CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH

O.A.NO.3402 OF 2013
New Delhi, this the    2nd  day of July, 2015

CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..

Sh.Nain Singh,
s/o late Sh.Buraj Singh,
Aged about 64 years,
R/o F-138, Sector 56, Noida 		.		Applicant

(By Advocate: Shri Naresh Kumar Kaushik for Shri T.D.Yadav)

Vs.
1.	The Chairman,
	Central Pollution Control Board,
	Parivesh Bhawan,
	East Arjun  Nagar,
	Delhi 110032
2.	The Member Secretary,
	Central Pollution Control Board,
	Parivesh Bhawan,
	East Arjun Nagar,
	Delhi 110032

3.	Accounts Officer ( In charge),
	CPCB, Parivesh Bhawan,
	East Arjun Nagar,
	Delhi 110032			.		Respondents

(By Advocate:Shri P.N.Puri)
	
					.
					ORDER

Brief facts of the case of the applicant are that he initially joined as an Accounts Assistant in the Central Pollution Control Board on 24.9.1981. He was promoted to the post of Junior Accounts Officer w.e.f. 26.7.1985, to the post of Assistant Accounts Officer with effect from 2.1.1987, and then to the post of Accounts Officer w.e.f. 20.12.1995. He was granted annual increments w.e.f. 1.1.1999, 1.1.2003, 1.1.2004, 1.1.2005, 1.1.2007 and 1.1.2008 in the pay scale of Rs.10,000-15,200/-, vide orders dated 11.2.1999, 6.1.2003, 6.1.2004, 13.1.2005, 3.12.2007 and 14.1.2008 (Annexures B to G). The fixation of his pay was done in PB 3 (Rs.15,600-39,100) with GP Rs.6600/-, under the CCS (RP)Rules, 2008, vide order dated 17.11.2008,and thereafter, vide order dated 20.7.2009 the competent authority sanctioned and released annual increment w.e.f. 1.7.2009, vide orders dated 17.1.2008 and 20.7.2009 (Annexure H Collectively). He retired from service on 30.9.2009 on attaining the age of superannuation. By taking his basic pay Rs.27,910/- and Grade Pay of Rs.6600/-, as the last pay drawn by him on the date of retirement, the competent authority, vide orders dated 9.12.2009 (Annexure I and J), sanctioned Rs.5,89,428/- for payment of gratuity, and Rs.4,21,020/- for payment of leave encashment in his favour. Thereafter, the competent authority issued an order dated 16.2.2010 (Annexure A), releasing provisional payment of Rs.8,00,000/- in his favour towards gratuity and leave encashment, vide Union Bank of India cheque No.010789 dated 15.2.2010. It is stated by the applicant that he was entitled to a total amount of Rs.10,10,448/- towards gratuity and leave encashment. He was also not paid balance 60% of 6th CPC arrears, which were paid to all employees in October 2009, and also DA arrears for July 2009 to September 2009 and Group Insurance amount. The representations made by him having yielded no response, the applicant filed the present O.A. seeking the following reliefs:

(i) direct the respondent to pay difference/balance of Rs.2,10,448 (sanctioned gratuity Rs.5,89,428 + sanctioned leave encashment Rs.4,21,020 = 10,10,448  8,00,000  2,10,448) to the applicant.

(ii) direct the respondent to pay difference/balance Rs.41,924/- on gratuity and leave encashment due to hike of 5% DA w.e.f. 1.7.2009 to the applicant.

(iii) direct the respondent to pay balance 60% of 6th Pay Commissions arrears and also pay D.A. Arrears for July, 2009 to Sept.2009 due to hike of 5% w.e.f. 01.7.2009 as well as direct the respondents to pay Group Insurance to the applicant.

(iv) to direct the respondents to grant 18% interest on delayed payment of all the retiral benefits and other benefits to the applicant.

(v) Pass any other order/direction as may be deemed just and proper in the facts and circumstances of the case.

