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Allahabad High Court · body

2018 DIGILAW 1922 (ALL)

CHIEF CONTROLLER OF ACCOUNTS v. RAJESH CHANDRA

2018-09-05

MANOJ MISRA, VED PRAKASH VAISH

body2018
JUDGMENT By the Court.—As both these petitions challenge the same order dated 31st March, 2011 passed by the Central Administrative Tribunal, Allahabad (in short the ‘Tribunal’) in Original Application No. 1291 of 2009, with the consent of the learned Counsel for the parties, both these petitions have been heard together and are being decided by a common order. 2. We have heard Sri Subodh Kumar for the petitioners; Sri Ajay Rajendra for the respondent in both the petitions and have perused the record. 3. The facts giving rise to the present petition could be summarZed as follows : 4. The sole respondent (Rajesh Chandra) was initially appointed as Battery Man on 13.2.1973 and thereafter confirmed on 1.3.1976. Under the provisions of One Time Bound Promotion (in short ‘OTBP’), the respondent was granted promotion on 14.12.1989, after completion of 16 years of service w.e.f. 12.12.1989. His salary was likewise fixed in the higher scale w.e.f. 23.2.1989. The sole respondent thereafter superannuated at the age of 60 years on 31.3.2008. At the time of superannuation, the pay of the respondent was Rs. 6,970/- in the scale of pay of Rs. 4720-150-6970 and his pension was calculated accordingly keeping in view the last pay drawn. After his retirement, by order dated 7.7.2008, the department modified the date of OTBP from 12.2.1989 to 1.12.1990 without any notice and, thereafter, by order dated 1.8.2008, the department issued another last pay certificate thereby reducing the applicant’s pay from Rs. 6,970/- to Rs. 6,820/-. Consequent to such revision, recovery of Rs. 26,957 was ordered. 5. Aggrieved by downward revision of his pay and its effect on his pension as well as recovery, OA No. 342 of 2009 was filed by the respondent which was disposed of by the Tribunal by giving liberty to the respondent to file a representation which was to be decided by the department by a speaking order. Pursuant to the liberty given by the Tribunal, the respondent submitted his representation dated 27.5.2009, which was rejected by order dated 7.10.2009. 6. The order dated 7.10.2009 cites circular of the Government of India, Ministry of Communication No. 15-3-93-TE-II dated 17.2.1995 by which it was clarified that the eligibility for OTBP, for Non-Test category employee, total service in Group ‘D’ is to be taken but the financial effect is to take place from the date not earlier than 17.2.1995. 6. The order dated 7.10.2009 cites circular of the Government of India, Ministry of Communication No. 15-3-93-TE-II dated 17.2.1995 by which it was clarified that the eligibility for OTBP, for Non-Test category employee, total service in Group ‘D’ is to be taken but the financial effect is to take place from the date not earlier than 17.2.1995. After noticing the aforesaid circular, in paragraphs 3 and 4 of the order dated 7.10.2009, it was observed as follows : “3. In view of the facts mentioned above the order dated 14.2.1989 subsequently revised on 7.7.2008 by GMTD for promotion to OTBP and resultant pay fixation w.e.f. 12.2.1989 and 1.12.1990 respectively is irregular and in contravention of instructions/orders dated 17.2.1995 and 25.7.1995. 4. As such, it is intimated that the promotion under OTBP and financial benefits cannot be given prior to 17.2.1995 as per instructions contained in DOT letter dated 25.7.2009.” 7. Assailing the order dated 7.10.2009 of the department, the respondent filed Original Application No. 1291 of 2009 before the Tribunal. The Tribunal, by the impugned order dated 31st March, 2011, allowed the original application and declared that the applicant’s last pay cannot be depleted from Rs. 6,970/- nor could there be any recovery, much less revision of pension to the detriment of the applicant. It further restrained the department from giving effect the revised/reduced last pay and recovery order. 8. Sri Subodh Kumar, who has appeared for the petitioners in both these petitions, has submitted that the circular dated 17.2.1995, by which the benefits of OTBP was provided to the respondent, had clearly mentioned that the financial benefits will take effect not earlier than 17.2.1995 therefore the benefits provided earlier to the respondent were liable to be corrected and made in conformity with the circular. Hence, the Tribunal was not justified in setting aside the order passed by the department. 9. Learned Counsel for the respondent has submitted that the benefits of OTBP was provided (by order dated 14.12.1989) much earlier to the issuance of the circular dated 17.2.1995 and, therefore, by subsequent circular that benefit could not have been withdrawn. Hence, the Tribunal was not justified in setting aside the order passed by the department. 9. Learned Counsel for the respondent has submitted that the benefits of OTBP was provided (by order dated 14.12.1989) much earlier to the issuance of the circular dated 17.2.1995 and, therefore, by subsequent circular that benefit could not have been withdrawn. He has further submitted that the department has itself recorded a finding that the pay fixation was made by order dated 14.2.1989 as was clear from the order dated 7.10.2009, therefore, how could the said order be in contravention of instructions/orders dated 17.2.1995 and 25.7.1995 which were issued six years later. 10. We have given thoughtful consideration to the rival submissions. We find that nothing has been brought on record by the petitioners to indicate that the pay fixation made on 14.12.1989, consequent to OTBP, was against any policy that prevailed on that date. The order, which was impugned before the Tribunal, itself indicates that it was passed under the assumption that the fixation was against the clarificatory circular dated 17.2.1995. It is well-settled in law that executive instructions cannot have retrospective effect so as to adversely affect accrued rights of the persons concerned. Under the circumstances, there was no justification for the department to revise the salary downward, which was fixed earlier in the year 1989 on the basis of subsequent circular issued in the year 1995. Therefore, we do not find any good reason to interfere with the order passed by the Tribunal. 11. Both the petitions are accordingly dismissed.