Central Administrative Tribunal - Delhi
Rajendra Prasad Agarwal vs Defence on 21 January, 2025
1
Item No.07 C- V O.A. No.3453/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.3453/2022
This the 21st day of January, 2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Rajendra Prasad Agarwal, Aged- 54 Years,
S/o Sh. B.P. Agarwal, Working as Electrician
(P) in Equipment Depot Workshop, EME,
Agra Resident of 15, Megh Bihar, by pass
Road, Agra-282007
2. Shiv Kumar, Aged- 57 Years, S/o Sh. G.R.
Sharma, Working as Telecom Mechanic in
Equipment Depot Workshop, EME, Agra
Resident of E-28, Ram Raghu Exotica, Khew,
Shenshabad Road, Agra. 282001
...Applicants
(By Advocate : Mr. Yogesh Sharma)
Versus
1. Union of Indian through the Secretary,
Ministry of Defence, Govt, of India, South
Block, New Delhi. 110011
2. The Director General of EME, Directorate
General of EME/EME Civ. Master General of
Sustenance Branch, Integrated HQ of MOD
(Army) DHQ, PO New Delhi-110010.
3. The Commanding Officer, Equipment Depot
Workshop, EME, Pin-900322 c/o 56 APO
4. The Secretary, Department of Personnel &
Training, Govt, of India, North Block, New
Delhi.110001
...Respondents
(By Advocate : Mr. Ashish Rai)
2
Item No.07 C- V O.A. No.3453/2022
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants seek the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 16.8.2021, (Annex.A/1), order dated 28.9.2022 (Annex.A/2) and any other internal order/decision on the basis of which the impugned order has been passed declaring to the effect that the applicants are entitled for 3rd financial upgradation on completion of 30th years service in Grade Pay of Rs 4800/- with all consequential benefits.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to restore the pay of the applicants and also pass an order directing the respondents to refund the recovered amount with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."
2. At the outset, learned counsel for the applicants submits that the impugned order dated 16.08.2021 is liable to be quashed and set aside, as it has already been superseded by a decision of a coordinate bench of this Tribunal. Specifically, in OA No. 3734/2022 titled Bhagat Singh Bisht & anr. v. Union of India & Ors., this Tribunal vide order dated 07.08.2024, authored by Hon'ble Mr. Manish Garg (J), has already set aside an identical order, rendering the impugned 3 Item No.07 C- V O.A. No.3453/2022 order in the present case null and void. He contends that since the issue in the present case is identical to the one decided in OA No. 3734/2022, the ratio decidendi of the said order is squarely applicable to the present case. Therefore, the impugned order dated 16.08.2021 cannot be sustained and is liable to be quashed and set aside.
3. For sake of clarity in understanding the facts, circumstances as also the issues, we are reproducing the order dated 07.08.2024 in OA No. 3734/2022 below:-
"The applicants in the present OA seek following reliefs:-
"i. That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 16.08.2021, (Annex.A/1), order dated 8.11.2022 (colly) (Annex.A/2) and any other internal order/decision on the basis of which the impugned order has been passed declaring to the effect that the applicants are entitled for 3rd financial upgradation on completion of 30th years service in Grade Pay of Rs.4800/- with all consequential benefits.
ii. That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to restore the pay of the applicants, if already reduce and also pass an order directing the respondents to refund the recovered amount with interest if any.
iii. Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."4
Item No.07 C- V O.A. No.3453/2022
2. Learned counsel for the applicants submits that the applicants who were initially appointed to the post of Telecom Mechanic (Highly Skilled) in the years 1988 & 1989, were granted 1st financial upgradation under the ACP Scheme in the scale of Rs.5000-8000/- in Grade Pay of Rs.4200/- in the promotional post of Chargeman and the 2nd financial upgradation under the MACP Scheme in the Grade Pay of Rs.4600/- was granted on completion of 20 years of service. Thereafter, the 3rd financial upgradation under MACP Scheme was granted to them on completion of 30 years of service, in the Grade Pay of Rs.4800/-. However, the respondents without giving any reason/justification decided to withdraw the 3rd financial upgradation vide impugned orders dated 16.08.2021 (Annexure A1) & 08.11.2022 (Annexure A2). Hence, the present OA.
