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Judgment
Per: Hon’ble Shri Jayesh V Bhairavia, Member (J)
The grievance of the applicant is that despite having retired from the services of the respondents’ department on 31.05.2022, when he was neither under suspension nor facing any departmental or criminal proceedings, the respondents have failed to release his full and final pensionary and other retiral dues, including regular pension, commutation, balance gratuity and leave encashment, and have continued to grant him only provisional pension. The respondents have withheld his retiral benefits and insisted upon recovery of Rs.7,74,490/-towards alleged excess payment on account of III MACP, besides requiring him to furnish a fresh undertaking for such recovery, notwithstanding the applicant's earlier undertaking and the judicial orders/directions for release of full pension and gratuity.
By filing the present OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-
“A. Your Lordships may be graciously pleased to call upon the official respondents herein to place before this Hon'ble Tribunal the entire original departmental file / noting sheet, etc., which gave rise to the issuance of the impugned documents at Annexure-A/l to Annexure-A/6 hereto;
B. Upon the perusal of the said files/noting sheet, etc., your Lordships may be further graciously pleased to:-
B-1 quash and set aside the impugned (i) Order bearing No.AHM/21 (2)/Provisional Pension/LCV/2022-Admn/244 dated 04.08.2022 at Annexure-A/l hereto, (ii) Communication bearing No.AHM/21(LCV)/2022-S/256, dated 29.08.2022 at Annexure A/2 hereto, (iii) Communication bearing NO.PAO/AIR/MUM/PN-Pro. Pen/1649, dated 10.10.2022, at Annexure-A/3 hereto (iv) Communication bearing NO.PAO/AIR/MUM/Provisional Gratuity/1651, dated 10.10.2022 at Annexure-A/4 hereto (v) Communication bearing File No.A-11019/18/2023/GRC/559, dated 26.04.2023 at Annexure-A/5 hereto and (vi) Communication bearing No.AHM/21 (LCV/Pension/2022-S/61, dated 27.04.2023 at Annexure-A/6 hereto, holding and declare the aforesaid impugned documents and the decisions conveyed therein to be ex facie deliberately contumacious, illegal, arbitrary, unreasonable, unfair and contrary to ratio laid down by the Hon'ble Principal Bench's Final Order dated 05.07.2022 in OA No.2629/2021 and also the consequent communication bearing F.No.V-11013/07/2021-BAE, dated 06.10.2022 issued by the Ministry of Information & Broadcasting, GoI, New Delhi to the Chief Controller of Accounts, Ministry of I&B, New Delhi, who in turn pleased to issue an Office Memorandum bearing No.G-11502/Pr.AO/I&B/Court Cases/2022-23/l018, dated 07.10.2022 to all Zonal Heads in AIR to comply with the ruling of the Hon'ble Principal Bench in the aforesaid OA.
B-2 Issue appropriate directions to the respondents no.4, 5, 6 & 7 herein commanding them to forthwith issue (i) regular Pension Payment Order (PPO) to the applicant herein granting him full/final pension with interest thereon @ 18% p.a., (ii) release to the applicant herein the sum of Rs.l,84,840/- (alongwith interest thereon w.e.f. 01.06.2022 at the rate of 18% p.a.), (iii) release all other retiral dues as admissible under the rules, with interest thereon @ 18% p.a. and (iv) permanently restrain themselves, their officers, representatives, agents, etc., from seeking to recover from the applicant herein the sum of Rs7,74,490/- being the alleged excess amount allegedly recoverable from the applicant on account of III MACP granted to him on 28.03.2012.
B-3 Issue further directions to all the respondents herein that in the event of the outcome of the litigation being W.P.(C) No.9890/2019, presently pending before the Hon'ble High Court of Delhi, being against the interests of the applicant herein, then the competent authority in the respondent department shall grant III MACP to the applicant herein w.e.f. 15.01.2018 and adjust the amount of arrears of salary, arising therefrom, against the aforesaid amount of Rs.7,74,490/-.
B-3 Issue further directions to the Chief Executive Officer, Prasar Bharati, New Delhi to inquire as to who is/are responsible for the continued delay in the matter of release of regular pension and other retiral dues to the applicant even after the issuance of the instructions issued by the Chief Controller of Accounts, MIB, New Delhi on 07.10.2022 and initiate appropriate departmental disciplinary against the said officer/s who are found to be solely responsible for the aforesaid delay in the matter of release of regular pension and other retiral dues to the applicant herein.
C. grant such other and further relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case.”
Pursuant to notice issued by this Tribunal, the respondents have filed their reply to which the applicant has also filed his rejoinder.
FACTS OF THE CASE
Initially, the applicant had joined the services of the Government of India as a Technician in All India Radio at Ahmedabad on 16.01.1988. Thereafter, the applicant came to be granted promotion to the post of Senior Technician (Group ‘B’ Non Gazetted) on 26.03.1992 and was posted in the said capacity in SPT, AIR Rajkot. Having served at SPT, AIR, Rajkot till 30.04.1988, the applicant came to be transferred and posted as Senior Technician in AIR, Ahmedabad and he took over the charge of the said post at AIR, Ahmedabad on 01.05.1998. In the year 2003, the applicant was again transferred to Rajkot and posted as Sr. Technician at SPT, AIR, Rajkot on 10.02.2003. After serving at Rajkot for more than a year, the applicant came to be transferred back to Ahmedabad and posted as Sr. Technician in AIR, Ahmedabad on 01.12.2004.
While serving in AIR, Ahmedabad, the applicant came to be granted 2nd Financial Up-gradation under the Modified Assured Career Progression Scheme (in short ‘MACP Scheme’) retrospectively w.e.f 01.09.2008 with the grant of higher Grade Pay of Rs.4600/-, vide Office Order dated 23.04.2010 issued by AIR, Ahmedabad (Annexure-A/7 refer). Thereafter, the applicant came to be transferred and posted as Senior Technician at LPT, AIR, Dhandhuka on 01.09.2010.
In the year 2012, while serving in Dhandhuka, the applicant came to be granted 3rd Financial Up-gradation under the MACP Scheme retrospectively w.e.f. 28.03.2012 vide Order dated 08.10.2012 issued by the Office of the Addl. DG, (ENGG)/(WZ), Mumbai (Annexure-A/8 refer) and the consequential Pay Fixation Order dated 16/ 17.09.2013 issued by the erstwhile DDMC, AIR, Bhavnagar (Annexure-A/9 refer).
In the year 2015, when the applicant was drawing the grade pay of Rs.4800/- by virtue of the grant of 3rd MACP retrospectively w.e.f. 28.03.2012, the Prasar Bharati Hqrs., New Delhi, vide Circular/Letter dated 12.01.2015 (Annexure A/10 refer) addressed to all Zonal Heads of Prasar Bharati, had advised that in view of the DOP&T's ID Note (Annexure A/11 refer) clarifying & interpreting the illustrations (i), (ii) & (iii) of the MACP Scheme, the authorities were called upon to ensure strict compliance of the aforesaid clarification & interpretation of the DOP&T Note and that the financial up-gradations, if any, wrongly granted, may be rectified respectively.
On coming to know of the aforesaid Circular/Letter as also the directives given therein by the Prasar Bharati Hqrs., the Association of Radio & Television Employees' Association had approached the Principal Bench of this Tribunal by filing Original Application being OA No.3035 of 2015 challenging the aforesaid Circular/Letter dated 12.01.2015. In the said OA proceedings, the Principal Bench of this Tribunal vide its Notice and Interim Order dated 14.08.2015 (Annexure-A/12 refer) was pleased to grant interim relief in favour of the aforesaid Association (meaning thereby its members) by directing that no recovery shall be made from the applicant till next date. In pursuance of the aforesaid Interim Order dated 14.08.2015, the DG, AIR, New Delhi, vide its Communication dated 19.08.2015 (Annexure-A/13 refer) had circulated the aforesaid interim order of the Principal Bench of this Tribunal to all the Zonal Heads.
