Central Administrative Tribunal - Kolkata
Kalyani Bhattacharjee vs O F B on 13 November, 2018
If t J / t 1 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH / OA No.1608 /2013 Dated: 13.10.2018
--- / OA No. 532/2012 / t f / Coram Hon'bleMs.Bidisha Banerjee, Judicial Member Hon'bleMs NanditaChatterjee, Administrative member.
1. KALYANI BHATTACHARJEE Widow of Late Jayananda Bhattacharjee, aged about 55 years, housewife residing at Ichaporelndrapui Lane, P. O. Ichapore, Nawabgunj, Dist. 24 Parganas (North), Pin JEE, son anandaBhattacharjee, aged about 38 years, residing at Ichaporelndrapui Lane, P. 0. Ichapore, Nawabgunj, Dist. 24 Parganas (North), Pin Code : 743144.
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3. SOMA SAMAJPATI, Daughter of Jayananda Bhatrtacharjee, wife v of SukantaSamajpati, aged about 37 years, i housewife and residing at Pipe Road, Barrackpure (M), 700 120, Dist.24 Pagranas(N).
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4. SEWMITABHATTACHARJEE, rV' . grand daughter and daughter of Late daughter f"
SwapnaBhattacharjee, aged about 16 years. i i Jr r 5. RATNANATH Daughter of . Late JayanandaBhatrtacharjee, wife of Sri Sujit Nath, aged about 30 years and residing at Paltapera, Kamalpur, Jatgaddal, Dist.- 24 Parganas (North)
6. ASHOK BHATTACHARJEE, I Son of Late Bankim Behari Bhattacharjee aged abou^S s^1,^working as Cook at Rifle k v y5 i Fai^o faring Personal No.208085 , O) aAfcf 2] t "Tialyani Road, Rathtala, Ambi s. /•* mapukurdhar, P. 0.
Shyamnagar, District- 24 Parganas(North).
APPLICANTS
VERSUS- ,
1. UNION OF INDIA,
Through the Secretary, Ministry of
Defence.Dept.Of Defence Production,
South Block, New Delhi- 110001.
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2. CHAIRMAN & DIRECTOR GENERAL, s-Vs' " Ordnance Factory Board, 10A, / SahidKshudiram Bose Road, Kolkata-7 00001.
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3. General Manager, 7 Rifle Factory, Ichapore, p.o.
Ichapore, Nawabgunj, Pin 743144, 24 Parganas(North) RESPONDENTS For the Applicants: Mr A Chakraborty, Counsel;
For the Respondents: Mr S P^jI Ms.BidishaBanerie, Judicial M
1. As a sequal to an earlier OA, numbered 857 of 2011, this original application was filed by Ashok Bhattacherjee in order to seek the following reliefs :
a) An order be passed quashing and/or setting aside the impugned order dated 11.05.2013 so far as the contentions made at paragraph Nos.3, 4 and 5 are concerned as issued by the respondents through their letter No.93/2/NL/Canteen (JB)/Estt Dated 11.05.2013, the said order being not maintainable in the eye of law.
bj An order be also passed directing the respondents and especially the respondent No.3 to grant the applicant pay scale of Rs.4000-6000/- as the ACP-I and Rs.5000-8000/- as the ACP-II from his usual dates of entitlement of the ACP-1 and ACP-II respectively and also to pay him the difference of pay and arrears of pay and consequential benefits derived out of the same (as the applicant actually worked during the relevant period) minus the amount already drawn by him in respect of such inferior scales of pay which he is being allowed till date, within such time period as Your Lordships may kindly direct.
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c) A further direction upon the said respondents be passed to release all > such dues out of the said difference of pay etc. to the applicant with at least 8% interest with effect from his usual date of entitlement till the applicant is actually paid.
Jrv: d) Such other orders and/or orders be passed as this Hon'ble Tribunal I • deems fit and proper under the circumstances of the cose.
Upon his death his legal heirs have been substituted and allowed to / step into his shoes to pursue the matter.
2. The order impugned in the present OA reads as under:
No.93/2/NL/Canteen(JB)/ESTT.
Establishment Section, Rifle Factory, Ishapore, Doted 11-05-2013 To Shri Jayananda Bhattacharjee, Cook, Per No. 270001.
