Central Administrative Tribunal - Madras
P Karnan vs M/O Finance on 5 February, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA No. 310/00692 of 2022
DATED DAY, THE th
DAY OF FEBRUARY, TWO THOUSAND AND TWENTY FIVE
CORAM :
HON'BLE MS. VEENA KOTHAVALE, MEMBER (J)
HON'BLE MR. SISIR KUMAR RATHO, MEMBER(A)
P. Karnan
Son of Parvathinathan
Aged about 59 years
Working as Superintendent of GST & Central Excise
O/o. The Principal Commissioner, of GST & CE
Audit 1 Commissionerate
Anna Nagar,
Chennai 600 101. .....Applicant
(Advocate: M/s. Thirumalai Rajagopal )
Versus
1. Union of India, rep. by the
Secretary
Department of Revenue,
Ministry of Finance,
North Block,
NEW DELHI-110 001;
2. The Chairman
Central Board of Indirect Taxes & Customs,
North Block,
NEW DELHI-110 001;
3. The Principal Chief Commissioner of GST & Central Excise
No.121, Mahatma Gandhi Road,
Nungambakkam,
CHENNAI 600 034;
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4. The Principal Commissioner of GST & Central Excise
Chennai North Commissionerate,
CHENNAI - 600 034.
....Respondents
(Advocate: Mr. Rajnish Pathiyil)
CAV ON :23.01.2025
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ORDER
(Hon'ble Ms. Veena Kothavale, Member(J) The applicant has filed this Original Application praying for the following relief:-
"To declare that the applicant is entitled and qualified for the grant of Grade Pay of Rs.5,400/- in Pay Band-2 with effect from 07.01.2009 upon completion of four years of service in the Grade Pay of Rs.4,800/- as per the dictum of the Hon'ble High Court of Madras dated 06.09.2010 made in W.P. No.13225 of 2010 with all consequential, allied and incidental benefits, pay fixation etc and consequentially direct the Respondents to validate and sustain the Order passed bearing Ref: C.No. II/24/3/2008-Pay dated 15.05.2009 and pass such further or other Orders as are necessary to meet the ends of justice."
2. Briefly stated, the facts as set out by the applicant are that he is serving as a Superintendent of GST and Central Excise in the respondent department. He was appointed as Inspector on 07.01.1993 and got his first ACP upgradation w.e.f. 24.07.2005 in the Grade Pay of Rs.4800 in Pay Band 2 (Rs.7500-12000 pre-revised). Pursuant to the 6th Central Pay Commission Recommendations, the Government of India, vide CCS Revised Pay Rules, 2008, provided for grant of higher Grade Pay of Rs.5,400/- in Pay Band-2 to Superintendent of Central Excise on completion of four years of service in the Grade Pay of Rs.4,800/- in Pay Band-2 (pre-revised scale Rs.7,500-12,000). The 1st Respondent issued a clarification stating that four year 4 of 15 period is to be counted with effect from the date on which the Officer is placed in the pay scale of Rs.7500-12000 (pre-revised)/ PB 2 GP 4800 (revised). It further stated that if an Officer completes four years of service as on 01.01.2006 or earlier, he would then be given the Non-Functional Upgradation with effect from 01.01.2006. On the other hand, if an Officer completes four years on a date after 01.01.2006, he would be given Non-functional Upgradation from such date. However, this benefit was denied on the basis of a subsequent clarification which restricted the benefit to only those who were holding the GP 4800 on regular basis and not on ACP basis.
3. The denial of such upgradation was challenged by an identically situated officer, namely one M. Subramaniam initially before this Hon'ble Bench and on its dismissal, he took it on appeal before the Hon'ble Madras High Court in WP No.13225 of 2010 and in its order dated 06.09.2010, the Hon'ble Madras High Court allowed the Writ Petition and held that the four years of service in the Grade Pay of Rs.4800 can also be computed when such pay scale is granted pursuant to Assured Career Progression Scheme and the officer be placed at Grade Pay of Rs.5400/- in PB-2.