In the year 2016, pending the filing of the written statement in the aforesaid OA proceedings, DG, AIR, New Delhi, vide its communication dated 05.01.2016 (Annexure-A/14 refer), had advised the lower formations to ensure the compliance of the DG AIR's letter dated 12.01.2015. In pursuance of the aforesaid directive from the DG AIR Hqrs., the Prasar Bharati, West Zone, Mumbai, vide its Revised III MACP Order for Senior Technicians dated 17.11.2016 (Annexure-A/15 refer) had withdrawn the III MACP granted to the applicant earlier. It is stated that even going by the interpretation of the MACP Scheme by the DoP&T and consequently adopted/followed by the Ministry of Information & Broadcasting, the applicant ought to have been granted III MACP on his completion of 30 years of regular service in the month of January 2018. Nevertheless, the same was not granted to the applicant. There was no occasion for the applicant to raise any grievance in this behalf in the year 2018 or ever thereafter inasmuch as the local authorities in AIR, Ahmedabad, did not implement the aforesaid Revised Order dated 17.11.2016 and consequently the III MACP granted to the applicant in 2012 was not being withdrawn till his retirement on 31.05.2022 and in the aforesaid background the applicant was also not aware of the issuance of the aforesaid Revised Order dated 17.11.2016. 4.6 As a matter of fact, the aforesaid OA came to be allowed by the Principal Bench, vide its Final Order dated 08.08.2018 In OA No.3035/2015 (Annexure-A/16 refer). However, in the writ proceedings initiated by DO, AIR, New Delhi, before the Hon'ble High Court of Delhi, the aforesaid final order dated 08.08.2018 was set aside by the Hon'ble High Court of Delhi and case was remanded back to the Principal Bench of this Tribunal vide Hon'ble High Court's Order dated 01.02.2023 in Writ Petition (C) No.1272/2023 (Annexure-A/17 refer). The aforesaid remanded OA No.3035/2023 was pending before the Principal Bench of this Tribunal and the same was scheduled for hearing on 10.01.2014 at the behest of the Prasar Bharati, as is evident from the interim order dated 22.11.2023 in OA No.3035/2018 (Annexure-A/18 refer).
In so far as the case of the applicant is concerned, as already pointed out hereinabove, no recovery was made from the applicant till his retirement on 31.05.2022, in pursuance of the directives issued by the Prasar Bharati in its Circular/Letter dated 12.01.2015, referred to hereinabove, in view of the stay granted by the Principal Bench of this Tribunal vide Interim Order dated 14.08.2015 passed in OA No.3035/2015, as also the consequent communication dated 19.08.2015 issued by DG, AIR, New Delhi, referred to hereinabove.
In the year 2020, in pursuance of the order dated 11.03.2014 issued by the DG, AIR, New Delhi, extending the benefit of notional pay fixation to the post of Technicians and Senior Technicians enhancing their pay scale at par with Lighting Assistants w.e.f. 01.07.1983 in the wake of the ruling of the Hon'ble Supreme Court dated 10.01.2013 in SLP (Civil) No.33048, the applicant was issued a pay fixation order dated 03.07.2020 (Annexure-A/19 refer). It is stated that the aforesaid pay fixation, done in the wake of the Supreme Court's ruling, had nothing to do with the withdrawal of the III MACP. This is not all. While calculating and fixing the pay of the applicant in July 2020, the respondents’ authorities did not give effect to the aforesaid Revised Order dated 17.l1.2016 whereby the III MACP granted to the applicant was withdrawn. If the respondents at that point of time in 2020 had withdrawn the III MACP in pursuance of the aforesaid Revised Order dated 17.11.2016, the applicant would have come to know of the aforesaid Revised Order dated 17.11.2016 and he could have taken appropriate steps demanding the grant of III MACP to him from January 2018 inasmuch as by that time in January 2018, the applicant had duly completed 30 years of regular service in Prasar Bharati. That was also not done by the respondents.
Be that as it may, as the applicant was due to retire from the services of the Prasar Bharati on and from 31.05.2022 on his attaining the age of superannuation, the applicant was called upon orally on 19.01.2022 by his officer dealing with pension cases to give in writing to the effect that his pension papers might be prepared after giving effect to the withdrawal of his III MACP and that from his salary on instalments basis. Thus, it was for the first time that the applicant was made aware of the issuance of the aforesaid Revised Order dated 17.11.2016 by the Addl. DG (WZ), AIR, Mumbai whereby the applicant's III MACP was withdrawn. Accordingly, the applicant has submitted a formal letter dated 19.01.2022 (Annexure-A/20 refer) in this behalf to the competent authority viz. DDG(E), AIR, Ahmedabad, with a genuine hope and expectation that upon his retirement, he would be released regular pension, commutation, Gratuity, Leave Encashment and other retiral dues. As a matter of fact, at that relevant point of time on 19.01.2022, none of the authorities in Prasar Bharati including the aforesaid official dealing with pension cases in AIR Ahmedabad has bothered to bring to the notice of the applicant that the applicant on his retirement would be released only provisional pension in view of the directives issued by the Ministry of Information & Broadcasting in the month of August 2021. In other words, the applicant was totally kept in dark about the aforesaid decision of the Min. I&B to grant only provisional pension till the final outcome of the pending litigation on the subject.
Immediately a month thereafter, on his coming to know of the aforesaid decisions of the Min I&B dated 18.08.2021 and 19.08.2021 from one of his colleagues serving in AIR, Ahmedabad, the applicant has submitted a detailed representation dated 24.02.2022 (Annexure-A/21 refer) to the DDG, AIR, Ahmedabad, informing the said authority of his forthwith withdrawal of his previous application dated 19.01.2022 and the same be treated as NULL, VOID & REVOKED.
Nevertheless, the Pay & Accounts Officer In AIR, Mumbai, vide his communication dated 19.04.2022 (Annexure-A/22 refer) has called upon the AIR, Ahmedabad, to prepare and submit to PAO, Mumbai, the provisional pension case of the applicant.
On 31.05.2022, the applicant has retired from the services of the Prasar Bharati on his attaining the age of superannuation, vide Order dated 31.05.2022 (Annexure-A/23 refer) issued by the AIR, Ahmedabad. On 31.05.2022, the applicant was issued Last Pay Certificate dated 31.05.2022 (Annexure-A/24 refer) wherefrom it will be appreciated that no recovery whatsoever was made from his salary in pursuance of the aforesaid withdrawal of III MACP ordered on 17.11.2016.
Since the applicant was not being issued any P.P.O nor was being released any retiral dues such as regular Pension, Commutation, Gratuity, Leave Encashment, etc., even after his retirement, the applicant had to submit a formal written representation dated 13.06.2022 (Annexure-A/25 refer), addressed to the competent authority in AIR, Ahmedabad, requesting for the forthwith release of all his retiral dues. In his aforesaid representation dated 13.06.2022, the applicant had undertaken to abide by the outcome of the pending litigations and to refund the excess payment, if any, made to the applicant.
For a couple of months, no response was forthcoming from any of the respondent authorities. It was only on 04.08.2022 that the AIR, Ahmedabad, vide its communication dated 04.08.2022 (Annexure-A/26 refer), addressed to the applicant that in terms of the provisions contained in Rule 64 of CCS (Pension) Rules,1972, the competent authority has accorded approval for the grant of Provisional Pension @ Rs.41,800/- p.m. w.e.f. 01.06.2022 and release of a sum of Rs.16,63,556/- being 90% of the admissible gratuity. In the said communication, the applicant was further informed that a sum of Rs.7,74,490/- is to be recovered from the aforesaid gratuity of Rs.16,63,556/-. Apart from issuance of the aforesaid communication, a formal Order dated 04.08.2022 granting the aforesaid Provisional Pension and 90% Gratuity was issued to the applicant. Immediately upon his receipt of the aforesaid two documents, the applicant has submitted a formal written representation dated 16.08.2022 (Annexure-A/27 refer) to AIR, Ahmedabad, raising serious objection to the proposed recovery of the aforesaid sum of Rs.7,74,490/- from the aforesaid 90% Gratuity amount. In response thereto, the authority in AIR, Ahmedabad, vide its communication dated 16.08.2022 (Annexure-A/28 refer), has informed the applicant that its previous communication dated 04.08.2022 with regard to the proposed recovery of Rs.7,74,490/- stands amended in the manner as set out in the aforesaid communication dated 04.08.2022. Again, on 29.08.2022, the aforesaid Authority in AIR, Ahmedabad has issued a further communication dated 29.08.2022 in supersession of its previous communication dated 04.08.2022.
