Central Administrative Tribunal - Delhi
N C Kaushik vs M/O Defence on 12 March, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2395/2016
Reserved on: 14.02.2025
Pronounced on: 12.03.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
N.C. Kaushik, Age 54 years,
S/o Late Sh. Chander Pal,
Presently working as Data Processing Assistant A
(DPA-A), employment No.A-066138
DGIS/MISO/TMS, DGIS Bildg.
Rao Tula Ram Marg, New Delhi-10,
R/o H.No.178/4, Gali No.2,
Padam Nagar, Delhi-110007 - Applicant
(By Advocate: Mr. Padma Kumar S)
VERSUS
1. Union of India through
The Secretary,
Ministry of Defence,
South Block, DHQ PO,
New Delhi-110011
2. Joint Secretary (Training) &
Chief Administrative Officer (A-5B)
Ministry of Defence,
E Block, DHQ PO, New Delhi-11
- Respondents
(By Advocates: Mr. Hanu Bhaskar and Mr. Gyanendra Singh)
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ORDER
Hon'ble Mr. B.Anand, Member (A):
The applicant, by virtue of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, seeks the following reliefs:-
"(a) Quash and set aside the impugned Order dated 19.2.2016.
(b) Direct the respondents to grant the same pay as his junior from 09.08.1999.
(c) Direct the Applicant to grant the arrears of pay due to stepping up of his pay with his junior.
(d) Any other relief which this Hon'ble Tribunal may be pleased to allow."
2. The learned counsel for the applicant contends that the respondents have passed the impugned order dated 19.02.2016 vide which his request for stepping up of pay at par with his junior has been denied and setting aside the anomaly vis-a-vis his njunior Smt. Asha Sachdeve who was drawing higher pay than the applicant due to the fact that as a result of implementation of judgment by the Tribunal in an earlier round of litigation vide OA No. 365/207, the applicant has been granted the pay scale of DPA'A' with effect from the date of his promotion as DEO 'B' i.e. w.e.f. 24.07.1998 and consequently, the applicant has to forgo the benefits of 1st ACP as he has already been granted a higher pay scale prior to the date of 1st ACP.
3. Learned counsel for the applicant contends that in terms of the provisions of FR-22, the applicant's pay needs to be 3 stepped up so that it is not less than that of his junior mentioned above. He also submits that pursuant to such stepping up of pay as envisaged under the provisions of FR-22, his retirement dues, including pension has to be re-fixed.
4. Learned counsel for the respondents vehemently opposed the contentions of the learned counsel for the applicant by stating that the applicant was granted re-fixation of pay in the pay scale of Rs.1600-2660 (Revised Pay Scale Rs.5500-175-9000) with all consequential benefits with effect from the date of promotion to the grade of DEO 'B" to which grade he was promoted w.e.f. 24.07.1998 whewn he was also drawing a basic pay of Rs.5500/- with no increment due to placement in the scale. For this reason, the date of next increment was kept as 01.07.1999 instead of 01.08.1999.
5. Learned counsel for the respondents further submits that since the applicant has already been granted a higher scale prior to the date of 1st ACP, i.e., 09.08.1999 so he had to forgo the benefits of 1st ACP. He also submits that under the ACP Scheme, the applicant cannot make any plea about his seniority position because the relevant clause of ACP speaks as under:-
"The financial up-gradation shall be purely personal to the officials and shall have no relevance to the seniority position. As such, there shall be no additional financial up-gradation for the senior officials on the ground that the junior officials in the grade have got higher pay scale under the ACP Scheme."
6. Learned counsel for the applicant submits that at the time of grant of 1st ACP in the pay scale of Rs.5000-150-8000, 4 his junior, namely, Smt. Asha Sachdeva was drawing a basic pay of Rs.5500/- in pay scale of Rs.4500-125-7000/-, wherein she opted for fixation of pay with effect from the date of annual increment and for that reason in the interim, she had been placed in the fitment of Rs.5000-150-8000, i.e. basic pay of Rs.5600/- w.e.f. 09.08.1999. She was thereafter granted two increments w.e.f. 01.10.1999 and her basic pay was fixed as Rs.5900/-. He has thus, submitted that the disparity in the pay has occurred due to grant of 1st ACP (Pay scale of Rs.5000- 150-8000) to junior of the applicant w.e.f. 09.08.1999. He also submits that since the applicant had already been placed in the next higher scale of Rs.5500-175-9000 w.e.f. 24.07.1998 prior to the date of grant of 1st ACP w.e.f. 09.08.1999, the benefits of 1st ACP had to be foregone.
7. We have given a patient hearing to both the learned counsels for the parties and with their assistance, perused the record.
