Central Administrative Tribunal - Ahmedabad
Piyushkumar Shantilal Parmar vs Central Board Of Indirect Taxes A& ... on 28 January, 2025
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OA No.2
267/2023
3
CENT
TRAL AD
DMINIS
STRATIVE TR
RIBUNA
AL
AHHMEDA
ABAD B
BECH
Originall Appliccation No. 267/2 O 2023 Pronounced on: 28..01.2025 5 COR RAM:
Hon''ble Shrri Jayesh h V Bha airavia, Member M r (J) Hon''ble Dr. Hukum m Singh Meena, Membeer (A)
1. hkumar S Piyush Shantilall Parmarr Male, Aged 488 years, Superint S tendent, Residing at A--93, Dhaarnidhar Bungalo B ows, Nr. Parshwanaath Town nship, Nrr. Sarjann Bungallow, New Naroda, N A Ahmedaabad - 38 82345.
... Applicant (By A Advocatte Mr. Haarshal N Pandyaa) V/s.
1. Union of Indiaa (Noticee to be seerved thrrough:
Secretaary, Revvenue Miinistry of o Financce, North Block, N New Dellhi 11000 01)
2. Centraal Board of Indireect Taxees, Noticee to be seerved thrrough:
The Ch hairman, CBIC (AD-II), ( Ministtry of Finnance, Departme D ent of Reevenue, New Delhi.
D 110001.
3. Commmissionerr of Custtoms, Kandlaa Custom ms Commmissioneerate, New Custom C H N Balaji Temple, House, Nr.
Kandlaa - 370 2210.
... Respond dents (By A Advocatte Mr. Chhirayu Mehta) M ::2 :: O OA No.2 267/2023 3 OR RDER Per: Hon'blee Shri JJayesh V Bhaira avia, Meember (J J) Being aggrieveed with the speaaking Orrder dateed 14.3.22023 (A Annexuree A-1 refer) vide whicch the responde r ents had not accceded too his req quest forr grantt of exten nsion off the benefits of Non-Fin N nancial Up-grada U ation (herreinafterr referrred to as 'NFG G') in Grade Pay P (in short 'GP') ' oof Rs.54 400/- on n o 4 yeaars in thee Grade Pay of Rs.4800 comppletion of 0/- in terrms of the t dictaa laid ddown by y the Honn'ble Su upreme Court C juddgment dated d 066.09.2010 in WP P No. 13225/2010 in tthe casee of M. Subram S manian Vs. ndia, thee V Unioon of In appliicant hass filed thhe preseent OA under Section 19 1 of thee AT Acct, 1985 5 seekiing the following f g reliefs::-
"(A A) Admitt and allo ow the prresent appplication n.
(B)) Be plleased to o quash and sett aside the t letterr/ dated 14.03.2023, Annexure A-1 and furtheer be pleeased to direct the resp pondent authoritiies to exxtend the benefit of Grrade Payy 5400/- on com mpletion of 4 yeears i.e. 21.09.2020 in nstead of 25.066.2022 in n light of the judgmment of th he Hon''ble Maddras High h Court in Writ petitioon No. 133225 of 2010
2 as cconfirmed d by the H Hon'ble Apex Court an nd severral other decisionns mentiooned in this orriginal ap pplication.
(C) C) Be pleased to t pass appropriate Orrders im mposing exempplary Cosst on thee Respon ndents forr their aarbitrary actionn as welll as for needlesssly caussing a situation whereein the present applican nt was constraiined to approaach this Hon'ble H Tribunaal.
(D D) Be pleeased to pass any ny furtheer order or directtions as the HHon'ble Tribunal T may deeem fit in n the intterest of justicee."
2. Brief facts f of tthe case as stated d by the applican nt are as under:-
2.1 The appplicant jo oined thee servicee of the responde r ents as In nspectorr in the C Central Excise and Cuustoms (now ( Ceentral GST G and d Central Excise)) in thee pay sccale of Rs.65000-200-10 0500 on n 21.9.20006.
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2..2 It is stated
d that 6th CPC
C was introducced and d ought into force w bro w.e.f. 01 1.01.2006 for rev vision off pay y of perssons apppointed to t the ciivil serviices and d possts in con nnectionn with thee affairs of the Union U by y ming thee Centraal Civil Servicess (Revissed Pay)) fram Rulles, 200
08. Furrther it is i statedd that By B thesee rulees, a com mplete reevised paay structture of Pay Band d d GP speecified aggainst eaach post or the Pay-scale and P e speecified in i the column n had been provided..
Secction II of des revised pay structure o part C provid s e quaa Inco ome Tax officers//Superin ntendent,, praisers etc.(Cuustoms and App a Cenntral Ex xcise) ass und der:
Sl. Post Presentt Revissed Pay Corre Para No. P No. Scale sccale spond Of the Pay Grade ing Report Pay Band Pay Band & Grade 9 Incoome Tax x 7500- 7500- PB-2 4800 7.15.17 Offficers/ 12000 12000 Supperintende nt, App praisers etc. (Customss & Centrall Exccise) 8000- PB-2 5400 13500 (after 4 years) Fuurther, by b referrring the aforessaid, thee appliccant hass plleaded th hat theree was a sspecific mandate m e for gran nt of GP P off Rs.540 00 in PB B-2 after complettion of 4 years in i GP off R Rs.4800 in i PB-2.. Accorddingly, officers o of Custo oms and d C Central Excise E deepartmennt, who complete c es 4 yearrs in GP P R Rs.4800/-- becam me entittled to receivee NFG in GP P R Rs.5400/--. The applican a t herein n as succh comp pleted 4 yeears of service s i GP oof Rs.480 in 00/- longg back since s hee was grantted 1st MACP w M beenefit off GP of Rs.4800 0/- w.e.f..
21.9.2016
6.
