Kerala High Court
Union Of India vs P. Sulaiman on 30 October, 2019
Author: Ashok Menon
Bench: V.Chitambaresh, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941
OP (CAT).No.114 OF 2017(Z)
AGAINST THE ORDER/JUDGMENT IN OA 35/2015 DATED 03-06-2016 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 1 & 2:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF AGRICULTURE & FARMERS WELFARE,
DEPARTMENT OF ANIMAL HUSBANDRY,DAIRYING & FISHERIES
KRISHI BHAVAN,NEW DELHI-110001.
2 THE DIRECTOR,
CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET),
MINISTRY OF AGRICULTURE & FARMERS WELFARE, DEPARTMENT
OF ANIMAL HUSBANDRY,DAIRYING & FISHERIES FORESHORE
ROAD,KOCHI-682016.
BY ADVS.
SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT:
P. SULAIMAN
S/O.LATE P.M.YOSUF,
RETIRED AS SENIOR INSTRUCTOR(FT) FROM CENTRAL
INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING
TRAINING, FORESHORE ROAD,KOCHI-16
AND RESIDING AT PANIKKA VEEDU,MALIPPURAM.P.O,
KOCHI-682511.
R1 BY ADV. SRI.M.A.SHAFIK
R1 BY ADV. SMT.S.LAKSHMY
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20-09-2019, THE
COURT ON 30-10-2019 DELIVERED THE FOLLOWING:
O.P.(CAT) No.114 of 2017
2
JUDGMENT
Dated this the 30th day of October 2019 Ashok Menon, J.
The petition is filed by the Union of India and the Director, Central Institute of Fisheries, Nautical and Engineering Training (CIFNET), aggrieved by the order of the Central Administrative Tribunal, Ernakulam Bench (herein after referred to as "the Tribunal") in O.A.No.180/00035/2015 dated 03.06.2016 filed by the respondent herein.
2. The applicant had approached the Tribunal claiming that he is entitled to get the 3rd financial upgradation of his salary on completion of 30 years of service to the scale in PV3 Rs.15600-39100 with a Grade Pay (GP) of Rs.6,600/- with effect from 30.11.2007 and also sought penal interest at the rate of 18% on the arrears due from the aforesaid date. Ext.P1 is the application filed by the respondent.
3. Per contra, the petitioners contended that the Department of Personnel and Training (DOPT) had vide its O.M.No.35034/1/97-Estt.(D) dated 09.08.1999 O.P.(CAT) No.114 of 2017 3 introduced the Assured Career Progression (ACP) for employees coming under Group B, C and D. This scheme came to the assistance of those employees, who had not been granted regular promotion on completion of 12 and 24 years of regular service.
4. The DOPT had on 19.05.2009 vide O.M.No.35034/ 3/2008-Estt.(D) introduced a Modified Assured Career Progression (MACP) for the Central Government employees with effect from 01.09.2008 and as per the modified scheme, upgradation under the ACP Scheme is granted to employees on completion of 10, 20 and 30 years of regular service in case they have not been granted any regular promotion/financial upgradation to the next higher grade pay in the hierarchy of the recommended revised pay band and grade pay, subject to the conditions prescribed therein.
5. The respondent herein was appointed as Junior Marketing Assistant in the National Institute of Fisheries Post Harvest Technology and Training (NIFPHATT), Kochi with effect from 30.11.1977 and was working in that post till 09.07.1989 in the pre-revised O.P.(CAT) No.114 of 2017 4 scale of Rs.330-560, which got revised to Rs.4600-6000 corresponding to the pay band-1 Rs.5200-20200 with grade pay of Rs.2,400/-.
6. The applicant was holding the post of Fishery Assistant from 10.07.1989 to 29.09.2004 consequent to his promotion on 10.07.1989 in the pre-revised scale of Rs.5000-8000 corresponding to pay band-2 Rs.9300-34800 with a grade pay of Rs.4,200/-.
7. The second financial upgradation under the ACP Scheme on 30.11.2001 was granted to him to the pre-revised scale of Rs.6500-10500 to the scale of next promotional post of Fishery Officer corresponding to pay band-2 Rs.9300-34800 with grade pay of Rs.4,200/-. He continued in the post of Fishery Assistant. The grade pay was later revised to Rs.4,600/- in the same aforesaid pay band-2.
8. The applicant got promoted to the post of Fishery Officer on 30.09.2004 in the pre-revised scale of Rs.6500-10500 corresponding to the aforesaid pay band-2 with the grade pay of Rs.4,200/- was revised to Rs.4,600/-. However, as mentioned earlier, he was given O.P.(CAT) No.114 of 2017 5 a financial upgradation under the ACP Scheme with effect from 30.11.2001 to the aforesaid scale drawn by Fishery Officer. The applicant was transferred to the petitioner-Institute on 01.10.2005 in the post of Fishery Officer in the pre-revised pay scale of Rs.6500-10500 corresponding to pay band-2 Rs.9300-34800 with a grade pay of Rs.4,200/- (later revised Rs.4,600/-).
9. Consequent to the implementation of the 6th Pay Commission Report, the pre-revised pay scale of Rs.5000-150-8000,Rs.5500-175-9000 and Rs.6500-200-10500 were merged into a common pay band of Rs.9300-34800 with grade pay of Rs.4200/-. The claim of the applicant is that on completion of 30 years of service before 01.09.2008 when the MACP Scheme was brought into force, though he would be entitled to get benefit only from that date when the MACP was brought into force. Hence he is entitled to upgradation to pay band-3 Rs.15600-39100 with a grade pay of Rs.6,600/- with effect from the said date. In Ext.P3 impugned order of the Tribunal, the argument of the applicant was O.P.(CAT) No.114 of 2017 6 accepted and relying on para 8 of MACP Scheme it was held that in view of merger of the pre-revised scales, the two financial upgradations will have to be granted ignoring the earlier promotion/financial upgradation under ACP granted to the said merged scales.
10. The learned CGC draws our attention to para 8 of Ext.P1 MACP Scheme which states thus:
"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."
In view of this provision in the MACP, the promotion that the applicant had got even to the same pay scale cannot be ignored. The petitioner herein had taken up the matter regarding granting of 3rd financial upgradation under the MACP Scheme to the applicant with a grade pay of Rs.6,600/- and the DOPT clarified as thus:
"In this regard, para 8 of MACP Scheme stipulates that 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. As such although the applicant earned promotion in the same grade pay, the same would be counted as one financial upgradation in MACP. Nevertheless, it may be reiterated that as per O.P.(CAT) No.114 of 2017 7 the MACP scheme, three financial upgradations to be granted on completion of 10, 20 and 30 years of service from the date of entry or whenever a person spends 10 years in the same grade pay. Therefore every financial upgradation/promotions including non- functional grades granted have to be treated as an offset against one financial upgradation under the scheme. Since, as it appears that the applicant had already earned three financial upgradation/promotions, he cannot be granted one more financial upgradation under MACP scheme."
11. It is clarified that the applicant, who was in the pre-revised pay of Rs.6500-10500 in the post of Fishery Officer till 30.09.2005 with a corresponding pay band of Rs.4,600/-, which came into existence on 01.01.2006 and therefore the applicant had got the following grade pays during his service:
Period Grade pay
30.11.1997 to 09.07.1989 Rs.2,400/-
10.07.1989 to 29.11.2001 Rs.4,200/-
30.11.2001 to 30.09.2005 Rs.4,600/-
01.10.2005 to 30.11.2012 Rs.5,400/-
He has thus got four financial upgradations/ promotions and what is provided under the MACP Scheme is only three upgradtions/promotions. Therefore, he is not entitled to a further upgradtion to the grade pay of Rs.6,600/- as is claimed by him. A Full Bench of this O.P.(CAT) No.114 of 2017 8 Court has in Sate of Kerala & others v. V.J.Philomina, 2008 (1) KHC 665, considering the grant of time bound higher grade held as thus:
"Right to enjoy the benefit of higher grade is traceable to the Government orders on the subject and dehors such Government orders, no employee can enjoy that benefit. Time bound higher grade is not a condition of service guaranteed by the statutory rules, but a concession intended to lessen the severity of stagnation for want of regular promotion. The completion of the requisite length of service, ie., 10 years, 20 years and 25 years for the grant of the first, the second and the third higher grades respectively is a must."
12. The finding of the Tribunal holding that the applicant is entitled to a further upgradation to the grade pay of Rs.6,600/- is not sustainable. The impugned order of the Tribunal at Ext.P3 is therefore set aside.
The Original Petition is allowed. No order as to costs.
Sd/-
V.CHITAMBARESH JUDGE Sd/-
ASHOK MENON
O.P.(CAT) No.114 of 2017
9
dkr JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE OA.180/00035/2015 DATED
29.12.2014 FILED BY THE RESPONDENTS BEFORE THE CAT,ERNAKULAM BENCH EXHIBIT P2 COPY OF THE REPLY STATEMENT IN 0.A.180/ 00035/2015 DATED NIL.05.2017 FILED BY THE PETITIONERS EXHIBIT P3 COPY OF THE ORDER IN I.A.180/00035/2015 DATED 03.06.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. EXHIBIT P4 COPY OF THE DEPARTMENT OF PERSONNEL & TRAINING (ESTABLISHMENT - D) COMMUNICATION WITH DY.NO.1232478.17.CR DATED 24/03/2017.