Shri K.V. Brahmaiah Vs. Union of India Rep. by the Secretary to Government, Department of Posts and Others - Court Judgment

SHRI HRIDAY NARAIN, MEMBER (ADMN.)

The present OA was filed by the applicant praying to-

(a) declare the inaction of the 3rd respondent in concluding that the applicant is not entitled to have his pay and allowances and pension fixed in the Higher Selection Grade I (HSG-I) with effect from 20.4.2002 to 4.4.2006 as being arbitrary, illegal and unsustainable;

(b) consequently direct the respondents to reckon the pay for the purposes of pay and allowances from 20.4.2002 to 4.4.2006 and also computing the terminal benefits as Rs.8,500/- in the scale of Rs.6500-10500;

(c) further direct the respondents to release the amount due and payable to the applicant based on such declaration and direction so granted together with interest at the rte of 24% per annum with quarterly rests from the date the amounts became due and payable till the date of actual payment;

(d) further declare that the applicant is entitled to exemplary costs for having thrust this unwarranted lis without any legally valid and tenable reasons

(e) to fix an accountability and avoid the tax payer being taxed for the inaction of the public servants, direct that the amounts towards the interest and costs be recovered from the personal funds of the officer(s) concerned responsible for the same.

2. The brief facts of the case, as stated by the applicant in the OA, are that the applicant was appointed as a direct recruit Clerk (since redesignated as Postal Assistant). He had appeared for the Accounts Examination and earned promotions of Accountant, Assistant Post Master (Accounts). He was further promoted as Sub Post Master and was given the HSG II scale. He was granted the HSG-I scale on ad hoc basis with effect from 20.4.2002, which position he held till 8.6.2005 and later continued on a regular basis with effect from 9.6.2005.

3. According to the applicant, the respondents have agreed with his contention that he was to be promoted from the said date as his junior earned it from then till the date of his relief on accepting his request for voluntary retirement i.e., on 1.4.2007. The applicant states that he has been requesting that he be permitted to retire voluntarily and submitted his pension papers and in the normal course, terminal benefits ought to have been settled and released based on the 10 months' average pay drawn by him prior to his retirement. As on the date of he being relieved, he was drawing his pay and allowance at the stage of Rs.8,500/- in the pay scale of Rs.6500-10500.

4. The applicant states that inspite of repeated representations to the respondents, his terminal benefits were not settled. He filed OA No.59 of 2008 before this Tribunal. An interim direction was passed in the said OA directing the respondents to pay the applicant provisional pension as per his entitlement within one month from 31.1.2008. Thereafter, the applicant was sanctioned a provisional pension @ Rs.6,225/- and the said sanction was received by him on 16.2.2008.

5. The applicant further states that the respondents have proposed to recover the alleged amount of salary and allowances paid in excess on the ground that the orders of the Circle Office/Regional Office were not available for the period of officiation as HSG.I. He made a representation on 14.11.2007 giving reasons in support of the contention that there was no illegality in paying the salary and allowances and thus there was no question of effecting any recovery. He made another representation on 11.3.2008 drawing the attention of the respondents to the earlier representation dated 14.11.2007 to the effect that the pension ought to have been fixed at Rs.6315/- and requesting to state the reason for fixing the same at Rs.90/- less than his entitlement. He pointed out that he was working as HSG-I and the last pay drawn by him was Rs.8500 + Dearness Pay and according to the principle of taking last 10 months' average, the amount of pension should have been Rs.6,315/-. The 5th respondent issued the impugned order dated 17.3.2008 stating that the 3rd respondent had intimated vide letter dated dated 8.6.2007 that in the absence of the orders of C.O./R.O for the ad hoc promotion, the excess paid pay and allowances till the date of retirement is to be recovered and revised pension papers have to be furnished. Aggrieved by the said impugned order, the applicant has filed the present OA.

6. The main ground urged by the applicant is that he had discharged his duties in the capacity of HSG-I and had in fact retired while holding the said post. As long as this issue is not disputed, the rules governing the computation of pension have to be followed which makes it clear that the last 10 months' average pay has to be taken into account for the purpose. Any other method would be unsustainable and as such the impugned order cannot stand to scrutiny of this Tribunal.

7. It is stated that it was only after the applicant had submitted representation pointing out the wrong fixation of the pension, the respondent have communicated the decision taken by the 3rd respondent which is unsustainable.