2. Opposing the O.A., the respondents have filed a counter reply. It is stated by the respondents that the Central Pollution Control Board (hereinafter referred to as PCBC) is a statutory body functioning under the administrative control of the Ministry of Environment & Forests, Government of India, New Delhi. CPCB has been following all the Guidelines, Office Memorandums, Office Orders, Rules, and Regulations, issued by the Government of India from time to time for its employees mutatis mutandis. The applicant joined as an Accounts Assistant on 24.9.1981. He was promoted to the post of Junior Accounts Officer on 26.7.1985, vide order dated 26.7.1985. Subsequently, vide order dated 16.01.1987 (Annexure R/1), the post of Junior Accounts Officer was upgraded and re-designated as Assistant Accounts Officer w.e.f. 2.1.1987. The Board of CPCB in its 63rd and 105th meetings held on 3.7.1986 and 12.7.1996 respectively upgraded the pay scale of Accounts Officer to Rs.3000-4500/- (revised in 5th CPC to Rs.10000-325-15200). Vide order dated 25.01.1995 the applicant was promoted to the post of Accounts Officer on ad hoc basis w.e.f. 25.01.1995 in the notified pay scale of Rs.2375-3500 (4th CPC pay scale), which was revised to Rs.7450-225-11500 (5th CPC) w.e.f. 1.1.1996. Vide order dated 05.01.1996, the applicant was regularized in the post of Accounts Officer w.e.f. 20.12.1995 in the pay scale of Rs.2375-3500/-. The applicant was placed in the upgraded scale of pay of Rs.3000-4500/- as approved by the CPCB in its 105th meeting held on 12.7.1996. The Central Government, i.e., Ministry of Environment and Forests, did not agree to the CPCBs proposal for revision of pay scale of Accounts Officer, and asked for reversion to the older scale as approved by the Government. The Comptroller & Auditor General (CAG), in its report for the year ending March 2009, pointed out that the CPCB has upgraded 47 posts in various cadres without the previous approval of the Ministry of Environment & Forests. Out of these 47 posts, CPCB continued to operate the 02 posts of Accounts Officer in the upgraded pay scale of Rs.10,000-15,200/- unauthorizedly. Since 2005 the Ministry of Environment & Forests has been requesting the CPCB to operate the post of Accounts Officer in the approved and notified pay scale of Rs.7450-11500/- and to fix the responsibility for not following its advice since 1995, including the directions issued by the then Additional Secretary. In September, 2009, the upgraded scale for the post of Accounts Officer was withdrawn, and thereafter the post of Accounts Officer operated in the Government notified scale of pay of Rs.7,450-11,500/-. Based on the observations of the Comptroller & Auditor General, at para 2a of its report for the year ending March, 2009 and the repeated directions of the Ministry of Environment & Forests since 2005 to operate the pay scale of Accounts Officer in the notified scale of pay as per the CPCB Employees Recruitment Rules 1995, the decision was taken by the competent authority to withdraw the higher pay scale of Rs.3000-4500/- (revised to 5th CPC pay scale of Rs.10,000-15,200/- and 6th CPC PB 3: Rs.15,600-39100/- with Grade Pay of Rs.6600/-) for Accounts Officer and to superannuate the applicant in the notified pay scale of 4th CPC pay scale of Rs.2375-3500/-, 5th CPC pay scale of Rs.7450-11500/-, and 6th CPC PB 2(Rs.9300-34800) + Grade Pay Rs.4600/-, as applicable to Accounts Officer under the Central Pollution Control Board (Method of Recruitment, Terms and Conditions of Service of Officers and other employees and other than Member Secretary) Regulations,1995. Accordingly, the pay of the applicant was re-calculated and re-fixed at Rs.26,920/- (Basic Pay Rs.22,320 + Grade Pay Rs.4600) in place of Rs.34,510 (Basic Pay Rs.27,910 + Grade Pay Rs.6600). Based on his pay so re-fixed, the retirement dues of the applicant were calculated as under:

(a)	Gratuity					-	Rs.04,78,632.00
(b)	Leave Encashment for 300 days 		-	Rs.03,41,880.00
			Total		-	Rs.08,20,512.00

As approved by the competent authority, a provisional payment of Rs.8,00,000/- was released to the applicant, intimating him that final settlement of his retirement benefits would be made after a decision is taken in the matter. The applicants pay was provisionally re-fixed as per the Government approved and notified scale of pay subject to final decision on the audit observations. Based on re-fixation of his pay in PB 2 with Grade Pay of Rs.4600/-, the arrears were calculated and the payment already made to the applicant towards 40% in the pay structure of Grade Pay of Rs.6600/- resulted in recovery from him. The fixation of pay of the applicant was done as per the CCS (Revised Pay) Rules, 2008 on provisional basis. It was mentioned that the said fixation of pay was subject to post audit and in the light of audit observations on the overpayment made, if any, either in the form of arrears or otherwise shall be recovered from the amount due to the applicant subsequently without any notice, vide para 2 of the office order dated 17.11.2008. Further, vide para 5 of the office order dated 17.11.2008, a written undertaking was obtained from the applicant by the respondents, while disbursing the salary from the month of September 2008, or arrears as a result of pay fixation from 01.01.2006 to 31.8.2008 to the effect that any excess payment which might be found to have been made as a result of wrong fixation of pay would be refunded by him to CPCB either by adjustment against future payments, or otherwise. The Group Insurance amount is LIC linked, and it is usually paid to the eligible employees after its receipt from the LIC. In the case of the applicant, the Group Insurance amount of Rs.39,760/- received from the LIC was paid to the applicant, vide cheque No.056321 dated 4.10.2013. In view of the above, the respondents pray for dismissal of the O.A.

3. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply. It is, inter alia, stated by the applicant that on 1.10.2009 the upgraded pay scale for the post of Accounts Officer was withdrawn, as mentioned at page 87 of the CAGs Report No.22/2013, and that his entitlement for gratuity and leave encashment ought to have been determined in accordance with Rules 33(4) and 50 of the CCS (Pension) Rules, 1972.

4. I have perused the records and have heard Shri Naresh Kumar Kaushik, learned counsel appearing for the applicant, and Shri P.N.Puri, learned counsel appearing for the respondents. Shri Kaushik also filed a statement showing the details of amount of gratuity and leave encashment admissible and paid to the applicant.

5. Shri Kaushik, learned counsel for the applicant, submitted that Rule 8 of the Water (Prevention and Control of Pollution) Rules, 1975, deals with the power of the CPCB to create and abolish any post. The proviso to Rule 8 stipulates that for the creation of, and appointment to posts, the maximum of the scale of which is above Rs.1,600/- per month, the CPCB shall obtain prior sanction of the Central Government. Upgradation of pay scale for the post of Accounts Officer does not amount to creation of any post and therefore, the prior sanction of the Central Government, as stipulated in the Proviso to Rule 8 ibid, was not required, and the CPCB was competent to upgrade the pay scale for the post of Accounts Officer. The CPCB having duly upgraded the pay scale for the post of Accounts Officer, and the applicant having discharged the duties attached to the post of Accounts Officer till the date of his retirement, he was entitled to be paid gratuity and leave encashment on the basis of the emoluments received by him on the date of his retirement. The learned counsel also submitted that the right vested in the applicant to get gratuity and leave encashment under the rules cannot be taken away by the respondents, and the applicant cannot be deprived of his entitlements for no fault/wrong on his part.

