Gujarat High Court
Jayesh Jadia S/O Umedlal Jadia vs Union Of India on 9 March, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
C/SCA/5868/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5868 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6268 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6270 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6269 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6271 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5869 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5870 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5871 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5872 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5873 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6258 of 2020
==========================================================
JAYESH JADIA S/O UMEDLAL JADIA
Versus
UNION OF INDIA
==========================================================
Appearance:
MR NIKHIL S KARIEL(2315) for the Petitioner(s) No. 1,2
MR. KSHITIJ AMIN for the Respondent(s) No. 1,2,3,4,5,6
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/03/2020
COMMON ORAL ORDER
(PER : HONOURABLE MS JUSTICE SONIA GOKANI)
1. Rule returnable forthwith. Learned advocate Mr. Kshitij Page 1 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER Amin waives service of notice of rule for and on behalf of the respondents.
2. This group of petitions contain identical questions of facts and law and therefore, they are being decided together by this common order. The facts are drawn from Special Civil Application No. 5868 of 2020 for the purpose of adjudication, where the challenge is made to the order passed by the Central Administrative Tribunal 22.09.2017 in Original Application No. 133 of 2017.
3. The petitioners herein are serving as a Superintendent / Assistant Commissioner of Central Excise and Customs. They since apprehended the withdrawal of the benefit of 3rd financial upgradation under the Modified Assured Career Progression Scheme (MACPs hereinafter) to the grade of Rs. 6600/- along with recovery process being initiated by the authority, they have chosen to move the original application before the Central Administrative Tribunal.
3.1. It is the contention on the part of the petitioners that on completion of 30 years of service, they are entitled to be given the 3rd financial upgradation under the MACP scheme by placing them in the pay band-III with grade pay of Rs. 6600/-. The Page 2 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER present petitioners completed 30 years of service in the period between 01.01.2012 to 31.08.2014 and they were all granted the benefit of 3rd financial upgradation under the MACP scheme and their pay came to be re-fixed.
3.2. The Central Board of Excise and Customs (CBEC hereinafter) issued a clarification regarding grant of 3rd financial upgradation under the MACP to the Superintendents who were granted the non functional grade pay of RS. 5400/- in the pay band-II on 20.06.2016. The clarificatory communication had aggrieved the petitioners and they chose to question the same. The common grievance on the part of the petitioners is the withdrawal of the 3rd financial upgradation granted in the grade pay of Rs. 6600/- along with the recovery process to be initiated by the department of Central Excise and Customs. A common claim against the respondent is their entitlement of the 3rd financial upgradation by placing them in the pay band - III with the grade pay of Rs. 6600/- where the petitioners have been given the grade pay of Rs. 5400/-.
4. The prayers sought for in this petition are as under:-
"(A) Be pleased to allow this Application.
(B) Be pleased to quash and set aside the decision of the present respondent to withdraw the benefit of 2nd MACP originally granted to the present applicants. Page 3 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER (C) Be pleased to direct the respondents herein to restore the benefit of 2nd MACP of placing the present applicants in Grade Pay of Rs. 5400 in PB-3 with effect from the original date of such grant. (D) Be pleased to quash and set aside Para 8.1 of Annexure 1 of OM No. 35034/3/2008-Estt.(D) dated 19th May 2009 (Annex. A1) and further be pleased to declare the same to be Ultra-vires the MACP Scheme as well as the 6th Pay Commission's Recommendations.
(E) Be pleased to quash and set aside Instruction dated 22.06.2015 issued by the Pr. Chief Controller of Accounts, CBEC, New Delhi under F.No. Coord/Expdt./O.A.675 of 2013/ 2015-16 at Annx. A2 to this Application.
(F) Be pleased to quash and set aside Clarification being F.No. A-23011/25/2015-Ad IIA dated 20/06/2016 at Annex. A3 to this Application. (G) Be pleased to declare that the benefit of Non Functional Grade Pay granted to Group B officers cannot be sent off against Financial Upgradation under the Modified Assured Career Progression Scheme.
(H) Be pleased to declare that the present applicants are eligible to be granted the benefit of 3rd MACP by way of fixing the pay of the present applicants in PB-3 with pay of Rs. 15600-39,100/- with Grade Pay Rs. 6600/-.