4. The above Order of the Hon'ble Madras High Court was subsequently affirmed by the Hon'ble Supreme Court by way of dismissal of appeal preferred by Department in C.A. No.8883 of 2011 dated 10.10.2017 and the Review Petition No. 5 of 15 2512 of 2018 filed by department was also dismissed on 23.08.2018. Thus, the issue has attained its finality and the subject matter of whether to grant Pay Upgradation to Grade Pay of Rs.5400 upon completion of 4 years of service on the attainment of grade pay Rs.4800 scale through ACP was settled and this issue is no longer res- integra.
5. In the meanwhile, this Hon'ble Tribunal had occasion to consider this plea and in O.A.s filed by individual officers in O.A.No.935 to 939/2019 and O.A.s filed by group of officers in O.A.No.1462/2019, O.A.No.11 & 12/2020 and in O.A. No.1524/2019 filed by the Officers' Association confirmed the dictum laid down on this issue of granting of pay upgradation to the grade pay of 5400 upon completion of 4 years after attainment of grade pay Rs.4800 by ACP. This Hon'ble Tribunal has taken into consideration the judicial pronouncements referred to above and the ratio laid down by the Hon'ble Supreme Court in State of U.P. & others Vs Arvind Kumar Sri Vasthava & others reported in (2015) SCC 347 and has applied the principle that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending the benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India.
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6. The learned counsel for the applicant submits that the 2nd Respondent, Central Board of Indirect Taxes and Customs, by its Order dated 14.07.2020 vide proceedings F.No.A-23011/40/2020-Ad IIA directed the 3rd Respondent to implement the orders passed by this Hon'ble Tribunal in O.A.s afore stated provided the representations are similar to the case covered in the order of Hon'ble Madras High Court dated 06.09.2010 in W.P.No.13225/2010. The aforesaid Order of the Board dated 14.07.2020 came to be implemented by the 3 rd respondent and the order dated 14.08.2020 in C.No.11/39/687/2018 CF-CCA. Since the applicant is not a party to the above Court Orders, his case is not being considered despite the fact that he is identically situated. Hence the applicant has approached this Hon'ble Tribunal to declare that he is entitled for the grant of Grade Pay of Rs.5,400/-in Pay Band-2 with effect from 07.01.2009, upon completion of four years of service in the Grade Pay of Rs.4,800/- (pre revised grade pay Rs.7500-12000) as per the dictum of the Hon'ble High Court of Madras dated 06.09.2010 made in W.P. No.13225 of 2010 with all consequential benefits, pay fixation, etc and consequentially direct the Respondents to validate and sustain the order passed bearing Ref:C.No. II/24/3/2008-Pay dated 15.05.2009.
7. After notice, the respondents entered appearance through their counsel and filed reply stating that the Board issued directions vide letter F.No.A.23011/67/2020-Ad.II.A dated 07.04.2021 with regard to extension of benefit 7 of 15 in respect of non-petitioners/ similarly placed officers with respect to the order of the Hon'ble Madras High Court dated 06.09.2010 in W.P. No. 13225/2010 stating that the department, in consultation with the Department of Expenditure, decided to implement the Order dated 06.09.2010 of the Hon'ble High Court of Madras in case of petitioners only.
8. It is further stated that regarding grant of non-functional upgradation to Group 'B" officers, the Board (CBIC) vide letter F.No.A.26017/98/2008-Ad.II.A dated 11.02.2009 issued the following instructions:-
(i) Superintendents, Appraisers etc (Customs & Central Excise) [who are in the pre- revised scale of Rs. 7500-12000] shall be granted Grade Pay of Rs. 5400/- in PB-2 [corresponding to pre-
revised scale of Rs. 8000-13500], after 4 years of Service. Further, in Clause (x)(e) of the RESOLUTION also, it is indicated that "Group-B Officers of the Department of Posts, Revenue, etc will be granted Grade Pay of Rs. 5400 in PB-2 on non-functional basis after 4 years of regular service in the Grade Pay of Rs. 4800 in PB-2.
(ii) The pre-revised pay-scale of Rs. 7500-12000 could be granted to an Officer either on functional promotion to the post of Superintendent, Appraiser, etc. or by way of financial upgradation under ACP. Thus, officers of the rank of Inspectors could also have this pay-scale due to financial upgradation under ACP. A question was raised as to whether the officers who had 8 of 15 got the pre-revised pay-scale of Rs. 7500-12000 by virtue of financial upgradation under ACP will also be entitled to the benefit of further non-functional upgradation on completion of 4 years in the pre-revised pay scale of Rs.7500-12000, in terms of recommendations of 6th CPC accepted by the Government, as mentioned in Para-1 above.
