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2022 DIGILAW 371 (TRI)

Union of India v. Gautam Kumar Das

2022-09-14

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. B. Majumder, learned C.G.C. appearing for the petitioners. Also heard Mr. S. Bhattacharjee and Mr. K. Nath, learned counsel appearing for the respondent. 2. This petition has been filed under Article-226 of the Constitution of India for enforcement of the Constitutional and Fundamental rights of the petitioners guaranteed under Articles-14 and 21 of the Constitution of India and their legal and statutory right guaranteed under CCS (Revised Pay) Rules, 2008 along with the Rules/Instructions relating to CCS (Revised Pay) Rules, 2008, different office memorandums issued by the Central Govt. and FR-SR. Also for setting aside/quashing the impugned judgment and order dated 07.11.2019 passed by the Central Administrative Tribunal, Gauhati Bench, Circuit Court at Agartala in case No. OA 041/00178 of 2018 for rendering substantive and consignable justice to the petitioners. 3. The precise grievance of the respondent, herein, (applicant in the O.A. 041/00178 of 2018) is that he was appointed stenographer Grade-III on 11.02.1993 under the petitioner's department. He was, thereafter, promoted to the post of personal assistant on 10.01.2008 without any fixation. While one of his juniors namely Sri Dinesh Kumar Baidya, P.A. was allowed stepping up of pay w.e.f. 01.07.2006 and due to that, the respondent has been drawing lesser pay than his junior. The respondent, after lapse of couple of years, came to know about the anomaly of his pay with reference to that of his said junior, he made several representations to the department having requested for stepping up of his pay at par with his juniors, but those were rejected. 4. The pay of the respondent had again been erroneously stepped up at par Smt. Rupali Biswas, PA subsequently, which was cancelled. The respondent being aggrieved thereby with the actions of the department filed OA. challenging those orders. The department filed their common counter/reply against the said OA pointed out that the respondent had already availed the stepping up of his pay, thus, a second time stepping up of his pay at par with his junior Sri Dinesh Kumar Baidya is not permissible under note 10 Rule-7 of CCS (Revised Pay) Rules, 2008 and prayed for dismissal of the said OA. But, the learned CAT, on 07.11.2019 allowed the said OA. 5. But, the learned CAT, on 07.11.2019 allowed the said OA. 5. The petitioners, herein, i.e. the Union of India, being aggrieved thereby have preferred this petition assailing the impugned order dated 07.11.2019 passed by the learned CAT and prayed for setting aside the same. 6. Mr. B. Majumder, learned CGC appearing for the petitioners has submitted that filing of original application by the respondent is not tenable in the eye of law as the tribunal did not issue any notice to the necessary party in the said proceeding. The tribunal while passing the impugned order dated 07.11.2019 has given much stress to grant the respondent stepping up of his pay at par with his junior Sri Dinesh Kumar Baidya without going to the other aspect of the case that the respondent's pay was earlier stepped up at par with his juniors. 7. The tribunal at the time of passing impugned order dated 07.11.2019, under an erroneous thought, believed that had the respondent got interim relief in his favour due to the reason of stay granted earlier not to make payment of Rs. 48,568/- only which was wrongly paid by the department to him due to stepping up of his pay at par with Smt. Rupali Biswas. 8. He has also stated that the impugned order dated 07.11.2019 is contrary to the provisions laid down under Note-10 Rule-7 of CCS (Revised Pay) Rules, 2008 which, for the purpose of reference may be reproduced as follows: 'the setting up of pay is admissible with reference to the first junior (not necessarily immediate junior) on only one occasion, but if the junior concerned gets his pay stepped up at par with one junior to him, then the pay of senior may again be stepped up.' 9. The tribunal ought to have understood that initially ACP was introduced by the Govt. on India in 1998 and MACP is updated or modified scheme as per recommendation of sixth CPC counting for up gradation under MACP starts from direct entry grade on completion of 10, 20 and 30 years of service respectively. But the tribunal has failed to understand that the pay of Sri Dinesh Kumar Baidya is higher than the respondent due to the grant of his stepping up of his pay w.e.f. 01.07.2006. 10. But the tribunal has failed to understand that the pay of Sri Dinesh Kumar Baidya is higher than the respondent due to the grant of his stepping up of his pay w.e.f. 01.07.2006. 10. He has further argued that the pay of the respondent herein was earlier stepped up with reference to pay of his junior vide order dated 24.06.2011 in terms of the said Rule, the stepping up of pay is admissible with reference to the junior but (not necessarily immediate junior) on only one occasion, but if the junior concerned gets his pay stepped up at par with one junior to him, then the pay of senior may again be stepped up. Therefore, according to the said Rule, the alleged claim of the respondent for stepping up/re-fixation of pay with reference to pay of his another junior, under the said Rules was not considered vide memo dated 11.01.2017 and 13.12.2017. 