V. Sowntharavalli vs Union Of India & Ors

Dr. Chhabilendra Roul, Member (A)

The present applicant was appointed as Section Officer (Commercial) in the pay scale of Rs. 1640-2900/- in the office of Accountant General, Audit-I, Andhra Pradesh, Hyderbad. On 26.10.1987, he was promoted to the post of Assistant Audit Officer (AAO) in the pre-revised scale of Rs. 2000-3200 in Feb., 1995. The next date of increment was in the month of Feb.,1996. The sixth Pay Commission’s report were made applicable from 1.1.2006. He was further promoted as Audit Officer in October, 2008 in the pay band -2 in the scale of Rs. 9300-34800 with grade pay of Rs.5400/-. Subsequently, consequent to the merger of post of Section Officer and AAO, the promotion to the post of AAO could not be counted as promotion. Accordingly, the existing AAOs who were not given any promotion on 1.1.2006 were granted First Assured Carrier Progression (ACP) w.e.f. 1.1.2006 on completion of 12 years from the date of appointment. The applicant also got the second MACP in pay band -3 scale of Rs. 15,600-39100/- with grade pay of Rs. 5400/- w.e.f. 1.9.2008, vide order dated 18.11.2010. On 9.3.2012, the Department Of Expenditure, Ministry of Finance issued OM which provided relaxation to Rule 10 of CCS (RP) Rules 2008 allowing one increment as on 1.1.2006 in those cases whose increment fell in between month of Feb. to June,2006 and allowed them to get next increment in the revised pay structure on 1.7.2006. On 26.3.2012, the Member, Board of Audit-I constituted a pay fixation committee. However, this committee did not give the benefit of one increment in the pre-revised scale to the applicant.

The applicant submitted a representation dated 6.11.2012 to which the competent authority replied on 18.11.2013 stating that as per the clarification received from the Controller and Auditor General of India, her case was not covered under the provisions of Finance Ministry OM dated 19.03.2012 because she was granted the benefit of one additional increment in the pre-revised scale w.e.f.1.1.2006. To be specific the clarification issued by the Senior Administrative Officer in the office of CAG is as follows:-

“I am directed to invite a reference to your No.1597/CA-I845/225- 93 dated 25.07.2013 on the subject cited above and to clarify that the provision of MoF DoE OM No. 10/02/2011-E.III/A dated 19.03.2012 provides for grant of the benefit of an additional increment in the pre-revised scale for the purpose of fixation of pay in the revised scale w.e.f. 01.01.2006 on to such incumbents whose increment in the pre-revised scale were due between February 2006 and Jun 2006 and not to such persons who have been promoted/granted financial upgradation under ACP Scheme to the higher grade pay on 01.01.2006.”

The applicant again submitted a representation in January 2014 to reconsider her case as the OM dt.19.03.2012, as per her understanding has not excluded persons who have been promoted/granted financial upgradation under the ACP Scheme to higher Grade Pay w.e.f. 1.1.2006. She sought clarification regarding whether above mentioned clarification by the Senior Auditor Officer of CAG office was on basis of any clarification from the Ministry of Finance. The Ministry of Finance replied vide reference dated 15.5.2014 that no such clarification had been issued by them. Based on the clarification collected under RTI Act, the applicant again requested to higher officials in November, 2014 to refix her pay in the revised scale of AAO after granting one increment in pre-revised scale of AAO at par with other officers in pursuance of Department of Expenditure’s OM dated 19.3.2012. The office of Controller General of India, vide order 28.4.2015 finally rejected her request for grant of increment. Being aggrieved the applicant has come to this Tribunal in the present Original Application, seeking the following relief(s):-

(i) Quash and set aside the impugned orders at Annexure A-1(Colly).

(ii) Direct the respondents to grant the applicant the benefit of one increment for fixation of pay taking into account which would have accrued to her in February 2006, in terms of OM dated 19.3.2012.

(iii) Direct the respondents to grant consequential benefits including the arrears of pay with interest thereon.

(iv) A direction granting cost of litigation to the Applicant.

On admission of the OA, notices were issued to the respondents and they have furnished their counter affidavit and subsequently the applicant has also filed her rejoinder to the same.

The main ground, as the learned counsel for the applicant has argued is that the respondents have erroneously interpreted the clarification issued by the Ministry of Finance vide OM dated 19.3.2012. The clarification as issued by the Finance Department is as follows:-

“3. On further consideration and in exercise of the powers available under CCS(RP) Rules, 2008, the President is pleased to decide that in relaxation of stipulation under Rule 10 of these Rules. Those central government employees who were due to get their annual increment between February to June during 2006 may be granted one increment on 1.1.2006 in the pre-revised pay scale as a onetime measure and thereafter will get the next increment in the revised pay structure on 1.7.2006 as per Rule 10 of CCS (RP) Rules, 2008. The pay of the eligible employees may be re-fixed accordingly.”

Learned counsel for the applicant has further argued that this clarification does not exclude the people who are supposed to get financial upgradation as on 1.1.2006 under the old ACP Scheme. The clarification issued by the Senior Administrative Officer in the respondent department is internal communication and it goes beyond the clarification issued by the Department of Expenditure in their OM dated 15.3.2012. Moreover, the learned counsel for the applicant has argued that the respondents have not made distinction between granting of annual increment as on 1.1.2006 and Financial Upgradation under the ACP Scheme as on 1.1.2006. Denying the benefits to the applicant of annual increment implies that she did not get her due annual increment for 17 months because her annual increment in the previous scale was due in the month of Feb. 2006 and she got the annual increment only w.e.f. 1.1.2006 with a delay of five months. Accordingly, the learned counsel for the respondents argued, that the applicant has been discriminated against the similarly placed employees in the Government.

Learned counsel for the respondents vehemently opposed the stand taken by the learned counsel for the applicant. Learned counsel for the respondents drew attention of this Tribunal to the letter dated 11.3.2015 vide which this reference of Office of Controller Auditor General of India had again clarified that “it has been intimated that benefit of one-additional increment has been extended to such incumbents in your office who have been promoted /granted financial up gradation to the higher grade pay of Rs.5400/-. Regulation of pay by allowing one additional increment to such incumbents who have been granted higher grade pay as on 1.1.2006 is not in order as their date of next increment on grant of promotion/financial up gradation to higher grade pay depends on the option for fixation of higher pay on 1.1.2006 and in such situation the date of next increment in the lower post i.e. the post against which their increment in pre-revised scale was due between February and June, 2006 has no bearing.”

By this clarification, the Administrative Authorities in the CAG have stated that the option of getting one increment from 1.1.2006, if any employee’s increment was due in between Feb., to June w.e.f. 1.1.2006 was condition upon exercising the option of fixation of higher pay on 1.1.2006 and in the instant case the applicant had given a upgradation in the Auditor Officer under the old ACP Scheme in 2010 with retrospective effect from 1.1.2006 on merger of the position of the Section Officers and the Assistant Auditor Officers (AAO). As he already got upgradation w.e.f. 1.1.2006, he is not entitled to get the benefit under the revised pay scales as per the Finance Ministry’s OM dated 19.3.2012. He has further stated that based on these clarification from the headquarters of CAG recovery has been effected in the case of Sh.SPO Poulose, Senior Auditor Officer (Commercial) in the office of AG Audit-III, Maharastra, Shri Punit Kaushik, Senior A.O. (Commercial) in the office of Principal Director of Commercial Audit Board –I , New Delhi.

We have gone through the records of the case and heard the arguments carefully. Here is the main issue is whether an employee, whose annual increment in the old pay scale was due in the month of Feb. and June 2006 and if such employee have got the benefit of financial upgradation under the ACP Scheme as on 1.1.2006, was entitled to such benefits of additional annual increment under the ACP as on 1.1.2006. The Finance Department vide their clarification dated 15.3.2012 has not discussed this particular issue. It is only the Administrative Division of CAG has interpreted this matter according to on their own when the applicant moved the application under the RTI whether such interpretation of the CAG, Administrative Division is based on clarification issued by the Ministry of Finance. The Finance Ministry denied any such clarification was given to the CAG.

In view of the above, it will be appropriate that the respondents should make a self-explanatory note and move to the Department of Finance seeking their clarification in the matter whether employees like the present applicant, who have got benefit of ACP Scheme w.e.f. 1.1.2006, are also entitled to get one additional benefit of one increment as on 1.1.2006 in view of the instructions issued by them on 15.03.2012. These references should be made within four weeks from the date of receipt of the order of this Tribunal and the Finance Ministry should provide the clarification within one month from the date of receipt of such reference from the Administrative Division of CAG.

The OA is disposed of in terms of the aforesaid directions. There shall be no order as to costs.

All pending MAs are also disposed of accordingly.