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2.3 Thhe appllicant heerein haad also compleeted 4 years y off reegular seervice in n GP off Rs. 480 00/- in P PB-2, heence, hee allso becam me entitlled for ggrant of GP G of Rss.5400/- in PB-2 2 w with effecct from the t date of comp pletion off 4 yearss servicee inn GP of Rs.
R 4800 0/-.
2.4 Thhe appliicant hass been ppresently workingg on thee post off Suuperintendent siince his promottion to thhat grad de w.e.f..
255.6.2018
8. The ap pplicant was graanted thee NFG in i GP off R Rs.5400/-- w.e.f. 25.6.2022 2 2.
How wever, despite the saaid rulee positiion, thee reesponden nts deniied the benefit of GP to the eligiblee O he clarificationss dated Officers by rellying uupon th d 11.02.200 09 and 16.09.20009, wherrein it w was clariffied thatt thhe non-fu unctionaal GP off Rs. 540 00/- in PB- 2 willl not bee grranted to o those Officers O who hav ve got G GP of Rss. 4800/-- onn financial upgraadation under Modified M Assured d Careerr Prrogressio on Scheeme (herreinafterr referredd to as 'MACP P Sccheme').
2.5 Fuurther, the t said issue of deniall of grannt of beenefit off G Rs.5400/- cam NFG in GP me up before the Hon'blee Madrass High Cou urt in caase of M M. Subra amanian n Vs. Union U off ndia in WP In W No. 13225/22010 and d the sam me was decided d byy the jud dgment dated d 066.09.2010 (Anneexure A--3 refer)) g that 4 years period innter-alia holding p iss to be counted d with effecct from the t date on whicch an offficer is placed p in n thhe GP of Rs. 4800/-.
2.6 Thhe aforeesaid ord der of thhe Hon'b ble Maddras Hig gh Courtt was challlenged by b the Respond dents byy way of o Civill Apppeal No. N 8883 3 of 2011 beforee the Hon'ble Supreme S e Coourt. The Hon'ble Apex Court while w dissmissing the said d ::5 :: O OA No.2 267/2023 3 Ciivil App peal videe judgmeent dated d 10.10.22017 (A Annexuree A-4 refer)) upheld d the juddgment rendered r d by the Hon'blee High Cou urt of Madras hoolding th hat the G GP of Rs.5400/-
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haas to be granted on comppletion of o 4 yearrs of con ntinuouss seervice in n the GP P of Rs. 4800/-, irrespecctive of fact f thatt 00/- was granted by way of prom thhe GP off Rs. 480 motion orr ACP/MAC CP.
2.7 Thhereafterr the Responde R ents had preferred a Review w Peetition (Civil) ( N 25112 of 20 No. 018 seeeking rev view off juudgment dated 10.10.20117 in Ciivil Appeal No. 8883 off 20011 befo ore the Hon'ble H Supremee Court, which was w also o diismissed d on merrits as w well as on o delay by the Hon'blee Suupreme Court C ment datted 23.8.2018 (A vide judgm Annexuree A-5 refer)) and thu us, the ddecisionss qua graant of GP of Rs.. 54400/- as postulated in thee Civil Appeal A N No. 8883 of 2011 byy the Ho on'ble Su Court ass well ass by the Hon'blee upreme C M Madras High H Cou urt in Juddgment dated d 066.09.2010 0 passed d inn WP No o. 13225//2010 haas attaineed finalitty.
2.8 It is also stated s th hat a grooup of 25 5 Officeers had filed f OA A No.310/20 017 beffore thiis Tribunal foor issuaance off diirection for gran nt of bennefit of GP Rs.5400/- in i PB-III uppon com mpletion of o 4 yearrs of serv vice in G GP of Rss.4800/-.. However, the saiid OA w was dism missed bby this Tribunal T l viide Ordeer dated 26.07.20 2 017.
2.9 Beeing ag ggrieved the saaid appllicants approach hed thee Hon'ble High H Cou urt of Guujarat by y way off a petitio on being g SC CA 346//2018.
Thee Hon'b ble Higgh Courrt by cconsiderring thee deecision of the Madras M High Co ourt andd the saame wass d by the Hon'blee Suprem coonfirmed me Courtt, vide Ju udgmentt ::6 :: O OA No.2 267/2023 3 daated 10.10.2017 7, the ssaid SC CA 346//2018 haas been n alllowed by b Hon'ble Higgh Courrt vide jjudgmen nt dated d l00.04.2018 (Anneexure A A-6 referr) and hhad direccted thee reesponden nts to im mplemennt the decision d of the Hon'blee A Apex Cou urt and grant g thee benefitt of GP of Rs. 5400/-
5 to o thhe appliccants therrein.
2.10 Inn light off the abo ove menttioned ju udicial ppronounccements,, it was inccumbentt upon tthe resp pondents' departtment to o exxtend the benefi fit of thee same to the ssimilarly y placed d peersons without w nsisting for judiicial ordder in eaach case,, in hoowever, respond dents' ddepartmeent have follow wed thee veerdict on who obtained oorders from nly qua those w fr thee Coourt of Law.
L 2.11 Being agg grieved by grannt of NF FG in G GP of Rs.5400/-
R -
w.e.f. 25.6.2022 and nott from 21.9.2020 2 0, the applicant a t haad madee a request for ggrant off NFG inn GP Rs.5400/-
R -
w.e.f. 21.9 9.2020 vide v his represen ntation ddated 22.12.2022 2 (A Annexuree A-8).
2.12 H However,, the saiid repreesentation of thee appliccant had d beeen rejected by the resspondentts vide iimpugneed orderr daated 14..3.2023 (Annexuure A-1
1). Hennce, the presentt O OA.
3. Learneed counssel for th he applicant has m mainly argued a thhat:
3.1 The acttion of the t resp pondent No.4 ho olding tthe appllicant ass ineligiblle only for f the reason r thhat he has h been granted d benefitt without there beeing any y judiciall order in n his favvor to grrant him m GP 54000/, is illlegal, arbitrary, a , discrim minatoryy which showed d complette non-ap pplicatio on of minnd, hence, the im mpugned d order iss requiredd to be qu uashed and a set aaside.
