Central Administrative Tribunal - Delhi
Mohd Nasir vs Govt. Of Nctd on 2 August, 2023
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Item No. 76 O.A. No. 2720/2018
Court No. III
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2720/2018
This the 2nd day of August, 2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Mohd. Nasir, Aged 52 years, Group-C
S/o Sh. Mohd. Matloob,
Working as Foreman Instructor(Elect.)
Kasturba Institute of Technology, Delhi.
R/o Flat No. F-2, Block C-1/91,
DLF, Dilshad Extension-II, Sahibabad (Ghaziabad).
2. Raj Kumar, Aged 53 years,
S/o Sh. Panna Lal.
Working as Foreman Instructor(Elect.)
Ambedkar Institute of Technology, Delhi.
R/o 42, ITI Staff Quarters, Sunlight Colony,
New Delhi-14.
...Applicant
(Through Advocate: Mr. Yogesh Sharma)
Versus
1. Govt. of NCT of Delhi
Through The Chief Secretary,
Delhi Secretariat, Players Building.
I.P. Estate, New Delhi-2
2. The Director,
(Technical Education),
Department of Training & Technical Education,
Govt. of NCT of Delhi, Muni Maya Ram Marg,
Pitampura, Delhi-88
3. The Principal.
Kasturba Institute of Technology,
Govt. of NCT of Delhi,
Muni Maya Ram Marg, Pitampura, Delhi-88
4. The Principal.
Ambadkar Institute of Technology,
Govt. of NCT of Delhi, Shakarpur, Delhi.
...Respondents
(Through Advocate: Mr. Amit Yadav)
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Item No. 76 O.A. No. 2720/2018
Court No. III
ORDER (Oral)
Hon'ble Mr. Anand Mathur, Member (A) The present O.A. has been filed seeking the following reliefs:-
"8. (i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashed the impugned order dated 10.7.2018 (Annex.A/1), declaring to the effect that the inaction of the respondents not considering the cases of the applicants for granting financial upgradation in the revised scale of Rs. 8000-13500 w.e.f. 13.1.2004 as first financial upgradation and second financial upgradation on completion of 20 years of service under MACP scheme by way of extending the benefit of judgment dated 12.2.2016 in OA No.1842/2013 passed by the Hon'ble Tribunal, Principal Bench New Delhi, which is totally illegal, arbitrary against the rules and discriminatory in the eyes of law and consequently, pass an order directing the respondents to consider and to grant the revised scale of Rs. 8000-13500 w.e.f. 13.1.2004 as first financial upgradation and Grade Pay of Rs. 6600/- as a second financial upgradation on completion of 20 years of service under MACP scheme with all the consequential benefits, including difference of pay and allowances with arrears and interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants."
2. The matter was argued at length by learned counsel for both the parties.
3. Learned counsel for the applicants states as under:-
(i) The instant case is squarely covered by an order dated 24.02.2016 of a co-ordinate Bench of this Tribunal passed in O.A. No. 1842/2013, inasmuch as the applicants are identically placed and even senior to the applicant in the aforesaid O.A. Therefore, they may be extended the same 3 Item No. 76 O.A. No. 2720/2018 Court No. III benefit that has been extended to their junior Shri Manjeet Singh.
(ii) Tribunal's order (supra) has also been implemented by the respondents vide order dated 09.05.2017 (Annexure-A4).
It clearly brings out the seniority position, i.e., Shri Manjeet Singh is at sl. no. 4, whereas the applicants in the present O.A. Mohd. Nasir and Raj Kumar, are at sl. no. 1 and 2 respectively, as is evident from order dated 09.05.2008 (Annexure-A/5). Therefore, the impugned order rejecting the claim of the applicants is bad in law inasmuch as their junior has been extended the benefit but the applicants have been denied the same.
4. Per contra, learned counsel for the respondents vehemently opposes the stand taken by the learned counsel for the applicants and states as under:-
(i) He places reliance on sub-paras (a), (b) and (c) of para 1 of his counter reply, which read as under:-
"a) The petitioners were granted their first financial up gradation in the pay scale of Rs 6500-10500 (to the promotional post of Maintenance Engineer) w.e.f. 12.01.2002 and on 22.01.2002 respectively under ACP Scheme after completion of 12 years of service
b) The applicants were already granted their 2nd promotion to the post of Foreman Instructor in the Pay Scale of Rs. 8000-
13500 on 09/05/2008 as per DOP&T norms.
c) The post of Lab. Technician was the feeder post of Maintenance Engineer (Pay scale Rs. 6500-10500 (Pre 4 Item No. 76 O.A. No. 2720/2018 Court No. III revised)) and vides notification dated 13/01/2004, the post of Lab Technician was incorporated as a feeder post of Foreman Instructor (Rs 8000-13500). Thereafter, the post of Lab Technician has multiple channels of promotions on 13/01/2004 i.e. Maintenance Engineer (6500-10500) and Foreman Instructor (8000-13500) and as per DoPT norms, if a post have multiple channel of promotion than the financial upgradation shall be allowed with reference to the lowest promotional Grade."
