Karnataka High Court
A Francis vs Union Of India on 18 August, 2018
Bench: A.S.Bopanna, Mohammad Nawaz
1
WP No.54755/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST 2018
PRESENT:
THE HON'BLE MR. JUSTICE A.S. BOPANNA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
WRIT PETITION NO.54755/2017 [S-CAT]
BETWEEN:
A. FRANCIS,
S/O. ANTHONAPPA,
AGED ABOUT 59 YEARS,
WORKING AS LASCAR IN SECURITY SECTION,
AIR FORCE TECHNICAL COLLEGE,
403, AIR FORCE STATION,
JALAHALLI WEST,
BENGALURU - 560 015,
RESIDING AT NO.27,
MARIYANA PALYA,
MOTHER THERESA ROAD,
2ND CROSS, H.A. FARM POST,
BENGALURU - 560 024. ... PETITIONER
[BY SRI. B.J. MURALI, ADVOCATE]
AND:
1. UNION OF INDIA,
BY SECRETARY,
MINISTRY OF DEFENCE,
104, SOUTH BLOCK,
NEW DELHI - 110 001.
2. THE AIR OFFICER COMMANDANT,
AIR FORCE TECHNICAL COLLEGE,
403, AIR FORCE STATION,
JALAHALLI WEST, BENGALURU - 560 015.
2
WP No.54755/2017
3. OFFICER IN CHARGE,
CIVIL ADMINISTRATION,
AIR FORCE TECHNICAL COLLEGE,
403, AIR FORCE STATION,
JALAHALLI WEST,
BENGALURU - 560 015. ... RESPONDENTS
[BY SRI. B. PRAMOD, CGC]
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 20.07.2017 ANNEXURE-A MADE IN O.A.
NO.170/00713/2015 PASSED BY THE CENTRAL ADMINISTRATIVE
TRIBUNAL, BENGALURU ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - 'B' GROUP THIS DAY, A.S. BOPANNA J., MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court assailing the Order dated 20.07.2017 passed in O.A. No.170/00713/2015.
2. The petitioner was before the Central Administrative Tribunal ['CAT' for short] seeking that the Communication dated 21.12.2011 and the Order dated 17.06.2014 be quashed and in that regard, the petitioner was seeking that the respondents be directed to fix the pay of the applicant granting him the benefits of the 1st and 2nd 3 WP No.54755/2017 financial upgradations under the Assured Career Progression Scheme ['ACP Scheme' for short] with effect from 09.08.1999 and 01.08.2007 respectively and 3rd Modified Assured Career Progression Scheme ['MACP' Scheme for short] benefit from 30.04.2013 and extend the consequential benefits.
3. At the first instance, the CAT had allowed the application and granted the benefit through the Order dated 12.02.2016. The respondents herein had assailed the same before this Court in W.P. No.38933/2016. A Co-ordinate Bench of this Court through the Order dated 06.02.2017 had taken note of the Order passed by the CAT and having arrived at the conclusion that appropriate consideration had not been made, remitted the matter to the CAT for reconsideration. It is in that view the Order dated 20.07.2017 impugned at Annexure-'A' is passed after reconsideration.
4. Having heard the learned counsel for the parties, we have perused the petition papers. 4 WP No.54755/2017
5. The parties being governed by the ACP Scheme initially, as per the benefit under the Scheme an employee was to be granted benefit at the initial completion of 12 years of service from the date of joining and thereafter at the completion of 24 years is not in dispute. Subsequently, the same was substituted by a Modified Assured Career Progress Scheme which was known as MACP Scheme. As per the said Scheme, the financial benefit on stagnation was to be granted at the end of every 10 years of service from the date on which the employee had joined. In the instant case, the fact that the petitioner herein had been granted two upgradation under the ACP Scheme and two upgradation under the MACP Scheme is not in dispute. However, the contention put-forth by the petitioner is taken note, the case as put-forth is that one more upgradation was required to be granted. The contention is also that in the case of Sri. Veeranna and Syed Tufel and other employees who had been granted the benefit under the MACP Scheme a higher benefit is accorded. The respondents though through Communication dated 21.12.2011 [Annexure-A2'] in reply to the request made by 5 WP No.54755/2017 the petitioner have indicated that the financial upgradation as granted under the ACP Scheme between 01.01.2006 to 31.08.2008 was cancelled, the correct position was that keeping in view the MACP Scheme and the provisions as contained therein, on the upgradation granted under the ACP Scheme in those grades, which carry the same grade pay merger of pay scales/upgradation of the posts recreated by the 6th Pay Commission was to be ignored for the purpose of granting upgradation under the MACP Scheme. It is in that light, since the pay scale on the upgradation given to the petitioner was in the payband of Rs.1900, such consideration has been made and in that light it is contended that the upgradation as granted is justified. While taking into consideration this aspect of the matter, the CAT has ultimately concluded as hereunder:
"11. We have carefully considered the facts of the case and submissions made by either side. It is evident from the records that the applicant who has joined as Group-D Lascar did not get any regular promotion. As such he was granted 1st ACP when the ACP 6 WP No.54755/2017 Scheme came into existence w.e.f. 9.8.1999 and 2nd ACP from 1.8.2007. Subsequent to the 6th Pay Commission recommendation, several pay scales were merged. The initial scale of the applicant i.e., Rs.2550-3200 and the scale granted on 1st financial upgradation at Rs.2650-4000 got merged. Therefore, the 1st ACP gets nullified. The scale he got under 2nd ACP corresponds to PB-1 with Grade Pay of Rs.1900. Therefore, the applicant was considered as having got one financial upgradation i.e., from GP Rs.1800 to GP Rs.1900. Accordingly under MACP Scheme, he was given 2nd financial upgradation from 1.9.2008 and allowed PB-1 + GP 2000. The 3rd MACP was given w.e.f. 30.4.2013 in PB-1 with GP 2400. Hence we find that there is absolutely no anomaly in granting financial upgradation to the applicant as has been alleged. The other persons who have been referred to by the applicant had got 1st ACP on 1.4.2000. Since it was nullified due to merger of the scales, they were given 1st and 2nd MACP on 1.9.2008 and 3rd MACP on 1.7.2013. Hence, there is no difference in the financial upgradation given to those persons vis-à-vis the applicant. As on 1.7.2007 and 1.7.2008, 7 WP No.54755/2017 the applicant was getting Grade Pay of Rs.1900 as compared to others who got GP 1900 from 1.9.2008 only. The communication dated 21.12.2011 at Annexure-A2 saying that the ACP granted was cancelled was wrong as has been admitted by respondents in their reply statement. They should have indicated that one of the financial upgradation granted earlier is not taken into reckoning in view of the merger of the scales and hence the 2nd MACP was granted w.e.f. 1.9.2008. Then there would not have been any confusion. In any case there is nothing irregular in grant of financial upgradation by the respondents.
12. The applicant has raised another issue which relates to difference in pay between the applicant and other two persons such as Sri. Syed Tuffel. It is evident from the comparative statement given by the respondents along with additional reply statement that both the applicant Sri. A.Francis and Sri. Syed Tuffel joined on 30.4.1983 in the same scale and continued to draw the same pay till 1.4.1999. the problem started subsequently on granting of 1st ACP. In the reply statement, the respondents have mentioned that Sri. 8 WP No.54755/2017 Veeranna and said Sri. Syed Tuffel joined the service on 30.4.1984. It seems that the applicant was granted 1st ACP on 9.8.1999 and hence his pay was fixed at Rs.3235. The other two persons got 1st ACP w.e.f. 1.4.2000. This is not clear as they had completed 12 years before 1999 and should have got ACP benefit from 9.8.1999 when the applicant received the same. However, they were given one additional increment taking their pay at Rs.3300-00. Therefore, while the applicant started getting the same pay from 01st August, the other got from 1st April. The other persons also started getting one additional increment following 6th pay commission recommendation, resulting a difference in salary. This is continued till 7th pay commission when all have started drawing the same pay as on 1.1.2016 and 1.7.2016. hence, the difference in pay resulted only on account of date of increment and not on account of difference in financial upgradation as claimed in the OA. On this issue, the applicant may agitate the matter before the appropriate authority if the other two persons have joined on the same day or are junior to him demanding parity in pay for their consideration.9 WP No.54755/2017
13. As far as the present issue raised by the applicant in this OA is concerned, it is quite clear that three financial upgradations allowed to the applicant under ACP and MACP are clearly in order and there is no irregularity in the matter. Therefore, we do not find any merit in the OA and hold that the same is liable to be dismissed. The OA is accordingly, dismissed. However, the applicant shall be at liberty to agitate before the respondents the issue of parity in pay with his juniors if he so desires. No order as to costs."
6. A perusal of the same would indicate that the CAT has in fact taken into consideration the aspect of the matter as noticed by us above and keeping in view the financial upgradation from the GP Rs.1800 to GP Rs.1900, the nature of the consideration made to grant the MACP., is kept in view and has accordingly approved the action of the respondents. Therefore, in that circumstance, when the scheme is kept in view and the nature of the consideration is made in that manner and the upgradation has been granted to the petitioner both under the ACP Scheme as 10 WP No.54755/2017 well as the MACP Scheme, we find no error in the Order passed by the CAT so as to call for interference.
7. In so far as certain anomaly with regard to the interse comparison between the pay scale of the petitioner and the instance as pleaded with regard to Sri. Syed Tuffel's case is concerned, on the grant of the 3rd MACP., there is no pay anomaly. In any event, in terms of the directions issued by the CAT., if such anomaly is noticed and the respondents shall taken into consideration the representation to be submitted by the petitioner as permitted by the CAT., such corrections be effected. In that view, we see no reason to interfere with the order impugned.
The writ petition is accordingly disposed of.
Sd/-
JUDGE Sd/-
JUDGE Ksm* CT-NR