In the interregnum, in a joint OA being OA No.2691/2021 filed before the Principal Bench of this Tribunal, by 15 retired/serving technicians in AIR challenging the Circular/Letter dated 19.08.2021 issued by the Office of the Controller of Accounts (CCA), Min. of I&B, New Delhi, the Principal Bench of this Tribunal, vide its Final Order dated 05.07.2022 (Annexure-A/29 refer),was pleased to quash and set aside the aforesaid Circular/Letter dated 19.08.2021 and directed the AIR authorities to release full pension & gratuity to those already retired from Prasar Bharati. In this nature of the situation, the Ministry of Information & Broadcasting, GoI, New Delhi, vide its communication dated 06.10.2022 (Annexure A/30 refer), addressed to the Chief Controller of Accounts, Ministry of I&B, New Delhi, was pleased to advise the latter that in supersession of the Ministry's Letter dated 18.08.2021, the CCA might issue necessary instructions to all PAOs for release of final pension and all pensionary benefits to reitiring/retired government employees of AIRs/DDs, immediately. In consequence of the aforesaid development, on the very next day, the Office of the aforesaid Chief Controller of Accounts, Min of I&B, New Delhi was pleased to issue an Office Memorandum dated 07.10.2022 (Annexure-A/31 refer) addressed to all concerned to forthwith strictly comply with the instructions issued by the I&B Ministry in its aforesaid letter dated 06.10.2022. Immediately on his coming to know of the aforesaid developments and the instructions issued by the I&B Ministry and also the CCA of the said Ministry, the applicant has submitted a formal written representation dated 10.10.2022 (Annexure-A/32 refer) to the competent authority in AIR, Ahmedabad, drawing the kind attention of the said competent authority to release to the applicant the full pension and other retiral dues in terms of the instructions contained in the aforesaid communications of the Ministry of I&B and the CCS, MIB.
Nevertheless, the Pay & Accounts Officer at AIR, Mumbai, in pursuance of his receipt of the Provisional Pension papers from AIR, Ahmedabad, had the audacity to issue communication dated 10.10.2022, addressed to DDG, AIR, Ahmedabad, informing the latter about the grant of Provisional Pension of Rs.41,800/- plus DA to the applicant and further informing the latter that the PPO would be issued after the finalization of the case. This is not all. On the very day, the aforesaid P&AO, AIR, Mumbai, has the further audacity to issue another communication dated 10.10.2022, addressed to the DDG, AIR, Ahmedabad, authorized the latter to draw a sum of Rs.16,63,556/- being the amount of Gratuity payable to the applicant. In the said communication, it was further informed that a sum of Rs.l,84,840/- has been withheld from Gratuity which will be paid on settlement of court case. Thereafter, in the month of October, 2022, the applicant came to be released the arrears arising out of the aforesaid provisional pension w.e.f. June 2022 to September 2022 and 90% of gratuity amount. Still the applicant is getting only provisional pension. The applicant is not being released full pension, commutation of pension, remaining amount of gratuity, leave encashment, etc. etc.,
Be that as it may, in pursuance of the applicant's representation dated 10.10.2022, referred to hereinabove, the authority in AIR, Ahmedabad, had issued a communication dated 12.10.2022 (Annexure-A/33 refer) addressed to AIR, Hqrs., New Delhi, informing the latter about of the pendency of pension case of the applicant in view of its non receipt of case papers of the applicant from AIR, Mumbai.
It is stated that the Directorate General, AIR, New Delhi, vide its communication dated 21.10.2022 (Annexure A/34 refer) has called upon all the Zones to take immediate and necessary action for compliance with the instructions issued by the MIB and the CCA, MIB on 07.10.2022 for the settlement of retiral dues of the retired employees and directed that before releasing the full & final pension and all other retiral dues the authorities concerned might take an undertaking from the retired employees to the effect that if any excess payment is made to an individual then the same shall be recovered from him or her after the disposal of the W.P.No.9890/2019, pending before the Hon’ble High Court of Delhi or any other similar litigations. Still the applicant was not being released full & final pension and all other retiral dues. In this nature of the situation, the applicant had to submit a further representation dated 18.11.2022 (Annexure A/35 refer) addressed to AIR, Ahmedabad, pointing out therein that since the applicant had already in his representation dated 13.06.2022 had given his undertaking to the aforesaid effect, his final pension and other retiral dues may kindly be released to him. Nevertheless, there was no response from the said authority. In the month of January 2023, the Prasar Bharati Hqrs., New Delhi, vide its communication dated 07.0l.2023 (Annexure A/36 refer), addressed to all PAOs in the Zones including the respondent no.7 had called upon the said PAOs to strictly adhere to the orders of the Principal Bench of this Tribunal dated 05.07.2022 and avoid contempt of Court. In so far as the case of the applicant, the authority in AIR, Ahmedabad, had demanded from the PAO, AIR, Mumbai, the applicant's Service Verification papers for further action in the matter, vide its Communication dated 13.01.2023 (Annexure-A/37 refer).
On 30.01.2023, in view of the instructions issued by the Prasar Bharati Hqrs., vide Office Memorandum dated 30.01.2023 (Annexure-A/38 refer), the applicant immediately on his coming to know of the OM, has submitted again a formal written representation dated 30.01.2023 (Annexure-A/39 refer) requesting for the release of his final and full pension and other retiral dues. Again there was no response from the said authority.
Since the applicant was not receiving any response from any of the respondents’ authorities in AIR nor was being released the final pension and other retiral dues, the applicant had to submit a formal Grievance Letter Petition dated 10.03.2023 to the DG, AIR, New Delhi. In response thereto, the GRC Section in DG, AIR, New Delhi has issued reply communication dated 26.04.2023 informing the applicant that his grievance will be governed by the final outcome of WP(C) No.9890/2019 which is sub judice as on date and that action would be taken once the said case attains finality.
In the month of April 2023, the respondent no.7, vide communication dated 21.04.2023 (Annexure-A/40 refer), returning the applicant's service record to AIR, Ahmedabad, has advised that its observations contained in the aforesaid communication dated 21.04.2023 may be complied with. In pursuance of the aforesaid communication dated 21.04.2023, the authority in AIR, Ahmedabad, vide communication dated 27.04.2023 has since informed the applicant that the applicant is required to deposit a sum of Rs.7,74,490/- towards recovery of excess payment on or before 05.05.2023, for regularization of his pension and that the applicant shall also file an undertaking in the format attached, for recovery of excess payment. The aforesaid communication dated 27.04.2023 was received by the applicant through post after the aforesaid deadline of 05.05.2023. In response thereto, the applicant has since submitted his detailed and elaborate reply dated 23.05.2023 (Annexure-A/41 refer) pointing out to AIR, Ahmedabad, that no recovery, much less the aforesaid amount of Rs.7,74,4901- can be made from the applicant and he is entitled to be granted forthwith regular pension and other retiral dues without any delay.
In the month of September 2023 in response to the applicant's aforesaid representation dated 23.05.2023, the local authority in AIR, Ahmedabad, has since issued to the applicant a communication dated 26.09.2023 (Anneuxre-A/42 refer) calling upon the applicant once again to deposit with the department the aforesaid amount of Rs.7,74,490/- and also submit the requisite undertaking referred to in its previous letter dated 27.04.2023. Hence, the applicant has filed the present OA seeking the reliefs as quoted above.
CONTENTIONS OF THE APPLICANT
Learned counsel for the applicant contended that at the time of his superannuation on 31.05.2022, he was neither under suspension nor facing any departmental or criminal proceedings. Despite the same, the respondents have withheld the release of his retiral dues for nearly four years, on the pretext that he should either deposit a sum of Rs.7,74,490/-towards alleged excess payment or furnish a fresh undertaking for recovery of the said amount.
It is submitted that the applicant had joined the respondents’ department, All India Radio, on 16.01.1988 as Technician and was subsequently promoted as Senior Technician on 25.03.1992. He became eligible for grant of 2nd MACP w.e.f. 01.09.2008, which was retrospectively granted to him on 23.04.2010. Thereafter, he was granted 3rd MACP w.e.f. 28.03.2012 by order dated 08.10.2012. However, pursuant to the clarification issued by the DoP&T and the subsequent communication dated 12.01.2015 issued by Prasar Bharati directing its lower formations to rectify the alleged erroneous grant of 3rd MACP, the Association challenged the said action before the Principal Bench of this Tribunal in OA No.3035/2015, wherein an interim order dated 14.08.2015 was passed staying recovery of any amount from the members of the Association. Nevertheless, Prasar Bharati, Mumbai, by order dated 17.11.2016, withdrew the 3rd MACP earlier granted to the applicant. However, the said order was not received by AIR, Ahmedabad, and consequently was not implemented by the local authorities. The applicant also remained unaware of the said withdrawal order.
