Satwanti vs North Delhi Municipal Corporation And Ors

By filing this OA, the applicant is seeking the following reliefs:-

"(a) set aside / quash the order of the respondents dated 27.09.2016 whereby the respondents have issued an office order for calculating the pension of the applicant on the basic pay of Rs.20700/-instead of basic pay of Rs.21140/-.

(b) set aside/quash the order of the respondents dt. 1.2.2018 whereby the respondents had issued an office order to recover an excess amount already paid on account of salary, leave encashment, gratuity, pension and terminal benefits from the applicant.

(c) Direct the respondents to extend the benefits of 7th CPC with interest on the arrears accumulated on revised pension of the applicant with effect from 1.1.2016.

(d) Pass any other order/direction which this Hon"ble

Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."

The applicant, who retired on 30.4.2016 as a Grade „A" Staff Nurse from the respondent"s corporation (Health Department) and her basic pay at the time of her retirement was of Rs.21,140/- + Grade Pay Rs.5400/-, is aggrieved by the Office Order dated 27.9.2016 vide which although upon her various representations, she was extended the benefit of Non-Functional Selection Grade (NFSG) w.e.f. 15.7.2018 in the pay scale of Rs.5500-9000 (pre-revised) in compliance of O.O. No.AO(H)/NDMC/2016/1462 and concurrence of DCA (Health) and her pay has been refixed w.e.f. 15.7.1998. But due to this refixation, her last pay was reduced from Rs.21140/- to Rs.20,700/- and consequent upon the said refixation of her pay, the respondents had issued an office Order to recover an excess amount already paid on account of salary, leave encashment, gratuity, pension and terminal benefits from the applicant.

During the course of hearing, learned counsel for the applicant submitted that the impugned orders are contrary to the Office Memorandum dated 28.1.2013 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioner"s Welfare.

3.1 Counsel for the applicant further submitted that recovery of access amount from the pension and pensionary benefits of the applicant is contrary to settle law as in the case of State of Punjab and others vs. Rafiq Masih in CA No.11527/2014 lays down the following conditions where recoveries by the employers would be impermissible in law:-

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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.

3.3 Counsel further submitted that impugned orders passed by the respondents are violative of Articles 14, 16 and 21 of the Constitution of India as in similar matter the respondents are not taking any action for recovery of excess amount from the pension, gratuity, leave encashment and terminal benefits of the employee either who has been working or retired.

3.4 Counsel further submitted that respondents have not extended the benefits of 7th CPC, which is effective from 1.1.2016, despite various representations and options form submitted by the applicant and as such the applicant is suffering huge monitory loss.

3.5 Counsel for the applicant also submitted that reducing the basic pay of the applicant (retired employee) is arbitrary ultra-vires and also violative of principle of natural justice as the same was disadvantageous to the applicant.

3.6 Counsel for the applicant also placed reliance on the decision of the Hon"ble Delhi High Court in the case of Sukhbir Singh vs. North Delhi Municipal Corporation and another in WP (C) No.13470/2018 decided on 21.12.2018 in support of the claim of the applicant.

On the other hand, counsel for the respondents submitted that after her retirement, the applicant herself made various representations dated 4.4.2016, 9.5.2016, 14. 6.2016, 1.7.2016, 18.7.2016, 9.8.2016 and 6.9.2016 pressed hard for grant of NFSG w.e.f. 15.7.1998 in the pay scale of „A" Grade Staff Nurse Rs.5500-9000 (pre-revised) and accordingly as per her repeated requests, the department vide Office Order dated 27.9.2016 granted her the benefit of NFSG with effect from 15.7.1998. As such in furtherance of the said Office Order, her pay was revised but due to revision of her pay on the basic of calculation arrived at, the last pay of the applicant was come to Rs.20,700 + GP Rs.5400 and accordingly her pension was also revised as per Rule vide order dated 11.7.2019.

4.1 Thereafter when the applicant came to know that due to revision of her pay consequent upon grant of NFSG, her last pay was reduced to Rs.20,700/- from Rs.21,140/-, she made various representations dated 25.10.2016, 21.11.2016, 13.12.2016, 14.02.2016 and 11.05.2017 requesting to withdraw the benefit of NFSG Scheme.

Counsel further submitted that upon direction of this Tribunal, the respondents have submitted a table indicating the pay fixation for the period 01.04.1998 onwards showing a comparison of before and after granting of NFSG which is reproduced below :-

Date

Pay before grant of NFSG in the pay scale Rs.5000- 150-8000

Remarks

Date

Financial upgradation after grant of NFSG of Rs.5500- 175-9000 (Pre-revised) w.e.f. 15.07.1998

Remarks

01.04.1998

5750/-

15.07.1998

6025/-

01.04.1999

5900/-

01.07.1999

6200/-

01.04.2000

6050/-

01.07.2000

6375/-

09.04.2000

6375/-

Grant 1st ACP in pay scale of Rs.5500- 175- 9000 w.e.f. 09.04.20 00

01.04.2001

6550/-

01.07.2001

6550/-

01.04.2002

6725/-

01.07.2002

6725/-

01.04.2003

6900/-

01.07.2003

6900/-

0104.2004

7075/

01.07.2004

7075/-

01.04.2005

7250/-

01.07.2005

7250/-

01.01.2006

13810+4800

6th CPC implementation (9300- 34800+G P 4800)