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3.2 The entiire contrroversy related r too grant of o NFG iin GP Rss. 5400/--
is settleed by th he Hon'b ble Supreme Court by dismisssing thee appeal ppreferred d by thee Responndents' Departm D ment chaallenging g the direcction to grant th he GP off Rs. 54 400/- to persons like thee present aapplican nt.
Fuurther, it i is sub bmitted that in SCA 346/ 2018, SCA A 19273/ 2018 & SCA 102/ 2019 the Hon'ble High Court C off Gujarat has held h thaat persoons iden ntically placed to thee applicannts therein could d not be denied the t beneefit of GP P of Rs..
5400/-. Thus, th he legal issue innvolving the legaality of grant off GP of R Rs. 5400/- has already been settled s aand has attained d finality. Therefo ore, deny ying bennefit only y on thee ground d that hee doesn't hhave ord der of th he Courtt of Law w is highhly condeemnablee and is reequired to t be vieewed verry seriou usly by thhis Tribu unal.
3.3 The connduct th he Resp pondentss' Depaartment deservess to bee strictly deprecaated as the t actioon on part p of the Resspondentt Departm ment to grant beenefit onnly to th he litigaants is in i directt violationn of the decision n of the Hon'ble Suprem me Courtt and thee decisionn of the Ministrry of Fiinance to o extendd the beenefit to o eligible Officerrs and which w iss so imp plementeed. Thu us, orderr extendinng beneffit passeed in ligght of so ome insstructions of thee departm ment can n never be caancelled or witthdrawn merely y because applican nt does not n havee any jud dicial ordder, whicch is nott requiredd at all.
3.4 It is subbmitted th hat the responde r ents havee erroneoously paassed thee impugneed order. The resspondennts failed d to consiider the fact thatt the veryy issue ab bout entitlementt of receiipt of NF FG of Rs.5400/-
R -
to Groupp 'B' em mployeess who haave com mpeted 4 years off servicee in GP R Rs.4800//- irrespective oof the saaid GP oof Rs.48 800 wass granted by way of ACP P/MACP P Schem mes had bbeen con nsidered d by the H Hon'ble Madras High Court whiich was affirmed d by thee ::8 :: O OA No.2 267/2023 3 Hon'blee Apex Court.
C N only that sub
Not bsequenttly, the Hon'blee
High Coourt of Gujarat G v vide juddgment dated d 100.4.2018 in SCA A o grant the benefit off 346/2018 directed the respondents to fixation of GP Rs.5400 B-II conssidering the deccision off 0/- in PB the Honn'ble Mad gh Courtt in the case of M dras Hig M. Subra amanian n (supra) confirm med by the H Hon'ble Apex C Court with w alll consequuential and an ncillary benefitts to the reespectivee petitioneers. Therrefore, it is not open forr the resspondentts to say y nt passed by thee Hon'blle Madraas High Court iss that the judgmen not appllicable in n the casse of the applican nt.
3.5 Further, it is nott correctt on the part of the t respoondents to insistt and dem parate order passsed by th mand sep he Court in favou ur of thee applicannt for thee purposse of graant of NFG N in G GP Rs.5400/- in n PB-II. A As such h the very said stand of o the reesponden nts runss contraryy to the dicta d laiid down by the Hon'ble H Suprem me Courtt as well aas Hon'b ble vario ous Highh Courts.
3.6 In this rregard, learned l counsel would also arggue that the law w laid dow wn by th he Hon'b ble Apexx Court with w reggard to decisions d s being considereed to bee 'in- reem' is quite q clear and do nott support the stan nd of thee responddents, more m partticularly y in lightt of the juudgmentt passed d by the Hon'blee Suprem me Courrt in M. manian (supra) Subram ( and thee same cannott be treeated ass decisionn in perso onam.
Inn supporrt of the aforesaiid subm missions, learned counsell for the aapplicantt has plaaced reliaance upo on the juudgments passed d by the Hon'blee Supreeme Couurt dateed 17.100.2014 in i Civill Appeal No. 9849 of 2014, 2 inn the maatter of State of o Uttarr Pradesh P mar Srivvastava & Ors.,, as also h & Orss vs. Arvvind Kum o the judggment daated 1.9 9.2017 passed in n SLP(C C) No. 23742 2 off 2017 (G Governm ment of NCT N Dellhi & an nother vvs. Somvvir Rana a (TGT EN ENG) & Others).
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4. Per contra, althhough reesponden nts havee filed th heir replyy and deenied thee conteentions made m by the applicant. By B referrring to th he counteer reply,, learned d he respondents mainly counnsel for th m arrgued thhat :
4.1 Althouggh learneed counsel for tthe resp pondents has no disputee about thhe facts of the case aas noted above, however, it iss b the leetter of the Cen submitteed that by ntral Boaard of Excise E & Customss (CBE EC) dateed 21.11.2008 (Annexxure R/1 1 refer)) clarificaation hass been issued reggarding relevant r date of grant off non-functional up-grada u ation to G B' Officers. In Para Group 'B P 3 off the said letter prrovides as a follow ws:
"3. The Departme D ent of Expendit E ture havve noow clarrified th hat the 4 year period is to be b coounted with w efffect from m the date da on w which an a offficer iss placed d in the pay scale of R Rs. 7500- 122000 (p pre-revissed). Thhus, if an off fficer haas coompleted d 4 years on 001.01.200 06 or earlier, heh w will be given g thhe non-f-function nal up-ggradatio on w with effe fect from m 01.001.2006. If thee officeer coompletess 4 yearrs on a date aftter 01.011.2006 he h w will be giiven non n-functiional up p- gradation from su uch datee on wh hich he complettes 4 yeaars in th he paay scale of Rs.75 500- 120000 (pre-- revisedd)."