Learned counsel also submitted that the aforesaid OA No.3035/2015 was ultimately allowed by the Principal Bench of this Tribunal vide Final Order dated 08.08.2018. Thereafter, when applicant’s pay was re-fixed in the year 2020 pursuant to the decision dated 11.03.2014 of the DG, AIR, extending the benefit of notional pay fixation to Technicians and Senior Technicians, the local authorities at Ahmedabad did not disturb the 3rd MACP already granted to him. However, in the meantime, the Ministry of Information & Broadcasting issued communication dated 16.08.2021 directing the grant of provisional pension and provisional gratuity to retiring employees under Rule 64 of the CCS (Pension) Rules till conclusion of the pending litigation, followed by consequential directions issued by Prasar Bharati on 19.08.2021. According to the applicant, these developments were not within his knowledge while he was serving at Ahmedabad.
Learned counsel also submitted that, as applicant’s retirement was approaching, he was summoned by the local authorities on 19.01.2022 and was asked to give written authorization for giving effect to the withdrawal of his 3rd MACP while preparing his PPO. Acting in good faith and without knowledge of the intervening developments, he gave such authorization. It was, however, not disclosed to him that he would consequently be issued only provisional pension. On subsequently learning about the developments, he immediately withdrew the said authorization vide representation dated 24.02.2022.
Learned counsel contended that the applicant retired from service on attaining the age of superannuation on 31.05.2022. Thereafter, by representation dated 13.06.2022, he requested the local authorities for release of his PPO and other retiral dues and specifically undertook to refund any excess payment, if ultimately found payable, subject to the final outcome of the aforesaid writ petition pending before the Hon'ble Delhi High Court.
Learned counsel argued that the Principal Bench of this Tribunal, in OA No.2691/2021, vide Final Order dated 05.07.2022, quashed and set aside the decision dated 19.08.2021 and directed the respondents to issue appropriate orders sanctioning pension and gratuity admissible under the pension rules. Despite the aforesaid judicial order, the local authority issued an order dated 04.08.2022 granting him only provisional pension of Rs.41,800/- and provisional gratuity of Rs.16,63,566/-, while simultaneously communicating that an amount of Rs.7,74,490/- was recoverable towards alleged overpayment of pay and allowances. The applicant immediately objected to the proposed recovery vide representation dated 16.08.2022, particularly in view of the stay operating in the pending proceedings before the Hon'ble Delhi High Court.
The applicant further points out that, significantly, on 16.08.2022, the local authority itself issued a corrigendum prohibiting recovery of any amount from the gratuity admissible to him. Despite the same, the local authority reiterated its earlier stand vide communication dated 29.08.2022.
It is the applicant's case that, following the Final Order dated 05.07.2022, the Ministry of Information & Broadcasting issued communication dated 06.10.2022, directing that an undertaking could be obtained from retiring/retired employees that any excess payment found payable could be recovered after disposal of WP (C) No.9890/2019 or any other pending litigation. A consequential Circular dated 07.10.2022 was also issued by the PAO for compliance. Upon learning of the aforesaid developments, the applicant again represented on 10.10.2022 for immediate release of all his retiral benefits in view of the orders of the Court and the consequential circulars issued by the Ministry. However, despite the same, the Prasar Bharati authority at Mumbai issued written authority dated 10.10.2022 directing release of provisional pension while withholding Rs.1,84,840/- from the provisional gratuity.
Learned counsel also contended that shortly thereafter, the DG, Prasar Bharati, New Delhi, vide Circular dated 21.10.2022, directed all Zonal Heads, including the Mumbai Zone, to release all pensionary benefits to retired employees in terms of the Ministry's Circular dated 07.10.2022. The applicant again represented on 18.10.2022, furnishing the undertaking required by the Ministry and requesting release of his pensionary dues, followed by a reminder dated 30.01.2023. Instead of releasing his retiral dues, the respondents, vide communications dated 26.04.2023 and 27.04.2023, took the stand that his case would be governed by the final outcome of WP (C) No.9890/2019 and that appropriate action would be taken thereafter. The local authority further insisted upon submission of a fresh undertaking, to which the applicant objected vide representation dated 23.05.2023. Thus, left with no effective alternative, he filed the present OA on 21.12.2023, seeking release of his pensionary and other retiral benefits.
Learned counsel further submitted that during the pendency of the present OA, the proceedings arising out of OA No.3035/2015, which had been remanded by the Hon'ble Delhi High Court on 01.02.2023, were finally decided in favour of the Association by the Principal Bench of this Tribunal vide Final Order dated 28.08.2025. In view of the said subsequent development, the applicant’s learned counsel argued that the very basis on which the respondents had withheld his retiral benefits no longer survives and, consequently, the present OA deserves to be allowed and all the reliefs prayed for by him deserve to be granted.
CONTENTIONS OF THE RESPONDENTS
Learned counsel for the respondents by referring to the contents of the reply filed on behalf of the respondents submitted that the applicant was erroneously granted 3rd MACP in the grade pay of Rs.4800/- w.e.f. 28.03.2012 which was later withdrawn vide ADG(E)(WZ), Mumbai's order dated 17.11.2016. Further on perusal of Annexures A-10 & A-II produced by the applicant with this OA, it is clear that the 3rd MACP is to be granted on completion of 10 years from the 2nd MACP or 30 years of service, either of the condition being fulfilled. However, the applicant did not fulfill any of the above conditions as the applicant had joined his services w.e.f. 16.01.1988 and was granted 2nd MACP w.e.f. 01.09.2008. He completes 30 years of service on 16.01.2018 and 10 years from the date of 2nd MACP on 01.09.2018 which is evident from Annexures A/l0 &A/l1 produced by the applicant, he was eligible for the 3rd MACP w.e.f. 16.01.2018. As such the applicant was due for his 3rd MACP w.e.f. 16.01.2018, which was erroneously given w.e.f. 28.03.2012 and hence, later correctly withdrawn vide the ADG (E)(WZ) order dated 17.11.2016. (Annexure-R/3).
Learned counsel by referring to the FAQs provided by the DoP&T (Annex-I) point No. 06 (Annexure-R/1) wherein it has clearly been stipulated that:
“The financial up-gradation under MACPs is in the immediate next higher grade pay in the hierarchy of recommended pay bands and grade pay as given in CCS (Revised Pay) Rules, 2008. However, if the promotional hierarchy as per recruitment rules is such that promotions are earned in the same grade pay, then the same shall be counted for the purpose of MACP”.
From the above, it is clear that the scale given in MACP should not be greater than the promotion scale. The MACP of the promotion scales are given below for ready reference:
Technician : Grade Pay Rs. 4200/-
Sr. Technician : Grade Pay Rs. 4200/-
Engr. Assistant : Grade Pay Rs. 4600/-
Sr. Engr. Assistant : Grade Pay Rs. 4600/-
Thus, it is glaring that, the 3rd MACP in case of the applicant will be in the Grade Pay of Rs. 4600/- and not Rs. 4800/- and, therefore, has rightly been withdrawn.
Learned counsel also submitted that the issue of recovery came into light only qua the applicant when his book was sent to the Pay & Accounts Office, Akashvnai Mumbai for service verification following which the revised pay fixation was done by withdrawing wrongly given 3rd MACP.
Learned counsel also submitted that as stated by the applicant when he was called orally on 19.01.2022, he was specifically told about his recovery status as had been advised by PAO office, Mumbai.
Learned counsel further submitted that no recovery was made from the applicant due to the applicant's 'objection and even had not submitted any undertaking for recovery of the excess payment. Meaning thereby, applicant though was aware about excess payment, contributed to receive excess amount. When the applicant had still not given any undertaking for recovery required for processing his pension case which is the usual procedure, the provisional pension case being prepared by the respondents, guidance was sought from higher offices and later on it was known that the sanction for provisional pension to be sent to the PAO office was to be prepared locally. In the sanction prepared locally on 04.08.2022, the amount of excess payment to be recovered was shown. As per PAO's advice the same was rectified immediately and forwarded to the PAO on 29.08.2022. Provisional Pension was released along with Provisional Gratuity.
Learned counsel also submitted that the PPO is generated only when the regular pension has been processed. However, in this case, applicant has been given Provisional Pension, as his recovery of the excess payment made to him is pending.
So far as W.P.(C) No 9890/2019 is concerned, the same is about the admissibility of 3rd MACP to certain categories, who had been given upgraded pay scales. Thus, issue in that case is not germane to the issue involved in the present case. Further, the said W.P (C) No.9890/2019 has been filed by Association of Akashvani and Doordarshan Engineering Employees (AADEE) while the OA 3035/2015 had been filed by Association of Radio & Television Engineering Employees (ARTEE). Prasar Bharati has long since discarded any sort of unions, so the eligibility of the applicant being in both the unions which have been discarded is questionable. Therefore, the respondents are correct in its position of recovering the excess payment from the applicant.