01.01.2006

13490+4800

6th CPC implement ed (9300- 34800+GP 4800)

01.07.2006

14370+4800

01.07.2006

14040+4800

01.07.2007

14950+4800

01.07.2007

14610+4800

01.07.2008

15550+4800

01.07.2008

15200+4800

01.09.2008

16160+5400

Grant 2nd MACP in pay scale 9300- 34800 + GP 5400 after 20 years of service w.e.f. 1.9.2008

01.09.2008

15800+5400

Grant 2nd MACP in pay scale 9300- 34800 + GP 5400 after 20 years of service

01.07.2009

16810+5400

01.07.2009

16440+5400

01.07.2010

17480+5400

01.07.2010

17100+5400

01.07.2011

18170+5400

01.07.2011

17780+5400

01.07.2012

18880+5400

01.07.2012

18480+5400

01.07.2013

19610+5400

01.07.2013

19200+5400

01.07.2014

20360+5400

01.07.2014

19940+5400

01.07.2015

21140+5400

01.07.2015

20700+5400

5.1 Counsel further submitted that if one has regard to the above, it is evidently clear that the basic pay of the applicant got reduced from Rs.13810/- to Rs.13490/- on 01.01.2016, i.e., the date of implementation of recommendations of 6th CPC due to the reason that applicant was getting the benefit of annual increment in the month of April before her placement under NFSG Scheme and, therefore, she got the benefit of one increment in accordance with the recommendation of 6th CPC which extended benefit of increment to those employees whose annual increment fell between the month of January 2006 to June 2006 and accordingly her basic pay was fixed in Rs.13810/- on 01.01.2006. But pursuant to the request of the applicant for her placement under NFSG Scheme, her annual increment fell in the month of July and accordingly, the benefit of one increment which she was getting previously was unfortunately withdrawn as per aforementioned recommendations of 6th CPC and her basic pay was fixed in Rs.13490/- on 1.1.2006. Hence, it is manifest that the present fixation of the applicant has been done as per rule.

5.2 Counsel further submitted that as regard the grievance of the applicant that she had not been granted the benefit of 7th CPC, she had already been granted the benefit of 7th CPC in her pay and pension. However, on her repeated requests, after granting her the benefit of NFSG with effect from 15.7.1998 and also granting the benefit of 7th CPC, her pay and pension was fixed at a lower rate. Accordingly, the respondents vide Office Order dated 1.2.2018 effected the recovery of excess payment made to the applicant on account of salary leave encashment, gratuity etc.

5.2 So far as applicability of OM dated 28.1.2013 is concerned, counsel for the respondents submitted that the same is not applicable to the present case as the same relates to the revision of pension of pre 2006 pensions as is clear in its subject itself.

Having heard learned counsel for the parties at length and perused the pleadings on record, it is observed that it is admitted position that NFSG was granted to the applicant w.e.f. 15.7.1998 in pay scale of Rs.5500-175-9000 but before NFSG, increment was due in April so the applicant got one increment on 1.1.2016 whereas after grant of NFSG, the date of increment of the applicant got shifted to July and thus benefit of one increment on 1.1.2006 was lost which lead to reduction of pension. In her pleadings, the applicant has not been able to distinguish or rebut the aforesaid position and even during the course of hearing counsel for the applicant has not been able to point out any illegality in the said calculation as arrived at by the respondents consequent upon grant of NFSG on her repeated requests.

So far as contention of the applicant that recovery is not permissible in view of decision of the Apex Court in Rafiq Masih (supra) is concerned, the same is not applicable to the facts of the case as in this case revision/refixation of her pay was done consequent upon her request for grant of NFSG w.e.f. 15.7.1998, which was done only in the year 2016, which was requested by the applicant in the year 2016 itself and as such whatever may be the consequence of the same, the same has to be implemented. Moreover the applicant does not belong to Class-III and Class-IV service. Further reliance on the decision of the Hon"ble Delhi High Court in the case of Sukhbir Singh (supra) is concerned, the said decision on a different context and has no application to the facts and issue involved in this case. Further reliance on OM dated 28.1.2013 is also misplaced as the same is applicable in the case of revision of pension of pre 2006 pensions, which is not the case in hand.

Further the respondents have categorically stated that applicant has been granted the benefit of 7th CPC and her pay and pension was fixed at a lower rate and recovery of excess payment made to the applicant on account of salary encashment, gratuity etc. vide Office Order dated 1.2.2018. However, since the orders relating to grant of benefit of 7th CPC have not been annexed with the counter affidavit although they have mentioned the same, the respondents are directed to supply a copy of the same to the applicant, if not already provided to the applicant.

So far as the claim of the applicant that she had made request for withdrawal of NFSG granted to her is concerned, the same cannot be done at this stage and more over there is no provision or rule for withdrawal of such benefit.

In view of the above position, this Tribunal is not inclined to interfere with the decision of the respondents and accordingly the present OA being bereft of merit is dismissed. There shall be no order as to costs.