Central Administrative Tribunal - Jodhpur
Narendra Nath Vyas vs Union Of India Through The Secretary on 25 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
OA No.436/Jodhpur/2013 Pronounced on : 25.1.2017
(Reserved on: 20.1.2017)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. PRAVEEN MAHAJAN, MEMBER (A)
1. Narendra Nath Vyas, S/o Shri Pukhraj Vyas, Aged about 46 years, R/o Gyanraj, Jain Street Sarafa Bazar, Jodhpur, (Office Address : Working as Asst. Engineer at Central Public Works Department (CPWD), Jodhpur).
2. Jagdish Prasad S/o Shri Hari Ram, Aged about 49 years, R/o T-II/3, CPWS Qt. Aerodrome Colony, Kota, Rajasthan. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.).
3. Vijendra Singh S/o Shri Bairisal Singh, Aged about 50 years, R/o 123 Hanwant-B, Jodhpur, Rajasthan-342001 (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
4. Yashwant Singh, S/o Shri Prem Singh, Aged about 47 years, R/o Naya Bas, Mandore Road, Jodhpur. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
5. Kalu Ram Meena S/o Shri Jai Naraya Meena, Aged about 46 years, R/o Type-Qtr No. III/3, CPWD Colony, Hiran Magri, Sector-IV, Udaipur. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
6. Natha Ram Chaudhary, S/o Shri Rama Ram Chaudhary, Aged about 48 years, R/o Plot No, C-91, Shankar Nagar, Jodhpur. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
7. Suresh Chandra Jain S/o Shri Chhagan Lal Jain, Aged about 48 years, R/o Type-Qtr. No.III/9, CPWD Colony, Udaipur. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
8. Bachan Singh S/o Shri Mahtab Singh, Aged about 47 years, R/o 3A/8 Adarsh Colony, Anupgarh, Rajasthan. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
9. Bhagirath Gaur S/o Shri Banshi Lal, Aged about 46, R/o Gajanand Colony, Sunthala, Jodhpur,. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
10. Ravindra Kumar S/o Late Shri Ganpat Singh, Aged about 46 years, R/o 14/5, Chaupasani Housing Board, Jodhpur. (Office Address : Working as Asstt. Engineer at Central Public Works Department (CPWD) Jodhpur.)
APPLICANTS
BY ADVOCATE : Mr. S.P. Singh
VERSUS
1. Union of India through the Secretary, Government of India, Ministry of Urban Development, Central Public Works Department, (CPWD), Nirman Bhawan, New Delhi.
2. The Secretary, Government of India, Ministry of Personnel, Public Grievances and Pensions, Dept. of Personnel & Training, New Delhi-110001.
3. The Director Genral, Central Public works Department (CPWD), Nirman Bhawan, New Delhi.
4. Chief Engineer, NZ-III, CPWD, Nirman Bhawan, Sector-10, Vidyadhar Nagar, Jaipur.
5. Superintending Engineer, Central Public Works Department (CPWD), Jodhpur Central, CPWD, Nirman Bhawan-3, West Patel Nagar, Circuit House Road, Ratanada, Jodhpur-342011.
RESPONDENTS
BY ADVOCATE: Mr. B.L. Bishnoi.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The present O.A has been filed under Section 19 of the Administrative Tribunals Act, 1985 for issuance of direction to the respondents to grant them grade pay of Rs.6600 as financial up-gradation under MACP Scheme on completion of 20 years of service which is the grade pay for next promotion post in hierarchy and denial of which has caused them immense loss as they are drawing much less pay than their counter parts etc.
2. The facts, which led to filing of the present O.A, are that the applicants were appointed as Junior Engineers during the period 1989 to 1992. The Government of India framed ACP Scheme of 1999 under which one who did not get any promotion was to be granted two financial up-gradation on completion of 12 and 24 years of service. Under the ACP Scheme, one was to be granted financial upgradation in next pay scale of promotional post. However, ACP of 1999 was replaced with MACP Scheme of 2009 under which three financial upgradations were to be given but next grade pay only and not in next grade pay of promotion post. The issue raised by the applicants in short is that while granting financial up gradation under MACP Scheme, they are entitled to Pay Band + Grade pay of higher post and not merely grade pay as provided for under MACP Scheme. They have been given grade pay of Rs.4600 but seek benefit of grade pay of Rs.6600 which is for the post of Executive Engineer.
