Central Administrative Tribunal - Ahmedabad
Shanker Parmar vs Central Excise And Customs on 13 October, 2023
::1 :: OA No.403/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 403/2022
Dated this the 13th day of October, 2023
CORAM:
Hon'ble Dr. A. K. Dubey, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
1. Shanker Parmar
S/o Bhikhalal Parmar
Aged about 52 years, Male,
Resident of: B.B.Z-S-55, Gandhidham,
Kutch, Gujarat. 370 201.
... Applicant
(By Advocate Mr. Prithu Parimal)
V/s.
1. Union of India
Notice to be served through
The Secretary, Dept. of Revenue,
Ministry of Finance, North Block,
New Delhi - 110 001.
2. The Chairman
Central Board of Excise & Customs,
North Block, New Delhi 110 001.
3. The Chief Commissioner
CGST and Central Excise, Vadodara Zone,
2nd Floor, Central Excise Building,
Race Course Circle,
Vadodara - 390 007.
4. The Commissioner
Central Goods & Service Tax,
Plot No. 82, Sector-8, Opp. Ramlila Maidan,
Gandhidham (Kutch) 370 201.
... Respondents
(By Advocate Mr. H D Shukla)
::2 :: OA No.403/2022
ORDER
Per: Hon'ble Dr. A. K. Dubey, Member (A)
1. The applicant who was promoted to the rank of Superintendent on ad-hoc basis vide order dated 15.10.2007 is aggrieved by not having granted to him the fresh pay fixation in the level-9 at grade pay of Rs. 5400/- in PB-2 w.e.f. 13.06.2011 and hence has filed this OA.
2. The applicant initially joined the service as an Inspector of Central Excise & Customs, in the Department of Central Excise and Customs, Government of India on 13.06.1995. Consequent upon 6th CPC award, the revised pay scales came into effect from 01.01.2006. Subsequently, vide the Central Civil Service Revised Pay Rules, 2008 (Annexure A/2) which was published on 29.08.2008, the Inspectors who had rendered four years of service in the Pay Band -2 with the grade pay of Rs. 4800/- became entitled to the grade pay of Rs. 5400/- in PB-2. The grade pay of Rs. 5400/- was otherwise admissible to the Superintendent. The applicant was granted financial upgradation to the PB-2 + grade pay of Rs. 4800/- w.e.f. 13.06.2007 vide order dated 09.03.2009 (Annexure A/2) Later, vide order dated 15.10.2007 (Annexure A/3), the applicant was promoted to the rank of the Superintendent in the scale of Rs. 7500-12000. His prayer is that he is entitled to the grade pay of Rs. 5400/- in PB-2 w.e.f. the date of four years of service in the Pay Band -2 at grade pay of Rs. 4800/- which he became entitled to on 13.06.2011 since it was on that date that the MACP upgradation to the grade pay of Rs. 4800/- was granted to him prior to the 6th Pay Commission Recommendation w.e.f. 13.06.2007. Prior to the 6th Pay Commission Report, this upgradation was from the scale of 6500-10,500/- to the scale of 7500-12000/-. The contention of the applicant is that his regular service of four years should be counted from the dated 13.06.2007 from when he started functioning in the upgraded scale ::3 :: OA No.403/2022 irrespective of the fact that it was under ACP Scheme and not as a regular promotion.
3. Reply filed by the respondents in OA No. 402/2022 has been adopted for this also for principles and arguments. The main contention in the reply is that as clarified in the letter dated 07.04.2021 issued by the CBITC (Annexure R/1), the four year period for the purpose of upgradation to grade pay of Rs. 5400/- was to be counted from the date on which the officer was placed in the pay scale of Rs. 7500- 12000/- pre-revised. Thus, if the officer had completed four years on 01.01.2006 or earlier he would be given the non-functional upgradation w.e.f. 01.01.2006 as mandated under the clarification issued by the Department of Expenditure 21.11.2008. By the same order it was further clarified that the officer who completed four years on a date after 01.01.2006, he would be given the non- functional upgradation from the date on which he completed four years of service in the pay scale of Rs. 7500-12000/-. In its para -3 this clarification refers to the Board's letter dated 16.09.2009 to state that non-functional grade pay of Rs. 5400/- in PB-2 will not be granted to such Group-'B' officer who have got the grade pay of Rs. 4800/- on upgradation under ACP Scheme. The letter dated 11.02.2009 (Annexure R/2) mentions in its para-3 that non- functional upgradation to the grade pay of Rs. 5400/- in PB-2 can be given on completion of four years of regular service in the grade pay of Rs. 4800/- in PB-2 (pre-revised pay scale of Rs. 7500-12000/-) after regular promotion and not on account of financial upgradation due to ACP. It is on this ground that the applicant was not entitled to grade pay of Rs. 5400/- from the date on which he completed four years of service in the financially upgraded grade pay of Rs. 4800/-
4. The matter came up for final argument today. Apart from reiterating the respective stands, the learned counsel for the respondents submitted that the CBITC letter dated 07.04.2021 (Annexure R/1) had taken note of the OA No. 167/2009 filed by Mr. Subramaniam before the Chennai Bench of this Tribunal praying for allowing the ::4 :: OA No.403/2022 grade pay of Rs. 5400/- in PB-2 w.e.f. 01.01.2008 after four years of service in the grade pay of Rs. 4800/- granted under ACP Scheme. This prayer was dismissed by the Chennai Bench of this Tribunal vide its order dated 19.04.2010 whereupon, the matter went in appeal before Hon'ble High Court of Madras by way of WP No. 13225/2010 which was allowed by the Hon'ble High Court vide its order dated 26.09.2010 in favour of Mr. Subramaniam. Further, the Civil Appeal No. 8883/2011 filed by the respondent department against the order of Hon'ble Madras High Court was dismissed by the Hon'ble Supreme Court vide order dated 10.10.2017. However, this letter dated 07.04.2021 also mentions that even though in the light of Mr. Subramaniam's case and the order of Hon'ble Apex Court, the matter was examined to extend the benefit to all similarly placed persons, the Department of Expenditure did not agree to the proposal and therefore, this order requires the sub-ordinate offices to forward to it for further directions, such cases where this Tribunal or the Court had ordered to grant the benefit of grade pay of Rs. 5400/- in PB-2 after completing four years of service in the grade pay of Rs. 4800/- by placing reliance on Mr. Subramaniam's case.
