AI Structured Summary
Not yet generated for this judgment
Judgment
Delivered by: Mr. Anjani Nandan Sharan, Member (A)
Heard Shri S.M. Abbas Naqavi, learned counsel for the applicant and Shri Manoj Kumar Sharma, learned counsel for the respondents.
The instant Original Application, under section 19 of the Administrative Tribunal Act, 1985, has been filed by the applicant, seeking following reliefs:
“(a)To issue a writ, order or direction in the nature of certiorari quashing the respondent's order dated 02.11.2011 received as on 18.11.2011. (ANNEXURE A-1)
(b)Issue any order/direction, which the Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(C)Award the cost of petition to the applicant.”
The brief facts of the case, as narrated by the applicant, are that the applicant was initially appointed as Store Keeper Grade-II in the Regional Agmark Laboratory, Kalyanpur, Kanpur, under the Ministry of Agriculture, and joined the post on 20.08.1979. Thereafter, the applicant was promoted as Laboratory Assistant and joined the said post on 20.01.1981. The pay scale of Laboratory Assistant was not higher than that of Store Keeper Grade-II.
Under the provision of the 4th Central Pay Commission, the pay scale of the Laboratory Assistant and Junior Chemist had been merged in pay scale 1400-2300 with effect from 01.01.1986 and appointment of the applicant was treated on the post of junior chemist with effect from 01.01.1986.
Under the ACP Scheme, 1999, the applicant was granted 1st financial up-gradation w.e.f. 09.08.1999 in the pay scale of Rs.5500-9000/- and 2nd financial up-gradation w.e.f. 20.08.2003 in the pay scale of Rs.6500-10500/-, after completion his regular service from 20.08.1979. Thereafter, under the MACP Scheme, 2008, the applicant was granted 3rd financial up-gradation in the Grade Pay of Rs.4,800/- w.e.f. 20.08.2009, on completion of 30 years of regular service. Subsequently, the respondents, by corrigendum dated 15.09.2010, shifted the dates of his 2nd and 3rd financial up-gradations without assigning any cogent reason. Being aggrieved, the applicant had submitted a representation dated 12.10.2010 to respondent No.2.
The applicant has asked information under the provision of the RTI Act, 2005 vide his application dated 17.09.2012 about granting of the financial up-gradation to Sri U.B. Rai Ex Junior Chemist and S.K. Shukla Junior Chemist of the RA Lab. Kalyanpur Kanpur. The respondents replied on 01.11.2012 in which it is stated that regular service for the financial up-gradation of above two official has been counted from the date of joining in the entry cadre while on the other hand applicant was initially recruited/joined in the post of Store keeper Gr-II as on 20. 08.1979 and his regular service counting date has been shifted from 20.08.1979 to 20.01.1981.
That applicant has further submitted a representation dated 18.09.2012 to the respondent No-3 to consider the re-shifting of the date of 2nd and 3rd Financial from the 20.01.2005 and 20.01.2011 to the date 20.08.2003 and up-gradation 20.08.2009 respectively on the basis of the facts recorded in the representation.
The applicant contends that the 3rd financial upgradation Grade Pay of Rs.4,800/- falls within Group-B in terms of the Gazette Notification dated 09.04.2009. However, the respondents, while passing the impugned order dated 02.11.2011, treated the applicant's 2nd and 3rd financial up-gradations as a Group-C matter and directed recovery of the arrears already paid to him.
The applicant submits that the said recovery is contrary to the law laid down by the Hon'ble Supreme Court in Bihar State Electricity Board & Others v. Bijay Bahadur & Others, (2000) 10 SCC 99 and Shyam Babu Verma & Others v. Union of India & Others, (1994) 2 SCC 521. It is contended that the excess payment was made due to an error on the part of the respondents and not on account of any fraud, misrepresentation or concealment by the applicant. The same principle was also applied by the Hon'ble Allahabad High Court in Civil Misc. Writ Petition No. 33071 of 2008, Union of India & Others v. National Union Rail Mail Service Class III & Others, decided on 15.07.2008, holding that such excess payment, having resulted from the respondents' own mistake, could not be recovered from the employees. Hence, this OA has been filed.
The respondents have refuted the claim of the applicant by filing a detailed counter affidavit in which they have stated the applicant initially joined Government service as Store Keeper Grade-II through direct recruitment on 20.08.1979 and subsequently joined the post of Laboratory Assistant, also through direct recruitment, on 20.01.1981. Both the above posts belong to Direct Recruitment cadre post and carry different scales of pay. The post of Laboratory Assistant is not in hierarchy of the post of Store Keeper Grade-II. The respondents as per clarification of DOP&T fixed the 1st and 2nd financial up-gradation on completion of 12 and 24 years of service counting his service w.e.f. 20.01.1981 as the relevant date for calculating financial up-gradations under the ACP/MACP Schemes. Accordingly, on the recommendation of the Departmental Screening Committee, the dates of grant of the second and third financial up-gradations were revised from 20.08.2003 to 20.01.2005 and from 20.08.2009 to 20.01.2011, respectively.
