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Judgment
D.V. Shylendra Kumar, J.—The writ petitioners are all persons who are working as a Technical Assistants ''A'' in the Aeronautical Development Establishment, Defence Research and Development Organisation (for short ''DRDO'') at Bangalore had been promoted from the Technical Assistants ''A'' to Technical Assistants ''B'' on they being evaluated on their eligibility for promotion by the Local Assessment Board and in terms of the provisions of the Cadre and Recruitment Rules applicable to the employees of the Research Establishment during the years 2006, 2007 and 2008 i.e., in between 1st of September, 2006 and 1st of September, 2008. The petitioners accepted the offer of promotion and started functioning in the higher position of Technical Assistants ''B'' and corresponding benefits are also being extended to the petitioners and they are drawing the salary in the higher grade of Technical Assistants ''B'' from the date they assumed the charge in the said grade. In the interregnum, the VI Central Pay Commission submitted its report to the Central Government containing various recommendations. The Central Government accepted the recommendations and amended the Central Government Civil Services (Revised Pay) Rules, 2008 and notified the same as per the notification dated 29.8.2008. However, it was implemented with effect from 1.1.2006. As per the recommendations of the Pay Commission, the Grades of Technical Assistants ''A'' with the pay scale of Rs. 5,000-8,000/- and Technical Assistants ''B'' with the pay scale of Rs. 5,500-9,000/- in which pay scale the petitioners were at that time came to be merged and a common revised pay scale of Rs. 9,300-34,800/- with the grade pay of Rs. 4,200/- was fixed for the merged grade of Technical Assistants ''B'' retrospectively from 1.1.2006. Writ Petitioners had exercised their option for the revised pay scale while holding the post of Technical Assistants ''B'' to which post they had already been promoted. On the exercise of the option, commensurate benefits were also given to the petitioners. However as per the order dated 29th September, 2009, the Senior Administrative Officer Grade-II functioning on behalf of the Director of Defence Research and Development Organisation Aeronautical Development Establishment, New Thippasandra Post, Bangalore issued an office order indicating that the promotions of the'' petitioners had been given and on 1st September 2006 promotion from Technical Assistants ''A'' to Technical Assistants ''B'' gets cancelled and their pay fixation already done was being withdrawn and as a consequence, persons like petitioners were advised to refund the entire amount of benefits which they had earned earlier on promotion as per certain terms offered failing which the amount will be recovered in one lumpsum from the pay and allowance for the month of October, 2009. Feeling aggrieved by this order, writ petitioners questioned the same by filing applications before the Central Administrative Tribunal, Bangalore Bench, Bangalore in application No. 450/2009 and there is an interim order passed by the Tribunal on 15.10.2009 staying the implementation of the recovery order. It appears the applications had been withdrawn by the Principal Bench of the Tribunal, New Delhi on 19.11.2009 to be heard along with similar applications which were pending before the Principal Bench of the Tribunal and other places. The matter was transferred because similar matters were pending before the different Benches of the Tribunal at different places. Ultimately, the Principal Bench of the Tribunal heard the applications fried by the present writ petitioners along with various like applications that had been transferred to the Principal Bench and on noticing the submission made by the learned Counsel appearing for the Central Government to the effect that the implementation of the VI Central Pay Commission and the manner of giving effect to it was a policy decision of the Government and that having been uniformly applied and on the recommendations of the VI Central Pay Commission, if Technical Assistant ''A'' post and Technical Assistant ''B'' post had been merged and two grades eliminated with effect from 1.1.2006, no exception can be taken and therefore, there cannot be any promotion within the Grade on and after 1.1.2006 and further noticing the submission of Sri A.K. Bhardwaj that no actual recovery from the pay of the applicants was involved and the amounts involved get adjusted on fixation of their pay in the new scales that have come into effect on implementation of the VI Central Pay Commission''s recommendations etc., proceeded to examine the matter and found no occasion to interfere and accordingly, dismissed all the applications.