Canteen, RFI.
Thr'o : HOS/Canteen Sub. -.Prayer for rectification of scale of Pay. Ref. Your application date 08-01-2013.
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Your represen to tion^aj -6$-2013 has been examined and the following facts are stated fpr 'di&n :
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2 You were appoln$ed\s O&E7-06-1983 in the pay scale of
Rs.200-240 and was sobs&pk 'tedJin the pay scale of Rs. 750-940
and Rs. 2550-3200 folio wihg^^^recd pendotions of the 4th and 5th Pay
Commission recommendationS^Fesoec ively.
2.1 This scale was subsequently revised to Rs3050-4590 and you were placed in this scale w.e.f. 01-01-1996.
2. Following the instructions of Govt, of India, you were granted ACR-1 w.e.f. 09-08-1999 in the scale of pay Rs. 3200-4900 no hierarchy andACP-ll in the scale of pay of Rs.4000-6000 w.e.f. 27-06-2007.
3. Following the implementation of 6th CPC, you were placed in the PBI with Grade Pay of Rs.2400.00.
4. In the light of the foregoing your request for grant of ACP-I in the pay scale of Rs.4000-6000 and ACP-II in the pay scale of Rs.5000-8000 cannot be acceded to.
5. You will be eligible for MACP-Uf on completing the required eligibility conditions.
6. In accordance of your request, copies of letter No.PA/2631/A/CCC dated 14-06-2001 and 1046/ACP/A/W ■ dated 04-04-2003 are being enclosed.
7. This disposes off your afore cited information.
Enel.:As above.
WM/IT for rZFMPO&l MAMA/2FQ / "T. fi • ■
- r* jasm i f 5 J,/ The applicant has specifically pleaded that he has no grievance in n //regards to the date of entitlement of ACP. His only grievance isthat the scale Jf
-?7 rv. >i of his ACP has been wrongly fixed by the respondents as Rs.3200-4900 on First ACP and Rs.4000-6000 or Second ACP, in place of the correct scale of pay, as r ' I (/ per SRO and 5th Pay Commission Recommendations of Rs.4000-6000 and Rs.
5000-8000 respectively and that the post of Cook, as per Recruitment rules i.e. hv r ri SRO, although duly covered by the said rules, does not contain any career advancement throughout the service life. In other words, the post of Cook is a dead-end post without any scope of further promotion.
4. Per contra, dispelling the claim the respondents have categorically averred by way of reply that the applicant is not entitled to any relief.
They have disclosed that the clarification issued by OFB under letter dated 10.11.2006 showing categ$Rj's®jf£)po$t, classification of post, pay scale V-6 V. and in which pay scale ACP-I S£A d given is as under:
i c . QJ 3 Oi O SI. Category Classifichfitf}^ fad/fog to SRO 107 doted 21.8.2006 vie ACP-I ACP-II 01 Supr. Gr.lll Group'C' -----'3050-4590 4000-6000 5000-8000 (S-S) (S-7) ((S-9) 02 Cook Group fC 3050-4590 3200-4900 4000-6000 (S-5) (S-6) ((S-7) 03 Server/ Group V' 2610-3540 3050-4590 3200-4900 Bearer (S-2) ■ (S-5) ((S-6) 04 Salesman/ Group V' 2610-3540 3050-4590 3200-4900 Vendor (S-2) (S-5) ((S-6) 05 Kitchen Group 'D' 2610-3540 3050-4590 3200-4900 Asstt/ (S-2) (S-5) ((S-6) Tea &Cofee Maker 06 Server/ Group 'D' 2550-3200 2610-3540 3050-4590 Bearer (S-l) (S-2) ((S-5) 07 Salesman/ Group V' 2550-3200 2610-3540 3050-4590 Vendor (S-l) (S-2) ((S-5) 08 Kitchen Group V' 2550-3200 2610-3540 3050-4590 Asstt/ (S-l) (S-2) ((S-5) Tea &Cofee Maker / ' r r 6 j They have contended that from the SRO 107, dated 21.08.2006, it would ! i ' be evident that the post of Cook is a dead end post. Hence ACP for this post had / to be regulated in terms of para 7 of Annexure \ of DOP&T OM dated 09.08.1999.
r The applicant has been rightly accorded benefits of ACP-1 and ACP- in terms of r the O M. They have further averred that in terms of Para 7 of the DOP&T OM No.35034/l/97-Estt(D) dated 09.08.1999 on the ACP scheme, " Financial upgradation under the scheme shall be given to the next higher grade in accordance with the existing hierarachy in a cadre/category of posts without creating new post for the purpose."