4.2 It is submitted th hat Centtral Boarrd of Exccise and Custom ms issued d another clarificaation datted 11.022.2009 (Annexu ( ure R/2 refer) r by y which a clarificaation has been isssued reegarding relevantt date off grant off non-fu unctionall up-graddation of o Groupp B Offi ficers. In n Para 4 oof this lettter it haas been inndicated d as folloows.
"Thhus, it is i clear tthat thee officerss who got g he pre- revised th d pay sccale of Rs. 75500-1200 00 (ccorresponnding tot Gradde Pay of Rs.44800/-) by b viirtue of financia f al up- grradationn under ACP wiill noot be entitled to the benefit of furtther non n-
fuunctionaal up-grradation to the pre-revvised pa ay
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sccale of Rs.8000- R -13500 ((corresp ponding to Grad de Paay of Rss.5400/-)) on com mpletion of 4 yeaars in th he prre-reviseed pay sccale of R Rs. 7500--12000."
"
4.3 It is fuurther su ubmitted d that C Central Board of Exccise and d Customss (CBIC C) issued d anotherr clarificcation dated 16.09.2009 9 y whichh a clariffication has been (Annexuure R/3 refer) by n issued d regardinng date of o grant of o non-fu functionaal up-graadation of o Group p 'B' Offiicers. In Paras 3 and 4 off the said d letter reead as fo ollows:
"3. Officerrs who have not n com mpleted 4 yeears of regular service as Cusstoms Apppraiserrs/ Suuperinteendent of Centraal Excisse/Superrintendennt off Customs (P) shall bbe given n this ppay scaale im mmediattely on completi c ion of 4 years oof regula ar seervice in n the reespectivee post provided p d they arre cllear from m vigilan nce anglle.
4. It is further f d that the non clarified n-
fu unctiona al Gradee Pay off Rs. 54400/-in PPB-2 wiill noot be grranted to o such of those Group-B B officers w who havee got thee Grade Pay of Rs.
R 48000/- on up p-
grradation n under the Assured Ca areer Prrogressio on Sccheme." "
4.4 It is alsoo submittted that Shri M.. Subram manian hhad filed d the OA A No. 1677/2009 before Ho on'ble C CAT, Cheennai Beench statting thatt he was eentitled to t grade pay of R Rs. 5400 0 w.e.f. 001.01.20 008 afterr 4 years of servicce in thee grade ppay of Rs.
R 4800/- granteed underr ACP Sccheme, as a per th he orderrs of th he Goverrnment of Indiaa acceptinng the reecommen ndation oof the 6tth Pay C Commisssion and d requesteed to the Tribunaal to direect the reespondennts to grrand him m consequuential pay/finan p ncial beenefits etc. e Thee said OA O wass dismisseed by thee Hon'blle Tribunnal vide order daated 19.0 04.2010..
bramaniian appealed beffore Honn'ble Hig The saidd M. Sub gh Courtt of Madrras again nst the orrder dateed 19.04.2010 off the Trib bunal by y way of W o 2010, which was WP No. 13225 of w allow wed by the t High h Court vvide ord der dateed 06.09.2010 in favoour of Sh. M.. Subramaanian. Further, F t Civill Appeall No. 8883 of 20 the 011 filed d ::11 :: O OA No.2 267/2023 3 by this Departm ment agaainst thee order dated d 199.04.2010 0 of thee High Coourt wass dismisssed by thhe Hon'b ble Suprreme Co ourt videe order daated 10th h Octobeer, 2017. Accord dingly, tthis Department,, in consultation with Departme D ent of expendit e ture deccided to o implemeent the Order dated d 066.09.2010 of thee Hon'b ble High h Court oof Madras in caase of ppetitioneer only (Annex xure R/4 4 refer).
5. In rejo oinder, leearned counsel c for the aapplican nt besidees reiteraating thee conteentions as a raisedd in the OA, O add ditionallyy, it has been suubmitted that thee issuee involveed in thiis case is no mo ore res inntegra in n view oof the fo ollowing g judgm ments:
I. Judgmennt dated 15.6.2021 passeed by thee Hon'blle High Court C off Gujarat in SCA No.1892 2/2021 iin the matter of P Pradeep p Kumarr Pandey P vs. Unio on of Ind dia;
II. Judgmennt dated d 29.3.2 2022 off the Hon'ble H High Court C off Gujarat in SCA A No.107 710/2021 in thee matterr of Pra aveen K. Gokhroo vs. Un nion of India;
In III. Judgmennt dated d 24.3.2 2009 off the Hon'ble H High Court C off A No.1314/20099 in the matter of Vipu Gujarat in SCA ulkumarr Atmaram A m Parek kh and others vs. Sta ate of G Gujarat through h Secretarry and others, o reeported iin Gujarrat Law R Reporterr Vol.50 0 (5) 39144;
III. Common order/j /judgmen nt dated 18.12.20 019 of thhis Bencch of thee Tribunal in OA A No.467 7/19 andd other connecteed casess, in thee matter oof Rajesh Kum mar Shaarma vs. Union n of Ind dia and d others; aand IV. Order/Juudgmentt dated 13.10.202 1 23 of thiis Benchh of the Tribunal T l in OA N No.403/2 23 in thee matter of Shan nker Paarmar vss. Union n of Indiaa and oth hers.
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V. Order/Juudgmentt dated 13.10.202
1 23 of thiis Benchh of the Tribunal
T l
in OA N
No.403/2
23 in thee matter of Shan nker Paarmar vss. Union n of Indiaa and oth hers.
6. The leearned ccounsel for thee responndents in n his suur-rejoin nder hass reiterrated thee submisssions ass noted above, hhoweverr, furtherr submittted thatt ment rendered by the Hon'ble Supreeme Cou judgm urt in tthe casee of M.. Subrramanian (supraa) was im mplemen nted in peersonam m and nott to be quoted ass a preecedent as the saaid judg gment haad been accepted by thee Departtment in n persoonam an nnot be made aapplicab nd the ssame can ble to siimilarly situated d persoons.
