w w w . L a w y e r S e r v i c e s . i n

Bindu Mohan, Sr. Social Security Assistant, Employees Provident Fund Sub Regional Office, Kollam v/s Union of India represented by the Secretary to Government, Ministry of Labour, New Delhi & Others

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- J. B. C. SECURITY PRIVATE LIMITED [Active] CIN = U74999MH2017PTC302126

Company & Directors' Information:- VERSUS SECURITY PRIVATE LIMITED [Strike Off] CIN = U74900DL2009PTC195274

Company & Directors' Information:- S O L SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2002PTC115968

Company & Directors' Information:- H S SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2004PTC127249

Company & Directors' Information:- M P S SECURITY PRIVATE LIMITED [Under Process of Striking Off] CIN = U74920DL2007PTC169952

    Original Application No.180/00089 of 2014

    Decided On, 23 September 2016

    At, Central Administrative Tribunal Ernakulam Bench


    For the Applicant: Vellayani Sundara Raju, Advocate. For the Respondents: R2 to R7, N.N. Sugunapalan, Sr. Advocate with S. Sujin, Advocate.

Judgment Text

P. Gopinath, Administrative Member.

The applicant has been working as Sr. Social Security Assistant since 18.1.2008 under the 3rd respondent. The applicant is an inter-regionally transferred SSA. At the time of her transfer from Thirunelveli she was serving as Sr. SSA (Time Bound Promotion) with pay in the pay band of Rs.9300-34800 plus grade pay Rs.4200. The applicant was promoted to Sr. SSA (TBP) from 18.1.2008 onwards as per Annexure A4 order on completion of 17 years of clerical service under the Assured Career Progression Scheme (ACP). The scheme was in force till 31.8.2008 as per Annexure A10 order of competent authority. On transfer, the salary of the applicant and similarly situated transferred employees was protected. The 4 th respondent reduced the salaries of applicant and others to Rs.5200-20200 + 2400 (GP), which was challenged by the applicant and others in two O.As 396/2010 and 418/2010 before this Tribunal and Annexure A7 order obtained. Annexure A7 was challenged by respondent before High Court in OP(CAT) No.1642/2012 and 1733/2012 and it was dismissed.That judgment was further challenged before the Apex Court by the department in a SLP. Annexure A8 was delivered by the Apex Court. There after the respondents have duly complied with Annexure A7 directions of this Tribunal and the arrears of salaries and other benefits were issued to applicant and others.

2. The 3rd and 6th respondent subsequently issued Annexures A1 to A3 orders reverting the applicant as SSA from her upgraded position of Sr. SSA (Time Bound Promotion) on the ground of an observation made by this Tribunal in its order in some other O.A wherein the applicant is not a party. The observation was made by this Tribunal on the basis of the false information furnished by the respondents on stoppage of ACP Scheme. The ACP Scheme was stopped on 31.8.2008, as per Annexure A10, but A10 was not produced before this Tribunal. By Annexures Al to A3 the pay scale of the applicant was reduced and further they are intending to recover the excess pay allegedly given to applicant during the period from 18.1.2008 to the date of the transfer of applicant to Kerala Region.

3. The applicant is entitled to get the pay scale of Rs.9300-34800 plus Rs.4200 grade pay as per ACP on completion of 17 years service on 10.1.2008 and the same was granted as per the then prevalent rule.

Annexure A7 is binding on the respondents and unless and until a different direction/finding against the inter-party Annexure A7 order is obtained from the Apex Court the pay scale of the applicant shall not be reduced. The respondents illegally refixed the salary of applicant in the pay scale of Rs.5200-20200 + 2400 (GP) against which interference of this Tribunal is necessitated.