" However, in case of isol^&d' ^}b§t/iJ^ absence of defined hierarchical * grades, financial upgradation ph nc! the ministries/Departments . 0) Z3 Oj • \o concerned in the immediately we cgle as indicated in annexure II".
% They have contended that Shri Ashok Bhattacherjee, Cook was granted ACP-I with effect from 09.08.1999 in the scale of pay of Rs.4000-6000 vide notification dated 28.11.2001. However, pursuant to the directives as contained in OFB letter NO.1046/ACP/A/W dated 04.04.2003 the said order was amended and notified under RFI Factory Order dated 20.08.2003, whereby the ACP-1 benefit was revised from the pay scale of Rs.3050-4590 to 3200-4900.
On completion of 24 years, he was granted ACP-II with effect from 22.10.2004 to the scale of Rs.4000-6000, vide Rifle Factory Ishapore Factory Order dated 07.04.2006.
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i \ i •*# A similarly circumstanced employee, ShriMadan Mohan Bhattacherjee lyV' f t-
,7 was also granted ACP-I & II to the pay scale of Rs.4000 - 6000 & 5000-8000 r *.-r respectively. Subsequently, the said Factory Order was also amended and grant f of ACP to the pay scale of Rs.3200-4900 & 4000-6000 respectively was revised ;
and notified vide RFl Order No.479 dated 24.02.2014. * ■
5. Learned Counsels were heard and materials on record were perused.
6. In view of the vivid clarifications and enumerations as supra the basis of the claim of the applicant could neither be comprehended nor countenanced.
7. Nevertheless, the applicants have rejoined stating that incase of isolated post in absence of defined hierarchical grades, financial upgradationshall be given by the Ministnes/Departmerjt^'fii^dftje in. the immediately next higher pay scale and that the present^isM^^^ay ^bmcerning the alleged statement 3 ) £U | lo of the respondents to the effect of Cook is an isolated one is no % A S*-! - A • longer res integra and that it has itedly held by the different Hon'ble Benches of the Central Administrative Tribunal, Principal Bench and also the Hon'ble High Court of Punjab and Haryana at Chandigarh that under such circumstances, justice would be met if the first ACP, second ACP or even MACP is given on the basis of a "higher" grade in any other non-related post.
They have contended that in the instant case, the hierarchial higher grade, irrespective of the position whether it is the promotional avenue from the :• post of Cook; is Supervisor Grade II carrying a scale of pay of Rs.4000-6000/-, whereas the Scale of Cook is Rs.3050-4590/- per month as per 5th Pay Commission.
/ ✓ w f* 8 / 1 ! t 8. The issue , therefore, that fell for determination was whether t - / rrr.- ACP/MACP would be accorded in the hierarchy of next higher Grade Pay or i i should it be accorded to the Grade Pay of promotional hierarchy i.e / available only on promotion.
"Whether the hierarchy contemplated by the MACP Scheme is in the i immediately next higher Grade Pay or is it in the Grade Pay of the next above t < Pay Band."
9, We noticed that the issue has been set at rest vide Department of Personnel & Training vide Nd.22034/04/2013-Estt.(D) dated 01.03.2016 on the subject with reference to the court cases in various Ministries/Departments/Organisations for grant of MACP benefits in the <o' \<vstra<. s promotional hierarchy, which teferas cfer £ 2C l I c t I "In continuation of D(pg & ^ O.I^Jofeven No. dated 20.01.2016 , on the above mentioned subj Resigned was directed to forward a copy of the decision of th Not^ptf^GfaiT., Ahmedabad Bench in O.A. No. 120/000018/2015filed by M 'tmUshSfBtwgwanjiRathod vs. Union of India, &Ors., whereby the demand of the applicant for MACP in the promotional hierarchy has been dismissed."
