it2025_00369 — Advance increments granted in 2005 in IARI under the rules then extant cannot be withdrawn when the policy of grant of advance increments effective from 1-1-2006 was revised restricting it to one increment

Advance increments granted in 2005 in IARI under the rules then extant cannot be withdrawn when the policy of grant of advance increments effective from 1-1-2006 was revised restricting it to one increment — The chunk is about a court case involving an employee of ICAR (Indian Council of Agricultural Research) who was given three advance increments in 2005, which were later questioned due to changes in r... — Facts: The Applicant is a civilian Group 'A' employee, presently working as Assistant Chief Technical Officer (T-7 / 8) at the Regional Station of lARl, Pune-07. His date of birth is 23-10-1955, and his date of retirement from service is 31-10-2015 (AN), on attaining the age of superannuation. Powers have been afforded to the Director, IARI under Rule 6 of the Technical Services Rules for grant of promotion to the Technical Officers on the recommendation of the Assessment Committee for Category – IV Technical personnel. Accordingly, vide office order No. 18-3/97-P-V, dated 9-1-2006, the Applicant, who was working as Technical Officer / T-6 Grade, was granted three advance increments in the existing grade with effect from 3-2-2005. The basic pay of the Applicant was increased by three advance increments, and he was in receipt of increased pay regularly every month since 3-2-2005. Subsequently, he was granted regular promotion from the cadre of Technical Officer / T-6 to the next cadre / grade of Technical Officer T-7 / 8, with effect from 3-2-2009 vide office Order No. 3-2/2010-P-V, dated 31-8-2010.Thereupon, his pay was fixed in PB-4 (₹ 15,600 - 39,100)+GP of ₹ 6,600 p.m. with regular annual increments as per rules. The ICAR, New Delhi sent a letter, dated 11-6-2012 to all Directors of Institutes / National Research Centres I Bureaus / Directorates / Zonal Project Directors under ICAR on the subject of granting of advance increments to Technical employees of ICAR consequent to the implementation of recommendation of 6th Pay Commission. The Applicant was given three advance increments with effect from 3-2-2005 much before the appointed / cut-off date of 1-1-2006 when the 6th Pay Commission revised the pay scale, and he was due for retirement on 31-10-2015. The Applicant was orally informed by Respondent No. 4 that an amount of ₹ 3,37,016 (Three lakhs thirty seven thousand and sixteen only) is required to be recovered from him on the ground of recovery of amount of advance increment given to him during the period 1-1-2006 to 1-8-2015. No recovery has still been made. However, the Respondents have neither issued any show-cause notice in respect of withdrawal of advance increments given to him nor Respondent No. 4 has passed any Office Order in this regard, but they have decided to recover the said amount quietly from his retirement benefits, like gratuity. Respondent No. 4 reduced the Applicant's pay by letter, dated 5-9-2015. The Applicant's retirement benefits are not yet finalized by AAO (Pension). Applicant's representation against the proposed action not having received any response, he filed this OA. The contention of the Applicant is that, advance increments granted with effect from 3-2-2005, and thus, the revised scheme of granting only one increment notified and circulated vide letter, dated 11-6-2012 cannot be applied to his case. The Applicant is covered by the rules / scheme prevalent at the relevant time which was the scheme of February, 2005. By misreading the letter, of 11-6-2012 and also by misapplication of the provisions of above Letter, Respondent No. 4 has withdrawn / reduced two out of three increments given to him way back on 3-2-2005. The provisions of letter, dated 11-6-2012 cannot be given any retrospective effect, so far as the Applicant is concerned. In a similar case, Principal Bench of this Tribunal has prohibited the recovery in O.A. No. 862 of 2014 and C.P. No. 167 of 2020, dated 5-1-2021 in the case of Kay Prasad v. Director-General, ICAR and others. The Applicant is covered by ratio as laid down by the Apex Court in the case of State of Punjab and others v. Rafiq Masih (White washer) and others [ (2015) 4 SCC 334 ] and the guidelines of the Apex Court were notified by DoP&T vide its Order, dated 2-3-2016. Based on the DoP&T guidelines, the ICAR issued office Order, dated 23-1-2019 to waive off overpayments made to Technical employee on account of advance increments. However, this order of higher authority has not been implemented by the office. The Counsel for the Respondents raised preliminary objection of misjoinder of parties (Respondent Nos. 1 and 2) as also non-joinder of necessary party i.e. the Secretary. Arguing on merits, he had submitted that the circular, dated the 11th June, 2012 is consequent to the implementation of CCS (Revised) Pay Rules, dated 31-8-2008 of the Union of India-Respondent No.1. The said rules were given effect thereafter during the year 2009 and in the process, certain problems pertaining to pay fixation were observed, as the very purpose of granting additional increments as a matter of compensation in lieu of promotion was found to be exceeding and thereby defeating. The said additional increments were granted on the prevailing pay scale under the 5th CPC which provided separate pay scales for each grade / class of employee. The 5th CPC recommended four pay bands with 3% increment whereby number of running pay scales were merged under each pay band and while fixing the revised pay, it was observed that the promoted employee was drawing less than the compensated one. Counsel for the Respondent submits that the impugned Order, dated 11th June, 2012 was challenged before the Principal Bench of this Tribunal in O.A. No. 862 of 2014 and the said OA was disposed of on 8th December, 2015 whereby the competency of the authority of the said order was upheld by the Tribunal. Per contra, the Counsel for the Respondents contended that judgment in State of Punjab and others v. Rafiq Masih (supra) and also the Order, dated the 8th December, 2015 passed by the Principal Bench of this Tribunal in O.A. No. 862 of 2014, relates to the excess payment mistakenly made by the employer and not that of the employee. But in the instant case, the basis of recovery is different and effected in accordance with the policy decision of the Respondents. It is settled law that even the accrued rights or vested rights can be taken away, if it is so expressly, provided by the legislature or rule making authority, as the case may be. In the present case, it has been expressly provided that the amendment would be effective from 2006, i.e., retrospectively. The concept of vested rights, or accrued rights, would arise only, if it is expressly provided that the amendment would not be retrospective. The Technical Service Rules, as originally framed, provided for three advance increments to compensate an employee for lack of promotional avenues. However, it was found that advance increments granted were way beyond the benefits that would accrue to the same employee consequent upon promotion. It is in that perspective that the matter was reviewed, and the Rule was amended. Thus, it cannot be said that the amendment providing for one advance increment is arbitrary or unreasonable ... " As regards the ratio in the judgment of Rafiq Masih, in yet another judgment, dated 29th July, 2016 in Jagdev Singh (supra), it has been held as under:- "11. The principle enunciated in proposition

(ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."