• Pay protection fixation on reversion to a lower post on own request

Sir,  I was selected in 2001 as through UPSC ar a Direct Recruit & joined inOct 2001 in   Govt of India Department in the Scale 8000-275-13500,GrA,  the Post I was holding was Regular. 
 As I was a permanent Govt of India employee in another Deptt, in Govt of India,(holding a post  of GrB, 5500-175-9000) I was granted Lien, intially for 02years  at the time I was relieved, which was subsequently extended to another one year by my previous deptt.
I just before completion of 03 years,  i.e in  Sept 2004, requested to revert back to my previous deptt,during Lien & got my transfer order & then joined in the lowerpost, which was at that  time carrying Pay scale 6500-200-10500, due to ACP.
 i) Kindly guide me as I was Not holding a Deputation/Foreign Service post, but holding a Higher post on Regular Basis, selected through Direct Recruitment & subsequently  I  got my transfer to the Lowerpost on my own request exercising my right of lien,  whether I am entitled for Protection of my Pay  in the HigherPost holding eariler on regular basis, FR 15(a) i,FR22I(a)(3) , or any other rule(S) ? whether  my pay will be fixed at a stage equal to the pay drawn by me in the higher post. If no such stage is available, the pay will be fixed at the stage next below the pay drawn by me  in the higher post .
ii) Whether  the difference may be granted as personal pay to be absorbed in future increment

i shall be highly obliged if the relevant rules in this regard are also quoted while giving reply to my questions.
please help as it is a matter of my career and future.
Also Kindly send  me Court Case Judgements
Asked 3 months ago in Labour from Hyderabad, Telangana
As per the DOPT OM dated 21.10.2009 only the pay in the pay band will be protected (subject to maximum of the lower pay band) and not the Grade Pay. 

2)ncrements will be admissible based on the pay in the band fixed and lower grade pay. 




6/4/2012-Pay-1
Government of India
Ministry of Personnel,Public Grievances and Pensions
Department of Personnel and Training
*******
New Delhi, 5th Nov, 2012
OFFICE MEMORANDUM

Subject: Transfer to lower post under FR 15(a).

	The undersigned is directed to refer to this Department's OM No. 16/6/2001-Estt (Pay-1) dated the 14th February, 2006, read with OM of even number dated the 4th January, 2007, which clarified that on transfer to the lower post/scale under FR I 5(a), the pay of a Government servant holding a post on regular basis will be fixed at a stage equal to the pay drawn by him in the higher grade. If no such stage is available, the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. If the maximum of the pay scale of the lower post is less than the pay drawn by him in the higher post, his pay may be restricted to the maximum under FR
22(1)(a)(3).


2.	Further, it was clarified vide the OM No. No. 13/9/2009-Estt (Pay-1) dated the 21 October, 2009 that 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.	The above Office Memorandum also provides that in case the transfer to a lower post was Made subject to certain terms and conditions then the pay may be fixed according to such terms and conditions.

4.	All Ministries/Departments are requested to revise the Terms/Conditions of such transfers in line with the para 2 above.

(Mukesh Chaturvedi) 
Deputy Secretary to the Government of India


Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
entral Administrative Tribunal - Delhi
Paramjeet Singh vs Union Of India on 17 November, 2014
      

  

  

 		CENTRAL ADMINISTRATIVE TRIBUNAL
			 PRINCIPAL BENCH

			O.A.NO.1406 OF 2013
		New Delhi, this the   17th     day of November, 2014
CORAM:

HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
				AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
				.

Paramjeet Singh,
s/o Sh.S.P.Sharma,
R/o 2139/31, Indian Colony,
Gali No.3, Gohana Rd. Bypass,
Sonepat 				.			Applicant

	(By advocate: Shri Gopal Aggarwal)

Vs.

1.	Union of India,
through Secretary,
Ministry of Defence, 
D/Lab, Sena Bhawan, 
New Delhi.

2.	Commandant, 
505, Army Base Wksp,
Delhi Cantt-110010

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.