8. It is further stated that as long as the applicant has been discharging the duties and the responsibilities of a higher post, there is no reason for holding that he would not be entitled to the pay and allowance based on the pay scale attached to HSG-I. Since the applicant had not misrepresented and drawn the higher pay, the question of recovery will not arise. It is well settled that leaving relevant factors and considering irrelevant factors would render the decision arbitrary. Any arbitrary action on the part of the respondents answering the description of State under Article 12 of the Constitution of India would be violating Articles 14 and 21 of the Constitution of India.

9. The respondents have filed reply statement on 3.11.2008 stating that while working as HSG-I SPM Dargamitta SO, the applicant had applied for permission to retire voluntarily on 1.4.2007 Forenoon, vide representation dated 14.12.2006. While processing his pension case, the Director of Accounts (Postal), Hyderabad vide letter dated 7.9.2007 had pointed out that the drawal of higher pay in the HSG-I cadre in an ad hoc manner from 20.4.2002 to 8.6.2005 is irregular in the absence of Circle Office/Regional Office orders. The orders of Circle Office/Regional Office were not there from 20.4.2002 to 8.6.2005, during which period the applicant was ordered to hold the charge of Postmaster, Gudur H.O., until regular arrangement is made for different spells from 20.4.2002 to 8.7.2002, 16.7.2002 to 30.7.2002; 1.8.2002 to 14.5.2004; 1.7.2004 to 8.11.2004 and 9.11.2004 to 8.6.2005. But the Postmaster, Gudur H.O drawn his pay and allowances in pay scale of HSG-I (scale Rs.6500-200-10500) without any orders. The applicant got notional promotion to HSG-I cadre with effect from 9.6.2005 and regular promotion to HSG-I cadre with effect from 6.4.2006 and continued in HSG-I cadre till the date of voluntary retirement. Hence, the Director of Accounts (Postal) had pointed out the same and ordered recovery of excess paid pay and allowances up to 31.3.2007 and also ordered to submit revised form-VII, calculation sheet and final L.P.C. for processing the provisional pension case. The pay of the applicant has been regulated as under as per the instructions of the Director of Accounts (Postal), Hyderabad:-

Date Pay due (Rs.)

20.4.2002 7250/-

1.5.2002 7400/-

1.5.2003 7400/- (increment withheld for 6 months)

1.11.2003 7550/- -do-

1.5.2004 7550/- (increment withheld for 3months)

1.8.2004 7700/- -do-

1.5.2005 7850/-

5.4.2006 8100/-

1.6.2006 8300/-

upto 31.3.2007 8300/-

The respondents state that after regulating his pay, the excess paid pay and allowances from 20.4.2002 to 31.3.2007 amounting to Rs.37,055/- was proposed for recovery from the retirement benefits of the applicant. The respondents have enclosed a comparative statement with due and drawn, calculation of pay and allowances from 20.4.20-02 to 31.3.2007 based on which excess paid pay and allowances amounting to Rs.37,055/- was arrived at, as Annexure R-9 and R-10. It is stated that no recovery has been made from the pay and allowances of the applicant in respect of the excess paid pay and allowances resulting drawal of higher pay in HSG-I scale (Rs.6500-200-10500) during the period from 20.4.2002 to 31.3.2007. As regards sanction of provisional pension as Rs.6315/- instead of Rs.6405/-, the revised pension calculation based on 10 months average emoluments is as under:-

Date of Birth : 1.7.1948

Date of entry in service : 25.5.1968

Date of Retirement : 1.4.2007 F/N (Voluntrily)

Total qualifying service : 38 Years, 8 months and 29 days

Limited to 66 half yerly periods

Average emoluments:

1.6.2006 to 31.3.2007 : Rs.8300x10=83,000

DP : Rs.4150x10=41,500

----------

1,24,500

----------

Average emoluments : Rs.1,24,500

--------------- = Rs.12,450

10

Pension: 50% of Average emoluments for completed 66 half lyearly periods:

12,450

----------- = Rs.6,225/-

2

The applicant gets 10 months average emoluments of Rs.12,450/-. Thus the provisional pension will be 50% of the average emoluments i.e., Rs.6,225/- but not as per the applicant's calculation w.e.f. 1.6.2006 to 31.3.2007. The provisional pension @ Rs.6225/- was sanctioned within the stipulated time by the competent authority [Director of Accounts (P)] with effect from 1.4.2007 to 31.3.2008 vide memo No.7641/Pen.IV/C.No.105/07-08, dated .01.2008 and @ Rs.6225/- from 1.4.2008 to 30.9.2008 vide Memo dated 22.4.2008.

