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Judgment
O R D E R
The applicant herein joined the respondent No. 2 and 3 establishment as a Junior Stenographer on 14.06.1985. He was promoted as Stenographer Grade I on 20.10.1999. Thereafter, he was appointed as PS to Chairman by order dated 01.08.2008 in the pay scale of Rs. 6500-10500/-. In the meanwhile, one K.N. Vijayakumaran Nair, a Junior Stenographer Grade filed O.A No. 425/2015 before this Tribunal claiming Grade Pay at Rs. 4600/- on implementation of the 6th Central Pay Commission with effect from 29.05.2008, date of his promotion. He claimed that there was a merger of post and consequently he was entitled for the higher grade. It was allowed by order dated 08.04.2016, which held that he was entitled to the Grade Pay of Rs. 4600/- with effect from 29.05.2008. Thereafter, the pay of the applicant along with two other persons of the same grade were stepped up to PB-II at Rs. 9300-34800/-with Grade Pay of Rs. 4600/- on par with junior K.N. Vijayakumaran Nair Stenographer-1, with effect from 29.05.2008, the date on which Shri Vijayakumaran Nair was promoted as Stenographer Grade-I. The above order is Annexure A-2. The applicant was further granted 2nd financial upgradation by the same order with Grade Pay of Rs. 4800/-with effect from 01.09.2008 and on completion of 30 years of service to the 3rd financial upgradation at Grade Pay of Rs. 5400/-, with effect from 26.06.2015. According to the applicant, Annexure A-2 was passed in accordance with law since his admitted junior started drawing more pay pursuant to order in O.A No. 425/2015. Consequently, the pay of the applicant was refixed by Annexure A-3 order. The applicant retired on superannuation in October, 2019. However, at the time of retirement, he was granted only 60% of the gratuity. 40% was withheld on account of an audit objection raised by the 4th respondent herein, in connection with the grant of high Grade Pay by Annexure A-2 order dated 30.11.2016. Annexure A-5 dated 23.01.2020 is the order by which a portion of the gratuity was withheld. Thereafter, applicant's pay was provisionally refixed pending disposal of the audit objection by Annexure A-6 dated 01.07.2020. It stated that stepping up was objected by the audit party. Based on the above pay fixation, Annexure A-7 order dated 10.07.2020 was issued by which his pension was revised. By Annexure A-8 order dated 14.07.2020 a sum of Rs. 7,23,380/- was ordered to be recovered from the applicant pursuant to the objection raised by the audit party with reference to Annexure A-2. Balance gratuity of Rs. 4,75,675/- which was withheld was adjusted towards recovery of over payment and balance amount of Rs 2,47,705/- was ordered to be recovered from the commuted value of pension. A detailed representation was submitted by the applicant as Annexure A-9 dated 03.09.2020 against the provision of refixation and recovery the money from the retirement benefits. It was rejected by the 2nd and 3rd respondents by Annexure A-10 contending that Annexure A-6 was issued pursuant to the audit objection raised regarding Annexure A-2. Contending that the objection raised by the audit party is not sustainable and challenging the action of the respondents 2 and 3 in issuing the said orders as Annexure A-5, A-6, A-7 and A-8, the applicant has filed the present O.A, seeking the following reliefs:-
“(i). to call for the records leading to A-10 and quash he same.
(ii)to declare that the applicant is eligible for financial upgradation as ordered in A2.
(iii)to quash A5 order to the extent it orders withholding of 40% of the retirement gratuity sanctioned to the applicant and direct the 3 respondent to disperse the withheld 40% of the retirement gratuity i.e. Rs. 5,83,783/- forthwith with applicable interest.
(iv)to quash A6 whereby the pay of the applicant has been illegally refixed behind his back after his retirement on 31.10.2019, contrary to the fixation through A3.
(v)to quash A7 whereby the pension of the applicant has been arbitrarily reduced to Rs. 35,000/- contrary to Rs. 37,800/-, the pension fixed as per A4.
(vi)to quash A8 wherein the 3 respondent has illegally ordered recovery from the gratuity and the commuted value of pension payable to the applicant.
(vii)direct the 3 respondent to implement the refixation of pay as ordered in A3 and to pay the applicant all consequential benefits arising as a result of A3 including retirement gratuity, commuted value of pension and cash equivalent of leave salary of unutilised earned leave remaining at the credit of the applicant, forthwith, with applicable interest from the date of retirement of the applicant.”
Separate replies were filed by the 2nd and 3rd respondents and by the 4th respondent. Rejoinder was filed by the applicant herein answering the contentions raised by the respondents.
Heard both sides and examined the records.
