Central Administrative Tribunal - Lucknow
B B Shukla vs Union Of India on 9 February, 2023
CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No. 508 OF 2011
This, the 9th day of February, 2023
CORAM
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J)
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A).
B.B. Shukla aged about 63 years son of late Shri Bindhadin
Shukla R/o 551 CHH/273/1 New Sardar Khera, Alambagh,
Lucknow.
...Applicant
By Advocate: Shri Sunil Kumar
Versus
1. Union of India through the Secretary Department of Posts
New Delhi.
2. Chief Post Master General Gujarat Circle Ahmadabad.
....Respondents
By Advocate: Shri Raj Kumar Singh
1. Whether reporter of journals and of local papers may be
allowed to see the judgment: Yes
2. To be referred to the reporter or not: Yes
3. Whether to be circulated to other benches: Yes
ORDER (ORAL)
Per Hon'ble Shri Devendra Chaudhry - Member (A) The present O.A. has challenged the orders dated Page 1 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I 03.06.2010 and 27.04.2011 (wrongly printed as 27.04.2010) and prayed for directions to re-fix the pay w.e.f. 01.01.2006 and 04.08.2008 as per provisions asserted along with arrears and interest of 10%.
2. Brief facts are that the applicant joined as Postal Assistant in 1979 in the Department of Posts, Gujarat Circle Ahmadabad. In 1980, he was placed as Junior Hindi Translator, which appointment was regularized by Respondent No.-2 vide order dated 27.07.1987 w.e.f 21.07.1987. The applicant was given benefit of the A.C.P Scheme w.e.f. 09.8.1999 and placed in the pay scale of Rs. 5500-9000 vide order dated 28.2.2003, (Annexure-3). The applicant was promoted vide order dated 25.07.2008 (Annexure-4), on ad-hoc basis by Respondent No.-2 to the post of ADPSOL) (OL) in Group-B Gazetted cadre in the Circle office Ahmadabad on which post the applicant joined on 04/08/2008 and continued on this post till his retirement on 31.12.2008.
2.1. The applicant has contented inter alia in para 4.13 of his O.A that per Rule-7 of the CCS (Revised Pay) Rules 2008, which came into force on 01.01.2006 following the implementation of 6th Central Pay Commission and OM dated 24/11/2008 / Corrigendum 27.11.2008 (Annexure-4/5), since, similarly designated posts existing outside the Central Secretariat Official Language Services (CSOLS) Cadre in various subordinate offices of the Central Government were to be granted the same pay scales as those granted to CSOLS Page 2 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I officials, therefore, as the applicant was in the upgraded scale after grant of ACP benefit, hence he should have been granted the pay scale of Rs 7450-11500 per the CSOLS related circular which would have resulted in grant of GP of 4600/- under the 6th CPC. If this had been done, then, when he got promoted to AD-OL he would have got pay scale of Rs. 8000-13500 per Rule-13 of the CCS (Revised Pay) Rules, 2008 which would have resulted in GP of Rs. 5400/- which would have resulted in total pay of Rs 22640/- and since he retired from post of AD-OL therefore, he would have got pension fixed at half of Rs 22640/- which is Rs 11320/- instead of 10,380/- which is half of 20760/- as fixed by the respondents which is a result of non-compliance of the 27/11/2008 circular read with the 6th CPC pay levels prescribed.
2.2 That hence the impugned orders of 03/06/2010 and 27/4/2011 need to be quashed and the pay fixed w.e.f. 01/01/2006 and 04/08/2008 as per provisions of para 6.2 of Annexure-1 of O.M. dated 18/9/2009 which concerns pay fixation under MACP scheme. It is further contented that the revised pay structure has been granted to the similarly placed employees and therefore not granting the same to him is violation of the law of equity under Article- 14 and 16 of the Constitution. That, the applicant's representation in 2010 was rejected by the impugned non speaking order dated 03.06.2010 (Annexure-1) and a further representation dated 21.07.2010 has also been rejected by non-speaking impugned Page 3 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I order dated 27.04.2011 (wrongly printed as 27.4.2010) - Annexure-2. As both the orders are violative of extant provisions of pay fixation per CSOLS circular and the various provisions of CCS (Revised Pay) Rules, hence he is entitled to higher pay on retirement as also arrears which need to be granted as stated in the relief sought in para-8 of the O.A. Hence the O.A.