(ii) He further places reliance on DoP&T O.M. No. 35034/1/97-Estt(D)(VolIV) dated 18.07.2001, point Nos. 41 and 42, whereof read as under:-
"41. The benefit of ACP Scheme is to be allowed as per the hierarchy existing as on the date the employees become eligible for financial upgradation under ACPs Cadres/hierarchical structures are never static and are always subject to review based on recommendations of Pay Commissions/Expert Committees or otherwise and it is not possible to review the entitlements under ACPS already earned every time a cadre is reviewed. ACPS is only a temporary solution to provide relief to stagnating employees and the lasting solution for stagnation lies in review of cadre structures, as regular promotions will be earned in such restructured grades. All the employees will benefit from such cadre restructuring.
42. Provisions in the existing Recruitment Rules in various organizations providing for multiple channels for promotion are not consistent with the guidelines on framing of the Recruitment Rules. All such Rules should be reviewed immediately so as to provide only a single channel of promotion. However, till such a review is undertaken, the first financial upgradation in such cases shall be allowed with reference to the lowest promotional Grade which is Grade 'B' if he does not earn financial upgradation will be as per the hierarchy of Grade 'B'. However, if he has already earned one regular promotion, then his second financial upgradation shall be as per the hierarchy of the Grade to which he has been promoted."
(iii) Reliance is also placed on a judgment of the Hon'ble Supreme Court in Chandigarh Administration and 5 Item No. 76 O.A. No. 2720/2018 Court No. III another vs. Surjit Singh & Ors. (Civil Appeal No. 1976 of 2003), where it has been held as under:-
"We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal it has a positive concept."
(iv) He also places reliance on yet another judgment of the Hon'ble Supreme Court in Chandigarh Administration and another vs Jagjit Singh & another ((1995) 1 SCC
745), which stipulated as under:-
"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the applicants on the plea of discrimination...."
(v) He further relied the decision of the Hon'ble High Court of Allahabad in Smt. Geeta Dixit & ors V/S The Secy Govt.
of UP and Ors (Writ(A) 45262/2015), which reads as under:-
"24._____ no directive can be issued in violation to the Rules merely because some incumbents have been offered appointment, under the cover of the orders passed by this court will nor improve the case of the petitioners as two wrong will not make a thing right, and equality in illegality, is totally against the rule of fair play and demand of petitioners, if, accepted would be clearly violative of Articles 14 and 21 of Constitution of India."6 Item No. 76 O.A. No. 2720/2018
Court No. III
5. On hearing the contentions of learned counsel for both the parties as well as perusal of the material available on record, we find that there is substance in the arguments put forth by learned counsel for the applicants, inasmuch as the facts of the case of the applicant are identical to those in O.A. No. 1842/2013 (supra). For the sake of convenience, the order passed in O.A. No. 1842/2013 is reproduced hereinbelow:-
"The applicant was appointed as Lab Technician (Electronics) on 14.05.1990 in the office of the respondents. The post of Lab Technician was initially in the pay scale of Rs.1400- 2600 (4th Pay Commission), which was replaced by the pay scale of Rs.5000-8000 (5th Pay Commission). He was kept on probation for two years and confirmed on the said post on 14.05.1992. At that point of time, the post of Lab Technician was not mentioned as feeder post to the promotional post of Foreman Instructor in the Recruitment Rules (RRs) of 2.05.1991. Vide notification dated 13.01.2004, the post of Lab Technician (Electronics) was incorporated in the feeder line to the promotional post of Foreman Instructor (pay scale Rs.8000- 13500). Prior to this, the promotional post for Lab Technician was Maintenance Engineer (pay scale Rs.6500- 10500). The applicant was promoted to the post of Foreman Instructor on 9.05.2008.
