Central Administrative Tribunal - Ahmedabad
Hari Mohan Saini vs Central Board Of Indirect Taxes A& ... on 28 January, 2025
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CENTRAL
L ADMIINISTRA
ATIVE TRIBU
UNAL
A
AHMEDDABAD BECH
Origina
al Appliccation N
No. 60/20
024
Pronounced on: 28..01.2025
5
COR
RAM:
Hon''ble Shrri Jayesh
h V Bha
airavia, Member
M r (J)
Hon''ble Dr. Hukum m Singh Meena, Membeer (A)
1. Hari Mohan
M Saaini
Male, Aged 544 years. Superint
S tendent,
Residing at 145- Sai Rachana
R C
Co-OP.
Housin
ng Socieety, Behiind L.P. Savani SSchool,
Pal Ro
oad, Adaj
ajan Suraat, Gujarat-3950009.
... Applicant
(By A
Advocatte Mr. Haarshal N Pandyaa)
V/s.
1. Union of Indiaa
(Notice to be sserved th
hrough: Secretary
S y,
Revenue Minisstry of Finance,
F
North Block, N New Dellhi 1100001)
2. Centraal Board of Indireect Taxees,
Noticee to be seerved thrrough:
The Ch hairman, CBIC (AD-II),
(
Ministtry of Finnance, Departme
D ent of Reevenue,
New Delhi.
D 110001.
3. Office of the C
Commisssioner (AAudit)
CGST & CE,
Subhannpura Garden Ro oad,
Opp- Subhanp
S pura, Auddit Comm
missioneerate,
Vadoddara, Gujjarat- 390023.
dents
... Respond
(By A
Advocatte Mr. Chhirayu Mehta)
M
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ORDER
R Peer: Hon'ble Shrri Jayesh h V Bhaairavia, Member M r (J) ation of representation Being aggrievved by non considera c n dated d 22.122.2021 (Annexuure A-7 refer) seekingg prepon nment oof grantt of thee benefits of Non-Fina N ancial Up p-gradatiion (hereeinafter referred to as 'N NFG') in n Gradde Pay (in ( shortt 'GP') of Rs.54 400/- onn complletion off 4 yearrs in thee Gradde Pay of o Rs.48800/- in terms of o the diicta laid d down by the Hon'blee 09.2010 in WP No. 132225/2010 in thee Supreme Court judggment daated 06.0 case of M. Su nian Vs.. Union of Indiaa and oth ubraman her judggments an nd orderr passeed by vaarious H High Cou urts and d Tribunnals, the applicaant has filed f thee preseent OA under S Section 19 1 of the AT A Act, 1985 5 seekinng the fo ollowing g relieffs:-
"(A A) Admit and d allow th he presen nt applica ation.
(B)) Be pleaseed to dirrect the respond dent authhorities to exttend the benefit of Grad de Pay 55400/- on n compleetion off 4 yea ars i.e. 330.12.2016 insteead of 330.09.201 18 in ligght of th he jud dgment of the Ho on'ble Madras M H High Couurt in Wrrit petitio on Noo. 13225 of 2010 0 as conffirmed byy the Ho on'ble Appex Cou urt andd severaal otherr decisio ons men ntioned in thiss origin nal appplication..
(C)) Be pleaseed to pa ass apprropriate Orders imposin ng exeemplary Cost on the Resppondentss for theeir arbitrrary actio on as well as for neeedlessly causing a situattion wheere in th he preesent appplicant was w consstrained to appro oach thiis Hon'b ble Triibunal.
(D)) Be pleasedd to passs any furrther ordder or dirrections asa thee Hon'blee Tribuna al may deem d fit in n the inteerest of ju ustice."
2. Brief facts f of tthe case as stated d by the applican nt are as under:-
2.1 The appplicant jo oined th he servicce of thee responndents as a Upperr Divisionn Clerk on o 18.9.1995 andd was su ubsequenntly prom moted to o the post of Inspeector on 19.12.20002.
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2.2 The 6th CPC was w intrroduced and bro ought innto forcce w.e.f.. 1.1.20066 and in conneection w with the affairs of the Union,, Central Civil Seervices (R Revised Pay) Ru ules, 20008 were notified d and in teerms of the t said Rules, tthe pay of o the appplicant was w also o revised and upo on comp pletion oof 10 years, thee appliccant wass granted 2nd Modified Assuredd Careeer Progrression Schemee ('MACP P Schem me' in sho ort) w.e.f. 19.12..2012 wiith Grad de Pay off Rs.48000/- vide Order dated d 244.4.2014 4 (Annexure A--5). Thee applicannt has been presently p y work king onn the post p off Superinttendent since his proomotion to thaat gradee w.e.f..
30.9.20114.
By the saaid Rulees, a com mplete revised r ppay stru ucture off Pay Bannd and GP G speciified agaainst eacch post oor the Pay-scalee specifiedd in the column had beenn provid ded. Secction II of o part C providess revised p pay strructure qua Incomee Tax x officers//Superin ntendent, Appraiisers etcc.(Custom ms and Centrall Excise) as underr:
Sl. Post Present
P Revised Pay
P Corrresponding
g Para
No. Scale scale Paay Band & No. Off
P
Pay Grade
G Grade the
B
Band Pay Reportt
9 IIncome Tax 500-
75 77500- PB-2 4800 7.15.17
OOfficers/ 12
2000 112000
SSuperintenddent, AAppraisers etc. (Customs & CCentral Exccise) 88000- PB-2 5400 113500 (after 4 yyears) Referrin R ng the above a th he appliccant hass stated that theere is a specific s mandatte for grant g of GP of Rs.54000 in PB B-2 afterr completi c ion of 4 years in n GP of R Rs.4800 in PB-2..
