Central Administrative Tribunal - Mumbai
Pramod Ishwarrao Pekde vs Commerce on 28 November, 2024
1 OA No.2227/2019
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.2227/2019
Order reserved on: 12.11.2024
Order pronounced on: 28.11.2024
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Santosh Mehra, Member (A)
Pramod Ishwarrao Pekde s/o Ishwar Narayanrao
Pekde, age about 44 years, occupation Shelf Assistant
o/o The Patent Information System, Nagpur, r/o Doke
Bua Math Road, Near Masurkars House, Itwari,
Nagpur- 440002.
-Applicant
(By Advocate Mr. R. K. Shrivastava)
Versus
1. The Union of India, through The Secretary,
Ministry of Commerce and Industry, Department of
Industrial Policy and Promotion, Udyog Bhavan, New-
Delhi- 110001.
2. The Controller General of Patent, Designs and
Trade Marks, Baudhik Sampada Bhavan, 1st Floor,
Near Antop Hill, Mumbai- 400037.
3. The Head of Office, Patent Information system
Rajiv Gandhi, National Institute of Intellectual
Property Management, Plot No. 3, Hislop College Road,
Civil Lines, Nagpur- 440001.
- Respondents
(By Advocate Mr. S.R. Charpe)
2 OA No.2227/2019
ORDER
Per: Mr. Santosh Mehra, Member (A)
The applicant challenged the order No. CG/F/14/1(A)/1/2015/108 dated 18-09-2015 passed by the respondent No.2 by which they rejected the representation of the applicant for grant of financial upgradation under MACP Scheme as per promotional hierarchy in PB-2 with Grade Pay of Rs. 4200/-. As per learned counsel for the applicant, the action of the respondents is violative of direction of this Tribunal passed in OA No.129/2015 dated 28-07-2015 wherein respondents were directed to consider and pass a reasoned and speaking order. As per learned counsel for the applicant, the case of applicant was covered by Orders of this Tribunal as well as various judicial verdicts of Hon'ble High Court and up-held by Hon'ble Supreme Court.
2. Facts in nutshell are that the applicant was appointed as Shelf Assistant w.e.f. 07-01-1999. His 3 OA No.2227/2019 Pay as on 01-01-2006 was fixed in the Pay Band of Rs.5000-20200 with Grade Pay of Rs.2400/-.
3. As per the Recruitment Rules, the post of Shelf Assistant was a direct recruitment post. The educational qualification for the post is Degree in Science from a recognised University with 3 years experience in handling Books/Maintenance of Stores in a Government/ Departmental Library/Research organisation. The post of Store Assistant was a promotional post for Shelf Assistant. As per Recruitment Rules, Shelf Assistant with 5 years of regular service in the grade are eligible for promotion. Thus, the promotion of Shelf Assistant with 5 years service had a first claim of promotion to the post.
4. As per learned counsel for the applicant, the Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training) under O.M. No. 35034/3/2008-Estt(D) dated 19-05-2009 (Annexure A-3) has issued orders for implementation of the MACP Scheme. This Scheme 4 OA No.2227/2019 was modified version of earlier ACP Scheme. As per the new scheme, all the Central Government employees would be granted three financial upgradations in their service after completion of 10, 20 and 30 years of regular service from the entry Grade. As per the condition No. 6.2 of Annexure-1 of the O.M. the financial upgradation under MACP was to be granted the Grade Pay of next hierarchical post.
5. The applicant was granted benefit of 1st financial upgradation under MACP Scheme under order No. A 20012/3/PIS/99 dated 20-10-2010 w.e.f. 07-01-2009 in the Pay Band of Rs 5200-20200 with Grade Pay of Rs. 2800/-. Learned counsel for applicant submitted that one Smt. Kauru Padma, Store Assistant has filed O.A. No. 2158/2007 before this Tribunal for claiming parity of Pay Scale with the Assistant in non- secretariat offices who were granted the Pay Scale of Rs. 5000-8000 (V C.P.C. Scale). The Tribunal by order dated 09-02-2012 allowed the O.A. and directed the respondents to consider her case and pass a reasoned order. The respondents under their order No. 5 OA No.2227/2019 CG/NGE/PIS/CAT/2013/218 dated 30-04-2013 granted the pay scale to Smt. Padma.