10. It is stated that the applicant had worked as Postmaster HSG-II, Gudur HO in different spells in leave arrangements and retirement vacancies on temporary arrangement only. The details are as under:-

(1). Taken over charge of Postmaster, Gudur HO on the AN of 31.3.2002 and served up to 25.4.2002, due to retirement of Shri S.A.Kareem Postmaster, Gudur HO.

(2). Joined as APM, Counters, Gudur HO on the forenoon of 9.7.2002.

(3). Again taken over charge of Poster Master, HSG.I, Gudur HO w.e.f. 15.7.2002 to 21.7.2002 due to commuted leave on MC of Shri Y.Rama Kotaiah, Postmaster, Gudur HO.

(4). Again taken over charge of Poster Master, HSG.I, Gudur HO w.e.f. 26.7.2002 to 30.7.2002 on completion of his leave.

(5). Taken over charge of Poster Master, Gudur HO on the Afternoon of 31.7.2002 due retirement of Shri Y.Rama Kotaiah, Postmaster, Gudur HO.

(6). Vide SPOs, Gudur Memo dated 9.9.2002, the applicant, who is senior most BCR official in Gudur HO, was ordered to hold the charge of HSG.I Postmaster, Gudur HO from 1.8.2002 onwards until regular arrangement is made for the post i.e., up to 8.6.2005.

(7). During the period from 15.5.2004 to 30.6.2004, the applicant worked as SPM, SH Peta SO on HSG-II promotion.

(8). During the period from 1.7.2004 to 8.11.2004, the applicant worked as Postmaster, Dargamitta HSG.II SO (HSG.I cadre) on officiating basis.

(9). During the period from 9.11.2004 to 8.6.2005, he worked as Dy. Postmaster, Nellore HO (HSG.I cadre) on officiating basis.

(10). The applicant got notional promotion to HSG.I cadre with effect from 9.6.2005 and treated as worked on notional basis during the period from 9.6.2005 to 5.4.2006, vide order dated 5.4.2006. R.O directed that the applicant is not entitled for payment of any arrears of Pay and allowances for the period of notional promotion till he assumed the charge in the post of HSG.I.

(11). The applicant got regular promotion to HSG.I cadre w.e.f. 6.4.2006 and posted as DPM, Nellore HO vide R.O. Memo dated 5.4.2006 and worked as such up to 10.12.2006.

(12). During the period from 11.12.2006 to 31.3.2007 Afternoon, the applicant worked as SPM, Dargamitta SO.

(13). The applicant retired voluntarily on 1.4.2007 Forenoon.

The respondents state that in respect of items (1) to (6) above, no orders from R.O./C.O were obtained.

11. The respondents further state that it is clearly mentioned in the Directorate's Rulings No.4-19/2005-SPB.II dated 28.7.2005 that even for making ad hoc promotions, only those employees in the feeder cadre who fulfill the eligibility conditions prescribed in the Recruitment Rules should be considered. Therefore, irregular appointments, even on ad hoc basis from BCR officials to HSG.I, are not to be regularised or relaxation granted. In the Rulings No.4-19/2005-SPB.II, dated 28.9.2005 of the Directorate, it is further clearly mentioned that HSG.I posts are required to be filled from HSG.II officials only who have put in the requisite length of regular service in HSG.II for promotion to HSG.I. Hence, the applicant is not entitled to draw higher pay scale in HSG.I. It is stated that the last 10 months average pay has been taken into account, only after regulating the pay of the applicant.

12. The respondents further state that the applicant was identified as sub offender in the Margine Products Export Development Authority (MNPEDA) DDs' case in which an amount of Rs.5,78,338/- is involved and as per the orders of the District Consumers Disputes Redressal Forum (DCDRF), Nellore, an amount of Rs.5,53,239/- was deposited in the Forum in the form of DDs. As the applicant is responsible for his lapses, action under Rule 9 of CCS (Pension) Rules, 1972 is to be taken. Hence, provisional pension was granted under Rule 69. Under the above circumstances, the terminal benefits of the applicant could not be settled.. However, Director of Accounts (Postal), Hyderabad released the provisional pension up to 30.9.2008 vide letter dated 22.4.2008.

