Central Administrative Tribunal - Delhi
Ghanshyam Vashisht vs Pensions And Pensioners Welfare on 28 November, 2024
1
OA No. 2436/2022
Item No.50/C-5
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2436/2022
Reserved on : 08.11.2024
Pronounced on : 28.11.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
1. Ghanshyam Vashisht
S/O Late Jai Krishan Sharma
Aged 60 Years
R/o K-20 (3rd Floor), Kirti Nagar
New Delhi-110015.
2. Sumitra Roy
S/O Late Sh Amulya Bhushan Roy
Aged 63 Years
R/o Tower-I, 1201, VVIP Homes
Gaur City 2, Greater Noida (West) UP.
3. S. Ravichandar
S/O Late Shri S. Srinivasan
Aged 61 Years
R/o 625/44, CPWD Quarters
HSR Layout, Banglore - 560102
4. Lalit Kumar
S/O Late Shri D.R. Chhabra
Aged 62 Years
R/o 211, St. No. 5 Thapar Nagar
Meerut-250001 .
5. Ajit Kumar
S/O Late Shri Daler Singh
Aged 62 Years
R/o Village Jatoli P.O Chamukha
Teh.Rakkar, District Kangra
Himachal Pradesh
6. Kusum Sharma
W/o Shri Ravinder Kumar Sharma
Aged 63 Years
R/o F-I/22-B, MIG Flats, Hari Nagar
New Delhi - 110064.
2
OA No. 2436/2022
Item No.50/C-5
7. Sajjan Singh
S/O Shri Ram Sarup
Aged 66 Years
R/o G-258, Nanak Pura
New Delhi-110021.
8. Rema Rajgopal
W/O Sri N. Rajgopal Pillai
Aged 65 Years
R/o Sreepadam, Thrichattukulam
P.O. Alleppy District, Kerala -688526
9. Indu Makkar
D/O Late Shri Om Prakash
Aged 65 Years
R/o FC- 62, Shivaji Enclave,
New Delhi- 110027
10. Kusum Kukreti
D/O Late M R Sharma
Aged 63 Years
R/o A 702, Plot N0.19 Sector 56
Vigyan Vihar, Gurgaon
11. Rakesh Kumar
S/O Late Shri Om Prakash
Aged 61 Years
R/o H No. 2B, Block 10, Rail Vihar
MDC, Sec. 4, Pkl, Haryana
12. Philomina Joy
S/O Shri Joy Joseph
Aged 65 Years
R/o Flat No 401, Tower No 44
BPTP Park, Floors 2, Sector 76
Faridabad- 121004
13. Rema Subhash
D/O Late P.M. Kesavan Nambeesan
Aged 64 Years
R/o Southern Gardens Villa
Villa No 20, Purayar, Desom, Aluv a
Kerala -683102
14. Vijay Kumar Bhardwaj
S/O Late S.D. Bhardwaj
Aged 61 Years
3
OA No. 2436/2022
Item No.50/C-5
R/o R 1702, Antariksh Golf View 1 Apartment
Sector 78, NOIDA -201301
15. Kamlesh Satija
S/O Late Shri Devi Ram
Aged 62 Years
R/o B-241 Keshav Kunj, Plot-15A
Sector-22, Dwarka, Delhi-77
16. Laxmi Rawat
S/O Late Sh. Avtar Singh Negi
Aged 60 Years
R/o A-702, Plot No. 19, Sector 56
Vigyan Vihar, Gurgaon
17. L.R. Gulati
S/O Shri D.N. Gulati
Aged 62 Years
R/o A-3/12,Mianwali Nagar
Rohtak Road, Peeragarhi, New Delhi-110087
18. Raj Kumari Dhingra
S/O Late Shri Jagdish Mitter Gaba
Aged 63 Years
R/o B-222 Fateh Nagar
New Delhi-110018.
19. Anuradha Grover
S/O Shri Narain Das Dhingra
Aged 63 Years
R/o 56/4, First Floor, Ashok Nagar
New Delhi-110018.