3. Per contra, the respondents assert that, while the applicant was working as Jr. Hindi Translator since 30.8.1980 and post regularization in 1987 in the office of Chief PMG, Ahmadabad in the pay scale of Rs. 5000-8000/- (pre-revised.), he was placed in the scale of Rs. 5500-9000/- (Pre-revised) inorder to give him the benefit of the ACP Scheme vide order 28/2/2003, w.e.f. 9.8.1999 within the pay scales of the 5th CPC. That later he was promoted vide order dated 25/7/2008 [Annexure -4] only on ad-hoc basis to officiate in GSS Group 'B' as ADPS (OL)O/o Chief PMG, Gujarat circle, Ahmadabad against vacant post in temporary manner for a period not exceeding 180 days on which post he remained till retirement on 31.12.2008 (A.N.). 3.1 That since all through-out the period starting from grant of ACP benefit in 2003 and the ad hoc promotion to AD-OL in 2008, his substantive regular post continued to be that of Jr. Translator and was never promoted from this post in a regular manner ever to any higher post , hence he was neither entitled to the benefit of CSOLS pay of Rs. 7450-11500 which is actually the pay of a Sr. Translator to which post the applicant Page 4 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I was never promoted in any regular manner or for that matter the pay of AD-OL to which he was promoted only on ad hoc basis and that too for a limited period of 180 days only from which post he superannuated in December 2008. That it is for this reason his pension has been fixed on the basis of pay of 20760/- half of which is Rs 10380/- as admissible to him per his pay fixation after the ACP benefit and corresponding pay fixation per the 6th CPC and the CCS (Revised Pay) Rules, 2008. That therefore, there is no error in fixing his pay and pension on superannuation and so the O.A lacks merits and is hence liable to be dismissed.
4. Heard learned counsels for both the parties and perused the documents and pleadings filed carefully.
5. The key issue which falls for consideration is fixation of pay in the context of the extant provisions of ACP scheme / MACP scheme, the 6th CPC recommendations, the CCS (Revised Pay) Rules, 2008, the circular of CSOLS dated 27/11/2008 and the stated ad hoc promotion of the applicant to the post of AD-OL for a period of only 180 days.
6. In order to decide the rival contentions, it is important to examine (i) the 28/02/2003 order by which the applicant was granted the ACP scheme benefit under the 5th CPC when there were no Pay Bands (PB) and Grade Pay (GP) which got introduced only under the 6th CPC, (ii) the pay scales per the 5th CPC relevant to the case at hand Page 5 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I and (iii) the ACP Scheme itself. The concerned provisions are extracted below:
Order dated 28/2/2003 granting ACP Scheme benefit:
"DEPARTMENT OF POSTS: INDIA O/O The Chief Postmaster General, Gujarat Circle,Ahmedabad-38001 Memo No. Staff/18-22/2000 dated at Ahmadabad the 28th Feb 2003 In pursuance of Director General (Posts), New Delhi Memo No. 22-2/99PE-1 dated 4.1.2002 and Clarification thereon issued vide No. 22-2/99-PE-I dated 25.4.2000 and further Clarification No. 22-2/2000-PE-I dated 8.8.2001, approval of the competent authority is hereby accorded to place the following official of Jr. Hindi Translator cadre in the next higher scale of pay granting first financial up gradation under the ACP scheme with effect from the date shown against the me of official under Column-5:
Sl. Name & Designation Pay scale in Next higher date of effect First/
No. of the official which working scale in which Second
At present-Rs. To be placed-Rs. ACP
(1) (2) (3) (4) (5) (6)
1. Shri B.B. Shukla 5000-8000 5500-9000 09.08.99 1st Financial
Jr. Hindi up-gradation
Translator, office
Of Chief PMG
Ahmadabad
________________________________________________________________________________________
3. The financial up gradation in the next higher scale of pay will be given to new post for the purpose and it will be in the existing defined hierarchical grade in the cadre/category in respect of Shri Shukla.
4.The placement of the above official to the higher grade has no with the change in seniority position in the Gradation List and also he will retain his present designation without conferring any privileges related to higher status. [EMPHASIS SUPPLIED]. In other words, there will be no change in his present seniority position in the Gradation List and in present designation.
5. In case any Disc/Vig. case is pending/contemplated or punishment is current against the above official, the matter should be reported to this office immediately and the official should not be placed in the next higher grade without obtaining specific orders from this office.Page 6 of 30
CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I
6. An opportunity to exercise Option within one month from the date of issue o these orders as per Directorate's Communication No. 1-11/81-PAP(Pt.) dated 2.3.88, circulated under CO Endst. No. Staff/20-15/OP/Rig/11 dated 7.4.88 may be given. The financial benefit allowed under the ACP scheme shall be final and no pay fixation benefit shall accrue at the title of regular promotion in the higher grade. Also, grant of higher pay scale under ACP scheme shall be conditional to the fact that the official, while accepting the said benefit, shall be deemed to have given his acceptance for regular promotion on occurrence of vacancy subsequently.
7. The fixation of Pay on placement of the official to the higher grade should be made me per 1-R-22(1)(n)(h) and Directorate's instructions issued from time to time (N.D. Joshi) Asst. Postmaster General (Staff) Gujarat Circle: Ahmedabad-380001"
Pay scales under 5th CPC relevant to the case at hand:
Thought the parties have not so clearly stated with regards to pay scales under 5th CPC the relevant pay scale are extracted below as the same are available for information in public domain. They are as below:
5th CPC Pay scale w.e.f. 01/01/1996 Grade Pay scale S-9 5000-150-8000 S-10 5500-175-9000 S-11 6500-200-6900 S-12 6500-200-10500 S-13 7450-225-11500 S-14 7500-250-12000 S-15 8000-275-13500 Grade Pay scale S-9 5000-150-8000 S-10 5500-175-9000 Source: pensionersportal.gov.in › payscales_4567 Department of Pension & Pensioners' Welfare Furthermore as neither party has placed on record the ACP Scheme itself, but as examination of the same is necessary in the context of the order of 2003 by which the Page 7 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I applicant was granted the ACP Scheme benefit, the relevant portions of the scheme are extracted below being available in public domain. They are:
Relevant provisions of the ACP Scheme including Annexure therein:
" MOST IMMEDIATE No.35034/1/97-Estt(D) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi 110001 August 9, 1999 OFFICE MEMORANDUM Subject:- THE ASSURED CAREER PROGRESSION SCHEME FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES.