5. The learned counsel for the applicant submitted that quite recently, the Principal Bench in its order dated 22.02.2023 in OA No. 1944/2016 had allowed the OA asking for grant of grade pay of Rs. 5400/- in PB-2 after completion of service of four years in the grade of Rs. 4800/- in PB-2. As recently as on 08.09.2023, the Ernakulam Bench of this Tribunal had allowed the similar request in its decision on that day in MA No. 538/2022 in OA No. 862/2018. The counsel for the applicant drew our attention to the law laid down by the Hon'ble Madras High Court which, appears relevant to be quoted here: -
"6. It is not in dispute that the Government of India vide its resolution, dated 29.08.2008 granted grade pay of Rs 5400 in Pay Band 2 on non-functional basis to the Group B Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of ::5 :: OA No.403/2022 Rs. 4800/- in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs 7500-250-12000 by way of ACP Scheme on 01.01.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four years, he is entitled to the grade pay of Rs. 5400/- with effect from 01.01.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No. A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of ars. 7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.02.2009, wherein, it was clarified that the officers who got the pre- revised pay-scale of Rs. 7500-12000 (Corresponding to grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit for further non-functional upgradation to the pre-revised pay-scale of Rs. 8,000-13,500 (Corresponding to grade pay of Rs. 5400) on completion of 4 years in the pre-revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the Under Secretary to Government of India, since in an earlier clarification dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted for the purpose of granting non- functional upgradation to Group - B Officer i.e. Whether the 4-year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs 7,500- 12000 (Pre-revise) or with effect from 01.01.2006, i.e., the date on which the recommendation of the 6th CPC came into force. IT was clarified that the 4-year period is to be counted with effect from the date on Which an officer is placed in the pay scale of Rs.7,500-12000 (pre-revised).
8. Thus, if the officer has completed 4-years on 01.01.2006 or earlier, he will be given the non-functional upgradation with effect from 01.01.2006 and if the officer completes 4- years on a date after such 01.01.2006, he will be given non- functional upgradation from such date on which he completes 4-year in the pay scale of Rs.7,500-12,000 (pre- revised), since the petitioner admittedly completed 4-year period in the pay scale of Rs. 7,500-12000 as on 01.01.2008, he is entitled to grade pay of Rs. 5400/-. In fact, the Government of India, having accepted the recommendations of the 6thPay Commission, issued a resolution dated 29.08.2008 granting grade pay of Rs. 5400/- to the Group B Officers in Pay Band 2 on non-functional basis after four years of regular service in the grade pay of Rs. 4800/- in pay ::6 :: OA No.403/2022 band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal."
The SLP against this order of Hon'ble Madras High Court was dismissed. Its review too was dismissed by the Hon'ble Apex Court and the review was dismissed on merits and therefore the law laid down by Hon'ble Madras High Court has attained finality.
6. On a similar issue Hon'ble Gujarat High Court also had given the benefit vide its order dated 10.04.2018 in SCA No. 346/2018 (Shanti Swaroop Vs UoI), in SCA No. 19273/2018 (Sandeep Youraj Singh Rajan Vs UoI) vide its order dated 26.12.2018 among other and the latest being order of Hon'ble High Court dated 21.03.2023 in SCA No. 10710/2021 (Pravin K Gokhroo Vs UoI).
7. In view of the law laid down by Hon'ble Madras High Court which has since attained finality with the dismissal of review by Hon'ble Apex Court, and which has been followed by Hon'ble High Court of Gujarat and our Principal Bench and co-ordinate benches, the admissibility of the prayer is unambiguously established and departmental procedures have to conform to the law so laid down and discussed in the foregoing paragraphs. The respondents have not been able to bring to our notice any record to indicate that the law laid down by the Hon'ble Madras High Court and the position obtaining there from has undergone any change since then. Because of the fact that this order has attained finality, this has to be followed and accordingly, the OA has to be allowed. In particular when upon upgradation the pay fixation under FR-22(1)(a)(1) is permitted, there is no reason to treat it differently on any pre-text; this becomes a promotion and service starting from the date of such fixation cannot but be counted as a regular service which would qualify for being counted towards four years of stipulated period whereupon the ::7 :: OA No.403/2022 incumbent would become entitled to further upgradation as per the stipulation in the notification dated 29.08.2008 (Annexure A/2).
8. Accordingly, the OA is allowed and the respondents are directed to implement the grant of grade pay of Rs. 5400/- in PB-2 w.e.f. the date the incumbent completed four years of service in the grade of PB-2 + grade pay of Rs. 4800/- irrespective of whether on promotion or on MACP/ACP, within a period of three months from the date of receipt of copy of this order. No order as to cost.
(Umesh Gajankush) (A K Dubey)
Member(J) Member(A)
PA