Central Administrative Tribunal - Mumbai
Rekha Suresh Joshi vs M/O Finance on 10 May, 2024
1 OA No.165/2017 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.165/2017 Dated this Friday, the 10" day of May, 2024 CORAM: MS. HARVINDER KAUR OBEROI, MEMBER (JUDICIAL) SHRI RAJINDER KASHYAP, MEMBER (ADMINISTRATIVE) Smt. Rekha w/o Suresh Joshi, Aged : 61 years, Assistant Commissioner Central Excise, R/o 408, Somwar Peth, Sitaram Park Garden View Society, Flat No.29, Pune 411 001. - Applicant (By Advocate Shri S.B.Deshmukh) Versus 1. The Union of India, Ministry of Finance, AD HA Department of Revenue, North Block, Central Board of Excise & Customs, New Delhi 110 001. 2. The Chief Commissioner, Customs and Central Excise & Service Tax, Ice House, Sasoon Road, Opp. Wadia College, Pune. 3. The Chief Commissioner, Central Excise, Mumbai |, Central! Excise Building, M.K.Road, Opp. Church Gate Station Mumbai --- 20. ; A. The Commissioner, Service Tax Audit, Pune, ICE House, Sasoon Road, Opp. Wadiya College, ~ Pune. - Respondents (By Advocate Shri N.K.Rajpurohit) Order reserved on 25.04.2024 Order pronounced on 10.05.2024 Page 1 of 14 2 OA No.165/2017 ORDER
Per :Harvinder Kaur Oberoi, Member {J) This is the second round of litigation. The applicant had earlier approached the Tribunal in OA No.711/2016. The said OA was disposed of by 18.10.2016 with a direction to the respondents to decide the representation dated 10.12.2013. In the implementation of the order passed by the Tribunal, the respondents have passed an order dated 08.12.2016 whereby the case of the applicant for stepping up of pay at par with her junior colleagues namely Shri C.8.Pol, Shri A.M.Bamb and Shri A.B.Mangrulkar has been rejected.
2. The facts in brief are that the applicant is a retired Assistant Commissioner, who retired from service on 30.11.2015. She was initially appointed as an Upper Division Clerk and joined her service on21.06.1976,. The applicant was promoted to Inspector, Central Excise and Customs on 19.05.1981. She was promoted further as Superintendent, Central Excise and Customs on 07.01.1999. She was granted 3 MACP with effect from 01.01.2006 as non-functional Grade Pay of Rs.5,400/- in PB-2 since she had completed four years of regular service as Superintendent. The applicant noticed that her junior Page 2 of 14 3 OA No.165/2017 colleagues in the seniority list of Superintendent were drawing higher pay than her. She submitted her representation on 10.12.2013, seeking stepping up of her pay at par with her junior colleagues. Since no decision was taken, she filed Original Application No.711/2016, decided on 27.10.2016. Respondents rejected her claim vide their order dated 18.10.2016 which is the subject matter of challenge in the present OA filed by the applicant seeking the following reliefs :-
"8(i) Call for the entire relevant record from the respondents for its kind perusal.
(ii) Quash and set aside the Order dated 08.12.20160f the Respondent marked as Annexure A-1.
8(iii) Direct the respondent authorities to step-up the pay of the applicant vis-a-vis her juniors as indicated in her representation in the light of the judgment enclosed as Annexure "A-1" collectively and Annexure A-4 along with arrears of pay and appropriate interest thereon on delayed payment.
8(iv) Any other order/direction may also be passed in favour of the applicant.
8(v) Award cost of the litigation to the applicant."
3. The respondents have filed their reply and submitted that the applicant had initially joined the department as a direct recruit Upper Divisional Clerk on 28.05.1976 and worked as under:
Page 3 of 14 4 OA No.165/2017From 28.05.1976 to 14.05.1981 as UDC.
From 15.05.1981 to 29.06.1998 on promotion as Inspector.
From 30.06.1998 till date on promotion as Superintendent.