6. Learned counsel for applicant further submitted that after 6th Central Pay Commission recommendation the pay scale of the Stores Assistant was fixed in the Pay Band of Rs. 9300-34800 plus Grade Pay of Rs.4200/- [Annexure A-5(a)]. In view of condition No.6.2 of MACP orders (Annexure A-3) the applicant should have been granted Grade Pay of Rs. 4200/- on grant of benefit of 1st MACP by order dated 08-10-2010. But his grade pay remained the same and no increase in Grade Pay was granted as per the orders of Scheme. Hence, the applicant submitted repeated representations to the respondents.
7. Being aggrieved by the inaction on the part of respondents, the applicant filed O.A. No. 211/00129/2015 before the Nagpur Bench of the Tribunal. The Tribunal by order dated 28-07-2015 (Annexure A-9) disposed of the O.A. at admission stage by directing the 6 OA No.2227/2019 respondents to decide the representation of the applicant. However, the respondents rejected the applicant's representation by order dated 18-09-2015 stating that he had been granted the Grade Pay of hierarchical pay scale.
8. The applicant challenged the above order by filing OA No.2230/2015 before the Nagpur Bench of the Tribunal. However, during the hearing the counsel for the applicant requested the Tribunal to allow him to withdraw the O.A. with liberty to file fresh case, which was accepted.
9. Learned counsel for applicant submitted that as per the Recruitment Rules, the Store Assistant is a promotional post for Shelf Assistant with 5 years regular service. The applicant had already completed 10 years of service as Shelf Assistant and was eligible for promotion to the post of Store Assistant. Hence, on his getting the benefit of financial upgradation under MACP, he should have been given the grade pay of the promotional post of Store Assistant i.e. Rs.4200/-and 7 OA No.2227/2019 not the Grade Pay of Rs. 2800/- which is the next Grade Pay of the pay scale.
10. He further stated that as per condition No.6.2 of Annexure I of O.M. dated 19-05-2009 (Annexure A-3) the MACP envisages financial upgradation under MACP for grant of Grade Pay of next hierarchal post. In view of this condition, the applicant should have been granted the grade pay of the promotional post i.e. Store Assistant of Rs. 4200/-.
11. Learned counsel for the applicant placed reliance on the order of the Chandigarh Bench of the Tribunal in the case of Rajpal & another Vs. Union of India where the Tribunal directed the respondents to grant the Grade Pay of next hierarchal promotional post of the applicant on grant of benefit of financial upgradation under MACP and not the Grade Pay of next in the schedule. The Hon'ble Punjab & Haryana High Court dismissed the Writ Petition of the Respondents by judgement dated 19-10-2011 and even the S.L.P. of the respondents was dismissed by Hon'ble Supreme Court by judgment dated 15-04- 8 OA No.2227/2019 2013. Likewise, the learned counsel for applicant states that the Principal Bench of the Tribunal relying on the orders of the Chandigarh Bench in the case of Rajpal (supra) has allowed the O.A. No.904/2012 dated 26-11-2012 titled Sanjay Kumar Vs. Ministry of Defence wherein respondents were directed to grant the Grade Pay of promotional post of the applicant.
12. The learned counsel for the applicant also invited our attention to the Rajasthan High Court judgment dated 10-05-2018 in the case of Union of India Vs. Dev Karan Mohala & others connected with 5 other Writ Petitions, S.L.R. 2019 (2) 614 has laid down a very important law point and held that "The very object of Modified Assured Progression Scheme is to avoid stagnation. If in every 10 years any employee is not granted any promotion he will be given selection grade. In this way employee will be entitled for three selection grades." According to the learned counsel for the applicant, the case of the applicant is squarely covered by this Judgment.