Learned counsel also submitted that no undertaking for recovery of excess payment has yet been received from the applicant for processing his regular pension. Further, the applicant was supposedto deposit a sum of Rs. 7,74,490/- towards recovery of excess payment which has however reduced to Rs. 5,03,065/- as per revised pay fixation done as per DG, Akashvani New Delhi's order dated 07.04.2023 (Annexure-R/2 refer). The applicant, however, still needs to submit an undertaking for the same. The respondents are bound to prepare pension papers in accordance with the guidelines received from the Pay & Accounts Office, Akashvani Mumbai on the basis of service verification done for each and every retiring employee. In applicant's case too, PAO office pointed out the wrong fixation and thus the respondents have revised the applicant’s pay accordingly. Also, the applicant is referring to the WP (C) No.9890/2019 filed by AADEE, which is about as to whether the 3rd MACP is admissible to the officials, who have been given upgraded pay scales by Prasar Bharati. Clear directives have been received that the upgraded pay scales need to be adjusted against one the MACPs. At the same time, the applicant is also raising contentions in relation to the OA No.3035/2015 filed by ARTEE. No employee can be a member of more than one union simultaneously. Also, Prasar Bharati has disbanded all the Unions since long back. Applicant as such is misguiding. Nonetheless, the applicant may be directed to deposit the amount of excess payment to the respondents for early process of his regular pension.
Lastly, learned counsel prayed that the applicant is not entitled for the final relief(s), he has prayed for and the O.A. is devoid of anymerits and hence, is required to be dismissed.
We have heard learned counsel for the parties and perused the material placed on record.
ANALYSIS
Having considered the rival submissions and the material placed on record, we find that the controversy requires examination under three interrelated aspects: first, the applicant's entitlement to release of final pensionary benefits; second, the legality of withholding such benefits on account of the alleged excess payment arising from the 3rd MACP; and third, the effect of the judicial proceedings concerning the very basis of the alleged excess payment.
It is an admitted position that the applicant superannuated on 31.05.2022. It is also not the respondents' case that on the date of his retirement, he was under suspension or that any departmental or judicial proceeding was pending against him in the conventional sense contemplated by the pension rules. The respondents' justification for withholding the final pensionary benefits is substantially founded upon the alleged excess payment consequent upon grant of the 3rd MACP and the pendency of litigation concerning the admissibility of such financial upgradation.
The applicant's service record shows that he was granted the 2nd MACP retrospectively w.e.f. 01.09.2008 and thereafter the 3rd MACP w.e.f. 28.03.2012. The latter was subsequently withdrawn by order dated 17.11.2016. Significantly, however, the withdrawal was not acted upon by the Ahmedabad authorities and the applicant continued to draw the benefit until retirement.
The respondents seek to justify the withdrawal by contending that the applicant was not eligible for the 3rd MACP from 28.03.2012. According to them, having obtained the 2nd MACP from 01.09.2008, he could become eligible for the 3rd MACP only upon completion of the prescribed period, and, on the respondents' own calculation, the relevant date would be 16.01.2018. They further contend that, having regard to the hierarchy of grade pay, the applicant's 3rd MACP could not have been in Grade Pay ₹4800/- and that the grant was, therefore, erroneous. There is, therefore, undoubtedly a substantive dispute regarding the correctness of the original grant. But the existence of such a dispute does not by itself answer the separate question as to whether all final pensionary benefits could indefinitely be withheld from a retired employee.
The above question assumes considerable importance because the Principal Bench of this Tribunal, in OA No.2691/2021, vide its Final Order dated 05.07.2022, had already quashed the communication dated 19.08.2021 under which provisional pension and provisional gratuity were being contemplated for retiring/retired employees of AIR on account of the pending MACP litigation. The applicant specifically relies upon this Order and the consequential instructions issued by the Ministry of Information & Broadcasting and the Chief Controller of Accounts directing release of final pension and pensionary benefits.
The respondents cannot effectively dispute the significance of the subsequent administrative instructions issued pursuant to the said decision. The record itself shows that after the Order dated 05.07.2022, the Ministry of Information & Broadcasting issued communication dated 06.10.2022 advising that final pension and pensionary benefits be released, while the CCA issued consequential instructions dated 07.10.2022. The applicant thereafter approached the authorities on 10.10.2022 seeking implementation.
More importantly, the subsequent departmental communications themselves demonstrate that the respondents were aware of the said judicial mandate. The Directorate General, AIR, by communication dated 21.10.2022, directed the Zones to take necessary action for settlement of retiral dues and contemplated obtaining an undertaking that any excess payment ultimately found payable could be recovered after the outcome of WP(C) No.9890/2019 or other similar litigation.
Thus, the administrative mechanism adopted after the decision in OA No.2691/2021 was not that a retired employee must first deposit the disputed amount and only thereafter receive pension. Rather, the departmental instructions themselves contemplated release of pensionary benefits against an undertaking safeguarding the Government's right to recovery depending upon the ultimate outcome of the litigation.
The respondents nevertheless contended that the applicant never furnished the undertaking required for processing his regular pension and that he was required to deposit the amount of alleged excess payment. They further contended that the amount was subsequently revised from Rs.7,74,490/- to Rs.5,03,065/- after revised applicant’s pay fixation. This contention, however, has to be considered in the factual setting of the case. The applicant had already furnished an undertaking in his representation dated 13.06.2022, undertaking to abide by the result of the pending litigation and to refund any excess payment, if ultimately found payable.
Consequently, once the departmental authorities themselves subsequently issued instructions contemplating release of final pension upon obtaining an undertaking, the insistence upon a fresh undertaking, without first explaining why the undertaking already furnished was inadequate, cannot by itself constitute a legally sustainable ground for indefinitely withholding the applicant's pensionary dues. The respondents' own subsequent conduct is particularly relevant. The applicant's grievance was not that the respondents had no right whatsoever to protect the Government against a possible future recovery. His case was that such protection had already been offered by him and, therefore, the final pension could be released while preserving the respondents' right to act in accordance with the ultimate judicial determination.
The next question is whether the alleged excess payment can lawfully be recovered from the applicant. The respondents correctly contended that a financial benefit wrongly granted under the MACP Scheme does not, merely because it was sanctioned by an administrative authority, become a substantive entitlement contrary to the governing scheme. An administrative mistake cannot ordinarily create an indefeasible right to a benefit which the statutory scheme does not permit. However, that proposition is materially different from the proposition that every excess payment is recoverable from an employee irrespective of the circumstances in which the payment was made.
Here in this case, the 3rd MACP was granted pursuant to an official order dated 08.10.2012 and pay fixation was thereafter undertaken by the departmental authorities. There is no allegation that the applicant secured the benefit by fraud, misrepresentation or concealment. On the contrary, the respondents' own case is that the mistake was attributable to the departmental interpretation/application of the MACP provisions. The respondents discovered and sought to correct the matter through their own administrative process. This factual distinction assumes importance in light of the Hon’ble Supreme Court's decision concerning recovery of excess payments.
In State of Punjab v. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, the Hon'ble Supreme Court considered the circumstances in which recovery of excess payment would be impermissible as being harsh, inequitable and violative of Article 14 of the Constitution. The Hon’ble Supreme Court identified, inter alia, cases involving retired employees or employees on the verge of retirement, payments continuing for more than five years, and other situations where recovery would be so harsh or arbitrary that it would outweigh the employer's right to recover. In para 18 laid down certain situations wherein recoveries by the employee(s) would be impermissible in law, which reads as under:-
“18.It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i)Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v)In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
The principle emerging from Rafiq Masih (supra) is not that every recovery of excess payment is automatically prohibited. Rather, the Hon’ble Supreme Court balanced the employer's right to correct an erroneous payment against the equitable consequences of recovery from an employee, who was not responsible for the error. The Hon’ble Supreme Court's framework expressly includes retired employees and those nearing retirement among the circumstances in which recovery would ordinarily be impermissible, as quoted above.
The present case falls substantially within the equitable considerations underlying that principle. The applicant had retired on 31.05.2022; the alleged excess payment originated in a departmental order of 2012; the benefit was sanctioned by the competent departmental authorities; and the applicant continued to receive it for several years without any allegation of fraud or misrepresentation.