(I) Be pleased to direct the respondents to grant the benefit of 3rd MACP to the present applicant by fixing their pay at Rs. 15600-39,100/- with Grade Pay Rs. 6600/- in PB-3 with all consequential benefits including arrears of pay.
(J) Be pleased to impose appropriate costs on the respondents.
(K) Be pleased to pass any other or further orders Page 4 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER that this Hon'ble Tribunal may deem fit in the facts and circumstances of the present application and in the interest of justice and equity."
5. It is the say on the part of the petitioner that one Mr. S.Balakrishnan had approached the Madras Bench by way of Original Application No. 280 of 2012 seeking 3rd MACP in the grade pay of Rs. 6600/- on completion of 30 years which was allowed in favour of the employee on 22.07.2013, against which, the Union of India had preferred the appeal before the Madras High Court and the same was rejected and the decision of the Tribunal had been upheld.
5.1. Aggrieved by the same, the Union had approached the Apex Court by way of SLP (CC) No. 15396 of 2015. The same was heard and SLP was dismissed without any observations. 5.2. Yet another direct recruit Inspector of Central Excise in the year 1982 approached the Madras Bench by way of O.A. No, 675 of 2013 seeking fixation of his pay under 3rd MACP in the grade pay of Rs. 6600/- on completion of 30 years of his service which was dismissed.
6. When approached before the Madras High Court, the Division Bench set aside the order of the Tribunal and in light of the conflicting views taken by the different bench and in absence Page 5 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER of clear cut directions from the Nodal Ministry, it gave directions to the Department of Personnel and Training to reconsider the issue by deciding whether the non functional scale given to Mr. R. Chandrasekaram would count form ACP/MACP and whether Mr. R. Chandrasekaran was entitled for grant of seeking 3rd MACP at Rs. 6600/- grade pay.
6.1. After examining the DOPT the Madras High Court opined that Shri R. Chandrasekaran got only one promotion and 2nd ACP in grade pay of Rs. 5400/- in his service career prior to implementation of MACP Scheme w.e.f. 01.09.2008 and he is entitled to the grant of 3rd MACP in the Grade Pay of Rs.6600/- under MACP scheme on completion of 30 years of service. This was communicated by CBEC vide letter dated 26.05.2015 to the Chief Commissioner, Central Excise, Chennai Zone for filing compliance report before the Madras High Court.
7. The grievance on the part of the petitioners is that the respondent with such clarification dated 20.06.2016 decided to take away the benefit and that grant of non-functional grade pay of Rs. 5400/- in pay band - II to the superintendents needed to be counted as one financial upgradation for the purpose of MACP scheme. This, according to the petitioner, sought to nullify the effect of the judgment of Madras High Court and thereby to Page 6 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER deny the benefit of 3rd MACP upgradation.
8. This Court noticed that Central Administrative Tribunal after considering in detail the chronology of events and also various decisions on the subject, did not entertain the O.A., essentially because the very issue was pending before the Hon'ble Supreme Court in Special Leave Petition (C) No. 21830 of 2014 in case of Union of India and Others vs. M.V. Mohanan Nair along with other five SLPs. The decision of Punjab and Haryana High Court rendered in case of Union of India vs. Raj Pal in Special Leave Petition (C) No. 7467 of 2013 decided on 15.04.2013 which upheld the interpretation in favour of employee which was stayed by the Apex Court. On regarding the conflicting views of the different High Court, the Tribunal followed the Delhi High Court which chose not to entertain the O.A. of the employees since the matter was pending for consideration before the Apex Court, however, no other aspect on merit was considered nor is the merit of individual case regarded.
9. We have heard learned advocate Mr. Kariel for the petitioners and learned advocate Mr. Amin for Union of India. We have also noticed the decision of the Delhi High Court in case of Union of India vs. All India CGHS Employees Association in Writ Page 7 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER Petition (Civil) No. 8515 of 2014 delivered on 09.11.2016 and the same is followed by the Tribunal.
9.1. The Delhi High Court after detailed discussion, has held that the letter/communication/clarification dated 11.11.2011 reflects the correct interpretation of the MACP scheme and the earlier order/communication dated 16.07.2010 according to the High Court had wrongly interpreted the MACP scheme. The challenge against this decision was also pending.
10. During the course of hearing of these petitions, the decision of the Apex Court is rendered in the pending case of Union of India vs. M.V.Mohanan Nair in Civil Appeal No. 2016 of 2020 and allied matters on 05.03.2020, where the Apex Court has in no unclear terms held that Raj Pal's case having been dismissed on the ground that no sufficient cause was shown for the delay in filing the petition ought not to have been quoted as a precedent by the High Courts. The Apex Court also further held that the ACP scheme, superseded by MACP scheme, is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP scheme has been accepted by the Government and Page 8 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER implemented and there is nothing to show that the scheme is arbitrary or unjust, warranting interference. Without considering the advantages in the MACP scheme, the High Courts erred in interfering with the government's policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pal's case, therefore, the Apex Court did not sustain the judgment and orders of the High Court in M.V.Mohanan's case and quashed and set aside the same. 10.1. While so holding, the Apex Court also noticed at para 47, 48 and 49 certain anomalies on implementation of the MACP scheme which have been brought to the notice of the Joint Committee in the various meetings of Joint Committee, Union of India and DOP&T for considering the same as they deem it appropriate and take decision in accordance with the law.
11. In wake of this decision, the request is made on the part of the learned advocate Mr. Kariel to permit the petitioner to approach the Central Administrative Tribunal since the individual case of the petitioner has not been examined on the ground that the said matter of M.V.Mohanan had been pending before the Apex Court for adjudication.
12. According to learned advocate Mr. Amin, the issues which Page 9 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER are essentially raised before the tribunal and for which there were conflicting decisions of various High Courts have been set at nought by the Apex Court and nothing remains to be adjudicated by the Tribunal, however, he agrees to the fact that individual case has not been examined by the Tribunal in the order impugned. For that limited aspect, he has no objection to the matters being remanded to the Tribunal for consideration. He also agrees that further directions issued by the Apex Court to the department shall also need to be regarded by the Tribunal.
13. We have noticed that although O.A.s have not been entertained as mentioned herein above, in wake of the pendency of the matter for consideration before the Apex Court in case of Union of India vs. M.V.Mohanan Nair and other five SLPs, the Delhi High Court has been followed by the Tribunal where it noticed the different views by different High Courts. The issues raised before the Tribunal in all these original applications concern the interpretation and clarification of grant of 3rd financial upgradation under the MACP to the superintendents by placing them in pay band- III with grade pay of 6600/- who were granted non-functional grade pay of Rs. 5400/- in pay band- II.
14. This Court notices that in case of Union of India vs. M.V.Mohanan Nair delivered on 05.03.2020, the Apex Court has Page 10 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER upheld the Delhi High Court's view in case of Union of India vs. All India CGHS Employees Association, which upheld the clarificatory communication choosing not to interfere with the policy. We are conscious that the Tribunal has followed the Delhi High Court on law point and the very issue is now addressed and upheld by the Apex Court. However, only on the ground that in case of petitioner, there has been no individual examination in wake of pendency of matter before the Supreme Court, let all the matters be examined by the Tribunal on merits, with whatever the scope is left, as individual examination on merit in each petition would be necessary, even if, the legal issue stands covered, more particularly, since certain directions have been issued by the Apex Court to the Union of India in the very decision, which it is bound to follow, the same shall also needed to be applied in case of each of the petitioners. To deny consideration on merit in individual case may amount to jeopardizing the right to be considered.
15. Resultantly, all matters are remanded for fresh consideration on merit in wake of the delivery of the aforesaid decision. This Court has not examined the individual matter on merit which shall be done by the Tribunal expeditiously in not later than six months' period, with the above clarification as Page 11 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020 C/SCA/5868/2020 ORDER mentioned in para (5), from the date of receipt of copy of this order.
16. All petitions stand disposed of accordingly. Rule is discharged.
(SONIA GOKANI, J) (GITA GOPI,J) Bhoomi Page 12 of 12 Downloaded on : Sun Jun 14 12:40:05 IST 2020