Central Administrative Tribunal - Ahmedabad
Sureshan P V vs Department Of Personnel And Training on 14 March, 2024
::1 :: OA No.237/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 237/2022
Dated this the 14th day of March, 2024
Reserved on: 03.01.2024
Pronounced on: 14.02.2024
CORAM:
Hon'ble Dr. A. K. Dubey, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
1. Sureshan P.V, S/o Narayanan K, Male,
Aged 53, Superintendent,
Residing at H-104, Suryoday-II,
Opp. Pavapuri Bus Stop, Ghatlodia,
Ahmedabad-380061.
2) Lovely Gervasis, D/o A J Joseph, Female,
Aged 55, Superintendent,
Residing at B-17 Vardhaman Row House,
Nr. Sattadhar Society, Ghatlodia,
Ahmedabad-380061.
3) Kumaresan Mudaliar, S/o Balasubramani, Male,
Aged 50, Superintendent,
Residing at 117/914, GHB, khokhra,
Amraiwadi post, Ahmedabad-380026.
4) Hitesh Sangani, S/o Vrajilal, Male,
Aged 52, Superintendent,
Residing at B-302, Arjun Grace Opp. Paramania Flats,
Near Naranpura Telephone Exchange,
Ahmedabad-380063.
5) Prakash Kumar M.V, S/o Balakrishnan Nair, Male,
Aged 54, Superintendent,
Residing at A/303, Shreerang Apartment,
Opp. Kalptaru Flat, Nr. Ganesh School,
Navavadaj, Ahmedabad-380013.
6) Soni Amitkumar, S/o Vinodchandra, Male,
Aged 51, Superintendent, Residing at B-403,
Arjun Grace, Opp. Parasmani Flats,
Near Naranpura telephone Exchange,
Ahmedabad-380063.
::2 :: OA No.237/2022
7) Naimahemad A Mansuri, S/o Abdurrehman, Male,
Aged 50, Superintendent, Residing at 40,
Sabera Society, Near Gandhi Community Hall,
Sarkhej Road, Ahmedabad-380055.
8) Prakaslal E.V., S/o Vasudevan E.K. Male, Aged 56,
Superintendent, Residing at F-301
Abhishek Apartments, Opp. Ganesh School,
Nava Wadaj, Ahmedabad-380013.
9) Mohanakrishnan K, S/o Narayanan K, Male,
Aged 50, Superintendent, Residing at L-203,
Orchard, Godrej Garden City, Jagatpur,
Ahmedabad-382470.
10) Ajay Nair, S/o Gopinath Nair, Male,
Aged 48, Superintendent, Residing at e-301,
Surel Apartments, Near Devasish Business Park,
Bodakdev, Ahmedabad-380054.
11) Ramchandran. P. S/o Sankaran Nair, Male,
Aged 53, Superintendent,
Residing at H-302 Malabar County-II,
Behind Nirma University, Off. S.G. Highway,
Tragad, Ahmedabad-382470
12) Rekha Nair, D/o Vasudevan Nair, Female,
Aged 48, Superintendent, Residing at MIG 339,
Sector 4, K.K. Nagar, Ghatlodia, Ahmedabad-380061.
13) Bhatt Paryank J, S/o Jitendrabhai Bhatt, Male,
Aged 53, Superintendent, Residing at 1138,
Akasheth kuva Ni Pole, Opp. Raipur Post Office,
Raipur, Ahmedabad-380001.
14) Nilesh Bhalchandra Kadve S/o Bhalchandra
B. Kadve, Male,
Aged 51, Superintendent, Residing at A-202,
Vraj Vihar-7 Near panch Auda Lake,
Behind Venus Atlamtis, Prahladnagar, S
atelite, Ahmedabad-380015.
15) Jayesh Dixit S/o Chandrashekhar Dixit, Male,
Aged 52, Superintendent, Residing at C-174,
Ashoknagar Society, Near ISRO, Satellite,
Ahmedabad-380015
16) Sunita M Menon, D/o Sreedharan Nair, Female,
Aged 53, Superintendent, Residing at A-7,
::3 :: OA No.237/2022
Simandhar Status, Near Shayona Green,
Gota, Ahmedabad-382481.
