Kerala High Court
Union Of India vs G.Thankachan on 5 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
OP (CAT) NO. 208 OF 2017
AGAINST THE ORDER DATED 24.03.2016 IN OA NO.326 OF 2015 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 1 TO 3:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI 110 001.
2 GENERAL MANAGER
ORDNANCE FACTORY, CHANDA, CHANDRAPUR 442501,
MAHARASHTRA STATE.
3 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS PENSIONS
DRAUPADI GHAT, ALLAHABAD 211 014.
BY ADVS.
ASSISTANT SOLICITOR GENERAL
SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT & 4TH RESPONDENT:
1 G.THANKACHAN
S/O. LATE D.GEORGE, AGED 63 YEARS, CHARGEMAN [RETD],
ORDANANCE FACTORY, VALIYAVILA HOUSE, PERUMANOOR P.O,
VIA VALAKOM, KOLLAM DISTRICT, 691 532.
2 THE CHIEF MANAGER
STATE BANK OF INDIA, CENTRAL PENSION PROCESSING CENTRE,
GANAPATHY KOVIL ROAD, VAZHUTHACAD, THIRUVANANTHAPURAM
695 014.
BY ADVS.
SMT.CHANDINI G.NAIR
SRI.C.S.GOPALAKRISHNAN NAIR
THIS OP (CAT) HAVING COME UP FOR HEARING ON 05.06.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 208 OF 2017
2
JUDGMENT
Amit Rawal, J.
1. Present petition has been filed on behalf of Union of India
against the judgment of the Administrative Tribunal whereby the
respondent-applicant had challenged the action of the petitioners
taken in the decision dated 18.9.2014.
2. Respondent-applicant was appointed as a Junior
Examiner. Later, was granted promotion as Examiner Grade -II,
Examiner HS-II (highly skilled), Examiner MCM (master craftsman)
and Chargeman (Tech/Mech), before his retirement on 31.10.2011.
On promotion, was granted a Grade pay of Rs.4600/-, which was
without noticing the movement from HS-II to MCM as the
entitlement of grade pay to such employee was 4200. Before
retirement, the pension papers were authorized with effect from
29.8.2011.
3. The communication Ext.R2 dated 30.3.2010 envisage that
the revision would be subject to receipt of order and clarification
from the Government. On inter correspondence between the
department and the office of the Principal Controller of Accounts
(Fys) dated 31.7.2013, informed the petitioners' concerned
department that the entitlement of grade to the respondent-
OP (CAT) NO. 208 OF 2017
applicant was Rs.4200/-. Before taking action, put to notice dated
30.11.2013 culminated into impugned order dated 18.9.2014.
4. Learned Tribunal by relying upon the provisions of Rule
70 of CCS (Pension) Rules, 1972, passed verdict in favour of the
respondent-applicant that the recovery was beyond the period of
two years.
5. Learned counsel for the petitioners submitted that the
recovery was much before the two years as the pension paper were
finalized on 29.8.2011 and the decision was taken on 31.7.2013,
followed by show cause notice and the impugned communication,
thus there cannot be any bar of limitation. No doubt, the recovery
could not have been made in view of the ratio decidendi culled out
in State of Punjab and others v. Rafiq Masih (White Washer) ( AIR
2015 SC 696). But recovery of few months has already been
effected and the remaining recovery will not be effected but the
department cannot be prevented from restructuring the pension.
6. On the other hand, learned counsel for respondent-
applicant submitted that the action of the respondent for recovery
was wholly beyond the limitation as the petitioners have given
notice for the first time in September 2014, which is beyond two
years.
OP (CAT) NO. 208 OF 2017
7. We have heard the learned counsel for the parties and
appraised the paper book. It is axiomatic to extract the order
granting the revision of pay to the respondent dated 30.3.2010 and
also decision of the Principal Controller of Accounts dated
31.7.2013.