(iii) The matter has been examined in consultation with the Department of Expenditure, who have clarified the matter as follows:-
"....Non-functional upgradation to the grade pay of Rs. 5400 in the payband PB-2 can be given on completion of 4 years of regular service in the grade pay of Rs. 4800 in PB-2 (pre- revised scale of Rs. 7500-12000) after regular promotion and not on account of financial upgradation due to ACP."
(iv) Thus, it is clear that the officers who got the pre- revised pay-scale of Rs. 7500-12000 (corresponding to the grade pay of Rs. 4800) by virtue of financial upgradation under ACP will not be entitled to the benefit of further non- functional upgradation to the pre-revised pay-scale of Rs. 8000-13500 (corresponding to grade pay of Rs.5400), on completion of 4 years in the pre-revised pay scale of Rs. 7500-12000.
9. The learned counsel for the respondent submitted that the Board has clarified vide letter F.No.A-26017/98/2008-Ad.IIA dated 16th September, 2009 that 9 of 15 non functional Grade Pay of Rs. 5400 in PB-2 will not be granted to such Group B officers who have got the Grade Pay of Rs. 4800 on upgradation under the Assured Career Progression Scheme. Keeping in view the fact that hundreds of CAT/Court cases are pending throughout India seeking benefit of M. Subramaniam case, the matter of extending the benefit of order dated 06.09.2010 of the Hon'ble High Court of Judicature at Madras in W.P. No.13225 of 2010 in the case of M. Subramaniam to all similarly placed officers has been examined in the Board. Department of Expenditure has not agreed to the proposal of the Department to extend the benefit of the said judgment to all similarly placed officers. However, the Court judgments which are passed by placing reliance on the M. Subramaniam case are forwarded to the Board for further directions in so far as implementation of such CAT/Court orders are concerned. Accordingly, prayed for dismissal of the OA.
10. We have considered the arguments placed before us by both the counsels and perused the record.
11. The issue of granting of Grade Pay of Rs.5400 in PB-2 on non-functional basis after 4 years of regular service in the Grade Pay of Rs.4800 in PB-2 has now come to be settled and is no longer res integra.
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12. The issue involved in this OA has already been considered by the Hon'ble Madras High Court in its judgement dated 06.09.2010 passed in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI wherein it has held as under:-
"6. It is not in dispute that the Government of India vide his resolution dated 29.08.2008 granted grade pay of Rs. 5400 in pay bond 2 on non- functional basis to group-B officers of the department of posts, revenue etc. who completed 4 years regular service in grade pay of 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 posts) and therefore on completion of 4 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 the clarification by central board of excise and customs in letter No. A2601/98/2008- ADIIA, dated 21.11.2008 clarifying that the 4 years period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the Petitioner was denied based on the clarification issued by the Central board of excise and 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 the grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefits of further non-functional upgradation to the pre revised pay scale of Rs. 8000-13500 (corresponding to grade pay of Rs. 5400) on 11 of 15 completion of 4 years in the pre revised pay scale of Rs. 7500- 12000.
7. We are unable to agree with the clarification given by the Under Secretary to Government of India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to the Government of India, it was clarified as to how the 4 years period is to be counted for the purpose of granting non-functional upgradation to Group B officers, i.e, whether the 4 years period is to be counted with effect from the date on which the officers is placed in the pay scale of Rs. 7500-12000 (Pre revised) or effect from 01.01.2006, i.e. the date on which the sixth CPC came in to force, It was clarified that the 4 years period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre revised).
8. Thus, if an 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 date after 01.01.2006, he will be given non-functional upgradation from such date on which he completes 4 years in the pay scale of Rs. 7500-12000 (pre revised). Since the Petitioner admittedly completed 4 years period in the pay scale of Rs. 7500-12000, 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 sixth pay commission, issued a resolution dated 29.08.2008 granting grade pay of Rs. 5400 to the group B officer in pay band of Rs.4800/- on non- functional basis after 4 years of regular service in grade pay of 12 of 15 Rs. 4800 in pay Band 2. Therefore, denial of the same benefits 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.
