 01.02.2013 in PB-3 (Rs. 15600- 39100) with grade Pay of Rs. 6600/- vide Directorate of Printing Office Order No. 17/06/2012-AII dated 22.03.2013 (Annexure R-III).
8. Internal Audit Wing, Ministry of UD vide their letter dated 09.04.2003 made a query regarding fixation of pay of applicant that 2nd ACP granted on 01.02.2007 is not in order. He becomes entitled for 2nd MACP on completion of 10 years of regular service as on 01.09.2008 and for 3rd MACP w.e.f. 23.01.2018 on completion of 20 years of regular service from 23.01.1998. His service rendered prior to 23.01.1998 shall be ignored for ACP/MACP. In response to the same this office forwarded a letter dated 25.11.2013 (Annexure R-IV) intimating that Applicant was treated as on promotion as Hindi Translator in compliance of Hon'ble CAT (PB)'s judgement dated 02.12.2002. It may not be out of the place to mention here that AO (T&C) has verified the pay fixation proforma which is in order. The observations of the Audit Officer is "On 1.1.2006 Grade Pay of Rs.4200 will be given. On 1.2.2007 pay will be fixed in the grade pay of Rs. 5400/- under PB-3 Rs. 15600-39100".
9. It is further submitted that the Principal Accounts Office vide their letter dated 11.03.2016 (Annexure R-V) modified the query based on clarification No. 56 of DOP&T O.M. dated 18.07.2001 and requested to this office to intimate the status of recovery from Sh. Darshan lal, Assistant Director (OL) due to wrong fixation of pay upon grant of ACP/ MACP. In response to the same this office forwarded letter dated 01.04.2016 to the Sr. Accounts Office (Admn.), Principal Accounts Office, Ministry of UD (Annexure R-VI).
10. In response to this Office letter dated 01.04.2016 the Principal Accounts Office (T&C Section) vide their letter dated 29.04.2016 (Annexure R-VII) again intimated that as per clarification No. 56 of ACPS, we have clarified that in relation to a common category post, the ACPS shall be as per the standard approved structure for that common category even if some of the offices may not have all the grades due to functional considerations. DOPT has clearly mentioned that where no post of SHT exist/functional, the ACP shall be granted as per the standard approved structure for that common category post. Hence, JITs may be granted ACP benefits in the pay scale of SHT i.e., PB-2of Rs. 4600/- even if the post of SHT doesn't exist in the Department. Principal Accounts Office, Ministry of UD requested to this Office to re-fix the pay of Sh. Darshan Lal, AD (OL) in the light of the clarification issued by DOPT. This Office has forwarded the reply of the letter of the Pr. Accounts Office (T&C Section) dated 29.4.2016 vide this office letter dated 25.05.2016 (Annexure R-VIII).
11. It is further submitted that the Sr. Accounts Officer, Principal Accounts Office, Ministry of Housing and Urban Affairs, Nirman Bhawan, New Delhi vide his letter dated 26.10.2017 requested Manager, GIP, RR, New Delhi to intimate the status of recovery from Sh. Darshan Lal, AD(OL) towards wrong fixation is still awaited. (Annexure R-IX).
12. It is further submitted that in response to the Sr. Accounts Officer, Principal Accounts Office, Ministry of Housing and Urban Affairs, Nirman Bhawan, New Delhi letter dated 26.10.2017, Directorate of Printing already asked to this office to intimate the facts of the case from the appointment to till date of Sh. Darshan Lal for seeking advice from the DOP&T. Accordingly, this office forwarded all the facts of the case to the Directorate of Printing vide this office letter dated
25.11.2016. (Annexure R-X).
13. This Office replied to the letter dated 26.10.2017 of Principal Accounts Office that the case is under examination in Directorate of Printing in consultation with DOP&T. (Corresponding letter dated 05.01.2018 is enclosed as Annexure R-XI).
14. As per DOP&T's advice, the 2nd ACP is to be granted in the 4. common/uniform existing hierarchy i.r.o common categories. Hence, the promotion as AD (OL) to be treated as 3rd Financial upgradation. Accordingly, fourth financial up-gradation (stated to be third after completion of 30 Years of service) in the Pay Scale o Rs. 15,600-39,100 + 6,600 GP needs to be scrapped and accordingly recovery to be made as MACP Scheme ensures only three financial up-
gradation which had already availed by the applicant.”
11. We have heard the learned counsel for respective parties and perused the records of the case.
12. ANALYSIS
12.1 Point of determination in the present case is whether financial upgradation under the MACP Scheme shall be given in the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose?
12.2 Paragraph 5 of the Execution Instructions issued by the Government of India dated 27.07.2011 reads as under:-
“5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS. Illustration-I The pre-revised hierarchy (in ascending order) in a particular organization was as under:-Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500. A Government servant who was recruited in the hierarchy in the pre-revised pay scale Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006 he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre-revised scales of Rs.5500-
9000 and Rs.6500-10500.
Another Government servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 &
Rs.6500-10500 during this period.
12.In the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre- revised scales of Rs.5000- 8000, Rs.5500-9000 and Rs.6500- 10500 recommended by the Sixth CPC. As per CCS (RP) Rules, both of them will be granted grade pay of Rs.4200 in the pay band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs.4600 and in Rs.4800 in the pay band PB-2. "
12.3 The applicant’s pay was fixed in PB-3, Grade Pay Rs. 5400 w.e.f. 01-02-2007 on account of 2^nd financial upgradation granted in existing local promotional hierarchy. The promotions earned/upgradation granted under the ACP scheme in the past i.e., prior to 01.01.2006 to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the 6th Pay Commission shall be ignored for the purpose of granting upgradations under MACP Scheme which came into effect on 1.9.2008.