Order dated 30.3.2010: In accordance with the directives
contained in Ministry of Personnel, DOP&T OM
No.35034/3/2008/Fat (1) dated 19.5.2009, received under
OFB Instruction No. 43/2009/(PCC) dt. 26.6.2009 and
clarification received under OFD Instruction No. 55/2009/
(PCC) Dt. 14.10.2009 and Instruction No. 58/2009/ (PCC)
dated 18.11.2009 second and third financial upgradation
under Modified Assured Career Progression Scheme
(MACPs) is hereby granted to the following individuals based
on the recommendation of Departmental Screening
Committee on completion of 20 & 30 years of regular service:
1. xxx
2. xxx
3. xxx
55. PER No, Name Desgn - G.Thankachan, CM.Gr-II/T
Entry Grade & Date -Un Skilled, 2.7.1973
Date and Present Pay scale - 23.3.2006 - 4200
10 years/20 years/30 years - 3rd GP Rs. 4600/-
Date of Grant of Upgradation - 1.9.2008
On grant of Financial Upgradation under the scheme, there
shall be no change in the designation, classification or higher
status. Financial Upgradation under the MACPs shall be
purely personal to the employees 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 employees in the grade has got
higher pay/grade pay under the MACPS.
OP (CAT) NO. 208 OF 2017
"The pay of the employees shall be raised by 3% of total pay
in the pay band and grade pay drawn before upgradation.
The above individuals G.Thank may exercise option under FR
22 (1)(a)(i) for fixation of pay within one month from the date
of publication of order. "
However the above would be subject to revision on receipt of
any Govt. Order/ clarification having bearing in the matter."
Order dated 31.7.2013: In continuation to this office
earlier circular bearing No. Pay/Tech-11/04/2013/17/Cir
dated 03.06.2013, it is intimated that the matter regarding
grant of 3rd MACP benefit in the same grade pay of Rs.
4200/- to the MCMs in the light of MoD ID no. 11(5)/2009-
D(Civ-1) dated 23.07.2012 has been examined by this office.
Accordingly it has been decided that the said benefit may be
extended to all eligible MCMs (either in service or going to
retire) along with 3% incremental benefit on Band Pay and
Gr Pay of Rs.4200/-. In this connection it is also mentioned
that in cases where such benefit has already been given in
the Gr. Pay of Rs. 4600 only the grade Pay may be
restricted /reduced to Rs. 4200-/
8. The aforementioned has to be read in conjunction with
the Rule 70 of the CCS (Pension) Rules, 1972 by the Central
Administrative Tribunal but for the sake of repetition, the same is
extracted hereunder:
"70. Revision of pension after authorization
(1)Subject to the provisions of Rules 8 and 9 pension once
authorized after final assessment shall not be revised to
the disadvantage of the Government servant, unless such
revision becomes necessary on account of detection of a
clerical error subsequently:
Provided that no revision of pension to the disadvantage
of the pensioner shall be ordered by the Head of Office
without the concurrence of the Department of Personnel
and Administrative Reforms if the clerical error is
detected after a period of two years from the date of
authorization of pension.
OP (CAT) NO. 208 OF 2017
[(1-A) The question whether the revision has become
necessary on account of a clerical error or not shall be
decided by the administrative Ministry or Department.]
(2) For the purpose of sub-rule (1), the retired
Government servant concerned shall be served with a
notice by the Head of Office requiring him to refund the
excess payment of pension within a period of two months
from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with
the notice, the Head of Office shall, by order in writing,
direct that such excess payment, shall be adjusted in
instalments by short payments of pension in future, in
one or more instalments, as the Head of Office may
direct.
9. Concededly, the pension was finalized on 29.8.2011. The
decision dated 31.7.2013 is within two years. We are in agreement
with the contention of the respondent-applicant as well as the
findings of the Central Administrative Tribunal regarding the
recovery of the excess amount in view of the ratio of decidendi
culled out in Rafiq Masih (supra). Whatever the recovery has
already been made, will not be refunded back to the applicant but
the petitioners are restrained from making any further recovery.
But the order of the CAT cannot be construed in refraining the
petitioners/department from restructuring the pension as
concededly, the grade pay to the respondent-applicant as per the
portfolio held by him was to be accorded as Rs.4200 and not
Rs.4600. No contrary documents has been shown entitlement of
grade pay of Rs. 4600.
Thus the order of the CAT to this extent is modified.
OP (CAT) NO. 208 OF 2017
Petitioners are at liberty to restructure the pension in view of the
change in the grade pay.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
sab EASWARAN S.
JUDGE
OP (CAT) NO. 208 OF 2017
APPENDIX OF OP (CAT) 208/2017
PETITIONER ANNEXURES
ANNEXURE A4 TRUE COPY OF THE LETTER NO-B/G/ PAY 2314
DATED 30.11.2013 ISSUED BY THE 2ND
RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE LETTER NO-B/G/ PAY 2314
DATED 4-12-2014 ISSUED BY THE 2ND
RESPONDENT
ANNEXURE A7 TRUE COPY OF THE CORRG.PPO.NO
C/CORR/FYS/15747/2014 DATED 18-9-2014
ISSUED BY THE 3RD RESPONDENT
ANNEXURE A10 TRUE COPY OF THE LETTER NO-
CPPC/HA/5047/373 DATED 6-12-2014.
ANNEXURE A1 TRUE COPY OF REVISED PAY FIXATION ORDER
ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE LAST PAY CERTIFICATE
ISSUED ON 1-11-2011.
ANNEXURE A3 TRUE COPY OF THE PPO NO-C/FYS/18854/2011.
ANNEXURE A6 TRUE COPY OF THE LETTER NO-PAY/TECH-
II/04/2014/02 DATED 11.2.2014.
ANNEXURE A8 TRUE COPY OF THE LETTER NO-2456/PC/GT
DATED 9-11-2014.
ANNEXURE A9 TRUE COPY OF THE SLIP ISSUED BY THE 4TH
RESPONDENT.
ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED
22.12.2014.
ANNEXURE A12 TRUE COPY OF THE LETTER NO-BG/PAY
2314/DATED 17.1.2015.
ANNEXURE A13 TRUE COPY OF THE LETTER NO-
CPPC/5047/373/SR DATED 5.2.2015.
OP (CAT) NO. 208 OF 2017
ANNEXURE R1 TRUE COPY OF THE LETTER NO-01/CR/A/I/658
DATED 13.12.2010 REGARDING CADRE
RESTRUCTURING OF ARTISAN CADRE
ANNEXURE R2 TRUE COPY OF THE FACTORY ORDER PART II NO-
1193 DATED 30.3.2010 REGARDING GRANT OF
MACP-III TO THE APPLICANT
ANNEXURE R3 TRUE COPY OF THE FACTORY ORDER PART II NO-
3054 DATED 21.8.2010 REGARDING FIXATION OF
PAY ON GRANTING MACP-III
ANNEXURE R4 TRUE COPY OF PCA(FYS)LETTER NO-PAY/TECH-
II/04/2011//15 DATED 26/8/2011 REGARDING
FIXATION OF PAY UNDER CADRE RESTRUCTURING
OF ARTISAN STAFF
ANNEXURE R5 TRUE COPY OF OFB LETTER NO-
01/CR/VOL.II/A/I 658 DATED 12.9.2011
ANNEXURE R6 TRUE COPY OF OFB LETTER NO-
01/CR/IL.II/A/1/658 DATED 25.1.2011
REGARDING ISSUE OF CLARIFICATION
ANNEXURE R7 TRUE COPY OF MOD ID NO-11(5)/2009-D(CIV.I)
DATED 2307.2012 CLARIFYING THE ELIGIBILITY
