Central Administrative Tribunal - Delhi
Ashok Mudgal vs Govt. Of Nctd on 17 August, 2023
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Item No. 38 OA No.1669/2018
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 1669/2018
This the 17th day of August, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Ashok Mudgal (aged about 57 ½ years-Group A)
S/o (late) Sh. S.S. Sharma
R/o Flat No. B-402, Munirka Apartment, Sector 9
Dwarka, New Delhi-110077
[Working as EE (Elect.) in
DSIIDC Ltd. And presently on deputation
To DTIDC Ltd./Govt. of NCT of Delhi
As EE (Elect)/AGM(Works) ...Applicant
(By Advocate: Sh. R.A. Sharma)
VERSUS
1. Govt. of NCT of Delhi
Through its Secretary (Services)
Delhi Secretariat, 5th Level, A-Wing
I.P. Estate, New Delhi-110002
2. The Deputy Secretary (GAD)
General Administration Department
Govt. of NCT of Delhi
Level-II, A-Wing, Delhi Secretariat, IP Estate, New Delhi-110002
3. Delhi Energy Development Agency
Through it Chairman/Secretary (Environment)
Govt of NCT of Delhi, Delhi Secretariat
6th Level, A-Wing, IP Estate, New Delhi-110002
4. Managing Director
DSIIDC Ltd., N-36, Bombay Life Building
Connaught Circus, New Delhi-10001
...Respondents
(By Advocate: Sh. Amit Yadav with Ms. Monika Bhargava, Ms.
Sakshi Yadav for Sh. Anuj Chaturvedi for respondent No. 4
along with Sh. Dilip Jha, DSIIDC and Sh. Pramod Jain, Nodal
Officer, Delhi Energy Development Agency)
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Item No. 38 OA No.1669/2018
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) The applicant claims that pursuant to the grant of financial upgradation in terms of the provisions of the Assured Career Progression (ACP) scheme he should have been placed in the pay scale of Rs.10000-325-15200/- from the existing Rs.6500-200-10500/-. However, vide the two impugned orders his claim for such a financial upgradation has not been agreed to. Accordingly, by virtue of the present Original Application, he seeks the following relief(s):-
"(a) Quash and set aside orders dated 21.2.2018 (Annexure A-1) and dated 4.8.2017 (Annexure A-2) to the extent these orders treated applicant's post of AE(mech.) held by him in DEDA as an 'isolated post' and to the extent these orders don't grant to the applicant the first financial upgradation under the ACP Scheme (5th CPC) in the pay scale of Rs. 10000-
15200/- (pre-revised) w.e.f. 22.6.2003 and thereafter in the revised pay scale (PB-3) of Rs. 15600-39100 plus 6600 as Grade Pay w.e.f. 01.01.2006.
(b) A direction to the respondents to grant to the applicant Ist Financial Upgradation under the ACP Scheme (5th CPC) in the pay scale of Rs. 10000-15200 (pre-revised) w.e.f. 22.6.2003 and thereafter in the pay scale (PB-3) of Rs. 15600-39100 plus Rs. 6600 as Grade Pay (6th CPC) w.e.f. 01.01.2006 and pay all consequential benefits including arrears of pay and allowances.
(c) A further direction to the respondents to pay simple interest @ 18% per annum on the above arrears of pay and allowance from the date these became due till these are paid to the applicant.
(d) Pass any other further order or direction as deemed fit and proper in the facts and circumstances of this case, in the interest of justice.
3Item No. 38 OA No.1669/2018
(e) Allow costs in favour of the applicant."
2. Learned counsel for the applicant while arguing the case submits that the applicant has no grievance with respect to the date of his entitlement for financial upgradation under the ACP. However, he claims that the applicant was holding the post of Assistant Engineer at the time of the financial upgradation under the ACP and the next post in the hierarchy is the post of Executive Engineer which carries the pay scale of Rs.10000-325-15200/-. Accordingly, in terms of the provisions set forth in the instructions governing the grant of ACP, the applicant was entitled to the financial upgradation to the pay scale of Rs.10000-325- 15200/-, i.e., the initial scale which the post of Executive Engineer carries. However, the respondents instead of granting him the pay scale of the next promotional post have merely given him the next scale in the hierarchy of scales which is Rs. 7415-225-11500/- whereas this scale is nowhere applicable to the post of Executive Engineer which is the next post in hierarchy.
