Allowed

The Principal Director Of Commercial Audit And Ex Officio Member And Ors. v. Adarsh Sharan

Jharkhand HC11 Jul 2018WPC/5120/2017

Case brief

AI extract

What is this about?

The High Court held that an employee joining a lower post after technical resignation is entitled to pay protection under FR 22(B) based on presumptive pay, overriding certain circulars. The court modified the CAT order to implement this principle while allowing the organization to compute the exact figures.

What did the court decide?

Petition allowed in principle regarding entitlement to pay protection under FR 22(B); Petitioner organization granted liberty to compute pay fixation correctly.

The Principal Director Of Commercial Audit… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5120 of 2017

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…..

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The Principal Director of Commercial Audit & Ex-Officio Member, Audit Board, Ranchi through Gaurav Kumar

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The Union of India through the Comptroller and Auditor General of India, New Delhi

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The Director (Legal) & CPIO, Office of the Comptroller and Auditor General, New Delhi. --- ---- Petitioners

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Versus Adarsh Sharan ---------- Respondent

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CORAM:The Hon’ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mr. Justice Ratnaker Bhengra

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For the Petitioners : Mr. Sudarshan Srivastava, Adv. For the Respondents : Mr. Subodh Kr. Dubey, Adv.

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05/11.07.2018 Petitioners are aggrieved by order dated 3^rd February 2017 passed by learned Central Administrative Tribunal, Ranchi Bench in OA/051/00170/2014 whereunder the learned Tribunal has allowed the original application and quashed the office order No.54 dated 2^nd June 2014 and directed the respondents/petitioners herein to implement office order no. 161 dated 6^th March 2014.

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Learned counsel for the petitioners has made considerable arguments. Respondent has entered appearance on notice through Vakalatnama and contested the case.

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Learned counsel for the applicant/respondent herein has straightway referred to the order dated 20^th March 2017 passed by the Central Administrative Tribunal, Jabalpur Bench, Circuit Sitting, Gwalior in Original Application No.202/01012/2015 and the order of the Hon’ble Madhya Pradesh High Court passed in Writ Petition No.3723/2017 dated 17^th July 2017 whereunder the order of the learned CAT has been affirmed. He submits that the office of the Principal Accountant General (A&E)-I, M.P., Bhopal has intimated that Headquarters office has directed to comply with the order of Madhya Pradesh High Court. He further submits that the case of the present applicant/respondent is exactly the same.

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Learned counsel for the petitioners has questioned the findings of the learned CAT whereunder it has directed the office of the Accountant General to implement the letter dated 6^th March 2014. Learned counsel for the

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petitioners has not been able to dispute that pay protection is admissible in terms of the provisions of Fundamental Rule 22(B). However, according to him the computation that has been made as per Annexure-9 may not be in consonance with the principles.

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The fact that the applicant applied for the post of Auditor through proper channel and joined the new post after rendering technical resignation from the erstwhile organization East-Southern Railways from the post of Enquiry cum Reservation Clerk is not in dispute. The applicant was at that time placed in the revised Pay Band-I Rs.5200-20200/- in the grade pay of Rs.4200/- w.e.f. 21^st May 2011 on grant of MACP. The applicant rendered technical resignation on 16^th February 2012 which was accepted on 15^th March 2012 and joined in the present organization on 19^th March 2012. Two office orders bearing no.161 dated 6^th March 2014 and office order no.54 dated 2^nd June 2014 were basically in contention before the learned CAT. By office order dated 6.3.2014 the Deputy Director (Administration) held as under :

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“Consequent upon acceptance of Technical Resignation of Shri Adarsh Sharan, ECRC, by the D.R.M., East Central Railway, Danapur Division and his joining in this office as Auditor in the PB-1, (Rs.520020200) + Rs.2800 Grade Pay, his pay in the previous East Central Railway, Danapur Division is protected against Technical Resignation and refixed in accordance with FR-15(a) as under :-

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Existing pay+G.Pay	Pay last drawn	in	Pay refixed	DNI
in this office as	previous office	as	under FR-15(a)
Auditor as on	ECRC as	on	as on 19.03.12
19.03.2012	16.03.2012
Rs.8560+2800	12120+4200		12120+2800	01.07.2012

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By office order dated 2^nd June 2014 the order was revised by the Deputy Director (Administration) holding as under :-

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“Provision of Para 3(v) of Headquarters’ circular No.15-Staff Wing/2014 and No.62 Staff (Entt-1)/90-2014 dated 31.03.2014 contains that No Joining Time, Joining Time Pay, Transfer Travelling Allowance and protection of the pay shall be admissible to such direct recruits who were holding a post with higher Grade pay in their previous organization and have joined the lower post in this department on their own volition. Pay of such direct recruits shall be fixed at the entry pay prescribed under Section II of Part A under the First Schedule of CCS (Revised Pay Rules), 2008 in terms of FR 22(I)(b).

