Karnataka High Court
Union Of India vs Sri M.V.S.S.Ganeshwar on 19 May, 2025
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WP No.1629/2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT PETITION NO. 1629/2025 (S-CAT)
BETWEEN
1. UNION OF INDIA,
REPRESENTED BY DIRECTOR GENERAL,
CENTRAL PUBLIC WORKS DEPARTMENT,
MINISTRY OF HOUSING AND URBAN AFFAIRS,
NEW DELHI-110001.
2. CHIEF ENGINEER,
CPWD, BENGALURU - 560034.
3. THE EXECUTIVE ENGINEER (HOO),
OFFICE OF CHIEF ENGINEER,
CPWD, BENGALURU - 560034.
4. ASSISTANT ADMIN. OFFICER,
OFFICE OF CHIEF ENGINEER,
CPWD, BENGALURU - 560034.
...PETITIONERS
(BY SRI. KUMAR M N, CGC)
AND
SRI M.V.S.S.GANESHWAR,
AGED ABOUT 55 YEARS,
SON OF M. SURYANARAYANA MURTHY,
WORKING AS PRIVATE SECRETARY,
OFFICE OF THE
CHIEF ENGINEER-BENGALURU,
CPWD, VI FLOOR, D WING,
KENDRIYA SADAN,
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WP No.1629/2025
KORAMANGALA,
BENGALURU-560034.
...RESPONDENT
(BY SRI. KAMALESAN P, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI TO QUASH THE FINAL ORDER DATED
24.09.2024 PASSED IN OA No-170/00461/2023 BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH
VIDE ANNEXURE-D, ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.03.2025, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, V KAMESWAR
RAO J., MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
AND
HON'BLE MR JUSTICE T.M.NADAF
CAV ORDER
(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO)
The present petition has been filed by the Union of
India represented by the Central Public Works Department
and its functionaries challenging the order dated
24.09.2024 passed by the Central Administrative Tribunal,
Bengaluru Bench, Bengaluru in Original Application
No.170/00461/2023, whereby the Tribunal has allowed
the OA filed by the respondent by stating as under:
"10. From the aforesaid rulings it is clear that
the stance of the respondents - Union of India and
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WP No.1629/2025
others, that non-functional Grade Pay of Rs.5400/-
would not be granted to such of those officers who
had got Rs.5400/- on upgradation under ACP scheme
was negated by the Hon'ble Courts. In such
circumstances, the respondents denying the claim of
the applicant on the same ground is unjustifiable.
Accordingly, the matter calls for interference by this
Tribunal. Hence we pass the following:
ORDER
1) The impugned orders dated 14/15.05.2023 (Annexure A4) and 16.08.2023 (Annexure A8) issued by the Respondent No.4 are set aside.
2) The respondents are directed to consider the case of the applicant for grant of Grade Pay of Rs.5400/- from 09.03.2023 in terms of the order passed by the Hon'ble Apex Court in M.Subramaniam's case supra and pass an appropriate order in an expedite manner, in any event not later than 12 weeks from the date of receipt of the certified copy of the order.
3) OA stands disposed of in terms of above. No order as to costs."
2. The respondent had approached the Tribunal challenging the orders dated 14/15.05.2023 issued by petitioner No.4. A reading of the aforesaid order would reveal that, the request of the respondent for granting him the grade pay of Rs.5,400/- with effect from 25.03.2017 after completion of four years of regular -4- WP No.1629/2025 service in the grade pay of Rs.4,800/- was denied and further, representation made by him was rejected.
3. The respondent was initially appointed as Steno Grade III w.e.f. 09.03.1989. He was promoted to Grade II Steno from 20.08.2003 and Grade I from 25.03.2013, which was in the pay scale of Rs.7500- 34800, which is in Group-B. There is no dispute, the respondent who was working as a Private Secretary on being promoted to the said post for the vacancy year 2020 in terms of the Office Order dated 11.11.2022, his pay was fixed in the PB-2, Rs.9300-34800 with grade pay of Rs.4,600/-. He was granted the 3rd financial upgradation under the Modified Assured Career Progression Scheme (MACPS) w.e.f. 09.03.2019, whereby he was granted the grade pay of Rs.4,800/-. His case was that, on completion of four years regular service in the grade pay of Rs.4,800/-, he has become eligible for grade pay of Rs.5,400/- in accordance with Finance Ministry resolution dated 29.08.2008. The same having been rejected, resulted in the filing of the OA before the Tribunal. The -5- WP No.1629/2025 respondent had relied upon the order of the Supreme Court in the case of Union of India and Ors. -Vs.- M. Subramaniam [Civil Appeal No.8883/2011, decided on 10.10.2017 and Review Petition (Civil) No.2512/2018, decided on 25.08.2018], wherein, identical relief was granted in accordance with Finance Ministry resolution dated 29.08.2008. Reliance was also placed on the judgment of the Calcutta High Court in the case of Union of India and Ors. -Vs.- Arabinda Pathak and Ors. [WPCT No.85/2021, decided on 22.02.2022]. The case of the petitioners before the Tribunal was that, the respondent is holding a functional post carrying grade pay of Rs.4,600/-, but he was placed in the grade pay of Rs.4,800/- in PB-2 (non-functional basis) by virtue of 3rd financial upgradation w.e.f. 09.03.2019 under MACPS. So in that sense, the respondent has not held the post in grade pay of Rs.4,800/- in PB-2 on regular basis and as such, he is not entitled to grade pay of Rs.5,400/-. In fact it was stated that, resolution of Department of Expenditure dated 29.08.2008 is not applicable to the case in hand. The -6- WP No.1629/2025 Tribunal, by referring to the order of the Central Administrative Tribunal, Madras Bench in OA No.167/2009 and also of the Madras High Court and the fact that the judgment of the Madras High Court in the aforesaid case of M. Subramaniam [MANU/TN/ 4732/2010] has attained finality on the dismissal of SLP by the Supreme Court and the review petition is also dismissed and by referring to the judgment of the Calcutta High Court in the case of Arabinda Pathak (supra), has granted the relief in favour of the respondent herein. Submissions:
4. The submission of Sri. Kumar.M.N, learned CGC for the petitioners is primarily that, the respondent has already been sanctioned three financial upgradations of 12 years, 20 years and 30 years respectively in terms of the ACP and MACPS and the direction of the Tribunal would be contrary to the Recruitment Rules i.e., Stenographer (Grade-I), (Group-B Post), Recruitment Rules, 2017 and Central Civil Services (Revised Pay) Rules, 2008 and 2016. In support of his submission, he has drawn our attention to the orders dated 14/15.05.2023 and -7- WP No.1629/2025 16.08.2023 impugned before the Tribunal to contend that, there is no provision under the Central Civil Services (Revised Pay) Rules, 2008 and 2016 and Recruitment Rules for fixation of pay on the post of Senior Private Secretary for fixation of pay in PB-3 + grade pay of Rs.5,400/- to Private Secretaries on completion of four years service in PB-2 + grade pay of Rs.4,800/-. He would state that, in view of the judgments of the Supreme Court in the following cases, the respondent is not entitled to the said grade pay:
i. Union of India and Ors. -Vs.- M.V.Mohanan Nair [(2020) 5 SCC 421], ii. Director, Directorate of Enforcement and Anr. -Vs.- K Sudheesh Kumar and Ors.
[(2022) 3 SCC 649] and iii. Union of India and Ors. -Vs.- N.M.Raut and Ors. [2024 SCC OnLine SC 3873].
5. On the other hand, Sri. Kamalesan.P, learned counsel for the respondent would justify the order of the Tribunal, which has relied upon the judgment in the case of M. Subramaniam (supra) of the Madras Bench of the Tribunal and also of the Madras High Court to contend -8- WP No.1629/2025 that, SLP against the judgment of the Madras High Court in M. Subramaniam (supra) has been dismissed, so also the review petition, wherein the issue which has been raised by the petitioners herein has been decided, so the issue is no more res integra. It was his submission that, the Tribunal had rightly relied upon the judgment in the case of M. Subramaniam (supra) for granting the relief to the respondent herein. Learned counsel for the respondent has relied upon the order of the Chennai Bench of the Tribunal in the case of P.S. Ramasamy and Ors. -Vs.- Union of India and Ors.
[OA No.87/2024 and connected applications, decided on 27.01.2025] to contend that, a similar benefit has been granted to the applicants therein by relying upon the judgment of the Madras High Court, as upheld by the Supreme Court in the case of M. Subramaniam (supra). He has also relied upon the judgment of the Punjab and Haryana High Court in the case of Union of India and Ors. -Vs.- Sanjeev Dhar and Ors. [CWPs No.3430 and 3923 of 2017 (O&M), decided on 11.12.2017] to contend that, a similar benefit -9- WP No.1629/2025 has been given to the respondents therein by the High Court. Similarly, reliance has been placed on the judgment of the Bombay High Court in the case of Union of India and Ors. -Vs.- Shri. Deepak B. Deshmukh and Ors. [WP No.1543/2025, decided on 17.02.2025] and as such, he seeks dismissal of the petition.
Analysis:
6. Having heard the learned counsel for the parties, the issue which arises for consideration is, whether the Tribunal is justified in allowing the OA filed by the respondent and directing the grant of grade pay of Rs.5,400/- to the respondent?
7. We find, the Tribunal has reproduced the judgment of the Madras High Court in M. Subramaniam (supra), wherein the challenge was made to the order passed by the Madras Bench of the Tribunal. In the said judgment, the Madras High Court has, in paragraphs No.5 to 10, held as under:
"5. The Tribunal, by relying upon the clarification, dated 29.8.2008 of the Government of
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India, held that the petitioner cannot be equated to the posts, viz., Income Tax Officer/Superintendents, Appraisers, etc, though he was drawing the pay scale attached to the said posts by virtue of grant of financial up gradation in ACP Scheme and therefore, he is not entitled to the grade pay of Rs. 5,400/- on the basis that he had completed four years of regular service in the pay scale of Rs. 7500-12000. According to the Tribunal, unless the petitioner is promoted, he is not entitled for grade pay of Rs. 5,400 and he cannot claim only by virtue of the benefits obtained under ACP Scheme.
6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/- in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs. 7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four year, he is entitled to the grade pay of Rs. 5400/0 with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the
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petitioner was denied based on the clarification issued by the Central Board of Excise & & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised pay-scale of 7500-12000 (corresponding to grade pay of Rs. 4800) by virtue of financial up gradation under ACP would not be entitled to the benefit of further non-financial up gradation the pre-revised pay-scale of Rs. 8,000-13,500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the Pre-revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non- functional up gradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional up gradation from such date on which he completes 4-year in the pay scale of Rs. 7,500-12000 (pre-revised), since the
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petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government on India, having accepted the recommendations of the 6th pay commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on non- financial basis after four Group B Officers in pay Band 2 of Rs. 4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
9. Accordingly, the writ petition is allowed setting aside the order of the Tribunal, dated 19.4.2010 passed in O.A. No. 167 of 2009. The respondents are directed to extend the benefit of grade pay of Rs. 5400/- to the petitioner from 1.1.2008 as per the resolution dated 29.8.2010.
10. No costs."
8. The challenge to the judgment before the Supreme Court has resulted in dismissal of the SLP filed by the Union of India. The review petition was also dismissed by the Supreme Court. From perusal of the
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WP No.1629/2025judgment in the case of M. Subramaniam (supra), it is clear from paragraph No.5 that the argument of Union of India was that, the petitioner therein is not entitled to the grade pay of Rs.5,400/- by virtue of the benefit obtained under the ACP Scheme. The said plea was negated in paragraphs No.7 and 8 which we have already reproduced above. The SLP was eventually dismissed. Even the Punjab and Haryana High Court in the case of Sanjeev Dhar (supra), in paragraphs No.3 to 5, has held as under:
"[3]. The Tribunal allowed the original applications of the respondents. The clarification dated 11.02.2009 to earlier notification dated 21.11.2008 was quashed, however a rider was imposed in view of pendency of SLP arising out of case titled M. Subramaniam Vs. Union of India and others which was pending in the Hon'ble Supreme Court. It was ordered that ultimate decision in M. Subramaniam case (supra) would apply and the decision was made subject to the outcome of the decision in the aforesaid case. The judgment of the Tribunal was based on the judgment of Madras High Court in M. Subramaniam case (supra), wherein the clarification dated 11.02.2009 issued by the Ministry of Finance, Department of Revenue was held to be without any basis and it was held that the benefits accrued to the employees on the basis of notification
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dated 21.11.2008 could not be denied to the employees who had put in 4 years of continuous service in the pay scale of Rs.7500-12000 (pre- revised).
[4]. During course of hearing before us, it was candidly admitted by learned counsel for the petitioners that Civil Appeal No(s).8883 of 2011 titled Union of India and others Vs. M. Subramaniam along with other connected SLPs have been dismissed by the Hon'ble Supreme Court vide order dated 10.10.2017.
[5]. In view of above, in our opinion, nothing survives in these writ petitions for consideration of the Court. No indulgence can be granted in favour of the petitioners. These writ petitions are accordingly dismissed."
9. Similarly, the Bombay High Court in the case of Deepak B. Deshmukh (supra), in paragraphs No.3 to 11, has stated as under:
"3. The learned Counsel for the Petitioners submitted that the Respondents cannot be considered to have completed four years of regular service for being eligible as per their representation, essentially because the Petitioners were only 'financially upgraded on non-functional basis' and in that capacity they have completed four years of service. He submitted that the 4 years of regular service
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necessarily means 4 years of service after actual promotion to a particular level and mere financial up- gradation will not be sufficient. He invited our attention to the Office Memorandum dated 09/08/1999 ('the said OM' for short), especially Clause 3 about posts in Group A, B, C and D categories and clause 3.2 providing for 'regular service' for the purpose of Assured Career Progression (ACP) scheme.