The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be viewed as a 'Safety Net' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, after careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder:-
2. GROUP 'A' CENTRAL SERVICES 2.1 In respect of Group 'A' Central services (Technical/Non-Technical), no financial up-gradation under the Scheme is being proposed for the reason that promotion in their case must be earned. Hence, it has been decided that there shall be no benefits under the ACP Scheme for Group 'A' Central services (Technical/Non Technical). Cadre Controlling Authorities in their case would, however, continue to improve the promotion prospects in organizations/cadres on functional grounds by way of organizational study, cadre review, etc. as per prescribed norms.
3. GROUP 'B', 'C' AND 'D' SERVICES/POSTS AND ISOLATED POSTS IN GROUP 'A', 'B', 'C' AND 'D' CATEGORIES 3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial up-gradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group 'C' and 'D' employees) Page 8 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial up-gradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I. ......
.......................
Annexure-1 "1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial up-gradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;"
Annexure-5 concerning CCS (Revised Pay) Rules 2008 notification dated 29/08/2008:
"NII NNISTRYOFFINANCE (Department of Expenditure) NOTIFICATION New Delhi, the 29th August, 2008 G.S.R. 622 (E).- In exercise of the powers conferred by the proviso to article 309, and clause (5) of article 148 of the Constitution and after consultation with the Comptroller and Auditor General in relation to persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules, namely : - 1. Short title and commencement -. (1) These rules may be called the Central Civil Services (Revised Pay) Rules, 2008. (2) They shall be deemed to have come into force on the 1St day of January, 2006.
2..................
3...................
7. Fixation of initial pay in the revised pay structure: (1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of rule 6 to be governed by the revised pay structure on and from the 1st day of January, 2006, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds alien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely :- (A) in Page 9 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I the case of all employees:- (i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of
10. (ii) if the minimum of the revised pay band/ pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/ pay scale; Provided further that:- Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. In the case of pay scales in higher administrative grade (HAG) in the pay band PB-4, benefit of increments due to bunching shall be given taking into account all the stages in different pay scales in this grade. In the case of HAG+ scale, benefit of one increment for every two stages in the pre-revised scale will be granted in the revised pay scale. If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised pay band/ pay scale (where applicable) which is higher than the stage in the revised pay band at which the pay of a Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. The pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable. Note - Illustration 1 on the above is provided in the Explanatory Memorandum to these Rules. (B) In the case of employees who are in receipt of special pay/allowance in addition to pay in the existing scale which has been recommended for replacement by a pay band and grade pay without any special pay/allowance, pay shall be fixed in the revised pay structure in accordance with the provisions of....."
8. Fixation of pay in the revised pay structure of employees appointed as fresh recruits on or after 1.1.2006 - Section II of Part A of the First Schedule of these Rules 39 indicates the entry level pay in the pay band at which the pay of direct recruits to a particular post carrying a specific grade pay will be fixed on or after 1.1.2006. This will also be applied in the case of those recruited between 1.1.2006 and the date of issue of this Notification. In such cases, where the emoluments in the pre-revised pay scale(s) [i.e., basic pay in the pre-revised pay scale(s) plus Dearness Pay plus Dearness Allowance applicable on the date of joining] exceeds the sum of the pay fixed in the revised pay structure and the applicable dearness allowance thereon, the difference shall be allowed as personal pay to be absorbed in future increments in pay. Page 10 of 30
CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I
9....
13. Fixation of pay on promotion on or after 1.1.2006 - In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows:- (i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay hand will be stepped to such minimum. (ii) In the case of promotion from. PB-4 to HAG+, after adding one increment in the manner prescribed in Rule 9, the pay in the pay band and existing grade pay will be added and the resultant figure will become the basic pay in HAG+. This shall not exceed Rs. 80,000, the maximum of the scale. For Government servants in receipt of NPA, pay plus NPA will not exceed Rs. 85,000...."
