entral Administrative Tribunal - Delhi
Paramjeet Singh vs Union Of India on 17 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
O.A.NO.1406 OF 2013
New Delhi, this the 17th day of November, 2014
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
R/o 2139/31, Indian Colony,
Gali No.3, Gohana Rd. Bypass,
Sonepat . Applicant
(By advocate: Shri Gopal Aggarwal)
1. Union of India,
Ministry of Defence,
D/Lab, Sena Bhawan,
505, Army Base Wksp,
3. Director General of EME (Civ),
Major General of Ord.Branch,
Army Head Quarter,
DHO, New Delhi.
4. H.Q.Base Wksp GP EME,
Meerut Cantt. 900468,
C/o 56 APO.
510, Army Base Workshop,
Meerut Cantt. .. Respondents
(By Advocate: Shri Manjeet Singh Reen)
Raj Vir Sharma, Member(J):
In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief:
(1) To direct the respondents that while re-fixing the pay of the applicant in terms of revised pay structure, his pay should be protected as propagated vide DoP&T OM dated 14.2.2006 & that no recovery is made on account of excess payment, if any, till the final disposal of this O.A.
(2) to set aside the impugned orders which are marked as Annexure A-1Collectively.
(3) to direct the respondents to declare that the applicant is entitled to have his basic pay, i.e., pay in the Pay Band plus Grade Pay, protected on appointment to the lower post.
(4) To direct the respondents to fix the pay of the applicant protecting his basic pay, i.e., pay in the Pay Band plus Grade Pay, on his transfer as Blacksmith with all consequential benefits.
(5) To allow any other relief which this Honble Tribunal deems fit under the facts and circumstances of the case.
(6) To allow costs.
2. The applicant was appointed as a Blacksmith on 14.10.2002 in 510 Army Base Workshop, Meerut, in the pay scale of Rs.3050-4590/-. He was promoted to Blacksmith HS-II in the pay scale of Rs.4000-6000/- with effect from 14.10.2005. Consequent upon implementation of the recommendation of the 6th CPC, his pay was fixed at Rs.7440 + Grade Pay Rs.2400/-. On restructuring of the cadre of Artisan Staff at the ratio of 50:50 he was promoted to Blacksmith HS-I with effect from 1.1.2006 and his pay was fixed at Rs.7740 + Grade Pay Rs.2800. The applicant submitted application dated 20.2.2007 for his posting to any EME Unit located at Delhi on compassionate grounds. He also submitted a willingness certificate dated 20.2.2007 that he was willing to accept Skilled grade in the pay scale of Rs.3050-4590/- on his permanent posting to his choice station. He also made a declaration that he would reckon his seniority in the Skilled grade from the date of reporting for duty in the new unit.
3. It is the case of the applicant that as per the movement order dated 2.6.2008 (Annexure A/2) he was transferred to Delhi Cantonment Office. According to the applicant, on his transfer to and joining the lower post, the respondents did not fix his pay under FR 22(I)(a)(2) of the Fundamental Rules and also did not grant him protection of pay in terms of the DoP&Ts O.M. dated 14.2.2006. The applicant, vide his representation dated 22.2.2013 (Annexure A/5 collectively), requested respondent no.2 to consider his case and re-fix his pay by granting pay protection in terms of the DoP&Ts O.M. dated 14.2.2006. Respondent no.2, vide his letter dated 26.2.2013 (Annexure A/1 collectively), intimated that the applicants pay is required to be protected as per the provisions contained in the DoP&Ts O.M. dated 5.11.2012.
4. It is contended by the applicant that the DoP&Ts O.M. dated 5.11.2012 has been issued in contravention of its earlier O.M. dated 14.2.2006 and that the respondents ought to have protected the pay drawn by him prior to his joining the lower post on transfer under FR 15(a). In support of his contention, the applicant has relied on the order dated 28.10.2011 passed by the Ernakulam Bench of the Tribunal in O.A.No.146 of 2010 (Senthil Kumar M & others vs. Union of India and others), copy of which is filed by him as Annexure M-1 to MA No.1431 of 2013.