5.	Commandant,
	510, Army Base Workshop,
	Meerut Cantt.			..			Respondents
	(By Advocate: Shri Manjeet Singh Reen)
						..
						ORDER
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/-
							        Rs.14,330/-
	  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



AN

 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
entral Administrative Tribunal - Ernakulam
Mrs.Lalithamma Subran vs Union Of India Represented By The ... on 21 October, 2011
      

  

  

                  CENTRAL ADMINISTRATIVE TRIBUNAL
                          ERNAKULAM BENCH

                               O.A.No.205/10

                  Friday this the 21st day of October 2011

C O R A M :

HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER

Mrs.Lalithamma Subran,
W/o.late Mr.K.C.Subran,
LDC, Naval Aeronautical Quality Assurance Service,
(NAQAS), Naval Base, Kochi - 04.                               ...Applicant

(By Advocate Mr.S.Radhakrishnan)

                                 V e r s u s

1.   Union of India represented by the Secretary
     to the Government of India, Ministry of Defence,
     New Delhi.

2.   Chief Controller,
     Naval Aeronautical Quality Assurance Service,
     Naval Base, Kochi - 04.

3.   Deputy Controller, Defence Accounts,
     Area Accounts Office, Navy, CDA Complex,
     Perumanoor, Thevara, Kochi - 15.                      ...Respondents

(By Advocate Mr.Sunil Jacob Jose,SCGSC)

     This application having been heard on 12th October 2011 this
Tribunal on 21st October 2011 delivered the following :-

                                 O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The chronological sequence of events in this case has neatly brought out in the synopsis can be easily borrowed to have a hang of the case. The same is as under :-

28/03/80 The applicant was appointed as a LDC at Records, the Grenadier, an Army establishment.

1988 The applicant was transferred to DSC Records Kannur. 01/11/97 Applicant was promoted as UDC in the scale of 4000-6000/-.

The applicant was granted the 2nd financial upgradation under the ACPS in the scale of 5000-8000/- and her pay was fixed at 01/12/05 Rs.5150/-.

The VI CPC report was implemented and the pay of the applicant was placed fixed at Rs.9580/-, the corresponding pay 01/01/06 of Rs.5150/- with grade pay of Rs.4200/-. 18/01/07 The applicant's husband died.

21/10/08 The applicant was granted unilateral transfer on compassionate ground to HQSNC.

The applicant joined with HQSNC at NAQAS and as per clause 6 (a) (b) of the transfer order the salary she was drawing in the former post under the ACP scheme was protected and she 01/01/09 continued to drawn the same salary.

12/10/09 The NAQAS forwarded the pay fixation proforma of the applicant to the third respondent.

21/10/09 The DOPT issued an OM stating that in case of unilateral transfer the applicant will be granted the grade pay of the lower post. But where the transfer to a lower post is made subject to certain terms and conditions then the pay can be fixed according to such terms and conditions.

30/11/09 Based upon the subsequent OM dated 21.10.2009, the salary of the applicant was reduced w.e.f 1.1.2009, that too without taking into account the terms and conditions in the transfer order.

18/12/09 The second respondent issued the pay fixation order of the applicant in the reduced pay that too in PB-I with grade pay of Rs.1900/-.

08/01/10 The applicant submitted a representation against the illegal reduction of pay.

08/01/10 The second respondent recommended the representation of the applicant and forwarded to the third respondent. 20/02/10 The third respondent relying on OM dated 21.10.2009 refused to correct the mistake.

23/02/10 The second respondent ordered reduction of pay and recovery of an amount of Rs.31,068/- from the salary of the applicant from the month of March 2010 onwards.