---------------------------
6.1 Fortified by the recap of the aforesaid provisions we may now examine the rival contentions threadbare. On doing so, it is clear, that first of all there can be no dispute with regards to pay fixation under ACP Scheme when the same was done vide order dated 28/2/2003. This is because - the applicant before grant of ACP Scheme benefit was in the pay scale of Rs. 5000-8000 as Junior Translator [para 4.3 of O.A]. So, when the ACP Scheme was implemented w.e.f. 09/8/1999 the applicant was indeed given the next higher pay scale of Rs. 5500-9000 [para 4.3 of O.A] per the 5th CPC pay scales as may be seen in the chart above. It is clear from the ACP Scheme that this ACP Scheme benefit was not a promotion as Page 11 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I seen in the provisions stated in the Annexure-1 to the scheme extracted above wherein, it is clearly stated that -
"1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;"
6.2 Now when we juxtapose this with the 28/2/2003 order granting ACP Scheme benefit to the applicant - its para-3 read with para-4 would clearly be in line with the ACP Scheme as they state that the grant of financial upgradation is not a promotion but a grant of next higher scale of pay in the existing hierarchical grade in the Cadre / category in respect of Shri Shukla, that is to say that the next pay scale in the hierarchy of pay scales available per the 5th CPC pay scales to the applicant which as is clear from the Table of pay scales of the 5th CPC extracted above which bear it out to be as Rs. 5500-9000/-.
6.3 Hence the grant of financial upgradation resulting in the pay scale fixation at Rs. 5500-9000 with pay being fixed as 7950/- cannot be disputed and is correct as per the provisions and as may be seen aforesaid and need not be confused as averred by the applicant that this pay Page 12 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I fixation was under the pay scale of Rs. 7450-11500 which is a pay of much higher level and not the next level of enhancement as may again be seen in the chart below [already extracted earlier]. The same reads as:
Grade Pay scale
S-9 5000-150-8000
S-10 5500-175-9000
S-11 6500-200-6900
S-12 6500-200-10500
S-13 7450-225-11500
S-14 7500-250-12000
S-15 8000-275-13500
Therefore, the point with regards to fixation of pay under the ACP Scheme at least - being in any way erroneous per the applicant's assertion when it was fixed / done in 2003 is not sustainable.
7. We may next take up the averment of the applicant that the benefit of the 27/11/2008 circular concerning the CSOLS has not been given as admissible for which purpose examination of the concerned circular is necessary which is accordingly extracted hereunder:
Circular dated 27/11/2008:
"F.No.1/1/2008-IC Government of India Ministry of Finance Department of Expenditure Implementation Cell New Delhi, dated the 27th November, 2008 CORRIGENDUM Subject: Revised pay scales for Official Language posts in various Page 13 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I subordinate offices of the Central Government.
In partial modification of this Department's O.M. of even number dated 24th November, 2008 (Copy enclosed), the table in para 1 of the said O.M. may be read as under:-
Designation Recommended pay Corresponding Pay
scale Band & Grade Pay
Pay Grade Pay
Band
Jr. Translator 6500-10500 PB-2 4200
Sr. Translator 7450-11500 PB-2 4600
Asstt. Director (OL) 8000-13500 PB-3 5400
Dy. Director (OL) 10000-13500 PB-3 6100
Jt. Director (OL) 12000-16500 PB-3 6600
Director (O1.) 14300-18300 PB-3 7600
2. All Ministries/Departments etc. are required to grant the revised pay structure as indicated in the table above, which has been approved for various posts in the CSOLS to similarly designated Official Language posts existing in their subordinate offices.
(Alok Saxena) Director (ICd)
----------------------------------
We may also take stock of the equivalent pay scales under the 5th CPC and the Pay Bands [PB} between the 5th CPC and the 6th CPC for purpose of examining the justifiability of grade pay of Rs. 4600/- claimed by the applicant. The relevant chart is extracted below being available in public domain. It is as under:
Corresponding Pay scales / pay band in various Pay Commissions 5th CPC 6th CPC Grade Pay scale Pay Band Pay scale Grade Pay S-9 5000-150-8000 PB-2 9300-34800 4200 S-10 5500-175-9000 PB-2 9300-34800 4200 S-11 6500-200-6900 PB-2 9300-34800 4200 S-12 6500-200-10500 PB-2 9300-34800 4200 S-13 7450-225-11500 PB-2 9300-34800 4600 Source: pensionersportal.gov.in › payscales_4567 Department of Pension & Pensioners' Welfare Page 14 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I 7.1 Now in light of above, we may examine the applicant's claims. The applicant is claiming inter alia per para 4.13 that per the 27/11/2008 CSOLS circular, his pay should have been fixed in pay scale of Rs. 7450-11500 as that is the next higher pay scale under the CSOLS circular. This averment is misconceived because as also asserted to by the respondents in their CA para 18-24, the pay scale of Rs. 7450-11500 is the pay scale of Sr. Translator and not Junior Translator which post the applicant continued to be on even after the grant of ACP Scheme in 2003 as he was never promoted to the post of Sr. Translator and the ACP Scheme does not, repeat does not envisage promotion at all. It only breathes upgradation of pay scale to the next available hierarchical level and the same was, as seen above, rightly granted to the applicant when his pay scale was fixed as Rs. 7950/- in the pay scale of Rs. 5500-9000 which was the next higher pay scale above the Rs.
5000-8000 which the applicant admittedly was in when he was working as Junior Translator.
