Central Administrative Tribunal - Delhi
Mrs. Shaira A. Khan vs Union Of India & Ors on 17 November, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-804/2013
Reserved on : 07.11.2014.
Pronounced on : 17.11.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Mrs. Shaira A. Khan,
W/o Sh. M. Arshad Khan,
R/o B-501, Navin Apartments,
Sector-5, Plot No. 13,
Dwarka, New Delhi-75. . Applicant
(through Sh. Ayushya Kumar, Advocate)
Versus
Union of India & Ors.
1. The Planning Commission,
Government of India,
Yojana Bhawan,
Sansad Marg, New Delhi
Through : The Secretary.
2. The Department of Personnel & Training,
North Block, New Delhi
Through: The Secretary.
3. The Ministry of Finance
Department of Expenditure,
Government of India,
North Block, New Delhi
Through : The Secretary. .. Respondents
(through Sh. Manjeet Singh Reen, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant joined as Stenographer Grade-C on 16.04.1980. On 01.07.1983 she was promoted as Private Secretary in the pay scale of Rs.2000-3500 which was later on revised to Rs. 6500-10500 w.e.f. 01.01.1996 as a result of 5th CPC. She was granted benefit of second ACP on completion of 24 years of service and was placed in the pay scale of Rs. 10000-15200 w.e.f. 01.07.2004. On 24.06.2005, Government of India decided to grant non-functional pay scale of Rs.8000-13500 to Private Secretaries of CSSS cadre. This pay scale was granted to all the Members of CSSS who had completed 04 years of regular service in the pay scale of Rs.6500-10500. This benefit was given notionally w.e.f. 01.01.1996 and actually w.e.f. 03.10.2003. The applicant had completed 04 years of regular service in the pay scale of Rs.6500-10500 on 01.07.1997. Accordingly, she was granted benefit of this non-functional pay scale w.e.f. 01.07.1997. When the pay scales recommended by 6th CPC came into force, the applicant was placed in PB-3 with Grade Pay of Rs.6600. She got substantive promotion to the post of Principal Private Secretary on 04.05.2011 in Planning Commission.
2. The grievance of the applicant is that although she has got only two promotions in her service time i.e. from Stenographer Grade-C to Private Secretary and from Private Secretary to Principal Private Secretary, yet the respondents are counting the grant of non-functional scale to her as a financial upgradation for the purpose of MACP benefits and denying her the benefit of third MACP which became due to her on completion of 30 years of service. If this benefit is granted to her then she should be entitled to be placed in PB-3 with grade pay of Rs.7600 w.e.f. 16.04.2010.
3. In her support, the applicant has annexed with her O.A. orders of similarly placed employees of different Ministries who have been allowed this benefit by their Ministries. These orders are available from pages 43 to 52 of the paper-book. A perusal of these pages reveals that these orders pertain to Ministry of Road Transport & Highways, Ministry of Social Justice and Empowerment and Ministry of Water Resources. She has also relied on the judgment of Ernakulam Bench of this Tribunal in OA-870/2011 with OA-873/2011 (N.K. Gopinthan Vs. UOI decided on 06.09.2012.
4. In their reply, after reiterating the undisputed facts of this case regarding career progression of the applicant, the respondents have stated that the case of the applicant was examined in consultation with Department of Personnel & Training. Their advice in the instant case was received on 17.12.2012, which is annexed with the counter-affidavit (Page-128 of the paper-book). In view of the same, the applicants claim was rejected. In their counter-affidavit, the respondents have relied on several cases, such as, Dilip K. Garg Vs. State of UP, 2009(4) SCC 7533, Balco Employees Union (REGD.) Vs. UOI, 2002 2 SCC, Southern Structurals Staff Union Vs. Southern Structurals Ltd., (1994) 81 COMP CAS 389 (MAD), Rustom Cavasjee Cooper Vs. UOI, SCC AT P. 294, Fertilizer Corpn. Kamgar Union (Regd) Vs. UOI, SCC 568 P. 584, Permian Basin Area Rate Cases, 390 US 747 (1968), In premium Granites Vs. State of T.N.14, State of Punjab Vs. Ram Lubhaya Bagga, (1998) 4 SCC 117, Bhavesh D. Parish Vs. UOI, (2000) 5 SCC 471, Narmada Bachao Andolan Vs. UOI, (2000) 10 SCC 664, Malikarjuna Rao Vs. State of AP, SCC 1990 (L&S) 1318 and A.K. Bhatnagar Vs. UOI, 1990 Suppl. 2 SC 638 to say that policy formulation is prerogative of the elected Government and unless any illegality is committed, it is not within the scope of judicial review.
5. We have heard both sides and have perused the material on record. At the outset, we make it clear that we have no intentions of interfering in the policy made by the Government. However, it is the duty of the Courts to ensure that the policy formulated by the Government is implemented in a non discriminatory manner so that the benefits of the same flow to the intended beneficiaries without getting lost in bureaucratic misinterpretations. We, therefore, find no relevance to this case all the citations given above by the respondents.
6. The main issue involved in this case is whether the non functional scale of Rs. 8000-13500 granted to the applicant be ignored for the purpose of MACP benefits or not. For the following reasons, we are inclined to ignore the same for the purpose of MACP benefit:-
(i) This scale was given to CSSS cadre as an additional benefit. There would be many other cadres in which this benefit would not be available. Employees of such cadres would jump from the scale of Rs. 6500-10500 to the pay scale of Rs.10500-15200 on getting a promotion or financial upgradation without having to pass through the scale of Rs.8000-13500. Thus, such employees would steal a march over CSSS cadre which would reach the scale of Rs. 10000-15200 only after passing through Rs.8000-13500 which will be counted for the purpose of financial upgradation. Since this scale was given as an additional benefit to the CSSS cadre, surely intention of the policy makers would not have been to put the employees of this cadre at a loss.
(ii) The ACP Scheme provides that on grant of upgradation under this Scheme the pay of an employee shall be fixed under the provisions of FR-22(I)(a)(1) which involves benefit of an additional increment. On the other hand, the order dated 24.06.2005, by which non functional scale was granted, states that on grant of this scale the pay of the officers will be fixed under FR-22(I)(a)(2). The aforesaid FR reads as follows:-
When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis:
Provide that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay:
Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.
On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post. Under this provision the employee does not get benefit of additional increment in pay fixation. Moreover, this provision is used for pay fixation on placement of a post not involving higher duties whereas FR-22(I)(a)(1) is used on assumption of a post with higher duties. Thus, it is evident that the intention of the Government was not to treat placement in such a scale as a promotion or upgradation.
(iii) The Non Functional Scale is given automatically to all those who have completed four years service in the Grade Rs.6500-10500 subject to vigilance clearance whereas ACP benefit/promotion is granted after assessment of fitness by Screening Committee/DPC.
(iv) We have gone through the judgment in OA-870/2011 (supra) relied upon by the applicant and find that this case is squarely covered by the same.
(v) As has been brought out by the applicant similarly placed in many other Ministries have already been granted this benefit. Therefore, she deserves the same treatment on grounds of parity.
7. We, therefore, allow this O.A. and direct that the respondents consider the case of the applicant for grant of 3rd MACP benefit with effect from the date on which she completed 30 years of service. In case she is found fit, she shall be extended this benefit with consequential benefits of pay fixation and arrears. In the facts and circumstances of this case, we are not inclined to award any interest on arrears. This benefit shall be extended to the applicant within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/