9. Accordingly, the writ petition is allowed setting aside the order of tribunal, dated 10.04.2010 passed in 0.A. No. 167 of 2009, The Respondents are directed to extend the benefits of grade pay of Rs. 5400 to the Petitioner from 1.1,2008 as per the resolution dated 29.08.2010. No costs."
(emphasis supplied)
13. The issue involved in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI and the issue involved in this case are very much similar. The Hon'ble Madras High Court has rejected the arguments advanced by the respondents that the officers who got the pre-revised pay scale of Rs. 7500-12000 (corresponding to the grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefits of further non-functional upgradation to the pre revised pay scale of Rs. 8000-13500 (corresponding to grade pay of Rs.5400) on completion of 4 years in the pre-revised pay scale of Rs. 7500-12000.
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14. It is seen that the respondents had challenged the said decision of the Hon'ble Madras High Court dated 06.09.2010 before the Hon'ble Supreme Court by filing SLP (Civil) No.23513/2015, SLP (Civil) No.3189/2015 & SLP (Civil) No.17576/2017. The Hon'ble Supreme Court was pleased to grant leave to appeal and the said SLP was converted into CA No. 8883/2017. The Hon'ble Supreme Court, after considering the issue in question and hearing the arguments placed before it by the respondents, has dismissed the Civil appeal vide order dated 10.10.2017 holding as under:
"We have heard the learned counsel for the parties and perused the record.
We do not see any ground to interfere with the impugned order(s). The appeal and also the Special Leave Petitions filed by the Union of India are accordingly dismissed."
15. Subsequently. the respondents also filed Review Petition No.2512/2018 in CA No.8883/2017 before the Hon'ble Supreme Court. The same was duly considered and dismissed on merits, holding as under:
"The challenge to the clarification issued by the Ministry of Finance clarifying that non-functional grade pay of Rs. 5400/- would not be granted to such of those officers who had got grade pay of Rs.4800/- on upgradation under ACP scheme was accepted by the High Court and the writ petition preferred by the respondent was allowed. While dismissing the special leave petitions filed at the instance of present 14 of 15 review petition, this court did not find any ground to interfere.
We have gone through the review petition and this Court did not find any ground to interfere.
These review petitions are therefore dismissed both on the grounds of delay as well as merits.".
(emphasis supplied)
16. The Hon'ble Supreme Court has explained the effect of dismissal of the Civil Appeal by a non-speaking order in the case of Kunhayammed and Others v. State of Kerela and Another in Civil Appeal No.12309 of 1996 (2000) 6 SCC 359) as under:
"If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court.".
17. In view of the above, the Doctrine of Merger is applicable to the judgement dated 06.09.2010 passed by the Hon'ble Madras High Court in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI and the said decision has become final as the decision of the Hon'ble Supreme Court itself. Therefore, all 15 of 15 grounds urged by the respondents before us fail. Moreover, in view of the settled legal position as above, Rule of Judicial Discipline is attracted and the said decision is binding on the respondents as well as this Tribunal.
18. The order dated 06.09.2010 has been widely followed by different Benches of this Tribunal as well as other High Courts and affirmed by the Hon'ble Supreme Court. These orders have been implemented by the respondents. The denial of the same benefit to the applicants who are similarly placed is opposed to the underlying principles of article 14 of the Constitution and the ratio of 'similarly placed persons' applied by the Hon'ble Supreme Court in many cases, including State of Karnataka Vs C Lalitha (2006) 2 SCC 747 and Inderpal Yadav & ors Vs UOI & ors. [1985 SCC (2) 648].
19. In the result, O.A.allowed. The applicant is entitled for grant of Grade Pay of ₹5400 in Pay Band-2 with effect from 07/01/2009 upon completion of four years of service in the Grade Pay of ₹4800 in accordance with the decision of the Hon'ble Madras High Court dated 06/09/2010 in W.P.No.13225/2010 with all consequential benefits. The respondents shall implement this order within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member(A) Member(J)
asvs 05.02.2025