Original Application No. 278 of 2010, Original Application No. 364 of 2010, Original Application No. 1000 of 2010. Case: 1. K. Saseendranadhan, Administrative Officer (Rtd.), Ammu, Cochin, 2. P. V. Sujatha W/o N. K. Krishnan, Administrative Officer, O/o the Commissioner of Customs (Preventive), Cochin, 3. S. Thulasi, Administrative Officer, O/o the Commissioner of Central Excise and Customs, Cochin, 4. P. Sundarambal, Administrative Officer, Central Excise I Division, Ernakulam, Kathrikadavu, Cochin Vs 1. Commissioner of Customs (Preventive), Central Revenue Buildings, Cochin, 2. Chief Commissioner of Central Excise and Customs, Central Revenue Buildings, Cochin, 3. Commissioner of Central Excise and Customs, Central Revenue Buildings, Cochin, 4. Assistant Commissioner of Customs (Preventive), Central Excise Bhavan, Kathrikkadavu, Kaloor, Cochin, 5. Pay and Accounts Officer, Customs House, Wellington Island, Cochin, 6. Chairman, Central Board of Excise and Customs, New Delhi, 7. Union of India, Represented by its Secretary, Department of Revenue, New Delhi, 8. Assistant Commissioner of Central Excise, Ernakulam I Division, .... Central Administrative Tribunal
| Case Number | Original Application No. 278 of 2010, Original Application No. 364 of 2010, Original Application No. 1000 of 2010 |
| Judges | P. R. Raman (Judicial Member) & K. George Joseph (Administrative Member) |
| Issue | Service Law |
| Judgement Date | January 04, 2011 |
| Court | Central Administrative Tribunal |
Judgment:
K. George Joseph (Administrative Member), (Ernakulam Bench)
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Having identical issues these Original Applicants were heard together and are being disposed by this common order.
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The applicants while working as Office Superintendents under the respondents were promoted as Administrative Officers in the month of May, 1997 and June, 2001 as the case may be. On promotion they opted to avail the benefit of pay fixation under FR 22 (1)(a)(i). The posts of Office Superintendent and Administrative Officer were merged in the wake of implementation of the recommendation of the Vth Central Pay Commission. Years later the audit objected to the pay fixation granted under FR 22 (1)(a) (i) on the ground that as the pay scales of Office Superintendent and Administrative Officers were merged into the pay scale of Rs. 6500-10500/- by the Central Pay Commission with effect from 1.1.1996 the benefits of pay fixation under FR 22(1)(a)(i) cannot be granted. The representations submitted by the applicants to the respondents were of no avail.
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Aggrieved, the applicant filed these Original Applications mainly for a declaration that they are entitled for fixation of their pay under FR 22(1)(a) (i) on promotion as Administrative Officer from the post of Office Superintendent and to refund the amount recovered from the applicants towards alleged excess payment and to direct the fifth respondent to take appropriate action to issue pension payment order in the case of the applicant in OA No. 278 of 2010 on the basis of revised pay band and higher grade pay granted with effect from 1.1.2006 taking into account the increments drawn thereafter.
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The applicants submit that they were promoted as Administrative Officers from the posts of Office Superintendent. The post of Administrative Officer is a Group-B gazetted post whereas the post of Office Superintendent is a Group-C post. The post of Administrative Officer carries higher responsibilities than the post of Office Superintendent. On promotion the applicants were asked to exercise their option for pay fixation. Accordingly, their pay was fixed as per FR 22(1)(a) (i). To revise the pay now after lapse of many years is illegal and arbitrary. Office Superintendent is the feeder cadre of Administrative Officer as per recruitment rules. Although the Vth Central Pay Commission has merged both the pay scales of Administrative Officer and Office Superintendent, it was not implemented for quite some time. The applicants were granted the benefits of pay fixation on promotion as Administrative Officer and that cannot be taken away by way of a clarification. In 2008(208) ELT 321 (SC) the Hon'ble Supreme court held that if the clarification is beneficial to the party it should be applicable retrospectively and if it is oppressive, it should be applied prospectively. Therefore, the benefit of fixation granted to the applicants prior to issue of clarification is to be protected. The competent authority has not amended the order of promotion so far. The post of Office Superintendent and Administrative Officer were merged vide order dated 8.10.2002 as such all those promoted earlier are entitled for fixation under FR 22(1)(a)(i). The order dated 24th July, 2006 denying the benefit of pay fixation under FR 22(1)(a)(i) was quashed by the Bangalore Bench of this Tribunal. The order of the Bangalore Bench was upheld by the Hon'ble High Court of Karnataka. The SLP filed against it was also dismissed.
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The respondents submitted that the benefit of pay fixation under FR 22 (1)(a)(i) cannot be granted since the post of Office Superintendent and Administrative Officer were merged in to one scale of pay of Rs. 6500- 10500/- by the Vth Central Pay Commission with effect from 1.1.1996. There is no legal bar to straight away recover the excess payment made to the parties by the Department without obtaining the consent of the employees or giving them opportunity of being heard.
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In the rejoinder the applicants submitted that the order of the Bangalore Bench in OA No. 373 of 2006 has become final. It was accepted and implemented by the respondents. When a law...
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