Gauhati High Court
WP(C)/934/2015 on 11 April, 2019
Author: A. K. Goswami
Bench: Chief Justice, Arup Kumar Goswami
GAHC010009102015
1
THE GAUHATI HIGH COURT
,
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
WP(C) 934/2015
Sri Tarani Kanta Sarma,
Retired Sr. Engineer (Information Technology Centre),
Office of the N.F. Railway,
Maligaon, P.O. Lachitnagar,
Guwahati-781007, Assam.
- Petitioner
-Versus- ,
1. The Union of India,
Through the General Manager, N.F. Railway,
Maligaon,Guwahati-781011.
2. The Financial Advisor & Chief Accounts Officer,
N.F. Railway, Maligaon,
Guwahati-781011.
3. The Chairman,
Railway Board, Indian Railways,
Rail Bhawan,
New Delhi-110001.
- Respondents
Advocate present:
For the petitioner : Mr. S. Dutta, Advocate
For the respondent : Mr. A. Dasgupta,
Senior Advocate,
Mr. B. K. Das, Advocate
Date of hearing : 26.03.2019
Date of judgement : 11.04.2019
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE ARUP KUMAR GOSWAMI
JUDGMENT AND ORDER
(A. K. Goswami, J)
We have heard Mr. S. Dutta, learned counsel appearing for the petitioner. We have also heard Mr. A. Dasgupta, learned senior counsel, assisted by Mr. B. K. Das, learned counsel appearing for the respondents.
WP(C) 934/2015 2
2. By means of this application under Article 226 of the Constitution of India, the petitioner, who had superannuated on 29.02.2012 while working as a Senior Engineer (IT) in the Information Technology Centre, NF Railway, has called into question the judgement dated 05.06.2014, passed by the learned Central Administrative Tribunal (for short "CAT"), Guwahati, in Original Application No. 50/2012.
3. By a letter dated 17.05.2010, the petitioner along with 17 other officers, were granted financial up-gradation under Modified Assured Career Progression (MACP) Scheme as indicated in the said letter. By the said letter, 2nd and 3rd MACP with effect from 01.09.2008 with Grade Pay of Rs. 4800/- and Rs. 5400/- in Pay Band of Rs. 9300-34800/- were sanctioned. A letter dated 21.02.2012 was issued in supersession of the letter dated 17.05.2010 in respect of the petitioner and Grade Pay of Rs. 4600/- was fixed in lieu of Rs. 4800/- and Rs. 5400/- granted earlier.
4. Aggrieved, the petitioner approached the CAT and in the Original Application, the petitioner had essentially prayed for (i) setting aside and quashing the order dated 21.02.2012, (ii) a declaration that the petitioner is entitled to Grade Pay of Rs. 4800 and 5400/- in Pay Band of Rs. 9300-34800/- in terms of the order dated 17.05.2010, (iii) setting aside the letter dated 30.04.2012 issued by the Deputy Director, Pay Commission- IV, Railway Board and (iv) a direction to the respondents for immediate release of all pensionary benefits including monthly pension to the petitioner.
The letter dated 30.04.2012 is a letter providing clarifications in respect of grant of financial up-gradation under the MACP Scheme to staff of IT Cadre.
5. Primarily, the issue raised in the Original Application before the CAT was as to whether the petitioner would be entitled to 2nd and 3rd MACP with Grade Pay of Rs. 4800/- and Rs. 5400/-, respectively, in Pay Band of Rs. 9300-34800/-.
6. From the impugned judgement as well as the letter dated 31.08.2012, annexed as Annexure-VII to the affidavit of respondent Nos. 1 to 3, it is evident that the petitioner was subsequently granted 3rd MACP with Grade Pay of Rs. 4800/- with effect from 01.09.2008.
7. The question, now, therefore, is as to whether the 3rd MACP so granted, in fact, is the 2nd MACP and, if that be so, whether the petitioner is entitled to 3rd MACP with Grade Pay of Rs. 5400/- in the Pay Band of Rs. 9300-34800/- as the other prayers are dependent on this basic question.