4. The 3rd respondent has no right or locus standi to revert the applicant to a lower pay scale as the applicant has no lean left under the 3 rd respondent. The applicant is working under the 4 th respondent in a different state for the past more than 5 years, after the transfer of the applicant to the Kerala Region dated 26.8.2008. The transfer of the applicant to Kerala Region was in the upgraded post of SSA in the pay band of Rs.9300-34800 plus Grade Pay of Rs.4200/- which has been upheld as correct by this Tribunal, the Hon'ble High Court and later the Apex Court. The 4 th respondent duly complied with the orders of this Tribunal of O.A.No.418/2010 by issuing necessary orders and also by disbursing arrears. The applicant has been enjoying the benefits for the last five years on the basis of court directions and orders of competent authorities.

5. As per para 9 of Annexure A-10 MACP order the ACP Scheme was in force till the commencement of the MACP Scheme. It states that MACP Scheme commenced from 1.9.2008. Up to 31.8.2008 the ACP Scheme was in force. Concealing this material fact the 3 rd respondent as well as the 7th respondent issued untenable orders like Annexures A-1 to A-3 and illegally reduced the monthly salary of the applicant.

6. Reliefs sought by applicant is to :

(i). Quash Annexure A-1 and Annexure A-2 by respondents 3 and 4 and hold that the applicant has been in the pay band of Rs.9300-34800 plus grade pay of Rs.4200/- from 18.1.2008 onwards as upheld by this Tribunal in Annexure A-7 common order and the same was confirmed by the Hon'ble High Court and the Apex Court.

(ii). Quash Annexure A-3 letter of 7th respondent as the applicant's pgradation to Sr.SSA as per Annexure A-4 was in order and the ACP Scheme was in force till 31.8.2008 as per Annexure A-10 OM and the applicant was granted Time Bound Promotion with effect from 18.1.2008 on completion of 17 years continuous clerical service.

(iii). To direct the 4th respondent to give back the already deducted amounts from the salaries of the applicant on the basis of Annexures A-1 and A-2 orders.

7. Respondent in the reply statement submits that the entry cadre in the clerical service of EPFO was Lower Division Clerk (LDC) with promotional avenues to Upper Division Clerk (UDC), Section Supervisor (SS) and so on. Due to the stagnation in the cadre of UDC, a Time Bound Promotion (TBP) Scheme was in force from 1.1.1992 to 8.10.2007, in which the UDCs with 17 years' clerical service were entitled for a scale of Rs.1400-2300 (4th Central Pay Commission) on non functional basis, subject to fitness. In 2004, the new cadre of Social Security Assistant (SSA) was introduced at the entry level of clerical service as part of cadre re- structuring, carrying the same pay scale as UDC. All the persons holding the post of UDC on regular basis were re-designated as SSA. All Lower Division Clerks having required educational qualification as stipulated in Recruitment Rules of SSA post, as on date of notification of Recruitment Rules of post of SSA, were promoted to the post of SSA on passing computer skill test.

8. The Assured Career Progression Scheme (ACP Scheme in short) came into force with effect from 9.8.1999. This Scheme envisaged two financial upgradations to Groups 'B', 'C' and 'D' employees, who have not earned regular promotions, on completion of 12 years and 24 years of regular service from the grade in which an employee was appointed as a direct recruit. The Scheme provided that the financial upgradation shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts. ACP Scheme was replaced with Modified Assured Career Progression Scheme, 2008, from 1.9.2008.

