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2014 DIGILAW 292 (MEG)

Jalesh Kumar v. Union of India

2014-12-08

T.NANDAKUMAR SINGH, UMA NATH SINGH

body2014
Judgment Uma Nath Singh; ACJ. 1. We have heard the learned counsel for parties and perused the pleadings of writ petition. Being aggrieved by judgment and final order passed by Central Administrative Tribunal (Guwahati Bench) dated 11.03.2014, dismissing OA of petitioners having been found to be devoid of merit. They have preferred this writ petition. Operative portion of order passed by Central Administrative Tribunal reads as under: "9. With regard to the option for pay fixation, which was the subject matter of the direction given by this Tribunal, it is submitted by the respondents that the very basis for that demand by the applicants and subsequent direction by the Tribunal was the objection raised by the Audit. However, the Audit had already accepted the explanation given by the respondents and dropped the para, we do not have any basis to pursue it further. We agree with the submission of the respondents that the adequate opportunity does not necessarily mean a face to face meeting. In the circumstances of this case since there have been several representations by the applicants addressed to the respondents that would have substantially covered whatever materials and arguments they had in support of their claim, another opportunity to submit any additional materials and arguments would meet the requirement of giving adequate opportunity. 10. Considering the entire conspectus of the case and for the aforesaid reasons we find the OA devoid of merit and hence the same is dismissed. No costs." 2. Learned counsel for petitioners submitted that the petition have been raising demand for correct pay fixation in terms of Sixth Pay Commission, whereby they being Assistants working in the Assam Rifles were entitled to claim revised pay scale of Rs. 6500/- to Rs. 10500/- w.e.f. 03.01.2014. Learned counsel also referred to Office Memorandum of Ministry of Finance Department of Expenditure to argue as to how pay is to be fixed in the case of petitioners and other Assistants working in the Assam Rifles which reads as follow: 3. It is also the submission of learned counsel that the Department of Personnel and Training also proposed to issue a separate order for grant of pay structure of grade pay of Rs. 4600/- in the pay band PB-2 to Assistants of Central Secretariat service which is quoted hereunder:- "4. It is also the submission of learned counsel that the Department of Personnel and Training also proposed to issue a separate order for grant of pay structure of grade pay of Rs. 4600/- in the pay band PB-2 to Assistants of Central Secretariat service which is quoted hereunder:- "4. Further, it is noticed that DOPT proposes to issue a separate order on the subject of grant of pay structure of grade of Rs. 4600 in the pay band PB-2 to Assistants of Central Secretariat Service. In this connection, it is intimated that generally the Government issued only one Order regarding modification in pay scales of a particular category of Government servants. In the present case, since Department of Expenditure has already issued an O.M. on the subject of grant of pay structure of grade pay of Rs. 4600 in the pay and PB-2 to Assistants and Personnel Assistants of CSS and CSSS respectively, there does not seem to be any need to issue another Order on the same subject. Internal instructions may, however, be issued on matters like manner of fixation of pay, etc." It is further the submission of learned counsel on the basis of Office Memorandum of Department of Public Grievance and Pension dated 24.03.2009 that where two or more pay scales have been merged, the existing DPC for the high/higher grade will be the DPC of the merged grade. The relevant part of the said Memorandum on reproduction reads as: "(iv) Department Promotion Committee (DPC) Where two or more scales have been merged, the existing DPC for the higher/higher grade will be the DPC of the merged grade." 5. Learned counsel submitted that first order of the Central Administrative Tribunal dated 02.03.2012, whereby, directions were issued in favour of the petitioner was based on audit report/objection pointed out to Assam Rifles by Office of Accountant General (Audit) Meghalaya. Para 6 of the judgment being relevant, is reproduced hereunder: "6. We have heard the rival submissions in the light of material placed before us. It is not made clear that whether applicants did give option for fixation w.e.f. 15.09.2006 with reference to the pre-revised pay scale of Rs. 6500-10500/-. In the eventually, the applicants had given such option, recourse to be made to the aforesaid clarification and computation to be made accordingly. We, therefore, in the interest of justice, direct the respondent no. It is not made clear that whether applicants did give option for fixation w.e.f. 15.09.2006 with reference to the pre-revised pay scale of Rs. 6500-10500/-. In the eventually, the applicants had given such option, recourse to be made to the aforesaid clarification and computation to be made accordingly. We, therefore, in the interest of justice, direct the respondent no. 6 to make recourse to the records and in case such option are given, to follow the clarification given in the inspection report of the Accountant General (Audit), as quoted in paragraph 4 of this order, and pass a reasoned order after providing adequate opportunity to the applicants of being heard within a period of three months from the date of the receipt of this order." 6. Learned counsel submitted, that thereafter, the Establishment Branch SB Section of Assam Rifles vide paragraph 4 pointed out that the said branch had not received any instruction regarding the implementation of clarification in respect of 6th Central Pay commission's report issued by the Government of India, Ministry of Finance. Therefore, the Branch did not ask for any option from applicants. However, it is reiterated that applicants on their own had submitted their representations for grant of benefits of pre-revised pay scale of Rs. 6500/- to Rs. 10,500 in their initial pay fixation in pay-band (PB-2) in question. It appears that the Directorate General of Assam Rifles thereafter on 27.06.2012 rejected the claim of the petitioners while holding that in view of the aforesaid facts and considering the Rules on the subject, grant of higher pay scales was not admissible and the claim of Shri. Santanu Bhattcharjee, Superintendent, and 36 others of Directorate General Assam Rifles is devoid of merit and substance, and hence, the same was rejected. This order was questioned again before the CAT and by the impugned judgment and order, the same was rejected. During the course of earlier hearing, this Court sought further clarification from the Accountant General (Audit) in this regard, who filed affidavit dated 10.11.2014. The position has been clarified in affidavit (para 3) as under: That the Audit Party during their Audit had pointed out some observation for the period from 01 May 2004 to 31 December 2009 in their preliminary objection, dated 23-12-2010, regarding loss of pay due to wrong fixation in respect of Assistant of the Office of the Director General of Assam Rifles, Shillong. Accordingly, Office of the Accountant General (Audit) had prepared the Inspection Report for the period 1-5-2004 to 31-12-2009 and it was forwarded to the Director General Assam Rifles, Shillong had replied to the Inspection Report based on their records, and it was clarified that the pay of the Assistants had been fixed correctly after merging it in the pay scale of 6500-10500 in terms of illustration 4 B under memorandum explanatory to the Civil Service (Revised Pay) Rules 2008 given in Part C of Part-II Section 3(i) of extraordinary Gazette of India dated 29th August, 2008. On the basis of the said clarification by Director General Assam Rifles, Office of the Accountant General (Audit), dropped the paragraph 6 of the Inspection Report". 7. In that view of the matter when the claim of the petitioners was essentially based on the audit objection already accepted by the Office of the Accountant General, there survives no basis for this Court to remand the matter as prayed by the learned counsel for the petitioners or to reopen it. The judgment and order of the Tribunal does not suffer from any infirmity and the explanation given by the Assam Rifles had been accepted. 8. Thus, the writ petition is hereby dismissed.