It is aggrieved by this order dated 30th July 2010 passed by the Principal Bench of the Central Administrative Tribunal in Original Application No. 713/2010 (Annexure-A to the writ petitions) in so far as it relates to the petitioners are concerned, the present writ petitions.
Appearing on behalf of the writ petitioners Sri D. Leelakrishnan, learned Counsel submits that the matter is now covered by the earlier judgment of tins Court rendered in the case of like employees of the Central Government but employed in a different establishment of: DRDO viz., Junior Technical Officer, Controllerate of Quality Assurance Electronics, JC Nagar Post, Bangalore that similar persons as the writ petitioners had also approached the Central Administrative Tribunal, Bangalore Bench questioning the identical recovery notice as in the case of the writ petitioners that the Bangalore Bench of the Central Administrative Tribunal in its order dated 11th of April, 2011 passed in Original Application No. 407/2009 before it had allowed the applications and quashed the order of recovery and this order dated 11th April, 2011 was further carried by way of writ petitions filed before this Court by the Director General, Head Quarters, New Delhi and the concerned authorities of the New Delhi of the Controllerate of Quality Assurance Electronic, J.C. Nagar Post, Bangalore in Writ Petition No. 15515-521/2012 and the matter was heard and as per the order dated 28th day of May, 2013 passed in these petitions, this Court has already dismissed the writ petitions finding no occasion to interfere with the order of the Tribunal and therefore submits that the petitioners case in these writ petitions being the same as that of the case of the applicants in other batch before the Bangalore Bench of the Central Administrative Tribunal referred to above, these writ petitions are also to be allowed setting aside the order of the Principal Bench of the Tribunal at New Delhi, in so far as the order relates to the petitioners is concerned. It is also submitted that the amounts already recovered should be directed to be refunded following the order passed by this Court in W.P. Nos. 15515-521/2012 and these writ petitions have to be allowed in terms of the earlier order.
The matter has been listed for such purpose to examine the submission as Sri D. Leelakrishnana contends that these writ petitions had to be allowed in terms of the earlier order passed in W.P. Nos. 15515-521/2012.
Sri Naveen Chandrashekar, learned Standing Counsel appearing on behalf of the respondents on the other hand would urge that not all aspects of the matter had been considered in the other judgment; that the petitioner had been given an option in terms of Annexure-R7 to the statement of objections filed before the Tribunal; that the proviso to para-5 of the revised pay Rule 5 of the Central Civil Services (Revised Pay) Rules, 2008 reads as under:
In accordance with the provisions contained in Rule 11 of the Central Civil Services (Revised Pay) Rules 2008, where a Government servant opts to continue to draw his pay in the existing scale from the 1st day of January 2006 and switch over to the revised scale from a date later than the 1st day of January, 2006, his pay from the later date in the revised scale is required to be fixed under Rule 11 (i) of the Central Civil Services (Revised Pay) Rules, 2008. As per Rule 5 of these Rules, this option to switch over to the revised pay structure from a date later than 1.01.2006 is available to a Government Servant:
i) Who elects to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
ii) Who has been placed in a higher pay scale between 1.01.2006 and the date of notification of these Rules on account of promotion, up-gradation of pay scale etc., the Government servant may reflect to switchover to the revised pay structure from the date of such promotion, up-gradation etc.
As per Rule 6(1) of Central Civil Services (Revised Pay) Rules, 2008 the option in the format appeared to the Second Schedule was required to be exercised within three months from the date of issue of these Rules.
Further Rule 6(4) provided that the option once exercised shall be final. The Staff Side has represented on this issue and have requested that the first option exercised may not be treated as final keeping in view the new system of pay band and grade pays and that employees may be allowed to revise their option if the option is more beneficial to them.
On further consideration and in exercise of the powers available under Central Civil Services (Revised Pay) Rules, 2008, the President is pleased to decide that in relaxation of stipulation under Rule 6(4) of these Rules employees may be permitted to revise their initial option upto 31.12.2010 if the option is more beneficial to them.