7. uttal, beesides reeiterating In rebu g, learneed counssel for thhe appliccant hass placeed on reccord the judgmeent dated d 11.3.20019 passsed by thhe Hon'b ble High h Courrt of Guj ujarat in SCA No.102 N o 2019 in the matter of m off Anil Kanawal K l Gidw wani vs.. Union ndia as also thhe finall order/jjudgmen n of In nt dated d 12.100.2023 passed p bby this Bench B off the Triibunal in n OA N No.403/2022 and d conteended th hat appliccant's caase is also squareely coverred by thhe said decisions d s and tthe preseent OA m may be allowed a o the saame term on ms.
8. We haave heaard learn ned cou unsel forr the parties annd peru used thee pleaddings and d the juddgments on whicch reliancce has beeen placced.
9. Having g regardd to the aforesaaid factuual matrrix of thhe case and thee subm missions of the learned counsell for thee partiess, we finnd that it is an n d been ggranted 1st financcial upg admiitted factt that thhe appliccant had gradation n undeer MACP Schem me in the t pay scale oof Rs.93 300-348000 with h GP off Rs.48800/- in n PB-II w.e.f. 21.9.201 2 6. Undiisputedly y, the rrespondeents had d grantted GP Rs.4800 R 0/- to thee applicaant w.e.f. 21.9.2 2016. Suubsequen ntly, thee appliicant was w as such granted g regularr promo otion too the post p off Supeerintendeent in tthe grad de of Rs.4800/ R /- w.e.f. 25.6.2018. Siince thee appliicant waas alreaddy granteed GP Rs.4800/-
R - w.e.f. 21.9.201 2 16, theree was no o changge in the pay off the app plicant. Suffice to say th hat in faact the applicant a t contiinued to o receive the GP G Rs.4 4800/- w w.e.f. 21 1.9.2016. Howev ver, thee respoondents had nott granted d him NFG N in GP Rs.5 5400/- w w.e.f. 21 1.9.2020 0 ::13 :: O OA No.2 267/2023 3 (i.e., continuo ous 4 yeears of seervice in n GP Rs..4800/- w.e.f.
w 21.9.2016)) instead d he w was grantted NFG 0/- w.e.ff. 25.06.2022 byy countin G in GP Rs.5400 ng his 4 yearss continu uous serrvice from m the daate of grrant of regular r ppromotio on in thee post of Supeerintendent i.e. w.e.f. 25.6.201 2 8. As noted n heerein abo ove, thee appliicant theerefore, had su ubmitted d his reepresentaation daated 22.12.2022 2 (Annnexure A-8 A refeer) to th he respo ondents for graant of N NFG in n GP off Rs.54400/- in PB-2 w w.e.f. 21.9.2020 but the same has h been rejected d by thee 4.3.2023 (Annexure A respoondents vide oorder daated 14 A-1 refeer). Thee respoondents in i their rreply averred thaat the appplicant is i not enntitled to o receivee identtical ben nefits of ggrant off NFG in n GP Rs.5400/- on o complletion off 4 yearss contiinuous service s ffrom thee date hee receivved the same, s since no separatee ued or passed in his favour. Therefo Courrt order had beeen issu fore, thee respoondents cannot c m in lighht of the judgmeent passeed by thee ggrant parrity to him Hon''ble High h Court of Madrras in M. m (supra)) and in view off M Subraamaniam clariffication dated d 7.44.2021 issued by y the resppondents.
10. At thiss stage, iit is apt to t mention that tthe issuee involveed in thiss case ass to whhether th he emplooyees, wh ho had been b grannted finaancial uppgradatio on underr ACP/MACP in GP Rs.4800 0/- and had com mpleted continuuous 4 years y off serviice in th he said ggrade, i.ee. GP Rs.4800/-
R - can be said to be eligible and d entitlled for grant off NFG in i GP Rs.5400/ R /- in PB B-II in tterms off Govt.. resollution daated 29.88.2008 or o not an nd whethher the Departm D ment of Revenue, R , Centrral Boarrd of Exxcise and d Custom m's can rrestrict the t said benefit of grantt NFG in GP R of N uch empployees//officers (i.e. Customs Rs.5400/- to su C s Apprraiser/Su uperintenndent of Central Excise//Superinttendent of Custo oms (P))) is no more rees integrra in view w of the various pronoun ncementts of the Hon'blee Supreme Cou urt, Highh Courts as well as of thiis Tribun nal.
11. It is prrofitable to refer the judg gment paassed by the Honn'ble Hig gh Courtt of Juudicaturee at Maadras datted 6.9.2 2010 (M M. Subra m vs. Union amaniam U off ry of Reevenue andotheers (sup Indiaa repressented bby the Secretar S pra), thee relevvant paraas of whiich are reeproduceed:-
"6.. Itt is not in i disputte that tthe Goveernment of India vid de his reesolutioon dated d 29.08.22008 granted ggrade pa ay ::14 :: O OA No.2 267/2023 3 of Rs. 54000 in pay bond d 2 on non fun nctionall basis tot grooup-B oofficers of o the deepartmeent of po osts, revvenue ettc. whho comp pleted 4 years regular r service in grad de pay ofo Rs, 4800 iin pay bond b 2. According to the t Petittioner, he h has alreaddy reachhed the pay p scalle of Rs. 7500-2550- 1200 00 by way of AC CP scheeme on n 01.01.2004 w which is corrresponding to o the pay scalle of su uperinteendent of o cen ntral excise (Group B possts) and thereefore on o Coompletioon of 4 years y hee is entiitled to the grad de pay of o Rs. 5400 w with efffect fromm 01.01.2008. In I suppoort of hish cla aim, the Petitionner also relied u upon thee clarifiication by b cen ntral board of excisee and custom ms in leetter No. N A22601/98//2008- ADIIA, A d dated 211.11.20008 clariffying that thee 4 years perio od is to o be cou unted from fr thee date ofo whhich an officer is placeed in thee pay sccale of R Rs. 75000- 120000. Hoowever, the claiim of th he Petitiioner waas denieed based on tthe clariificationn issued by the Central C l board of o exccise andd customms, dated 11.02.2009, wherein, it wa as cla arified tthat the officerrs who ggot the pre revvised pa ay sca ale of Rs. 7500--12000 (corresponding to the ggrade pa ay of Rs. 48000) by virtue v o finan of ncial upgradatioon undeer ACCP woulld not be entitleed to thee benefiits of furrther no on fun nctionall upgrad dation tot the p pre reviised payy scale of o Rs. 8000-113500 (ccorrespo onding to grade pay of Rs. 5400 0) on compleetion of 4 yearss in the pre rev vised payy scale ofo Rs. 7500-112000.