3. In support of their claim, the applicants rely upon decision of Chandigarh Bench of this Tribunal in O.A.No. 278/CH/2004 titled Raj Pal Vs. Union of India & Others, decided on 30.8.2004 in which a photocopier, with comparison of his post as equivalent to LDC, was granted promotional pay scale of the post of LDC, on the ground that Pay Commission had not recommended any specific pay scale for the post of Photocopier. Again the issue was raised in O.A. No. 1038-CH-2010 Raj Pal Vs. UOI etc. decided on 31.5.2011 in which the Court held that he was entitled to second financial up gradation under MACP Scheme in hierarchy of posts decided in earlier case. The Principal Bench of this Tribunal also took similar view in O.A.No. 904/2012 Sanjay Kumar etc. Vs. UOI etc. decided on 26.11.2012. The view taken in case of Raj Pal (supra) in O.A.No.1038/CH/2010 decided on 30.5.2011 was affirmed by High Court of Punjab and Haryana in CWP No. 19387of 2011 (O&M) decided on 19.10.2011 titled Union of India & Others Vs. Raj Pal & Another. The SLP/CC No. 7467/2013 titled Union of India Vs. Raj Pal was also dismissed on 15.4.2013 as there was no explanation given to condone the delay in refilling the SLP and as such application for condonation of delay was dismissed and consequently SLP too was dismissed. So, the case put up by the applicants is that once the issue has attained finality upto apex dispensation, the applicants cannot be denied benefit of financial up-gradation under MACP Scheme in Pay Band + Grade Pay of promotion post in hierarchy and denial of same is discriminatory. Hence the O.A.
4. The O.A. is resisted by the respondents by filing a detailed reply. It is submitted that in MACP Scheme, there is no provision for grant of financial up gradation in Pay Band + Grade pay of promotional post and as such the claim of the applicants may be dismissed. The SLP in Raj Pals case was dismissed on technical ground only.
5. We have heard learned counsel for the parties with their consent at length and perused the material on the file.
6. The issue raised in this case is engaging the attention of the Honble Supreme Court of India but we can take judicial notice of the fact that after considering all the decisions including one relied upon by the applicants, the Ahmedabad Bench of this Tribunal has rejected an identical claim in the case of Manubhai Bhagwanji Rathod Vs. Union of India etc. Original Application No. 18 of 2015 decided on 16th day of October, 2015. The Bench has held that the grievance of the petitioners as made, is however, contrary to the fundamental concept on which MACPS introduced through the 6th Central Pay Commission operates. A bare reading of paragraph 2 of the MACPS would 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, as was available under the ACP Scheme with reference to the pay scale of the next above hierarchical post. It is not in dispute that MACPS supersedes ACP Scheme which was in force till August 31, 2008. Therefore, after August 31, 2008 any financial up gradation would be confined to placement in the immediate next higher grade pay in the hierarchy of the recommended revised Pay Band. The use of word 'merely' in para 2 of the Scheme supports this interpretation. Paragraph 2 further clarifies that the higher Grade Pay attached to the next promotional post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion. Therefore, the claim that the petitioners should also be placed in the replacement Pay Band applicable to the next promotional post in the hierarchy as was available under the ACP Scheme is misplaced. The decision is reproduced in extenso :-
14. At para 20 of the said judgment, their Lordships were pleased to note that the very same issue had come up for consideration before this Court in W.P.(C) No. 3420/2010 in the case of R.S. Sengor & Others v. Union of India and Others, decided on 04.04.2011. Their Lordships quoted :
20. This very issue had come up for consideration before this Court in W.P. (C) No.3420/2010 R.S.Sengor & Ors. Vs. Union of India & Ors. decided on April 04, 2011. In said case the petitioners were in Pay Band- 1 and had a corresponding grade pay of Rs. 1900/-. The next hierarchical post was also in Pay Band-1 but had a grade pay of Rs. 2400/-. The petitioners therein claimed that since the next hierarchical post had a pay band of Rs. 2400/-, they should, on financial up gradation, under the MACPS, be granted the grade pay of Rs. 2400/-. However, what the respondents in that case had done was to grant the petitioner therein the grade pay of Rs. 2000/- which was the next higher grade pay though, not the grade pay corresponding to the next hierarchical post. Dismissing the writ petition the Division Bench held as under:-
"10. 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.
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 I 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. 4800/- and not Rs. 5400/- 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 Pays to be adhered to and not the Grade Pay in the hierarchy of posts."
15. By referring to the fact that the view in R.S. Sengor was followed by another Division Bench of this Court in the decision reported as 193 (2012) DLT 577, Union of India Vs. Delhi Nurses Union (Regd.) and Anr., at Para 22 of the said judgment, it was held as under :
22. Therefore, merely because others who have been granted financial up gradation in the pay scale of the promotional post in the hierarchy under the ACP Scheme and by operation of para 6 of MACPS, their pay is fixed with reference to the pay scale granted to them under the ACP Scheme, the petitioners would not get any right to be placed in such scales, since the language of the scheme makes it clear that the financial up gradation under ACP/MACPS are different than regular promotions in the grade. The claim of the petitioners before the Honble High Court of Delhi in R.S. Sengor and Others (supra) and Swaran Pal Singh and Others (supra) is identical to that of the claim of the applicant in this O.A , as such, in view of the findings of the Honble High Court of Delhi on the issue at hand, one has to agree with the argument of Shri B. Mishra, learned counsel for the respondents.
16. Before agreeing with the argument of Shri B. Mishra, learned counsel for the respondents, it is necessary for us to deal with the argument of Shri B.A. Vaishnav, learned counsel for the applicant. As already observed, in support of the claim of the applicant, he places reliance upon the following orders :
(i) Order dated 31.05.2011 in O.A. No. 1038/CH/2010 in the case of Raj Pal vs. Union of India and Others on the file of Chandigarh Bench of the Tribunal;
(ii) Order dated 26.11.2012 in O.A. No. 904/2012 in the case of Sanjay Kumar vs. Union of India and Others on the file of Principal Bench of CAT, New Delhi;
(iii) Order dated 11.09.2015 in O.A. No. 101/2015 in the case of Vikas Bhutani and Others v. Union of India and Others on the file of Principal Bench of CAT, New Delhi;
(iv) Order dated 08.09.2015 in O.A. No. 1586/2014 in the case of Vinai Kumar Srivastav v. East Delhi Municipal Corporation and Others on the file of Principal Bench of CAT, New Delhi.
Shri B.A. Vaishnav also points out that the order of the Chandigarh Bench of this Tribunal in O.A. No. 1038/CH/2010 was subject matter before the Honble Punjab and Haryana High Court in CWP No. 19387/2011 and the Honble High Court of Punjab and Haryana confirmed the order passed in Raj Pals case. He further points out that the SLP [(CC) 7467/2013] preferred against the order of Honble High Court of Punjab and Haryana was dismissed by the Honble Supreme Court by judgment dated 15.04.2013 and the matter has attained finality. He argues that in view of the fact that the judgment of the Honble High Court of Punjab and Haryana was subject matter before the Honble Supreme Court in the said SLP, which came to be decided by the Honble Supreme Court by judgment dated 15.04.2013, the submission of Shri B. Mishra cannot be entertained. The thrust of Shri B.A. Vaishnav is that the judgment of the Honble High Court of Punjab and Haryana is to be preferred to that of the Honble High Court of Delhi in view of dismissal of SLP. At this juncture, Shri B. Mishra brings to our notice that the order of Honble Supreme Court in SLP [(CC) 7467/2013] is not on merits but on the ground of delay and laches. In this regard, we may also mention that an identical matter to that of Raj Pal (supra) was the subject matter before the Ernakulam Bench of the Tribunal in O.A. No. 816/2012 and the Honble Tribunal allowed the same vide order dated 29.01.2013 by following the order of the Chandigarh Bench dated 31.05.2011 in O.A. No. 1038/CH/2010, affirmed by the Punjab and Haryana High Court in its judgment dated 19.10.2011 in CWP No. 19387/2011. The said order of the Ernakulam Bench in O.A. No. 816/2012 was challenged before the Honble High Court of Kerala in OP (CAT) No. 2000 of 2013 which came to be confirmed vide its judgment dated 24.06.2013. The judgment of the Honble High Court of Kerala in O.P. No. 2000/2013 was challenged by the Union of India before the Honble Supreme Court in S.LP. (C) No. 21813/2014 [CC No. 10791 of 2014] and the Honble Supreme Court by the order dated 08.08.2014 was pleased to stay the judgment of Honble High Court of Kerala and the matter is still pending consideration of the Honble Supreme Court. By referring to this fact Shri B. Mishra argues that it cannot be said that the Honble Supreme Court laid down any law while dismissing the said SLP (CC) 7467/2013 by the judgment dated 15.04.2013. In other words, the order of the Honble Supreme Court in SLP [(CC) 7467/2013] is not on the merits of the matter but is only on the ground of delay and laches. Hence what can be argued is that the judgment of the Honble Supreme Court in Raj Pals case binds only to the parties to the same. It cannot be regarded/treated as a precedent. We are in agreement with the argument of Shri B. Mishra particularly in view of the fact that the Honble Supreme Court was pleased to stay the judgment of the Kerala High Court in O.P. No. 2000/2013 and the matter is still pending.