WP(C) 934/2015 3
8. Case of the petitioner is that he was initially appointed as Junior Punch Verifier Operator (Junior PVO) on 27.01.1977 in the pay scale of Rs. 260-400/-. On 01.05.1981, he was promoted to the post of Senior Punch Verifier Operator (Senior PVO) in the pay scale of Rs. 330-560/-. Thereafter, he was promoted to the post of Senior Data Entry Operator on 31.05.1993 in the pay scale of Rs. 1400-2300/- and, thereafter, to the post of General Supervisor in the pay scale of Rs. 1600-2300/- on 31.05.1996. Vide order dated 30.03.2006, he was further promoted to the post of Data Processing Superintendent (DPS) in the pay scale of Rs. 6500-10500/-.
9. In the year 2004, the Railway Board had decided to reorganize the staffing pattern of all Electronic Data Processing (for short, "EDP") Centres and, by a letter dated 17.11.2004, issued by the Railway Board, it was indicated that a new cadre, to be known as Information Technology (IT) Cadre, would be set up with the centers known as Information Technology (IT) Centers. The said letter stated that the reorganization would take effect from 01.04.2005. The staffing pattern with the cadre structure was also laid out. It envisaged four cadres, which are: (i) Junior Engineer (IT) Grade II in the pay scale of Rs. 5000-8000/-, (i) Junior Engineer(IT) Grade I in the pay scale of Rs. 5500-9000/-,
(iii) Senior Engineer (IT) Grade II in the pay scale of Rs. 6500-10500/- and (iv) Senior Engineer (IT) Grade I in the pay scale of Rs. 7450-11500/-. While holding the post of DPS, by a letter dated 31.12.2008, the petitioner was placed in IT Cadre as Senior Engineer (IT) Grade-II. Later on, by a letter dated 29.09.2010 the Senior EDPM, Maligaon, conferred the designation of Senior Engineer (IT) to the petitioner pursuant to the Railway Board's letter dated 14.09.2010.
10. The posts of PVO and Senior PVO were merged in the pay scale of Rs. 330-560/- by a letter dated 28.11.1984. Subsequently, by a letter dated 24.09.1986, the posts of Junior PVO and Senior PVO were brought in the pay scale of Rs. 1350-2200/- and the posts were re-designated as Data Entry Operator (DEO). Following recommendations of the Fifth Central Pay Commission, DEO was granted pay scale of Rs. 4500-7000/-. Subsequently, by a communication dated 09.11.2009, it was indicated that posts of Senior DEO and DEO got merged in the cadre of Junior Engineer (IT) Grade-II in the pay scale of Rs. 5000-8000/-. The post of Console Operator and General Supervisor were merged in the post of Junior Engineer (IT) Grade-I in the pay scale of Rs. 5500-9000/-. In the Sixth Central Pay Commission (CPC) Report, the pay scales of Junior Engineer (IT) Grade-I and WP(C) 934/2015 4 Junior Engineer (IT) Grade-II had been merged to Grade Pay of Rs. 4200/- in the Pay Band of Rs. 9300-34800/-. The said letter dated 09.11.2009 also indicates that Data Processing Superintendent and Senior Console Operator were re-designated as Senior Engineer (IT) Grade-II and Assistant Programmer and Console Superintendent as Senior Engineer (IT) Grade-I in the Grade Pay of Rs. 4600 in the pay scale of Rs. 9300-34800/-.
