Central Administrative Tribunal - Mumbai
Shashikant Govind Kulkarni vs M/O Information And Broadcasting on 9 March, 2023
OA, Nogér/2a18 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMB AL. ORIGINAL APPLICATION No.261 of 218 Order reserved on with November, 2029 Order pronounced an 9% March, 2029. Hon'ble Shri. Justice M.G, Sewlikar, Member (J) Hon'ble Dr. Bhaewan Sahal, Member (A) 1. Shashikant Govind Kulkarni, Aged 63 years, Floar Manager (Retd. JDoordarshan Kendra, Mumbai aii O30, Réfat: C/1 & 3, Vishny Sadhan, Vidya Mandir Mars, Dahisar (4), Mumbal goo 068, 2. Chandrakant Keshav Deorukhakar, : ged 62 years, Floor Manager (Retd.}, Doordarshan Kendra, Mumbai 411G30 fat ag D/r8, Jaihind Nagar Welfare Society, Navneet Chowk, Worli, Kollweda, Mumbai 400 O30. a SPN APRs es Reo Ger tienen S$ S.D.Yelawane, Aged 69 years ANTS igor Manager ( Retd.), Doordarshan Rendra, Mumbai auiage Ryat s08/A Wing, Suryodaya C.HLS. Ltd, Nagusayatichi s Wadi, New Prabha Dev Road, Near Dainik Samna Press, LLL LLL LE a, ted. OLA. Nosh food ails, _ Prabha Devi, Mumbai aco 025. Applicants (Ms. Annie Nadar, Advocate) VERSUS i, The Union of India, through the Secretary, "y eek te de Ministry of Information and Broader: sting, Rafi Mare, New Delhi io 001. The Director General, Prasar Bharti, Doordarshar Bhawan, Copernicus Marg, New Delhi-1o0001, The Additional Director General (Prog.}, Doordarshan Kendra Worll, Mumbai aacoga., . The Pay and Accounts Officer, Central Pension Accounting Office, Ministry of Finance, Trikoot I Complex, Bhikafi fi y ~ . Cama Place, New Delhi-ra0ss, ~ Respondents (Mr. R.R.Shetty, Advocate) GA. No ehi/ooss ORDER
Per: Hon'ble Shri, Justice M.G. Sewlikar, Member £3 By this application the applicants are challenging the order dated 19.12.2017 vide which the applicants have been denied second financial upgradation as per ACP Scheme in the pay scale of next promotional post of Production Executive ie. pay scale o PB-H of Grade Pay of Rs.4,800/- from the date each of the applicant completed eg years of service, The facts giving rise to this application can be briefly stated thus :
1, All the applicants were initially appointed dire woliy to the post ef Floor Assistant in the Doordarshan Kendra, Mumbai, | Applicant Noa was appointed on 2o!h August, 1982, applicant No.2 an 09% September, 1983 and applicant No.3 on igh March, igaq as Floor Assistants in the pay scale of Rs.ggo0-480/- which was revised to Rs.1,¢00-,040/- with effect fram o1t Janu RIy, 1986. it was again revised with effect from on January, 1906 to Re.4.600-6,000/-, Since the applicants were not promoted, each of them was extended the benefit of accelerated Assured Career rrogression Scheme CACP) of agt* Aucust, 4999 after completion OA. Ne.edr/aor8 of 12 years of serviee and granted first fnancial upgradation and ) their pay was fixed in the pay scale of &s.0,500-10,500/-. All the applicants were granted revised pay scale with effect from ot danuary, 2006 and the basic pay was fixed in Pay Band IT plus Grade Pay of Rs.q,600/-~. All the e applicants were promoted to the post of Floor Managers on iq Juby, 2011 on ad hoc basis in the pay scale of PB-IT plus Grade Pay of Rs.4,600/- vide order dated 218 July, 2001.