20. Virendra Pal Singh
S/O Sh. Vijay Pal Singh
Aged 63 Years
R/o Flat No 261, Lumbini Appartment
Kaushambi, Sector-14
Ghaziabad-201010, Uttarpradesh
21. Sharda Saini
S/O Sh. R.P. Saini
Aged 62 Years
R/o D-10,Tower 7,Type 2
East Kidwai Nagar, New Delhi-110023
22. Satnam Kaur
S/O Late S. Gurbachan Singh
4
OA No. 2436/2022
Item No.50/C-5
Aged 65 Years
R/o IX/1104, Opp. Mother Dairy Booth No. 708
Gandhi Nagar, Delhi - 110031
23. Geeta Chandra
S/O Late Sh. V.D. Mudgal
Aged 62 Years
R/o House N0.330, Vasant Enclave
Vasant Vihar, New Delhi- 110057.
24. Dinesh Chander Mudgal
S/O Late Sh. Tara Chand Mudgal
Aged 63 Years
R/o 61A, Pocket A, Vikas Puri Extn.
New Delhi-110018
25. Ashwani Kumar Ahuja
S/O Late Sh. Sohan Lal Ahuja
Aged 63 Years
R/o RZ-22, South Extn. Part-1
Near Dayalsar Road
Uttam Nagar, Delhi-110059 .
26. Sarbjit Singh
S/O Shri Kirpal Singh
Aged 63 Years
R/o B-330, Ground Floor
Green Field Colony, Faridabad-121003
27. Prithvi Raj
S/O Late Sh. Gordhan Lal
Aged 62 Years
R/o RZ-1153, Street No 515, Main Sagar Pur
New Delhi - 110046
28. Sandhya Goswami
S/O Shri R.K. Giri
Aged 60 Years
R/o 11-B, 41A, Sadhna Vaishali, Ghaziabad
29. Surinder Kaur
S/O Late Prakash Singh
Aged 62 Years
R/o Flat No. 111, Vyas Kunj Appartment
Sector 11, Dwarka, New Delhi-110075
30. P.K. Chanda
S/O Late T.P. Chanda
5
OA No. 2436/2022
Item No.50/C-5
Aged 61 Years
R/o BE-4A, DDA Flat Ground Floor
Munirka, New Delhi-110067
31. Sunita Dhall
S/O Late Shri Mangat Ram Kumar
Aged 62 Years
R/o House No.-9, Block-I Pocket-B
Phase-3 Ashok Vihar Delhi-110052
32. Shalini Mathur
S/O Late J.S. Mathur
Aged 61 Years
R/o H. No 48, Ground Floor
Block C, Sector 34 Noida, UP- 201301
33. Lata Sankaranarayanan
W/O Late P.L. Sitaram
Aged 61 Years
R/o A- 103, Palm Court, Thasami Park Residency
(Opp. Uzhavar Sandai), Singanallur
Coimbatore - 641005
34. Bani Bhadra
W/O Late Pranab Kumar Bhadra
Aged 62 Years
R/o E-801, Chittranjan Park
New Delhi-110019
35. Harish Chander Verma
S/O Late Kripa Ram Verma
Aged 62 Years
R/o 1/9856, Street-3D, West Gorakh Park
Shahdara, Delhi-110032
36. Daisy Augustine
D/O Late P.L. Antony
Aged 63 Years
R/o Flat N0.840, Pocket-4
Kendrlya Vihar-2, Sector-82,
NOIDA, Uttar Pradesh-201304
37. Shashi Jairal
D/O Shri S.S.Rana
Aged 61 Years
R/o Rz-999, F-186, Sadh Nagar-II,
Palam Colony-45, New Delhi
6
OA No. 2436/2022
Item No.50/C-5
38. Virendra Kumar
S/O Shri Ved Prakash Verma
Aged 63 Years
R/o Sector-13, Plot No 17, Vasundhara
Ghaziabad, Uttar Pradesh
39. Bijoy Kumar Sahoo
S/O Shri Danbarudhar Sahoo
Aged 60 Years
R/o J-5/B-1, 2F, Dilshad Colony
Delhi-110095.
40. Madhu Bhugra
D/o Late Laxman Dass Mani
Aged 65 Years
R/o X-5, 2nd Floor, Green Park Main
New Delhi-110016
41. Urmila Verma
D/O Late Banwari Lal
Aged 62 Years
R/o C-1/161, Sanjay Enclave
Uttam Nagar, New Delhi - 110059
42. Sarup Singh Ladwal
S/O Shri Rambhaj
Aged 61 Years
R/o H No 660/3, Subhash Nagar
Gali No 3, Line Par, Bahadurgarh
District Jhajjar, Haryana-124507
43. Aparna Sinha Biswas
D/O Late Rajat Kanti Mahalanobis
Aged 61 Years
Madhur Jiwan Society, Flat No 710
Plot No 34, Sector 10, Dwarka
Delhi-110075.