11. In the Original Application, the order dated 21.02.2012 was assailed primarily on the ground that the Grade Pay of the petitioner had been reduced without giving any opportunity to the petitioner thereby violating the principles of natural justice and, that apart, no reason had been assigned for withdrawal of the financial up-gradation given to the petitioner by reducing the Grade Pay. It is pleaded that similarly situated employees of the IT Centres, who had been extended the benefit of 2nd and 3rd MACP Scheme along with the petitioner vide letter dated 17.05.2010, had not been disturbed. Grant of 2nd and 3rd financial up-gradation was sought to be justified stating that as a result of revised classification of posts in the new IT Centres, there came to be only two grades in the IT Centres known as Junior Engineer (IT) and Senior Engineer (IT) and that 40% in the grade of Junior Engineer (IT) was to be recruited through directed recruitment and 60% by way of promotion and 100% of the posts of Senior Engineer (IT) are to be filled up by way of promotion on the basis of seniority cum suitability. The Junior Engineers (IT), who are newly appointed through direct recruitment, will reach the same scale/Grade Pay of Rs. 4600/- within a period of 2 to 5 years whereas persons like the petitioner had earned the Grade Pay of Rs. 4600/- in the pay scale of Rs. 9300-34800/- after serving the department for more than 30 years. It is because of this disparity that the promotions/financial up-gradations, which were earned by the petitioner were 'washed away' and, therefore, the petitioner was rightly granted the 2nd and 3rd financial up- gradation of Rs. 4800/- and Rs. 5400/-, respectively, under the MACP Scheme since the entry grade of the petitioner was Senior Engineer in the re-organized IT Centres with Grade Pay of Rs. 4600/-.
12. The stand of the respondents is, in substance, reflected in paragraph 9 of the affidavit filed in the writ petition. It is pleaded that on a wrong understanding of the MACP Scheme, assuming that even for existing staff also the entry grade is that of Junior Engineer (IT), all promotions up to Junior Engineer (IT) earned by the petitioner and other similarly situated persons were ignored while granting financial up-gradations under MACP WP(C) 934/2015 5 Scheme and, therefore, the petitioner was granted two financial up-gradations at Grade pay of Rs. 4800/- and Rs. 5400/- vide order dated 17.05.2010. It is asserted that the up- gradation earned by the petitioner from the pay scale of Rs. 4500-7000/- to Rs. 5000- 8000/-, should have been counted as one promotion before the petitioner had come to pay scale of Rs. 5500-9000/-, and the failure to do so resulted in grant of financial up- gradation at Grade pay of Rs. 5400/- in Pay Band 2. The mistake having been detected, his Grade pay was reduced to Rs. 4600/- temporarily. Referring to the letter dated 30.04.2012 of the Railway Board, it is pleaded that the pay scales of Rs. 4500-7000/- and Rs. 5000-8000/- have not been merged by the Sixth CPC and, besides, the pay scales have been allotted a distinct grade pay of Rs. 2800/- and Rs. 4200/-, respectively. It is stated that during his service period, the petitioner had earned three promotions which should be considered as two promotions under the MACP Scheme and, thus, he is entitled to only one financial up-gradation. How the petitioner has been treated with regard to his promotion/up-gradation has been reflected in paragraph 9 in a tabular form.
13. A perusal of the judgement of the CAT would go to show that the petitioner had contended that he got only one promotion from Grade Pay of Rs. 4200/- to Rs. 4600/- and, therefore, as per Clause 5 of the MACP Scheme, he is entitled to two financial up- gradations. Such submission was advanced on the basis that in the newly introduced IT Cadre, in the entry grade, the Grade Pay is fixed at Rs. 4200/- and, therefore, the promotion granted to the Grade Pay of Rs. 4600/- is to be taken as the first promotion. Learned counsel for the respondents had also relied on Clause 5 to contend that the petitioner was entitled only to the 3rd financial up-gradation with Grade Pay of Rs. 4800/-. Further contention was advanced by the learned counsel for the respondents that the petitioner was absorbed in the IT Cadre and, therefore, the entry grade of the IT Cadre cannot be treated as the entry grade of the petitioner in service.
14. On consideration of the materials on record, the Original Application was dismissed holding that the petitioner failed to make out a case for grant of 2nd and 3rd financial up- gradations with Grade Pay of Rs. 4800/- and Rs. 5400/-, respectively. CAT rejected the contention of the petitioner holding that if the petitioner's contention is accepted, the same would virtually wipe out the entire career progression of the petitioner. The CAT had held that the petitioner had not been able to make out a case that he was given a particular scale under the ACP which, now, carries the same Grade Pay as the one from WP(C) 934/2015 6 which financial up-gradation has been granted under the ACP and, therefore, Clause 5 of the MACP does not come in aid of the contention of the petitioner. The plea set up by the petitioner that he was treated differentially with that of the similarly situated persons was negated holding that financial up-gradation under the MACP is specific to the individual employees and there was no requisite pleading to contend that they were, in fact, identically placed. While dismissing the Original Application filed by the petitioner, the CAT had given the following directions:
"19. Because of the 2nd & 3rd financial upgradations given to the applicant and the interim order of this Court some extra payment might have been made. The extra payment made because of the mistake of the department, shall not be recovered in view of the fact that the employee has already retired and deserves protection under the judgement of the Hon'ble Apex Court rendered in Shyam Babu Verma & Others vs. Union of India & Others, (1994) 2 SCC 521. However, if some extra payment has been made to applicant in pursuance of the intervention of this Court, the same may be recovered in not less than 30 installments from his pension.
No order as to costs."
15. Mr. Dutta has submitted that the petitioner had got only one promotion from the feeder grade of Junior Engineer (IT) in Pay Band 2 with Grade Pay of Rs. 4200/- to the promotional grade of Senior Engineer (IT) in Pay band 2 with Grade Pay of Rs. 4600/-. The Grade Pay of Rs. 4200/- introduced by the Sixth CPC was granted as an outcome of the re-organization/revised classification and, as such, the same cannot be construed as a promotion and, thus, by placing reliance on Clause 5 of the MACP Scheme he contends that the petitioner was rightly granted 2nd and 3rd financial up-gradations, which were arbitrarily cancelled without affording any opportunity of being heard and, as such, on the ground of violation of the principles of natural justice alone the impugned order dated 21.02.2012 is liable to be set aside and quashed. In order to show that Junior Engineer (IT) Grade-II is the entry Grade consequent upon the classification of posts as a result of implementation of the Sixth CPC, he had drawn the attention of the court to page No. 107 of the writ petition. He had also drawn our attention specifically to page No. 42 of the affidavit-in-opposition of the respondents to contend that the pay scales of Rs. 5000-150- 8000/-, Rs. 5500-175-9000/-, Rs. 6500-200-6900/-, Rs. 6500-200-10500/-, Rs. 7450-225- WP(C) 934/2015 7 11500/- Rs. 7500-250-12000/- and Rs. 8000-275-13500/-, all in Pay Band 2, had been merged with pay scale of Rs. 9300-34800/- with different Grade Pay of Rs. 4200/-, Rs. 4600/- and Rs. 4800/-, as indicated, and, therefore, when there is merger of pay scales, promotions effected had to be ignored for the purpose of grant of MACP.
16. Mr. Dutta has also submitted that similarly circumstanced persons had been granted the Grade Pay of Rs. 5400/- and, in particular, he referred to the case of one Samarendra Chakraborty who was granted Grade Pay of Rs. 4800/- and Rs. 5400/- vide order dated 16.07.2010. He has also handed over a copy of the Pension Payment Order (PPO) of Samarendra Chakraborty wherein it is indicated that his Grade Pay is Rs. 5400/- and, accordingly, he had contended that discrimination is writ large. In support of his contentions, he has placed reliance on the judgement dated 01.01.2013 of the Central Administrative Tribunal, Ernakulam Branch, in the case of G.R. Mahesh and Another vs. Union of India, represented by the General Manager, Southern Railway; a judgement dated 16.08.2016 of the Delhi High Court rendered in WP(C) 9109/2015 in the case of Union of India and Others vs. D. S. Rawat and Others; a judgement dated 20.11.2015 rendered by the High Court of Madhya Pradesh, Jabalpur Bench, in WP No. 13031/2013 and other connected cases (Union of India vs. K. Bhaskaran) and as well as a judgement of this court dated 05.04.2017 in WP(C) 2844/2015 and other connected cases (Union of India and Others vs. Utpal Saikia).
17. Mr. Dasgupta has supported the impugned judgement of the CAT and has submitted that on an erroneous interpretation of the MACP Scheme the petitioner was wrongly granted Grade Pay of Rs. 4800/- and Rs. 5400/-, which were subsequently corrected in the light of the letter dated 30.04.2012, which was also challenged before the CAT. Mr. Dasgupta has drawn the attention of the court to the tabular form, which is forming a part of paragraph 9 of the affidavit-in-opposition, to indicate which promotions earned by the petitioner were ignored and which promotions were considered while granting the 3rd financial up-gradation with Grade Pay of Rs. 4800/-. He submits that all the promotions earned by the petitioner before establishment of the IT Cadre cannot be ignored, as is sought to be contended by the petitioner, and that any promotion/financial up-gradation that had to be ignored for the purpose of MACP Scheme would have to be guided by Clause 5 of the MACP Scheme. It is also contended by him that the petitioner was never placed as Junior Engineer (IT) Grade-II, which was shown as entry grade in WP(C) 934/2015 8 Page No. 107 of the writ petition, and the petitioner was absorbed as Senior Engineer (IT) Grade-II inasmuch as the petitioner was already enjoying the pay scale of Rs. 6500- 10500/-, which is also the pay scale assigned to Senior Engineer (IT) Grade-II. His further contention is that though in the revised classification, Junior Engineer (IT) Grade-II has been shown as the entry grade in the IT Cadre, yet the same does not mean that MACP Scheme has to be implemented taking that grade as a basis as, in such event, the question of completion of 10 years/20 years/30 years for the purpose of enabling one to claim financial up-gradation, subject to fulfillment of other conditions, could not have arisen as the petitioner had not completed even 10 years after formation of the IT Cadre. He further submits that as the CAT had considered the case of the petitioner on merits, in the facts and circumstance of the case, it cannot be said that the petitioner is prejudiced and can still raise the question of violation of principles of natural justice. Mr. Dasgupta has emphasized that the petitioner enjoyed the Grade Pay of Rs. 4600/- in the pay scale of Rs. 6500-10500/- and had also produced the Service Book to demonstrate the same and, it is in this context, he submits that, in all probability, at Page No. 42 of the affidavit-in- opposition filed by the respondents, Grade Pay has been wrongly recorded as Rs. 4200/- against the pay scale of Rs. 6500-200-10500/-. He has also submitted that the judgements relied on by the petitioner were in the context of the fact situations arising in such cases and the same do not inure to the benefit of the petitioner in any case. With regard to the case of Samarandra Chakraborty, he contends that assuming that he was granted Grade Pay of Rs. 5400/-, in absence of adequate pleading establishing that he is identically placed with the petitioner, by reason of the same the petitioner will not be entitled to Grade Pay of Rs. 5400/-.
18. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
19. The petitioner had raised the issue of violation of principles of natural justice while issuing the order dated 21.02.2012, whereby Grade Pay was reduced, before the CAT as well as before this court. The principles of natural justice is not a straight-jacket formula and while considering the plea of violation of principles of natural justice, in a case of the present nature, the course of events over the period of time as well as real likelihood of suffering prejudice have to be taken note of. The respondents had set out in detail the basis on which such order was issued and the manner in which financial up-gradation of WP(C) 934/2015 9 the petitioner was considered in the light of the MACP Scheme. The petitioner had due opportunity to put forth his views and, in that circumstance, when the CAT had considered the matter on merits, we are of the considered opinion that at this point of time the petitioner cannot successfully plead and contend that he still continues to remain prejudiced for not having been granted due opportunity at the first instance.
20. Before we proceed further, it will be only appropriate to give a brief outline of the MACP Scheme relevant for our purpose.
21. The Sixth CPC had recommended MACP Scheme in terms of which financial up- gradation would be available in the next higher Grade Pay whenever an employee completes twelve years of continuous service in the same grade, also providing that not more than two financial up-gradations shall be given in the entire service career. The MACP Scheme will be available to all posts belonging to Grade-A. The Government had considered the recommendations of the Sixth CPC for introduction of MACP Scheme and had accepted the same with modification to grant three financial up-gradations under the MACP Scheme at intervals of 10, 20 and 30 years of continuous service. Accordingly, MACP Scheme for regular employees was introduced which was in supersession of the previous Assured Career Progression (ACP) Scheme. The MACP Scheme was made operational with effect from 01.09.2008. The ACP Scheme, which was called "ACP Scheme of October 1999", was to be operational till 31.08.2008, which, in other words, means that the financial up-gradation as per the provisions of the ACP Scheme would be granted till 31.08.2008. Completion of 10, 20 and 30 years was to be counted from the date of joining of a post in direct entry grade and the financial up-gradation is admissible whenever a person had spent ten years continuously in the same Grade Pay. What is regular service is indicated at Clause 9 of the MACP Scheme.
