Central Administrative Tribunal - Kolkata
Sandhya Goswami (Paladhy) vs M/O Women And Child Development on 9 November, 2022
1 OA 350/1638/2018 CENTRAL ADMINISTRATIVE TRIBUNAL Q\ KOLKATA BENCH, KOLKATA 90 Tote 0.A./350/1638/2018 PF yas gr | Date of Order: %I\.2e22 A Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member in the matter of : Smt. Sandhya Goswami (Paladhy) daughter of Late Abani Mohan Paladhy and wife of Shri .Chitta Ranjan Goswami, aged about 65 years since retired as Laboratory Assistant, Food & Nutrition Board (Eastern Region), Quality Control. Laboratory, Ministry of Woman & Child Development Govt. Esplanade East, of India, Kolkata- 700 8, 069, residing at 6/2/2F, Naktala Road, Kolkata-700 047. . w.. Applicant Vs. 1) Union of India, service through the Secretary, Ministry of Women & Child Development, Shastri Bhawan, New Delhi 110001. 2) Under Secretary to the Government of India (NA), Ministry of Woman & Child Development, Jeevan Vihar Building, 3rd Floor, Parliament Street, New Delhi 110001. ; 3) The Deputy Director, Food & Nutrition Board, Ministry of 'Women & Child Development, ae kt eee , 2 OA 350/1638/2018 Shastry Bhawan, Wing-'A', New | Delhi-110001. | 4) Deputy Technical Adviser (ER), Food & Nutrition Board, Ministry of Women & Child Development, 8, Esplanade East, Kolkata-700 069. besaeene Respondents For The Applicant(s): Mr. J. R. Das, Counsel For The Respondent(s): Mr. 8. Paul, Counsel ORDER (ORAL)
Per: Dr. (Ms.) Nandita Chatterjee:
Aggrieved at not having received her 3 MACP benefits @ Grade Pay of Rs. 5400/- with effect from 01.09.2008, the applicant has approached this Tribunal claiming the following relief as per amended application dated 01.01.2020 and further amended as permitted by this Tribunal on 02.11.2022 :-
"(i) An order directing the respondents to cancel rescind withdraw or set aside the purported order dated 24.09.2018 as also 18.02. 2019 thereafter by the self same authority following self same judgment of the Hon'ble Tribunal being dated 09.08.2018 in OA 350/00723/2018 since both the orders being in violation of the direction of this Hon'ble Tribunal vis a vis in contrary to the guidelines of Hon'ble Apex Court either. |
(ii) An order directing the respondents to allow her due MACP Iil benefits w. e. f. 01.09.2008 @ GP Rs.5400/-in conformity to due higher scale of Rs.8000-13500/- {pre-revised) as upheld by Hon'ble CAT Madras Bench, since upheld by Hon'ble Madras High Court followed by Order of Hon'ble Apex Court of india;
(iii) An order directing the respondents to implement the Ministry of Women & Child Development Order since communicated through OM dated 13.01.2017, forwarded through OM dated 23/24.01.2017 and to include the applicant herein to allow her with her due benefit of MACP Ill at higher rate of GP @ Rs.5490/-w.e.f. 010.9.2008 in compliance with directions of Hon'ble Courts and review/revision of pension & Pensionary benefits along with calculation & payment difference of pay/pension and pensionary benefits with statutory interest thereon in a time bound manner.
iv) An order directing the respondents to amend/correct the 0/0 No. 31 dated 16.05.2012 considering Rs.5400/-GP, at MACP Ill since Wh 3 OA 350/1638/2018 01.09.2008 as per Hon'ble Court orders vis-a-vis effect correction/enhancement of pension & pensionary benefits thereto and pay the arrears of difference of amounts paid with statutory interest thereto.
v) An order/direction directing the respondents to place all the relevant papers/records before the Hon'ble Bench with copy to the Ld. Advocate appearing for the applicant for conscionable justice.
vi) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
2. Heard both Ld. Counsel. Examined pleadings and documents on record.
Written notes of arguments have been furnished by both the Ld. Counsel.
3. The facts of this matter, in brief, is that the applicant had joined the respondent authorities as a Laboratory Assistant on 22.02.1976. She was allowed 1** ACP on 09.08.1999, 2"! ACP on 26.02.2000, and, with the effect of the 6" CPC from 01.01.2006, her pay scale of Rs. 5000-175-9000 was revised to Rs. 9300- 34,800 with Grade Pay of Rs. 4200/-.
That, in the meantime, on 25.05.2007, the Principal Bench of this Tribunal allowed the prayer of the applicants therein in O.A.s 477-480/2006 (Ashok Kumar Braroo & Ors. vs. M/o Women and Child Development), and, the Madras Bench of this Tribunal similarly allowed 0.A.s 197-200/2006 (G. Uma Maheshwar Rao & ors. vs Union of India & ors.) which was further upheld by the Hon'ble High Court of Madras, as well as, the Hon'ble Apex Court of India. Such judicial decisions culminated in OMs dated 23/24.01.2017 of the respondent Ministry that granted financial upgradation under ACP (annexed at Annexure-A/5 collectively to the OA).
Accordingly, when the applicant was allowed her 2" and 3" upgradation of MACP in PB-2 with Grade Pay of Rs. 4600/- and Rs. 4800/- with effect from 01.09.2008 vide orders dated 16.02.2012, the applicant represented for review of aed Se) 4 OA 350/1638/2018 such decision and prayed to allow her the Grade Pay of Rs. 5400/- as payable to the post/grade of Assistant Technical Advisor(ATA). The applicant retired on superannuation on 31.03.2013, and, as her further representations from 2016 to 2017 remained unattended, and, being aggrieved, the applicant approached this Tribunal in first stage litigation in O.A. 350/723/2018 which was disposed of on 09.08.2018 directing respondent no. 1 to issue a reasoned and speaking order after having examined the judicial pronouncements cited by the applicant in her original application.
That, the respondent authorities, in compliance thereof, issued a speaking order on 24.09.2018 in which, they acknowledged the fact that, in compliance to the orders dated 25.05.2007 of the Principal Bench of the Central Administrative Tribunal, the respondents had allowed the prayer of the applicants therein, namely, the Demonstration Officers, the next financial upgradation in the ACP Scheme in the pay scale of 8000-13500 with effect from 09.08.1999. The respondents, however, reasoned that such judgment was "in personam" and not "in rem", and, accordingly, as the applicant herein had not approached the Principal Bench in the said O.A.s, she could not be extended benefits as a similar circumstanced candidate.
4. The applicant has challenged this speaking order of September, 2018 . mainly on two grounds, namely, that, the signatory to such order was the Dy. Director who, not being the respondent no. 1, was not competent to issue such orders in compliance of the orders this Tribunal. The applicant would also rebut the fact that the judgment of the Principal Bench of this Tribunal was in personam as the Hon'ble Apex Court had, on many occasions, directed that to prevent ae 5 OA 350/1638/2018 continuous series of litigations, the decision of the Hon'ble Court should be applied and implemented in the case of all similarly situated employees.
That, without rectification, modification, or supersession of the speaking order dated 24.09.2018, the same respondent authority, namely, the Dy. Director, issued another speaking order on 18.02.2019 in which the prayer of the applicant was primarily regretted on the ground that the judgment of the Central Administrative Tribunal's Madras Bench as upheld by the Hon'ble High Court of Madras, as well as the Hon'ble Apex Court were related to Demonstration Officers which is the feeder grade of Assistant Technical Advisor (ATA), and, that the applicant cannot claim the Grade Pay of Rs.5400/- which is the Grade Pay of promotional hierarchy and to which the applicant was not entitled, because she continued to serve as a Laboratory Assistant throughout her service career and superannuated in the same post.
The speaking order dated 18.02.2019 is questioned primarily on the following contexts, namely, that, akin to the earlier speaking order of September, 2018, the instant order of February, 2019 was issued by an incompetent authority, i.e., the Dy. Director; and, that, although the Recruitment Rules have been amended by an O.M. dated 12.03.2015, the applicant cannot be subjected to amended Recruitment Rules as she had retired upon 'superannuation on 31.03.2013, and, the Grade Pay to which she is entitled should be as such guided by Recruitment Rules that prevailed on or before 31.03.2013. Ld. Counsel for the applicant would also highlight that, as the MACP scheme dated 19.05.2009 starts with the following preamble, namely, "financial upgradation will be available in the next higher Grade Pay', wherever the employee has been stagnating without _ receipt of any promotion, the applicant's claim to next higher Grade Pay should a 6 OA 350/1638/2018 be associated not to the post to which she belongs, but, to the next hierarchy of 'e) promotional pay scale.
More specifically, the applicant would furnish the following grounds in support of her claim:-
5.
"For that the so-called order dated 24.09.2018 has been signed and issued by a Subordinate Authority without being authorised by the authority so d.rected by the Hon'ble Bench and/or not signed for and on behalf of the authority so directed in contrary to and in violation of the direction of fhe Hon'ble Tribunal.
For that the respondent authority being in full knowledge that the instant issue of due higher pay Scale/grade pay at the stage of 3rd MACP has already been setifed by different Hon'ble Tribunals, Hon'ble Madras High Court, as also Hon'ble Apex Court of India, but not implemented till date against all procedures of law.
For that the Respondent Authority being in full knowledge of the orders/directions of different Hon'ble Courts including Hon'ble Apex Court of India, have miserably failed to implement the issue in general but in cases of specific Court direction only, being in contrary to Hon'ble Apex Court direction either.
For that the Hon'ble Apex Court has directed on different occasions that every one need not come before the Court but any decision of the Hon'ble Court is to be implemented in case of alf the similarly situated candidates, but blatantly ignored in case of the present applicant due to the reasons best known to them.
For that all on a sudden, the applicant has further been issued with another order being order dated 18.02.2019 by. the said identical authority who issued earlier order dated 24.09.2018 in terms of said identical order of the Hon'ble Tribunal being dated 09.98.2018 in OA 723/2018 against ail the rules of law and all principles of justice either.
For that the applicant has retired on superannuation on 31.03.2013 and that the RR has served been amended/ altered by the OM dated 12.03.2015, hence the applicant cannot and should not be subjected to should altered/ amended Recruitment Rule position and not be subjected to the served DO Gr-1 bui the existing RR as on or before 31.03.2013 only."
In his written notes, Ld. Counsel for the applicant has supplemented his arguments as under :-
(i) That, the applicant is subject to the following regular promotional hierarchy:-
Laboratory Assistant --
(Rs.3200-4900/-) 10 years Demonstrator/Technical Assistant (Rs. 5000-8000/-) J ; Both the scales seing merged to Rs.
: 5500/- - Rs 9000/- in the Food & 5 years r Nutrition Board w.e.f. 01.01.2006 vide order/letter dated 01.08,12 4 Demonstration Officer (DO) (Rs. 5500-9000/-} _ 4 Meh
7 OA 350/1638/2018 5 years g ATA (Rs. 8000-13500/-) (as per available vacancies) lustratively, Ld. Counsel for the applicant would refer to the decisions in O.A. 712 of2013 (Sasanka Sekhar Pore Vs. Uol & ors.) (at Annexure WNA-6 to the written notes of arguments) in which a Technical Assistant, namely, Sasanka Sekhar Pore, had approached this Tribunal for implementation of the judgment and order of the Central Administrative Tribunal's Madras Bench, as upheld by the higher judicial fora. The Kolkata Bench of this Tribunal allowed the said original application in the backdrop of the order of the Principal Bench dated 25.05.2007, as well as that of the Madras Bench as upheld. Accordingly, as the applicant therein, Sri Shashank Shekhar Pore, who was appointed as a Technical Assistant on 24.10.1977, was allowed first ACP in scale of Rs. 5500-9000 with effect from 09.08.1999 and second ACP in the scale of Rs. 8000-13500 with immediate effect from 25.10.2021 (annexed at Annexure WNA-2 of written notes of arguments of Ld. Counsel for the applicant) in terms of the judicial decisions. The applicant, would hence claim that her second ACP should be decided in terms of the scale of Rs. 8000- 13500 akin to that granted to Shri Sasanka Sekhar Pore.
Ld. Counsel for the applicant would further argue that, not only was the applicant entitled to the Grade Pay of Rs. 5400/- commensurate with the pay scale of Rs. 8000-13500, in accordance with the existing system of promotional hierarchy, but alse, granting her a pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4600/-, My "
8 OA 350/1638/2018 sanctioned to her vide office order no. 31 dated 16.05.2012 (at Annexure WNA-3 to the written notes of arguments) was erroneous as the applicant was entitled to a Grade Pay of Rs. 5400/- and not Rs. 4600/- as granted to her vide orders dated 16.05.2012. Ld. Counsel would further argue that, this Tribunal, in its Madras Bench, had held that, insofar as the grant of ACP is concerned, it is the next hierarchy under the service rules that should govern the grant of financial upgradation, and, hence, the applicant would refer to the promotional hierarchy of Demonstrator/Technical Assistant whose pay scales were merged at Rs. 5500-9000 with effect from 01.01.2006 culminating the next higher pay scale of Rs. 8000-13500 in the post of ATA. The final argument of Ld. Counsel is that, admittedly, the applicant, who has been a Laboratory Assistant, has not been granted a single promotion in her entire service career, but, as her prayer is related to ACP/MACP benefits, her claim to the next hierarchy in the promotional level is justified and deserves consideration in the light of the judgments of the Principal Bench, as well as that of the Madras Bench of this Tribunal as upheld by the higher judicial fora.
6. Per Contra, the respondents have in their written statement as well as written notes of arguments of their Ld. Counsel, sought to rebut the claim of the applicant as under :-
(i) The respondents would clarify in their reply, that the order dated 18.02.2019 was, in fact, a rectified speaking order which superseded the earlier speaking order of 24.09.2018 as the earlier speaking order a ¢ 9 . OA 350/1638/2018 had not examined the applicability of judicial decisions referred to by this Tribunal in O.A. 350/1638/2018,
(ii) That, the orders of the Central Administrative Tribunal, Madras Bench dated 14.09.2007 was regarding the Demonstration Officers/Sr. Technical Assistants who were claiming the pay scale of Rs. 8000-13500 with effect from 01.08.1999. The applicant, however, was never in the post of Demonstration Officer/Sr. Technical Assistant in her service life, and, accordingly, the decision of this Tribunal in its Madras Bench cannct be made applicable to the prayer of the applicant herein.
(iii) That, para 13 of the OA in G. Uma Maheshwar Rao (supra) had questioned the reversion in pay scale and recovery thereupon in the absence of reasonable opportunity to the applicants therein in the form of any show cause notice.
(iv) | That, DoPT circular dated 17.05.2016 has specifically and clearly stated that financial benefit of MACP should not be granted in the Grade Pay of promotional hierarchy, but in the hierarchy of next higher Grade Pay.
(v) That, DoPT's OMs of 2016 are not retrospective or ex post facto law i as it is not intended to have any backdated effect to declare its effectivity with respect to an earlier date.
7. Upon consideration of the rival contentions,and,having perused the documents on record, this Tribunal would be of the considered opinion that the primary issue which is to be decided upon in the instant O.A. is whether the MACP
-
10 - OA 350/1638/2018 benefits are to be granted in the hierarchy of next higher Grade Pay or in the Grade Pay of promotional hierarchy which will be paid on actue! promotion.
"In this context, the applicant would claim that she is entitled to the Grade Pay of promotional hierarchy to Assistant Technical Advisor (ATA), i.e. Rs. 5400/- with effect from 01.09.2008. On the other hand, the respondents have argued that the applicant is only entitled to such Grade Pay which is in the hierarchy of next higher Grade Pay, and, accordingly, have granted her the Grade Pay of Rs. 4600/- as on 01.09.2008, and, Rs. 4800/- consequent to financial upgradations under 2™ and 3 MACP respectively.
8.' This Tribunal would hence arrive at the following findings:-
The MACP scheme dated 19.05.2009(annexed at Annexure-WNA/5 of the written notes of arguments of Ld. Counsel for the applicant) and made effective from 01.09.2008 staris with the following preamble:-
The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations,.financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group "A"
whether isolated or not. However, organised Group "A" services will not be covered under the Scheme"
In para 2 of the MACP scheme (annexed at Annexure A-1 to the O.A.), the following has been stated:-
"2. The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial upgradation under the MACPS can, certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cass, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion."
9. The earliest decision in this regard dated 04.04.2011 was that by the Hon'ble High Court of Delhi in W.P.(C) No. 3420/2010 in the case of R. S. Sengor & ors. Vs. Uol & ors. This was followed by the order of the Chandigarh Bench of this Tribunal in the case of Raj Pal vs. Uol & ors (0.A. 1038/CH/2010) which, was her.
a"
OC che 11 OA 350/1638/2018 4 a per incuriam given the fact that the judgment of the Hon'ble High Court of Delhi. was available at that point of time. The decision in Sengor (supra) was followed by the decision in Swaran Pal Singh & ors. Vs. Uol & ors. [W.P. (C) No. 5082/2013], and, also in Uol vs. Delhi Nurses' Union (regd.) & anr. reported in 193 (2012) DLT 577. Further, the Hon' ble Apex Court in the case of Secretary, Govt.
(NCT of Delhi) & ors. vs. Grade-l DASS Officers Association & ors. [2014(13) SCC
- 296], while considering the ACP scheme, held that the scheme being a policy decision of the Government, the Courts will not interfere in the same.
Again, paras 2, 8 and 8.1 of the MACP scheme dated 19.05.2009 would lead to an irresistible conclusion that it is the next higher Grade Pay. which is to be awarded and not the Grade Pay in the hierarchical post. This issue has also been settled by DoPT's order dated 17.05.2016 which held as under:-
" 7 Office Memorandum Subject:References/Representations/Court Cases in various Ministries/Departments/ Organisations for grant of MACPS benefits in the promotional hierarchy- reg.
In continuation of Department of Personnel Training's earlier O.M. of even no. dated 20.01.2016 and dated 01.03.2016 on the above mentioned subject, the undersigned is durected to forward a copy of the decision dated 28.04.2016 of Hon'ble CAT, Calcutta Bench in OA No. 351/00195/2014 filed by Shri S.H.K. Murti & Others Vs. UOl &Ors whereby the of the applicant for MACP in promotional hierarchy has Seen dismissed, for necessary action and compliance. The Hon'ble Tribunal in the aforesaid decisian dated 28,04,2016 has held that the MACP benefit would be given in the hierarchy of next higher Grade Pay and not in Grade Pay of promotianal kierarchy which will be payable on actual promotion. :
a 2, All Ministries/Departments are requested to upload it on their websites for wider pubiicity.1
10. An O.M. of DoPT dated 20.01.2016, while referring to the matter of Union of India Vs. M.V. Mohanan Nair (Civil Appeal No. 2016 OF 2020), directed as follows:-
"The undersigned is directed to forward herewith a copy of the stay order dated 08.08.2014 passed by Hon'ble Supreme Court in CC No. 8271/2014 (converted to SLP No. 21803/2014) in the matter. of UO! Vs. Shri M.V. Mohanan Nair on the order of the Hon'ble High Court of Kerala ir OP(CAT) No. 2000/2013(Z) regarding grant of MACP benefit in the promotional hierarchy, for information".
In the case of Mohanan Nair (supra), the Ernakulam Bench of this Tribunal, while relying on the decision of the Principal Bench in the matter of Ved Prakash Vs. Uol (0.A. 624 of 2012), granted MACP benefits by allowing Grade Pay in the | eA ' 12 OA 350/1638/2018 , .
, aa .
© next promotional scale. Upon issue of the final judgment and orders in Mohanan Nair (supra), DoPT issued their OM dated 23.03.2020 which conclusively stated as under :-
"2. The Hon'ble Apex Court, in its aforesaid judgment, has, inter alia, set aside all the impugned orders of the High Courts in these batch of appeals arising out of SLP (C) No. 21803 of 2014, SLP(C) No. 22181 of 2014, SLP (C) No. 23335 of 2014, SLP (C) No. 23333 of 2014, SLP (C) No. 18227 of 2015, SLP (C) No. 31125 of 2016 and SLP (C) Diary No. 6042 of 2017, and the appeals preferred by the Union of India have been allowed. Further, the appeal arising out of SLP (C) No. 33706 of 2016 is also disposed of. Consequently, the Apex Court has upheld the Govt. policy that benefits under MACPS are to be granted in the standard hierarchy of Grade Pays/Pay Levels and not in the promotional hierarchy."
Ink. S. Sengor & Ors. vs. VOI & Ors. [WP{C) 3420/2010], the Hon'ble Apex Court had referred to para 2, 8 and 8.1 of the MACPS and concluded with the following observations :- (emphasis supplied) "2, The MACPS envisages merely placement in. the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade poy at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promoticn post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion.
8. Promotions eamed in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs.5,400/- is now in two pay bands viz., PB-2 and PB-3. The grade oay of Rs.5,400/- in PB-2 anc Rs.5,400/- in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."
Annexure | to the DOPT OM dated 19.5.2009, vide illustration 4 clarifies as under
"in case a Govt. servant joins as a direct recruits in the Grade Pay of Rs.1,900/ in Pay Band-I Rs.5,200- 20,200/- and he gets no promotion till completion of 10 years of service, he will be granted financial upgradtaion under MACP scheme in the next higher Grace Pay of Rs.2,000;- and his pay will be fixed by granting him one increment + difference of grade pay (i.e. Rs.100/-). After availing financial upgradation under MACP scheme, if the Govt servant gets his regular promotion in the hierarchy of his cadre, which is to the Grade of Rs.2,400/-, on regular promotion, he will only be granted tke difference of Grade Pay of between Rs.2,000/- and Rs.2,400/-. No additional increment will be granted at this stage,"
7. Noting the relevant facts Inspectors in the Pay Band 2 Rs.9,300-34,800/- get a Grace Pay of Rs.4,600/- have been granted under the MACPS the first financial upgradation by retcining the Pay Baad but giving the Grade Pay Rs.4,800/-. Their grievance as raised in the writ petition is that they are entitled to the Grade Pay Rs.5,400/- and to highlight the basis of their claim it is to be noted that the next hierarchical post j.e. that of Asst. Commandant is in Pay Band Rs.15,600-39,100/- with Grade Pay Rs.5,400/-. It be clarified that they do not claim a right to be placed in the Pay Band Rs.15,600-39,100/- but claim benefit of the Grade Pay of the said Pay Band and it is apparent that the basis of the claim is paragraph 2 of the MACPS which states that the Scheme envisages placement in the immediate next higher Grade Pay hierarchy.
&. It be noted that the erstwhile pay scales S-9 to $-15 which ranged between Rs.4,500-7,000/- to Rs.7,500-12,000/- have all been placed In Pay Band 21.e. 8s.9,300 34,800/- with Grade Pays Rs.4,200, Rs.4,600 and Rs.4,800/-.
9. Thus, the respondents state that they have correctly granted MACPS benefit by upgrading the Grade Pay of inspectors from Rs.4,600/- to Rs.4,800/-.
10. The question would be whether the hierarchy contemplated by the MACPS is in the next higher Grade Pay or is it the Grade Pay of the next above Pay Band.
"
13 OA 350/1638/2018
11. Whatever may be the dispute which may be raised with reference to the language of paragraph 2 of the MACPS the illustration as per para 4 of Annexure | to the OM, contents whereof have been extracted hereinabove, make it clear that it is the next higher Grade Pay which has to be given and not the Grade Pay in the next hierarchical post and thus we agree with the respondents that Inspectors have to be given the Grade Pay after 10 years in sum of Rs.4,800/- and not Rs.5,400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post. To put it pithily, the MACPS Scheme requires the hierarchy of the Grade Pcys to be adhered to and not the Grade Pay in the hierarchy of posts. . ' 12, The writ petition is dismissed, DoPT issued another O.M. dated 01.03.2016 in the context of grant of MACP benefits in the promotional hierarchy to state as follows:-
"In continuation of DOP&T's earlier O.M. of even No. dated 20.01.2016 on the above mentioned subject, the undersigned was directed to forward a copy of the decision of the Hon'ble CA.T., Ahmedabad Bench In
0.A.No.120/000018/2015 filed by Manubhai Bhagwanji Rathod vs. Union of Indic & Ors, whereby demand of the applicant for MACP in the promotional hierarchy has been dismissed."
In Mohanan Nair (supra), this Tribunal in its Coordinate Bench was deciding on an identical issue, namely, "the question would be whether the hierarchy contemplated by the MACPS is in the immediately next higher grade pay or is it the grade pay of the next above pay band".
Finally, this issue has been settled conclusively by the Hon'ble Apex Court in Mohanan Nair (supra) in which the Hon'ble Apex Court has ruled in the following lines :-
"51, The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the government's policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pal's case. The impugned orders cannot be sustained and are liable to be set aside."
11. Accordingly, this Tribunal would be of the firm conclusion that the MACP benefits would indeed be guided by the next hierarchical grade of pay and not in the grade pay of promotional hierarchy which is payable on actual promotion. The applicant herein, undoubtedly, had not received a single promotion, and, hence, would be entitled to the Grade Pay in the next hierarchy of pay scale as detailed by the orders dated 16.05.2012. | aA 14 . OA 350/1638/2018 >
12. The applicant would aver that OMs of 2016/amended Recruitment Rules cannot impinge on the applicant's rights that emanated prior to 2013. DoPT's OMs of 2016 are on the principle enunciated by the MACP Scheme and a principle would have uniform application overtime. The OMs, issued in compliance to judicial decisions, have settled the principle that grade pay as noted in the MACPS is to be granted in the next hierarchy of pay scale and not in the grade pay of promotional hierarchy which will be payable on actual promotion.
13. _ Finally, both speaking orders dated 24.09.2018 and 18.02.2019 as conveyed by the Deputy Director have referred to the decision of the competent authority. Accordingly, the allegation that the orders were issued by an incompetent authority is not sustained.
We, hence, do not find that the claim of the applicant deserves consideration, and, therefore we find no reason to interfere with the decision of the respondent .
authorities.
14. TheO.A. is dismissed on merit. There will be no orders on costs.
ON ; NL ae Ee a .
(Dr. Nandita Chatterjee) (Mr. Jayesh V. Bhairavia) Administrative Member Judicial Member UJ