The respondents' reliance upon the fact that the applicant was allegedly informed about the recovery position on 19.01.2022 also does not materially alter the position. At that stage, the applicant was approaching retirement and the departmental authorities themselves were seeking to adjust the consequences of the earlier MACP order. There is nothing in the pleadings to demonstrate that the applicant had procured the benefit by misrepresentation or fraud. Indeed, the record shows that when the applicant was eventually informed of the withdrawal order, he sought clarification and thereafter, upon retirement, offered to abide by the result of the litigation and refund any amount ultimately found recoverable.
The respondents' case regarding the alleged excess payment cannot be examined in isolation from OA No.3035/2015. That proceeding arose from the very controversy concerning withdrawal of the 3rd MACP benefits granted to similarly situated employees of AIR. We deem it fit to reproduce the relevant paras of the said Order
5.1The present reconsideration culminates from the order dated 01.02.2023 passed by the Hon’ble High Court of Delhi in WP (C) No.1272/2023.
5.2For better appreciation of the contentions urged by the respective parties, we had directed the learned counsel for the respondents to place on record a copy of the writ petition filed on behalf of the respondents, so as to examine the pleadings and the grounds taken therein. Upon a close examination of the said pleadings, it is observed that the respondents have highlighted their position as under:
“X. That after consulting the DOP&T and the Expenditure, M/O Finance, the Petitioner No. 3 herein issued a Clarification dated 31.01.2018 on the admissibility of MACP. By the said Clarification, it is clarified that the Upgraded Scales, which were granted to the 11 Categories of Employees vide Order dated 25.02.1999 is to be treated as one Upgradation against the Three Upgradations applicable in terms of MACP Scheme. The Copy of the same herein is enclosed as Annexure P 5.
Y. That the Clarification dated 31.01.2018 was assailed before the the parties, the Hon'ble Tribunal vide its Order dated 01.08.2019 in Ο.Α. ΝΟ. 2449/2018 upheld the Clarification dated 31.01.2018, however, the Hon'ble Tribunal directed that no recovery is to be made from t applicants therein. The Copy of the same herein is enclosed as Annexure P 6.
Z. That the said Order of the Hon’ble Tribunal dated 01.08.2019 in O.A. No. 2449/2018 is assailed by the applicants therein before this Hon’ble High Court by filing W.P(C). NO. 9890/2018, which is now posted for hearing on 20.03.2023. After heareing the Counsel for the parties, the Hon’ble High Court vide its Order dated 13.09.2019 stayed the operation of the Hon’ble Tribunal in OA. NO. 2449/2018. The Copy of the same herein is enclosed as Annexure P-
AA. That the issue rose in the matter of Smt. Manju Vashishta & Ors. is quite different qua the Respondents herein. It is submitted that once the Upgraded Scale granted to the Respondents herein vide O.M. dated 25.02.99 is to be treated as One Upgradation against the Three Upgradation available under the MACP Scheme, therefore, the issue raised in the instant Writ Petition is to be decided independently and not in terms of the Order passed in Smt. Manju Vashishta's Case.
Even otherwise, it is once again reiterated herein that while dismissing the SLP in Smt. Manju Vashistha's case, the Hon'ble Apex Court kept the Question of law open.
BB. Feeling aggrieved by the impugned Order dated 08.08.2018 in O.A. No. 3035/2015 passed by the Tribunal, the present Writ Petition is being filed by the Petitioners herein on the following amongst other grounds.”
5.3The respondent have not disputed that the Order dated 25.02.1999 read with clarification dated 31.1.2018 is sub judice before the Hon’ble High Court of Delhi in W.P. (C) No.9890/2019 and the Hon’ble High Court has stayed the order dated 01.08.2019 passed in OA No.2449/2018. One of the ground urged in Writ Petition was that “From, administrative point of view, the respondents herein are already recipient of 1 promotion, 1 Upgraded Scale and 1 MACP w.e.f. 01.09.2008. However, the fact of upgraded Scale will be decided in W.P. (C) No. 9890/2019 which will have the way for taking any action on the impugned order dated 08.08.2018”.
5.4We do not understand on what basis 1 upgraded Scale has been treated at par with MACP Scheme which is an entirely different matter altogether. The respondents are making an attempt to distinguish the case of Manju Vashistha on the touchstone of their OM dated 25.02.1999 read with the clarification dated 31.01.2018. The issue is under examination before the Hon’ble High Court in WP No. 2034/2017, wherein record of proceeding dated 11.04.2017 reads as under:
“Issue notice to the respondents, returnable on 10th August, 2017. Learned counsel for the petitioner submits that the respondent became an employee of Prasar Bharti on 1st November, 1997 and had also retired also from the same institution. With reference to MACP Scheme, it is submitted that the respondent was initially appointed as Engineering Assistant in the pay scale of Rs.5000-8000, has earned more than three financial upgradations. As per the MACP Scheme, the next higher grade pay is payable. There will be stay of the operation of the impugned order till the next date of hearing. Relist on 10th August, 2017.”
Similar orders were passed by the Hon’ble High Cour of Delhi in W.P. No. 9890/2019, dated 13.09.2019. Both the writ petitions, bearing Nos. 2034/2017 and 9890/2019, along with Cont. Case (C) No. 276/2022, are being heard together.
5.5The only difference in the present case is that Technician, whereas the Writ Petitions mentioned above pertains to other posts with the same department.
5.6The record of proceedings dated 11.07.2018, reads as under:
“2.Learned counsel submits that the only question involved in the OA is granting of 3rd MACP on completion of 20 years of regular service from the date of first promotion of the employees. Learned counsel for the applicant further submits that the said question is squarely covered by the Full Bench decision of the Tribunal in OA-1288/2014 passed on 23.05.2016 – Smt. Manju Vashishtha & Ors. Vs. UOI & Ors., which was already upheld by the Hon’ble High Court of Delhi in Writ Petition (C) No.11826/2016 dated 03.02.2017.”
5.7.Furthermore, as evident from the order of remand by the Hon’ble High Court, the learned counsel for the respondents submitted as under:-
“1.Challenge in this Writ Petition is to the order dated August 08, 2018, whereby the Tribunal has allowed the O.A. in terms of its order of the Full Bench in O.A. 1288/2014 dated March 25, 2016, Smt. Manju Vashistha & Ors. vs. Union of India & Ors., which has been upheld by this Court in W.P.(C No. 11826/2016 dated February 03, 2017, Union of India & Ors. vs. Manju Vashistha & Ors.
2.We have been informed by Mr. Arif that the SLP filed against the judgment dated February 03, 2017, has been dismissed, however, the question of law has been open by the Supreme Court.”
5.8Now, the respondents taking shelter in light of OM dated 25.02.1999 and clarification dated 31.1.2018 cannot be comprehended at all. While dealing with the questions raised by both sides, this very Bench in OA No.3522/2017 titled “Yogesh Kumar Gulati and ors VS Commissioner of Police and ors” had observed as under :
“8.At the outset, we refer to the impugned order dated 13.06.2017. It is astonishing to note that the 3rd MACP benefits of the applicants were withdrawn for the reason that the applicants were not a party in OA No. 1288/2014 titled Manju Vashishta & Ors. Vs. UoI & Ors. While deciding the said case, this Tribunal had passed an order dated 23.05.2016, paras 12 to 15 of which read as under:
“12.It is noteworthy that the second MACP Scheme benefit has been granted the applicant only wie.f. 01.09.2008 i.e. after a gap of more than 16 years from the date of her first regular promotion. The date 01.09.2008 is fortuitous as it noppent to be a date from which MACP Scheme was implemented. Otherwise. has no relevance to the service record of the applicant since it is not the date on which the applicant completed either 10 or 20 years of service nor it is the octe on which she completed 10 years of service after getting first promotion. Her second MACP Scheme benefit got delayed only because MACP Scheme came into existence late. Hypothetically if MACP Scheme had come into existence from an earlier date, she would have got second MACP Scheme benefit on any date after 11.11.2001 after completion of 10 years of service from the date of her first regular promotion. However, due to late implementation of MACP Scheme, she has lost benefit of almost 07 years of service. Even then the date of second MACP Scheme benefit cannot be preponed since before 01.09.2008 there was no MACP Scheme in existence.
13.In our opinion, the situation as it exists in the case at hand has not been envisaged in the MACP Scheme. The Scheme has left this area uncovered and i silent on this aspect. No provision has been made for preventing loss of service those employees, who have suffered only on account of date of Clementation of the MACP Scheme. We have also seen that determining Sole of granit of third MACP Scheme benefit to the applicant No.1 based on her sol date of recruitment or on 01.09.2008. the date on which she got the benefit second MACP Scheme can lead to erroneous results, which are contrary to very provisions of the MACP Scheme. Under these circumstances, the only the which can be used as reference for determining the date from which third MACP Scheme benefit can be granted to the applicant is the date of her regular promotion as ASi le. 11.11.1991. Therefore, third MACP Scheme benefits should be rightfully given to her after 20 years of service counted from 11.11.1991.