9. The applicant was initially appointed as LDC in the Municipal Corporation, Delhi on 10.1.1991. The applicant was thereafter appointed as LDC on inter-departmental transfer in EPFO, Thirunelveli on 2.6.1997. As per conditions of appointment, the service rendered in previous department is to be reckoned only for pensionary benefits. However, as a consequence to the order of Madras Bench of the Tribunal in O.A. No.308/2003 and Hon'ble High Court of Madras in WP No.5413/04, the benefit of previous service rendered in Central Government departments, prior to joining in EPFO, was allowed to Inter-Departmental transferees vide Annexure A-5 order, for reckoning the 17 years' service for TBPS. The applicant herein was granted financial upgradation under the erstwhile Assured Career Progression Scheme, 1999, to the pay scale of Rs.4000- 6000 on completion of 12 years in the cadre of LDC. Later she was promoted as SSA, which carries the same pay scale of Rs.4000-6000 w.e.f. 21.11.2005 on passing computer skill test. The applicant was granted financial upgradation under erstwhile TBP Scheme with effect from 18.1.2008 and her pay was fixed in the pay scale of Rs.9300-34800 + GP Rs.4200/- as per the recommendations of the Departmental Promotion Committee convened on 24.9.2007. This recommendation of DPC was prior to issue of Annexure R4(c) Office Memorandum dated 14-15.11.2007. In Annexure R4(c) it has been categorically mentioned against the Sr.SSA post that it is replacing the present TBPS. Hence, Annexure A4 promotion order dated 3.3.2008 of the Regional Office, Chennai, had contravened Annexure R4(c), as the applicant herein completed 17 years service only on 10.1.2008, which is after issue of Annexure R4(c) Office Memorandum dated 15.11.2007. In Annexure A-4 order it was specifically stated that if on a later date, she is found not eligible for promotion as Sr.SSA (TBP) from the date on which it has been given, the said order is liable to be modified.

10. Applicant was transferred from Tamil Nadu Region to Kerala Region on compassionate grounds as junior-most SSA. Upon her joining her pay was fixed in Rs.5200-20200 + GP Rs.2400/- pertaining to the junior-most SSA applying FR 15(a). At this juncture the applicant herein along with a few other inter-regional transferred SSAs challenged this reduced pay fixation in O.A.No.418/2010. This Tribunal vide common order dated 24.2.2012 in O.A.No.396 & 418 of 2010 in Annexure A7 declared that the applicants are entitled to get pay scale in the Pay Band of Rs.9300-34800 + Grade Pay of Rs.4200/- instead of reduced pay scales fixed applying FR 15(a). This common order was upheld by the Hon'ble High Court of Kerala in OP (CAT) No.1642 & 1733 of 2012 and by the Hon'ble Supreme Court of India in SLP(C) No.31311-31312 of 2012. Hence, the last pay drawn by the applicants in O.A.No.396 & 418 of 2010 was fixed as per common order of this Tribunal in Annexure A7.

11. A few SSAs working in Kerala Region had filed O.A.No.151/2010 before this Tribunal challenging the withdrawal of the erstwhile TBP Scheme in which the applicants had cited the grant of benefits of erstwhile TBPS to the applicant herein from a date which fell after its discontinuation,i.e. after 8.10.2007. This Tribunal dismissed the O.A.No.151/2010 vide Order dated 26.3.2012. In the said order at para 15 this Tribunal had observed that :

‘The applicants produced an office order permitting TBP for one official by the Regional Office, Chennai on 18.1.2008, the respondents have submitted that it would have been a mistake since Annexure R4 clarification regarding cut off date was received by the regions on 4.7.2008. Hence this mistake might have been rectified later.'

12. The applicants in O.A.No.151/2010 have challenged Annexure R-4(e) order of this Tribunal before the Hon'ble High Court of Kerala in OP (CAT) No.3727/2012 in which they had repeatedly raised contention on continuance of erroneous grant of benefits under erstwhile TBPS to the applicant herein. Hence, in view of the observation of this Tribunal in O.A.No.151/2010 as well as OP (CAT) No.3727/2012, the respondents herein have rectified the mistake of grant of benefits of erstwhile TBPS to the applicant herein by reverting her from Sr. SSA(TBP) to SSA with effect from 18.1.2008 as the erstwhile TBP Scheme was not in force with effect from 8.10.2007.

13. Heard counsel for the parties and perused the written submission made. The applicant herein completed 17 years clerical service on 10.1.2008 and respondents contend that on this date no TBP Scheme as in force and a new scheme was introduced which was applicable to applicant as also to all similarly placed employees in the respondent organization and hence justify the reversion of the applicant from Sr.SSA (TBP) post to SSA post.