7.2 Therefore, there cannot be a case that the applicant is to be given benefit of CSOLS circular to the extent that his pay should be fixed after the 27/11/2008 circular in the pay scale of Rs. 7450-11500 which would have enabled him the benefit of grant of pay scale of Rs. 9300-34800 with a PB of 4600/- under the 6th CPC. Therefore, this Page 15 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I point of the applicant also falls prey to his highly misconceived manner of understanding the circular of 27/11/2008 and the misleadingly erudite quoting of various Rules under the CCS (Revised Pay) Rules 2008 [Annexure-5] [Pay Rules in short hereinafter]. The very understanding by the applicant of the implication of Pay Rules-7, 8 and 13 (notified vide 29/8/2008 notification) is erroneous because - while the Pay Rules-7,8 and 13 concerned prescribe provisions regarding 'fixation of initial pay in the revised pay structure, and fixation of pay on promotion on or after 1.1.2006, 'revised pay' and 'basic pay' etc., what the pay is to be, is clearly the pay to which the applicant was upgraded to first and foremost when he got his ACP Scheme benefit and had the pay fixed in the pay scale of Rs. 5500-9000/- and given the conclusion aforesaid with respect to correct fixation of the pay scale under the ACP Scheme, the applicant could not have been given the benefit of pay scale of Sr. Translator even if it was the next available pay scale per the CSOLS circular because - the applicant was never promoted to the post of Sr. Translator but actually continued after grant of ACP Scheme benefit as Junior Translator only, as he was never promoted as Sr. Translator. Hence the misconceived benefit of CSOLS circular cannot be given to him. It is this which is asserted in paras 18-24 of the CA. For clarity the same are extracted hereunder:
"18. That in reply to the contents of para nos. 4.9 & 4.10 of Original Page 16 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I Application, it is submitted that the applicant was working as a Junior Hindi Translator since 30.8.1980. The applicant was granted Ist ACP vide memo dated 28.2.2003. Accordingly the applicant was placed in the pre-revised pay scale of Rs. 5500-9000/- w.e.f. 9.8.1999. The applicant continued to work in the said pay scale at the stage of Rs. 7950/- up to 31.12.2005. It is further submitted that on implementation of 6th CPC, he was placed at the stage of Rs. 14790/- (i.e. Rs. 7950 x 1.86= 14787/- rounded to Rs. 14790/) in the revised pay scale of Rs. 9300-34800/- (PB-2) as the following scales were merged in said PB. It is also submitted the fixation of basic pay at the stage of Rs. 14790/- is not in dispute.
(a) Rs. 5000-8000/
(b) Rs. 5500-9000/
(c) Rs. 6500-10500/ In so far as the applicable Grade pay is concerned as per Annexure nos. 6 & 7 of O.A., his Grade pay was fixed to Rs. 4200/- as per table below Part A. Hence the applicant is not in demand pay of Rs. 4600/-.
19. That in reply to the contents of para no. 4.12 of Original Application, it is submitted that the averments made in para under reply for grant of Grade pay of Rs 4600/- is not justified as the applicant was working as Junior Hindi Translator only. Even on grant of ACP, his status remained as Junior Hindi Translator. [EMPHASIS SUPPLIED]. As regards his pay for implementing pay of Official Language Staff, it is stated that the same is applicable to CSOLS (Central Secretariat Official Language Service), whereas the applicant was governed by GCS scale of pay respectively.
20. That in reply to the contents of para no. 4.13 of Original Application, it is submitted that the applicant was granted Grade Pay of Rs. 4200 w.e.f. 1.1.2006 & Pay of the applicant fixed from 1.1.2006 as under:
Pay from 1.1.2006 14790+ 4200 G. Pay
Pay from 1.7.2006 15360 + 4200 G. Pay
Pay from 1.7.2007 15950 +4200 G. Pay
Pay from 1.7.2008 16560 + 4200 G. Pay
Pay from 4.4.008 till his 16560 +4200 G. Pay
retirement
It is further submitted that the pension due & on superannuation on 31.12.2008 payable on 10380/- (50% of Rs. 20760 (16560 +4200).
24. That in reply to the contents of para nos. 4.18,4.19, 4.20, 4.21, 4.22, 4.23 and 4.24 of Original Application, it is submitted that the demand of the applicant for grant of Grade Pay of Rs. 4600/- is not justified as the applicant was working as Junior Hindi Translator only. It is submitted that even on grant of ACP, his status remained as Junior Hindi Translator. It is further submitted that the officiating arrangement of a Junior Hindi Translator to the post of AD (OL) was Page 17 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I not in accordance with statutory recruitment rules of AD (OL). Therefore, the applicant is entitled for pay in the pay scale of Rs. 9300-34800/- with Grade pay of Rs. 4200/- as admissible to Junior Hindi Translator."
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It is important to understand that on implementation of 6th CPC, applicant was placed at the stage of Rs. 14790/- (i.e. Rs. 7950 x 1.86= 14787/- rounded to Rs. 14790/) in the revised pay scale of Rs. 9300-34800/- (PB-2) as per the merger of the 5th CPC scales in the pay band and corresponding GP under the 6th CPC.