22. As the learned counsel for the parties had relied on Clause 5 of the MACP Scheme, it will be appropriate to reproduce the same. Clause 5 reads as under:
"5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
Illustration WP(C) 934/2015 10 The pre-revised hierarchy (in ascending order) in a particular organization was as follows:
Rs. 5000-8000, Rs. 5500-9000 & Rs. 6500-10500.
(a) A Railway servant who was recruited in the hierarchy in the pre-revised pay scale of Rs. 5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006, he would have got two financial upgradations under ACP to the next grade in the hierarchy of his organization, i.e., to the pre-revised scales of Rs.
5500-9000 and Rs. 6500-10500.
(b) Another Railway servant recruited in the same hierarchy in the pre-
revised scale of Rs. 5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs. 5500-9000 & Rs. 6500-10500 during this period.
In the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs. 5500-9000 and Rs. 6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre- revised scales of Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500-10500 recommended by the Sixth CPC. As per the RS(RP) Rules, both of them will be granted Grade Pay of Rs. 4200 in the Pay Band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher Grade Pays of Rs. 4600 and Rs. 4800 in the Pay Band PB-2."
23. The tabular form forming part of paragraph 9 of the affidavit-in-opposition of the respondents is as follows:
Sl. Appointment/ Merger of posts Name & Scale of Remarks
promotion posts after
No.
reorganization
of IT Cadre
1 2 3 4 5
1 Sri Sarma was appointed Merged in pay As per para 7(i)
As Jr. PVO on 23.02.77 in scale of Rs. of R/B's letter
pay scale of Rs. 260-400/- 1350-2200 (4th No. 2002/AC-
(3rd CPC) CPC) and re- II/37/8 dated
_____________________ designated as 17.11.04, staff
DEO. 5th CPC in the lowest
2 Promoted to Sr. PVO on pay scale of Rs. grade Rs. 4500-
01.05.81 in pay scale of 4500-7000/- & 7000/- are to be
WP(C) 934/2015
11
Rs. 330-560/- of 3rd CPC. 6th CPC pay selected for
scale PB-1, GP- entering into
2800/- in Rly entry grade of
hierarchy. Rs. 5000-8000/-
i.e. JE/IT Grade-
II.
3 Promoted to Sr. DEO on In terms of Para (2) of
31.05.93 in pay scale of Railway Board's Letter
Rs. 1400-2300/-. No. PC-
5th CPC Rs. 5000-8000/-. V/2009/ACP/17/ NFR
6th CPC PB-2: GP Rs. dated 30.04.2012
4200/-. promotion of Sri Sarma
to Sr. DEO has been
considered as one
promotion (1st) earned
by him.
4 Promoted as General In 6th CPC, PB-2: GP
Supervisor on 31.05.96 in Rs. 4200/- has been
Scale of Rs. 1600-2600/-. granted for the scale of
5th CPC Rs. 5500-9000/-. Rs. 5500-9000/-.
6th CPC PB-2: GP Therefore, this is not
Rs. 4200/-. treated as promotion.
5 Sri Sarma was promoted Sri T.K. Sarma This is a case of 2nd
to Data Processing was absorbed as promotion.
Superintendent on SE/IT w.e.f.
30.03.06 in Scale of Rs. 01.04.2005 in
6500-10500 (5th CPC). Scale of Rs.
6th CPC granted PB-2: GP 6500-10500/-
Rs. 4600/-. (5th CPC).
6th CPC granted
PB-2: GP Rs.
4600/-.
6 Sri Sarma has been
granted 3rd financial up-
gradation under MACPS in
PB-2: GP Rs. 4800/- w.e.f.