It is submitted that while granting financial up-gradation under ACP/M.A.C.P Scheme to the applicant, a condition was inserted in the Office Orders that "the concerned Head of Office is requested to obtain an undertaking from the official concerned to the effect that 'arrears of pay' on account of granting financial up-gradation under the M.A.C.P Scheme will be subject to any audit objection etc, and the concerned official will refund the amount drawn by him/her as excess pay and allowances by virtue of higher pay in lump sum in case it is found the same is not applicable in his case".
A Corrigendum dated 15.9.2010 was issued regarding grant of 2nd ACP and 3rd financial up-gradation under the MACP w.e.f. 20.1.2005 and 20.1.2011 respectively (i.e. on completion of 24 and 30 years of service w.e.f. 20.01.1981 i.e. date of appointment as Lab Assistant as direct recruit in place of 20.8.2003 and 20.8.2009 respectively.
The applicant has relied on the judgment of the Hon’ble Allahabad High Court which relates to House Rent Allowance (HRA) and not regarding the pay fixation. The respondents further contended that any over payment on account of pay fixation in the upgraded scale as pointed out by the Audit can be recovered from the concerned Government servant in lump sum and the applicant has also submitted undertaking to the this effect. Thus, the averment of the applicant that the mistake regarding grant of financial up-gradation is upon the Department and, therefore, no recovery shall be affected from his pay and allowances, is incorrect. The respondents have requested to dismiss the OA being devoid of merit.
In the rejoinder affidavit, the applicant has reiterated same facts as given in the OA and added that DoPT has clarified in F.No.35034/1/97-Estt(D)(Vol.IV) dated 10.02.2000 as under:
“However, if the appointment is made to Higher pay scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and latter on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefit under ACPS.”
The applicant has further submitted that the pay scale of the Lab Assistant is not higher than the Store Keeper Grade-II. Hence, he is fully entitled to count the service rendered in the Store Keeper as Department allowed in the case of UB Rai ex junior chemist, R.A. Lab, Kalyanpur, Kanpur. He is entitled to count the service of the Store Keeper Gr-II w.e.f. 20.08.1979 to 1st and 2nd financial up-gradation under the provision of ACPS as allowed to Sri U.B. Rai ex junior chemist.
The respondents have refuted the claim of the applicant by filing a supplementary counter affidavit in which they have stated that the applicant was initially appointed as Store Keeper Grade-II w.e.f. 20.08.1979. Subsequently, he was appointed to the post of Laboratory Assistant w.e.f. 20.01.1981. Both these posts belong to direct recruitment cadre posts and carry different scales of pay. The post of Laboratory Assistant is not in the hierarchy of the post of Store Keeper Grade-II. Therefore, as per rules the date of joining the post of Laboratory Assistant will be taken as the base date for counting the length of service for grant of financial up-gradation under ACP/MACP.
Submissions of the learned counsel for the parties have been heard and the records have been gone through.
Records reflect that basic facts of the instant OA are not in dispute. The applicant joined the service as Store Keeper Grade-II w.e.f. 20.08.1979. Subsequently, he was appointed to the post of Laboratory Assistant w.e.f. 20.01.1981. Both these posts are direct recruitment posts. He was initially granted 2nd ACP w.e.f. 20.08.2003 and 3rd MACP w.e.f. 20.08.2009. These dates were revised to 20.01.2005 and 20.01.2011 respectively by the impugned order dated 02.11.2011.
The contention of the respondents is that the applicant was not promoted to the post of Lab Assistant as claimed in OA and he was offered the post of Lab Assistant as a direct recruit, which he joined on 20.01.1981. The pay scales of the post of Store Keeper Grade-II and Laboratory Assistant are not identical and cannot be termed as the same. The scheme of ACP and MACP has been introduced w.e.f. 09.08.1999 and 01.09.2008 respectively to address the problem of genuine stagnation. The respondents further submit that the post of Lab Assistant is not in the hierarchy of initial appointment to the post of Store Keeper Grade-II. Therefore, as per clarification received from the DoPT in the ACP Scheme against doubt no. 4 to 6, the applicant becomes eligible for 1st and 2nd Financial Upgradation on completion of 12 and 24 years of service w.e.f. 20.01.1981. The respondents have enclosed OM No. 35034/1/97-Estt(D)(Vol.IV) dated 10.02.2000 in this regard.