2. The claim of the applicant is as contained in para 8 (a) to (e) and the same are as under :-

(a) Call for the records connected with the case.
(b) Declare that the pay fixation by the NAQAS as per Annexure A-3 dated 12.10.2009, w.e.f 1.1.2009 is perfectly legal and valid.
(c) Declare that Annexure A-4, Annexure A-5, Annexure A-8 and Annexure A-9 are patently illegal and not sustainable in the eye of law.
(d) To set aside Annexure A-4, Annexure A-5, Annexure A- 8 and Annexure A-9 orders passed by the respondents.
(e) Direct the respondents to continue to pay the salary of the applicant as fixed in Annexure A-3 with all consequential and future revisions.
3. At the time of initial admission hearing, an interim order was passed that Annexure A-5 and Annexure A-9 orders whereby the applicant's pay had been drastically reduced and recovery ordered had been stayed.

4. The contentions of the respondents as per the reply is that the applicant sought unilateral transfer and such unilateral transfer from a higher post to a lower post has to bring in its train the consequence of the applicant being paid the pay scale and grade pay meant for the lower post only, though pay protection as drawn in the higher post has been guaranteed. According to the respondents, the pay of the individual will be fixed by giving the benefits of completed years of service rendered in the previous post. During the service the applicant had been promoted to UDC on 1.11.2007 and was granted second financial upgradation under the ACP scheme on 1.12.2005. The pay of the applicant has been protected in the lower grade with grade pay of LDC as she has been reverted to LDC on compassionate transfer on her own request.

5. 3rd respondent has filed his separate reply in which he has referred to the terms and conditions as mentioned by Additional Directorate General of Manpower, in the Adjutant General's Branch of Ministry of Defence vide letter No.15984/Oct/2008/MP-4 (Civ) (b) dated 21.10.2008 which clearly states that in cases where posting/transfer involve reduction in the grade/trade, the pay of the individual will be fixed by giving the benefits of completed years of service rendered in the previous post. According to the 3rd respondent, the applicant's pay was fixed at Rs.10870/- with grade pay of Rs.1900/- which is in consonance with the aforesaid letter of Adjutant General's Branch.

6. The applicant has filed her rejoinder emphasizing that the grade pay of Rs.4200/- paid to the applicant prior to her transfer was under the ACP Scheme taking into account the total services rendered by her and the same is not as a result of her promotion as UDC or Assistant. In addition, as regards transfer to a lower post, where such transfer is made subject to certain terms and conditions, it may be fixed according to such terms and conditions. Further, in the rejoinder, the applicant has contended that the erstwhile ACP Scheme now stands replaced by MACP Scheme which states vide para 6 thereof that in the cases of all the employees granted financial upgradation under ACP Scheme till 1.1.2006 their revised pay will be fixed with reference to the pay scale granted to them under the ACP Scheme.

7. Counsel for the applicant after narrating the brief facts of the case straightway referred to the terms and conditions of transfer vide order dated 21.10.2008 (Annexure A-1). The terms and conditions of transfer as contained in this annexure are as under :-

6. The pay of the individual will be fixed in accordance with the following provisions of CPRO 82/80 :-
(a) In cases where posting/transfer involve no change in trade/grade, the service rendered prior to such posting/transfer will be treated as continuous and the individuals may be allowed to draw the last pay drawn. The date of increment will remain unaltered.
(b) In cases where posting/transfer involve change in trade/grade, the service rendered in the previous post will be treated as continuous. In such cases the pay of the individual will be fixed in the new pay scale at the stage equal to the pay drawn in the old pay scales or if there is no such stage, at the stage next below that pay, the difference will be treated as personal pay to be absorbed in the next increment. The service rendered on the pay last drawn in the old pay scale will count towards the next increment in the new pay scale.
(c) In cases where posting/transfer involve reduction in the grade/trade the pay of the individual will be fixed by giving the benefit of completed years of service rendered in the previous post.
(d) When the appointment is made to a new post and the maximum pay in the time scale of that post is less than his quasi-permanent/substantive pay in respect of the old post, the individual will draw that maximum as initial pay.
8. Counsel argued that vide condition at (c) above, the benefit of completed years of service rendered in the previous post shall be taken into account. This then means that the applicant's total service in the previous post when taken into account, would make her entitled to the grant of ACP Scheme prior to 1.9.2008 and the benefits of MACP Scheme posterior to 1.9.2008. As such, the grade pay of the applicant cannot be static at Rs.1900/- meant for LDC. It has to be presumed that the applicant  is deemed to have been in the present Department from her initial date of appointment and the benefits under the ACP Scheme should percolate to her. This would render the pay fixation exactly at par with Annexure A-2 which stipulates the pay at Rs.10870/- in the pay scale of Rs.9300-34800 plus grade pay of Rs.4200/-. Counsel for the applicant further submitted that in all other cases of transfer as contained vide Annexure A-1, the pay scale and the grade pay as originally fixed had not been disturbed and the applicant alone has been singled out in whose case the pay fixation was deferred substantially for a long time and taking into account the orders that were passed on 21.10.2009, the applicant's pay has been wrongly fixed. The counsel also relied upon the decision of the Jabalpur Bench in O.A.859/07 vide order dated 9.2.2009 wherein the Tribunal has held that in unilateral transfer the applicant's pay could not be reduced and refixed to his disadvantage.