2, The office of Director General, Doordarshan, New Delhi issued an ofice order dated it January, 2012 on grant of financial upgradation in terms of MACP Scheme with effect from o1* September, 2008. Pursuant to it, respondent No.9 issued an order dated ug% February, so1g granting 24 financial upgradation to each of the applicants under Modified Assursd Career Progression Scheme {MAC CP) with effect from oi September, 2008, Pursuant to this, pay of the applicants was fixed In PB-IT plus Grade Pay of Rs.q,800/-. All the applicants were promoted to the post of Floor Manager on regular basis with 7 , eficet from 18 December, 201s.
oo es en 3 wee On completion of ', rae Pi ee found oe Aahaaeht OA. Noosa fos ats ervice, each of the applicant was entitled to the benefit of 3t¢ MACE, The respondents granted a financial upgradation unde "in, CP to the applicant No. only in the Pay Band II plus Grade Pay of Rs.5,400/- vide order dated 3 in sf && September, 2013 with effect fram goth August, 201 Sonlice Applicant Noa retired on got April, go1g. His Last Pay Certificate (LPC) dated 2a June, 2014 indleates that his Grade Pay was Rs.5400/-. However, his pe = ~.! RS ion and retirement benefits were calculated on the basis PE-ID plus Grade Pay of 48.4,806/- per month. His pay was lowered vide order dated a6™ August, 2014 by the respondent No.3
4. Applic peak amt No.i preferred representation on ost February 2015 to the respondent No.eg 2 which was relected by letter dated ated 2015 by the respondent No.2. Applicant Nos. and 3 who had completed 30 nie 3O } years of Service on oot September, go and 12% March, 014 were not rEg wt Ses aye unted 3° financial upgradati ion MAC? Scheme. Respond QMis ret eae 5 Nos.2 and Ean c 8 downward by order dated ad the pay of applicant withdrew benefit of seeand ACP | ath March, aot 5 A x and refixed the Pay Band Tf plus Grade Pay of Re.4,Goo/-. The responds ents issued orders dated + LN 1g" February, 2012 granting 2° and 3" financial upgradation ta /tuumber of officials holding the post of Floor Manager. This "ho fR
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refixation was done behind their back without issuing notice to them. An amount of Rs.ig,oge2/- during the period from September 2008 to April 2014 was recovered by the respondents from applicant No.1 from his leave eneashment benefit.
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§ Mr. Madan Sharma and others had fled OA No.aee2/e0o01 before Principal Bench of the Central Administrative Tribunal in respect of non-grant of ACP ¢ and MACP benefits to Doordarshan employees. The Principal Bench allowed the said OA. Writ Petition and SLP preferred against the CAT's order were also dismissed. Thereafter, an order dated 18% December, 201s was issued] by the respondents on the subject of grant of a4 ACP and * MACP benefits to Floor Assistants and Floor Managers including retired and expired officisls. The respondent No.s did not consider the ease of the applicants for grant of ot4 ACP with Grade Pay of Rs.g,800/- and 3% MACP with Grade Pay of Rs.5.400/- per month. Appleant No.1 made representation on ait November, 2017 for grant of 24 ACP and 9" MACP benefits.
Ss erage, : Ws wepagee ds bean label apeetti & he respondent Noe sent a letter dated 17® Jane, 2016 to Pay j se NR <> GA No.2véi/2018 and Accounts Officer, Mumbai for a decision on the applicant's representations dated 18th Ma arch, 2016 and oa! February, 2016, Another representation was sent on ogt® dune, 2016 to the respondent No.2 and on 16% Aneust, 2016 to the Secretary, DOPT and to respondent No.4. The ease of the applicants Nos.2 and 3 is also similar to that of applicant No.1 with the difference that {a} Applicants Nos.2 and 3 were granted Grade Pay of Rs. 4,800/- per month, (b) Applicants Nos.2 and 3 were not granted Grade Pa ay of Rs.5,400/- per month, (ce) an amount of RS.1,34,750/~ was recovered from applicant No.g towards the excess payment of salary for the month of February 2008 to February, 2015 and amount of Rs,1,30,987/- was recovered from applicant No.g from his retirement benefits. DDG (Admin) issued a letter dated ig December, 2017 informing the rejection of the case of the appicants Nos, 2 and 4. Thereafter, applicants fled this .