9 OA No.2227/2019
13. The learned counsel for the applicant further placed reliance on the Principal Bench of the Tribunal in O.A. No. 3409/2011, order dated 01-02-2012 which has laid down an important Principle that "direction given by the Tribunal and upheld by the High Court and Supreme Court should be made applicable to all the similarly placed persons. He stated that the action of the Respondents is violative of Article 14 and 16 of the Constitution of India. It amounts to hostile discrimination. The existing Store Assistant is drawing the Grade Pay of Rs. 4200/- and it is being denied to the applicant.
14. Learned counsel for respondents filed their reply and submitted that the instant OA preferred by the applicant was time barred. He denied that the pay fixation was a continuous cause of action as the applicant was getting the benefit of first financial up- gradation with effect from 07.01.2009. Learned counsel for respondents stated that the applicant was appointed as Shelf Assistant w.e.f. 07.01.1999, and 10 OA No.2227/2019 his pay as on 01.01.2006 was fixed as 5,200/- - 20,200/- and not on the pay scale of Rs. 5,000/- - 20,200/-. He further stated that when the applicant completed 5 years of service, there was no promotional post of Store Assistant vacant. Promotion cannot be claimed as a matter of right on completion of a specific period of service. He also submitted that pay structure was revised after 6th CPC vide order dated 29.08.2008 which was implemented with effect from 01.01.2006. Accordingly, Rs.4,000-6,000 pay scale was upgraded to Rs.5,200-20,200 with Grade Pay of Rs. 2,400/-, which was duly given to the applicant. As first MACP w.e.f. 07.01.2009, his Grade Pay was further revised to Rs.2,800/- in accordance with the First Schedule, Part-A, Section I to the CCS (Revised Pay), Rules, 2008 and arrears was also given to the applicant.
15. Learned counsel for respondents pointed out that the case of Smt. Kaveru Padma was different from that of the applicant as she was already working on the promoted post of Store Assistant since 1997 whereas 11 OA No.2227/2019 the applicant was working on the post of Shelf Assistant and the financial upgradation granted to the applicant was as per CCS (Revised Pay) Rules, 2008. Hence, the applicant cannot claim to be treated on the same terms as Smt. Kaveru Padma. Learned counsel further stated that the applicant has not been recommended for first financial upgradation in PB-2 with GP of Rs. 4200/- under the MACPS since it was not the immediate next higher grade pay of the applicant in the hierarchy of the recommended revised pay band and grade pay as given in Section I Part A of the first schedule of the CCS (Revised Pay) Rules, 2008. The immediate next higher grade to PB-I with GP Rs. 2400/- in which the applicant was working is PB-1 with GP 2800/-. Hence, PB-2 with GP of Rs. 4200/- was not awarded to the applicant. Learned counsel invited our attention to the OM No. 35034/3/2008-Estt. (D) dated 19.05.2009 and O.M. No. 35034/3/2008-Estt. (D) dated 09.09.2010 clearly state as follow:
"The upgradations under MACPS is to be granted in the immediate next higher grade 12 OA No.2227/2019 pay in the hierarchy of recommended revised pay band and grade pay as prescribed in CCS (Revised Pay) Rules, 2008."
16. The First Schedule attached to the CCS (Revised Pay) Rules, 2008, Part -A, Section 1, Entry on Sl. No. 8 and 9, clearly shows that the next higher grade to PB-1 with GP Rs. 2400/- (mentioned on Sl. No. 8 of the Schedule) is PB-1 with GP Rs. 2800/- (mentioned on Sl. No. 9 of the Schedule). Hence, the applicant has been correctly granted PB-1 with GP Rs. 2800/-. Learned counsel reiterated that since no promotion was given to applicant in absence of vacancy of vacant promotional post when he completed 5 years of service, the applicant was not given Pay Band-2 i.e. pay scale of Rs.9,300-34,800 + financial up gradation of Pay Band-2 i.e. 4,200/-. The applicant would have been eligible for Grade Pay of Rs.4,200/- only on promotion.
17. The learned counsel for the respondents states that with respect to the judgments passed by the Court, the facts of those cases are different from the applicant's case and, therefore, they cannot be applied 13 OA No.2227/2019 to the case of the applicant. For example, the orders of Chandigarh Bench of the Tribunal as mentioned in the paragraph under reply is different from the case of the applicant as the applicant in that case had held the post of a photocopier, which was an isolated post meaning thereby that there was no promotional post in that case, however, the post held by applicant in the present application has a promotional post i.e. Store Clerk.