44. Kusum Lata Sharma
D/O Late Ganga Sharma Shastri
Aged 60 Years
R/o 67-S, Sector- 8, DDA Flat
Jasola Vihar, New Delhi - 110025
45. R. Balasubramanian
S/O Late Shri V.R. Sarma
Aged 62 Years
R/o JG-2/300, Vikaspuri, New Delhi-110018
7
OA No. 2436/2022
Item No.50/C-5
46. Laila S. Nair
S/O Late N. Kumara Pillai
Aged 62 Years
R/o TRRA 210A, Makam, Nadakavu Lane
Perurkada PO, Trivandrum - 695005, Kerala
47. Jagdeep Kedia
S/O Late Surinder Singh Kochhar
Aged 57 Years
R/o E 903, M2K Victoria Gardens
Near Azadpur Bus Terminal
Azadpur, New Delhi-110033
48. Rakesh Sahai
S/O Late Shri S.N. Sahai
Aged 59 Years
R/o Q No 200-II, NH-IV, Faridabad-121001
49. Sunita Tiwari
S/O Late Chitra Dev Sinha
Aged 58 Years
R/o 169, Pratap Khand
Vishwakarma Nagar, Delhi - 110095
50. Poonam Sachdeva
D/O Late Rajeshwar Prasad
Aged 59 Years
R/o 39/2, Ashok Nagar, New Delhi-110018
... Applicants
(By Advocate: Mr. Nikunj Arora for Mr. Ankur Chhibber
Versus
1. Union of India
Through its Secretary
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
North Block, New Delhi-110001.
2. Additional Secretary - EO & CS
Department of Personnel & Training
Ministry of Personnel, Public Grievances & Pensions
North Block, New Delhi-110001
.. Respondents
(By Advocate: Mr. S.N. Verma)
8
OA No. 2436/2022
Item No.50/C-5
ORDER
By Hon'ble Dr. Anand S. Khati, Member (A) The present Original Application (O.A.) has been filed by the applicants seeking to quash the order dated 01.02.2022 issued by the respondents whereby they have been denied the benefit of Non- Functional Upgradation in the Grade Pay of Rs.5400/- in Pay Band- 3 from the date of completion of 4 years of being placed in Grade Pay of Rs.4800/- as per the law laid down by Hon'ble High Court of Judicature at Madras in M. Subramaniam vs Union of India and Ors., along with arrears and all other consequential benefits.
2. Briefly stated, the applicants were initially appointed with the Central Secretariat Services (CSS) as Lower division Clerks (LDCs) and subsequently they were promoted to the post of Upper Division Clerks (UDCs), Assistant Section Officers (ASOs) and finally to the post of Section Officers (SOs) as per their eligibility and seniority. 2.1 Consequent upon the recommendations and implementation of 6th CPC w.e.f. 01.01.2006, the pay scale attached to the rank of ASO was revised accordingly and Grade Pay of Rs.4600/- in PB-2 (Non- Gazetted) was fixed for the rank of ASO, i.e. Group 'B' post of the CSS cadre, and the Grade Pay of Rs.4800/- was fixed for the post of SO in the CSS cadre. Vide OM dated 29.08.2008 (Annexure A-3), the Department of Expenditure, Ministry of Finance modified the recommendations of the 6th CPC to be followed by all the 9 OA No. 2436/2022 Item No.50/C-5 Ministries/Departments, according to which, the Officers belonging to the Central Secretariat Services and various other Central Government Services with 4 years of service in the grade of Rs.4800/- (Gazzetted) in PB-2 are to be provided with the Non-Functional Grade of Rs.5400 in PB-3 and the said benefit was extended to all eligible Group 'B' posts of all the departments and ministries of the Central Government.