13. The respondents further state that vide office letter No.629/C.No.120/07-08/KVB, dated 17.3.2008, an intimation-cum-registered notice was issued to the applicant regarding wrong fixation of his pension. Hence, there is nothing illegal in the action of the respondents.

14. It is stated that the orders of Circle Office/Regional Office were not available for the period from 20.4.2002 to 8.6.2005, between which stop gap arrangements for different spells, from 20.4.2002 to 8.7.2002, 16.7.2002 to 30.7.2002 and 1.8.2002 to 8.6.2005, have been made and pay in HSG.I scale (Rs.6500-200-10500) has been drawn, and hence the pay drawn in HSG.I scale is irregular in the absence of CO/RO orders. Therefore, the Director of Accounts (P) ordered recovery of excess paid pay and allowances up to 31.3.2007 and also ordered to submit the revised form-VII calculation sheet and final LPC for processing the provisional pension case. The respondents have pleaded that the OA deserved to be dismissed.

15. The applicant had not submitted any rejoinder statement. However, the learned counsel for the applicant submitted that the pleas taken by the respondents in the reply statement were untenable and he supported the submissions made in the OA. He referred to Annexure A-9 at page 28 of the OA and submitted that the Senior Superintendent of Post Offices, Nellore, vide his letter dated 1.3.2005 addressed to the Post Master, Nellore, stated that the R.O had informed that status-quo may be maintained until further orders. He argued on this basis that this could be taken as a proper sanction for the officiating arrangement and entitlement of HSG Gr.I to the applicant. The applicant's counsel submitted that the applicant had been officiating as HSG Gr.I officer since 20.4.2002. There was hardly any substantial gap when he did not actually function as HSG Gr.I officer till he took voluntary retirement. He submitted that the pay of the applicant had been rightly fixed and there was no question of any recovery. The applicant was given notional promotion to HSG Gr.I with effect from 9.6.2005 and he got regular promotion to HSG Gr.I cadre with effect from 6.4.2006. The applicant's counsel submitted that recovery of any alleged excess payment was totally untenable even otherwise because the applicant was not guilty of any misrepresentation. The learned counsel for the applicant vehemently argued that the applicant's pension should be fixed on the basis of average of 10 months emoluments actually drawn by the applicant and the objections raised by the respondents were untenable. He submitted that there was nothing wrong in the drawal of salary as HSG Gr.I officer in the case of the applicant and the attempt by the respondents to re-fix the pay of the applicant should be undone by this Tribunal. The learned counsel for the applicant invited our attention to Page 22-A and 23 of the OA and submitted that since the applicant had actually discharged the functions of a higher post, there was no justification for revising his pay for that period and dis-entitling the applicant for drawal of proper pension. The learned counsel for the applicant also submitted that the impugned order dated 17.3.2008 was not a notice as per law and thus the order of the respondents suffered from violation of principles of natural justice. The learned counsel for the applicant further submitted that in ad hoc promotions, it was not necessary to follow recruitment rules and procedure for regular promotion. He submitted that FR 22(1)(a)(i) supported the pay drawn by the applicant and there was no scope for re-fixing the pay as ordered by the respondents. He also submitted that the Pension Rules supported the claim of the applicant that his pension should be calculated on the basis of the average pay at Rs.8500/- instead of Rs.8300/- as ordered by the respondents.

16. The respondents' counsel mainly relied upon the reply submitted by the respondents. He submitted that the pension has to be correctly computed as per the Pension Rules and the average pay has to be calculated on the basis of the pay drawn as per rules. If by mistake some one had drawn excess pay, Government had a right to recover the excess amount paid and had a right to calculate the pension as per the actual entitlement of the Government servant. He submitted that the recovery ordered by the respondents was proper and the basis adopted by the respondents for calculation of pension was also proper. He submitted that the impugned order was proper notice on which the applicant could make a representation to the concerned authorities. He argued that there was no substance in the OA which deserved to be dismissed.