17. Now the next question before us is that in view of the conflicting view of the Honble High Court of Delhi and the Honble High of Punjab and Haryana, we are in dilemma as to which of the judgments are to be preferred to that of another. Neither of the learned counsel is placing reliance upon any of the judgment of Honble Gujarat High Court in support of their respective claims. To answer this problem, we may usefully refer to the Full Bench judgment of this Tribunal in O.A. No. 555/2001, Dr. A.K. Dawar v. Union of India and Others, on the file of the Principal Bench of this Tribunal. In Dr. A.K. Dawar, the Principal Bench was considering the situation arising out of conflicting decisions of Honble High Court. It referred to the decisions in M/s East India Commercial C.o. Ltd., Calcutta and Another v. Collector of Customs, Calcutta, AIR 1962 SC 1893, Bhagaban Sarangi (supra) IPCL and Another v. Shramik Sena (2001) 7 SCC 469 and Director General (I&R) v. Holy Angels Schools, 1998 CTJ 129 (MRTPC). It held :
17. Consequently, we hold :-
1. that if there is a judgment of the High Court on the point having territorial jurisdiction over this Tribunal, it would be binding :
2. that if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, this Tribunal would be bound by the decision of that High Court;
3. that if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding, and
4. that if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgment in the case of Indian Petrochemicals Corporation Limited (supra), this Tribunal would be free to take its own view to accept the ruling of either of the High Courts rather than expressing third point of view. Thus, in view of the decision of the Full Bench in Dr. A.K. Dawar (supra), by following the judgment in Indian Petrochemicals Corporation Limited (supra) we are free to take our own view to accept the rulings of either the Honble High Court of Delhi and Honble High Court of Punjab and Haryana. At this juncture, we may also observe that among the rulings relied upon by the parties, the judgment of Honble High Court of Delhi in W.P.(C) No. 3420/2010 in the case of R.S. Sengor & Others vs. Union of India and Others is the oldest one, i.e. dated 04.04.2011. The order of the Chandigarh Bench of the Tribunal in the case of Raj Pal vs. Union of India and Others in O.A. No. 1038/CH/2010 was decided later. In other words, as on the date of decision of the Chandigarh Bench of the Tribunal in Raj Pal, the judgment of Honble High Court of Delhi was very much available and if it refers to the issue involved in this O.A, then the judgment in Raj Pal is per incuriam. Honble High Court of Punjab and Haryana did not refer to the judgment of Honble High Court of Delhi in the case of R.S Sengor while dealing with the CWP No. 19387/2011 (supra). In view of this position and also in view of the guidelines of the Full Bench of the Tribunal (Principal Bench) in Dr. A.K. Dawar (supra), we accept the ruling of the Honble High court of Delhi in R.S. Sengor (supra) which was consistently followed by it in Swaran Pal Singh (supra) and also in Union of India vs. Delhi Nurses Union (Regd.) and Another reported at 193 (2012) DLT 577. We may also observe that the Hon'ble Supreme Court in the case of Government of Tamil Nadu vs. S. Arumugham & Ors. held that the Courts cannot substitute their own views for the views of the Government or direct a new policy based on the Courts view. Further, Honble Supreme Court in the case of Secretary, Govt. (NCT of Delhi) & Others v. Grade-I DASS Officers Association & Others, 2014 (13) SCC 296, while considering ACP Scheme held that the scheme being a policy decision of the Government, the Court will not interfere with the same.
18. We have also carefully perused the Office Memorandum dated 19.05.2009 by which the Government has introduced the MACP Scheme. Paras 2, 8 and 8.1 of the MACP Scheme are relevant and they are noted as under :
"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 I, 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, 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 promotion post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion.
8. Promotions earned 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 pay of Rs. 5,400/- in PB-2 and Rs. 5,400/- in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."
19. Annexure I 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 Grade 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 the difference of Grade Pay of between Rs. 2,000/- and Rs. 2,400/-. No additional increment will be granted at this stage."
A combined reading of the above stipulations in the MACP Scheme would lead to a irresistible conclusion that it is the next higher Grade Pay which has to be given and not the Grade Pay in the hierarchical post and thus we agree with the respondents that the applicant has to be given the Grade Pay in a sum of Rs. 4800/- and not Rs. 5400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post.
20. In view of the foregoing, we do not find fault with the action on the part of the respondents in granting the Grade Pay of Rs. 4800/- while extending the benefit of 2nd financial up gradation under the MACP Scheme and consequently, the question of any direction as sought by the applicant does not arise. The O.A deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs.
21. The aforesaid decision has been circulated by the DoPT vide circular dated 1.3.2016. All the issues as raised in this case stands answered by the Ahmedabad Bench in aforesaid reproduced case and as such the same is not required to be delved all over again by us and for the parity of reasons given in the aforesaid case, this O.A. turns out to be devoid of any merit and is dismissed accordingly leaving the parties to bear their own costs.
(PRAVEEN MAHAJAN) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 25.1.2017
Place: Jodhpur
HC*
1
OA No. 936/Jodhpur/2013
(Narendra Nath Vyas etc. Vs. UOI & Ors.)