9. Counsel for the respondents fairly submitted that there is no dispute to the rule position. That in respect of unilateral transfer, the terms and conditions attached to such transfer should follow.

10. Arguments were heard and documents perused. There is absolutely no doubt in our mind that when the terms and conditions of transfer include that where posting involves reduction in the grade, the pay of the individual will be fixed by giving the benefit of completed years of service rendered in the previous post. In the instant case, the applicant was appointed as LDC in 1980 and she was awarded the second financial upgradation in 2005 (completion of 24 years of service). The pay scale of Rs.5000-8000 in  which her pay was fixed in 2005 afforded the applicant the grade pay of Rs.4200/- with effect from 1.1.2006. On the day when the applicant joined the Headquarters, Southern Naval Command, in 2009, she was drawing the aforesaid grade pay. The scale of pay in the Pay Band coincided and the same is Rs.9300-34800. The applicant has been rightly placed in so far as pay scale is concerned. If the 24 years of service of the applicant is taken into consideration certainly her entitlement to second ACP cannot be denied. Thus, notwithstanding the fact that the applicant today is holding the post of LDC she is entitled to the aforesaid grade pay of Rs.4200/- by virtue of the clause stipulated as a part of the terms and conditions of her transfer.

11. Thus, the O.A is allowed. The respondents are directed not to truncate the pay or grade pay of the applicant which shall continue to be paid in accordance with Annexure A-2/Annexure A-3 orders. Annexure A-5 and Annexure A-9 impugned in the O.A stand quashed and set aside. Under the circumstances, there shall be no order as to costs.


                  (Dated this the 21st day of October 2011)




K.NOORJEHAN                                               Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER                                  JUDICIAL MEMBER

asp

Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
i) The option to rejoin your parent department was exercised by you on your own volition specially fully knowing the consequences of losing all the privileges that were available in the new post including those of the higher cadre and corresponding pay scale.  This act will disentitle you to claim protection on the basis of new employment which you had discarded for rejoining the previous employment.  However this may not be an end by itself, you can move a representation expressing your satisfactory reasons and the circumstances for reverting to the parent department and may see to approve the refixation of your pay as per the new employment salary structure, you may get a respite or may be turned off. 




ii) Since you have been reinstated to your original ost of the previous employment, you may be entitled to all the privileges and concessions available in that post




For obtaining judgments you may engage the services of a lawyer privately. 
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
5.0 on 5.0
This DOPT Order is available.
As my deptt is not considering,Can you please send me a copy of Hon'ble Court  Judgement of Supreme Court/CAT etc, insimilar situation where  the Deptt not given Pay protection erronously.

You may peruse the DOPT orders fully and see if there are any chance for rescue to your position.
You may consult a labor law/service law practicing lawyer in the local who shall lcit al the desire information and suggest steps to be followed in this regard on all further issues as well. 
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
5.0 on 5.0

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