17. We have carefully considered the arguments on both sides, materials on record and the relevant rules. In the first place, it is to be noted that the impugned order dated 17.3.2008 states as under:-

That the official (Shri K.V.Brahmaiah) has been drawing HSG.I pay w.e.f. 20.4.2002 on ad hoc promotions and asked for to submit the orders of CO/RO for the ad hoc promotion as for drawing of pay on HSG.I scale w.e.f. 20.4.2002 to 4.4.2006.

From this, it is clear that the applicant had been drawing HSG.I pay with effect from 20.4.2002 on account of ad hoc promotions and that the applicant was asked to submit the orders of CO/RO for the said ad hoc promotions with effect from 20.4.2002 to 4.4.2006. It is equally clear that the applicant himself had not drawn HSG.I pay. He had drawn the said pay on the orders of the superior officer and obviously the applicant was not responsible for either granting himself ad hoc promotions or for drawal of HSG.I scale of pay. If any proof is needed for this obvious position, the same is contained in Annexure A.10 at page 29 of the OA which is a letter from the Accounts Officer, Pension-I Section to the Superintendent of Post Offices, Nellore Division and is dated 7.9.2007. The relevant portion from which is reproduced as under:-

As per your letter under reference(1) cited, the orders of Circle Office/Regional Office are not available from 20.4.2002 to 8.6.2005, between which officiating arrangements for different spells, namely, 20.4.2002 to 8.7.2002, 16.7.2002 to 30.7.2002 and 1.8.2002 to 8.6.2005 have been made and pay in HSG-I scale (Rs.6500-200-10500) has been drawn.

18. From the above extract, it is very clear that the applicant worked in HSG.I with effect from 20.4.2002 to 8.6.2005 in different spells and obviously he discharged higher responsibilities during the said period. The pay in HSG.I scale was obviously drawn by the applicant under the orders of the superior authority. It could not be the normal concern of an employee that his superior authority has passed the order in his turn with the approval of the appropriate authority. Any employee is justified in assuming that the orders issued by his superior authority are as per rules. Therefore, the impugned order dated 17.3.2008 which is actually a letter addressed to the applicant, does not appear to be appropriate in the sense that the applicant was asked to submit the orders of CO/RO for his ad hoc promotions. It was for the superior authority to see that ad hoc promotions, within his jurisdiction, were granted as per rules. It is undisputed that the applicant discharged the functions of higher responsibilities from 20.4.2002 till he took voluntary retirement. The respondents, therefore, cannot now turn round and say that the applicant was not entitled to the pay which was allowed to him by the Department itself. In the present case, we consider unnecessary to examine the question whether the applicant was entitled to be promoted as HSG.I even on ad-hoc basis or not. The moot question is that the applicant was certainly given ad-hoc promotions in different spells and his superior authority had allowed the pay and allowances which the applicant had drawn all those years and now when the applicant took voluntary retirement with effect from 1.4.2007 it does not bring credit to the respondents to raise the issue of correctness or otherwise of the applicant's ad hoc promotions right from 20.4.2002.

19. Any rule cannot be allowed to violate the principles of equity in the absence of any specific provisions. In the present case, the impugned order dated 17.3.2008 is against the principles of equity and, therefore, it is set-aside. Since we hold that any attempt to re-fix the salary of the applicant at this stage is not justified, we are not going into the question whether recovery could be made even if such a revision was justified because the applicant was not responsible in wrong fixation of his salary. In short, we hold that there shall be no attempt to recalculate the pay and allowances of the applicant at this stage and the applicant's pension should be fixed on the basis of the salary which he had actually drawn while he was in service.

20. While we are ordering thus, it is made clear that the respondents shall be free to take any action under Rule 9 of the CCS Pension Rules, 1972, if permitted under Rules. This is made clear in view of the averments made in para 5 of the reply statement.

21. In short, we set aside the impugned order dated 17.3.2008 and hold that the applicant shall be entitled to terminal benefits including pension on the basis of the salary which he actually drew when he was in service. However, in the peculiar facts of the case, we do not consider it necessary to grant any further relief to the applicant by grant of any interest on the amounts that may be payable to the applicant on the terminal benefits or to award any costs to the applicant. We have already clarified that the respondents shall be free to take any action against the applicant as per rules in view of their averments in para 5 of the reply statement. The OA is thus disposed of with no order as to costs.