7. We W are unable to agree with tthe clariification n given by b thee under secreta ary to go overnmeent of India, sinnce in an a earrlier claarificatiion, datted 21.111.2004 of thee Deputty Seccretary to the Governm G ment of India, itt was clarified as a to how th he 4 yeears perriod is to be counted d for th he pu urpose oof gran nting no on functional upgrad dation to t grooup B oofficers, i.e, wheether thee 4 yearrs periodd is to be b couunted wwith effeect fromm the daate on which w the officerrs 1s placed iin the pa ay scalee of Rs. 77500-120 000 (Pree revised
d) or effect frrom 01.01.2006, i.e. thee date on n whichh the sixtth ::15 :: O OA No.2 267/2023 3 CP PC camee in to force, Itt was cllarified that the 4 years perriod is to be counted c with eeffect frrom thee date on o wh hich an officer is placeed in th he pay scale s of Rs.7500 0- 120000 (pree revised
d).
8. Thus T if an officcer has complete c ed 4 yea ars on 01.01.200 06 or earlieer, he will be b giveen the non-ffunctional upgradatioon with h effectt from 01.01.2 2006 an nd if th he offficer commpletes 4 years on datee after 01 1.01.20006, he wiill be given n non-funcctional upgrada u ation froom such h date on o whhich he ccomplettes 4 yea ars in th he pay scale s of Rs. 75000-
120 000 (prre revissed) sin nce thee Petitio oner ad dmittedly commpleted d 4 yearrs period d in thee pay sccale of R Rs. 75000- 120 000, as oon 01.011.2008, he h is enttitled to grade ppay of Rs.
R 540 00. Infaact, the governm ment off India having accepteed thee recom mmenda ations ofo the sixth pay p commmission, issued a ree solutio on datedd 29.08.22008 gra anting ggrade pa ay of Rs. 5400 to thee group B officeer in pay y bond tto on no on funnctionall basis after a 4 years y of regularr servicee in grad de pay y of Rs.. 4800 in n pay Band B 2. Therefo ore, dennial of th he samme beneefits to the t Petittioner bbased on n the claarificatio on issued by the und der Seccretary tto the Governm G ment wa as conntrary to the above said claarificatiion and d withou ut ammending the ru ules of the reevised pay scaale, succh deccision cannot be b taken n. Thereefore, we are in nclined to t intterfere tthe order of the Tribunal.
9. Accordiingly, thhe writ petition n is allow wed settting asid de thee order of tribbunal, dated d 100.04.2010 0 passedd in 0.AA. Noo. 167 off 2009. The T Respondentts are directed to exten nd thee benefiits of grrade pay of Rss. 5400 to t the PPetitioneer fro om 1.1,22008 as per p the resolutiion dateed 29.08.2010. No N cossts."
(em mphasis supplied) s ) 11.1 The aforesaid a d Orderr/Judgmeent of the Ho on'ble H High Court C off Judiccature att Madrass has been upheeld by th he Hon''ble Sup preme Court C in n ::16 :: O OA No.2 267/2023 3 an aappeal preferred p d by th he respo ondents therein,, vide ju udgmen nt dated d t relevvant paraas of the same read as un 10.100.2017, the nder:-
"We haave hearrd learn ned coun nsel forr the paarties an nd peruseed the reecord.
We do not seee any groundd to intterfere with th he impug gned ordder(s). The T app peal andd also the t speccial leavve petition ns filedd by thhe Uniion of India are acccording gly dismisssed."
11.2.. The Review R P Petition in i the saaid appeeal preferred by the resp pondentss thereein beforre the Hoon'ble Su upreme Court C waas also dismissed d d by the Hon'blee Supreme Co ourt vidde Judg gment dated d 223.8.2018 with the fo ollowing g direcctions:-
57 days in filing "There is a dellay of 35 g Review w Petitio on o.2512 oof 2018 and 264 days iin filing (C) No g Review w Petitio on (C) No o.2519 off 2018.
The chaallenge tot the claarificatioon issueed by thee Ministrry of Fin nance cclarifyin ng that non-fun nctionall Gradee Pay of o Rs.5,400/- wou uld not be b grantted to su uch of thhose offi ficers wh ho had go ot the G Grade pa ay of Rs.4,800/ R /- on up pgradatioon undeer ACP Scheme, S was acccepted byb the H High Co ourt andd the wrrit petition n prefeerred byy the reespondeent was alloweed. Whiile dismisssing thee speciall leave petitions p s filed at a the in nstance of o the prresent rreview petitioner p rs this court didd not find an ny ground d to inteerfere.
We havve gone through t h the revview petiitions an nd do no ot find anny error apparen nt on thee face off record..
These review petitionns are, therefore th e, dismisssed botth on th he ground d of delaay as well as merrits."