17) Devang Arun Shah S/o Arun Shah, Male,
Aged 53, Superintendent, Residing at 2,
Nilima Apartment, Vrijrayji Colony,
Navrangpura, Ahmedabad-380009
18) Lizy Kurien D/o Kurien Ipe, Female,
Aged 56, Superintendent, Residing at A-405,
Pujan Flats, Behind St. Xavier's Loyola School,
Naranpura, Ahmedabad-380013.
19) Anil Vyas, S/o Madanmohan, Male,
Aged 53, Superintendent, Residing at J-7,
Part-4, Shayona City, Chanakyapuri,
Ahmedabad-380061.
20) C. Varghese Rappai, S/o C.V. Rappai, Male,
Aged 52, Superintendent, Residing at Plot No.1342/1,
Sector 5-A, Gandhinagar-382006.
21) Nileshkumar C Joshi S/o Champaklal Joshi, Male,
Aged 52, Superintendent, Residing at 10,
Anusthan Bungalows, Science City Road,
Ahmedabad-380060.
22) Chetan Shah S/o Pravinchand Shah, Male,
Aged 57, Superintendent, Residing at 14,
Sarvodaya Society, Near Chintamani Society,
Old Acher, Ramnagar, Sabarmati, Ahmedabad-380005.
23) Devang Kansara S/o Kiritkumar Kansara, Male,
Aged 53, Superintendent, Residing at B-2,
Shreyas Apartment, Nr. Manekbag Hall,
Ambawadi, Ahmedabad-380015
24) Sheela Venugopal D/o Madhavan Nair, Female,
Aged 54, Superintendent, Residing at E/17
Shivdhara Apartments, Thaltej-Shilaj road,
near heritage homes, Thaltej, Ahmedabad- 380059.
25) Biny Biju D/o C.L John, Female,
Aged 50, Superintendent,
Residing at MIG 340 Sector 4, K.K. Nagar,
Ghatlodia, Ahmedabad 380061
26) Girishkumar Chotani, S/o Mohanlal Chotani, Male,
Aged 51, Superintendent, Residing at C-403,
::4 :: OA No.237/2022
Aryavrund Apts., Opp. Ratnam Bungalows,
Nr. Murlidhar Party Plot, Science City Road,
Sola, Ahmedabad -380060.
27) Ratanaram Choudhary S/o Shivram Choudhary, Male,
Aged 54, Superintendent, Residing at 20A,
Swipark (Madhuvarund) Society,
Nealkanth Road, Ghatlodia, Ahmedabad-380061.
28) Muralidharan M Nair, S/o Narayanan, Male,
Aged 51, Superintendent, Residing at S-210,
Shrinandnagar Part-2, Vejalpur, Ahmedabad 380051.
29) Bharat Kanabar, S/o Laxmichand Kanabar, Male,
Aged 54, Superintendent, Residing at C-101,
Swati Gardenia, Near Torrent Power Sub Station,
Makarba, Ahmedabad-380051.
30) Nimesh Patel S/o Madhusudan Patel, Male,
Aged 54, Superintendent, Residing at 152,
Shree Rang Park Society, Nr. Sargasan Circle,
Vasana-Hadmatiya, Gandhinagar-382006.
31) Amar Harsukhlal Shah, S/o Harsukhlal Shah, Male,
Aged 51, Superintendent, Residing at A/400,
Kautilya Royal, Near Naranpura Char Rasta,
Naranpura, Ahmedabad-380013.
32) R Kumar, S/o K. Ranganathan, Male,
Aged 53, Superintendent, Residing at 20,
Ravish Bungalows, Opp. Govardhan Party Plot,
Hebatpur Road, Thaltej, Ahmedabad-380059
33) Anjana Tanna, W/o Sanjay Tanna,
Female, Aged 52, Superintendent,
Residing at 6/B, Purshottam Bunglows,
Behind Gurudwara, S.G.Highway, Thaltej,
Ahmedabad - 380059.
34) Jayshri Kartha, W/o Nandakumar Kartha, Female,
Aged 51, Superintendent, Residing at 5, Sarita Apartments,
Bhaikakanagar, Thaltej, Ahmedabad-380059.