8. It is an admitted position that the applicant is senior to Smt. Asha Sachdeva who is drawing higher pay than the applicant and reason given by the respondents in their counter reply for that is that since the applicant was already placed in the next higher scale of Rs.5500-175-9000 w.e.f. 24.07.1998 prior to the date of grant of 1st ACP w.e.f. 09.08.1999, the benefits of 1st ACP had to be forgone, whereas in the case of his junior, at the time of grant of 1st ACP in the pay scale of Rs.5000-150-8000, she was drawing a basic pay of Rs.5500/- in pay scale of Rs.4500-125-7000/- wherein she opted for 5 fixation of pay with effect from date of annual increment and for that reason, in the interim, she had been placed in the fitment of Rs.5000-150-8000 i.e. basic pay of Rs.5600/- with effect from 09.08.1999 and thereafter she was granted two increments w.e.f. 1.10.1999 and her basic pay was thus fixed as Rs.5900/-.
9. We find that the Hon'ble Supreme Court in the matter of Union of India & Ors. vs. Shri C.R. Madhava Murthy & Anr. (Civil Appeal Nos.2087-2088 of 2022) has laid down the law in this matter of junior drawing more pay than that of his senior in a government service for whatever reasons. For the sake of clarity and better appreciation, we reproduce the relevant paras of the said decision of the Hon'ble Supreme Court as under:-
"2. The facts leading to the present appeals in a nutshell are as under:
2.1 That the respondents herein original writ petitioners were appointed as Lower Division Clerk on 01.02.1973 and 03.08.1973, respectively. Thereafter, they were promoted to the post of Upper Division Clerk on 04.10.1976. That one of the respondents was promoted to officiate as an Inspector w.e.f. 02.04.1981 and the other respondent was promoted to officiate as an Inspector on 13.07.1981. One Shri C.K. Satish was appointed as an Inspector on 17.12.1981 by way of direct recruitment and one Shri B.S. Srikanth was also appointed as an Inspector by way of direct recruitment on 15.05.1982.
In order to provide upgradation to its employees and to remove the stagnation on a particular post, the Union of India introduced "Assured Career Progression Scheme" (ACP Scheme) w.e.f. 09.08.1999. The said Shri C.K. Satish and Shri B.S. Srikanth were granted upgradation under the ACP Scheme. The original writ petitioners were promoted to the post of Superintendent of Central Excise and Customs on 02.07.2000. The employees, juniors to the original writ petitioners were granted upgradation under the ACP Scheme w.e.f. 17.12.2005 and 15.05.2006. However, it so happened that the persons who were placed lower in the upgradation list 6 than the original writ petitioners, on account of upgradation granted to them under the ACP Scheme, started drawing higher pay. Therefore, the original writ petitioners submitted a representation to the Department for stepping up and to remove the anomaly and to fix their salaries at par with their juniors. Thereafter, the original writ petitioners preferred O.A. Nos. 813 & 814/2014 before the Central Administrative Tribunal, Bengaluru Bench, Bengaluru. By the common order dated 04.01.2016, the Tribunal rejected the said applications. Feeling aggrieved and dissatisfied with the common order dated 04.01.2016 passed by the Tribunal, the respondents herein preferred the present writ petitions before the High Court. On considering FR 22, which provides for stepping up of pay and the removal of anomaly by stepping up of pay of a senior on promotion drawing lesser pay than his junior, by the impugned common judgment and order the High Court has allowed the writ petitions and has directed the appellants herein to step up the pay of the respondents herein, keeping in view the pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors.
2.2 Feeling aggrieved with the impugned common judgment and order passed by the High Court, the Union of India and others have preferred the present appeals.
3. Ms. Madhvi Divan, learned ASG, appearing on behalf of the appellants has vehemently submitted that while passing the impugned common judgment and order, the High Court has not at all appreciated and/or properly considered the ACP Scheme.
3.1 It is submitted that the respective original writ petitioners were already promoted to the post of Superintendent of Central Excise and Customs. It is submitted that once the respective writ petitioners were already granted the promotion, thereafter, there was no question of granting any stepping up of pay under the ACP Scheme.
3.2 It is submitted that the High Court has not at all appreciated the object and purpose of ACP Scheme. It is submitted that as per the catena of judgments of this Court and various High Courts, the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria. It is submitted therefore that when in the present case the original writ petitioners were already promoted to the next higher post - Superintendent of Central Excise and Customs and they were placed in the appropriate pay scale of the promotional post, thereafter, there was no question of any stepping up in the pay. 7
4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.
5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior (a) As a result of application of FR 22 C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR22C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer."
The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR27. The next increment of the senior officer will 8 be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay. [G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".
6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for."