2.2 In continuation to the OM dated 29.08.2008, the Ministry of Finance issued clarification vide their letter dated 21.11.2008 (Annexure A-4) clarifying that Officer(s) placed in the Pay of Grade Pay Rs.4800/- shall be eligible for grant of Non-Functional Upgradation in Grade Pay of Rs.5400/-. As per the said clarification, it was crystallized that the eligibility of the Officer for NFU shall be decided on completion of 4 years from the date of them being placed with Grade Pay of Rs.4800/- and the said fixation was irrespective of the fact that the said grade pay of Rs. 4800/- was fixed for the Officer by virtue of financial upgradation or by way of substantive promotion. 2.3 The Group 'B' officers of CBDT having Grade Pay of Rs.4800/- by virtue of ACP challenged the anomaly in implementation of the Notification dated 29.08.2008 before Madras Bench of this Tribunal in O.A. No.167/2009, which was dismissed by the Tribunal. The aforesaid decision was challenged before the Hon'ble High Court of Madras in WP No.13225/2010 titled as M. Subramaniam vs Union of India and Ors., wherein the Hon'ble High Court of 10 OA No. 2436/2022 Item No.50/C-5 Madras was pleased to allow the said Petition, directing the Government of India to treat all the officers in Grade Pay of Rs.4800/- with 4 years of regular service including the Group 'B' Officers in such grade of Rs.4800/- by virtue of grant of upgradation under the ACP scheme to avail the benefit of Financial Upgradation in the Non-Functional Grade of Rs.5400/-, thereby setting aside the Order of the Madras Bench of the Tribunal. The above Judgment of the Hon'ble Madras High Court was challenged by the Union of India before the Hon'ble Supreme Court in Civil Appeal No.8883/2011, which was dismissed by the Hon'ble Apex Court, upholding the dictum of the Hon'ble High Court of Madras in the matter of M. Subramaniam (supra) vide Order dated 23.08.2018. Review Petition (Civil) No. 2512/2018 filed by the Union of India was also dismissed by the Hon'ble Supreme Court.
3. It is submitted by the learned counsel for the applicants that the applicants are seeking Non-functional Upgradation in the Grade Pay of Rs.5400/- as they have completed four years service in the Grade Pay of Rs.4800/- in terms of Ministry of Finance Resolution dated 29.08.2008 and they also preferred various representations in this regard. It is also brought to our notice that the applicants were though initially placed in the Grade Pay of Rs.4800/- by virtue of MACP but thereafter served the post of Section Officer, i.e. in Grade Pay of Rs.4800/-, after substantive promotion. 11 OA No. 2436/2022 Item No.50/C-5 3.1 Learned counsel for the applicants further submitted that the applicants earlier approached this Tribunal by filing O.A. No.2975/2019 (Satender Ghildiyal & Ors. vs Union of India and Ors.), which was disposed of vide Order dated 11.11.2021 by directing the respondents to decide the claims of the applicants by treating the same as a representation in light of the judicial pronouncements. In compliance to the ibid order, the respondents, however, rejected the claim of the applicants vide the impugned order dated 01.02.2022. Being aggrieved, the applicants have filed the present O.A. seeking the following relief(s):
"i. Quash and set aside the letter dated 01.02.2022 issued by the Respondents wherein the Petitioners have been denied the benefit of Non-functional Upgradation from the date of completion of 4 years of being placed in Grade Pay 4800 despite of being entitled and eligible for the same;
ii. Direct the Respondents to grant the benefit of Non- functional Upgradation in the Grade Pay Rs.5400 in Pay Band-3 on completion of 4 years of them being placed in GP Rs.4800 as per the law held by Hon'ble High court of Judicature at Madras in M Subramaniam v. Union of India and Ors. along with arrears, and all other consequential benefits."
3.2 Learned counsel for the applicants specifically draws our attention to the para 1 (x) (b) of Ministry of Finance, Department of Expenditure Resolution dated 29.08.2008, which is reproduced below:
"b) After 4 years of regular service in the Section Officer/ Private Secretary/ equivalent grade of Rs.4800 grade pay in PB-2, officers of Central Secretariat Service, Central Secretariat Stenographers Service and other similarly placed HQ services will also be granted the non-functional grade of Rs.5400 in PB-3 and not in PB-2"12 OA No. 2436/2022
Item No.50/C-5 3.3 For better understanding of the case, learned counsel for the applicants has filed a Chart on 05.11.2024 (page 318) in terms of this Tribunal's Order dated 14.10.2024, depicting date of promotion as ASO [column 3], date of grant of IIIrd MACP (GP Rs.4800) [column 4] and date of eligibility for entitlement of NFSG [column 5]. 3.4 In support of the case, learned counsel for the applicants has relied upon the following case laws:
(i) W.P. (C) 690/2022, titled as Sushil Kumar vs Union of India and Ors decided on 09.09.2024 passed by the Hon'ble High Court of Delhi;
(ii) W.P. (C) 886/2020, titled as Dal Singh and ors. vs. Union of India and Ors decided on 14.10.2024 passed by the Hon'ble High Court of Delhi;
(iii) Order dated 15.05.2012 in O.A. No.759/2010, titled as Sathyabhama T. Vs Union of India and Anr., passed by Ernakulam Bench of this Tribunal, which is affirmed by the Hon'ble High Court of Kerala at Ernakulam in OP (CAT) No. 2171 of 2012 vide Judgment dated 09.07.2012.