11. There is no rule for second time stepping up of pay with reference to another junior in terms of note-10 under Rule-7 of the CCS (Revised Pay) Rules, 2018, only stepping up of pay at second time is allowed with reference to his first junior subject to fulfillment of all other conditions under Note-10 Rule-7 of CCS (Revised Pay) Rules, 2008. He has submitted that stepping up of pay of the respondent for the second time with respect to the pay of another junior other than his first junior Sri Biju Narayan Brahma cannot be acceded to as well as tenable in law. 12. The respondent has made representations before the department again and again and requested for stepping up of his pay w.e.f. 01.07.2006 to bring it at par one of his juniors namely, Dinesh Kumar Baidya on the ground that the pay of the said Dinesh Kumar Baidya had been stepped up with respect to another junior. He has submitted that tribunal ought to have understood that keeping in view of the rule position on stepping up of pay under Note-10 Rule-7 of CCS (Revised Pay) Rules, 2008 as well as under FR-22 (now FR-22(1)(a)(1), as the pay of the respondent already been stepped up with reference to his junior namely, Sri Biju Narayan Bramha, now his case for stepping up of pay for a second time with reference to another junior namely Dinesh Kumar Baidya from another date, is not permissible under the law. 13. Learned counsel appearing for the respondent has submitted that according to the seniority list of stenographers as on 21.11.2007 as well as seniority list of Pas as on 02.04.2011, the respondent is senior to Sri Dinesh Kumar Baidya who joined later than him on 21.03.1994. Consequent upon implementation of 6th CPC pay of the respondent was fixed at Rs. 11,020/-+Grade Pay of Rs. 4,600/- w.e.f. 01.07.2006 in the pay band of Rs. 9,300-34,800/-. 14. It has been further submitted that the anomaly arose when pay of his junior Sri Dinesh Kumar Baidya was stepped up and fixed at Rs. 13,860/- + Grade pay of Rs. 4,600/- w.e.f. 01.07.2006 vide order dated 17.12.2012 thus, the respondent is drawing lesser pay than his junior Sri Baidya. After knowing about the said anomaly, the respondent has submitted representation with a prayer for stepping up of his pay at par with his juniors. 15. For the purpose of reference, the observation of the tribunal may be reproduced hereunder: 'In the cited decision of the Hon'ble Karnataka High Court also, as quoted above, the entitlement of the applicant to monetary benefits was restricted to three years only. Accordingly, entitlement of the applicant to arrear monetary benefits consequent upon the stepping up of his pay would be three years prior to the date of filing of this OA i.e. 07.05.2018. The OA is disposed of as above. There shall be no order as to costs.' 16. After meticulous appreciation of the evidence on record, it reveals that pay of the respondent was once stepped up at par Smt. Rupali Biswas, PA, which was subsequently withdrawn by the department on the ground that since he had earlier granted stepping up with Sri Biju Narayan Brahma, further stepping up is not admissible and recovery of Rs. 48,568/- was ordered vide memorandum dated 24.03.2018. It has also been transpired that the respondent never prayed for any stepping up of pay with Smt. Rupali Biswas, but the same was granted by the department on their own and had challenged the recovery of Rs. 48,568/- in his OA but, the tribunal vide order dated 10.05.2018 stayed the recovery. 17. 48,568/- was ordered vide memorandum dated 24.03.2018. It has also been transpired that the respondent never prayed for any stepping up of pay with Smt. Rupali Biswas, but the same was granted by the department on their own and had challenged the recovery of Rs. 48,568/- in his OA but, the tribunal vide order dated 10.05.2018 stayed the recovery. 17. As per Note-10 to Rule-7 of the CCS (Revised Pay) Rules, 2008, stepping up of pay is admissible with reference to the first junior (not necessarily immediate junior) on only one occasion, but if the junior concerned gets his pay stepped up at par with one junior to him, then the pay of the senior may again be stepped up. Accordingly, his pay was earlier stepped up at par with Sri Biju Narayan Brahma w.e.f. 15.01.2008. Therefore, the pay of the respondent can only be stepped up if the pay of his junior Sri Brahma is also stepped up at par his junior which is not the case here. 18. It reveals that the respondent is senior to Sri Dinesh Kumar Baidya and upon implementation of the 6th CPC the pay of the respondent was fixed at Rs. 11,020/- + Grade pay of Rs. 4,600/- w.e.f. 01.07.2006 whereas, Sri Dinesh Kumar Baidya was drawing Rs. 13,860/- + Grade pay of Rs. 4,600/- w.e.f. 01.07.2006. The petitioners have admitted that the respondent is senior to Sri Dinesh Kumar Baidya and the respondent is drawing lesser pay than Sri Dinesh Kumar Baidya. 19. In view of above analogy, we are of the considered view that there is no infirmity in the finding arrived at by the tribunal and thus, the present petition stands dismissed and needs no interference whatsoever. As a sequel, miscellaneous applications pending, if any, shall stand closed.