The entire pleadings of the applicant show that respondents No. 2 and 3 have taken up a stand that they have issued the impugned orders pursuant to an audit objection raised by the 4th respondent touching on the benefits granted by Annexure A-2 to the applicant, holding that the applicant was not entitled for such benefits. The 4th fourth respondent contended that the benefits granted by Anneuxure A-2 was not sustainable and contrary to the provisions. With reference to the pleadings at paragraph 9 of the reply statement of the 4th respondent, the learned Counsel for the applicant specifically contended that the audit have raised an objection regarding the pay fixation pursuant to Annexure A-2. In paragraph 9 of the reply statement it was contended that as per the consolidated guidelines (DOP&T O.M dated 26.10.2018), the stepping up of pay of a senior with that of a junior can be done, if the anomaly was directly a result of application of the provisions of FR 22(1)a(i) read with Rule 13 of the CCS (RP) Rules. In the instant case, the anomaly occurred due to the granting of MACP to a junior. Hence, the provisions of DoP&T guidelines are not applicable.
The crux of the contention of the learned Counsel for the 4th respondent based on this reply which is reiterated elsewhere in the reply statement of the 4th respondent touches on Clause 10 of O.M dated 26.10.2018 produced as Annexure R-4(a). The said Clause 20 reads as follows:-
“ Financial upgradation under MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS.
The gravamen of the contention of the 4th respondent herein was that Annexure A-2 was consequent to the order of the Tribunal granting MACP benefits to an admitted junior Shri Vijayakumaran Nair and consequently, Clause 20 would apply. Hence, the 2nd and 3rd respondents were not justified in ordering stepping up of salary of pay of applicant and two others, along with Shri Vijayakumaran Nair.
To appreciate this contention, it is essential to ascertain the basis for issuing Annexure A-2, along with the order in O.A No. 425/2015, a copy of which was placed before me at the time of hearing. It was verified to ascertain the circumstances that led to the granting of relief to Shri Vijayakumaran Nair, Stenographer, the admitted junior of the applicant. The order in the O.A shows that the applicant had approached this Tribunal consequent to implementation of the 6th CPC on a premise that there was merger of scale of pay attached to Stenographer Grade II and Grade I merged together and formed a new Pay Scale with Grade Pay of Rs. 4600/-. The applicant claimed that accordingly, he was entitled to Grade Pay of Rs.4600/- on implementation of the 6th CPC with effect from the date of promotion. This contention was allowed by this Tribunal by order dated 08.04.2016 and held that there was merger of two posts and Grade Pay was liable to be fixed at Rs. 4600/- in favour of Shri Vijayakumaran Nair. It is true that the applicant had claimed MACP benefits also. Though it was held in the OA that Vijayakumaran Nair was entitled to the Grade Pay of Rs. 4600/- on implementation of 6th CPC from the date of promotion i.e. 29.05.2008, the Tribunal further proceeded to consider whether the applicant was entitled to second financial upgradation to the pay scale of PB-2 of Rs. 4800/- with effect from 01.09.2008. That relief was also granted on the facts applicable to Shri Vijayakumaran Nair. Evidently, Vijayakumaran Nair was granted the Grade Pay of Rs. 4600/- on an appreciation of the fact that on account of merger of the posts, the Grade Pay attached to the merged post should be held to be Rs 4600/-.
According to the 2nd and 3rd respondents, thereafter the applicant herein along with others, who were seniors to Vijayakumaran Nair requested for extending the same benefits to them also. Accordingly, Annexure A-2 was issued after obtaining legal advice that the benefit was liable to be extended to the applicant herein.
As mentioned earlier, the crux of the contention of the 4th respondent was that the revision of the applicant and two others by Annexure A-2 was consequent to the granting of MACP Scheme benefit to Shri Vijayakumaran Nair. A narration of the facts above clearly shows that Vijayakumaran Nair was granted the Grade Pay of Rs. 4600/- on the appreciation of the fact that on account of merger of posts the Grade Pay was liable to be fixed at Rs. 4600/-, which was liable to be extended to Vijayakumaran Nair. This was the premise on which Annexure A-2 was issued. This is clear from Annexure A-2 order dated 13.11.2016. The first paragraph reads as follows:-
“With reference to the representations dated 07.07.2016 and 30.09.2016 of S/Shri Supria Guha, Madhab Chandra Sahoo and Babul Chakraborty, the pay of S/Shri Madhab Chandra Sahoo and Babul Chakraborty, Stenographers Grade-1 are hereby stepped up to the Pay Band-2, Rs. 9300-34800/- with Grade Pay Rs. 4600/- with effect from 29.05.2008 on par with their junior, namely Shri K.N Vijyakumaran Nair, Stenographer Grade I (Retd.) who was promoted as Stenographer Grade I on 29.05.2008.”
