Union of India & Ors. v. Satish Kumar

1. By the instant writ petition preferred under Articles 226 & 227 of the Constitution of India, the petitioners seek setting aside of the order dated 07.02.2017 in OA No. 164/2000 and order dated 01.05.2018 in RA NO. 159/2017 passed by the Central Administrative Tribunal, Principal Bench, in short 'CAT'.

2. Concisely, the relevant facts are that the respondent, who was appointed by the petitioners as Supervisor Apprentice on 01.02.1967, during the course of his employment completed Section A of AMIE Course on 23.07.1978. On the completion of such course, the respondent 2019:DHC:1439-DB intimated the petitioners and as per the then policy/scheme in vogue, the respondent was extended the benefit of First Advance Increment. Thereafter, the respondent completed his Section B of AMIE Course in February, 1978 and an intimation thereof was given by the respondent vide his letter/communication dated 23.02.1978. Vide letter dated 22.01.2013, the respondent made a representation for grant of increment(s) on account of higher qualifications inter alia on parity with the case of one Sh.Pulak Kumar Dutta. The competent authority sanctioned grant of 02 (two) advance increments to the respondent with effect from 05.02.1978 (date of declaration of result), on account of passing of Section B of AMIE and ordered for refixation of his pay, allowing the arrears, vide its communication No.278 dated 02.04.2013. Salary of the respondent, thus, came to be refixed vide communication no.684 dated 17.08.2013. Office of the Principal Controller of Accounts (FYS) vide its communication dated 21.01.2014 [adverting to Government of India, Dept.of Per. & Trg.OM No.1/2/89-Estt.(Pay-I), dated 9th April, 1999 mentioned in F.R.27] communicated that the lumpsum incentive is admissible instead of advance increment and that the General Manager, Ordinance Factory, Muradnagar, District Ghaziabad, may settle the matter at their end and as per laid down rules and regulations. In other words, the sanction of the advance increments did not materialize, and, it appears, vide orders dated 14.08.2014 and 06.10.2014, the benefits extended to the respondent vide orders dated 02.04.2013 and 17.08.2013, were withdrawn. On this, the respondent made representation inter alia adverting to the fact that he had acquired the higher qualification on 05.02.1978 i.e. prior to 01.04.1993, and, therefore he was entitled to 02 (two) advance increments for passing Section B of AMIE. Having failed to get any positive results, the respondent approached CAT by way of OA No.164/2015 and that came to be allowed vide impugned order dated 07.02.2017. The petitioners sought review of the said order filing RA No.159/2017. This RA was dismissed by CAT vide other impugned order dated 01.05.2018. Aggrieved of the said orders passed by CAT, the petitioners have preferred the petition in hand.

3. In the impugned order dated 07.02.2017, CAT, took note of the fact that the respondent had duly informed the petitioners of his having cleared Section B of AMIE vide his application in February,1978 itself, and, had also requested for the endorsement being made to that effect in his service book. This material factual aspect is not in dispute. CAT in the impugned orders has also taken note of the fact that a similarly placed person namely, Pulak Kumar Dutta, was granted the benefit of three increments by CAT, Ernakulam Bench in OA No.755/1997 decided on 07.10.1999. Taking note of such material aspects, CAT has allowed the OA with the observations, as follows:

increments from the date he acquired the qualification. This ratio squarely applies in this case as well and the advance increment cannot be denied to the applicant on the sole ground that he did not opt for the incentive within six months of Circular dated 16.05.2008. The applicant had informed the Department in 1978 itself, the department slept over it. In fact, the Hon'ble Supreme Court in S.R.Bhanrale Vs.Union of India and Others (1997) (1) SLJ 14, have held that in case it is the Government's fault then limitation will not apply. In any case, applicant has filed this OA only after the order dated 14.08.2014 was issued by which the advance increment granted have been withdrawn. In our opinion there is no question of limitation applying in this case. Further more, the respondents themselves have issued a letter dated 28.01.2015 seeking to examine afresh all such left over cases in which the applicant could not be granted these benefits.

4. As regards the decision of CAT of Ernakulam Bench, the petitioners seek to draw distinction on the premise that in the case of Pulak Kumar Dutta, the question for consideration before CAT was only as to whether he was entitled to the benefits of advance increment scheme or the lump sum scheme, whereas, in the case in hand, the very entitlement of giving incentives, on account of failure to claim the benefit in time, was involved. Can the failure, which is attributable to the petitioners, be imposed upon the respondent? Answer thereto, certainly has to be in the negative. Undisputedly, the respondent had informed the petitioners of acquisition of the higher qualification in February, 1978 itself, and, as per the extant scheme, he was entitled to the advance increments, which came to be granted to him by the competent authority, vide communication No.278 dated 02.04.2013 and his pay refixed vide communication No.684 dated 17.08.2013. If the petitioners failed to record entry of the higher qualification in the service book of the respondent, which is to be maintained by none else, but, the petitioners, the employee-the respondent, cannot be attributed the lapse therefor. The petition founded on such plea is therefore, bound to fail and we do not see any perversity or illegality in the impugned orders of CAT, to invoke the extra ordinary jurisdiction of this court under Article 226 and/or 227 of the Constitution of India.

5. For the foregoing reasons, the writ petition is dismissed. No order as to costs. A.K.CHAWLA, J. VIPIN SANGHI, J. MARCH 07, 2019