12.4 A query was raised by the Internal Audit Wing, Ministry of UD vide their letter dated 09.04.2003 regarding fixation of the pay of the applicant and 2^nd ACP granted to him on 01.02.2007 is not in order. It was stated that the applicant becomes entitled for 2^nd MACP on completion of 10 years of regular service as on 01.09.2008 and for 3rd MACP w.e.f. 23.01.2018 on completion of 20 years of regular service from 23.01.1998 and that his service rendered prior to 23.01.1998 shall be ignored for ACP/MACP.
12.5 Whether the applicant would be eligible for 3rd MACP on completion of 30 years of service on 01.02.2013 or 10 years regular service w.e.f. 1.9.2008 whichever is earlier, i.e., 23.01.2018 is to be considered.
12.6 No explanation is coming forth as to on what basis, the applicant’s service rendered prior to 23.01.1998 have been ignored for ACP/MACP moreso, when as per the respondents own assertion that as per 6th CPC post was re-designated as AD (OL) with upgraded pay scale i.e. PB-3, GP Rs. 5400 w.c.f. 01.01.2006 accordingly his 2nd Financial Up- gradation under ACP was upgraded to GP Rs. 5,400 in PB-3 w.e.f. 01- 02-2007. Thus, on completion of 30 years' regular service, the applicant was granted 3rd financial up-gradation w.e.f. 01.02.2013 in PB-3 (Rs. 15600- 39100) with grade Pay of Rs. 6600/- vide Directorate of Printing Office Order No. 17/06/2012-AII dated 22.03.2013. The respondents also ignored one more important aspect that it is on completion of 30 years of service or 10 years regular service w.e.f 1.9.2008 “whichever is earlier”.
12.7 Yet another reason to discard the contention of the respondents is that recovery and re-fixation orders, so passed are without issuing show cause notice to the applicant. In Civil Appeal No(s). 1635 OF 2013 Jagdish Prasad Singh Versus State Of Bihar And Others decided on
08.08.2024 , the Hon’ble Apex Court observed as under :-
“24. Recently, this Court in Thomas Daniel v. State of Kerala and Others, held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.
25. The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the detriment of the appellant.
26. The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because hehad been promoted as an ADSO, while drawing the pay scale of Rs.6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained.
27. The order dated 8th October, 2009 passed by the State Government directing reduction in the pay scale of the appellant from Rs.6500-10500 to Rs.5500-9000 w.e.f. 1st January, 1996 and directing recovery of the excess amount from him is grossly illegal and arbitrary and is hereby quashed and set aside. The impugned order dated 27th August, 2012 passed by the Division Bench of the High Court does not stand to scrutiny and is hereby quashed. Therefore, the appellant shall continue to receive the pension in accordance with the pay scale of Rs.6500-10500. 28. In case, if any reduction in pension and consequential recovery was effected on account of the impugned orders, the appellant shall be entitled to the restoration/reimbursement thereof with interest as applicable.
29. The appeal is allowed in these terms. No order as to costs.”
13. CONCLUSION
13.1 We therefore, quash and set aside the communication dated 28.09.2016 along with the communication dated 16.12.2016 through the communication dated 04.01.2017 (Annexure-A-1 (Colly) by which, it has been ordered to re-fix the pay of the applicant. Further we also quash and set aside the communication dated 16.04.2018, 29.04.2016 and
12.07.2016.
13.2 We, further direct the respondents not to disturb the pay fixation and pay of the applicant which was fixed in PB-3, Grade Pay Rs. 5400 w.e.f. 01-02-2007 on account of 2^nd financial upgradation granted in existing local promotional hierarchy and in PB-3, Grade Pay Rs. 6600 w.e.f. 01-02-2013 on account of 3^rd financial upgradation under MACP Scheme.
13.3 The order staying the recovery is made absolute. The Consequential relief(s) shall follow within three months from date of receipt of the certified copy of this order.
13.4 The OA is allowed in aforesaid terms. All pending MAs, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/arti/
Central Administrative Tribunal Principal Bench: New Delhi O.A. No.2047/2018 Reserved on 11.09.2024 Pronounced on 24.09.2024 Hon’ble Mr. Manish Garg, Member (J)
Hon’ble Dr. Anand S Khati, Member (A)
Sh. Darshan Lal S/o Late Shri Ladha Ram, Aged 56 years, R/o 341, First Floor, Guru Ram Das Nagar, Laxmi Nagar, Delhi-110092 (Working as Assistant Director (OL), Government of India Press, Ring Road, Mayapuri, New Delhi-110064)
Applicant (By Advocate: Mr. S.K. Gupta)
Versus
1. Union of India through Secretary, Ministry of Housing &
Urban Affairs, C-Wing, Nirman Bhawan, New Delhi-110011
2. Director (Printing), Directorate of Printing, Ministry of Housing & Urban Affairs, B-Wing, Nirman Bhawan, New Delhi-110011
3. Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
4.Principal Accounts Office, Office of the Controller of Accounts, Ministry of Housing & Urban Affairs, Nirman Bhawan, New Delhi-110011 …Respondents (By Advocate: Mr. R.K. Sharma)