R. Satapathy, Administrative Member
Originally the application has been filed under Sec. 19 of the Administrative Tribunals, Act, 1985, by N.Vijayakumar on 10.06.2010. When the O.A was pending before this Tribunal, the said Vijayakumar died on 29.12.2010. Hence his Legal Representatives filed M.A. No. 635/2011 for bringing them on record. This Bench vide order dated 30.09.2011 allowed the M.A No. 635/2011. The legal heirs are on record.
2. The relief claimed in the O.A is as follows:
â(i) to call for the records relating to G-26031/2/2009 âA (NG) dated 11.12.2009 passed by the 1st respondent and G.26031/2/2009 âA(NG) dated 18.03.2010 passed by the 2nd respondent and to set aside the same.
(ii) to direct the respondents to refund the sum of Rs.47,160/- recovered pursuant to the order dated 24.06.2002 with interest at 12% per annum.
3. Â The facts of the case are as under:
Late Vijayakumar was initially appointed as Skilled Worker Gr. II (SW II for short) on 29.09.1987 and he was further promoted as SW I on 21.12.1992 in the scale of pay of Rs. 1320-2040. His pay was fixed at Rs.1320/- vide order dated 19.01.1993. Due to personal reasons, late Vijayakumar requested for transfer to lower post SW II in Chennai. By order dated 16.03.93 he was posted as SW II [ pay scale 950-1500] transferred to Chennai. His pay was fixed at Rs.1050/- and the pay which was fixed on his promotion as SW I i.e. Rs.1320/- was not protected. Subsequently by order dated 26.05.95, his pay of the post of SWI was protected and his pay was re-fixed at Rs. 1325/-. By order dated `13.06.95 he was granted regular promotion to the post of SW I after a gap of 2 = months and his basic pay was fixed at Rs. 1410/- by granting one increment as per FR 22 (I (a) (1). Pursuant to 5th pay commission recommendation his pay was revised to Rs.4000-6000 and he was granted the basic pay of Rs.4400/- corresponding to Rs.1410/- However, the pay of Vijayakumar was refixed as Rs.1050/- w.e.f. 17.05.93 in the post of SW II on the basis of objections raised by internal audit stating that fixing his pay at Rs. 1410/- on promotion to SW I at Chennai amounting to double fixation benefit. By order dated 24.06.2002 a sum of Rs. 47,160/- was ordered to be recovered @ Rs.500/- pm from November 2001 to January 2002 and @ Rs.1000/- from February 2002 onwards till the recovery of full amount. Entire amount had been recovered. In the meantime, the DOPT has issued an OM on 14.02.2006, clarifying that government servant appointed/transferred to lower post at his own request will be entitled to pay protection and it would be prospective in nature. However, by a clarification dated 11.01.2007, it was made clear that OM dated 14.02.2006, had retrospective effect.
4. The applicant submitted various representations stating that the recovery is illegal since OM dated 14.02.2006 had been given retrospective effect. Vide impugned order dated 18.03.2010, the request of the applicant was rejected. The main ground urged by the applicant is that the action of the respondents is illegal since OM dated 14.02.2006 has retrospective effect and his pay ought to have been protected on his transfer to Chennai to lower post of SW II from SW I. Late Vijayakumar has prayed for the granting of relief as claimed in the O.A.
5. Upon notice, the respondents have entered appearance and filed detailed reply denying the averments made in the O.A except those which are based on records. The respondents have filed additional reply also. They have stated that late Vijayakumars pay of the post of SWI was protected on his transfer to Chennai to a lower post of SW II. Again, he was promoted as SWI in Chennai and his pay was fixed by granting one increment under FR 22 I (a) 1. They have admitted consequent to audit objection the recovery was ordered and the entire excess amount had been recovered from the pay of the Late Vijayakumar, in installments. In the additional reply they have taken the same stand as taken in the original reply. Besides, it is stated that they have referred the matter to the DOPT and the DOPT has clarified that the OM dated 14.02.2006 referred by late Vijayakumar is applicable only in case of an employee who seeks transfer to the lower post on his own request and in case of reversion to lower post, like the present one, the OM dated 14.02.2006 is not applicable. It is further stated that on reversion to lower post of SW II the pay what he would have drawn but for his promotion alone should be allowed to the official instead of pay protection. Hence they have stated the impugned order is legally valid. In view of this the respondents have prayed for the dismissal of the O.A.
6. We have heard the learned counsel appearing for both sides. We have carefully perused the documents. Admittedly late Vijayakumar was promoted as SW I and posted to Tirunelveli and his pay was fixed at Rs. 1320/-. However, he sought transfer to Chennai in a lower post which was acceded to. He was transferred to Chennai and his pay was fixed at Rs.1050/- in the grade of SW II. Subsequently his pay was raised to Rs. 1325/-. He was promoted as SW I and his pay was fixed at Rs.1410/- While auditing the records, the internal audit found that the applicant was given pay fixation twice for the promotion to the same post within the span 2 = months time, such as to the post of SW I from SW II the first one at Tirunelveli and the second one at Chennai. In fact his second promotion at Chennai was nothing but a restoration of earlier promotion and posting to Tirunelveli which the applicant had forgone due to personal reasons. Therefore two fixation benefits of pay for the same post is not permissible and hence recovery was ordered. It is seen that recovery had been already completed in Jan/Feb.2006. The applicant has raised this issue after a lapse of three years i.e. in 2009. We do not find any illegality in the impugned order.
7. In view of the above discussion, we are not inclined to interfere with the impugned order. Late Vijayakumar had failed to prove that the respondents have erred in ordering recovery. The O.A is, therefore, liable to be dismissed. Accordingly it is dismissed. No order as to costs.