35) Ashok Kumar Singh, S/o Kalaka Singh, Male,
Aged 55, Superintendent, Residing at 137,
Raipur Mill Housing Society,
B/h. Vikram Mill, Bapunagar,
Ahmedabad, 380024.
::5 :: OA No.237/2022
36) Marry George, W/o George Joseph Female,
Aged 49, Superintendent, Residing at E-101,
Parshwanath Metro City, TP-44,
OPP. H.B. Kapadia English Medium School,
Chandhkheda, Ahmedabad 382424.
37) Neeraj Pal, S/o Jai Singh Pal, Male,
Aged 62, Superintendent, Residing at B-19,
Swastik Bungalows-I, Nr. Vishwas City,
B/h. R. C. Technical, Ghatlodia,
Ahmedabad-380061.
38) Ritesh D. Muthreja S/o Devdas Muthreja, Male,
Aged 48, Superintendent, Residing at E-401,
Aatrey Green, B/h St. Xavier's High School,
Nr. Indira Bridge Circle, Hansol,
Ahmedabad-382475.
39) Dharmesh Rasikbhai Patel S/o Rasikbhai R. Patel, Male,
Aged 52, Superintendent, Residing at Plot No: 1253/2,
B/h. Shopping Centre, Sector-5/A,
Gandhinagar-382005.
40) Atul R. Patel, S/o Ramanlal B. Patel Male,
Aged 51, Superintendent, Residing at A-201,
Sudarshan Prime, Opp. Nilgiri Apartment,
B/h. Sola Civil Hospital, Sola,
Ahmedabad 380060.
41) Dharmesh Kothari, S/o Jasvantrav R. Kothari Male,
Aged 51, Superintendent, Residing at A-301,
Copper Heights, Sandhu Vaswani Road, Rajkot-360001
42) Lokesh Raghav, S/o Charansingh Raghav, Male,
Aged 52, Superintendent,
Residing at 16 Junction Plot,
Rajkot-360001.
... Applicant
(By Advocate Ms. Harshal N Pandya)
V/s.
1) Department of Personnel and Training
Ministry of Personnel, Public Grievance and
Pensions Government of India
Notice through its Director,
North Block, New Delhi 110 001.
::6 :: OA No.237/2022
2) The Central Board of Indirect Taxes &
Customs Notice to be Served through:
The Chairman, North Block, New Delhi 110 001.
3) The Principal Chief Commissioner CGST &
Central Excise, Ahmedabad Zone,
7th Floor, CGST Bhavan, Revenue Marg,
Opp. Polytechnic, Ambawadi, Ahmedabad - 380 015
4) The Chief Commissioner of Customs Gujarat Zone,
2nd Floor, Custom House, Near All India Radio,
Navrangpura, Ahmedabad- 380 009.
5) The Principal Commissioner of Customs,
Ahmedabad 2nd Floor, Custom House,
Near All India Radio, Navrangpura, Ahmedabad- 380 009.
6) The Principal Commissioner of CGST & Central Excise,
Ahmedabad South, 7th Floor, CGST Bhavan,
Revenue Marg, Opp. Polytechnic,
Ambawadi, Ahmedabad - 380 015
7) The Commissioner of CGST & Central Excise,
Ahmedabad North 1st Floor, Custom House,
Near All India Radio, Navrangpura, Ahmedabad - 380 009
8) The Commissioner of CGST & Central Excise,
Gandhinagar 2nd Floor, Custom House,
Near All India Radio, Navrangpura, Ahmedabad - 380 009
9) The Commissioner of Customs (Preventive) Jamnagar,
'SEEMA SHULK BHAVAN",
Jamnagar-Rajkot Highway,
Nr. Victoria Bridge, Jamnagar - 361001.
10) The Commissioner of CGST (Audit),
Ahmedabad 301, GNFC Info Tower,
S.G. Highway, Bodakdev, Ahmedabad - 380 054.
11) The Additional Director General
Directorate of Revenue Intelligence,
Ahmedabad Zonal Unit, 15,
Magnet Corporate Park, Near Sola Flyover,
Off S.G. Highway, Thaltej Hebatpur Road,
Thaltej, Ahmedabad - 380054.
... Respondents
(By Advocate Ms. R R Patel)
::7 :: OA No.237/2022
ORDER
Per: Hon'ble Dr. A. K. Dubey, Member (A)
1. Aggrieved by the communication dated 14.07.2021 issued by the respondents (Annexure A/1), the communication dated 29.06.2021 (Annexure A/2) issued by the respondent no.1 as also establishment order dated 05.08.2022 (Annexure A-3/1)and 30.08.2022 and (Annexure A-3/2) by which the period of notional promotion has not been included as a regular service and instead, for the purpose of calculating the eligible 10 years of service for financial upgradation under MACPS, only the regular service on and after resuming the charge of a post was indicated as countable, the applicants have moved this OA seeking quashing of these communications and declaration that counting the period under notional promotion or upgradation too in the grade of Inspector was just and proper for granting the benefit of second or third financial upgradation to the applicants.
2. The applicant had preferred MA No. 216/2022 for permitting joint application as the main issue involved in their cases is the same. Similarly, another MA No. 347/2022 was moved to carryout amendments in the prayer clause consequent upon issuance of the establishment orders no. 9/2022 dated 05.08.2022 (Annexure A- 3/1) and 21/2022 dated 30.08.2022 (Annexure A-3/2) issued by the respondents. These two MAs were allowed. In this case, applicants had joined the service of the Central Board of Excise and Customs (CBEC) in different capacities and on different dates. However, they were promoted from the ministerial cadre to the executive cadre in the grade of Inspector of Central Excise and Customs then, on the pay scale of Rs. 5500-9000/-. Later, this pay scale of Inspector was revised to Rs. 6500-10500/- w.e.f. 21.04.2004 vide OM dated 21.04.2004. The relevant service details of the applicants are at Annexure A/4.
::8 :: OA No.237/20222.1 The pay scale of Rs. 6500-10500/- came to be revised as PB-2 with grade pay of Rs. 4600/- consequent upon implementation of 6th Pay Revision recommendations. Earlier, the Assured Career Progression (ACP) Scheme was there since 09.08.1999. However, with the implementation of the recommendation of 6th Pay Revision the ACP was modified vide Office Memorandum dated 19.05.2009 and rechristened as MACPS (Annexure A/5). Under the MACPS, financial upgradation at the intervals of 10, 20 and 30 years of continuous regular service was made admissible to the Central Government employees. Accordingly, upon completion of 10 years of regular service in a single grade i.e., Inspector, the applicants were granted their financial upgradation in the grade of PB-2 +GP-4800/- by way of their second or third financial upgradation (as per their details at Annexure A/6). These upgradation were granted after the due screening process as laid down in the OM dated 19.05.2009 (Annexure A/5).
2.2 In accordance with the direction of CBEC in their letters dated 26.09.2005 (Annexure R/3), 17.05.2006 & 19.07.2006 (Annexure R/4) with regard to implementation of various common orders of Hon‟ble Andhra Pradesh High Court and various orders of Coordinate Benches of this Tribunal, review DPC meeting was held on 23.05.2014 to review the findings of DPC held on 25.11.2002 for promotion to the grade of Inspector in the combined cadre of Gujarat Zone. As decided in the review DPC, the candidates were notionally promoted to the grade of Inspector w.e.f., 19.07.2001 vide establishment order No. 53/2014 dated 11.06.2014 (Annexure A/7). This order specifies that the monetary benefit will be admissible w.e.f. from the date of actual assumption of charge in the grade of Inspector. Of course the process of exercising of options within a month regarding pay fixation etc. were permitted as per rules.
::9 :: OA No.237/20222.3 The Madras Bench of this Tribunal passed the order dated 24.02.2014 in OA No. 675/2013 and CBEC‟s decision pursuant thereto, on the issue of financial upgradation under MACP Scheme to the superintendent of Central Excise and Customs, vide the establishment order No. 34/2014 dated 22.08.2014 proceeded to cancel/revise the date of financial upgradation granted to certain officials. The main issue there was that an officer was to become eligible for grant of MACP on completion of 10, 20 and 30 years of regular service or stagnation for a period of 10 years in the grade whichever is earlier. This enunciated the changes in the date of promotion to the grade of Inspector.
2.4 The applicants were thereafter promoted to the grade of Superintendent in the pay scale of PB-2 + GP - 4800/- w.e.f. 30.09.2014 vide establishment order no. 99/2014 dated 30.09.2014 (Annexure A/9).