6. On the other hand, Shri P.N. Puri, the learned counsel appearing for the respondents, invited my attention to the orders dated 5.1.1996 and office order dated 12.5.1997 (Annexure R/V), and submitted that the applicant was promoted to the post of Accounts Officer with effect from 20.12.1995 (FN) in the scale of pay of Rs.2375-75-3200-EB-100-3500/-, and that the grant of upgraded scale of pay of Rs.3000-4500/- to the applicant with effect from 1.5.1997 on the basis of the decision of the Board in its 105th meeting held on 12.7.1996 was subject to approval of the Ministry of Environment & Forests. As the required approval was not accorded by the Ministry of Environment & Forests, the applicant was neither entitled to the upgraded scale pay while working as Accounts Officer, nor was he entitled to be paid gratuity and leave encashment on the basis of the emoluments which he received on the date of his retirement from service on the basis of the said irregular grant of upgraded scale of pay. In support of his contentions, Shri Puri, besides taking me through the relevant pleadings contained in the counter reply, also invited my attention to Sections 12 and 63 of the Water (Prevention & Control of Pollution) Act, 1974 ; Rules 7 and 8 of the Water (Prevention & Control of Pollution) Rules, 1975; the Central Board for the Prevention &Control of Water Pollution [Method of Recruitment and terms and conditions of service including scales of pay of officers (other than Member Secretary) and other employees] Regulations, 1980; the Central Pollution Control Board [Method of Recruitment, Terms and Conditions of Service of Officers of other employees (other than Member Secretary)] Regulations; 1995; the minutes of 63rd meeting of the Board held on July 03,1986; the minutes of 105th meeting of the Board held on July 12, 1986; and the office order dated 12.5.1997.

7. I have bestowed my anxious consideration to the facts and circumstances of the case and the rival contentions of the parties.

8. Sub-section(3) of Section 12 of the Water (Prevention & Control of Pollution) Act, 1974 (hereinafter referred to as the Act) stipulates that subject to such rules as may be made by the Central Government, a Board (in this case, CPCB) may appoint such officers and employees as it considers necessary for the efficient performance of its functions. Sub-section (3A) of the Act prescribes that the method of recruitment and the terms and conditions of service (including the scales of pay) of the officers and other employees of the Central Board shall be such as may be determined by regulations made by the Central Board, and proviso to sub-section (3A) stipulates that no regulation made under this sub-section shall take effect unless it is approved by the Central Government. Rule 7 of the Water (Prevention & Control of Pollution) Rules, 1975 (hereinafter referred to as the Rules 1975) stipulates that the Central Board may create such posts as it considers necessary for the efficient performance of its functions and may abolish any post, so created, and the proviso thereto states that for the creation of, and appointment to, posts, the maximum of the scale of which is above Rs.1,600/- per month, the Central Board shall obtain prior sanction of the Central Government. In exercise of the powers conferred by sub-section (3A) of Section 12 of the Act, the CPCB, with the previous approval of the Central Government, made the Central Board for the Prevention & Control of Water Pollution [Method of Recruitment and Terms and Conditions of Service including scales of pay of officers (other than Member Secretary) and other employees] Regulations, 1980 (hereinafter referred to as the Regulations 1980). In Schedule III, appended to the Regulations 1980, at sl.no.9, the post of Accounts Officer finds mention. Presumably, in supersession of the Regulations 1980, the Central Pollution Control Board (Method of Recruitment, Terms and Conditions of Service of Officers and other Employees (other than Member Secretary) Regulations, 1995 (hereinafter referred to as the Regulations 1995) were made by the CPCB with the previous approval of the Central Government. In column (3) of Schedule I, at sl.15, appended to the Regulations 1995, it is mentioned that the post of Accounts Officer carries the pay scale of Rs.2375-75-3200-EB-100-3500/-. In columns (3) and (4) of Schedule II, appended to the Regulations 1995, the post of Accounts Officer is classified as Group B and shown to carry the scale of pay of Rs.2375-75-3200-EB-100-3500/-. The Board, in its 105th meeting held on 12.7.1996, approved change over of scale of Accounts Officer from Rs.2375-3500 to Rs.3000-4500. On the basis of this approval/decision of the Board, office order dated 12.5.1997 was issued and the scale of pay of the applicant was changed from Rs.2375-3500/- to Rs.3000-4500/- w.e.f. 01.05.97 subject to the approval of the Ministry of Environment & Forests, i.e., the Central Government. Admittedly, the Ministry of Environment & Forests did not grant approval to the said change and/or upgradation of the scale of pay for the post of Accounts Officer. Although such change and/or upgradation, in the strict sense, does not involve creation of any post, yet, in terms of the provisions contained in Regulations 1980 and Regulations 1995, the same requires previous approval of the Ministry of Environment & Forests, i.e., the Central Government. Therefore, I do not find any substance in the contention of the learned counsel for the applicant that upgradation of the pay scale for the post of Accounts Officer did not require the previous approval of the Central Government. In the absence of such approval of the Central Government, the grant of upgraded scale of pay of Rs.3000-4500/- to the applicant is void ab initio, and the applicant cannot be said to have been legally entitled to the said upgraded scale of pay, which was subsequently revised to Rs.10000-15200/- (5th CPC) and Pay Band Rs.15600-39100/- with Grade Pay of Rs.6600/- (6th CPC), while he was in service till the date of his retirement, i.e., 30.9.2009. His further contention is that the said upgraded scale of pay having been withdrawn by the CPCB on 1.10.2009, and that having worked as Accounts Officer in the upgraded pay scale till the date of his retirement, i.e., 30.9.2009, he is entitled for retirement gratuity and leave encashment on the basis of the emoluments received by him on the date of his retirement. This contention is equally without any substance. As the upgraded scale of pay for the post of Accounts Officer was never approved by the Central Government, it cannot be said that such upgraded scale of pay was available in the CPCB till 30.9.2009 and was only withdrawn on 1.10.2009. In the above view of the matter, I have no hesitation to hold that no right ever accrued to the applicant to get the upgraded scale of pay while he was in service and also to claim retirement gratuity and leave encashment based on the same, and therefore, there is no question of taking away of any of his vested right.