3. Learned counsel for the applicants draws attention to Clause 2 of the impugned order dated 16.08.2021, which reads as under:-
"2. Paras 2 & 3 of Mod/D (Civ-1) ID No u/r at Para1(c) above are reproduced below:
'2' DoP&T has reiterated their comments vide ID Note No 106253/CR/2012 dated 08 Oct 2013 that-
(i) As per provision of MACP scheme introduced We.f 01 Sep 2008 financial upgradation is admissible in the hierarchy of grade pay and placement of highly skilled workers (GP Rs2400/-) as master Craftsman (GP Rs4200/-) Is very much considered as ladder in the hierarchy of grade pays ignoring the placement of highly skilled as MCM(Non Functional) Will be deviation the provisions of MACPS issued wide OM dated 19 May 2009.
Hence placement of Higher skilled workers as master Craftsman prior to 01 Jan 2006 would be offset against one upgradation for the purpose of grant of MACP benefits.
(ii) MCM being the feeder post to Chargeman and since both these posts have identical pay band and Grade Pay financial upgradation under MACPS cannot be to a Grade Pay which is more 5 Item No.07 C- V O.A. No.3453/2022 than what is admissible in regular promotion.
Col Adm Elec Officer Accts Officer OIC Legal Cell CASO ALWC (C)
(iii) Financial upgradation earned to the non-functional post of MCM to be taken into account as 2nd financial upgradation in so far as MACPS is concerned."
Learned counsel submits that the applicants were correctly granted their 3rd financial upgradation on completion of their 30 years of service as well as 10 years service in the same Grade Pay of Rs.4600/- as the applicants were not granted three promotions at all and on the basis of Ministry of Defence own decision dated 06.02.2014 and now withdrawing the 3rd financial upgradation and reducing their pay from Grade Pay of Rs.4800/- to Grade pay of Rs.4600/- is arbitrary and against the MACP Scheme
4. Learned counsel for the applicants further highlights that the respondents are wrongly relying upon the restructuring qua the grade pay granted to Master Craftsman (MCM), which has never been the case of the applicants herein and the applicants were correctly granted their financial upgradation by applying para 5 of the MACP Scheme. It is also highlighted that the pay scale of the MCM itself is the same pay scale as drawn by the applicants herein in the first financial upgradation and the post of MCM was not in the promotional hierarchy prior to 01.01.2006 and even after 01.01.2006 also till date recruitment rules have not been amended the MCM is not the feeder post to the post of Chargeman and moreover, the grade pay of both the post MCM and Chargeman are same in the same pay band.
5. Learned counsel for the applicants further draws attention to DoP&T OM dated 19.05.2009 wherein the clauses of Modified Assured Career 6 Item No.07 C- V O.A. No.3453/2022 Progression Scheme (MACPS) are annexed. The relevant portion of the same reads as under:-
"5. Promotions earned/upgradation~ granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS."