4. On the other hand, learned Counsel for the Respondents submitted that their case is squarely covered by the case of M. Subramaniam (supra), which has been confirmed by the Hon'ble Supreme Court. She has invited our attention to the judgment of the Madras High Court and observations therein, as also the order of the Hon'ble Supreme Court, dismissing the Appeal as well as the Review Petition.
5. Having heard the learned Counsel for the parties and on perusal of the judgment of M. Subramanian (supra), we are of the view that the Respondents' case is covered by the said judgment as rightly observed by the Tribunal.
6. Perusal of the impugned order shows that the Tribunal, relying upon the judgment of the Hon'ble Supreme Court in K. C. Sharma Vs. Union of India [(1997) 6 SCC 721] has held that the benefit of a judgment can not be denied to similarly situated employees. The Tribunal has also relied upon the judgment of Hon'ble Suprme Court in the case of
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State of Karnataka Vs. C. Lalitha [2006 SCC (L&S) 447] to hold that only because one person has approached the Court, does not mean that similarly situated persons are to be treated differently.
7. We agree with the said view. Once an issue has been decided by the competent Court, the Government being model employer should not compel all similarly placed individual employees to approach the Court/Tribunal for grant of same benefits. Admittedly in the present matter, the Respondents were granted financial up-gradation and thereafter they have completed four years of service. Clause 3.2 of the said OM issued for the subject of ACP scheme for the Central Government employees, reads as under:
"3.2 'Regular Service' for the purpose of ACP Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant Recruitment/Service Rules"
8. Having considered the said Clause, in our view, it cannot be interpreted that the service rendered after financial up-gradation is not to be counted so as to deprive the Respondents of the benefits granted under impugned order.
9. As rightly pointed out by the learned Counsel for the Respondents, the judgment of M. Subramaniam (supra) also considers the Resolution of the Ministry of Finance dated 29/08/2008, which provides in Clause x(e) as under:
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"(x) Regarding Group 'B' cadres, the
Commission's recommendations will be
modified in the following manner:
XXX
(e) Group B officers of Department of Posts, Revenue, etc. will be granted Grade Pay of Rs.5400 in PB-2 on non-functional basis after 4 years of regular service in the grade pay of Rs.4800 in PB-2."
The judgment of M. Subramaniam (supra) considered the same Resolution and the benefits were granted to the similarly situated Applicants as the Respondents.
10. In view of the aforesaid facts and circumstances, it is noted that the reasons given and conclusion drawn by the Tribunal are based on the material on record. There is neither any perversity or jurisdictional error in the impugned order, which takes a probable view. Therefore, this is not a fit case to interfere under our extraordinary writ jurisdiction.
11. The Petition is accordingly dismissed. No order as to the costs."
10. The reliance placed by Sri. Kumar on the judgment of the Supreme Court in the case of M.V.Mohanan Nair (supra), K Sudheesh Kumar (supra) and N.M.Raut (supra) have no applicability to the facts of this case in as much as, in the said judgments, the issue
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WP No.1629/2025was whether a Government servant shall be entitled to the benefit of MACPS to the immediate next higher grade pay or the promotion post. It was in that context that the Supreme Court in the case of M.V.Mohanan Nair (supra) held that the benefit can be given to the next higher grade pay. In the case of K Sudheesh Kumar (supra), the issue was whether the respondents therein could have been granted the benefit of grade pay of Rs.6,600/- beyond the number of financial upgradations, a Government servant is entitled to. The Supreme Court said the respondents therein could not have been granted a further financial upgradation of Rs.6,600/-. Similar is the position in the case of N.M.Raut (supra) in as much as, the Supreme Court held that, even a financial upgradation granted on completion of two or four years of service cannot be ignored to count the number of financial upgradations a Government servant is entitled to under the MACPS. In other words, any financial upgradation beyond the three financial upgradations could not have been granted. Suffice to state, the claim of the respondent is not for grant of financial upgradation
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WP No.1629/2025beyond three financial upgradations, but the claim was for the third financial upgradation under the MACPS to the grade pay of Rs.5,400/-, which was the issue decided by the Madras High Court in the case of M. Subramaniam (supra), which has been upheld by the Supreme Court. Hence, we are of the view that the Tribunal is justified in allowing the OA in favour of the respondent.
11. We do not see any merit in the petition; the same is dismissed.
No costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(T.M.NADAF) JUDGE PA