10 Therefore, it would be worthwhile to extract the judgment referred supra, to the extent relevant and germane to the Ms. The order runs thus:
"The grievance of the applicant in this O.A. relates to non granting of Grade Pay of Rs.5400/- in Pay Band of Rs.15600-39100 (PB-3) on being extended the benefit of 2nd financial upgradation under the Modified Assured Career Progression(MACP) Scheme. According to the applicant, on granting 2nd financial upgradation under the MACP Scheme his pay shall be fixed in the next Grade Pay of Rs.5400/- in Pay Band of Rs.15600-39100 (PB-3).
Xxxxxxxxxxxxxxxxxxxxxx The applicant submits that the issue as to whether the Grade Pay should be given on next promotional post in the hierarachy/cadre while granting financial upgradation under the MACP Scheme, considered by the Chandigarh Bench and the Principal Bench of this Tribunal, it was held that financial upgradation should be given in the next promotional post. By placing reliance upon the orders of the Chandigarh Bench of the Tribunal dated 31.05.2011 in O.A.. No.l038/CH/2010/( Raj Pal vs. Union of India & Others) / u ■ I ( 9 } / 1 if / and the Principal Bench of the Tribunal dated 26.11.2012 in O.A. No.904/2012 F"/ > «• (Sanjay Kumar and others vs The Secretary Ministry of Defence, New Delhi and Others), the applicant submitted a representation dated 17.04.2014 = / vide Annexure A-6 to the Director General, National Water Development Agency, New Delhi, requesting to extend similar treatment and to revise his \ Grade Pay consequent upon granting the benefit of 2nd financial upgradation under the MACP Scheme, which came to be rejected by order dated 19th August,2014 vide Annexure A-l. Being aggrieved by the action on the part of the respondents in not giving him the Grade Pay of Rs.S400/- on extending the benefit of 2nd financial upgradation, the applicant presented the instant O.A. seeking a declaration that the applicant is entitled to get the Grade Pay of Rs.S400/- in Pay Band Rs.lS600-39100 (PB-3) on being granted the 2nd financial upgradation under the MACP Scheme vide order dated 10.06.2013 vide Annexure A-4and for a direction to the respondents to grant the Grade Pay of Rs.5400/-in Pay Band Rs.15600-39100 (PB-3) on being granted the 2nd financial upgradation under the MACP Scheme. Consequently he has ' further prayed for a direction to fix his pay as requested above and grant the arrears of difference of pay.
xxxxxxxxxxxxxxxxxxxxxxxxx .9. The grievance made by the applicant in this OA is that he is entitled to the Grade Pay of Rs.5400/-and higti1tyfl*t!ed/£he basis of his claim that his next mm promotional hierarchy of posiTis/fiSQdtetaxt Executive Engineer in the Pay Band of Rs.15600-39100 witlS5r^^B^[R%3400/-.10.
submits that the respondents sfi upgrading the Grade Pay of n Shri B. Mishra, leat^ecf^^^^for respondents on the contrary jgranted the MACP benefit by \00/-.
11. In view of the rival sutmtr. 'the learned Counsel for the parties, the question that arises for our consideration is as under:
"Whether the hierarchy contemplated by the MACP Scheme is in the immediately next higher Grade Pay or is it in the Grade Pay of the next above Pay Band."
It was held : "A combined reading of the above stipulations in the MACP Scheme would lead to a irresistible conclusion that it is the next higher Grade Pay which has to be given and not the Grade Pay in the hierarachical post and thus we agree with the respondents that the applicant has to be given the Grade Pay in a sum of Rs.4800/- and not Rs.5400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post.
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20. In view of the foregoing, we do not find fault with the action on the :■ 7 / y part of the respondents in granting the Grade Pay ofRs.4800/- while extending the benefit of 2nd financial upgradation under the MACP Scheme / / and consequently, the question of any direction as sought by the applicant does not arise. The O.A. deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs/' /
11. In the aforesaid backdrop the claim fails and therefore the O Ayis dismissed. No cost.
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Nandita Chatterjee Bidisha Banerjee
Member(A) Member(J)
AMIT