5. In their counter reply, the respondents have not disputed the factual aspects of the case as narrated in paragraph 2 of this order. They have resisted the claim of the applicant on the grounds that the communication dated 26.2.2013 (Annexure A/1 collectively) was issued with the approval of the competent authority and as per the DoP&Ts O.M. dated 5.11.2012. It is submitted by the respondents that the decision contained in the DoP&Ts O.M. dated 5.11.2012 being a policy decision of the Government, the Tribunal cannot sit as a court of appeal over the same, nor can it substitute its own decision. In support of their submission, the respondents have placed reliance on Shri Dilip Kumar Garg & another vs. State of U.P. & others; Tata Cellular vs. Union of India, AIR 1996 SC 11; and S.P.Shiv Prasad Pipal vs. Union of India & ors, AIR 1998 SC 1882.
6. Controverting the stand taken by the respondents, the applicant has filed a rejoinder reply wherein he has more or less reiterated the same averments and contentions as in the O.A. Besides, he has contended that the DoP&Ts O.M. dated 5.11.2012 being an administrative/executive order cannot supersede the O.M. dated 14.2.2006 which is based on the statutory provisions contained in FR 15(a), FR 22(I)(a)(2) and FR 22(I)(a)(3) of the Fundamental Rules.
7. We have heard Shri Gopal Aggarwal, learned counsel appearing for the applicant, and Shri M.S.Reen, learned counsel appearing for the respondents.
8. Reiterating the contentions raised in the O.A. and the rejoinder reply, the learned counsel appearing for the applicant placed reliance on Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. And others, (2003) 2 SCC 111 (para 59), and Ambica Quarry Works vs. State of Gujarat & others, (1987) 1 SCC 213 (para 18). In para 59 of the judgment in Bhagnagar Universitys case (supra), the Honble Supreme Court observed that a decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom and that it is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In para 18 of the judgment in Ambica Quarry Workss case (supra), the Honble Supreme Court observed that the ratio of any decision must be understood in the background of the facts of that case and that a case is only an authority for which it actually decides, and not what logically follows from it. The learned counsel also took us through the order dated 28.10.2011 passed by the Ernakulam Bench in Senthil Kumar Ms case (supra) and submitted that a Coordinate Bench of this Tribunal having already held that the DoP&Ts O.M. dated 21.10.2009 being repugnant to FR 15(a), FR 22(I)(a)(2) and FR 22(I))(a)(3) of the Fundamental Rules is inapplicable to the case of the applicants in that case and that the applicant in the present case being similarly placed as the applicants in the said case, his claim deserves to be allowed by the Tribunal.
9. Per contra, the learned counsel appearing for the respondents submitted that consequent upon implementation of the revised pay structure comprising grade pays and running Pay Bands with effect from 1.1.2006, the pay fixation of a Government employee, who was holding a post carrying higher pay scale prior to his transfer and posting to a post carrying lower pay scale on his own request under FR 15(a), has to be regulated under the provisions contained in the DoP&Ts O.M. dated 21.10.2009, which have only reiterated by the DoP&T in its subsequent O.M. dated 5.11.2012, which is impugned in the present O.A.. The learned counsel also submitted that in the case of the applicant the pay protection as envisaged in the DoP&Ts O.M. dated 5.11.2012 has rightly been pointed out by respondent no.2 in the communication dated 26.2.2013 and that the said O.M. dated 5.11.2012 cannot be said to be repugnant to FR 15(a), FR 22(I)(a)(2), FR(I)(a)(3) of the Fundamental Rules and DoP&Ts O.M. dated 14.2.2006. It was also submitted by the learned counsel that when the O.M. dated 14.2.2006 was issued by the DoP&T, the CCS (RP) Rules, 2008 introducing the revised pay structure comprising Grade Pays and running Pay Bands with effect from 1.1.2006 were not promulgated, and after promulgation of the CCS (RP)Rules, 2008, the O.M. dated 21.10.2009 and O.M. dated 5.11.2012 were issued by the Department of Personnel & Training to regulate the pay fixation of Government employees transferred to lower post on own request. In support of his contention, the learned counsel placed reliance on U.T.Chandigarh & ors vs. Gurcharan Singh & another, 2014(1) SLJ 195 (para 8).