3. Drawing attention to Paragraph 7 of the ACP Scheme, learned counsel for the applicant has further submitted that 4 Item No. 38 OA No.1669/2018 rules governing ACP categorically stipulate that financial upgradation shall be given to the next higher grade within existing hierarchy without creating new post for the purpose. In the instant matter, the applicant was working as Assistant Engineer and it is nowhere disputed that the next higher post in the hierarchy is Executive Engineer. Accordingly, while granting ACP, the respondents were obliged to grant him financial upgradation in the pay scale/ pay band as applicable to the post of Executive Engineer. However, instead of that, they have only given him upgradation by way of next higher pay scale within the same hierarchy.
4. On account of service of the applicant getting transferred from the Government to a Corporation, the limited controversy that remains is as to which shall be the appropriate organization to settle the claim. We are of the conscious view that this internal administrative issue should not stand in the way of deciding the OA specially when the merits of the claim of the applicant have been established.
5. What the applicant seeks is an appropriate financial upgradation under the ACP Scheme. No doubt, benefit of 5 Item No. 38 OA No.1669/2018 ACP has been extended in his favour, however, as stated in the OA and as argued by the learned counsel, it is not strictly in accordance with the provisions of the Scheme, specifically Paragraph 7 of the same. For the sake of clarity, the said Paragraph is reproduced below:-
"7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification, dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay scales S-5 and S-
6. Financial upgradation on a dynamic basis (i.e., without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post the same shall be filled at its original level (pay scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on „dynamic‟ basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;"
6. There is no doubt that the applicant would be entitled to financial upgradation in accordance with what has been outlined in Paragraph 7 and we find that the impugned orders are not in consonance with the provisions set forth therein. Accordingly, the OA is allowed and the impugned 6 Item No. 38 OA No.1669/2018 orders are set aside. The applicant is held entitled to the Grade Pay of Rs. 6600/- in the revised pay scale of Rs. 15600-39100 w.e.f. 01.01.2006. Prior to that, the applicant shall be entitled to the placement in the pay scale of this post as was existing which is stated to be Rs. 10000-15200 strictly in provisions of Para 7 quoted above.
7. We find that the impugned orders have been issued by the General Administration Department, Government of NCT of Delhi and to implement the directions contained herein, all that is required is an amendment in the impugned orders to the limited extent of reflecting the appropriate pay scale and grade pay as directed above. Accordingly, respondent No. 2 shall ensure that the said impugned orders are amended to give effect to these directions. Learned counsel for the applicant has also drawn our attention to office order dated 13.03.2019 and 25.09.2020 passed by the same department giving sanction of the amount due to the applicant subsequent to financial upgradation. However, this order restricts this sanction only to the period when the applicant was in the employment of the Government. There is another order dated 30.09.2021 issued by the Delhi State 7 Item No. 38 OA No.1669/2018 Industrial and Infrastructure Development Corporation Ltd. (DSIIDC) i.e. respondent No. 4 which gives the sanction for the period applicant was employed with the DSIIDC. Accordingly, after the General Administration Department, i.e. respondent No. 2 has passed appropriate Office Orders revising the sanction of financial upgradation in terms of directions issued hereinabove, these two departments, i.e. General Administration Department, respondent No. 2 and DSIIDC, respondent No. 4 shall issue separate sanction orders with respect to release of entitled amount of the applicant in terms of this order. These directions, including payment of arrears shall be complied with within a period of ten weeks from the date of receipt of a certified copy of this order. In the facts and circumstances of the case, there shall be no claim for payment of interest upon the said payment. The OA stands allowed against the background of these observations.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/NS/