4. Per contra, learned counsel for the respondents vehemently opposed the grant of relief in the matter and reiterated the averments made in the counter affidavit. He contended that the applicants are ASOs and not SOs and they have been granted grade pay of Rs.4800/- by virtue of MACP. He further contended that the decision rendered in WP No.13225/2010 (M. Subramaniam vs UOI & Ors.) is not applicable to the facts and circumstances of the present case as the applicant therein and the present applicants are governed by different set of rules and regulations. The petitioner in 13 OA No. 2436/2022 Item No.50/C-5 WP No.13225/2010 was belonging to Department of Revenue and had placed reliance on Para No. 1(x)(e) of Ministry of Finance, Department of Expenditure Resolution No.111/2008-IC dated 29.08.2008, read with the clarification dated 21.11.2008 of Department of Revenue, which are applicable exclusively to Group 'B' officers of Department of Revenue and not to CSS officers, i.e., the applicants herein.
4.1 The applicants were ASOs of Central Secretariat Service Group 'B' officers (non-Gazetted) and are governed by the provisions of the statutory Central Secretariat Service (CSS) Rules, 2009 framed under Article 309 of the Constitution. Non-Functional Scale (NFS) in CSS to which the applicants belong, is governed by a separate specific clause made applicable to CSS officers under para 1(x)(b) of Resolution dated 29.08.2008 which is applicable exclusively to Section Officer/Private Secretary/equivalent grade officers of Rs.4800/- grade pay in PB-2 of Central Secretariat Service, Central Secretariat Stenographers Service and other similarly placed HQ services and they will be granted the non-functional grade of Rs.5400/- in PB-3 and not in PB-2, after completion of 4 years of approved service. Para 1 (x)(e) of the aforesaid resolution relates to officers of Department of Revenue and Posts and is not applicable to CSS officers. Further, subsequent to the issue of the Resolution dated 29.08.2008, the Government notified the CSS Rules, 2009 framed under Article 309 of the Constitution, which governs the 14 OA No. 2436/2022 Item No.50/C-5 service conditions of CSS officers and Non-Functional Scale (NFS) in CSS is provided for under Rule 17 of CSS Rules 2009 (Annexure R-4), which is admissible exclusively to the Section Officer grade officers of CSS on completion of 4 years of approved service in that grade i.e.Rs.4800/- grade pay in PB-2, of Central Secretariat Service, which reads as under:-
"17. Pay. The scales of pay attached to the various Grades of the Service shall be as follows, namely: -
(i) Senior Selection Grade: Rs 37400-67000 (PB-4)+Rs 8700 (Grade Pay)
(ii) Selection Grade: Rs 15600-39100 (PB-3) + Rs 7600 (Grade Pay)
(iii) Grade I: Rs 15600-39100 (PB-3) + Rs 6600 (Grade Pay)
(iv) Section Officers' Grade: Rs 9300-34800 (PB-2) + Rs 4800 (Grade Pay) Note: The non-functional pay scale of Rs 15600-39100 (PB-3) +Rs5400 (Grade Pay) is admissible to the Section Officers of the Service on completion of 4 years of approved service in that grade. The Section Officers, who are granted this non-functional pay scale will continue to remain in Group 'B' (Gazetted) and their eligibility for promotion to Grade I (Under Secretary) of the Service will be reckoned on the basis of total period, spent in both the scales of Section Officer, counted together.
(v) Assistants' Grade: Rs 9300-34800 (PB-2) + Rs 4200 (Grade Pay)."