2. The applicant was granted the benefit of first financial upgradation under the Assured Career Progression Scheme (ACPS) with effect from 14.05.2002 in the pay scale of Rs.6500- 10500 i.e. after completion of 12 years service. This was because under the ACPS, upgradation was in the scale attached to the promotional post in the hierarchy. The respondents considered the next promotional post as Maintenance Engineer and hence upgradation was to the scale of Rs.6500-10500 and it is here where the controversy lies.
3. According to the applicant, since the post of Lab Technician was incorporated in the feeder line of promotion to the post of Foreman Instructor with effect from 13.01.2004, from that date his pay scale should have been Rs.8000-13500 under 7 Item No. 76 O.A. No. 2720/2018 Court No. III first ACP till he got his regular promotion on 9.05.2008. This is so because from 13.01.2004, the next post in the promotional hierarchy for Lab Technician was Foreman Instructor in the pay scale of Rs.8000-13500.
4. The learned counsel for the applicant further argued that since the applicant basically got one upgradation/ promotion from Lab Technician to Foreman Instructor, he is entitled also to first and second financial upgradations under Modified Assured Career Progression Scheme (MACPS) with effect from 14.05.2000 and 14.05.2010 respectively along with all consequential benefits on the ground that he completes 10 years on 14.05.2000 and 20 years of service on 14.05.2010.
5. Learned counsel for the respondents states that the first upgradation granted to the applicant under the ACPS with effect from 14.05.2002 in the pay scale of Rs.6500-10500 (pre revised) was correct as the post of Lab Technician was the feeder channel for promotion to the post of Maintenance Engineer before addition of the post of Lab Technician in the feeder channel for promotion to the post of Foreman Instructor in 2004. It is further argued that the applicant has now been granted second upgradation by promotion to the post of Foreman Instructor with effect from 9.05.2008.
6. In short, the respondents case is that since the applicant has received first upgradation under ACP and second upgradation as a result of the regular promotion, he is not entitled to any other upgradation and only on completion of 30 years of service on 14.05.2020, can he be considered for third upgradation under MACPS.
7. We have heard the learned counsel for the parties and gone through the pleadings available on record.
8. The ACP guidelines do provide that upgradation under ACP will be in the pay scale attached to the next promotional post in the hierarchy. Therefore, before the Lab Technicians were brought in as feeder cadre for the post of Foreman Instructor, the first upgradation granted by the respondents in the scale of Maintenance Engineer was valid but once on 13.01.2004, the post of Lab Technician was brought in as feeder cadre for Foreman Instructor, the applicant became entitled for the pay scale of Rs.8000-13500, being the scale of the post in the next promotional post in the hierarchy. Therefore, this prayer of the applicant is allowed and the respondents are directed to refix the salary, Grade Pay and allowances of the applicant with effect from 13.01.2004 in the pay scale of Rs.8000-13500.
9. Regarding the applicant's claim of first and second upgradation under MACPS with effect from 14.05.2000 and 8 Item No. 76 O.A. No. 2720/2018 Court No. III 14.05.2010, we are of the opinion that since effectively (after upgradation to the pay scale of Rs.8000-13500 with effect from 13.01.2004), the applicant has received only one upgradation/ promotion, he is entitled to the second upgradation under MACPS with effect from 14.05.2000 as per rules in the next hierarchy of Grade Pay and not on the hierarchy of the promotional post. The respondents are directed to grant him second upgradation accordingly and refix his pay. As regards third upgradation, the applicant will be entitled to that only after completion of 30 years of service i.e. in 2020.
10. As regards arrears, the applicant will be entitled to the same from the date of filing of the present OA i.e. 27.05.2013 only. These directions shall be implemented within a period of two months from the receipt of a certified copy of this order. There will be no order as to costs."
6. In the conspectus of the facts and circumstances brought out above, we are of the considered opinion that the facts of the present case are identical to the facts of O.A. No. 1842/2013 (supra) and, therefore, we would not like to take a divergent view.
7. For parity of reasons, the present O.A. stands disposed of in terms of the Tribunals order dated 24.02.2016 passed in O.A. No. 1842/2013 (supra). The respondents are directed to extend the same benefit to the applicants herein as has been extended to the applicant in O.A. No. 1842/2013.
7.1 As regards arrears, the applicant will be entitled to the same from the date of filing of the present OA i.e. 18.07.2018 only.
9 Item No. 76 O.A. No. 2720/2018Court No. III 7.2. The exercise, as ordered above, shall be completed by the respondents within a period of three months from the date of receipt of certified copy of this order.
8. No order as to costs.
(Manish Garg) (Anand Mathur)
Member (J) Member (A)
/SG/