application,
6. The respondents filed their reply. They contended that the applicants had entered service as a direct recruit Floor Assistants in fis not in dispute that the applicants were made permanent with effeet from og® March, . 1982, They were aceordin rely granted first LLL LLL LLL LLL ELLE LLL LLL, io OA No.odi/eos8 ACP in the next pay scale of Rs.6,500-10,506/-. They are entitled | to a regular promotion in the post of Floor Manager. The pay seale of Rs.6,500-10,500/- came to be revised fo PRB-IT Le. Rs.9,306-34,800/- with Grade Pay of Rs.4,600/-. The applicants were granted ad hoe promotion as Floor Manager and they were also granted a"? MACP with effect from o1 September, 2008. The respondents contended that the pay scale of Floor Manager has been enhanced to Rs.6,500-10,500/- in Prasar Bharti by the order dated 25% February, 1999. Before that the pay scale was Rs.§,000-8,000/-. Consequently, the applicants would be entitled to i ACP with effect fram oot Ausust, 1909 only in Rs.5,000- 8,000/~ which was the next promotional avenue of the Floor Manager having the said pay scale. Tt was later on revealed that the revised pay seule of Rs.6,500-10,500/- which was granted to the Fleor Manager was without the concurrence of the Government of India, Ministry of Finance, Department of Expenditure. Therefore, Prasar Bharti issued OM dated icf arch, 2001 to the effect that grant of pay seale of Rs.6,500- 10,500/- as against the Reernitment Rules granting pay seale of Rs.5,000-8,000/- In the post of Floor Manacer was to be treated 2 * BS se es ot ny tanh py ES as 8 ACP, Therefore, the pay scale for the post of F a & loor Manager 4 OA. Ne.esi/eowd ought to be Rs.5,000-8,o00/-. The Government of India, s| therefore, decided to treat the upgradation of the pay scale of Rs.5,000-8,000/- of Floor Manager to Rs.6,500-10 0,500/-. Earller after the pay seale of Rs. 4,000-6,00G/- the next pay seale avaliable was Rs. 4,500-7,000/- whereafter the government servant is promoted to the scale of Rs. 5,000-8,00G/- and finally to 6,900-10,500/-, The movement from 4,000-6000/- to 6,500- 10,500/- directly entailed movement between three seales of pay. It was thereafter decided to treat upgradation of Floor | Manager from §,000-8,000/- to 6,500-10,500/- as one upgradation under ACP/MACP scheme. Therefore, first ACP of 6,500- 10,500/- to be treated as advance for Floor Manager. Therefore, the third and last upgradation that could have been given to the applicant was obviously in the grade pay Rs. aBoo/-. Therefore, the movement of the applicant hy way of third MACP te erade pay of Rs. s400/-
came to be withdrawn. The respondents admit that no showcause notice was issued to the applicants before passing the relevant erder, The applicants, therefore, are not entitled to any relief, They submitted that in terms of the law laid down by the Hon'ble sUoreme Court, if there is any excess payment made previously the Same is Hable to he reeoverad, Accordingly, amount of Rs.
ig O.A. No.263/ 2038 1,91,932/- was recovered from applicant noi, Rs. 1,94,750/- from 7 =) applicant me, 2 and Rs. 1.30,9897/ -from applicant no. 3.
7, The applicants filed rejoinder. No new factual point has been raised in the rejoinder. The only point that has been raised in the rejoinder is that the Apex Court has time and again held that when a particular set of employees is given relief by a court, all other identically situated persons are to be treated alike by extending that benefit. Merely because other similarly situated persons did not approach the court earlier they are not to be treated differently.
8. Ms. Annie Nadar, learned counsel for the applicant submitted that the contentions raised by the respondents were also raised in OA No. 3292/2001 filed by Mr. Madan Sharma Vs. the Secretary. All these objections were considered by the Central Adniunistrative Tribunal, Principal Bench and were negatived. The order of Principal Bench dated sit December, 2002 was challenged by the respondents by preferring the Writ Petition No. iSo34/2004 and 18035/a004. Those Writ Petitions have been dismissed. Office order dated 18% December, 2015 granted secand and third MACP to various Floor Assistants but the same it OLA No 2361/2018 has been denied to the applicants. The applicants have, therefore, fied this OA No. 261/2018. She submitted that there was no reason for denying the benefits to the applicants of the order dated 18" December, 2015 when similarly situated Floor Assistants have been granted the benefit by the order of even date. She placed rellance on the following cases:
(DPrem Devi and Ors. Vs. Delhi Administration and Ors. MANU/SC/a5i6/1989.
G)Parendu Mukhopadhyay and Ors Vs. V.K. Kapoor and Ors. MANU /SC/So30/2007.
GHK. ANE Babu and Ors. Vs. Union of India QUOD and Ors. MANU /SC/oS26/19907.
(iv)State of Panjab Vs. Rafig Masih. MANU/SC/1195/2014.
(Thomas Daniel Vs. State of Kerala and Ors. MANU /SC/os6o/so22,
(vi)Rushibhai dagdishbhai Pathak Vs. Bhavnagar Municipal Corporation. MANU/SC/o0669/2028.
(VEDMLR. Gupta Vs. Union of India (QUOD and Ors. MANU/SC/a1rtvs/19906.
(il)State of Madhya Pradesh and Ors. Vs. Yogendra Shrivastava. MANU/SC/i751/2009.
GxX)Asger Ibrahim Amin Vs. Life Insurance Corporation ofindia, MANU/SC/n44q/so0i5.
@OBhagwan Shukla Vs. Union of India C(UOD and Ors. MANU/SC/osoas/igog.
GLA. No.sbi/aor8 ' oy, PUTS, -
fee
9. Mr RR. Shetty, learned counsel for the respondents a ee ar submitted that the applicants are not entitled to take the benefit of the judgement of the Principal Bench, Central Administrative Tribunal, affirmed by the Hon'ble Delhi High Court as the applicants are fence sitters. He submitted that the apolic cants waited for the decision of the Hon'ble Delhi High Court to come. Only alter the decision of the Hon'ble Delhi High Court was pronounced, the applicants have filed this application which indicates that they are the fence sitters. He further submitted that the applicants are guilty of delay and latches in approaching the Tribunal. He contended that the judgement of the Principal Bench, Central Administrative Bench was delivered on. gt December, 2002. Hon'ble Deli High Court delivered the judgement on 27% October, goig. This clearly indleates that the applicants waited for the Hon'ble Delhi High Court judgement to came and once the judgement of the Principal Bench of the Tribunal was upheld, the applicants approached this 'Tribunal, Since 27% October, 2o14, the applicants did not approach the Tribunal bmmediately but have approached afer considerable tLA. No.wbi/soi8 delay of four years which has gone unexplained. He submitted =| that it is not a recurring cause of action and therefore, the cause of action which had arisen in the year 2014, the applicant did not approach the Tribunal within the prescribed period of limitation and thus committed delay of four years in approaching the Tribunal. He further submitted that though the point of delay is not specifically raised in the reply, respondents ean raise it during the course of the arguments. He placed reliance on the following CaSes:
(i) Chairman /Managing Director, UP. Power Corporation Lid. And Others Vs. Ram Gopal zo2zo0 SCC Online SC 101, QD Ramesh Chandra Sharma Vs. Udham Singh Kamal and Others, 2000 Supreme Court Cases (L&S) 53.
(il}State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and Others, (2015) 1 Supreme Court Cases (W)E Parmasivan and Others Vs Union of India and Others, 2005 Supreme Court Cases (L&S) iZs.
()S.8. Rathore Vs. State of Madhya Pradesh, (1998) 4 Supreme Court Cases 582, 14 OA. No.adi/po18
(vi)Union of India and Others Vs. M.K. Sarkar, (2010) 2 \ Supreme Court Cases 59,
(vi)State of Maharashtra and Others Vs. Anita and Another, (2016) 8 Supreme Court Cases 293.
(vill)State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, (2000) 9 Supreme Court Cases 94.
Gx)5.V. Sivaigh and Others Vs. K. Addanki Babu and Others, (44998) 6 Supreme Court Cases 720.
(x)Suneeta Aggarwal Vs. State of Haryana and Others, CORE .
(2000) 2 Supreme Court Cases 615.
(xi)Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, 1986 (supp) Supreme Court Cases 285.
(xil)State of Punjab and Another Vs. Balkaran Singh, (2006) i2 Supreme Court Cases 709. | id. Learned counsel for the applicant in reply submitted thet pay fixation is a continuous cause of action and therefore, the question of limitation does not apply to such cases. She further submitted that the respondents did not raise this plea in the written statement, Therefore, at this stage respondents cannot contend that there is delay and laches. She farther submitted that the applicants are not fence sitters because the judgement of the gak Pd S DA. Noedér/aov : \ submitted that the judgement delivered of the Principal Bench, CAT and affirmed by the Hon'ble Delhi High Court is a judgement in rem. Therefore, the applicants cannot be said to be guilty of delay and laches.
ai. We have given thoughtful considerations to the stipmissions of counsels on both the sides, iz, The applicants were denied the benefits of second and third financial upgradation on the ground that their pay was fixed at Rs. &§00-10,500/- which according to the respondents Was beyond scales of pay by jumping over Rs. 4s500-7,000/- and §,500-9,000/- directly, It was therefore, decided to treat upgradation of Floor Manager from 5,000-8,c00/- to 6,500- 10,500/- as one wperadation under the ACP/MACP scheme. This. policy of the respondents was challenged In OA No. 3239/2001 of Mr. Madan Sharma Vs. Doordarshan Programme Professionals Union and Anr. before the Principal Bench of Central Administrative Tribunal (CAT), New Delhi. Principal Bench made frllowing observations.
te cS GA. Ne.ebifaoi8 We have considered the aforesaid submissions and find that the argument contained in the previous paragraph cannot be said to be an argument consistent with the DOPT's OM dated og August, 19909 by which the ACP scheme has been notified. We are here not dealing with the case of the holders of posts of Floor Managers and similar higher posts in respect of whom the respondents have made an assumption that the grant of the higher pay scale of Rs. 6,500-10,500/- amounts to granting two financial wpgradations at one go. The applicants herein are Floor Assistants an according to the conditions for the grant of benefits under ACP scheme attached with the DOP&T's OM dated og August, 1909 "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 oreating new posts for the purpose". In the existing hierarchy, admittedly the next post beyond the post of. Floor Assistant is that of the Floor Manager. The post of Floor Manager has been placed, for whatever reason, in the . al st ~-- Sete oe . Kets pay grads of Rs.ésco0-1o,500/-. The i?
> eee a eps "A fx Ee cs ESA OG), ere ~ = ' x ys applicant, Floor Assist ay eh OVA. Necads/aais nts have, therefore, been correctly placed in the aforesaid pay stale of Rs. 6,500-10,500/- by way of first financial upgradation. By way of second financial upgradation, the applicants have to catch up, in terms of pay grade, with the pay grade of the post next higher to the post of Floor Manager. This, in our view, is the correct position in accordance with the aforesaid condition for grant of benefits under the ACP Scheme. In the order dated yo April, goo00 (4-3) issued by the respondents, they have clearly stated that the Floor Assistants who have remained ith To without promotion after comp z 12 years of service were being granted the pay stale of Rs.6,500-10,500/- under the ACP Scheme. This amounts to the respondents themselves admitting that the aforesaid pay scale of Rs.6,500-10,500/- has been given to the applicants by way of fr Pens:
Arse seers okt. a upsradation.
financial * ateyensk. 2h wy pe Ls oy aney? Base ig. Therefore, the applicant therein sho grant et oe 'or sega ET saex tyne at ofsecond financial upgradation, wd be considered f DOA, Noeht/aai8 iq. These observations clearly show that the contentions of the | respondents were Tot accepted by the Principal Bench of the CAT.
These observations also clearly indicate that the i issue involved in the present OA is covered by the judgement in the case of Madan Sharma. This judgement of the Principal Bench was challenged by the respondents by preferring Writ Petition No. i8034/ao0o04 and 18035/2004, While dismissing the Writ Petition, the Hon'ble Delhi High Court made following observations.
"There is no doubt that the object of the ACP Office Memorandum dated oot August, 1999 was to relleve stagnation of its officers and employees who failed to secure any promotion at all within the prescribed period, Le, 12 years and 24 years. The Scheme, therefore, constituted a promise and an entitlement that post hased promotion would be governed and at least two financial upgradations would be assured to those unsuccessful in gettin even tae promotion, and one financial upgradation would be assured to someone who secures only one promotional benelit. As moticed earlier, the benefit was 2 cgependent upon the possession of basic eligibility conditions applicable for the promotional post 'but was not dependent upon existence of vacancy. Whilst this is the reality underlying the ACP Memorandum of o9.8.10990, what is to be noticed is that the same Memorandum expressly states that in situ promotions and fast track promotions availed through Limited Departmental competitive Examination would be counted as promotions disentitling the claimant to the benefit. aragraph 45.1). However, paragraph 7 of the ACP Memorandum Specifically states that upgradation under the scheme "shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/eategory of post without creating new post for the purpose". The CAT's reasoning in the main order is that In the existing hierarchy, the next promotional avenue was to th cadre of Floor Manager. The scales for that post stood upgraded from Rs.s500-906/- to Rs. 5500-10,500/- by the wogradation order of 25.2.1999. The logic used to reject Praser nS claim, therefore, was conypelling and inevitable, namely, that even in the Gud. Notifsowr existing hierarchy, the grade of Floor Managers carried the pay scale of Rs.6500- 1G,500 as on G.B.tog9g when the ACP Memorandum itself was issued. This court finds no reason to interfere with tis BR finding.
i5. 'These observations clearly show that the Hon'ble Delhi High Court affirmed the judgement of the Principal Bench. The observation of the Hon'ble Delhi Nigh Court clearly indicate that the contentions of the respondents were not accepted.