10. In Senthil Kumar Ms case (supra), the applicants, who were earlier serving as Senior Tax Assistants in the pay scale of Rs.5000-8000/- outside Kerala Region, were, on their request, accommodated in the Kerala Region as Tax Assistants in the pay scale of Rs.4000-6000/- in March 2008. As on the date of their transfer, the applicants pay was fixed on the basis of the pre-revised pay scale of Rs.4000-6000/- but in accordance with the provisions of FR 22(I)(a)(2) of the Fundamental Rules. Though the applicants stood transferred to the lower post in 2008, since the revised pay structure was to be effective from 1.1.2006, the applicants pay was revised in the grade of Tax Assistants and further in the grade of Senior Tax Assistant and based on that their pay fixation was made in the lower post of Tax Assistant on transfer under FR 15(a) by allowing them pay protection. While the matter stood thus, the DoP&T issued O.M. dated 21.10.2009 laying down the following procedure for fixation of pay:
2. Consequent upon implementation of the revised pay structure comprising Grade Pays and running Pay Bands, w.e.f. 1.1.2006 in cases of appointment of Government servants to posts carrying lower Grade Pay under FR 15(a) on their own request, the pay in the Pay Band of the Government servant will be fixed at a stage equal to the pay in the Pay Band drawn by him prior to his appointment against the lower post. However, he will be granted Grade Pay of lower post. Further, in all cases, he will continue to draw his increments based on his pay in the Pay Band + Grade Pay (lower).
3. Where transfer to a lower post is made subject to certain terms and conditions then the pay may be fixed according to such terms and conditions. Being aggrieved thereby, the applicants in that case approached the Ernakulam Bench of the Tribunal for quashing the said DoP&Ts O.M. dated 21.10.2009 and praying for other consequential relief(s). Relying on various judicial pronouncements, the Ernakulam Bench held in paragraph 18 as follows:
Be that as it may, in the instant case, there is no amendment to the FR or the Pay Rules. The change has occurred by way of an executive instructions, which cannot in view of the settled legal position that the statutory provisions cannot be upset by any administrative instructions, be held valid. The validity of such administrative instructions would be affirmed only when the provisions of the administrative instructions borrow their colour from the statute or they are in tandem and not otherwise. In paragraphs 21 to 27, it was also held thus:
21. In so far as this case is concerned,when the transfer took place in March, 2008, the revised pay rules were not published and there was no confusion or complication in the fixation of the pay of the applicants in the lower transferred post. At that time, the pay scale for the higher post was Rs.5000-150-8000 and the pay scale for the lower post was Rs.4000-100-6000. The pay drawn by the first applicant at the time of his transfer was Rs.5,150/-. It could be possible to apply the provisions of FR 22(1)(a)(2) subject to the ceiling as contained in F.R. 22(1)(a)(3) in such cases. Thus, the applicant as fixed at Rs.5,100/- in the pay scale attached to the lower post and the balance of Rs.50/- was reflected as personal pay, to be adjusted against the future increment. The pay scale at that time did not contain the element of grade pay. However, when the revised pay scale came into force, there has been a broad band of scale of pay, one applicant to the higher post (Rs.9300-34800) and one for the lower post (Rs.5200-20200) and there has been difference between the grade pay which is Rs.4,200/- for the higher post and Rs.2400/- for the lower post. Since the term basic pay as per the Revised Pay Rules, 2008 includes also the grade pay, pay protection as contemplated in FR 22(1)(a)(2) should take into account the grade pay also. It was for this reason, presumably, that Annexure A-4 order ensured that there is no depletion in the pay drawn by the applicant. Of course, the calculation is by way of grant of personal pay. However, ,this pay fixation was made before the issue of O.M. dated 21.10.2009 and as such, on the issue of the aforesaid O.M. dated 21.10.2009, respondents have issued Annexure A-7 order, which results in a truncation of the pay drawn by the applicant at the time of his transfer.
