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Judgment
ORDER
Heard Shri Pradeep Chandra Joshi, learned counsel for the applicant and Shri N.P. Singh, learned counsel for the respondents.
The instant original application has been filed seeking following relief:
“A. This Hon'ble Tribunal may be pleased to quash the order dated 11.06.2012 (Annexure No. 1) by which the respondent have illegally and arbitrarily decided that (1) In the case of employees who have been granted advance increment (s) between to 01.01.06 and 31.08.under the Revised Pay Rules 2008, such employees will only be granted annual increments on 1st of July No advance increments, every year. corresponding to the advance of increments granted under the pre-revised pay scale will be granted to them during the period between 01.01.2006 and 31.08.2008 while making their due drawn statement. During this period, advance increment will be given as per the fixed amount approved by the Ministry of Finance. mentioned that the advance increment given could be treated element from distinct It was also SO as a separate basic pay. No increment/ allowances will be earned on this element of advance increment. In cases where more than one advance increments have already been paid from 01.01.2006, the same may be restricted to only one.
B. This Hon'ble Tribunal may be pleased to quash the definition of increments made by the definition of Central Administrative Tribunalincrement in the Report of Pay Commission as defined by the Pay Commission and it is not for the Council the respondents being against to do so and the Council has no power or define the to dilute 'increment' in a different manner than the authority or one provided under the Rules. In the 5th Pay Commission Report, the definition of the increment was "a fixed amount in respect to pay scale and on the increment In other words, D.A. admissible." was every year the increment is provided of a fixed amount. Similarly, in 6th Central Pay Commission Report the definition has been changed by the Commission which is 3% of the basic pay (i.e. Previous Basic Pay + 3% of the previous basic pay) become next basic pay i.e. the increment amount is variable every year. In the ICAR (Council) system additional increments have been granted to Technical personnel in respect to Assessment promotion, which has been called as advance increment. In pursuance of this the applicant was granted three advance increments since 2005 till further promotion. According to the 6th CPC, every year one increment i.e. 3% of the basic pay has been admissible whereas he has been granted three additional advance increments therefore he is entitled to one increment i.e. 3% of the basic pay (usual increment admissible by 6th Pay Commission) +3 increment say advance increment granted by ICAR (one increment 3% of the basic pay or 3 increment 3 x 3% of the basic pay) which becomes 3% + 9% 12% of the basic pay whereas this has not been granted to him while fixing his pay in new pay band system.
C. This Hon'ble Tribunal may also be pleased to quash the pay fixation done by the respondents as a result of decision taken on 11.06.2012.
D. This Hon'ble Tribunal may be pleased to issue direction to the respondents to extent all the consequential benefits as a result of quashing of the impugned order dated 11th June, 2012 (Annexure No. 1 & 2) with all the consequential benefits of increments including deduction recovering increments paid and recovery of arrears already paid in excess 01.01.2006 to 31.08.2008 and refund of recovery, if any, already made with interest thereon by holding that applicants are entitled to all the consequential benefits of advance increments by treating the same as fledged increments full and not a mere formality.
E. recovery of arrears already paid in excess 01.01.2006 to 31.08.2008.
F. This Hon'ble Tribunal may be pleased to issue any other writ,order or direction in the nature of which this Hon'ble Court and proper in the may deem fit circumstances of the present case.
G. Award costs of the application in favour of the applicants.
H. The applicants may kindly be allowed to file a joint Original Application.
Perusal of the record shows that the Delay Condonation Application filed along with the present OA is yet to be decided. The OA itself has been filed in the year 2013. Having regard to the reasons assigned in the affidavit annexed with the Delay Condonation Application, and finding sufficient cause shown therein for the delay in approaching this Tribunal, the Delay Condonation Application is hereby allowed to decide the matter on merit.
The brief facts of the case as narrated in the OA are that the applicants, who were working in the highest grade of T-9 under the Technical Service Rules of the Indian Council of Agricultural Research (ICAR), were granted advance increments on the basis of the prescribed assessment/reassessment scheme. They are aggrieved by the order dated 11.06.2012 issued by the Deputy Secretary (TS), ICAR, followed by the endorsement dated 23.07.2012 and consequential orders of pay re-fixation, whereby the advance increments earlier granted to them were treated as an element of pay and their pay was consequently reduced, resulting in substantial financial loss and recovery of the alleged excess amount from their salaries. The applicants contend that the impugned action is contrary to the provisions of the ICAR Technical Service Rules and the Central Civil Services (Revised Pay) Rules, 2008, and has been taken without issuing any notice or affording them an opportunity of hearing. It is further contended that the subsequent approval of the Governing Body of ICAR cannot validate the impugned order retrospectively and that recovery from the applicants, in the absence of any fraud or misrepresentation on their part, is illegal. Aggrieved by the reduction of their pay and recovery of the alleged excess payment, the applicants have filed the present Original Application seeking appropriate relief.
The respondents, in their counter reply, have submitted that the Indian Council of Agricultural Research (ICAR) is a society registered under the Societies Registration Act and that its Governing Body is competent to frame and amend the Technical Service Rules. It is stated that under Rule 6.1 of the ICAR Technical Service Rules, technical personnel are eligible for merit promotion to the next higher grade or grant of advance increment on the basis of assessment of their performance, irrespective of availability of vacancies. The respondents contend that, at the time of implementation of the Sixth Central Pay Commission recommendations, the rate of advance increment had not been decided and, after consultation with the Ministry of Finance and approval of the competent authority, the Council issued its decision vide letter dated 11.06.2012, which was subsequently approved by the Governing Body in its 226th meeting held on 14.02.2013 and incorporated in the Technical Service Rules by way of amendment with retrospective effect from 2006. According to the respondents, the earlier provision of three advance increments resulted in benefits substantially higher than those available on promotion and was therefore rationally modified to one advance increment. It is further contended that the Governing Body had the power to amend the Rules retrospectively and that no vested right of the applicants was unlawfully taken away. The respondents have also submitted that the applicants cannot claim parity with employees of the Administrative Service, as the Technical and Administrative Services constitute separate streams governed by different promotional mechanisms, the former being based on merit assessment and the latter on availability of vacancies.
By way of filing rejoinder, the applicants submit that they are employees in the T-9 category of IVRI and are governed by the Technical Service Rules (TSR) approved by the Governing Body of ICAR, under which three advance increments were granted on the basis of assessment. It is contended that the impugned orders/circular dated 11.06.2012, 23.07.2012 and 24.12.2012, whereby the benefit Central Administrative Tribunalwas restricted to one increment and recovery of alleged excess payment from 01.01.2006 was directed, were issued without prior approval of the Governing Body and were subsequently given retrospective approval, which is arbitrary, illegal and contrary to the prescribed procedure. The applicants further contend that the retrospective recovery causes undue financial hardship, particularly to employees nearing or having already attained retirement, and is violative of Articles 14 to 18 of the Constitution. Relying upon the judgment of the Hon’ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih (White Washer), (2015) 4 SCC 334, it is submitted that recovery of excess payments made for a period exceeding five years is impermissible in the circumstances, and therefore the impugned action deserves to be set aside.
I have considered the rival submission and gone through the entire records.
Learned counsel for the applicants submits that the applicants, being employees in the T-9 category of IVRI, were granted three advance increments under the Technical Service Rules (TSR), approved by the Governing Body of ICAR, on the basis of the prescribed assessment/reassessment scheme, and the said increments had become part of their pay and constituted a vested benefit. It is contended that the impugned order dated 11.06.2012, endorsement dated 23.07.2012 and consequential orders, whereby the advance increments were treated separately from the pay and the benefit was restricted to one increment, resulting in reduction of pay and recovery of the alleged excess payment with retrospective effect from 01.01.2006, are contrary to the TSR, the applicable Pay Commission provisions and the established practice followed by ICAR. Learned counsel further submits that the impugned decision was taken without prior approval or consultation with the Governing Body of ICAR and without affording any opportunity of hearing to the applicants, and therefore suffers from violation of the principles of natural justice, non-application of mind and arbitrariness. It is argued that the respondents could not retrospectively take away a benefit already validly granted and enjoyed by the applicants, particularly in the absence of any fraud or misrepresentation on their part. Reliance has been placed upon the judgments in the State of Punjab & Ors. v. Rafiq Masih (White Washer), (2015) 4 SCC 334, and the judgment of the Central Administrative Tribunal, Principal Bench, in O.A. No. 862/2014, Kay Prasad v. Union of India & Ors. decided on 08.12.2015, to contend that a beneficial service provision is required to be interpreted liberally, vested rights cannot be retrospectively withdrawn in an arbitrary manner, and recovery of excess payment made without misrepresentation, particularly after a considerable lapse of time, is impermissible. It is, therefore, submitted that the impugned orders and consequential recovery are arbitrary, illegal, discriminatory and contrary to the governing rules and established procedure, and are liable to be quashed, with consequential restoration of the applicants’ pay and benefits. Hence prayer was made to allow the OA.
Learned counsel for the respondents submits that the applicant, having been promoted to T-9 on 26.10.2005 and being governed by the New Technical Service Rules (TSR), was entitled to only one advance increment with effect from 01.01.2006. It is contended that, pursuant to the ICAR Circular dated 11.06.2012, issued in consultation with the Ministry of Finance, only one advance increment was permissible and any additional increment was to be treated as a separate element distinct from basic pay, without earning further increments or allowances thereon. The said position was subsequently incorporated in the TSR with the approval of the Governing Body of ICAR in its 226th meeting held on 14.02.2013 and clarified by Circular dated 22.04.2013, as well as by subsequent communication dated 05.07.2023. Learned counsel further submits that recovery of excess payment made on account of grant of more than one advance increment was specifically directed vide ICAR Central Administrative TribunalCircular dated 06.02.2014, except where stayed by a competent court, and the interim protection granted to the applicant was vacated by this Tribunal on 04.11.2016 by a detailed and speaking order. It is also contended that the applicant has not challenged any specific recovery order but has only challenged the Circular dated 11.06.2012, which itself is not a recovery order, and that the judgment relied upon by the applicant is distinguishable and inapplicable to the technical cadre. The respondents, therefore, submit that the applicant is entitled to only one advance increment under the applicable TSR and that the Original Application, being devoid of merit, is liable to be dismissed with costs.
I have considered the rival submissions and gone through the entire records.
Before discussing the submissions raised across the BAR, it will be useful to quote the operative portion of the judgment and order passed by the Principal Bench of this Tribunal in OA no. 862/2014 (Kay Prasad vs. Union of India). The same is as under:-
11.2Admittedly, the applicant was granted three advance increments with effect from 1.1.2007 under the provisions of the Technical Service Rules, vide office order dated 17.12.2008 (Annexure A/5). The excess amount paid to the applicant and other similarly placed personnel in the Technical Service of ICAR was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. The excess amount became recoverable from them only in terms of the circulars dated 11.6.2012 and 22.4.2013, ibid, by which Rule 6(1) and paragraph 10 of Appendix III for Categories I, II and III under Rule 6.13 of the Technical Service Rules were amended with effect from 1.1.2006. Therefore, as per the ruling given by the Hon’ble Supreme Court in paragraph 12 (iii) of the judgment in State of Punjab & others, etc. Vs. Rafiq Masih (White Washer), etc. (supra), the recovery of the excess amount from the applicant and other similarly placed personnel in the Technical Service of ICAR, as ordered by the respondents in June 2012 and April 2013, is impermissible in law.
12.In the light of our above discussions, while upholding all other provisions of the circulars dated 11.6.2012 and 22.4.2013 (Annexure A/1 and Annexure A/2), we quash the decision of the respondents to recover the excess amount from the applicant and other similarly placed personnel in the Technical Service of the Central Administrative TribunalICAR, as contained in the said circulars. Consequently, the respondents are directed not to recover the said excess amount from the applicant and other similarly placed personnel in the Technical Service of the ICAR.
13.In the result, the O.A. is partly allowed to the extent indicated above. No costs.
In view of the above, the issue involved in the present O.A. stands substantially covered by the judgment of the Principal Bench of this Tribunal in O.A. No. 862/2014, Kay Prasad v. Union of India & Ors., wherein, while upholding the other provisions of the ICAR Circulars dated 11.06.2012 and 22.04.2013, the decision of the respondents to recover the excess amount arising out of grant of more than one advance increment was held to be impermissible in law, particularly in the absence of any misrepresentation or fraud on the part of the employees and having regard to the principles laid down by the Hon’ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih (White Washer), (2015) 4 SCC 334. The applicants in the present case are similarly situated employees of the Technical Service of ICAR and there is nothing on record to show that the excess payment was occasioned by any fraud or misrepresentation attributable to them. Accordingly, without entering into or disturbing the pay fixation effected pursuant to the impugned circulars, the applicants are entitled to protection against recovery of the alleged excess amount.
Consequently, the Original Application is partly allowed. The respondents are directed not to recover from the applicants any alleged excess amount paid to them on account of grant of advance increments, and if any such amount has already been recovered, the same shall be refunded to the applicants in accordance with rules. It is, however, made clear that this order shall not affect or reopen the pay fixation of the applicants made pursuant to the ICAR Circular dated 11.06.2012 or the subsequent amendments/clarifications, and no direction is being issued in respect of the pay fixation. No order as to costs.