16. Now the core issue that arises in this Original Application is whether the Judgement of the Principal Bench in OA No. g22/2ooai alirmed by the Hon'ble Delhi Hish Court is the judgement in rem or whether it is the judgement in personam. if it is a judgernent in rem, the applicants can take the benefits of it. Wf the Judgement is in rem, it is obligatory for the authorities to extend the benefit of the judgement to all similarly situated employees. When a judgement will be treated as judgement in personam has been explained by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Others Vs. Arvind at saoee aN co ' sorte wg dE "Pad eel.
OA Noeéi/sors Kumar Srivastava (supra). Para 22 of the judgement reads hus:
"22. The legal priciples which emerge from the reading of the aforesaid judgements, cited both by the 'appellants as well as the respondents, can be summed up as under:
i. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 1¢ of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court irom time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not . s ak $e x Poa eA Y :
pproach the Court earlier, they are not he Bes CLA. No.g61/2018 22.2 However, this principle is subject to well recognised' exceptions in the form of laches and delays as well as acquiescence. Those persons who did net challenge the wronglfl action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparis who had approached the eourt earlier in time suceeeded in their efforts, then such employees cannot elaim that the benefit of the judgement rendered In the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/ar the acquiescence, would be a valid ground to dismiss their claim.
22.9 However, this exception may not apply in those cases where the judgement pronounced by the court was ben: eht to all similarly situated nersons, oo whether they approached the court or not. With such a pronouncement the Wheaten ¢ st wean th Crap tag e- obligation is east wooan the anthorities to liself extend the benefit theres? to all OA, Noeér/2ai8 similarly situated persons. Such a soos aa "e, matter of the decision touches upon the situation can occur when the subject~ eR One aa policy matters, lke scheme of regularisation and the Hkefsee K.c. Sharma v. Union of India}. On the other hand, if the Judgement of the court was in personam holding that benefit of the said judgement shall accrue to the parties before the court and such an intention is stated expressly im the judgernent or it can be impliedly found ut from the tenor and laneuage of the judgement, those who want to get the benefit of the said judgement extended to them shall have to satisfy that their petition dees not suffer from either laches and delays or acquiescence."
17. Ths judgement in the case of Arvind Kumar Srivastava {supra} has been followed in the case of Rushibhal dagdishchandra Pathak vs Bhavnagar Municipal Carporation({Supra}, [tis thus clear from the above exposition e aur ner =] Ay # Pee gee FE Saal gayta ge We aan ore x of law by the Apex Court that the normal rule is that when a aN elas lew aah So aaa beans, +o. teraas patted Thcx ale 'aQaet all otivad particular set of ermplovees is given relief by the court all other = OA. No.2dt foo that benefit else it would be violative of the Article 14 of the
5| Constitution of India. This rule is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those employees who did not challenge the wrongful actions of the department and challenge the same only when the Judgement is delivered in the challenge made by the other employees, such employees would be treated as fence sitters and they would not be entitled to benefit of the judgement. However, the exception will not apply to judgement in rem. The Supreme Court has explained that when the judgement is in rem, benefit of the judgement should be given to all the similarly situated persons whether they approach the court or not. If the judgement of the court is in personam, holding that benefit of the said judgement shall accrue to the parties before the court and such intention is expressly stated in the Judgement or it can he implied of the judgement. Thus, those who want to get the benefit oy of the judgement extended to them have to satisfy that thet r from either delay or laches. It is, thus clear that whether the Judgement is in rem or In personam can be ~ * yo determined from the language of the judgement only. There has to be a specific mention in the Judgement that the benefit of the aes "he Sar 3 OA. Negi sors said judgement shall accrue to the parties before the court it can | be impliedly found. cet from the tenor and language from the judgement that the benefit of the judgement shall accrue to the arties before the court only, y i8. On careful reading of the entire judgement of the Principal Bench, Central Administrative Tribunal and the Hon'ble Delhi High Court we are more than satisfied that no such intention js expressed either expressly or impliedly that this shall apply only to the parties to the application. On the contrary the tenor and language of the judgement show