Provided further that in cases where a Government Servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, up-gradation of pay scale etc., a Government Servant may elect to switch over to the revised-: pay structure from the date of such promotion, up-gradation etc., and therefore submits that the writ petitioners cannot succeed in these writ petitions and they cannot have a double benefit both viz., that of getting the higher salary in the promoted post from the date of their promotion and also the benefit of revised pay scale as per the recommendation, of the VI Central Pay Commission on and after the post came to be merged; that it amounts to giving them benefits which were not contemplated over and above what is provided in the VI Central Pay Commission having been opted which they had already exercised and therefore, the recovery which was sought to be done was justified in law. Sri Naveen Chandrashekar submits that the petitioners having exercised the option cannot now go back and therefore, no merit in the writ petitions and it has to be dismissed. It is also submitted that the implementation of the recommendation of the VI Central Pay Commission being a policy matter and no interference is called for as has been observed by the Principal Bench of the Central Administrative Tribunal, New Delhi and therefore, also submits that these writ petitions deserve to be dismissed.
Sri D. Leelakrishnan on the other hand submits that the writ petitioners are not questioning the implementation of the VI Central Pay Commission as a policy but are only aggrieved with certain benefits which are already been given is sought to be recovered as per the recovery notice order referred to above (Annexure A-4 to the application before the Tribunal); that the Principal Bench of the Tribunal at New Delhi having dismissed the applications only on noticing the submission made by the Counsel that no recoveries will be made or are contemplated and that the Tribunal having expressly taken note of these undertakings that there will be no further recovery of the benefits already extended and the recovery notice, at any rate, sought to be enforced on the writ petitioners, were suspended and therefore, these writ petitions should be allowed to the extent of writ petitioners being aggrieved by the recovery orders.
We find that the view taken by this Court in the earlier round of writ petitions in W.P. Nos. 15512-521/2012 though it is in the case of another research establishment of DRDO, in principle, does not make any difference as implementation of the recommendations of the VI Central Pay Commission is uniformly extended to all establishments in DRDO and all branches of the Central Government through out the Country.
The limited question that we are required to examine is as to whether the recoveries are valid or not? We have already opined affirming the view of the Tribunal that the recovery was not justified particularly as the persons like the writ petitioners had earned their promotions in the normal course and they were performing in the promoted post and the salary which they had earned was due to them at that time which they had earned and later on, if the recommendations of the VI Central Pay Commission is implemented and of course even assuming that the persons like writ petitioners had exercised an option, it cannot be said that they can be denied the benefit of VI Central Pay Commission which can be required to be extended to all employees. The limited question was as to whether on merger, the benefits which they had been given in the revised pay scale should be continued? There cannot be any doubt that it should be continued as this is the pay scale as of now on acceptance of the VI Central Pay Commission but benefit already given based on the promotion and services rendered and pay given to a date prior to the notification of the acceptance of the recommendations of the VI Central Pay Commission cannot be recovered on the premise that it amounts to double benefit. We make it clear that while the pay scale on the implementation of the recommendation of the VI Central Pay Commission, revised pay scales to the merged Technical Assistants ''A'' to Technical Assistants ''B'' remains the same but recovery for the earlier is not justified and only to this extent, the writ petitions are required to be allowed in terms of the earlier order passed by us and the view taken by us in W.P. Nos. 15515 to 15521/2012 disposed of on 28.5.2013.
In conclusion we quash Annexure-A to the writ petitions. We set aside the order dated 30th July, 2010 passed in O.A. No. 713/2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi and quash the recovery orders dated 29th September, 2009 and implementation of which in respect of each of the petitioners (produced at Annexures-A4 to A13 to the Original Application No. 713/2010) of even date and in identical terms and issued in respect of all the writ petitioners who were the applicants in O.A. No. 713/2010 numbering 34 in all.
We make it clear that there cannot be any recovery of any pay and benefits already drawn by the writ petitioners in the name of implementation of the recommendations of the VI Central Pay Commission and purporting to be based on the option that they have exercised earlier. We also make it clear that amounts, if any, already recovered shall be refunded to the writ petitioners in terms of this order within a period of 3 months from the date of receipt of a copy of this order.