6. Opposing the grant of relief, the learned counsel for the respondents relies upon the following averments made in the counter affidavit;
"Para 4.5 That the contents of this para, as stated, are wrong and hence denied. It is hereby submitted that the applicants have been granted irregular Grade Pay of Rs 4600/-. The applicants were granted 2nd MACP on 28 Apr 2010/12 Apr 2011 respectively. During this period, the hierarchy of grade structure introduced vide Gol letter dated 14 Jun 2010 (with retrospective effect from 01 Jan 2006) which is produced at ANNEXURE R1 is applicable. The post of Master Craftsman was part of the hierarchy and the placement of Highly Skilled Grade 1 in the grade of Master Craftsman was to be treated as promotion. MACP scheme is introduced from 01 Sep 2008 and three financial upgradation to be granted in the hierarchy as per restructuring of Cadre of Artisan Staff in Defence Establishments in modification of recommendations of 6th CPC was introduced vide Gol, MoD letter No. 11(5)/2009-D(Civ-1) dated 14 Jun 2010. Moreover, as per the latest orders of Ministry of Defence, O.M. No No11(5)/2009-D(Civ.I) dated 17 Feb 2021 and Dte Gen of EME (Civ) letter No B/15198/МАСР/ EMECiv (C-4) dated 16 Aug 2021, which are produced at ANNEXURE R2 & R3 it has been clarified that, "MCM being the feeder post to Chargemen and since both these posts have identical pay band and Grade pay, financial upgradation under MACPs 7 Item No.07 C- V O.A. No.3453/2022 cannot be a Grade Pay which is more than what is admissible in regular promotion".
It is further submitted that MoD vide their letter ID No.11(5)/2009-D(Civ.I) dated 23 Jul 2012 which is produced at ANNEXURE R4 have clearly clarified that, ACP/MACP Schemes have been introduced by the Govt in order to mitigate stagnation faced by employees due to lack of promotional avenues. Financial up-gradation under ACP/MACP Scheme cannot be more than what can be allowed to an employee on his normal promotion. However, on virtue of granting grade pay of Rs. 4600/- based on MoD letter ID No.11(5)/2009. D(Civ.I) dated 19 Oct 2016, produced at ANNEXURE R-5 leads to grant of financial upgradation under MACP to a Grade Pay which is more than what is admissible in regular promotion with Grade Pay of Rs 4200/-, thus violating the norms as specified in MoD letter No 11(5)/2009- D(Civ.I) dated 17 Feb 2021. Therefore, the applicants are not eligible for the grade pay of Rs. 4600/- wef 28 Apr 2010/12 Apr 2011 respectively. However, as per MoD letter dated 06.07.2016, produced at ANNEXURE R-7, the applicants are eligible for one increment in the grade pay of Rs 4200/- as 2nd MACP wef 28 Apr 2010/12 Apr 2011 respectively.
Para 4.10 That the contents of this para, as stated, are wrong and hence denied in view of the submission made herein above. It is hereby submitted that the applicants were granted irregular grade pay of Rs 4600/- & Rs 4800/-. It is once again reiterated that, as per the latest orders of Ministry of Defence O.M No 11(5)/2009-D (Civ.I) dated 17 Feb 2021 and Dte Gen of EME (Civ) letter No B/15198/MACP/EME Civ (C4) dated 16 Aug 2021 and further clarified vide MoD letter No 11(05)/2009/D (Civ-1) dated 04.08.2023, produced as ANNEXURE R-7, it is clarified that, "MCM being the feeder post to Chargemen and since both these posts have identical pay band and Grade pay, financial upgradation under MACPs 8 Item No.07 C- V O.A. No.3453/2022 cannot be a Grade Pay which is more than what is admissible in regular promotion". MoD vide their letter ID No.11(5)/2009- D(Civ.I) dated 23 Jul 2012 have clarified that, ACP/MACP Schemes have been introduced by the Govt. in order to mitigate stagnation faced by employees due to lack of promotional avenues. Financial up- gradation under ACP/MACP Scheme cannot be more than what can be allowed to an employee on his normal promotion. However, on virtue of granting the grade pay Rs 4600/- to the applicants leads to grant of financial upgradation under MACP to a Grade Pay which is more than what is admissible in regular promotion, thus violating the norms as specified in MoD letter No 11(5)/2009-D(Civ.I) dated 17 Feb 2021."