Whereas Shri C.B.Pol, joined as a Direct Inspector much later than her and was also promoted as Superintendent later than her, had been drawing more pay than her in the grade of inspector and Superintendent, due to granting of ACP/MACP benefits to them on completion of 12/24/30 years. The seniority no. as of 01.04.2013 of her and Shri C.8.Pol were 415 & 418 respectively.
3.1. The respondents have stated that the applicant and Shri A.B.Mangrulkar were examined and differences in the respective careers of the two officers were noticed. The comparison chart between the applicant and Shri A.B.Mangrulkar is as under :-
Applicant Shri A.B.Mangrulkar
1) Joined as UDC on 21.06.1976
2) Promoted inspector nj Joined as Inspector (Direct recruit) 19.05.1981. on 03.08.1982.
3) Not entitled for 1* ACP as the | Granted 1% ACP on 26.06.2000 applicant already got one promotion as an inspector
4) Promoted as Superintendent on 07.01.1999 Promoted as Superintendent on 12.04.2001
5) Not granted 2™? ACP as 'she Granted 2™ ACP on 03.08.2006 Page 4 of 14 5 OA No.165/2017 already got 2 Promotions
6) Granted NFG as 3" MACP on 01.01.2006 Granted 3 MACP on 03.08.2012
7). Promoted as __ Assistant Commissioner on 24.10.2014 Promoted as Assistant Commissioner on 27.10.2014 3.2.
Thus, it was submitted that the applicant's claim for stepping up of pay was rejected as the case of the applicant is not comparative to Shri C.B.Pol and Shri A.B.Mangrulkar, as they were having different career. Respondents have relied upon DoPT OM dated 04.11.1993 which has laid down the criteria for stepping up of pay of seniors in a pay scale. The same criteria is as under :-
"a) Both the junior and senior officer should belong to the same cadre andthe posts in which they have been promoted or appointed should beidentical and in the same cadre;
b} The scales of pay of the lower and higher posts in which _ the junior and senior officer are entitled to draw pay should be identical;
c) The anomaly should be directly as a result of the application of FR 22- C. 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 or on any other account the above provisions will not be invoked to step up the pay senior officer."
Page 5 of 14 6 OA No.165/20173.3. Further, the counsel for the respondents have stated that the financial upgradation under the ACP/MACP scheme is applicable to all employees alike. This is applicable to promotees in the same manner as it is applicable to direct recruits, but because of different circumstances under which they happened to be a direct recruit to different posts e.g. senior Inspectors being direct recruits on the post of LDC and junior being direct recruit on the post of Inspector itself, the impact of ACP on their case takes place in a different manner. Therefore, the implication of ACP is bound to be different in their cases and this by itself is not a cause of stepping up of pay. Thus, the two cases are different and there is no occasion for equal treatment on the parameter of pay scale because the pay scales applicable to them are under two different and non-comparable circumstances.