9. It transpires from the records that the applicants pay has been re-fixed in the pay scale of Rs.2375-3500/- w.e.f. the date of his promotion to the post of Accounts Officer. Accordingly, re-fixation of his pay has also been done with effect from 1.1.1996 and 1.1.2006 on implementation of the 5th CPC pay scale and 6th CPC Pay Band & Grade Pay corresponding to the 4th CPC pay scale of Rs.2375-3500/- as applicable to the post of Accounts Officer and approved by the Central Government. He has also been granted annual increments as admissible to him under the rules. On the basis of such re-fixation of his pay, the applicants pay was Rs.26,920/- (Rs.22,320 + GP Rs.4600/-) instead of Rs.34,510/- (Rs.27,910 + GP Rs.6600/-). Accordingly, gratuity of Rs.4,78,632/- and leave encashment of Rs.3,41,880/- have been determined. Out of the total amount of Rs.8,20,512/-, the respondents have provisionally released Rs.8,00,000/- in favour of the applicant towards gratuity and leave encashment. As regards the balance amount of Rs.20,512/-, the respondents have stated that some amount is recoverable from the applicant towards overpayment made to him at the time of disbursement of 6th CPC 40% arrears. As regards the applicants claim for 6th CPC arrears, the respondents have filed statements of payment due to and drawn by the applicant. It transpires from the said statements that overpayments already made are recoverable from the applicant. As regards the Group Insurance amount, the respondents, after receiving the said amount from the LIC, have already paid the same to the applicant.

10. In the light of the above discussions, I hold that the O.A. is devoid of merit and the applicant is not entitled to any of the reliefs sought by him.

11. Accordingly, the O.A. being devoid of merit is dismissed. No costs.

								(RAJ VIR SHARMA)
AN								JUDICIAL MEMBER