(em mphasis supplied) s ) 11.3 Furtheer, by refferring th he dictum m laid ddown by the Honn'ble Hig gh Courtt of M Madras in n respecct to graant of NFG N in GP Rs..5400/- in PB-II to thee officers/emplloyees w who had compleeted fourr years of o continnuous seervice in n GP R Rs.4800//- irrespeective off by way y of grannt of finaancial uppgradatio on underr ACP/MACP Schem mes, subsequentlly, the various Courts, includ ding thee Hon''ble High h Court of Gujarrat and this t Bencch of thee Tribunnal had reeiterated d ::17 :: O OA No.2 267/2023 3 in theeir judgm ments/orrders thaat the offficers, w who had got the G GP of Rs.4800/-
R -
on uppgradatio on underr ACP Scheme S a had ccompleteed continnuous seervice off and 4 yeaars in GP G Rs.48800/- aree entitled d for graant of NFG N in G GP Rs.5400/- in n PB-III and thee clarificcation issued by the Undder Secreetary to the Gov vernmentt to deeny the said s G in GP of Rs.54 NFG 400/- waas declarred conttrary to the t ruless of revvised paay scales and law w laid dow wn by thhe Hon'b ble Apexx Court.
11.4 In thiss regard, it is pro ofitable to refer and rely y upon tthe obseervationss and orders/jjudgmennts rend dered by y the H Hon'ble High Court in i SCA A No.346/2018 8 (Shantti Swaroop S/o Bharat B L Lal vs. Union U off India) decided d on 100.4.2018 8 whereiin the Hon'ble H H High Coourt of Gujarat G bby accep pting thee challlenge off the peetitioner againstt the deenial off grant oof NFG G in GP P Rs.54400/- an nd the oorder passsed by this Triibunal in n OA N No.310/20 017 and d held in para 3.0 3 of the said ju udgment as underr:-
"H Having h heard th he learnned advoocates forfo the rrespectivve parrties andd consid dering thhe impuggned ord der passsed by thhe lea arned Trribunal, it appea ars that at the relevant time SL LP beffore the Hon'blee Suprem me Courrt again nst the deecision of o thee Madraas High Court was pen nding an nd thereefore, thhe pettitionerss and other o s similarlyy situateed perssons, th he em mployees were not n gran nted thee benefifit of fixxation of o graade pay of Rs.5 5400/- inn PB-2. IIt is nott in dispputed tha at thee petition ners aree similarrly situatted to th hose empployees ini whhose favvour theere is a decisioon of th he Madrdras Hig gh Coourt. It iss also no ot in disppute thaat now thhe decisiion of th he Ma adras H High Cou urt on th he pointt has beeen conffirmed by b thee Hon'ble Supreeme Cou urt vide Order dated d 100.10.2017.
Unnder the circumstances, there is no imp pedimennt now ini thee way off the Dep epartmen nt to graant beneefit sougght in thhe preesent petition in n the lighht of thee decisio on of thee Madra as Higgh Courrt confirrmed by the t Hon n'ble Sup preme CCourt.
Under the circumsta c tances, concerned reesponden nt authoritiess are heereby directed d to gran nt the bbenefit of o fix xation oof Grad de Pay of Rs.5400/- in Payy Band--2 connsidering ng the deecision of o the MMadras High H Cou urt in th he ::18 :: O OA No.2 267/2023 3 casse of MM. Subra amanyam m vs. U Union off India and orrs. ren ndered in n Writ Petition P N No.132225/2010 confirmmed by th he Hoon'ble S Supremee Courrt with all consequen ntial an nd ancillary bbenefits which maybe m available to the rrespectivve pettitionerss. The aforesai a id exerccise sha all be ccompleteed witthin a period off six weeeks from m the da ate of recceipt off a preesent Orrder. The rule iss made aabsolutee to the aforesaiid exttent. Dirrect service is peermitted.' 11.5 In ano other idenntical caase, the Hon'blee High Court C of Gujarat in SCA A No.10710/20 021 (Praaveen K. Gokhrroo vs. U Union of India)) vide ju udgmentt datedd 21.3.20 023 by rreferring the judg gment paassed by y the Maadras Hig gh Courtt in thee case of M. Subbramaniam (sup pra) hadd directed d the verry respondent to o grantt benefiit of N o the similarly placed NFG in GP of Rs.54400/- to d petitiioners/offficers.
11.6 Furtheer this Bench of the Trib bunal in the mattter of S Shanker Parmarr Union off India aand otheers i.e. OA vs. U O No.4403/2022 decideed on 22 2.3.2023 3 m/prayer had refferred too the ju whilee allowiing the identicaal claim udgmentt passeed by th h Court of Madrras and Hon'blee High Court he Hon'bble High C off Gujaarat as also the order passsed by the t Princcipal Ben nch at N New Delh hi of thee Tribuunal in OA O No.1994/201 16 dated 22.2.20223 and taking t innto consiideration n the ffact that the Juddgment passed p b the H by Hon'ble High C Court of Madrass which has atttained finnality, th his Tribu unal heldd that:
"7
7.........th he admiissibilityy of the pprayer is unambbiguouslly esttablishedd and the dep partmen ntal pro ocedure have to t connform tto the la aw so laid la dow wn and discusseed in th he forregoing paragra aphs. The T resppondentss have not beeen ablle to briing to ouur noticee any reecord to indicatee that th he law w laid doown by thet Hon'ble Maadras Hig gh Courrt and thhe possition obbtainingg their from fr hass underg gone any ny chang ge sin nce then.. Becausse of thee fact thaat this order o hass attaineed fin nality, thhis has to t be folllowed aand acco ordinglyy, the OA hass to be allowed d. In parrticular when upon up upggradatio on thee pay fixxation unnder FRR-22(1)(aa)(1) is permitted p d, there is ::19 :: O OA No.2 267/2023 3 no reason n to treeat it dififferentlyy on anny pre-ttext; this beccomes a promottion and d service starting g from th he date of o succh fixatiion cann not but be coun nted as a regulaar servicce whhich wouuld qualiify for being b couunted to owards ffour yearrs of stipulated perriod wheereupon n the in ncumben nt woulld beccome eentitled to furrther uppgradatiion as per th he stip pulation n in the notificaation datted 29.88.2008 (A Annexurre A/2 /2).
