Central Administrative Tribunal - Chandigarh
L.S.Duggal Son Of Shri G.S.Duggal vs Union Of India Through Secretary on 30 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH (order reserved on 23.9.2013 ). O.A.NO. 794/HR/2011 Date of Order:---- September 30 , 2013. Coram: Honble Mr. Sanjeev Kaushik, Member (J). Honble Ms. Rajwant Sandhu), Member (A). L.S.Duggal son of Shri G.S.Duggal, presently working as Health Superintendent, O/O Station Health Organization, Chandimandir. Applicant (By Advocate: Mr. D.R.Sharma ) Versus 1. Union of India through Secretary, Ministry of Defence, North Block, New Delhi. 2.Director General, Directorate General of Medical Services (Army), Adjutant Generals Branch, Army Headquarters, `L Block, New Delhi. 3.Officer Commanding, Station Health Organisation, Chandimandir-134 107. 4. Principal Controller of Defence Accounts (WC) Sector 9, Chandigarh. 5. Comptroller General of Defence Accounts, Ulan Batar Road, Delhi Cantt. Respondents (By Advocate: Mr. Sanjeev Sharma). O R D E R. Honble Mr. Sanjeev Kaushik, Member (J):
By means of the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs :-
i) That the respondents be directed to grant the applicant benefit of Ist ACP in the pay-scale of Rs.4500-7000 w.e.f. 9.8.1999, benefit of 2nd ACP in the pay-scale of Rs.5500-9000 w.e.f. 4.11.2000 and benefit of 3rd ACP in the pay band-2 Rs.9300-34800 with grade pay of Rs.4600/- with all consequential benefits of arrears of pay and allowances with interest
ii) That it be declared that on his reversion the pay of applicant cannot be reduced from the pay scale of Rs.5000-8000 fixed at the stage of Rs.6350/- to the pay scale of Rs.4000-6000 at the stage of Rs.5900/- or in the alternative applicant be held entitled to benefit of pay protection on his reversion to the lower post at the stage of Rs.6350/- drawn in the pay scale of Rs.5000-8000.
2. Facts are not in dispute, therefore, brief note is sufficient. The applicant joined the respondent department as Health Inspector on regular basis with effect from 4.11.1976. The Government of India announced Assured Career Progression Scheme on 9.8.1999 for the Central Government Employees. As per the Scheme, two financial up-gradations in the hierarchy of the post to the Central Government employees who remain stagnated for 12/24 years of service, are to be given. The applicant did not get any promotion, therefore, in terms of ACP Scheme, he became eligible for grant of Ist ACP in the pay-scale of Rs.4500-7000 with effect from 9.8.1999 having completed more than 12 years service. However, vide order dated 16.12.1999, the applicant was promoted to the post of Health Superintendent in the pay-scale of Rs.4500-7000 and he assumed his charge as such with effect from 11.3.2000. His pay was fixed at the stage of Rs.5875/- in the pay scale of Rs.4500-7000 vide order dated 23.6.2000. It is the case of the applicant that he was entitled to the pay scale of Rs.4500-7000 w.e.f. 9.8.1999 under ACP, but the same was granted to him on 11.3.2000 on his regular promotion. Thus, the benefit of Ist ACP was illegally denied to him. Thereafter, the claim of the applicant was considered for IInd ACP on completion of 24 years of service and his name was approved on 21.7.2000 for financial up-gradation in the pay-scale of Rs.5000-8000 with effect from 2.11.2000 instead of in the pay scale of Rs.5500-9000 which is the pay scale of next promotional post of Senior Health Superintendent. Vide order dated 7.2.2001, the pay of the applicant was fixed in the pay-scale of Rs.5000-8000 with effect from 4.11.2000 at the stage of Rs.6200/-. The applicant has further submitted that he became entitled to the Ist ACP w.e.f. 9.8.1999 and got his first promotion w.e.f. 11.3.2000 and also became entitled to IInd ACP with effect from 4.11.2000 in the pay scale of Rs.5500-9000 instead of Rs.5000-8000.
3. Due to family circumstances, the applicant made a representation to the respondents on 3.9.2001 for posting him at Chandimandir in the lower grade of Health Inspector. The request of the applicant was acceded to by respondent no.2 vide order dated 25.10.2001 and the applicant was reverted to the post of Health Inspector on his own request and was posted at Chandimandir. On the basis of his reversion, the respondents have issued the fresh pay fixation order dated 5.6.2002 whereby his pay-scale was reduced by two stages to Rs.4000-6000 and basic pay of the applicant was also reduced to Rs.5900/-. At that time, the applicant was drawing the pay of Rs.6350/- as on 1.1.2002, therefore, the reduction of his pay-scale is in violation of the Rules and law. Thereafter, the applicant was promoted to the post of Health Superintendent in the pay scale of Rs.4500-7000 vide order dated 29.12.2008. The applicant again submitted a representation on 13.1.2010 which was duly forwarded by Respondent no.2 on 14.1.2010 claiming benefit of Ist ACP w.e.f. 9.8.1999, IInd ACP with effect from 3.11.2000 in the pay-scale of Rs.4500-7000 and Rs.5500-9000 respectively. The claim of the applicant was considered by respondent no.2 vide order dated 26.2.2010 and accordingly he was granted the IInd ACP grade with effect from 5.1.2009 and the applicant having completed more than 30 years of service, before the issuance of the MACP Scheme with effect from 1.9.2008, he became entitled to 3rd MACP in PB-2 with grade pay of Rs.4600/- with effect from 1.9.2008. The claim of the applicant was not agreed to by respondent no.2 and ultimately vide order dated 22.3.2011, the respondent no.4 has held that the applicant is entitled to only Ist ACP with effect from 9.8.1999 in the pay-scale of Rs.4500-7000. As far as the claim for grant of IInd ACP is concerned, the applicant was informed that the same had already been granted to him with effect from 4.11.2000 in the pay scale of Rs.5000-8000 which was withdrawn by PCDA on reversion with effect from 1.1.2002 and 3rd MACP was granted to the applicant with effect from 1.9.2008 in the pay band of Rs.5200-20000 with grade pay of Rs.2800/-. When the applicant did not get IInd ACP pay scale of Rs.5500-9000 as has been granted to the similarly situated persons, he made a representation to the respondents, but no decision has been taken so far. Hence the Original Application.
4. Pursuant to notice, the respondents have contested the claim of the applicant by filing detailed written statement stating therein that the claim of the applicant for protection of his pay while implementing the reversion order from the post of Health Superintendent which carries the pay scale of Rs.4500-7000 to the post of Health Inspector carrying the pay-scale of Rs.4000-6000 is not tenable as there is no provision for protection of pay drawn against the higher cadre post on reversion to a lower post at ones own request as provided under para 2 of Government of India order no.13 reproduced under Fundamental Rule 22 of FRSR Part I.
5. On merit, the respondents have stated that the benefit of Ist ACP was granted to the applicant with effect from 9.8.1999 vide order dated 26.2.2010 in the pay-scale of Rs.4500-7000. The applicant was promoted to the post of Health Superintendent with effect from 11.3.2000 and was granted IInd financial up-gradation with effect from 4.11.2000 in the pay scale of Rs.5000-8000. It is denied that the applicant is entitled to pay-scale of Rs.5500-9000 on account of grant of 2nd ACP in the pay-scale of Senior Health Superintendent because as per the Recruitment Rules, no such scale exist in the said cadre as the pay-scale of the Senior Health Superintendent is Rs.5000-8000 which was rightly granted to the applicant. They have further submitted that 3rd financial up-gradation under MACP was granted to the applicant in the next grade pay in the hierarchy i.e. Rs.2800/- and he is not entitled to the grade pay of Rs.4600/- as is being sought by him.
6. The applicant has filed a rejoinder in which apart from contradicting the averments, the applicant has annexed the copies of ACP as well as MACP Schemes.
7. We have heard Shri D.R.Sharma, learned counsel for the applicant and Shri Sanjiv Sharma, learned counsel for the respondents.
8. Shri Sharma, learned counsel for the applicant raised two fold arguments, firstly, that he has not been granted the IInd financial up-gradation in the pay-scale of Rs.5500-9000 and has wrongly been placed in the pay-scale of Rs.5000-8000. Therefore, a direction be issued to the respondents to rectify the mistake and grant him the benefit of IInd ACP in the pay-scale of Rs.5500-9000 as has been granted to the similarly situated persons. He further submitted that Shri R.S.Gurain and Shri I.M.Bhatti have been granted the benefit of IInd ACP in the pay-scale of Rs.5500-9000 and the applicant has been discriminated in the grant of IInd ACP pay-scale. Secondly, he submitted that while passing the order of reversion, his pay has not been protected what he was getting when the reversion order has been passed. He also drew our attention to the ACP Scheme (Annexure A-25) particularly clause (xi) and Annexure A-26 clause (iv).
9. Per contra, Shri Sanjiv Sharma, learned counsel appearing on behalf of the respondents has reiterated what has been stated in the written statement and submitted that the applicant is not entitled to the relief in view of the stand taken by the respondents. With regard to the plea of discrimination, he submitted that if the respondents had passed a wrong order in respect of some other person, then the applicant is not entitled to the same which is not legally permissible. He further urged that the present O.A may be dismissed as per Rule 10 of The Central Administrative Tribunal (Procedure) Rules, 1987, as the applicant is seeking multiple reliefs.
10. We have considered the rival contentions and have gone through the pleadings available on record with the able assistance of the learned counsel for the parties.
11. Concededly in the O.A., two reliefs are claimed by the applicant: firstly fixation of his pay in the pay-scale under IInd ACP and secondly that on reversion, his pay is to be protected. Considering the bar in terms of Rule 10 of CAT (Procedure) Rules, 1987, plural relief cannot be entertained in one O.A. Accordingly, we are considering only the second prayer of the applicant that on his reversion, his pay was to be protected which he was getting on that day under the ACP Scheme. Undisputedly, the applicant was granted 2nd financial up-gradation before his actual promotion as Health Superintendent vide order dated 16.12.1999. Whatever financial benefits the applicant got under the ACP Scheme before his actual date of promotion cannot be taken away by the respondents even if the applicant has been reverted to his original post as ACP had merged with the promotion. Whatever the applicant got under the ACP Scheme that will continue to remain in force with him irrespective of the fact that he got the actual promotion. A perusal of the Scheme makes it clear that two financial up-gradations have been extended to a Central Government employee who does not get any promotion and stagnates on the same post on completion of 12/24 years of service. It is clear from clause (xi) of the Assured Career Progression Scheme ( Annexure A-25 ) that if an employee after availing the financial up-gradation under the ACP Scheme, subsequently refuses to accept the regular promotion, the financial up-gradation already granted will not be withdrawn. However, the subsequent financial up-gradation will get postponed. Similarly, the respondent department issued a letter dated 18.9.2003 regarding implementation of ACP Scheme where under the heading of cases where individuals have refused/refuses regular promotion, procedure has been laid down. The same reads as below :-
Grant of higher pay scale under the ACP Scheme shall be conditional to the fact that an employee while accepting the said benefit shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case, he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion. However, as and when he accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required `eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. Further, if an employee does not accept promotion, the first ACP if granted earlier, shall not be withdrawn. A perusal of the above makes it clear that an illustration has been given that if an employee gets Ist ACP and thereafter he is given promotion, but he refuses to accept the same, then his ACP is not to be withdrawn. In the present case, the applicant got two financial up-gradations before his promotion, therefore, in view of the above, the same cannot be withdrawn on the pretext that the applicant had sought reversion or refused to accept promotion on the next higher post. This can be viewed from another angle that if an employee refuses promotion, then the financial up-gradation under the ACP/MACP can validly be denied to him. Otherwise, if one keeps benefit under the ACP Scheme and subsequently if he refuses promotion, then the benefit under the ACP Scheme already granted cannot be withdrawn.
12. In view of above discussion, we find that the action of the respondents in not fixing the pay of the applicant in the pay-scale of Rs.4500-7000 which he was already getting with effect from 9.8.1999 under the ACP Scheme on the date of his reversion with effect from25.10.2001 is illegal. Thus, the applicant is held entitled to the pay-scale which he got under the Ist & IInd ACP Scheme. This exercise be concluded within a period of two months from the date of receipt of copy of this order. With regard to other claim, the applicant is at liberty to file a separate O.A, if so advised.
13. The O.A stands disposed of in above terms. No costs.
(RAJWANT SANDHU) (SANJEEV KAUSHIK) MEMBER (A). MEMBER (J) Dated:- September 30, 2013. Kks