18. The crux of the matter is whether the applicant is entitled to enhancement of his requested Grade pay to Rs 4200/- , in place of Rs 2800/- granted to him by the respondent. In this regard, We refer to the OM No. 35034/3/2008 dated 19th May, 2009, which states as follows:-
"2. The MACPS envisages merely 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 grade pay at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such 14 OA No.2227/2019 cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organisation will be given only at the time of regular promotion.
xxx xxx xxx
4. ...........In case, a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-l and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment win be granted at this stage.
xxx xxx xxx 6.2 In cases where financial upgradation had been granted to
Government servants in the next higher scale in the hierarchy of their cadre as per the provisions of the ACP Scheme of August, 1999, but whereas as a result of the implementation of Sixth CPC's recommendations, the next higher post in the hierarchy of the cadre has been upgraded by granting a higher grade pay, the pay of such employees in the revised pay structure will be fixed with reference to the higher grade pay granted to the post. To illustrate, in the case of Jr. Engineer in CPWD, who was granted 1st ACP in his hierarchy to the grade of Asstt. Engineer in the pre-revised scale of Rs.6500-10500 corresponding to the revised grade pay of Rs.4200 in the pay band PB-2, he will now be granted grade pay of Rs.4600 in the pay band PB-2 consequent upon upgradation of the post of Asstt. Enggs. In CPWD by 15 OA No.2227/2019 granting them the grade pay of Rs.4600 in PB-2 as a result of Sixth CPC's recommendation. However, from the date of implementation of the MACPS, all the financial upgradations under the Scheme should be done strictly in accordance with the hierarchy of grade pays in pay bands as notified vide CCS (Revised Pay) Rules, 2008.
19. The MACPS contemplates merely placement on personal basis in the immediate higher Grade pay /grant of financial benefits only and shall not amount to actual/ functional promotion of the employees concerned. ........"
19. It is pertinent to mention here that the respondents, in a reasoned and speaking order dated 18th September, 2015, which they passed in compliance to the directions of this Tribunal in OA No. 211/00129/2015 dated 28th July, 2015 has stated as follows :
"1. The para No. 2 of Annexure I of O.M. No. 35034/3/2008-Estt.(D) dated 19th May, 2009 states, "The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section I. Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. ..........". It is to be noted that MACPS does not say of financial up gradation to the next higher grade in accordance with the existing hierarchy in the cadre.
2. As Shri Pramod Pekde is working in PB-1 with GP of Rs.2400/- since 07.01.1999 without any promotion, he became eligible for first financial up gradation under MACPS on completion of 10 years of regular service w.e.f.16 OA No.2227/2019
07.01.2009. The Screening Committee recommended "the immediate next higher grade pay in the hierarchy of the recommended revised pay band and grade pay as given in Section - I, Part - A of the first schedule of the CCS (Revised Pay) Rules 2008" i.e. in PB- l with GP of Rs.2800/- which was approved by the competent authority.
3. Referred, Smt. Kauru Padma is working as Store Assistant. As per the Order dated 09.02.2012 of this Tribunal in O.A. No. 2158 of 2007, Ministry in consultation with Department of Expenditure has agreed for the pay scale which corresponds to PB-2 with GP of Rs. 4,200/- for the post of Store Assistant.
4. Shri Pramod Ishwarrao Pekde is working as Shelf Assistant. Although the post of Shelf Assistant is feeder cadre of Store Assistant but the applicant has not been recommended for first financial up gradation in PB-2 with GP of Rs. 4,200/- under MACPS since it is not "the immediate next higher grade pay of the applicant in the hierarchy of the recommended revised pay band and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008." The immediate next higher grade to PB-1 with GP of Rs. 2,400/- in which the applicant is presently working is PB-1 with GP of Rs. 2,800/-. Hence, PB-2 with GP of Rs. 4,200/- has not been awarded to the applicant and the first financial upgradation has been under the existing provisions of MACPS."