22. Provisions of FR 22(1)(a)(2) had not undergone any change to include the grade pay. However, the Revised Pay Rules include the same as a part of basic pay. Thus, the fixation of the pay of the applicants in the pay scales attached to the post they are now holding should be such that the same takes into account the pay in the pay scale as well as the grade pay and it is to be ensured that the fixation of pay is not in variation from the statutory provision. As stated earlier, the statutory provisions ensures pay protection (subject to the ceiling as per FR 22(1)(a)(3). The executive instructions contained in Annexure A-6 do not ensure protection of pay as per FR 22(1)(A)(2) in that it has totally ignored the difference in the grade pay. Admittedly, the fixation of pay of the applicants should conform to the provisions of FR 22(I)(a)(2). If the impugned Annexure A-6 order has to be legally sustained, then it has to be read in harmony with the provisions of the Statutory Rule FR 22(1)(a)(2) and FR 15. Reading harmoniously the said provisions and the definition of the term Basic Pay in the Revised Pay Rules, two options are available as under:
(a) As worked out by the respondents themselves, vide Annexure A-4, the basic pay is kept intact in the broad band pay scale and the difference between the two grades pay is treated as personal pay to the applicant, which gets offset as and when annual increments are due.
(b) Keeping the grade pay at the rate applicable to the lower post, the balance is included in the basic pay in the broad band.
23. In case of (a) above, the difference being Rs.1800/-
adjusting the same against future increments would mean the applicant would not be entitled to any increment for a substantial period. In the instant case, the same would come to a span of five to six years. Earlier, such personal pay would be such that the same would be a part of annual increment to be adjusted within one increment or at best two. Again, such a situation was inevitable in the pre-revised pay scales as the stages may not be there to exactly fit the pay in the pay scale. Such is not the case under the present system of pay scale. There is no fixed increment, nor is there any fixed intermediate stage. From Rs.5,200 to Rs.20,200, the pay could be fixed at any stage. Of course, treatment of difference as personal pay could be possible where the difference is only in grade pay, while the broad band scale of pay is the same (as in the case of Rs.5200-20200 with grade pay of Rs.2400/- and Rs.5200-20200 with grade pay of Rs.2,800/-, in which case the difference being less, the same could be adjusted within the first or first two annual increments.
24. The applicants, by making a request for transfer to the choice station, are losers in respect of the following:
(a) They occupy only a lower post.
(b) The pay scale attached and the grade pay associated with the scale of pay are much less than the pay scale and the grade pay attached to the higher post held by them.
(c ) They stand to lose their seniority.
25. Forcing them to suffer loss of increment on account of adjustment of personal pay for a span of five to six years would be totally demoralizing.
26. In view of the above, the second option i.e. keeping the grade pay at the rate applicable to the lower post, the balance is included in the basic pay in the pay band appears to be the only option available.