01.09.08
24. The career progression of the petitioner as reflected in the chart above is not disputed by the petitioner, but what is contested is consideration of promotion of the petitioner to the post of Senior DEO from DEO as the first promotion and to treat his absorption as SE(IT) in Grade Pay of Rs. 4600/- as the case of first promotion for the purpose of MACP Scheme instead of as a case of second promotion as considered by the respondents.
25. The post of DEO carried a pay scale of Rs. 4500-7000/- in the Fifth CPC. In Sixth CPC, the said scale is placed on PB-1 in the pay scale of Rs. 5200-20200/- with Grade Pay WP(C) 934/2015 12 of Rs. 2800/-. It is significant to note that in Sixth CPC the said pay scale has not been merged with the next higher scale which is Rs. 9300-34800/-. The Grade Pay is also not Rs. 2800/- but varies from Rs. 4200/-, Rs. 4600/-, Rs. 4800/- and Rs. 5400/-. The substratum of the argument of Mr. Dutta is that all promotions earned earlier prior to his induction in IT Cadre in which Junior Engineer (IT) Grade-II has been shown to be the entry grade is to be ignored. The argument is fallacious. In the first place, factually, it is not the case presented by the petitioner that from the post of DPS he was placed in the post of Junior Engineer (IT) Grade-II. It is the own case of the petitioner at paragraph 4.1.2. of the Original Application that he had been deployed (respondents have used the expression "absorbed") in the new IT Cadre as Senior Engineer (IT) Grade-II. Under the MACP Scheme, there shall be three financial up-gradations, counted from the Direct Entry Grade on completion of 10, 20 and 30 years, respectively, and such up-gradations will be admissible whenever a person has spent 10 years continuously in the same Grade Pay. Direct Entry, as is referred to in the MACP Scheme, cannot be correlated to any subsequent revision of classification of posts also indicating that a particular post will be a post in the Entry Grade. The petitioner was absorbed in the IT Cadre, in which Junior Engineer (IT) Grade-II is a post, only on 01.04.2005 and if the petitioner's contention is to be accepted then for him the period of 10 years starts from that date. To overcome that, it is also sought to be contended that for the purpose of MACP the entire service period has to be, otherwise, reckoned. In other words, the contention advanced is that the respondents should ignore all promotions earned earlier but should take the total length of service for the purpose of MACP. This is not the object and purport of the MACP Scheme. Clause 5, which deals with promotions earned earlier, provides that if due to merger of pay scales/up-gradations of posts recommended by the Sixth CPC, promotions earned/up- gradations granted under the ACP Scheme in the past to those Grades which now carry the same Grade Pay will have to be ignored. If it is not to the same Grade Pay, it cannot be ignored. Therefore, promotion from the post of DEO in the pay scale of Rs. 4500- 7000/- with Grade Pay of Rs. 2800/- to the post of Senior DEO in the pay scale of Rs. 5000-8000/- with Grade Pay of Rs. 4200/- has to be considered as one promotion.
26. A perusal of the letter dated 09.11.2009 (Annexure-5 to the writ petition) goes to show that the post of Senior Engineer (IT) Grade-I and Senior Engineer (IT) Grade-II have been merged to Grade Pay of Rs. 4600/- and Junior Engineer (IT) Grade-I and Junior WP(C) 934/2015 13 Engineer (IT) Grade-II have been merged to Grade Pay of Rs. 4200/- in Pay Band of Rs. 9300-34800/- under the Sixth CPC. Though in page 42 of the affidavit-in-opposition, which is an unsigned document, Grade Pay of Rs. 4200/- against pay scale of Rs. 6500- 9000/- had been shown as also in the Illustration to the MACP Scheme, materials on record indicate that the petitioner was absorbed as Senior Engineer (IT) on 01.04.2005 in the pay scale of Rs. 6500-10500/- with Grade Pay of Rs. 4600/- and, therefore, this aspect of the matter may not detain this court. In any event, it is not in dispute that the petitioner was enjoying Grade Pay of Rs. 4600/-, which is a progression from Grade Pay of Rs. 4200/-. If in terms of page No. 42 of the affidavit-in-opposition Grade Pay is considered to be Rs. 4200/- in respect of pay scale of Rs. 6500-10500/-, in that case, it has to be taken that there is already an up-gradation as the petitioner was granted Grade Pay of Rs. 4600/-. If the Grade Pay is considered as Rs. 4600/- in respect of pay scale of Rs. 6500-10500/-, though pay scales of Rs. 5000-8000/-, Rs. 5500-9000/-, Rs. 6500- 6900/- and Rs. 6500-10500/- have been merged in the pay scale of Rs. 9300-34800/- in the Sixth CPC, the Grade Pay fixed in respect of pay scale of Rs. 5000-8000/-, Rs. 5500- 9000/-, Rs. 6500-6900/- being undisputedly Rs. 4200/-, progression from Grade Pay of Rs. 4200/- to Rs. 4600/- cannot be excluded for the purpose of grant of MACP in terms of Clause 5 of the MACP Scheme as the basis for exclusion is relatable to Grade Pay.