7.3 What further emerges from above analysis, is also that on the grant of upgradation under ACP, the pay of the applicant was fixed at Rs 7950/- in the pay scale of Rs. 5500-9000/- vide order 28/2/2003 w.e.f. 09/8/1999 which is the date when the ACP is to be granted per the circular with regards to ACP scheme and not under the pay scale of 7450-11500 as averred erroneously by the applicant per the reasons analysed earlier in this judgment. There cannot be any dispute that just before grant of ACP, the applicant was working in the pay scale of Rs. 5000-8000 which is the pay scale of Junior Translator prior to coming into effect of the ACP scheme. Thereupon, there can be no dispute on the fact that under the ACP scheme, the applicant was indeed granted the next higher pay scale under the 5th CPC hierarchy which is the pay scale of Rs. 5500-9000 as seen above in the pay scale Page 18 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I abstracts under the 5th CPC. Therefore there can be no dispute that when the ACP Scheme benefit was granted vide order of 2003, the pay fixed was as per provisions of the ACP Scheme and the consequent pay band available was that of Rs. 9300-34800 with GP of Rs. 4200/- and not GP of Rs. 4600/- and so accordingly the pay fixed under the 6th CPC read with the Pay Rules was correctly done qua the GP of Rs. 4200/- even in the light of the CSOLS circular.
7.4 The point lost by the applicant is that because the next pay scale per the 5th CPC is indeed Rs 5500-175-9000 (S-10 level: see extracts above) which is higher to the Rs Rs. 5000-150-8000 (S-9 level) and the corresponding pay scales in the 6th CPC were fixed as under:
Corresponding Pay scales / pay band in various Pay Commissions 5th CPC 6th CPC Grade Pay scale Pay Band Pay scale Grade Pay S-9 5000-150-8000 PB-2 9300-34800 4200 S-10 5500-175-9000 PB-2 9300-34800 4200 S-11 6500-200-6900 PB-2 9300-34800 4200 S-12 6500-200-10500 PB-2 9300-34800 4200 S-13 7450-225-11500 PB-2 9300-34800 4600 Source: pensionersportal.gov.in › payscales_4567 Department of Pension & Pensioners' Welfare Therefore, the applicant's assertion that grant of higher pay scale to him is also promotion to the higher scale which carries a designation of Senior Translator is highly Page 19 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I misplaced. This is a ploy to avail the benefit of the CSOLS circular of 27/11/2008 any which way. What tis important to understand is that while the Senior Translator per the circular of 27/11/2008 [Annexure- 5] is indeed having pay scale of Rs. 7450-11500 with a GP of Rs 4600/-, but the fact remains that the applicant vide order dated 28/2/2003 was never promoted to the pay of Rs 7450-11500 which is a S-13 level in the 5th CPC as seen clearly in the Table extracted above. It is this S-13 level which got upgraded to PB-2 with GP of Rs 4600/- under the 6th CPC. The S-10,11 and 12 levels of 5th CPC continued to have GP of Rs 4200/- only. Therefore, the applicant was never entitled to GP of Rs. 4600/-. 7.5 This point is missed by the applicant, mischievously, deliberately or by a poor understanding of the circulars, hence his harangue that he should be given the GP of 4600/- along with his misplaced assertion that he the ACP Scheme envisaged promotion itself ingrained in it when which was never the case. One wonders whether this misconstrued assertion of the applicant is a mischievous assertion or genuine belief motored by lack of understanding because it is not just him who got such ACP Scheme upgradations without actual promotions as ab inito envisaged as a purpose of the scheme to mitigate financial hardship even if actual promotion was not given Page 20 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I due to lack of vacancies despite passage of adequate time when the employees deserved promotion.
7.6 The point regarding the MACP scheme pay fixation as asserted by the applicant - is also in the similar vein misconceived, because like the ACP Scheme the MACP scheme was also for giving succor to the Government employees to enable overcoming financial hardship brought about due to delay in promotions caused by lack of vacancies in a regular manner. Para 6.2 of Annexure-1 of the MACP Scheme relied upon by the applicant is extracted herein below:
Para 6.2 of Annexure -1 of the MACP Scheme:
"6.2 ln 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 ]"t 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 win now be granted grade pay of Rs4600 in the pay band PB-2 consequent upon upgradation of the post of Asstt. Enggs. ln CPWD by 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."
As may be seen, the para 6.2 of Annexure-1 to the MACP Scheme placed reliance on by the applicant is of no help to Page 21 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I him because there was no up-gradation of the post of Junior Translator to Sr. Translator per se as per pre-condition stated in para 6.2 above and, that, the Sr. Translator continued to be a post of higher promotion as compared to the post of Junior Translator and so if one goes by the example of Jr Engineer cited in para 6.2 of Annexure -1 of the MACP scheme it cannot provide succor to the applicant simply because the post of Junior Translator was never upgraded to the level of Sr. Translator under the ACP/MACP schemes or the 6th CPC and the attendant Pay rules. It is for this reason that the respondents aver that the benefit of CSOLS being claimed by the applicant is misplaced.