The 'approved service' in respect of a CSS officer is as defined in Rule 2(c) of CSS Rules, 2009. Since the applicants were neither Section Officers of CSS Cadre and nor similarly placed as the petitioners in WP No.13225/2010, they are not eligible for NFS. 15 OA No. 2436/2022 Item No.50/C-5 4.2 The grant of NFS in Section Officers' Grade of CSS is governed by DoPT Orders No.21/36/03-CS.I dated 13.11.2003, No.5/4/2005- CS.I dated 25.01.2006, Part-B, Section II of CCS (Revised Pay) Rules 2008, Rule 17 of Central Secretariat Service Rules, 2009 and the aforesaid Para l(x)(b) of Resolution dated 29.08.2008. 4.3 Learned counsel for the respondents submitted that applicants are not covered under the benefit of NFS granted for CSS vide para 1(x)(b), which is only applicable for Section Officers of CSS and further, without admitting to the admissibility of para 1 (x)(e) to the applicants, submitted that even the requirement in para l(x)(e) of Resolution dated 29.08.2008 of 4 years regular service in the Grade Pay of Rs.4800/- is not fulfilled by the applicants, who are ASOs of CSS granted personal upgradation to the Grade Pay of Rs.4800/- under MACPS as they cannot be said to be holding the regular post of Section Officer carrying the Grade Pay of Rs.4800/-, but in terms of the provisions of the MACP scheme, continue to hold the substantive post of ASO in the Grade Pay of Rs.4600/- on regular basis. Therefore, the applicants are not entitled for grant of such benefit and, accordingly, in compliance with the directions issued by this Tribunal in O.A. No.2975/2019, the respondents issued speaking order dated 01.02.2022 rejecting their claim. The learned counsel also submitted that the judgment in the matter of Sathyabhama T. (supra) was case specific and it cannot be extended to the applicants 16 OA No. 2436/2022 Item No.50/C-5 as they are governed by different rules specific to CSS. Accordingly, the O.A. deserves to be dismissed.
5. Heard the learned counsel for the respective parties at length and perused the pleadings/judgments on record.
6. The applicants, who were working as ASOs of Central Secretariat Service Group 'B' officers (non-Gazetted) and granted grade pay of Rs.4800/- in Pay Band-2 by virtue of MACP, are seeking Non-functional Upgradation in the Grade Pay of Rs.5400/- in Pay Band-3 from the date they had completed four years' service in the Grade Pay of Rs.4800/- in terms of Ministry of Finance Resolution dated 29.08.2008 as well as the Judgment of the Hon'ble High Court of Madras in M. Subramanium (supra) and other case laws. The representations preferred by them have been rejected by the respondents vide impugned order dated 01.02.2022. We are also apprised that though the applicants were initially placed in the Grade Pay of Rs.4800/- by virtue of MACP, later they were promoted to the post of Section Officer in the Grade Pay of Rs.4800/-.
7. It is the contention of the respondents that the applicants are ASOs and not SOs and they have been granted grade pay of Rs.4800/- by virtue of MACP; and further that the decisions rendered by the Hon'ble High Courts in M. Subramaniam vs UOI & Ors. and in Sathyabhama T. (supra) are not applicable to the facts and circumstances of the present case, as the applicants are 17 OA No. 2436/2022 Item No.50/C-5 governed by different set of rules and regulations. Hence, they are not entitled to the benefits claimed by them.
8. From a perusal of the record, it is evident that in support of their claim, the applicants have also relied upon para 1 (x) (b) of the Resolution No.1/1/2008-IC dated 29.08.2008, already reproduced hereinabove, whereby the Government of India, Ministry of Finance, Department of Expenditure accepted the recommendations of the 6th pay commission. The applicants have also referred to a clarification issued by the Ministry of Finance, Central Board of Excise and Customs vide Letter F.No.A26017/98/2008-Ad.II.A dated 21.11.2008, wherein clarification has been sought "as to how the 4 year period is to be counted for the purpose of granting non- functional upgradation to Group-B Officers, i.e. whether the 4-year period is to be counted w.e.f. the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (pre-revised) or w.e.f. 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force". It has been clarified by the Department of Expenditure that "the 4-year period is to be counted w.e.f. the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (pre-revised). Thus, if an officer has completed 4 years on 1.1.2006 or earlier, he will be given the non-functional upgradation w.e.f. 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4-years in the pay scale of Rs. 7,500- 12000 (pre-revised)". 18 OA No. 2436/2022 Item No.50/C-5
9. During the course of hearing, our attention is drawn to the order of the Hon'ble Madras High Court in WP (C) No. 13225/2010, M. Subramaniam (supra), wherein a similar issue arose for consideration inasmuch as whether the Group B officers in the grade pay of ₹4800 shall be entitled to grade pay of ₹5400 after four years of service. The plea on behalf of the department was that, it is only an officer who is working in Group B with a particular designation shall be entitled to the grade pay of ₹5400 and not a Group B officer who got grade pay of ₹4800 through financial up gradation in ACP Scheme. This submission was negated by Madras High Court in M. Subramaniam's (supra). The relevant paragraph of the judgment reads as under:-