27. Thus, applying the same in the instant case the calculation would be as under:-
Total pay drawn by the applicant No.1 at the time of his transfer is Rs.13910/-. This contains the element of Grade Pay of Rs.4,200/- as well. At the time of fixation of pay in the lower post, necessarily the grade pay should be restricted to Rs.2,400/-. Thus, subtracting Rs.2,400/- from the total amount of Rs.13,910/-, the balance i.e. Rs.11,510/- would be construed to constitute the pay in the pay band of Rs.5,200-20,200. The applicants pay would then be Pay in the Pay Band of Rs.5,200-20,200:Rs.11,510/-
Grade Pay: Rs. 2,400/-
Total : Rs.,13,910/-
Pay as on 01.07.2008 (after grant of one increment of Rs.420 being 3% of total pay Rs.13,910 after rounding off to the nearest ten )
Pay in the Pay Band of Rs.5,200-20,200: Rs.11,930/-
Grade pay attached to the post : Rs. 2,400/-
Date of Next Increment: 01.07.2009
28. The O.A. is thus allowed. It is declared that Annexure A-6 is not applicable to the case of the applicant as the same is repugnant to the provisions of the statutory rule. Respondents are directed to afford the applicants protection of pay as envisaged in FR 22(1)(a)(2) subject to the ceiling as contained in FR 22(1)(a)(3). The calculation as contained above would meet the requirement without offending the provisions of FR. If so desired, the respondents may consider either amendment to the statutory provisions in the FR or else issue a fresh notification which would not be in conflict with the statutory provisions.
11. Having given our anxious consideration to the facts and circumstances of the present case, we are in agreement with the view taken by the Coordinate Bench of the Tribunal at Ernakulam in Senthil Kumar Ms case(supra). But from the order passed by the Ernakulam Bench, it is not clear whether the Department of Personnel & Training was a party-respondent in the said case. When the validity of the DoP&Ts O.M. dated 21.10.2009 was questioned in the said case, the applicants ought to have impleaded the Department of Personnel & Training as a party-respondent. If in the presence of the Department of Personnel & Training in the proceedings before the Ernakulam Bench and after considering the stand taken by it, the matter could have been decided by the Ernakulam Bench of the Tribunal, the Department of Personnel & Training, i.e, the nodal Department of the Government of India in personnel matters, would have by now taken appropriate decision as a sequel to the Tribunals order in Senthil Kumar Ms case(supra). In the last sentence of the operative part of the order passed by the Ernakulam Bench, it was observed that the respondents might consider either amendment to the statutory provisions in the FR or else issue a fresh notification which would not be in conflict with the statutory provisions. It transpires that after the decision in Senthil Kumar Ms case(supra) was rendered by the Ernakulam Bench of the Tribunal, the Department of Personnel & Training issued O.M. dated 5.11.2012 reiterating its decision contained in the O.M. dated 21.10.2009 and there is no mention about the Ernakulam Benchs decision in the O.M. dated 5.11.2012. Thus, it is clear that the Department of Personnel & Training was not a party in the proceedings before the Ernakulam Bench. In the present O.A., the applicant has also not impleaded the Department of Personnel & Training as a party-respondent although the Respondents in their counter reply have stated that the impugned communication dated 26.2.2013 was issued by respondent no.2 as per the O.M. dated 5.11.2012 of the Department of Personnel & Training. As the decision in Senthil Kumar Ms case(supra) is likely to have an effect on the pay fixation of Government employees on their transfer from higher post to lower post on own request under FR 15(a), it is imperative that the Government of India in the Department of Personnel & Training should re-examine the matter in the light of the decision in Senthil Kumar Ms case(supra) and issue appropriate instructions to all the Departments in the matter so that Government employees similarly placed as the applicants in the said case could get similar treatment from the Government without initiating litigations in Tribunals and Courts.
12. In the light of the above discussion, we issue the following directions;
(1) Respondent no.1 shall make a reference to the Department of Personnel & Training to re-examine the matter in the light of the order passed by the Ernakulam Bench of the Tribunal in Senthil Kumar Ms case(supra) and take appropriate decision in the matter;
(2) Respondent no.1 shall re-consider the claim of the applicant in accordance with the decision taken by the DoP&T on the said reference and pass a speaking order which shall be communicated to the applicant;
And (3) The entire exercise shall be completed within a period of three months from today.
13. In the result, the O.A. is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER