Central Administrative Tribunal - Chandigarh
Mehar Chand Jamwal vs Central Goods And Services Tax on 9 April, 2025
1 (OA No. 063/1010/2019)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Reserved on : 10.02.2025
Pronounced on: 09.04.2025
OA No. 063/1010/2019
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
Mehar Chand Jamwal aged 63 years s/o Late Sh. Sita
Ram, Assistant Commissioner (Retd.) R/o V & PO
Dhagwar The. Dharmshala Distt. Kangra (HP)-176001.
.......... Applicant
(BY Advocate: Applicant in person)
Versus
1. Union of India through the Secretary, Ministry of
Personnel, Public Grievances and Pension,
Department of Personnel & Training, Govt. of India,
Ministry of Finance, North Block, New Delhi-110001.
2. The Principal Commissioner (the Cadre Controlling
Authority) Central Goods and Service Tax, Central
Revenue Building, Plot No. 19, Sector 17-C,
Chandigarh-160017.
.................Respondents
(BY Advocate: Sh. Sanjay Goyal, Sr. CGSC with Sh.
Pankaj Khurana
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. This Original Application has been filed under Section 19 of the A.T. Act, 1985 against Speaking Order dated 2 (OA No. 063/1010/2019) 05.10.2018 (Annexure A-24) passed by the Principal Commissioner (the Cadre Controlling Authority) Central Goods and Service Tax, Chandigarh whereby the benefit of financial upgradation in Grade Pay of Rs.
6600/- in PB-3 had been withdrawn and the representation filed by the applicant was rejected.
2. The factual matrix of the case at hand is that the applicant joined as Inspector of Customs and Central Excise at Amritsar on 01.12.1983, promoted to Superintendent on 29.08.1997 and then to the Assistant Commissioner on 14.10.2014.
3. The applicant submits that on completion of 24 years of regular service on 01.12.2007, he was granted 1st Financial Upgradation with Grade Pay of Rs. 5400/- under ACP Scheme on 05.12.2008 (Annexure A-1).
4. The applicant submits that he was granted pay scale of Rs. 9300-34800 with Grade Pay of Rs. 5400/- in PB-2 after four years of regular service as a Superintendent being Group B officer of the Department on NFSG basis for the period 01.01.2006 to 31.08.2008. He was granted third Financial Upgradation in PB-3 on 20.02.2014 on completion of 30 years of his regular service under MACP Scheme.
3 (OA No. 063/1010/2019)
5. The applicant retired on 31.03.2016 as Assistant Commissioner and was allowed pensionary benefits on the Grade Pay of Rs. 5400/- instead of the Grade Pay of Rs. 6600/-. Vide order No. 19/2017 dated 14.03.2017, the Additional Commissioner (P&V), Central Excise and Service Tax Chandigarh withdrew 3rd Financial Upgradation. The order dated 19/2017 dated 14.03.2017 was set aside by this Tribunal in OA No. 060/00335/2017 and connected matters. Vide order dated 02.07.2018 passed in OA No. 063/752/2018, the Tribunal remitted back the case to the Principal Commissioner of G&ST, Chandigarh. But the Competent Authority rejected the case of the applicant for restoring 3rd Financial Upgradation granted under MACP Scheme. Hence this OA.
6. The respondents have rebutted the claim of the applicant by filing a written statement. They submitted that the applicant is challenging order dated 05.10.2018 (Annexure A-24) whereby it was held that the applicant has been granted three Financial Upgradations/Promotions and thus, he is not eligible for any further Financial Upgradation. They further submitted that the Superintendents in the Grade Pay of 4 (OA No. 063/1010/2019) Rs. 4800 get NFG in GP of Rs. 5400 in PB-2 after four years of regular service. After promotion to the grade of Assistant Commissioner, they are placed in GP of Rs. 5400 in PB-3. Such Superintendents are claiming MACP benefit after ignoring NFG granted to them i.e. they are basically claiming Financial Upgradation under MACP in the promotional hierarchy which is against the MACP Scheme.
7. The respondents further submitted that under the provisions of erstwhile ACP Scheme of 1999, financial upgradations were granted in the then existing promotional hierarchy. This gave rise to uneven benefit to employees falling in the same pay scale as several organizations adopted different hierarchical pattern. Consequently, employees working in organizations having greater number of intermediary grades suffered because financial upgradation under ACPS placed them in lower pay scale vis-à-vis similarly placed employees in other organizations that had lesser intermediary grades.
8. That the 6th CPC recommended a systemic change in the ACPS whereby all employees, irrespective of the hierarchical structure as prevalent in their 5 (OA No. 063/1010/2019) organization/cadre, would get the same benefit under the Scheme. Accordingly, the ACP Scheme was replaced by Modified ACP (MACP) Scheme which provided for three upgradations after 10, 20 and 30 years respectively in the successive grade pay in the hierarchy of recommended revised pay band and grade pay as prescribed in the CCS (RP) Rules, 2008 (Annexure R-1) and not in the promotional hierarchy as was available under the ACP Scheme. The MACP Scheme issued by DOP&T vide its OM dated 19.05.2009 (Annexure R-2) superseded the ACP Scheme. Wherever in any cadre of the Government the ACP Scheme is applicable, the benefits of MACP Scheme would automatically be extended to such cadre.
9. That as per Para 8.1 of MACP Scheme, it has been provided that the Grade Pay of Rs. 5400 in PB-2 and Rs. 5400 in PB-3 shall be treated as separate Grade Pay for the purpose of grant of up-gradation under MACP Scheme. That the Central Civil Services (Revised Pay) Rules, 2016 (Annexure R-3) issued after acceptance of the recommendation of 7th Central Pay Commission have placed both the grades in different Pay levels. The GP Rs.5400 in PB-2 has been placed in Pay Level-9 with 6 (OA No. 063/1010/2019) initial pay of Rs. 53100/- and GP of Rs.5400 In PB-3 has been placed in Pay Level-10 with initial pay of Rs. 56100/-.
10. That earlier, on a reference from Office of the Pr. Chief Controller of Accounts, CBEC, the DoP&T, vide their clarification dated 26.07.2010, (Annexure R-4) had clarified that the benefit of Non-functional up-gradation granted to the Superintendents (Group-B Officers) on completion of 4 years of service would be treated/viewed as up-gradation in terms of para 8.1 of the OM dated 19.05.2009 and the same would be offset against one Financial Upgradation under MACP Scheme. To make its point clear and uniform, the DoP&T published a comprehensive FAQ on MACP Scheme on Its website on 01/04/2011 (Annexure R-5) wherein at FAQ No. 16 it was clarified that Non-functional Grade Pay would be viewed as one Financial Upgradation for the purpose of MACPS in terms of Para 8.1 of MACP scheme dated 19.05.2009.
11. That in addition, the Board in consultation with DoP&T issued a circular dated 20.05.2011 (Annexure R-6) that there would be no effect of grant of Non-functional Scale in erstwhile ACP Scheme. However, in terms of para 8.1 7 (OA No. 063/1010/2019) MACPS, Financial Upgradation granted in the Grade pay of Rs.5400 in PB-2 and PB-3 would be counted as separate up-gradation and would be offset against Financial Upgradation under MACP Scheme.
12. That when it was observed that in some of the Commissionerates, grade pay of Rs.6600/- is being allowed under MACPS to the Superintendents without taking into account the NFU granted after 4 years of service, it was again clarified vide Board's letter dated 4th June, 2014 (Annexure R-7) that NFU granted to Superintendents would be counted/offset against the Financial Upgradation under MACP Scheme. On the basis of this clarification dated 4th June, 2014 many Commissionerate took appropriate corrective action.
13. Applicant has filed the rejoinder to the written statement wherein he reiterated his stand as taken n the Original Application.
14. We have heard the learned counsels for the parties and have carefully gone through the pleadings on record and the law pointed cited.
15. We have given our careful consideration to the pleadings, the oral submissions made by both learned 8 (OA No. 063/1010/2019) counsel, and the cited case law, particularly the binding decision of the Hon'ble Supreme Court in K. Sudheesh Kumar & Ors. vs. Union of India & Ors. (Civil Appeal No. 442 of 2022, decided on 28.01.2022). The relevant paragraphs of K. Sudheesh Kumar & Ors. (supra) are as under:-
"7. At the outset it is required to be noted that the issue involved in the present appeal is as such squarely covered by the decision of this Court in the case of M.V. Mohanan Nair (supra). By detailed judgment and order this Court has Interpreted the very MACP Scheme and it is observed and held that under the MACP Scheme employees are entitled to the immediate next higher grade pay as given in Section 1. Part A of the First Schedule of the CCS (Revised Pay) Rules. 2008. It is specifically observed and held by this Court in the aforesaid decision that MACP has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in the CCS (Revised Pay) Rules, 2008. As per clause 8.1 of the MACP Scheme 'consequently upon the implementation of Sixth CPC's recommendations, grade pay of PB-2 and PB-3 would be Rs.5400. It specifically provides that h the grade pay of Rs.5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme'. Therefore. respondent Nos.1 &2 as PB-2 shall be entitled to the next grade pay of Rs.5400 as per clause 8.1 and as per Section 1. Part A of the First Schedule of the CCS (Revised Pay) Rules. 2008. The High Court has allowed the grade pay of Rs.6600 by considering the next promotion post of Assistant Director 1.e.. Deputy Director which carries a grade pay of Rs.6600. However, the aforesaid interpretation would be contrary to the MACP Scheme On considering the relevant clauses of the MACP Scheme, it appears that the MACP Scheme envisages placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1. Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Thus, the High Court has committed a grave error in allowing the grade pay of Rs.6600 the grade pay which was available to the next promotional post as Deputy Director. Respondent Nos. 1 & 2 as per PB-2 were entitled to the grade pay of Rs.5400 as PB-3 as per clause 8.1.9 (OA No. 063/1010/2019)
8. By the impugned judgment and order and while granting grade pay of Rs.6600 to respondent Nos. 1 & 2 virtually, the High Court has modified the MACP Scheme which has been framed by the Government on the recommendations of the expert body like the pay commission and and held by this Court in the case of M.V. Mohanan Nair (supra) the ACP which is now superseded by MACP Scheme is a matter of Government policy and interfering with the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. It is further observed that the recommendations of the pay commission for the MACP Scheme have been accepted by the Government and implemented. It is further observed that therefore the High Court has no jurisdiction to interfere with the Government policies in the form of MACP Scheme which was after accepting the Sixth Central Pay Commission. In view of the above and for the reasons stated above and the binding decision of this Court in the case of M.V. Mohanan Nair (supra) with which we also agree, the impugned judgment and order passed by the High Court granting grade pay of Rs.6600 to respondent Nos. 1& 2 is unsustainable and deserves to be quashed and set aside.
However, we observe that the view which we are taking is on the premise that neither the MACP Scheme nor Clause 8.1 is under challenge and as per the law laid down by this Court in M.V. Mohanan Nair (supra), an employee is entitled to the higher grade pay as provided under MACP Scheme, more particularly, as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Therefore, so long as Clause 8.1 and the grade pay mentioned as per Section 1. Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 stands, the employee shall be entitled to the grade pay accordingly. Therefore, if any of the employees is aggrieved by Clause 8.1 and if in his opinion, there is any anomaly the same has to be challenged by the aggrieved employee, which can be considered in accordance with law and on its own merits. However, as the same is not under challenge, we have to go by the MACP Scheme as it is.
9. In view of the above and for the reasons stated above the impugned judgment and order passed by the High Court is hereby quashed and set aside and the judgment and order that of the Central Administrative Tribunal is hereby restored. It is observed and held that on implementation of MACP Scheme respondent No.1 and 2 herein shall be entitled to the grade pay of Rs.5400 and not of Rs.6600 as claimed by them. Their pensions be refixed accordingly. However, it is observed that as respondent Nos.1 & 2 are the retired employees and till date they have received the pension considering the grade pay of Rs.6600 and being retired persons it will be very difficult for them to refund the difference in the pay pension, in the peculiar facts and circumstances of the case we direct that there shall be no recovery of the difference in the pension between the grade pay of Rs.5400 and grade pay of 10 (OA No. 063/1010/2019) Rs.6600 for the period prior to December, 2021. However, on refixation of the pension as per the present judgment and order, fixing their grade pay of Rs.5400 they shall be paid the pension accordingly from January. 2022 onwards. The present appeal is allowed accordingly, however, with the above observations and directions. No costs.
16. It is not in dispute that the applicant was granted the first financial upgradation under the ACP Scheme on completion of 24 years of regular service, in the Grade Pay of ₹5400 (PB-2). Thereafter, the applicant received the Non-Functional Grade (NFG) in the same Grade Pay after four years of regular service as Superintendent, which has been held by the Department of Personnel & Training (DoP&T) -- and reaffirmed through multiple clarifications and FAQs -- as one financial upgradation under the MACP Scheme in terms of Para 8.1 of the OM dated 19.05.2009.
17. Subsequently, the applicant was promoted to the post of Assistant Commissioner in Grade Pay ₹5400 (PB-3), which constitutes a distinct grade, as the Grade Pays of ₹5400 in PB-2 and PB-3 are to be treated as separate for the purposes of MACP, as per para 8.1 of the MACP Scheme. Hence, this promotion amounts to a second financial upgradation.
11 (OA No. 063/1010/2019)
18. Thereafter, the applicant was erroneously granted the third MACP benefit in the Grade Pay of ₹6600, which was later withdrawn. The applicant's contention is that the promotion to Assistant Commissioner was in the same Grade Pay as already held and should not count as a separate financial upgradation.
19. However, the Hon'ble Supreme Court in K. Sudheesh Kumar & Ors. has settled this precise issue. It held unequivocally that where an officer is granted the Non- Functional Grade (NFG) and is thereafter promoted to a post in the same Grade Pay (but higher Pay Band), such promotion will nonetheless count as a second financial upgradation under the MACP Scheme. Consequently, the third MACP benefit would not be admissible, as the applicant would have already availed the maximum of three financial progressions allowed -- ACP (treated as first), NFG (as second), and promotion (as third).
20. In light of this binding precedent from the Hon'ble Supreme Court, the decision of the respondents to withdraw the third MACP benefit extended to the applicant in Grade Pay ₹6600 cannot be faulted and no case for interference by this Tribunal is made out. 12 (OA No. 063/1010/2019)
21. Accordingly, the Original Application is dismissed.
However, there shall be no order as to costs.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No