This paragraph clearly shows that the benefit of Grade Pay of Rs. 4600/- was extended to the applicant and others with effect from the date of promotion of Shri Vijayakumaran Nair and the date from which Vijayakumaran Nair was granted the Grade Pay of Rs. 4600/-, precisely on the principle that the juniors to the applicant and others were granted additional benefits consequent to the implementation of the 6th CPC. It clearly shows that it was not on the basis of granting of MACP benefits to Vijayakumaran Nair. Vijayakumaran Nair was granted the MACP benefits by the same order on separate individual merit. 11. A reference to Annexure A-2 further shows that it is a composite order by which apart from stepping up, the applicant was granted the 2nd financial upgradation under the MACP Scheme with effect from 01.09.2008 which was subsequent to 29.05.2008 on which the benefit of Rs. 4600/- was granted by stepping up. He was also granted 3rd financial upgradation under the MACP Scheme to the Grade Pay of Rs. 5400/-with effect from 26.06.2015 on completion of 30 years of service.
These facts clearly show that the applicant and two others were granted the benefit of stepping up on the ground that their admitted juniors were given the benefit of Rs. 4600/-, consequent to the implementation of 6th pay commission and the resultant merger of posts. It was not due to the MACP granted to Shri Vijayakumaran Nair that order of stepping up was issued. Consequently, Clause 20 of Annexure R-4(a) has no application to the facts of the case. The objection raised by the audit party is clearly unsustainable and based on a wrong appreciation of facts.
In the light of above, the objection of the 4th respondent cannot survive and Annexures A-5, A-6, A-7 and A-8 orders issued therein are clearly beyond jurisdiction and not sustainable. Consequently, Annexure A-5, to the extent of retaining 40% of the terminal benefits is liable to be set aside. The re-fixation of pay pursuant to Annexure A-6 on the said premise is also not sustainable. Consequently, Annexure A-7, to the extent of revising the pension based on the new pay order is also not sustainable. Annexure A-8 to the extent of ordering recovery of a total sum of Rs. 7,23,380/- from the retirement benefits of the applicant is also unsustainable and not in accordance with law. Annexure A-8 is liable to be quashed to the above extent. Consequently, Annexure A-5 to A-8 to the extent it applies to the applicant herein and to the extent of holding that Annexure A-2 order was unsustainable is clearly illegal and are quashed to that extent. Fresh orders shall be issued by the respondents No. 2 and 3. Fresh revised Pension Payment Order shall also be issued. The entire amount withheld shall be released to the applicant within a period of two months from the date of receipt of a copy of this order. Though the applicant claimed for interest on the belated payment, it is held that the applicant will be entitled to the statutory interest on the gratuity amount as per law.
The O.A is allowed as above. No costs.
Original Application No. 180/00127/2021
APPLICANT’S ANNEXURES
Annexure A1 – Photocopy of the order F. No. 527/2001-Admn dated rd 14.8.2008 of the 3 respondent.
Annexure A2 – Photocopy of the order F. No. 3(138)/2011-Admn dated rd 30.11.2016 of the 3 respondent.
Annexure A3 – Photocopy of the order F. No. 3(138)2011-Admn dated rd 8.12.2016 of the 3 respondent.
Annexure A4 – Photocopy of the order F. No. 1799/2019-Admn dated rd 28.11.2019 of the 3 respondent.
Annexure A5 – Photocopy of the order F. No. 1799/2019-Admn dated rd 23.1.2020 of the 3 respondent.
Annexure A6 – Photocopy of the order F. No. 3(138)/2011 dated rd 1.7.2020 of the 3 respondent.
Annexure A7 – Photocopy of the order F. No. 1799/19-Admn dated rd 10.7.2020 of the 3 respondent.
Annexure A8 – Photocopy of the order F. No. 1799/2019-Admn dated rd 14.7.2020 of the 3 respondent.
Annexure A9 – Photocopy of the representation dated 3.9.2020 nd submitted before the 2 respondent.
Annexure A10 – Photocopy of the letter F. No. 3(138)/2011-Admn dated rd 11.2.2021 of the 3 respondent.
Annexure A11 – Relevant portion of the Audit Enquiry No. 14 dated th 10.8.2017 of the 4 respondent.
Annexure A12 – Relevant portion of the Audit Enquiry No. 16 dated th 11.8.2017 of the 4 respondent. rd
Annexure A13 – Reply submitted by the 3 respondent to the audit objection made available to the applicant under the RTI Act 2005.
RESPONDENTS’ ANNEXURES
Annexure R3(a)– Copy of the undertaking dated 01.12.2016 submitted to the Board.
Annexure R3(b)– Extracts of Rule 62 of CCS Receipts & Payments Rules.
Annexure R4(a)– True copy of the Office Memorandum No. 35034/3/ 2008-Estt.(D) issued by the Department of Personnel and Training.
Annexure R4(b)– True copy of the Office Memorandum No. 4/3/2017-Estt.(Pay-I) issued by the Department of Personnel and Training.
Annexure R4(c)– True copy of the Office Memorandum No. 7/23/2008-E.III(A) issued by the Department of Expenditure, Ministry of Finance 01.01.2020.
Annexure R4(d)– True copy of the Office Memorandum No. F. No. 18/03/2015-Estt.(Pay-I) issued by the Department of Personnel and Training.