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Hence in supersession of this office order no. 161 dated 06.03.2014 (copy enclosed) pay of Shri Adarsh Sharan who joined this office as Auditor on 19.03.2012 is fixed as under :

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*Sl.No.*	*Particulars*	*Basic Pay + Grade Pay*
01.	Pay last drawn in previous office as ECRC as on 16.03.2012	Rs.12120 + 4200
02.	Pay fixed on joining in this office as Auditor on 19.03.2012 in terms of para 3(v) of Headquarters’	Rs.8560+2800 with DNI on 01.07.2013
	Circular No.15-Staff Wing/2014,
	No.62 Staff (Entt.I) 90-2014 dated 31.03.2014

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No joining time, joining time pay, Transfer TA and Protection of Pay shall be admissible to him in terms of Para 3(v) of Headquarters’ Circular No.15-Staff Wing/2014 No. 62-Staff (Entt-I) 90-2014 dated 31.03.2014.”

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A comparison of the two shows that by office order no. 161 the applicant’s pay was refixed under FR-15(a) on 19^th March 2012 in the scale of Rs.12120/- taking note of the fact that the applicant had drawn the last pay in the previous office as ECRC on 16^th March 2012 in the scale of Rs.12120 + 4200/- grade pay. The existing pay + grade pay of the Auditor as on 19^th March 2012 was Rs.8560+2800/- grade pay. This was revised by the office order no.54 dated 2^nd June 2014 in the light of the proviso to Para-3(v) of circular no.15 dated 31^st March 2014, issued by the office of Comptroller and Auditor General of India to all the Heads of the Department and the Director Generals (Commercial-I) and (Headquarters). It refixed the pay of the applicant on his joining as Auditor on 19^th March 2012 in the scale of Rs.8560+2800/- which is the maximum in the Pay Band-I of Rs.5200-20200/also in the light of Annexure-2 letter dated 19^th January 2012 being the offer of appointment to the applicant. The applicant was getting the same scale at the time of his technical resignation in the previous service. The learned CAT has, after discussing the case of the parties, quashed the office order dated 2^nd June 2014 and directed the respondents therein to implement the letter dated 6^th March 2014. The impugned direction has been assailed on the ground that it has failed to take into account the policy of the organization.

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We have considered the submission of learned counsel for the parties. The undisputed relevant material facts in relation to the case of the applicant have been taken note of in the foregoing paragraphs. The petitioner organization has revised the pay fixation of the respondent herein by office order dated 2^nd June 2014 primarily being guided by Circular no.15 dated 31^st March 2014. Clause (iv) and (v) under para-3 thereof are also extracted herein

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below :

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“(iv) Protection of the Pay drawn in the Pay Band against the post held in the previous organization shall be admissible only to such direct recruits who had applied through proper channel for appointment to the post in this department after tendering technical resignation and were holding a post in the previous organization either with same or lower grade pay.

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(v) No Joining Time, Joining Time Pay, Transfer Travelling Allowance and protection of the pay shall be admissible to such direct recruits who were holding a post with higher Grade pay in their previous organization and have joined the lower post in this department on their own volition. Pay of such direct recruits shall be fixed at the entry pay prescribed under Section II of Part A under the First Schedule of CCS (Revised Pay Rules), 2008 in terms of FR 22(I)(b).”

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Evidently the office of the C.A.G. recognizes the admissibility of protection of the pay drawn in the Pay Band against the post held in the previous organization to such direct recruits who had applied through proper channel for appointment to the post in the new organization after tendering technical resignation and that they were holding a post in the previous organization either with same or lower grade pay. It however also indicated under Clause (iv) that protection of pay shall not be admissible to such direct recruits who were holding a post with higher grade pay in the previous organization and have joined the lower post in the department on their own volition. Pay of such direct recruits should be fixed at the entry level prescribed under Section II of Part A under the First Schedule of CCS (Revised Pay Rules), 2008 in terms of FR 22(I)(b). FR 22(B) reads as under :-

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“ F.R.22-B.(1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre-

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(a) during the period of probation, he shall draw pay at the minimum of the time-scale or at the probationary stages of the time-scale of the serviced or post, as the case may be:

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Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post:

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(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time-scale of the service or

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post in accordance with the provisions of Rule 22 or Rule 22-C, as the case may be:

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Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post.

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(2) The provisions contained in sub-rule (1) shall apply mutatis mutandis to cases of Government servants appointed on probation with definite conditions against temporary posts in another service or cadre where recruitment to permanent posts of such service or cadre is made as probationers, except that in such cases the fixation of pay in the manner indicated in Clause (b) of sub-rule (1) shall be done under Rule 31 of these Rules immediately on the expiry of the period of probation and on regular officiating appointment to a post, either permanent or temporary, in the service or cadre.

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(3) …………..”