2.3 It I is staated thatt in vieew of thhe said provisioon madee in thee Statutoryy Ruless, officeers of Custom ms and Central Excisee ::4 :: O OA No o.60/2024 4 departm d ment, who o compleetes fourr years in i GP Rss.4800/- becamee entitled e tto receiv ve NFG in GP R Rs.5400/--.
2.4 The T appplicant herein h h also compleeted 4 yyears off regularr had service s in GP of o Rs. 4800/-
4 inn PB-2, hence, he also becamee entitled e for grantt of GP of o Rs.54400/- in PB-2.
P However,, despitee the saidd rule position, the resp H pondentss denied tthe beneefit of GP G Rs.54400/- to the eliggible Off fficers in n view off clarificcations issued byy the co ompetennt authorrity videe letter/cirrcular dated d 11.02.20099 and 16.09.200 1 09. Wherein, itt was clarrified thaat the no P of Rs. 5400/- in on-functiional GP i PB- 2 will nott be gran nted to those t Offficers who w havee got GP P of Rs..
4800/- oon financcial upgrradation under MACP M Sccheme.
2.5 Further, it is statted that the t respoondents on wronng interpretation,, for the purposee of graant of N NFG in GP of Rs.5400 0/- weree countingg four yeears in the t cadree of Sup perintenddent as a regularr employeee(s) in GP of Rs.4800/ R /-, which h resulteed into filing f off several llitigation ns.
2.6 It is statted that the aforresaid isssue cam me up beffore the Hon'blee Madras High Court in case c of M M. Subrramaniaan Vs. Union U off India I inn WP No o. 13225 5/2010 annd the saame wass decided d by thee judgmen j nt dated d 06.09.2010 (A Annexurre A-3 rrefer) in nter-alia a holding that 4 years periiod is to be coun nted withh effect from f thee date on w which an n officerr is placeed in the GP of R Rs. 4800//-.
2.7 The afooresaid order o off the Hoon'ble Madras M H High Co ourt wass challengged by th he Respo ondents therein by way of Civill Appeall No. 88883 of 201 11 beforre the Hoon'ble Supreme S Court. The T said d Civil Apppeal waas dismiissed by the Hon n'ble Suupreme Court C by y judgmen j d 10.10.2017 ((Annexurre A-4 refer) and by nt dated y upholdinng the ju udgmentt of the Hon'blee High C Court off Madrass ::5 :: O OA No o.60/2024 4 held thaat the GP P of Rs.5 5400/- hhas to bee grantedd on com mpletion n of 4 yeears of continuo ous servvice in the GP of Rs. 4800/-,, irrespecttive of fact f P of Rs. 4800/- was graanted by thatt the GP y way of ppromotio on or AC CP/MAC CP.
Thhus, thee decisio on of thhe Hon'b ble Maddras Hig gh Courtt stood coonfirmed d and theereby, noow there exists aabsolutely no barr ndents to grant thhe benefiit of GP of Rs. 5400/- upon thee respon 5 to o the eligiible Supeerintendeents.
2.8 Thereaft fter the Respond dents haad preferrred a R Review Petition n (Civil) N No. 251 12 of 20 view of judgmen 018 seekking rev nt dated d 10.10.20017 in Civil Appeal A N No. 888 83 of 2011 beffore thee Hon'blee Suprem me Courtt, which was also o dismissed on merits m ass y by the Hon'blee Suprem well as on delay me Courrt vide ju udgmentt dated 233.8.2018 8 (Annex xure A-55 refer) and thuus, the decisions d s qua grannt of GP P of Rs. 5400/-
5 aas postulated in tthe Civill Appeall No. 88883 of 201 11 by th he Hon'bble Supreeme Couurt as weell as by y the Honn'ble Madras Hig gh Courtt in Judg gment ddated 06.09.2010 0 passed in WP No. N 13225 5/2010 hhas attain ned finallity.
2.9 It is alsoo stated that a group g off 25 Offi ficers woorking un nder thee same Reesponden nts' Dep partment wherein n the preesent app plicant iss currentlyy servin ng had approach a hed the Hon'blee High Court C off Gujarat by waay of a petitionn being SCA 3346/2018 being g aggrieveed by the Deecision of this Hon'blle Tribunal in n OA/3100/2017. The n'ble High Courrt by waay of Ju T Hon udgmentt dated l00.04.2018 (Annexure A A-4 referr) allow wed the petition n directingg the Respond R Department to implem dents' D ment thee decisionn of the Hon'ble H Apex Court and d grant thhe beneffit of GP P of Rs. 54400/- to the appllicants thherein.
2.10 In light of the ab bove meentioned judicial pronounncementts, it wass incumbeent upon n the reespondennts' dep partmentt to exttend thee ::6 :: O OA No o.60/2024 4 benefit of the same to o the sim milarly placed p ppersons withoutt insistingg for jud dicial ord der in eaach case, howevver, respo ondents'' departm ment hav ve follow wed thee verdict only qua tho ose who o obtainedd orders from thee Court oof Law.
2.11 The appplicant haad comp pleted 4 yyears of regular service in i GP off Rs.48000/- and became b e entitled tto the GP P of Rs.5400/- in i PB-II,, Pay fixaation orrder wass issued on 12.3 3.2019 ((Annexu ure A-6)) fixing tthe pay of the applicaant in GP G of R Rs.5400//- w.e.f.. 30.9.20118 insteaad of 19 9.12.20166, i.e., co ounting four yeaars from m the datee when he h was granted g GP Rs.4 4800/- cconsequeent upon n grant off 2nd MACP beneefits, i.e.,, from. 19.12.20 1 12.
2.12 Being aaggrieved d by thee said fiixation order, o thhe appliccant had d submitteed his reepresentaation on 22.12.2021 (Annnexure A-7) A forr grant off NFG in GP of o Rs. 55400/- from f hiss due daate, i.e.,, 19.12.20016 and revision n of his pay acco ordinglyy. Howev ver, said d claim oof the applican nt had not been conssidered by thee respondents till date. Heence, thiss OA.
3. Pursuaant to nootice issu ued by th his Tribuunal, thee responndents haave filed d their reply op pposing the claim m of thee applicaant. Thee applicaant has also a filed d rejoinnder bessides refu futing the conten nts of thee reply filed f by the resp pondentss reiterrating th he submisssions made m in th he OA.
4. During g the couurse of hearing, h l learned ccounsel for the aapplicantt mainly y argueed that:-
4.1 The actiion of th he respon ndent autthorities denyingg benefitt of non--
i GP Rs.5400/- in PB-III on com functionnal upgraadation in mpletion n of 4 yeaars of service in n GP off Rs.480 00/- is illlegal, arbitrary, a , discrimiinatory and deeprived the app plicant to receeive hiss legitimaate dues.
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4.2 The entiire contrroversy related r too grant of o NFG iin GP Rss. 5400/-- is settleed by th he Hon'b ble Supreme Court by dismisssing thee appeal ppreferred d by thee Responndents' Departm D ment chaallenging g the direcction to grant th he GP off Rs. 54 400/- to persons like thee present applican nt. Moreo over, thee Hon'blle High C Court off Gujaratt has heldd in SCA A 346/ 2018, S SCA 192 273/ 20118 & SC CA 102// 2019 thhat perso ons identically pplaced to o the appplicantss therein n could noot be denied thee benefit of GP of o Rs. 5400/-. Thus, T thee legal isssue invo olving th he legalitty of graant of G GP of Rss. 5400/-- has alreeady beeen settlled andd has atttained finality,, hence,, denyingg benefit only on the grouund that he doesnn't have order off the Couurt of Laaw is hig ble and is requireed to bee ghly conndemnab viewed vvery seriiously by y this Trribunal.
4.3 The connduct th he Resp pondentss' Depaartment deservess to bee strictly deprecaated as the t actioon on part p of the Resspondentt Departm ment to grant beenefit onnly to th he litigaants is in i directt violationn of the decision n of the Hon'ble Suprem me Courtt and thee decisionn of the Ministrry of Fiinance to o extendd the beenefit to o eligible Officerss and wh hich is soo implem mented.
4.4 It is unffortunatee that deespite the issue having h bbeen deccided by y the Honn'ble Sup preme Co ourt in M M. Subra m's case (supra),, amaniam yet depaartment is asking g for ordder from m judiciaal forum m in each h separatee case and a this action or decision is contrary y to thee settled laaw.
Inn this reg gard, leaarned coounsel fo or the appplicant submitss that thee judgm ment of the Hoon'ble Supreme S e Court on thee decisionns being consideered to bbe in rem is quiite clearr on thiss subject and do o not su upport tthe stand d of thhe Respo ondents'' Departm ment herein in co onsiderinng the decisions of the Supreme S e Court inn M. Su niam's case (su ubraman upra) ass a decision in--
persona
p am.
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To substaantiate th he abovee contenttion, learrned cou unsel forr the appplicant has h placced reliaance on the Hoon'ble Supreme S e Court's judgmeents dateed 17.100.2014 in i the ccase of in Civill Appeal No. 98 849 of 2014, 2 inn the maatter of State of o Uttarr Pradesh h & Ors vs. Arviind Kum astava & Ors., an mar Sriva nd dated d 1.9.20177 in SL LP(C) No. N 23742 of 2017 2 inn the matter m off Governm ment off NCT Delhi D & aanother vs. Som mvir Ran na (TGT T ENG) & Otherss.
4.5 On the strength h of above judgm ments of o the Hon'ble Supreme S e Court, learned counsel c for the applican nt argued that itt is now w more thaan clear that thee stand oof the resspondennts not ex xtending g the beneefits of the t judg gment off the Hon n'ble Suupreme Court C in n the case of M. M Subra m's casse (suprra) and variouss amaniam pronounncementss of thiss Tribunnal and Hon'ble H High Courts C iss complettely arbittrary and d illegal.
4.6 It is alsso argueed that when w in the casses of siimilarly situated d employeees sam me apprroached had been b addopted by thee respondents, theey appro oached to the Hon'ble H High Court C off Gujarat by waay of SCA N No.19273 3/2018, titled Sundeep S p Yaurajssingh Ra a and thhe Hon'b ajan vs. Union of India ble High h Court vvide ordeer dated d 26.12.22018 alllowed thhe claim m of thee petitioneers thereein by placing p reliance on its earlier order o in n SCA Noo.1314/2 2009 and d had alsso obserrved thatt 'once the t issuee is adjudicated and decided d by the Court and th he said d adjudicaation hass attained d finalityy, then unless u theere is an ny strong g justifica j ation to take a differennt stand the bennefits sh hould bee extendedd by thee authorrity to ssimilarly y placed employ yees and d similarlyy placed d employ yee shouuld not be b made to appro oach thee Court too seek saame beneefits.' 4.7 Learnedd counseel for thee applicant has also plaaced reliiance on n the folloowing judgmentss of the H Hon'ble High Coourt of Gujarat:-
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(i) S SCA No o.102/2019, titleed Anil Kanaw wal Gidw wani vs..
Union off India deecided oon 11.3.2 U 2019;
(ii) SC CA No.1892/20 021, titleed Pradeeep Kum mar Pan ndey vs. Union off India deecided oon 15.6.2 U 2021; andd
(iii) SC CA No.10710/2 2021, tittled Pra aveen K K. Gokh hroo vs..
Union off India deecided oon 21.3.2 U 2022;
Lastly iit is sub bmitted that above all cited cases hav ve been n decided by the Hon'ble H High C Court of Gujarat on the based b off the deciision of the Hon n'ble Suupreme Court C inn the casse of M. manian (ssupra). Subram
5. ontra, aalthough learned Per co d counseel for th he respoondents has nott dispuuted the factuall aspect of the case, aas noted d above, however, it iss subm mitted th hat the B Board vide v letter datedd 07.04..2021 cllarified that thee extennsion off the bennefit can nnot be granted g to the non n petittioners/ssimilarly y placeed officeer based on the judgmen j nt of the Hon'blee Madraas High Court C in n Writ petition n No. 133225 of 2010 off the M. Subram mniam ccase. Th he Board d has aalso direected thhat the court c judgmentss which are passsed by placing g reliannce on th he M. Su niam casse are foorwarded ubraman d to the B Board for furtherr direcctions in n so farr as im mplementtation oof such CAT/Coourt ord ders aree concerned.
5.1 It is further f submitted d that moreover m r, the Board B haas examiined thee matteer in con nsultatioon with Dept. D off Expendditure, who w havee clarifieed in thee matteer of thee officerss of Ran nk of Insspectors,, who also have pre-reviised pay y scalee of Rs. 7500-12000 (Grade ( pay of Rs. 48 800/-) ddue to financial f l upgraadation under u ACP i.e. who gott the pree-revised A d pay scaale of Rs.
R 7500--
120000 by virrtue of fuurther no on-functiional upgradatio on under ACP ass followss : Nonn-functio n to the grade paay of Rss. 5400/- in the pay onal up ggradation p band d PB-22 can be given oon complletion off 4 yearss of regu ular servvice in th he gradee pay oof Rs. 4,800/-
4 inn PB-2 after reg gular promotion n and noot on acccount off Finanncial upg gradationn due to o ACP...
..." and fuurther reeiterated that Board videe ::10 :: O OA No o.60/2024 4 letterr dated 11.02.20009 clariffied that the officcers who o got thee pre-revised pay y nding too grade pay of Rs. 4,80 scalee of Rs. 7500-12000 (ccorrespon 00/-) by y virtue of furtther nonn-functional upgrradation under ACP A willl not be entitled d to thhe benefiit of furrther non n-functio n to the pre-reviised pay onal upggradation y scalee of Rs. 8000-133500 (co orrespond ding to tthe grad de pay off Rs. 5400/-) on n comppletion of o 4 years in the pre-revis p sed pay sscale of Rs. 75000-12000 0. 5.2 urther arrgued thaat again the Boaard vide letter ddated 16.09.2009 It is fu 9 clariffied th hat NF FU sh hould be grranted to thhose C Customs s uperintenndent of Central Excise / Superin Apprraiser/Su ntendentt of Custtoms (P)) w.e.ff. 01.01.2 2006 whho complletes 4 years y of sservice as a on 01..01.2006 6 and forr otherrs who complettes 4 yeears of service s aafter 01.01.20066, they shall bee grantted w.e.ff. the datte of succh complletion off 4 years of serviice. Furtther, it iss also clarified d that thee non fu unctionall Grade Pay of Rs.
R 5,400/- in PB B-2 willl not bbe granteed to succh of tho ose Grou up - B oofficers who w havve got th he Gradee pay oof Rs. 48 800/- on upgradaation und der the A ACP Sch heme.
6. In rejo oinder, leearned counsel c for the aapplican nt besidees reiteraating thee abovve conten ntions aas raised d in thee OA, inn suppo ort of thhe claim m of thee appliicant hass placed reliance on the following f g judgm ments:
I. Judgmennt dated d 24.3.2 2009 off the Hon'ble H High Court C off A No.1314/20099 in the matter of Vipu Gujarat in SCA ulkumarr Atmaram A m Parek kh and others vs. Sta ate of G Gujarat through h Secretarry and others, o reeported iin Gujarrat Law R Reporterr Vol.50 0 (5) 39144;
II. Common order/j /judgmen nt dated 18.12.20 019 of thhis Bencch of thee Tribunal in OA A No.467 7/19 andd other connecteed casess, in thee matter oof Rajesh Kum mar Shaarma vs. Union n of Ind dia and d others; aand ::11 :: O OA No o.60/2024 4 III. Order/Juudgmentt dated 13.10.202 1 23 of thiis Benchh of the Tribunal T l in OA N No.403/2 23 in thee matter of Shan nker Paarmar vss. Union n of Indiaa and oth hers.
7. We haave heaard learn ned cou unsel forr the parties annd peru used thee pleaddings and d the juddgments on whicch reliancce has beeen placced.
8. Having g regardd to the aforesaaid factuual matrrix of thhe case and thee subm missions of the learned counsell for thee partiess, we finnd that it is an n admiitted factt that thhe appliccant had been grranted 2nd financcial upg gradation n undeer ACP Scheme S iin the paay scale of Rs.93300-3480 00 with G GP of Rs.4800/-
R - in PB
B-II w.ee.f. 19.122.2012. Undispu utedly, thhe respo ondents had gran nted GP P Rs.48800/- to o the appplicant w.e.f.
w 19 9.12.20112. Subssequentlyy, the applicant a t was as such granted regular promotiion to thhe post of o Superrintenden nt in thee gradee of Rs.4 4800/- w w.e.f. 30.9.2014. Since thhe appliccant was already y granted d GP R Rs.4800//- w.e.f.. 19.12.2 2012, th here wass no chaange in the pay y of thee appliicant. Su uffice to say thaat in factt the appplicant continue c d to recceive thee GP R Rs.4800//- w.e.f. 19.12.20
012. However, tthe respo ondents had not granted d NFG in GP Rs.55400/- w.e.f. 19.1 him N ntinue 4 years off servicee 12.2016 (i.e., con in G 800/- w.e.f. 19.1 GP Rs.48 12.2012)) in steaad he was w grantted NFG G in GP P Rs.54400/- w..e.f. 30.99.2018 by b countiing his 4 years continuo c ous serviice from m the ddate of grant off regularr promo otion in the postt of Supperintend dent i.e..
w.e.ff. 30.9.2 2014. A As noted d herein n above,, the ap pplicant therefo ore, had d subm mitted his representation dated 22.12.20 2 21 (Ann nexure A A-7 referr) to thee f grant of NFG respoondents for G in GP of Rs.5400/- in PB-2 w w.e.f. 19.12.2016 6 but thhe same has not been enttertained d by the respond dents. Thhe respon ndents in n their reply averred a that thee applicaant is nnot entitlled to rreceive identical i l benefits of grant g of N NFG in GP Rs.5 5400/- on complletion off 4 yearss regularr serviice from m the datte he recceived th he same, since no n separrate Cou urt orderr had bbeen issu ued or ppassed in n his fav vour. Thherefore, the resppondentss cannott grantt parity to him in light of the judgmen j nt passed by thee Hon'b ble High h Courrt of Mad dras in M M. Subra m (supra)).
amaniam
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9. At thiss stage, iit is apt to t mention that tthe issuee involveed in thiss case ass to whhether th he emplooyees, wh ho had been b grannted finaancial uppgradatio on underr ACP/MACP in GP Rs.4800 0/- and had com mpleted continuuous 4 years y off serviice in th he said ggrade, i.ee. GP Rs.4800/-
R - can be said to be eligible and d entitlled for grant off NFG in i GP Rs.5400/ R /- in PB B-II in tterms off Govt.. resollution daated 29.88.2008 or o not an nd whethher the Departm D ment of Revenue, R , Centrral Boarrd of Exxcise and d Custom m's can rrestrict the t said benefit of grantt NFG in GP R of N uch empployees//officers (i.e. Customs Rs.5400/- to su C s Apprraiser/Su uperintenndent of Central Excise//Superinttendent of Custo oms (P))) is no more rees integrra in view w of the various pronoun ncementts of the Hon'blee Supreme Cou urt, Highh Courts as well as of thiis Tribun nal.
10. It is profitable p e to refeer the ju udgemennt passed d by thee Hon'b ble High h Courrt of Jud dicature aat Madraas dated 6.9.2010 (M. Subrama S aniam vss. Union n of In ndia rep presentedd by thee Secreta ary of R hers (sup Revenuee andoth pra), thee relevvant paraas of whiich are reeproduceed:-
"6.. Itt is not in i disputte that tthe Goveernment of India vid de his reesolutioon dated d 29.08.22008 granted ggrade pa ay of Rs. 54000 in pay bond d 2 on non fun nctionall basis tot grooup-B oofficers of o the deepartmeent of po osts, revvenue ettc. whho comp pleted 4 years regular r service in grad de pay ofo Rs, 4800 iin pay bond b 2. According to the t Petittioner, he h has alreaddy reach hed the pay p scalle of Rs. 7500-2550- 1200 00 by way of AC CP scheeme on n 01.01.2004 w which is corrresponding to o the pay scalle of su uperinteendent of o cen ntral excise (Group B possts) and thereefore on o Coompletioon of 4 years y hee is entiitled to the grad de pay of o Rs. 5400 w with efffect fromm 01.01.2008. In I suppoort of hish cla aim, the Petition ner also relied u upon thee clarifiication by b cen ntral board of excisee and custom ms in leetter No. N A22601/98//2008- ADIIA, A d dated 211.11.20008 clariffying that thee 4 years perio od is too be cou unted from fr thee date ofo whhich an officer is placeed in thee pay sccale of R Rs. 75000- 120000. Hoowever, the claiim of th he Petitiioner waas denieed based on tthe clariificationn issued by the Central C l board of o exccise and d custom ms, dated 11.02.2009, wherein, it wa as ::13 :: O OA No o.60/2024 4 cla arified tthat the officerrs who ggot the pre revvised pa ay sca ale of Rs. 7500--12000 (corresponding to the ggrade pa ay of Rs. 48000) by virtue v o finan of ncial upgradatioon undeer ACCP woulld not be entitleed to thee benefiits of furrther no on fun nctionall upgrad dation tot the p pre reviised payy scale ofo Rs. 8000-113500 (ccorrespo onding to grade pay of Rs. 5400 0) on compleetion of 4 yearss in the pre revvised payy scale ofo Rs. 7500-112000.
W are unable to agree with tthe clariification
7. We n given byb thee under secreta ary to go overnmeent of India, sin nce in an a earrlier claarificatiion, datted 21.111.2004 of thee Deputty Seccretary to the Governm G ment of India, itt was clarified as a to how th he 4 yeears perriod is to be counted d for th he pu urpose oof gran nting no on functional upgrad dation tot grooup B oofficers, i.e, wheether thee 4 yearrs period d is to be b couunted wwith effeect fromm the daate on which w the officerrs 1s placed iin the pa ay scalee of Rs. 77500-120000 (Pree revised
d) or effect frrom 01.01.2006, i.e. thee date on n whichh the sixtth CPPC camee in to force, Itt was cllarified that the 4 years perriod is to be counted c with eeffect frrom thee date on o whhich an officer is placeed in th he pay scale s of Rs.7500 0-
120000 (pree revisedd).
8. Thus T if an officcer has complete c ed 4 yeaars on 01.01.20006 or earlieer, he will be b giveen the non-ffunctional upgradatioon with h effectt from 01.01.2 2006 an nd if th he offficer commpletes 4 years on datee after 01 1.01.20006, he wiill be given n non-funcctional upgrada u ation fro om such h date on o whhich he ccomplettes 4 yea ars in th he pay scale s of Rs. 7500 0- 120 000 (prre revissed) sin nce thee Petitio oner ad dmittedly commpleted d 4 yearrs period d in thee pay sccale of RRs. 7500 0- 120 000, as oon 01.011.2008, he h is enttitled to grade ppay of Rs.
R 540 00. Infaact, the governm ment off India having accepteed thee recom mmenda ations ofo the sixth pay p commmission, issued a ree solutio on datedd 29.08.22008 graanting ggrade paay of Rs. 5400 to thee group B officeer in pay y bond tto on noon ::14 :: O OA No o.60/2024 4 funnctionall basis after a 4 years y of regularr servicee in grad de pay y of Rs.. 4800 in n pay Band B 2. Therefoore, dennial of th he samme beneefits to the t Petittioner bbased onn the claarificatio on issued by the und der Seccretary tto the Governm G ment wa as conntrary to the above said claarificatiion and d withou ut ammending the ru ules of the reevised pay scaale, succh deccision cannot beb taken n. Thereefore, we are in nclined to t intterfere tthe order of the Tribunal.
9. Accordiingly, thhe writ petition n is allow wed settting asid de thee order of tribbunal, dated d 100.04.2010 0 passedd in 0.AA. Noo. 167 off 2009. The T Respondentts are directed to exten nd thee benefiits of grrade pay of Rss. 5400 to t the PPetitioneer fro om 1.1,22008 as per p the resolutiion dateed 29.08.2010. No N cossts."
(em mphasis supplied) s ) 10.1 The aforesaid a d Orderr/Judgmeent of the Ho on'ble H High Court C off Judiccature att Madrass has been upheeld by th he Hon''ble Sup preme Court C in n an aappeal preferred p d by th he respo ondents therein,, vide ju udgmen nt dated d t relevvant paraas of the same read as un 10.100.2017, the nder:-
"We haave hearrd learn ned coun nsel forr the paarties an nd peruseed the reecord.
We do not seee any groundd to intterfere with th he impug gned ordder(s). The T app peal andd also the t speccial leavve petition ns filedd by thhe Uniion of India are acccording gly dismisssed."
10.2.. The Review R P Petition in i the saaid appeeal preferred by the resp pondentss thereein beforre the Hoon'ble Su upreme Court C waas also dismissed d d by the Hon'blee Supreme Co ourt vidde Judg gment dated d 223.8.2018 with the fo ollowing g direcctions:-
57 days in filing "There is a dellay of 35 g Review w Petitio on (C) No o.2512 oof 2018 and 264 days iin filing g Review w Petitio on (C) No o.2519 off 2018.
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The chaallenge tot the claarificatioon issueed by thee Ministrry of Fin nance cclarifyin ng that non-fun nctionall Gradee Pay of o Rs.5,400/- wou uld not be b grantted to su uch of thhose offi ficers wh ho had go ot the G Grade pa ay of Rs.4,800/ R /- on up pgradatioon undeer ACP Scheme, S was acccepted byb the H High Co ourt andd the wrrit petition n prefeerred byy the reespondeent was alloweed. Whiile dismisssing thee speciall leave petitions p s filed at a the in nstance of o the prresent rreview petitioner p rs this court didd not find an ny ground d to inteerfere.
We havve gone through t h the revview petiitions an nd do no ot find anny error apparen nt on thee face off record..
These review petitionns are, therefore th e, dismisssed botth on th he ground d of delaay as well as merrits."
(em mphasis supplied) s ) 10.3 Furtheer, by refferring th he dictum m laid ddown by the Honn'ble Hig gh Courtt of M Madras in n respecct to graant of NFG N in GP Rs..5400/- in PB-II to thee officers/emplloyees w who had compleeted fourr years of o continnuous seervice in n GP R Rs.4800//- irrespeective off by way y of grannt of finaancial uppgradatio on underr ACP/MACP Schem mes, subsequentlly, the various Courts, includ ding thee Hon''ble High h Court of Gujarrat and this t Bencch of thee Tribunnal had reeiterated d in theeir judgm ments/orrders thaat the offficers, w who had got the G GP of Rs.4800/-
R -
on uppgradatio on underr ACP Scheme S a had ccompleteed continnuous seervice off and 4 yeaars in GP G Rs.48800/- aree entitled d for graant of NFG N in G GP Rs.5400/- in n PB-III and thee clarificcation issued by the Undder Secreetary to the Gov vernmentt to deeny the said s G in GP of Rs.54 NFG 400/- waas declarred conttrary to the t ruless of revvised paay scales and law w laid dow wn by thhe Hon'b ble Apexx Court.
10.4 In thiss regard, it is pro ofitable to refer and rely y upon tthe obseervationss and orders/jjudgmennts rend dered by y the H Hon'ble High Court in i SCA A No.346/2018 8 (Shantti Swaroop S/o Bharat B L Lal vs. Union U off India) decided d on 100.4.2018 8 whereiin the Hon'ble H H High Coourt of Gujarat G bby accep pting thee challlenge off the peetitioner againstt the deenial off grant oof NFG G in GP P Rs.54400/- an nd the oorder passsed by this Triibunal in n OA N No.310/20 017 and d held in para 3.0 3 of the said ju udgment as underr:-
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"H
Having h heard th he learnned advoocates forfo the rrespectivve parrties andd consid dering thhe impuggned ord der passsed by thhe lea arned Trribunal, it appea ars that at the relevant time SL LP beffore the Hon'blee Suprem me Courrt again nst the deecision of o thee Madraas High Court was pen nding an nd thereefore, thhe pettitionerss and other o s similarlyy situateed perssons, th he em mployees were not n gran nted thee benefifit of fixxation of o graade pay of Rs.5 5400/- inn PB-2. IIt is nott in dispputed tha at thee petition ners aree similarrly situatted to th hose empployees ini whhose favvour theere is a decisioon of th he Madrdras Hig gh Coourt. It iss also no ot in disppute thaat now thhe decisiion of th he Ma adras H High Cou urt on th he pointt has beeen conffirmed by b thee Hon'ble Supreeme Cou urt vide Order dated d 100.10.2017.
Unnder the circumstances, there is no imp pedimennt now ini thee way off the Dep epartmen nt to graant beneefit sougght in thhe preesent petition in n the lighht of thee decisio on of thee Madra as Higgh Courrt confirrmed by the t Hon n'ble Sup preme CCourt.
Under the circumsta c tances, concerned reesponden nt authoritiess are heereby directed d to gran nt the bbenefit of o fix xation oof Grad de Pay of Rs.5400/- in Payy Band--2 connsidering ng the deecision ofo the MMadras High H Cou urt in thhe casse of MM. Subra amanyam m vs. U Union off India and orrs. ren ndered in n Writ Petition P N No.132225/2010 confirmmed by th he Hoon'ble S Supremee Courrt with all consequen ntial an nd ancillary bbenefits which maybe m available to the rrespectivve pettitionerss. The aforesai a id exerccise sha all be ccompleteed witthin a period off six weeeks from m the da ate of recceipt off a preesent Orrder. The rule iss made aabsolutee to the aforesaiid exttent. Dirrect service is peermitted.' 10.5 In ano other idenntical caase, the Hon'blee High Court C of Gujarat in SCA A No.10710/20 021 (Praaveen K. Gokhrroo vs. U Union of India)) vide ju udgmentt datedd 21.3.20 023 by rreferring the judg gment paassed by y the Maadras Hig gh Courtt in thee case of M. Subbramaniam (sup pra) hadd directed d the verry respondent to o grantt benefiit of N o the similarly placed NFG in GP of Rs.54400/- to d petitiioners/offficers.
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10.6 Furtheer this Bench of the Trib bunal in the mattter of S Shanker Parmarr Union off India aand otheers i.e. OA vs. U O No.4403/2022 decideed on 22 2.3.2023 3 m/prayer had refferred too the ju whilee allowiing the identicaal claim udgmentt passeed by th h Court of Madrras and Hon'blee High Court he Hon'bble High C off Gujaarat as also the order passsed by the t Princcipal Ben nch at N New Delh hi of thee Tribuunal in OA O No.1994/201 16 dated 22.2.20223 and taking t innto consiideration n the ffact that the Juddgment passed p b the H by Hon'ble High C Court of Madrass which has atttained finnality, th his Tribu unal heldd that:
"7
7.........th he admiissibilityy of the pprayer is unambbiguouslly esttablishedd and the dep partmen ntal pro ocedure have to t connform tto the la aw so laid la dow wn and discusseed in th he forregoing paragra aphs. The T resppondentss have not beeen ablle to briing to ouur noticee any reecord to indicatee that thhe law w laid doown by thet Hon'ble Maadras Hig gh Courrt and thhe possition obbtainingg their from fr hass underg gone any ny chang ge sin nce then.. Becausse of thee fact thaat this order o hass attaineed fin nality, thhis has to t be folllowed aand acco ordinglyy, the OA hass to be allowed d. In parrticular when uponup upggradatio on thee pay fixxation unnder FRR-22(1)(aa)(1) is permitted p d, there is no reason n to treeat it dififferentlyy on an ny pre-ttext; this beccomes a promottion and d service startingg from thhe date of o succh fixatiion cann not but be coun nted as a regulaar servicce whhich wou uld qualiify for being b cou unted to owards ffour yearrs of stipulated perriod wheereupon n the in ncumben nt woulld beccome eentitled to furrther uppgradatiion as per th he stip pulationn in the notifica ation datted 29.8 8.2008 (AAnnexurre A/2 /2).
8. Accordin A ingly, thee OA is allowedd and thee respon ndents arre dirrected too implemment the grant off Grade Pay of R Rs.54000/-
in PB-2
P w.e.f. the date
d the incumbbent com mpleted ffour yearrs of service in the Grade G off PB-2 + Grade Pay of R Rs.48000/- irrespective of whether on prom motion or MA ACP/ACP P, witthin a peeriod off three months m fr from the date of receipt of o a copy c of th this Ordeer."
::18 :: O OA No o.60/2024 4 10.7 It is ap pt to meention th hat Hon''ble Suppreme Co ourt hadd an occcasion to o consiider imp plementaation off judiciaal orderrs wheree a judgment was w nott impleemented d by Govvernmen nt departtment forr similarrly placeed emplo oyees in n the ccase of Somvir S Rana (su R upra) wh hile uphoolding th he order/j /judgmen nt of thee Hon''ble Delh hi High Court (ssupra), th he Hon'bble Apex x Court had observed ass undeer:-
Delay conndoned.
"D Wee find tthat there are several matterss in whhich thee agggrieved employeees have been gooing to th he Tribunnal, then n to the Highh Court and a therreafter thhose mattters are broughtt beffore this court att the insttance off the Uniion of Inddia/NCT T of Delhi.
D Onne the quuestion, in princciple, hass been settled, s iit is onlyy apppropriatte on th he part of o the G Governm ment of IIndia to o issue a Cirrcular soo that itt will save the tiime of thhe courtt andd the Addministrative Deepartmennts aparrt from aavoiding g unnnecessarry and avvoidablee expendditure. The presennt situation is th hat the sstepping g up is aavailablee onlly to thosse who have h appproachedd the cou urt. But ssince thee issue hass otherrwise become b final, we ddirect thee Goovernmennt of Ind dia to immmediattely lookk into thee matterr andd issue aappropriiate ordeers for grranting the t pay- scale so o tha at peoplle need not unn necessarrily travel eitherr to thee gh Court or this Court.
Triibunal orr the Hig Wiith the aabove ob bservatioons andd directions, thee speciall lea ave petitiions are dismisseed."
10.8 The Hon'ble H High Court of Gujaratt in the matter of Vipu ulkumarr Atmaaram Pa arekh an nd otherrs vs. Sttate of G Gujarat through h Secrettary and d otherrs (SCA No.1314/2009) decided d on 24.33.2009 (rreportedd in Gujaarat Law w Repoorter Voll.50 (5) 33914) haas ruled that t :
"9........The model employer e r is one who wo ould not deny ju ust cla aim of hiss employyee and employee e es on anyy technicaal ground. Succh modeel employyer woulld not waait for any a direcction to beb givven to acccept jusst claim of the employeee/employyees. It is furrther obsserved thhat oncee it is foound tha at an em mployee is sim milarly siituated thhe beneffits flowiing from m a judgm ment in a casse of otheer simila arly situa ated emplloyee, it should bbe given to ::19 :: O OA No o.60/2024 4 oth her similaarly situa ated emp ployee an nd emplo oyee shou uld not be b driiven to th he Court for f addreessing ju ust grieva ances....""
11. Since in a caatena off cases the t Honn'ble Hig gh Courrt held that thee officers, who o had com mpleted continuo ous 4 yeears of seervice onn receiveed of thee GP oof Rs.4800/- irreespectivee of said d grade w was gran nted undder ACP P/MACP P Scheme, are entitled to receive beneffit of NF FG in GP P of Rs.5400/- in i PB-II,, and tthe said finding attained d the fin nality, onn dismisssal of S SLP and Review w Petitiion filed d by the respond dents, it is i not oppen to taake contrrary view w by thee respoondents.
As succh in ouur consiidered view v thee respon ndents arre underr lawfull obliggation to o extend the ben nefit of grant g of NFG in GP of R Rs.5400/- to thee simillarly plaaced offiicers eveen witho m/them to appro out insissting him oach thee Courrt/Tribun n separatte order in light of law laaid down nal and tto obtain n by thee Hon''ble Suprreme Coourt and High Co ourt as reeferred herein h abbove. .
12. Thus, the stannd of thee respon ndents noot to graant GP R Rs.5400//- to thee appliicant from m the daate of co ompletion n of 4 yeears conttinuous service from f thee date he had been b graanted GP P Rs.480 00/- i..e.. 19.12.2 2016, thee said denial d on n the ppart of th he responndents in n our con nsideredd view iss contraryy to the law laid d downn by the Hon'blee Suprem me Courtt and thee Hon'blee High C Courts ass well ass this T Tribunall as referred to herein h a above. Thhereforee the subbmission ns of thee respoondents are a not aacceptable as thee same arre not ten nable in the eyess of law.. At thhe same time, t wee found substanti s ial force in the claim of tthe appliicant forr grantt of NF GP of Rs.5400/- from tthe date he com FG in G mpleted 4 yearss contiinuous seervice inn GP Rs.4800/- i.e. 19.122.2016
13. In thee facts aand circcumstancces of tthe casee and foor the forgoing f g reasoons, the present p O OA is alllowed with w the ffollowing g directions:-
(i) The resppondentss are direected to grant Grrade Payy of Rs.5 5400/- to o the appplicant from f 19.12.20166, i.e., the datee on which w hee completted fourr years of serviice on being ggranted ACP A off Rs.48000/-.
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(ii) The appplicant iss entitled
d to all cconsequeential bennefits, in ncluding g the arreaars, if an ny.
(iii) The aboove direcctions shaall be coomplied with w as eearly as possiblee and prefferably within w a period oof three months m from thee date off receipt oof a certiified cop py of thiss Order.
14. Pendin ng MA(ss), if any y, shall sttand dispposed off accordinngly.
15. There shall be no orderr as to co osts.
(Hu ukum Sin ngh Meeena) (Jayesh h V Bhaiiravia) Member (A) Member(J)