"5. The Tribunal, by relying upon the clarification, dated 29.8.2008 of the Government of India, held that the petitioner cannot be equated to the posts, viz., Income Tax Officer/Superintendents, Appraisars, etc. though he was drawing the pay scale attached to the said posts by virtue of grant of financial upgradation in ACP Scheme and therefore, he is not entitled to the grade pay of Rs.5400/- on the basis that he had completed four years of regular service in the pay scale of Rs.7500-Rs.12000. According to the Tribunal, unless the petitioner is promoted, he is not entitled for grade pay of Rs.5400/- 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 Rs.5400/-in Pay Band 2 on non-functional basis to the Group B 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 years, he is entitled to the grade pay of Rs. 5400/- 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 19 OA No. 2436/2022 Item No.50/C-5 on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the 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 upgradation under ACP would not be entitled to the benefit of further non-financial upgradation the 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 for the purpose of granting non-functional upgradation to Group-B Officer, i.e. whether 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-years on 1.1.2006 or earlier, he will be given the non-functional upgradation 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 upgradation from such date on which he completes 4-year in the pay scale of Rs. 7,500- 12000 (pre-revised), since the 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 of 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 years of regular service in the grade pay 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 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. No costs."
10. The aforesaid Judgment of the Hon'ble Madras High Court was taken in appeal before the Hon'ble Supreme Court in Civil Appeal 20 OA No. 2436/2022 Item No.50/C-5 No.8883/2011 which was dismissed by the Hon'ble Apex Court vide order dated 10.10.2017 upholding the dictum of the Hon'ble High Court of Madras. Thereafter, Review Petition No.2512/2018 preferred by the Union of India was also dismissed vide order dated 23.08.2018. Pursuant to the dismissal of the Government's Appeal and Review Petition by the Supreme Court, the benefit of NFU in Grade Pay of Rs.5400/- was granted to Group 'B' officers of the CBDT who were holding the Grade Pay of Rs.4800/- by virtue of ACP upgradation for 4 years. The decision in M. Subramaniam (supra) has been subsequently followed by various Courts of law in a catena of judgments.
11. We have also gone through the recent Judgment dated 09.09.2024 relied upon by the applicants in W.P. (C) No. 690/2022 in Sushil Kumar (Supra) passed by the Hon'ble High Court of Delhi. The relevant portion of the said Judgment is extracted below:
"10. Having considered the submissions of the learned counsel for the parties and perused the record, we find that in M. Subramaniam (supra), the Madras High Court had rejected exactly the same plea as is being sought to be raised by the respondents by urging that the benefit of NFU in the grade pay of Rs. 5,400/- would not be applicable to those drawing grade pay of Rs. 4,800/- by way of financial upgradation and not by way of promotion. It would, therefore, be apposite to refer to the relevant extract of the decision of the Madras High Court in M. Subramaniam (supra):
"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 21 OA No. 2436/2022 Item No.50/C-5 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 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 prerevised 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 prerevised 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.
... ... ...
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 (prerevised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7,500-12,000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 5700-12000 as on 1.1.2008, he is entitled to grade pay of Rs. 5400/-. In fact, the Government of india, having accepted the recommendations of the 6th Pay Commission, issued a resolution dated 29.08.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on nonfunctional basis after four years of regular service in the grade pay 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."
11. Since it is an admitted position that not only the appeal assailing the decision of the Madras High Court in M. Subramaniam (supra) stands rejected but even the Review Petition (C) no. 2519 of 2018 also stands rejected by the Apex Court, it would be apposite to refer to the order dated 23.08.2018 whereby the review petition was dismissed by the Apex Court. The same reads as under:-
22OA No. 2436/2022
Item No.50/C-5 "There is a delay of 357 days in filing Review Petition (C) No.2512 of 2018 and 264 days in filing Review Petition (C) No.2519 of 2018. The challenge to the clarification issued by the Ministry of Finance clarifying that non-functional Grade Pay of Rs.5,400/-
would not be granted to such of those officers who had got the Grade pay of Rs.4,800/- on upgradation under ACP Scheme, was accepted by the High Court and the writ petition preferred by the respondent was allowed. While dismissing the special leave petitions filed at the instance of the present review petitioners this court did not find any ground to interfere. We have gone through the review petitions and do not find any error apparent on the face of record. These review petitions are, therefore, dismissed both on the ground of delay as well as merits."