20. From the above orders and documents on record, it is very clear that the judgement in the case of Smt. Kauru Padma versus Union of India & Others in OA No. 2158 of 2007 dated 09th February, 2012 (CAT Mumbai Bench) is not applicable here, This is because Ms Kauru Padma was already working in the 17 OA No.2227/2019 promoted post of Store Assistant , whereas in the present case the applicant had not been promoted, and hence, he was not entitled to the Grade Pay of Rs 4200/-.
21. The judgement in the case of Sanjay Kumar & others versus Union of India & ors in OA No. 904 of 2012 dated 26th day of November, 2012 (CAT Principal Bench) is also not applicable in this case , as there were absolutely no promotional avenues in the channel of the photocopier and hence, he had to be given the Grade Pay , after completing requisite years of service.
22. The specific illustrations at para number 28. A
(i) and (ii) of the OM No. 35034/3/2008 dated 19th May, 2009 makes the applicability of the relevant rules abundantly clear, which reads as follows:
"28. A (i) If a Government servant (LDC) in PB-l in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in the PB-l in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the 18 OA No.2227/2019 MACPS in the PB-l in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get any promotion thereafter, then he would get 3rd financial upgradation in the PB-II in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10)."
23. It can be seen from above that an individual becomes eligible for the higher Grade, after completion of 28 years of service . In the case of the applicant, he had completed only 10 years of service in 2009.
24. It is well settled that an individual cannot be promoted, just because he has completed minimum years of service as per the eligibility criteria. The number of vacancies available, performance record, ranking of an individual in the merit list, suitability for a post, criteria based on seniority cum merit , conduct of DPC etc have to be factored, before an employee can be given promotion. When promotion itself cannot be demanded as a matter of right, how can the pay scale & grade associated with a promoted post be demanded as a matter of right.
19 OA No.2227/2019
25. The very purpose of MACP was to compensate an employee to a considerable extent, for the lack of adequate promotional avenues . Nothing is brought to our notice regarding the MACP scheme, which states that a person who is eligible for promotion, but has not been promoted, should be given the higher pay scale or Grade , which is applicable to the next promoted rank/ level.
26. It is pertinent to mention here that the facts and circumstances of this case are fully covered in case of Union of India and Others versus M.V. Mohanan Nair, (2020) 5 SCC 421. The relevant para of the above mentioned Judgement is as follows:-
"31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy grade pây in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration."
27. The same has also been reiterated in the case of Union of India and Others versus Ex. HC/GD Virender 20 OA No.2227/2019 Singh, Civil Appeal @ SLP (C) No. 16442 of 2021 & Ors. Relevant paras are as follows:-
"10. In M.V. Mohanan Nair a three-Judge Bench of this Court considered the ACPS as well as the MACPS to hold that the schemes are in the nature of incentive schemes which were brought into force to relieve stagnation. This Court was of the considered view that the respondents therein were entitled only to the benefit of next grade pay in the pay band and not to the benefit of grade pay of next promotional post. As the MACPS is a matter of government policy pursuant to the recommendations made by the Pay Commission, this Court refused to accept submissions of the employees that MACPS should be made applicable with effect from 1-1-2006.
11. In view of the judgment of this Court in M.V. Mohanan Nair, the respondents and other similarly situated employees are entitled for financial upgradation under MACPS only to the next grade pay and not to the grade pay of next promotional post. ....."
28. The above mentioned Judgements of Hon'ble Supreme Court of India and relevant OMs, clearly show that employees are given the benefit of enhanced Grade Pay, as applicable . However , insistence on giving the higher level Grade / Pay Band Scale , which is commensurate only with the post on promotion , instead of enhanced Grade Pay, is stretching the logic to ridiculous lengths is untenable. 21 OA No.2227/2019
29. In view of above, we are of the considered opinion that the OA is devoid of merit. The respondent have correctly given the applicant, enhanced Grade pay of Rs 2800/-, under MACP.
30. In view of above, the OA is dismissed. Pending MAs, if any, stand disposed of. No costs.
(Santosh Mehra) (Justice M.G.Sewlikar) Member(A) Member (J) 'nk'