OF MCM FOR GRADE PAY OF RS.4,200/-
ANNEXURE R8 TRUE COPY OF PCFA KOLKATTA LETTER NO-
PAY/TECH-II/04/2012/20 DATED 8-10-2012 TO
REDUCE GRADE PAY TO RS.4200/- AND MAKE
RECOVERIES
ANNEXURE R9 TRUE COPY OF AO/OFCH LETTER NO-
L/534/GEN.CORR DATED 1.11.2012 REGARDING
REDUCTION OF GRADE PAY TO RS.4200/-AND
CONSEQUENT RECOVERY
ANNEXURE R10 TRUE COPY OF O.F.CHANDA LETTER NO-
2522/MACP/LB DATED 21.11.2012
ANNEXURE R11 TRUE COPY OF PCFA KOLKATA LETTER NO-
PAY/TECH-II 04/2013/01 DATED 1.1.2013
OP (CAT) NO. 208 OF 2017
ANNEXURE R12 TRUE COPY OF CHANDA LETTER NO-2522/MACP/LB
DATED 23.2.2013
ANNEXURE R13 TRUE COPY OF LAO/OFCH LETTER NO-L/GEN.CORR
DATED 6.3.2013
ANNEXURE R14 TRUE COPY OF PCA (FYS) KOLKATTA LETTER NO-
PAY/TECH -II/04/201/17 CIR DATED 3.6.2013
ANNEXURE R15 TRUE COPY OF PCFA KOLKATTA LETTER NO-
PAY/TECH-II 04/2013/22 DATED 31.7.2013
ANNEXURE R16 TRUE COPY OF CHANDA LETTER NO-2522/MACP/LB
DATED 24.9.2013
ANNEXURE R17 TRUE COPY OF PCA (FYS)LETTER NO-PAY/TECH-
II/2014/02 DATED 11.2.2014
ANNEXURE R18 TRUE COPY OF MINISTRY OF DEFENCE ID NO-
11(5) 2009-(CIV-1) DATED 6-2-2014
ANNEXURE R-19 TRUE COPY OF OFB LETTER NO-1/CR/A/I/658
DATED 17.2.2014
ANNEXURE R-20 TRUE COPY OF CH F.O.PART-II NO-3437 DATED
5-9-2014 WITHDRAWING GP OF RS.4600/-
ANNEXURE R21 TRUE COPY OF O.F.CHANDA LETTER NO-
BG/VETAN/2314 DATED 30.11.2013
ANNEXURE R22 TRUE COPY OF OFCH LETTER NO-BG/VETAN/2314
DATED 4.12.2014 REGARDING RECOVERY OF
RS.84,238/-FROM THE APPLICATIONS PENSION
ANNEXURE R23 TRUE COPY OF CORRIGENDUM PPO NO-
C/CORR/FYS/15747/2014 18.9-2014
ANNEXURE R24 TRUE COPY OF CHANDA P.I.C.NO-897028/E
DATED 19-10-2013
OP (CAT) NO. 208 OF 2017
ANNEXURE R32 TRUE COPY OF SUPREME COURT OF INDIA
JUDGMENT DATED 17-8-2012 IN CIVIL APPEAL
NO-5899 OF 2012-(CHANDI PRASAD UNIYAL
ANDORD VS.STATE OF UTTARAKHAND AND OTHERS)
ANNEXURE R33 TRUE COPY OF DOPT NEW DELHI ID NO-
18/26/2011-ESTT (PAY-1)DATED 6-2-2014
ANNEXURE R34 TRUE COPY OF ORDER DATED 30-9-2015 OF THE
HON'BLE CENTRAL ADMINISTRATIVE
TRIBUNAL,MADRAS BENCH IN OA NO-334/2012
EXHIBIT P1. COPY OF THE OA 180/00326/2015 DATED
24.4.15 FILED BY THE IST RESPONDENT.
EXHIBIT P2. COPY OF THE REPLY STATEMENT DATED 30.10.15
FILED BY THE PETITIONERS.
EXHIBIT P3. COPY OF THE REJOINDER DATED 10.12.15 FILED
BY THE APPLICANT.
EXHIBIT P4. COPY OF THE ADDITIONAL REPLY STATEMENT
DATED 29.2.16 FILED BY THE PETITIONERS.
EXHIBIT P5. COPY OF THE ORDER IN OA NO.180/00326/2015
DATED 24.3.16 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