27. In G.R. Mahesh (supra), the Ernakulam Bench of the CAT had interpreted Clauses 5 and 8 of the MACP scheme and had observed that though there may be seeming conflict between the two provisions, actually there was no conflict inasmuch as Clause 5 applies to a situation where there is merger of two or more pay scales, while such a merger is not there in respect of the pay scales of promotional post and the feeder post in respect of Clause 8 and thus the two provisions are compatible as they are functioning in two different planes. The High Court of Madhya Pradesh, in Union of India Vs. K. Bhaskar and other connected cases (supra), had relied on a judgment of the Allahabad High Court wherein also Clause 5 and Clause 8 had fallen for consideration. In the said case movement of a Senior Goods Guard to the post of Passenger Goods Guard was held to be not a promotion, but a lateral induction. In the fact situation, the Madhya Pradesh High Court accepted the proposition that lateral induction cannot be equated with promotion. In D. S. Rawat (supra), it was highlighted that notwithstanding any promotion granted, if the Grade Pay remains the same, in terms of the MACP Scheme the employee would be WP(C) 934/2015 14 entitled to up-gradation of Grade Pay. It is also observed that while computing or counting financial up-gradation for the purpose of MACP Scheme, the missed Grade Pay would be considered. The ratio of the above cases is not applicable in the facts of the instant case.
28. In Utpal Saikia (supra), this Court had interpreted Clause 9 of the MACP scheme, which defines 'regular service'. The same is not an issue in the present petition. This Court, however, said that even if a situation arises where two meanings are possible on the issue of grant or non-grant of benefits, the MACP scheme being in the nature of a welfare policy, has to be construed in favour of the employee concerned.
29. As regards the case of Samarendra Choudhury, though a PPO is produced during the course of hearing by Mr. Dutta indicating Grade Pay of Rs. 5400/-, since financial up- gradation under MACP depends on career progression of an employee, in absence of requisite pleading to demonstrate that the petitioner is identically placed with him, it cannot be concluded that the petitioner is discriminated. On the basis of materials placed by the petitioner, we are of the opinion that the petitioner is entitled to 3rd financial up- gradation to Grade Pay of Rs. 4800/-, which was given to the petitioner. In that light, we are of the opinion that the conclusion of the CAT in that regard is justified.
30. The impugned judgement also goes to show that in MP 182/2012, which was filed by the petitioner while the Original Application was pending consideration, the CAT had granted the petitioner's prayer for release of pensionary benefits as per undisputed claim of the petitioner.
31. Though we have concurred with the conclusion arrived at by the learned CAT regarding entitlement of MACP, we are of the opinion that the directions contained in paragraph 19 of the judgement are required to be modified. Though the CAT had directed not to recover any amount from the petitioner because of extra payment made due to the mistake of the department, similar protection was not granted so far as extra payment being made, if any, in view of the intervention of the CAT. The petitioner had superannuated long back on 29.02.2012 and, therefore, in our considered opinion, to permit the respondents to effect recovery for payment made in terms of any order of the CAT will be wholly inequitable. Accordingly, we direct that no recovery shall be effected from the petitioner in case any excess payment had been made on account of grant of MACP.
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32. The writ petition stands disposed of with the above observations and directions. No cost.
JUDGE CHIEF JUSTICE Comparing Assistant WP(C) 934/2015