7.7 This is also clear from the example cited which is of S-12 [under 5th CPC] level to whom the next available pay scale is S-13 [under 5th CPC] only thereby entitling the concerned to a GP of 4600/-, whereas in the case of the applicant, the next available pay scale was Rs. 5500-9000 of S-10 level [under 5th CPC] which is no-where near the S-13 level of Rs. 7450-11500 claimed by the applicant on a multiple misunderstanding of the provisions of the ACP Scheme, the CSOLS circular and now the erroneous application of the MACP scheme provision in para 6.2. This misconception is hardened when we see that the para 6.2 itself states in the last line that -
"However, from the date of implementation of the MACPS all the financial up-gradations under the Scheme should be Page 22 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I done strictly in accordance with the hierarchy of grade pays in pay bands as notified vide CCS (Revised Pay) Rules, 2008" [EMPHASIS SUPPLIED] 7.8 That is to say that all financial upgradations under the MACP were to be done within the hierarchy of the pay scales notified per the 6th CPC / 2008 Pay rules which had a continuity with the 5th CPC pay scales which did not permit that the applicant's pay be fixed even under the CSOLS in the higher promoted post of Sr. Translator when the applicant continued to be in the post and level of Junior Translator before this ad hoc promotion to the post of AD-OL. The fact remains that applicant was never promoted to the post of Sr. Translator in his service cadre and the Junior Translator post was never upgraded per se and there continued to be a Junior Translator with a next promotional post of Sr. Translator. Therefore, the benefit of para 6.2 cannot be given. More so, no nexus on this count can be drawn qua the CSOLS circular as the same was ab inito not applicable to the applicant as already analysed above heretofore in thread bare detail. This is further fortified when we read para-6 of the MACP scheme Annexure-1 which reads as under:
"6. In the case of employees granted financial upgradations under the ACPS till 01/01/2006, their revised pay will be fixed with reference to the pay scale granted to them under the ACPS."
7.9 What this implies in the case of the applicant is that as the applicant was granted benefit of the ACP Scheme in Page 23 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I 2003 the revised pay under the MACPS will be fixed with reference to the pay scale granted to him under the ACP scheme which was Rs. 5500-9000 and not Rs.
7450-11500 and so he was never entitled to a GP of 4600/- even per the MACPS and the 6th CPC whereby the Rs. 7450-11500 level of the 5th CPC got enhanced to a pay band of Rs. 9300-34800 with a GP of Rs. 4600/- while the pay enhancement for the 5th CPC pay scale of Rs. 5500-9000 was also a pay band of Rs. 9300-34800/- but with a GP of Rs. 4200 and not 4600/-. This is the key misunderstanding in the mind of the applicant and by this analysis heretofore, this just about drives the penultimate nail in the coffin of the arguments of the applicant on this claim with regards to GP of Rs. 4600/-. So it is held that the applicant was never entitled to GP of 4600/- under any of the provisions of the ACP scheme, the MACP scheme, the CSOLS circular and any related provision stated by him in the submissions in the O.A concerning the CCS (Revised Pay) Rules.
8. Therefore, the respondents are correct when they assert in para-18-24 of their Counter that the applicant's contention for grant of GP Rs 4600/- is unjustified as the applicant was still working on the post of Junior Translator and had not been promoted to the post of Senior Translator and that the ACP / MACP Schemes merely enabled higher financial up-gradation without Page 24 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I promotion. If promotion itself was to be granted by virtue of the ACP / MACP Schemes, where was the need to have the scheme itself in the first place because then the regular promotion steps would be taken up. It was only because the employees were stagnating without getting any promotion, that, the Government implemented the ACP / MACP Schemes to at least mitigate the financial part of the promotions not being able to be granted due to lack of adequate posts ab inito for promotion itself. This the applicant is misconstruing as if that the ACP / MACP Schemes granted promotion and so he was also to be given the GP of the higher post which he could not on kicking in of the 6th CPC as he was never promoted to the post of Sr. Translator. The applicant has also not been able to show any order by which he was promoted to the post of Sr. Translator ever. So the plea of grant of higher GP of Rs 4600/- which can only be given under the 6th CPC on due promotion and not due to financial upgradation under the ACP scheme. No specific citation is either given of any similarly placed employee being given benefit as claimed by the applicant which assertion is therefore a hot air balloon destined to be punctured with the needle of truth as evident in the facts analysed hereinabove. 8.1 Hence the applicant's pay was correctly fixed as stated in the Counter paras-18-24. The applicant is misconstruing the financial upgradation granted vide Page 25 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I order dated 28/2/2003 extracted above that it is as if that he has been promoted to the post of Senior Translator just because he has been given the financial upgradation and is erroneously garnering support from the CSOLS scheme and unrelated paras of the Pay Rules. That cannot be so and neither is it the intent of the schemes - ACP/MACP which are by now well settled in terms of their objectives and manner of implementation.