that it shall be made applicable to all similarly situated employees. The department had taken policy decision that pay of Rs, 6,500-10,500/- shall be equated with three upgradations. This decision was challenged in the case of Madan Sharma Vs. Union of India in OA No. 9322/2003. Hecause of this policy not only the applicants were affected but the applicants in the case of Madan Sharma Vs. Union on India were als atlected. Therefore, the judgement in Madan Sharm's case Re rendered by the Principal Bench and affirmed by the Hon'ble ere Veg gee 2 yy) es = Pore int clearly shows that the judgement was in rem O.ANo.261/8018 and not in personam. Even the respondents treated these | Judgements as judgement in rem is evident from their subsequent Sonnet actions. The respondents extended this benefit suo moto to other employees. In para 12, the Hon'ble Delhi High Court has made following observations:
"12.This court is of the opinion that Prasar Bhart's argur nents are unacceptable. Whatever be the e predilections of Prasar Bharti as of 2001, the fact remains that exercise of option for the entire class of Central Government employees sent on deputation became a relevant factor at least by virtue of the amendment brought into force wiet 8.9.201e. Such Central Governttient employees Ww ould be deemed to be deputationists j in the entire tenure of thelr service life. This is exp pressly spelt in Section 1); Section 11fA) goes to the extent of saying that the exis! Ling terms, seales, ete, w ould be continued by Prasar Bharti which would then have the option of framing any new rules ete. Such being the position, paragraph 2 () of the upgradation order merely reflects historical facts, and no more. The optles exervised by the class of Government employees who continue with that status irrelevant. They and eyen off WHE opted to be the Prasar Bhari' sen mp! VERS cantinued to he deputationists. Therefore, the arguments bas od wen wie interpretation ¢ of the Act are So far as paragraph 4 af a3 order goes, whilst no Y doubt. fe spells ont hehe O.A. No.oda/ sors that the benefit (of pgradation) would be confined to incumbents in the post, and correspondingly direct recruits (of Prasar Bharti) would not be entitled to the upgraded scales, the last part of this condition (paragraph 4) states that the promotees would be entitled to the upgraded scales. Now, if this was the correct position, there can be no manner of doubt that employees working as Floor Assistants including C Central Government Employees-w rere entitled to be considered for promotion as Floor Manager. Tf that benefit were to be given in the normal course, the grade or pay scales of Floor Manager would Inevitably be Rs. 6500- 10,500/-. In that eventuality, whether the promotee was from the class of Central Government er nployees ora Prasar Bharti aptee would also be irrelevant, The ACP scheme was framed to alleviate the hardship ta those who were unable to secure such promotions. Therefore, the financial upsradation had to be to such pay scales as were within the existing hierarchy. Consequently, even the existing hierarchy, the ey seale for Floor Managers was Rs.6900-10,500/; the ACP could have been te no other grade."
19. These observations clearly spell out that the judgement was In rem and notin personam. The applicants are therefore, entitled to derive the benefit of the sald judgement as they are similarly ith the appleants In OA ge0/2001. Since we have held e judgement of Principal Bench, Central Administrative t ul, affirmed by the Hon'ble Delhi High Court is in rem, the t ee " y tye gy ~ F cara FS of delay and laches goes on the backburner. It was the duty of the respondents to extend the benefits to all the concerned GA. No.wbifsoi8 "iy ae employees who are similarly situated. The respondents did extend these benefits to all the other employees who are similarly situated except to the applicants. Therefore, the applicants are entitled to the benefit of financial wogradation. Since we have held that the judgement is in rem, the position expounded by the Hon'ble Supreme Court clearly shows that when the judgement is y in rem, then question of delays and laches becomes insignificant. Therefore, we do not propose to dwell on the issues whether there is delay and laches, whether it is unexplained, whether pay fixation is a recurring cause of action or not.
20. Another question is whether the applicants are entitled to the beneft of third financial upgradation.
21. Under the ACP/MACP Scheme, benefit of af financial upgradation can be granted to an enyoloyee only if during so years of service no promotion has been granted. However, if one promotion has been granted, then only two benefits can be extended and if promotion has been granted twice during 30 cs.
years of service, then ure one benefit of financial upgradation oe go ean be granted. Since the ape Heants have also been granted benefit of ACP Land ACP Tl and also have been promoted as Floor Managers vide order dated 18.12.2012, they can be granted only two financial upgradations under ACP/MACP Schemes.