12. Even otherwise, having perused the resolution dated 29.08.2008 issued by the Ministry of Finance, we find that the provision for NFU in the grade pay of Rs. 5,400/- in PB-3 for Group-B officers with four years of service in grade pay of Rs. 4,800/- does not prescribe that those drawing the said grade pay by way of ACP or MACP schemes would not be eligible for the said benefit. In our considered view, when the resolution dated 29.08.2008 does not place any embargo on the entitlement of those Group-B officers, who are drawing the grade pay of Rs. 4,800/- by way of ACP/MACP schemes, the respondents could not have placed a condition that the grant of NFU would be restricted to those drawing grade pay of Rs.4,800/- by way of promotion.
13. We, therefore, find no justification on the part of the respondents in denying the benefit of NFU in the grade pay of Rs. 5,400/- to the petitioner, who was admittedly drawing the grade pay of Rs. 4,800/- w.e.f. 06.07.2015 only on the ground that he was drawing the said grade pay by way of MACP scheme. The impugned order passed by the respondents rejecting the petitioner's claim for grant of NFU in grade pay of Rs. 5,400/- in PB-3 w.e.f. 06.07.2019, the date when he completed four years of service in the grade pay of Rs. 4,800/- is, therefore, wholly unsustainable.
14. For the aforesaid reasons, the writ petition is allowed by setting aside the impugned order dated 24.09.2021. The respondents are directed to extend the benefit of NFU in the grade pay of Rs. 5,400/- in PB-3 as per the resolution dated 29.08.2008 issued by the Ministry of Finance to the petitioner w.e.f. 06.07.2019, on which date he completed four years of service in the grade pay of Rs. 4,800/-. The exercise in terms of this order will be completed within eight weeks and arrears, as found payable to the petitioner, will be released to him within four weeks thereafter."
23OA No. 2436/2022 Item No.50/C-5 The aforesaid Judgment has also been followed by the Hon'ble High Court of Delhi in WP(C) No. 886/2020 in Dal Singh and Ors. (supra), which has been allowed vide Judgment dated 14.10.2024.
12. In view of above settled position of law, we are of the considered opinion that the issue raised in the present O.A. is no longer res integra as the dictum of the Hon'ble Madras High Court in M. Subramaniam (supra) has already attained finality and as held by the Hon'ble Delhi High Court in paras 12 to 14 in the case of Sushil Kumar (supra), already reproduced hereinabove, the impugned order passed by the respondents while rejecting the applicants' claim for grant of Non-Functional Upgradation in grade pay of Rs.5400/- in PB-3 from the dates they completed four years' service in the grade pay of Rs.4800/-, is wholly unsustainable.
13. As regards another contention of the respondents that the Judgment passed by the Hon'ble High Court is case specific and cannot be made applicable in the present case, it is pertinent to mention that the Hon'ble Supreme Court in a catena of Judgments, including in the case of K.C. Sharma vs Union of India and others, 1997 (6) SCC 721, held that the benefit of a judgment cannot be denied to similarly situated employees and that in the case of State of Karnataka vs C. Lalitha, 2006 (2) SCC 747, the Hon'ble Supreme Court observed that "Service jurisprudence evolved by this Court from time to time postulates 24 OA No. 2436/2022 Item No.50/C-5 that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently". Thus, the benefits of the judgment rendered by the Hon'ble Madras High Court in M. Subramaniam (supra) which is upheld by the Apex Court and followed by various High Courts as well as this Tribunal in a catena of decisions, need to be extended to the applicants herein, who are/were similarly placed Group 'B' officers of CSS cadre and granted grade pay of Rs.4800/- in Pay Band-2 by virtue of ACP/MACP and later promoted to the post of Section Officer in grade pay of Rs.4800/-, without any discrimination whatsoever; and the O.A. deserves to be allowed.
14. Therefore, we allow the O.A. and the impugned order dated 01.02.2022 is quashed and set aside. The applicants are entitled to the grade pay of Rs.5400/- in Pay Band-3 from the dates of completion of four years' service in the grade pay of Rs.4800/-, with all consequential benefits. The aforesaid directions shall be complied with by passing appropriate orders within a period of three months from the date of receipt of a copy of this order. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/