8.2 Therefore, the assertion of the applicant with regards to grant of his promotion to Sr Translator when he was given the ACP Scheme benefit and the consequential fixing of GP as Rs 4600/- instead of Rs 4200/- by the respondents is highly misplaced and is therefore, negatived. This also negatives his plea based on grant of pay commensurate to the CSOLS cadre vide 27/11/2008 circular relied upon by him. As the applicant never got promoted to the post of Sr. Translator, he never got eligible for grant of pay scale of Rs. 7450-11500 admissible to the level of Sr. Translator and continued as Jr. Translator when he got upgraded per the ACP Scheme and even under the MACP scheme right till he was promoted on ad hoc basis to the level of AD-OL. Thus the fixing of GP of Rs 4200/- by the respondents is upheld.
9. Now we may take up the point concerning applicant's assertion that as he retired in the last pay scale of AD-OL hence, his pay should be protected and his Pension should Page 26 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I be fixed per the last pay drawn and not as that of a Jr. Translator post held by him before his promotion. 9.1 Inorder to settle this point it will be relevant to examine the ad hoc promotion order of the applicant dated 25/07/2008. The same reads as under:
Annexure-4: order dated 25/7/2008:
"DEPARTMENT OF POSTS - INDIA O/o. Chief Postmaster General, Gujarat Circle, Ahmadabad - 380001.
Memo No. Staff/52-27/11 Dated at Ahmadabad the 25th July 2008.
The Chief Postmaster General, Gujarat Circle, Ahmadabad - 1 is pleased to issue following orders of promotion to officials in GCS Group-B Gazetted cadre on adhoc basis at Circle level arrangement against vacant post with immediate effect and until further orders.
1. Shri B B Shukla, presently working as Junior Hindi Translator in the office of Chief PMG, Ahmadabad is promoted t officiate in GCS Gr.B on adhoc basis and posted as ADPS (OL) in Circle Office, Ahmadabad - 1.
2. The promotion of the officer in GCS Gr.B cadre is purely on temporary and adhoc basis at Circle level arrangement for a period of not exceeding 180 days from the date of joining of the post or till date a regular incumbent becomes available or if Circle level adhoc arrangement is not approved and non-approval is conveyed whichever is earlier. It will not bestow upon him any claim for regular promotion, confirmation or seniority in the cadre to which he is promoted.
3. No leave will be granted to the officer until he joins, his new assignment.
4. Usual charge reports be forwarded to Staff Section and to all concerned.
(P.C. Bhatt) Asstt. Directr(Staff & Vig.) Gujarat Circle, Ahmedabad-380001..."Page 27 of 30
CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I Clearly the promotion order is ad hoc and is limited to 180 days from date of issue. It is not in dispute that the applicant retired on 31.12.2008 that is in less than the period of 180 days till which time the ad hoc promotion order had its life. Therefore, the applicant cannot argue that he retired with a regular promotion to the post of AD-OL and he should therefore, get the pension equivalent to that of an employee who retired at the AD-OL pay level. The fact not to be lost sight of is that the applicant continued on the post of Jr Translator and in between got his ACP upgradation which was without promotion to the level of Sr. Translator and later was promoted on an ad hoc basis to the level of AD-OL for 180 days only. Even the best case scenario of the applicant retiring as AD-OL cannot entitle him to seek pay level of AD-OL after the expiry of 180 days as per the stated promotion order. This is notwithstanding the assertion of the respondents that the promotion to the AD-OL level also was de hors the Rules for the purpose.
9.2 The applicant has not been able to challenge this point specifically with regards to promotion except to state that vide Communication dated 05/12/1989 [Annexure-1 of MP No.01675 of 2015] filed as affidavit by the applicant the CPMG had powers to grant ad-hoc promotion vide para 3(f) of the said Communication. The point still remains that the power to grant any such ad hoc promotion was Page 28 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I destined to die after 180 days and so that cannot be a basis for perpetual fixing of pension pay scale as that of a regularly promoted AD-OL which status of a regular promoted person the applicant never enjoyed as he was ab inito promoted only in ad hoc manner for a period not later than 180 days as stated in the ad hoc promotion order itself and as asserted in the copy of Note of file concerned placed on record by the respondents vide M.P. No. 0815/2016 dated 22/3/2016 / 07.04.2016 to which the supplementary rejoinder filed by the applicant is a mere restatement of the facts and averments stated in the earlier pleadings.
9.3 An earlier departmental note placed on record as part of an RTI reply by the applicant vide Rejoinder to CA having a suggestion favoring the applicant's claim in a part of the office note by an intermediate official is at best suggestive and not conclusive. More so because the applicant has not sought any relief with regards to his regular promotion to Sr. Translator or AD-OL per the recruitment rules. Therefore, the suggestion is not a conclusion reached by the competent authority even in the RTI note supplied and the same can be seen accordingly. Therefore, the plea of granting pay and GP of that of AD-OL as if the applicant was promoted in a regular manner per the recruitment rules also cited in the Note - also is in the Page 29 of 30 CAT, Lucknow Bench, O.A No. 508 of 2011 B.B. Shukla Vs. U.O.I final elaborate thread bare analysis quite unjustifiable and is therefore, negatived.
10. Thus, there is no merit left to be argued for the applicant with regards to his relief(s) and so the O.A being devoid of merit is liable to be dismissed and is dismissed.
11. No costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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