Therefore, grant of 3% MACE benefit on completion of 30 years of service to the applicants was not jusitied. Doing that will amount to violation of provisions of ACF /MACP Schemes.
22. In the context of granting benefit of 2>¢ financial '| upgradation to the applicarits, it is to be noted that as per the } notification issued by the Department of Expenditure, Government of India dated 29.08.2008 - Central Civil Services (Revised Pay) Rules, 2008 as per the accepted recommendations of Vi Central Pay Commission, pay seales So to $15 were merged under PB-2 with Grade Pay ranging from Rs.4,200/- to Rs.5,400/-. For Pay Scale of Rs.6,500-10,500/-, the Grade Pay is Rs.4,200/- only. The Grade Pay of Rs.s.400/- in PB-2 is corresponding to earler pay scale Sis Rs.8,o00- ~13,s00/-. Since the Grade Pay of Rs.4,600/- has already been granted to the applicants on promotion as Floor Manager vide order dated 18.12.2012, benefit of ae¢ ACP can be granted only in next Grade Pay L, R2.4,f00)- which had been granted by the respondents earlier and later revised to Rs.4,600/-.
29. From perusal of the details given in the OA and re reply, i clear that the applcants were appointed as Floor Assistants in pay seale of Re.g3a-48a/- which came to be later revised to Rs.4000- Hooo/- as per 5% CPC pay scales. Thereafter they were granted first upgradation under ACP in pay scale of Rs.6500-10500/- by jumping over 3 pay scales. This pay seale was revised to PB-2 with rade Pay of Rs.q200/- as per 6 CPC pay scales. Thereafter when the a spolicont +e were pramoted as Floor Managers with effect irom 21.07.2011 on regular basis, they were granted pay grade of PB-o + GP Rs.q6co/- by order dated 842.2012, Grant of this _ Grade Pay of Rs.q6oc/- to the applicants on their promotion was lone. After availing of bvo financial x upgracdations ont PA ia ae eee ee :
usd be GA. Ne.ebi fans under the ACP Scheme and thereafter promotion as Floor Managers, the applicants were not subsequently further entitled / for grant of third additional financial upgradation under MACP Scheme. Accordingly, the benefit of g™ MACP granted by the respondents wrongly in PB-2 with Grade Pay of Rs.s4o0/- by order dated 18.12.2015 came to be rightly withdrawn by order dated 12.02.2016.
a4. In view of these facts, the relief sought by the applicants for grant of next pay grade af PB-o with Grade Pay of Re saoo/- is net justified because after the Grade Pay of Rs.qnoo/- corresponding to earlier pay scale of Rs.6500-10900, in the same Pay Band the next Grade Pay is of Rs.a600/- which has been granted to the applicants on promotion as Floor Managers from a5. After studying the decisions of the Principal Bench and Delhi High Court, in our considered view grant of benefit of pay seale of Rs.6500-10500/- to the applicants as 15° ACP benefit from 69.08.1999 was correct, However, thereafier instead of treatl the benefit of o3¢ ACP has already subsumed in the a ACP upgradation, it will have to be treated as separate and the applicants were entitled for grant of asd ACP benefit from 01.69.2008. This was granted by the respondents but was withdrawn subsequently, This has to be restored. As a vesuilt PNY Se . artes & srrbe Soh nen ote Be Baaey om Ree owe OR recovery made from the applican WATS HOC usted, & a es 2 hearers yee af SS RATS 26, In view of what is stated hereinabove, we are of the opinion 3h GLA. No.gdi feos & x ought to have extended its benefit to the applicants too. We therefore, partly allow the OA No. 261/2018 and direct that the ~ applicamts are entitled to seeond financial upgradation as per ACP scheme in P.B.-2 + GP of Rs. 48o0/- on the date each of the applicants completed 24 years of service and direct respondents to retund the recovery made from the applicants. However in the facts and cire Limstances of this CASe, WE are not inclined to award interest on refund of the recovery made from the applicants. Na Cast tio s (Dr. Bhagwan Sahat) (Justice BUG, Sewlikar) Mermber (43 Member (1)