14 On the basis of above analysis, we come to the conclusion that the question drawn by a Division Bench of the Principal Bench of this Tribunal has to be answered in the negative. We are inclined to agree with the judgment of Emakulam Bench of this Tribunal in OA-905/2012(supra) albeit for different reasons, in which benefit of third upgradation under MACP Scheme has been granted to the applicant therein after completion of 20 years counted from the date of his pramotion.
15.Consequently, we allow this O.A. (No. 1288/2014) and quash the Impugned orders at Annexures A/1. A/2, A/3 and A/4 with all consequential benefits. No costs.”
9.We also draw attention to the decision of the Hon’ble High Court of Delhi rendered in Staff Selection Commission & Ors. Vs. Darpan Sharma in W.P.(C) No. 3761/2018 dated 18.11.2024. Para 16 of the judgment reads as under:
“16.We are conscious of the fact that, in its final order dated 30 July 2019, the Supreme Court left the question of law, arising before it, open. That, however, according to us, only means that the Supreme Court did not pronounce on the question of law that arose before it. The implication of the Supreme Court leaving the question of law open was only, therefore, that the Supreme Court has not pronounced on the question aldaw which arose in the SLP, one way or the other. That, however, does not, in any way, lessen the precedential value of the judgement of the High Court. When, in the case of a candidate situated identically to the respondent in the present case, relief was granted by the High Court, and the grant of the said relief was performed by the Supreme Court, there can be no two views on the fact that the respondent would be entitled to the same relief. Else, it would result in a situation in which two persons, identically situated, had been accorded differential treatment by Courts, which is obviously unthinkable in law.”
10.In view of the above, we find that the impugned order has been passed without application of mind by the respondents. The same is quashed and set aside. Accordingly, the respondents are directed to restore the benefits of the applicants, if they have not already done so.
11.During the course of hearing it has been pointed out that Applicant Nos. 2 & 3 have retired. Therefore, no recovery is ordered to be made by the respondents from them. Even if recovery is made, it the same shall be paid to the applicant along with their pay fixation and accordingly, appropriate pensionary benefits shall be given to them. Since Applicant No. 1 is yet to retire, no such orders are called qua him.
12.The above exercise shall be carried out within a period of five months from the date of receipt of a certified copy of this Order.
13.The OA is disposed of in the aforesaid terms. Pending MAs, if any, stand disposed of. No order as to costs.
5.9We do not appreciate the stance taken by the respondents, as they cannot be permitted to blow hot and cold at the same time. On one hand, they contend that the decision in Manju Vashistha (supra) is not applicable; on the other hand, they assert that the issue has been left open by the Apex Court, and therefore, the said decision cannot be applied in the present case.
5.10.The present case has to be decided in the context of the relief(s) sought, and we draw reliance on the observations made by us in Yogesh Kumar Gulati (supra). In the present case as well, the withdrawal has been effected without proper application of mind and without issuance of a show –cause notice, despite the fact that the benefits was granted by the respondents after due consultation and following the prescribed procedure, based on the recommendations of the Screening Committee since the year 2010 onwards. It is also pertinent to note that the OM dated 25.02.1999 was very much in existence at the time of granting the benefits under the MACP Scheme. Such a withdrawal, even otherwise, could not have been made without first referring the matter to the Screening Committee and without adhering to the principles of natural justice. Moreover, the withdrawal of benefits cannot be justified solely on the basis of the clarification dated 31.01.2018, which was issued at a much later date.
6. CONCLUSION:
6.1In view of the above discussions, the impugned orders dated 18.03.2018 and 20.07.2015 are set aside, without prejudice to the rigfhts and contentions of the parties in W.P. (C) No.2034/2017 and W.P. (C) No.9890/2019, and Cont. Case (C) Bi, 276/2022, which are independent of the present Original Application.
6.2.Consequential relief(s), if any, shall follow on a case to-case basis in terms of the MACP Scheme. The respondents are directed to restore the applicant’s pay/pension and refund any amount recovered, if applicable, within a period of two months from the date of receipt of a certified copy of this order, failing which interest at GPF rates shall be payable for the period of default until the date of actual payment.
6.3.The O.A. is allowed in the aforesaid terms. M.A.s, if any, shall stand disposed of. No Costs.”
The respondents attempt to distinguish that case by pointing out that the applicant was not necessarily a member of the said Association, which instituted the proceedings and that WP (C) No.9890/2019 arose from a different Association. They also contended that the MACP controversy in the writ proceedings concerned employees who had received upgraded pay scales and that the issue was therefore not identical to the applicant's individual case. The objection has some relevance for determining the direct binding effect of a judgment inter parties. However, it does not resolve the present controversy. The applicant does not merely rely upon the earlier decision to assert that he automatically became entitled to the 3rd MACP from 28.03.2012. His more immediate contention is that the very foundation on which his pensionary benefits were withheld was subsequently removed by the adjudication of the MACP dispute as quoted above.
We note that the applicants therein also had been granted financial upgradations by the respondents themselves and that the withdrawal was subsequently founded upon departmental clarification. It also examined the relationship between the MACP scheme, the earlier departmental orders and the pending writ proceedings. Significantly, the Principal Bench of this Tribunal found fault with the withdrawal because it had been effected without proper application of mind and without issuance of show-cause notice, despite the benefits having earlier been granted by the respondents after following the prescribed procedure. The Principal Bench of this Tribunal further held that withdrawal could not be justified merely on the basis of a later clarification, particularly where the original grant had been made after following the departmental procedure. Ultimately Principal Bench of this Tribunal set aside the impugned orders dated 18.03.2015 and 20.07.2015, while expressly preserving the rights and contentions of the parties in the pending writ proceedings.
The significance of the aforesaid decision for the present case is therefore twofold. First, it demonstrates that the issue regarding withdrawal of the 3rd MACP was not a case of an employee having obtained a benefit by fraud or misrepresentation. It was a dispute concerning the interpretation and application of the MACP Scheme by the departmental authorities. Second, the subsequent adjudication substantially weakens the respondents' attempt to treat the alleged excess payment as an undisputed and crystallized debt immediately recoverable from the applicant. At the very least, so long as the legal foundation of the recovery remained subject to adjudication, the respondents could not reasonably insist that the applicant must first surrender the disputed amount as a condition precedent to release of his pensionary entitlements.
The respondents have placed considerable reliance upon the pendency of WP(C) No.9890/2019, contending that the said proceedings concern the admissibility of 3rd MACP to employees who had been granted upgraded pay scales and that the applicant's pension should therefore remain provisional until final adjudication. This submission cannot be accepted in its broad form. The pendency of litigation may justify protection of the Government's financial interest, but it does not automatically justify indefinite deprivation of an employee's pensionary benefits, particularly where the departmental authorities themselves had been directed to release final pension upon obtaining an undertaking. There is a fundamental distinction between: (i) withholding pension because pension itself is lawfully liable to be withheld under the pension rules, and (ii) releasing pension subject to an undertaking preserving the Government's right to recover an amount if ultimately found payable.
The administrative instructions issued after the order in OA No.2691/2021 clearly contemplated the latter course. The respondents therefore could not continue indefinitely with the former course merely by invoking the pendency of the writ proceedings.
It is also necessary to keep separate two questions which appear to have been conflated by the respondents. The first is what pension is legally admissible to the applicant. The second is whether the Government can recover a particular amount which was allegedly paid in excess. Even assuming, for the sake of argument, that the respondents ultimately establish that the applicant's 3rd MACP was wrongly granted from 28.03.2012, it does not necessarily follow that the entire pensionary entitlement could be withheld until the applicant deposits the alleged excess amount. Pension is not in the nature of a discretionary ex gratia payment. Once an employee has rendered qualifying service and superannuated, pensionary benefits become governed by the applicable pension rules. Any withholding must, therefore, have a clear foundation in those rules or in a legally sustainable order.
The respondents' own conduct in granting provisional pension and 90% gratuity confirms that the applicant's basic entitlement to pension and gratuity was not in dispute.