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A bare perusal of the provisions quoted above clearly shows that notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre and subsequently confirmed in that service or cadre. Sub-clause (a) provides that during the period of probation the employee shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of service or post, as the case may be. The proviso thereafter qualifies the main rule. It provides that if the presumptive pay of the permanent post on which the employee holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay on the permanent post. Presumptive pay has been defined under Rule-9(24) which reads as under :

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“9 (24) Presumptive pay of a post, when used with reference to any particular Government servant, means the pay to which he would be entitled if he held the post substantively and were performing its duties; but it does not include special pay unless the Government servant performs or discharges the work or responsibility, in consideration of which the special pay was sanctioned.”

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The present applicant has applied through proper channel while in service in the previous organization and on being selected, joined the post of Auditor in the present organization after rendering technical resignation in the previous organization. He was enjoying a pay on the substantive post

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which was higher than the pay which was made applicable to the entry level post of Auditor in the present organization. Therefore, the applicant was entitled for pay protection. This very issue has been considered by the Madhya Pradesh High Court in the case of a Railway servant who had also joined as an Auditor under the office of the Principal Accountant General, Bhopal i.e. under the same organization. The applicant before the learned Central Administrative Tribunal, Jabalpur Bench, Manoj Kumar Singh had joined the post of Auditor after his technical resignation was accepted by the Railways. In this factual context the issue before the learned Tribunal and the Madhya Pradesh High Court was whether the said applicant was entitled to protection of pay while joining the new post with the respondent or not. Learned Tribunal at Bhopal held in favour of the applicant. The Madhya Pradesh High Court affirmed the order by holding as under :-

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“ Since the Tribunal did not find fault with the technical resignation accepted by the Railway, applied clause 2.4 of office memorandum dated 17/8/16, which is reproduced below:-

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“ 2.4 Pay Protection, Eligibility of past service for reckoning of the minimum period for grant of Annual Increment.

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In cases of appointment of a Government servant to another post in Government on acceptance of technical resignation, the protection of pay is given in terms of the Ministry of Finance OM No. 3379-E.III(B)/65 dated 17^th June, 1965 read with proviso to FR22-B. Thus, if the pay fixed in the new post is less than his pay in the post he holds substantively, he will draw the presumptive pay of the pay he holds substantively as defined in FR-9(24). Past service rendered by such a Government servant is taken into account for reckoning of the minimum period for grant of annual increment in the new post/service/cadre in Government under the provisions of FR 26 read with Rule 10 of CCS (RP) Rules, 2016. In case the Government servant rejoins his earlier post, she will be entitled to increments for the period of his absence from the post.”

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When the claim made on behalf of the petitioners is tested on the anvil of the facts as adverted to by the Tribunal and not disputed vis-à-vis the stipulation contained in para 2.4 of the office memorandum dated 17/8/2016, we are not inclined to interfere with the conclusions arrived at by the Tribunal.

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Accordingly, the petition fails and is dismissed. ”

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As per the statements made by the learned counsel for the respondent based upon a letter dated 22^nd December 2017 issued by the Accounts Officer/L.C.C. under the office of the Principal Accountant General

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(A & E)-I, M.P. addressed to the said applicant, the order passed in Writ Petition No.3723/2017 is being complied with. The organization in the present case is the same. The provisions of law under FR 22(B) do provide pay protection to such an employee. In such circumstances, we have no doubt that the applicant/respondent herein was also entitled to pay protection.

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Learned counsel for the petitioners organization has harped upon the revised office order no.54 dated 2^nd June 2014 under which the pay of the applicant was fixed at Rs.8560+2800/- being the highest in the Pay Band-I of Rs.5200-20200/-. However, we may observe here that Clause-(iv) and (v) of the Circular No.15 dated 31^st March 2014, in such circumstances, cannot be applied in derogation of principles laid down by the Statute i.e. the Fundamental Rules. They have to be read in consonance with the Statutory Rules applicable to the organization. Moreover, acceptance of the offer of appointment by the applicant at the time of joining in terms of the letter dated 19^th January 2012 (Annexure-2) would not operate as estoppel to raise a claim for pay protection, if it is permissible under the law.

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We, however, do not want to enter into the computational part of the pay as it is the job of the Accounts Department in the organization. In view of the principle as held above, we are of the considered view that the applicant was entitled to pay protection. The learned Tribunal however, does not seem to have entered into minute scrutiny of the actual pay fixation done by the organization both in office order no.161 dated 6.3.2014 and the revised pay fixed by office order no.54 dated 2.6.2014. In such circumstances, while upholding the case of the applicant in principle for his entitlement to pay protection, we give liberty to the petitioner organization to compute the pay fixation of the respondent in correct manner in the light of the principle prescribed in FR 22(B) and the proviso quoted above. The impugned order is accordingly modified in the manner indicated herein above. The writ petition stands disposed of in the aforesaid terms. I.A. No.5001/2018 stands disposed of.

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( Aparesh Kumar Singh, J.)

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(Ratnaker Bhengra, J.)

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Shamim/

The Principal Director Of Commercial Audit And Ex Officio Member And Ors. v. Adarsh Sharan

Case brief

What is this about?

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The Principal Director Of Commercial Audit And Ex Officio Member And Ors. v. Adarsh Sharan

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