10. We have also examined the orders passed by the coordinate Benches of this Tribunal in OA No. 2124/2011 decided on 01.02.2013 and OA No. 3079/2012 decided on 10.12.2023 and found that the issue involved in the present case has also been dealt with and decided by this Tribunal, relevant paragrpahs are as under:-
"OA No. 2124/2011
"9. The issue raised in this case as to whether a senior person, though having received two promotions, is entitled to stepping up of his pay at par with his junior, who has been granted benefit under ACP Scheme and by virtue of this, is receiving higher pay than his senior, stands clinched by various decisions of this Tribunal including in O.A. No. 842-JK-2007 decided on 17.11.2009 titled Madan Gopal Sharma & Others Vs. Union of India & Others. In that case reliance was placed on decisions of Apex Court in the case of Ram Sarup Ganda (supra) and (Gurmail Singh). Reliance was also placed on decision in the case of Harcharan Singh Sudan (supra). It was held that seniors are entitled to step up their pay as a general rule as and when any junior gets fixed in a pay scale higher to them on account of grant of ACP Scale. Para 14 of the decision in the case of Harcharan Singh Sudan (supra) in Para 14 is reproduced as under:-
14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government was 9 the appellant and the challenge was against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay parity would be compared annually and partly would be maintained in future
10. Finding that the facts of this case are covered by the decision in the case of Harcharan Singh Sudans case as well as Madan Gopal Sharma and Others (supra), this Original Application is allowed to the extent that annexure A-2 relating to rejection of claim of applicant is quashed and set aside.
11. With this O.A. stands disposed of and the respondents are directed to step up the pay of the applicant at par with his junior aforesaid and in terms of the directions contained in the case of Harcharan Singh Sudan (supra). It is made clear that the applicant shall be given stepping up of pay only and not the pay scale, as explained above. The pay may be fixed accordingly and arrears be also paid to him within a period of three months from the date of receipt of a copy of this order.
However, in the given facts and circumstances of the case, applicant is not entitled to interest. Parties to bear their own costs."
OA No. 3079/2012
"7. We find that in OA No.842/JK/2007, the Tribunal in its order dated 17.11.2009, observed as follows:-
"The controversy raised in this OA is no longer res integra and already stands clinched by decisions of the Apex Court in the cases of Ram Sarup Ganda (supra) and Gurmail Singh. It has been held in these cases that seniors are entitled to step-up in their pay scales as a general rule as and when any junior gets fixed in a pay scale higher to them on account of grant of ACO scale. Further, the facts of this case are covered by decision of this Tribunal 10 in OA 96/CH/2007 (Harcharan Singh Sudan vs. UOI (supra). The following observations made by the Tribunal in para 14 may aptly be reproduced hereunder:-
14. However, one aspect is to be seen. In the case decided by the Apex court, the State Government was the appellant and the challenge was against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them.
The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay partly would be compared annually and partly would be maintained in future.
8. Based on the above, the Tribunal allowed the OA with the direction to the respondents to step up the pay of the applicants at par with their juniors and that such stepping up would be only in pay and not to the pay scale.
9. Respondents filed SWP No.2271/2010 before Honble High Court of Jammu & Kashmir. Para 7 and 8 of the said judgment are reproduced below:-
"7. We do not agree with the submissions advanced by Mr. Arora. In condition 8 for grant of benefit under the ACP scheme in the aforesaid memorandum, on which Mr. Arora has relied, it is mentioned that the financial upgradation under this scheme shall be purely personal to the employee and shall have no relevance to his seniority position, therefore, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay scale under the ACP scheme. The learned Tribunal while dealing with this aspect on the facts of the present case, has relied upon the view already taken in 11 Harcharan Singh Sudans case (supra), para 14 thereof reads thus:
"14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government was the appellant and the challenge was against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay partly would be compared annually and partly would be maintained in future.
8. We do not find any reason to have a contrary view from the one taken by the learned Tribunal. Viewed thus, the petition at hand is dismissed being devoid of any merit in it. However, at the request of Mr. Arora, another three weekstime effective from today is granted to the petitioners to comply with the order passed by the Tribunal.
10. Respondents have not produced any information regarding filing of any SLP or any order related thereto.
11. We observe that the applicant being similarly situated as applicant in the OA No.842/JK/2007 cannot be denied the stepping up of pay at par with the juniors without any stepping up of pay scales. This would be in consonance with the judgment of the Honble High Court of Jammu & Kashmir.
12. Accordingly, OA is allowed to the extent of stepping up of pay of the applicants. They would, however, not be entitled to stepping up of the pay scale."
11. In light of the decision of the Hon'ble Supreme Court in the case of C.R. Madhava Murthy (supra) and decision of the 12 coordinate benches of this Tribunal in OA No. 3079/2012 & OA No. 2124/2011, this OA is allowed. Accordingly, the impugned order dated 19.02.2016 is quashed and set aside. We further direct the respondents to re-fix the pay of the applicant at par with his junior from 09.08.1999 after examining the pay of the aforesaid junior as mentioned in para 2 of this order, within a period of 12 weeks from the date of receipt of a certified copy of this order. No costs.
(B. Anand) (R.N. Singh) Member (A) Member(J) /lg/