What remained disputed was the adjustment/recovery arising from the MACP issue. The respondents' contention regarding the grade pay of Rs.4800/-. The respondents have also sought to justify the withdrawal on the ground that, even apart from the date of entitlement, the applicant could not have received Grade Pay Rs.4800/- because the relevant promotional hierarchy carried Grade Pays of Rs.4200/- and Rs.4600/-. They, therefore, submitted that the 3rd MACP in the applicant's case ought to have been in Grade Pay Rs.4600/- and not Rs.4800/-. This contention may have relevance for determination of the applicant's correct pay fixation, but it cannot justify the manner in which his pension was withheld. The proper course, if the respondents were of the view that the applicant's pay had been wrongly fixed, was to undertake a lawful re-fixation in accordance with the applicable MACP provisions and thereafter determine the consequential pensionary entitlement. The existence of a dispute as to the correct grade pay does not authorize the administration to indefinitely withhold undisputed retiral benefits.
Moreover, the decision dated 28.08.2025 in OA No.3035/2015 demonstrates that the underlying MACP controversy involved questions of interpretation and application of the scheme and could not be reduced to a simple case of an employee having received money through fraud or misrepresentation.
Another circumstance which cannot be overlooked is the extraordinary period for which the applicant has remained deprived of final settlement. The 3rd MACP was granted in 2012. The departmental authorities purportedly withdrew it in 2016, yet admittedly the withdrawal was not implemented by the applicant's local office and the applicant continued to be treated as drawing the benefit even when his pay was subsequently re-fixed in 2020. The applicant retired in May 2022. Even thereafter, instead of finalizing the pensionary benefits, the matter continued to be kept pending. The applicant repeatedly represented to the authorities, including on 13.06.2022, 10.10.2022, 18.11.2022, 30.01.2023 and 23.05.2023. Such prolonged withholding cannot be sustained merely by repeatedly referring to a pending dispute, particularly when the employee has already offered to abide by the final result. The applicant's undertaking dated 13.06.2022 is also of considerable significance. The applicant had expressly undertaken to abide by the outcome of the pending litigation and to refund any excess payment, if ultimately found payable. Therefore, the Government's legitimate concern regarding possible financial loss stood substantially protected. The subsequent departmental instruction dated 06.10.2022 itself contemplated precisely such a mechanism for release of final pensionary benefits upon obtaining an undertaking that excess payment, if found payable after the litigation, could be recovered. In these circumstances, insisting that the applicant should first deposit the very amount whose legal recoverability remains disputed amounts, in substance, to converting a disputed future liability into a condition precedent for receiving pension. That approach cannot be countenanced.
The position has become even clearer because, during the pendency of the present OA, the Principal Bench of this Tribunal has rendered its final decision dated 28.08.2025 in OA No.3035/2015, the relevant portion of which has already quoted above. The applicant has specifically brought this subsequent development to the notice of this Bench of the Tribunal and contended that the very basis on which the respondents withheld his retiral benefits no longer survives. The respondents' defence, on the other hand, was principally constructed around the proposition that the MACP issue remained sub judice. Once the proceedings in OA No.3035/2015 were finally adjudicated, that factual premise could no longer remain unqualified.
At the very least, the respondents were required to reconsider the applicant's case in the light of the subsequent decision of this Tribunal in OA No.3035 of 2015 (Principal Bench) instead of mechanically continuing the withholding. The respondents cannot derive advantage from their own administrative lapse.
It is also material that the respondents themselves failed to implement their order dated 17.11.2016 for several years. The applicant's case is that the order did not reach the Ahmedabad office and, therefore, continued to be ignored even when his pay was re-fixed in 2020. The respondents cannot, therefore, simultaneously rely upon the 2016 withdrawal order to contend that the applicant's receipt of the benefit was unauthorized from that date, while their own establishment continued to treat him as entitled to the benefit for purposes of pay fixation and service records. An employee cannot reasonably be expected to discover and act upon an internal departmental order which was neither communicated to him nor implemented by the competent local establishment. This aspect becomes especially important when the respondents seek recovery from a retired employee on the footing that the excess payment continued because of his knowledge and consent.
The decision in OA No.3035/2015 also assumes significance on the question of natural justice. The Principal Bench of this Tribunal, while examining the withdrawal of the MACP benefits, found fault with withdrawal effected without proper application of mind and without issuance of a show-cause notice, particularly where the benefit had earlier been granted after following the prescribed procedure. Although the applicant before us was not necessarily a party to that proceeding, the principle is relevant. Where an employee has been granted a recurring financial benefit under a formal departmental order, and the administration subsequently seeks to retrospectively alter the financial consequences and recover substantial amounts, the action cannot be treated as a mere clerical correction if it adversely affects vested financial consequences. The administration must establish the legal authority for the correction as well as compliance with the procedural safeguards applicable to such adverse action.
The respondents undoubtedly have a legitimate right to ensure that no employee ultimately retains a financial benefit which, upon final adjudication, is found to have been wrongly paid. But that right must be balanced against the equally important right of a retired employee to receive his lawful pension and other retiral benefits without avoidable delay. The appropriate balance, in our considered view, lies in releasing the applicant's admissible final pensionary benefits without requiring him to deposit the disputed amount as a precondition, while preserving the respondents' right, subject to law and the final outcome of the aforesaid Writ Petition, to undertake lawful recovery of any amount which may ultimately be found recoverable. This approach also accords with the departmental mechanism contemplated after the decision in OA No.2691/2021, namely, release of final pensionary benefits upon an undertaking securing the Government's right to recovery in accordance with the ultimate outcome.
As regards the applicant's claim for interest at 18% per annum, the same cannot be granted mechanically merely because there has been delay. The question of interest has to be determined having regard to the nature of the delay, the applicable pension rules, and the conduct of the parties. However, where the Tribunal finds that the respondents had no lawful justification for continuing to withhold the final pensionary benefits after the judicial and administrative directions for release, an award of reasonable interest on the delayed amounts would be justified. The applicant's prayer for 18% per annum may, therefore, be considered in accordance with the settled approach of the courts, rather than being granted automatically at the contractual/commercial rate claimed by him.
On an overall consideration of the matter, we find that the respondents have proceeded on an erroneous premise that the pendency of the said Writ Petition entitled them to keep the applicant's pension provisional indefinitely and to make payment of the alleged excess amount a condition precedent for release of his final retiral dues. The respondents may be correct to the limited extent that the original grant of 3rd MACP cannot be treated as conclusively valid merely because it was granted by an administrative order. However, that proposition does not confer upon them an unrestricted power to withhold the applicant's pensionary benefits for an indefinite period. The facts are materially distinguishable from a case involving fraud, misrepresentation or deliberate suppression by an employee. The 3rd MACP was granted by the departmental authorities themselves; the applicant continued to receive the benefit for years; the departmental authorities themselves failed to implement the withdrawal order for a considerable period; and the controversy subsequently became the subject matter of judicial proceedings. The applicant, moreover, offered to abide by the final outcome and refund any amount lawfully found recoverable.
In the result, for the foregoing discussions, we ultimately observe that the applicant is entitled to release of his regular/final pension and all other admissible retiral benefits, including commutation, balance gratuity and leave encashment, subject to lawful determination of his pension after taking into account the final judicial position concerning the MACP issue. The respondents shall not insist upon prior deposit of the disputed amount of ₹7,74,490/- (or the subsequently revised amount) as a condition precedent for release of the applicant's pensionary dues. Equally, the applicant's undertaking already furnished may be treated as sufficient protection of the respondents' interest, subject to any further undertaking only if strictly required by the applicable rules and not as a device to postpone payment indefinitely. The claim for recovery of the alleged excess payment shall, however, remain subject to the governing MACP provisions, the final outcome of the pending aforesaid Writ Petition (Civil) No.9890/2019, and the principles laid down by the Hon'ble Supreme Court governing recovery from employees, particularly the equitable limitations recognized in Rafiq Masih (supra). The fact that the applicant has already retired is a particularly important circumstance against coercive recovery. The respondents shall accordingly undertake a fresh exercise for finalization of the applicant's pensionary benefits in the light of OA No.2691/2021, the consequential departmental instructions, and the subsequent decision dated 28.08.2025 in OA No.3035/2015, and release the admissible dues within a stipulated period.
In view of the above, the present OA is allowed in terms of the following directions:-
The respondents are directed to release of the applicant's final pensionary benefits;
The respondents shall be at liberty to take such action for recovery, if any, as may ultimately become legally permissible, but only in accordance with the applicable rules and the binding decisions of the Hon’ble Courts, and not by withholding the applicant's pensionary benefits indefinitely; and
The above exercise shall be complied with within a period of two months from the date of receipt of a certified copy of this Order.
There shall be no order as to costs.
Pending MA(s), if any, shall stand disposed of accordingly.