The applicant has also relied upon the clarification issued by DoPT on 10.02.2000 to say that he is fully covered to count his services w.e.f. 20.08.1979 on the post of Store Keeper Grade-II. Relevant paragraphs of the same are reproduced as under:
“F.No.35034/1/97-Estt(D)(Vol.IV) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) New Delhi 110001 February 10, 2000
OFFICE MEMORANDUM
Subject:-ASSURED CAREER PROGRESSION SCHEME FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES -CLARIFICATIONS REGARDING
The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum of even number dated August 9, 1999 regarding the Assured Career Progression Scheme (ACPS). Consequent upon introduction of the Scheme, clarifications have been sought by various Ministries/Departments about certain issues in connection with implementation of the ACPS. The doubts raised by various quarters have been duly examined and point-wise clarifications have accordingly been indicated in the Annexure.
2.The ACP scheme should strictly be implemented in keeping with the Department of Personnel and Training Office Memorandum of even number dated August 9, 1999 read with the aforesaid clarifications (Annexure). Cases where the ACP Scheme has already been implemented shall be reviewed/rectified if the same are not found to be in accordance with the scheme/clarifications.
3.All Ministries/Departments may give wide circulation to these clarificatory instructions for general guidance and appropriate action in the matter.
4.Hindi version would follow.
(K.K. JHA)
Director(Establishment)
To
1.All Ministries/Departments of the Government of India
ANNEXURE
[Reference:-Office Memorandum No.35034/1/97-Estt(D)(Vol.IV) dated 10.2.2000]
S.No. Point of doubt Clarification 1. ............... 4. In a case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise. The benefits under ACPS are limited to higher pay scale and do not confer designation, duties and responsibilities of the higher post. Hence, the basic criterion to allow the higher pay scale under ACPS should be whether a person is working in the same pay scale for the prescribed period of 12/24 years. Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale. In other words, past promotion as well as past regular service in the same pay scale, even if it was on different posts for which appointment was made by different methods like direct recruitment, absorption (transfer)/ deputation, or at different places should be taken into account for computing the prescribed period of service for the purpose of ACPS. Also, in case of absorption (transfer)/deputation in the aforesaid situations, promotions earned in the previous/present organisations, together with the past regular service shall also count for the purpose of 5. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit? 6. An employee appointed initially on deputation to a post gets absorbed subsequently, whether absorption mazxy be termed as promotion or direct recruitment. What will be the case if an employee on deputation holds a post in the same pay-scale as that of the post held by him in the present cadre? Also, what will be the situation if he was holding a post in the parent cadre carrying a lower pay-scale? ACPS. However, if the appointment is made to higher pay-scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS. Needless to say, in cases of transfer on administrative ground, involving only change of station within the same department, the service rendered in the same grade at two stations may count for ACPS, as such transfers are within the same organisation, ordered generally for administrative/personal considerations and the service rendered in the earlier station counts as eligibility service for promotion.
The applicant has submitted that he has not been allowed to count his past service in view of the following portion of the above clarification issued by DoPT:
“However, if the appointment is made to higher pay-scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS.”
The applicant submits that the pay scale of Lab Assistant is not higher than that of the Store Keeper Grade-II and he is fully entitled to count his services rendered as Store Keeper Grade-II, as has been allowed by the department in the case of a similarly placed employee.
However, as per the respondents, the applicant initially joined Government service as Store Keeper Grade-II as a direct recruit in the scale of Rs. 330-380-560 and he was offered the post of Lab Assistant in the scale of Rs. 380-560, which he joined as a direct recruit w.e.f. 20.01.1981. As per the applicant, he was promoted to the post of Lab Assistant having partially identical time scale of 380-560. The contention of the applicant is that the pay scale of Store Keeper Grade-II and Lab Assistant are partially identical under the provisions of FR 9 (30), meaning thereby, the pay scale of Lab Assistant is not higher than that of Store Keeper Grade-II.
From the above, it is noted that the pay scale of Store Keeper Grade-II and Lab Assistant are not identical. The initial pay for the post of Store Keeper Grade-II was Rs. 330 in the pay scale of Rs. 330-380-560, whereas the initial pay for the post of Lab Assistant was Rs. 380 in the pay scale of Rs. 380-560. Therefore, it has to be concluded that his subsequent appointment of the applicant as Lab Assistant was in a higher pay scale and the relevant portion of the clarification, as has been quoted in para 11 above will apply in the case of the applicant. As regard the FR 9 (30), as relied upon by the applicant, it is noted that FR 9 relates to definitions and FR 9(30) defines temporary posts, which is not relevant in the present case. In view of this, the past service of the applicant as Store Keeper Grade-II shall not count for the purpose of grant of benefits under ACPS.
In the light of above, no interference of this Tribunal is warranted in the impugned orders under challenge. The instant Original Application is liable to be dismissed and is, accordingly, dismissed. No order as to costs.
Interim Order, if any, stands discharged.
All the related MAs stand disposed of.