3.4. it was further argued by the respondents that para 8 of the ACP Scheme provides that the financial upgradation shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shail 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. in the instant case, it is seen Page 6 of 14 7 OA No.165/2017 that the applicant had got two promotions i.e. from UDC to Inspector and from Inspector to Superintendent whereas Shri A.B.Mangrulkar joined the Department as a direct recruit Inspector on 03.08.1982 i.e. after promotion of the applicant as Inspector on 19.05.1981. Subsequently, the applicant was promoted as Superintendent on 07.01.1999 whereas Shri A.B.Mangrulkar promoted on 12.04.2001. Shri A.B.Mangrulkar was placed below the applicant in the seniority of the Superintendents at SI. No.485. On examination of the service books of the applicant and Shri A.B.Mangrulkar, it is seen that the applicant was promoted as Inspector on 19.05.1981, her pay was fixed @ Rs.425/- in the scale of 425-15-500-EB-15-560-20-700-EB-25-800, whereas Shri A.B.Mangrulkar joined as direct recruit Inspector on 03.08.1982 and his pay was fixed @ Rs.425/- in the scale of 425-15-500-EB-15-560-20-700- EB-25-800 (subsequently the pay scale has been revised to Rs.500-20- 700-EB-25-900 w.e.f. 01.01.1980). However, on perusal of details submitted by the applicant vide her letter dated 29.04.2015, it is seen that the pay of both the officers in the grade of Superintendent as on 01.01.2006 was the same i.e. Rs.18,350/- + Rs.5,400/- (Grade pay) in PB-
Il. It is further seen from the details submitted by the applicant that the Page 7 of 14 8 OA No.165/2017 pay of Shri A.B.Mangrulkar was increased due to grant of 27 ACP on 03.08.2006 and the pay was fixed @ Rs.19,810/- + 5,400/- in PB-Il! and 3 MACP on 03.08.2012 and the pay was fixed @ Rs.25,640 + 6,600/- (grade pay). [However, the grade pay of Shri A.B.Mangrulkar was reduced to Rs.5,400/- w.e.f.03.08.2012]. However, the applicant was not entitled for 2™ ACP due to the fact that she already received two promotions (i.e. promotion from UDC to Inspector and from Inspector to Superintendent). Therefore, no 2"° ACP was granted to the applicant. Further, the applicant granted one NFG as 3 MACP on 01.01.2006 (as per 6" CPC) as per fixation order dated 23.03.2010 issued vide F.No.ill/Acctts/24-9/Gr.Pay/09.
3.5. Broadly, it was submitted that the junior to the applicant Shri C.B.Pol and Shri A.B.Mangrulkar had received certain benefit under the ACP Scheme and the benefit under the ACP Scheme is purely personal to the employee which is given on account of stagnation. Another point of difference between the applicant and the juniors were that their entry into service was in different stages. The applicant had joined service as UDC whereas the juniors have joined as Inspectors. As such, the Page 8 of 14 9 OA No.165/2017 respondents decided that no additional financial upgradation for senior employee i.e. the applicant can be granted.
4, Heard both the learned counsels for the respective parties and perused their pleadings available on record.
5. F.R. 22 provides for stepping up of pay and the Government of India, Ministry of Finance issued an Official Memorandum dated 04.02.1966 for stepping up of pay of juniors. The relevant extract of F.R. 22 and the order issued by the Government of India is reproduced 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 ¢ Page 9 of 14 10 OA No.165/2017 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 FR 22-C. 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 in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
[G.1., M.F., O.M., No.F.2(78)-E.1M(A)/66, dated the 4th February, 1966.]"
The Office Memorandum dated 04.11.1993 provides for stepping up of pay in similar circumstances.Page 10 of 14 11 OA No.165/2017
6. Counsel for the respondents have relied upon the decision of the Coordinate Bench passed by this Mumbai bench of the Tribunal in OA No.677 of 2013 & others in the case of Naval Employees' Union and others Vs. Union of India and others decided on 11.04.2023, wherein the Tribunal in para 4.4 and 4.5 has held as under :
"4.4. However, it has to be noted that in the above decisions of Chandigarh Bench, Principal Bench and Supreme Court, the view taken was as a general rule that senior employees should not get less pay than their juniors. But the provisions under FR- 22, and CCS (Revised Pay) Rules, 2008 did not come up for consideration which are the basic rules governing fixation of pay of Central Government employees. The plea of the applicants in these OAs is that under ACP Scheme there was no prohibition for stepping up of pay of seniors to bring it on par with juniors. However, for stepping up of pay, the relevant provisions under FR-22(21) dealing for removing anomaly by stepping up of pay of senior on promotion drawing less pay than his junior, and as mentioned in Para 4.1 above, the conditions mentioned under FR-22(21) on the subject have been mentioned. These conditions of FR-22(21) were also provided under CCS (Revised Pay} Rules, 2008. FR-22(26) deals with instances which do not constitute an anomaly for stepping up of pay with reference to juniors and the conditions mentioned there.