7. Learned counsel for the respondents further draws attention to clarification dated 17.02.2021 (Annexure R2) issued by the Ministry of Defence-D(Civ-I). The relevant portion of the same reads as under:-
"Subject - 3rd MACP on completion of 30 years of service by such MCM (Master Craftsman) who were in the pay scale of Rs. 4500 7000/- on or before 31.12.2005-clarification regarding The proposal for grant of 3rd MACP on completion of 30 years of regular service by such MCM (Master Craftsman) who were in the pay scale of Rs.4500 7000/- on or before 31.12.2005 was sent to DoP&T for their consideration. 2 DoP&T has reiterated their comments vide ID Note No 106253/CR/2012 dated
08 Oct 2013 that-
(i) As per provision of MACP scheme introduced We.f 01 Sep 2008 financial upgradation is admissible in the hierarchy of grade pay and placement of highly skilled workers (GP Rs2400/-) as master Craftsman (GP Rs4200/-) Is very much considered as ladder in the hierarchy of grade pays ignoring the placement of highly skilled as MCM(Non Functional) Will 9 Item No.07 C- V O.A. No.3453/2022 be deviation the provisions of MACPS issued wide OM dated 19 May 2009. Hence placement of Higher skilled workers as master Craftsman prior to 01 Jan 2006 would be offset against one upgradation for the purpose of grant of MACP benefits.
(ii) MCM being the feeder post to Chargeman and since both these posts have identical pay band and Grade Pay financial upgradation under MACPS cannot be to a Grade Pay which is more than what is admissible in regular promotion.
(iii) Financial upgradation earned to the non-functional post of MCM to be taken into account as 2nd financial upgradation in so far as MACPS is concerned."
She further draws attention to another clarification dated 04.08.2023 (Annexure R7) issued by the Ministry of Defence. The relevant portion of the same reads as under:-
"3. In compliance of directions of DoP&T vide their ID Note dated 31.12.2020 & 17.03.2022 and Def(Fin) advice thereon, the competent Authority in MoD has approved for the following: -
(i) MoD ID No. 11(05)/2009-D(Civ-l) dated 06.02.2014 and 19.10.2016 stand withdrawn with immediate effect thereby Pay/Pension of all concerned and affected Artisan Employees may be reviewed and re-fixed. Accordingly, the same will be regulated as per DoP&T OM No. 35034/3/2008-Estt(D) dated 19.05.2009 regarding MACP for the Government Civilian employees."
8. Having heard the learned counsel for the parties and perused the pleadings available on record, we observe that the respondents at the time of restructuring of cadre of artisan staff in defence establishment, passed the following clarification dated 24.02.2014 which reads as under:-
RESTRUCTURING OF CADRE OF
ARTISAN STAFF IN DEFENCE
ESTABLISHMENTS IN MODIFICATION 10 Item No.07 C- V O.A. No.3453/2022 OF RECOMMENDATIONS OF 6TH CPC-
CLARIFICATION REGARDING 1 Please find enclosed herewith a copy of MoD ID No. 11(5)/2009-D(Civ-1) dated 6th Feb 2014.
2. It is requested that the contents of above policy letter may please be disseminated to all lower formations and necessary steps should be taken on priority to grant further financial upgradation, if due, in the grade pay of Rs. 4600/- to those Highly Skilled Workers/MCM who were already drawing the pay scale of Rs 5000-8000 (pre- revised) under ACP scheme upto 31 Dec 2005.
Thereafter, the said clarification was followed by yet another clarification dated 07.08.2018 regarding screening committee for MACP Scheme for the Central Government employees, which reads as under:-
AGREENING COMMITTEE FOR
MODIFIED ASSURED CARRIER
PROGRESSIVE SCHEME (MACPS) FOR THE CENTRAL GOVERNMENT EMPLOYEES 1 Ref Station Wksp EME Secunderabad letter No 24003/MACP INDICE dated 26 Jul 2018 addressed to this Dte and copy to your HQ.