8. Accordin A ingly, thee OA is allowedd and thee respon ndents arre dirrected too implemment the grant off Grade Pay of R Rs.54000/-
in PB-2
P w.e.f. the date
d the incumbbent com mpleted ffour yearrs of service in the Grade G off PB-2 + Grade Pay of R Rs.48000/- irrespective of whether on prom motion or MA ACP/ACP P, witthin a peeriod off three months m fr from the date of receipt of o a copy c of th this Ordeer."
11.7 It is ap pt to meention th hat Hon''ble Suppreme Co ourt hadd an occcasion to o consiider imp plementaation off judiciaal orderrs wheree a judgment was w nott impleemented d by Govvernmen nt departtment forr similarrly placeed emplo oyees in n the ccase of Somvir S Rana (su R upra) wh hile uphoolding th he order/j /judgmen nt of thee Hon''ble Delh hi High Court (ssupra), th he Hon'bble Apex x Court had observed ass undeer:-
Delay conndoned.
"D Wee find tthat there are several matterss in whhich thee agggrieved employeees have been gooing to th he Tribunnal, then n to the Highh Court and a therreafter thhose mattters are broughtt beffore this court att the insttance off the Uniion of Inddia/NCT T of Delhi.
D Onne the quuestion, in princciple, hass been settled, s iit is onlyy apppropriatte on th he part of o the G Governm ment of IIndia to o issue a Cirrcular soo that itt will save the tiime of thhe courtt andd the Addministrative Deepartmennts aparrt from aavoiding g unnnecessarry and avvoidablee expendditure. The presennt situation is thhat the ssteppingg up is aavailablee onlly to thosse who have h appproachedd the couurt. But ssince thee issue hass otherrwise becomeb final, we ddirect thee Goovernmennt of Ind dia to im mmediattely lookk into thee matterr ::20 :: O OA No.2 267/2023 3 andd issue aappropriiate ordeers for grranting the t pay- scale soo tha at peoplle need not unn necessarrily travel eitherr to thee gh Court or this Court.
Triibunal orr the Hig Wiith the aabove ob bservatioons andd directions, thee speciall lea ave petitiions are dismisseed."
11.8 The Hon'ble H High Court of Gujaratt in the matter of Vipu ulkumarr Atmaaram Pa arekh an nd otherrs vs. Sttate of G Gujarat through h Secrettary and d otherrs (SCA No.1314/2009) decided d on 24.33.2009 (rreportedd in Gujaarat Law w Repoorter Voll.50 (5) 33914) haas ruled that t :
"9........The model employer e r is one who wo ould not deny ju ust cla aim of hiss employyee and employee e es on anyy technicaal ground. Succh modeel employyer woulld not waait for any a direcction to be b givven to acccept jusst claim of the employeee/employyees. It is furrther obsserved thhat oncee it is foound tha at an em mployee is sim milarly siituated thhe beneffits flowiing from m a judgm ment in a casse of otheer simila arly situa ated emplloyee, it should bbe given to oth her similaarly situaated empployee annd emplo oyee shou uld not be b driiven to th he Court for f addreessing juust grievaances....""
12. Since in a caatena off cases the t Honn'ble Hig gh Courrt held that thee officers, who o had com mpleted continuo ous 4 yeears of seervice onn receiveed of thee GP oof Rs.4800/- irreespectivee of said d grade w was gran nted undder ACP P/MACP P Scheme, are entitled to receive beneffit of NF FG in GP P of Rs.5400/- in i PB-II,, and tthe said finding attained d the fin nality, onn dismisssal of S SLP and Review w Petitiion filed d by the respond dents, it is i not oppen to taake contrrary view w by thee respoondents.
As succh in ouur consiidered view v thee respon ndents arre underr lawfull obliggation to o extend the ben nefit of grant g of NFG in GP of R Rs.5400/- to thee simillarly plaaced offiicers eveen witho m/them to appro out insissting him oach thee Courrt/Tribun n separatte order in light of law laaid down nal and tto obtain n by thee Hon''ble Suprreme Coourt and High Co ourt as reeferred herein h abbove. .
13. Thus, the stannd of thee respon ndents noot to graant GP R Rs.5400//- to thee appliicant fro om the ddate of completio c on of 4 years co ontinuouus servicce in thee GP R Rs.4800 1.9.2000, the saaid deniial on tthe partt of thee 0/- i.e. ffrom 21 respoondents in our considereed view is contraary to th he law laaid down n by thee ::21 :: O OA No.2 267/2023 3 Hon''ble Sup preme C Court an nd the Hon'ble H High Courts C aas well as thiss Tribuunal as referredd to herrein abo ove. Theerefore the t subm missionss of thee respoondents are a not aacceptable as thee same arre not ten nable in the eyess of law.. At thhe same time, t wee found substanti s ial force in the claim of tthe appliicant forr grantt of NF GP of Rs.5400/- from tthe date he com FG in G mpleted 4 yearss contiinuous seervice inn GP Rs.4800/- i.e. from 21.09.20 020.
14. In thee facts aand circcumstancces of tthe casee and foor the forgoing f g reasoons, the present p O OA is alllowed with w the ffollowing g directions:-
(i) The resppondentss are direected to grant Grrade Payy of Rs.5 5400/- to o the appplicant from f 21.09.20200, i.e., the datee on which w hee completted four years of o servicce on beeing graanted MACP M off Rs.48000/-.
(ii) The appplicant iss entitled d to all cconsequeential bennefits, in ncluding g the arreaars, if an ny.
(iii) The aboove direcctions shaall be coomplied with w as eearly as possiblee and prefferably within w a period oof three months m from thee date off receipt oof a certiified cop py of thiss Order.
15. Pendin ng MA(ss), if any y, shall sttand dispposed off accordinngly.
16. There shall be no orderr as to co osts.
(Hu ukum Sin ngh Meeena) (Jayesh h V Bhaiiravia) Member (A) Member(J) /ravii/