4.5. In the case of the present applicants, they did not fulfil the conditions provided under FR-22(21) and 22(26). The applicants and their juniors were not in the same cadre when they joined the service and the posts in which they were promoted were also not identical. The scale of pay of the lower and higher posts in which the applicants and their juniors were Page 11 of 14 12 OA No.165/2017 entitled to draw pay were not identical. in fact in their cases drawal of higher pay by juniors to the applicants was because of grant of benefit under ACP Scheme for which the applicants were not eligible because of already having received two or more promotions. Therefore, the higher pay drawn by their juniors on account of grant of ACP benefit did not constitute an anomaly as provided under FR- 22(26) for stepping up of their pay as provided under FR- 22(1) as well as in CCS(Revised Pay) Rules, 2008 and also under Clause-8 of the ACP Scheme, Therefore, rejection of the cases of the applicants by the respondents through letter dated 08.03.2013 addressed to General Secretary, Naval Employees Union, Mumbai by Staff Officer (Civilian Personnel) tl for Flag Officer Commanding-in-
Chief, Head-quarters, Western Naval Command, Mumbai was justified and correct."
7. The Tribunal has also relied upon the decision of the Supreme Court in the case of Union of India and others Vs. Sushil Kumar Paul & Others, JT 1998 (3) SC 580 which is observed that -
"it is held by the Tribunal that the respondents and Mishra belonged to the same cadre and their pay scales were also the same in the lower posts and, therefore, they are entitled to the benefit of stepping up. But what the Tribunal has failed to take into consideration is the Circular dated 04.11.1993 issued by the Government of India, Department of Personnel & Training which clearly provides that the anomaly for granting benefit of stepping up of pay should be directly as a result of the application of fundamental rule 22-C€ and that if a junior officer draws a higher pay in lower post either because of advance increments or on any other account then the provision of stepping up would not apply in such a_ case. Moreover, in paragraph 2(c) of the circular it is, further provided that if a senior joins the higher post later than the Page 12 of 14 13 OA No.165/2017 junior, for whatever reason, whereby he draws less pay than the junior, in such a case senior cannot claim stepping up of pay at par with the junior."
8. In contrast counsel for the applicant has relied upon the decision of the High Court of Karnataka at Bengaluru in Writ Petition No.33038/2016 decided on 31.07.2021 in the case of Sri C.R.Madhava Murthy & Another Vs. Union of India & Others which is confirmed by the Hon'ble Supreme Court in Civil Appeal Nos.2087-2088 of 2022 decided on 06.04.2022 in the case of Union of india & Others Vs. Shri C.R.Madhava Murthy & Another.
9. We find that in the decision Sri C.R.Madhava Murthy & Another Vs. Union of India & Others, the circular dated 04.11.1993 has skipped the attention of the Hon'ble High Court and has not been discussed, This circular was noted and discussed by the Apex court in Union of India Vs Sushil Kumar Paul (supra). The Tribunal had rejected the OA 677/2013 & Others relying upon Sushil Kumar Paul (supra). In the present case, . respondents while rejecting the representation have also relied upon a circular dated 04.11.1993. Judicial discipline and propriety demand that we follow the decision of the co-ordinate bench prior in time. Even <= Page 13 of 14 14 OA No.165/2017 otherwise we find the present case is fully covered by the decision of the Tribunal in OA 677/2013 & others decided on 11.04.2024, in the case of Naval Employees Union & Others Vs. Union of India & Others (supra). Hence given the FR 22 and the circular dated 04.11.1993 and ACP/MACP scheme, we do not find any reason to disagree with the decision of the Coordinate Bench of this Tribunal passed in OA No.677 of 2013 & others in the case of Naval Employees' Union and othersVs.
Union of India and others.
10. In view of the above discussions, the OA is dismissed. No costs.
" .
(RAHNDER KASHYAP) (HARVINDER KAUR OBERO!) MEMBER (A) MEMBER (J) kmg* Me yA AN Page 14 of 14