2 In this regard you are requested to ref to this Dte letter No 47093/22/P/EME Cav (C-2) dated 02 Aug 2018 advising unit to follow correct channel of correspondence.
3 Notwithstanding, it is clarified that the sub individual and all other such cases who were drawing pay scale of chargeman (Rs 5000-8000) upto 31 Dec 2005 under ACP may be considered for further financial upgradation, if due, in the next grade pay (Rs 4600/-) as per Para 2 of MoD ID No 11(5)/2009-D(Ch-1) dated 06 Feb 2014 Accordingly, such individuals 11 Item No.07 C- V O.A. No.3453/2022 are eligible for 3 MACP on completion of 50 years of service in the pay band PB-2 9300-34800 grade pay of Rs 4800/-
4 From the correspondence, it is seen that such upgradation has already been provided to other employees on previous occasions vide para 4 of Station Wksp Secunderabad letter No 24003/MACP IND/CE dated 21 Dec 2017.
5 For info and necessary action please.
9. We find that the aforesaid clarifications dated 24.02.2014 & 07.08.2018 are explicit and quite clear in the present context of the matter insofar as the applicants are concerned. The respondents are relying upon the Clause 3 of the deliberation that the DoP&T has not agreed to the proposal of the Ministry of Defence for grant of benefits of MACP Scheme. However, this was never the case of the applicants.
10. Admittedly, it is already clarified herein above that the applicants were already accorded the benefits of 1st financial upgradation under ACP Scheme in the Grade Pay of Rs.4200/- and thereafter, they were granted the subsequent financial upgradations under MACP at the relevant point of time. The question of grant of the benefits accruing to the MCM does not arise at all and cannot be interlinked with the present facts and circumstances of the case.
11. Considering the aforesaid discussions, we find that the respondents have erred in relying upon the instructions issued by the DoP&T and thereafter, passing the impugned order in the factual matrix of the present case. Hence, the impugned orders dated 16.08.2021 & 08.11.2022 are set aside. Accordingly, the respondents are directed to restore the pay of the applicants and also take necessary steps to grant benefits of the 3rd financial upgradation under MACP Scheme, in accordance with law.
12. This exercise shall be completed within three months from the date of receipt of a certified copy of this Order.
12Item No.07 C- V O.A. No.3453/2022
13. The OA is disposed of in the aforesaid terms. Pending MAs, if any, shall also stand disposed of. No costs."
4. Learned counsel for the applicants points out that the aforementioned judgment has, in fact, been implemented by the respondents therein, as evidenced by their letter dated 18.12.2024.
5. Per contra, pursuant to the notice issued by the Tribunal, the respondents entered appearance and filed their reply thereby vehemently opposing the claim of the applicant. He reiterates the averments made in the case of Bhagat Singh Bisht (supra).
6. Learned counsel for the respondents relies upon the decision rendered in OA No.3838/2016 titled, Kunwar Pal Singh & ors. vs. Union of India & ors.
dated 08.01.2024 of this Tribunal.
7. We have heard learned counsel for the both the parties and perused the material available on record.
We have carefully gone through the decision rendered in the aforesaid quoted Order and we have no doubt in our minds that the two OAs bears strikingly similarities with each other, there is no cause before 13 Item No.07 C- V O.A. No.3453/2022 us to take a view which would be at divergence from the order quoted above.
8. Accordingly, we hereby quash and set aside the impugned order dated 16.08.2021 (Annex.A/1) and impugned order dated 28.09.2022 (Annex.A/2).
Accordingly, the respondents are directed to restore the pay of the applicant and also take necessary steps to grant benefits of the 3rd financial upgradation under MACP Scheme, in accordance with law. The applicant shall be entitled to all consequential benefits arising from this decision.
9. This exercise shall be completed within three months from the date of receipt of a certified copy of this Order.
10. The OA is disposed of in the aforesaid terms.
Pending MAs, if any, shall also stand disposed of accordingly.
11. No order as to costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/