14. The pay of the applicant had been fixed in Pay Band Rs.9300-34800 plus Grade Pay Rs.4200/-. This fixation cannot be assailed in view of Tribunal order in O.A.No.396 and 418 of 2010 which was upheld by the High Court and Apex Court. Compliance of the order of the Tribunal in above O.As by respondents by protecting the pay drawn on inter divisional transfer is unassailable and irreversible.

15. The respondent argues that Annexure R-4(c) scheme is more beneficial as a new entrant will be placed in a higher pay scale on entry and will be given next higher scale on completion of 14 years service. Further he will get next higher pay scale if he falls within 60% of total sanctioned strength of SSA/Sr.SSA. The applicant is however not a new entrant and hence a beneficiary. Respondent draws our attention to the Tribunal's order in a similar ESIC matter (O.A.No.443/2003) where the Tribunal had upheld wrong fixation and ordered recovery of overpayment from an Ex- Serviceman who had been transferred from Railways to ESIC. The case related to deduction of Army pension from pay fixed on re-employment. The respondents therein had relied on the legal dictum that administrative errors could be corrected and the respondent's error of not enforcing the rule dealing with reduction of pension from pay fixed was a mistake which could be corrected after passage of 6 years. The Tribunal allowed the O.A with orders that impugned order of recovery cannot be assailed. However, since then the Apex Court in State of Punjab & Ors. Vs. Rafiq Masiq (Whitewasher) & Ors. (2015) 4 SCC 334 has restricted recovery of overpayment, if any made, which would apply in this case also. Hence M.A.No.561/2014 is disposed of accordingly.

16. There is a need to distinguish between the two supporting judgments produced by applicant and respondent in support of their respective contentions. Annexure A-7 judgment in O.A.Nos.396 & 418 of 2010 produced by applicant protected the pay scale of Rs.9300-34800 + grade pay Rs.4200/- drawn by applicant in the inter regional transfer on transfer to the new place of posting on bottom seniority. The said order does not anywhere state that any revision of pay scale introduced by EPFO in respect of categories of staff across the country will not be applicable to applicant. In Annexure R-4(e) judgment produced by respondent, the Tribunal had set aside the applicant's contention for promotion under 1992 TBP Scheme as the same had been replaced by 15.11.2007 upgradation of pay scales on completion of 4 and 8 years of service and the two schemes could not run concurrently. Hence the operability of 15.11.2007 Scheme had been approved by the Tribunal. However, the applicant is covered by the inter party order of the Tribunal in O.A.Nos.396 & 418 of 2010 and any change in the pay fixed and drawn as a consequence cannot be changed. But the Tribunal order nowhere says that future orders on promotion schemes, applicable to all persons in the res

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pondent organization, will not be applicable to the applicants. The TBP order of 3.3.2008 issued in respect of applicant contains a clause as follows : ' On a later date if it is found that aforesaid official was eligible for promotion from the date on which it has been given this order is liable to be modified in respect of such official.' 17. Whereas Annexure R-4 (5) revision of pay scales was issued on 15.11.2007, the upgradation order of applicant was issued on a subsequent date 3.3.2008. Hence the order of applicant was issued despite the fact that an order for revision of pay scale was in operation since 15.11.2007 which was uniformly applicable to all employees in the cadre across the country. This Tribunal while dismissing O.A.No.151/2010 had noted that an order dated 18.1.2008 permitting TBP for one official by Regional Office, Chennai would have been a mistake. Hence the Tribunal had also noted in para 17 of O.A.No.151/2010 that any order in contravention of Annexure R- 4 cannot be upheld as granting TBP Scheme under the 1992 Scheme stands discontinued with effect from 8.10.2007 on introduction of the new scheme. Hence the applicant in this O.A cannot also seek a benefit under a discontinued scheme. Whereas the pay protection to applicant granted in O.A.Nos.396 & 418 of 2010 in inter divisional transfer would continue to operate, the applicant like the applicants in O.A.No.151/2010 would be uniformly covered by Annexure R-4 Scheme and applicant cannot claim an exemption from its application. 18. The O.A is disposed of accordingly. No costs.