2.5 In accordance with recommendation of the Sixth Pay Commission, the benefit of the non functional upgradation to the Grade Pay of Rs. 5400/- in PB-2 was allowed after four years of service in the Grade Pay of Rs. 4800/-. It is the say of the applicant that this four years of service was counted only on the regular service basis and their date of notional promotion in the grade of PB-2 + GP-4800/- was not taken into account. Therefore, the applicant approached Hon‟ble High Court of Gujarat vide SCA No. 19396/2018 which was allowed and considering it the applicants were granted non- functional upgradation on completion of four year in Grade Pay of Rs. 4800/- and accordingly their pay was fixed at Grade Pay of Rs. 5400/- (pay slips at Annexure A/10).
2.6 However, upon noticing pay anomaly in some cases, in comparison with some juniors, those applicants made a representation for removal of anomaly (Annexure A/11). Later, communication dated 27.04.2022 (Annexure A/13) was issued indicating that as per the Board‟s (CBCE) clarification dated 14.07.2021, the ::10 :: OA No.237/2022 financial upgradation was to be admissible to an employee on spending 10 years after actual joining in the post and if one had not worked in past on that grade, one would not get paid for it. This was similar to the principle of no work no pay and on this ground, the representations were dismissed. It is the say of the applicant that after 7 to 8 years of service, the whole issue is unfavourably revised by the impugned communication on the wrong interpretation of the term "regular service". The OA relies on the decision of Hon‟ble Supreme Court in Union of India Vs. K B Rajoria in which it was held that the Hon‟ble High Court erred in equating the words "regular service" as "actual physical service"
and if that were so then an adhoc appointee who actually serves in the post could also claim to be qualified to consider for the post. The counsel for the applicants also relies on Hon‟ble Apex Court‟s decision passed in K. Madhvan Vs Union of India [1987 (4) SCC 566] where it was laid down that the expression: "on regular basis"
would mean the appointment to the post on a regular basis in contradistinction to appointment on adhoc or purely temporary basis. The OA further relies on the judgment of Hon‟ble Patna High Court in Md. Hafiz Vs State of Bihar & Ors were the Hon‟ble High Court observed that in notional promotion, it had to be as if for service benefits he had been given due promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and service of the employee concerned. Reliance is also laid on the judgment dated 05.04.2017 of Hon‟ble Gauhati High Court in WP (C) No. 2844 of 2015 where it was held that the scheme had to be given a harmonious interpretation. Even if a situation arose where two meanings were possible on the issue of grant of benefits or otherwise,, the scheme being in the nature of welfare policy, had to be construed in favour of the employees concerned. It is contended by the applicants that the DoPT‟s clarification impugned here is also against the spirit of the Hon‟ble Apex Court‟s decision in M. Subramaniam‟s case that ::11 :: OA No.237/2022 the NFSG of Rs. 5400/- is to be granted after completion of four years from date of granting financial upgradation under MACPS in the grade pay of Rs. 4800/- and not from the date of actual promotion in the grade pay of Rs. 4800/-.
3. Reply was filed by the respondents. Reply mainly informs that the action of the respondents has been in accordance with the stipulation in the MACPS notified vide OM dated 19.05.2009 (Annexure R/2) where under, it is clearly stipulated that the Non Functional Upgradation under MACPS is admissible on completion of 10, 20 & 30 years of regular service without any promotion or upgradation. In the para 9 of this OM, it has been stipulated that any interpretation/clarifications to the scope and meaning of the provisions of MACPS has to be given by DoPT. This OM also specify in its para XI that no past cases would be reopened and while implementing the MACPS, differences in pay scale on account of grant of financial upgradation under old ACP scheme of August, 1999 and under MACPS within the same cadre would not be construed as an anomaly. The respondents have mainly argued in the reply that the action in revising the date of implementation of the 2nd /3rd MACPS benefits to the applicant has been in accordance with the instructions from DoPT and the MACPS and various other instructions governing the issue and therefore the action of the respondents is perfectly in order.
4. The applicants had submitted rejoinder reiterating the grounds taken in the OA.
5. After completion of pleading the matter came up for final hearing on 01.12.2023 and it concluded on 03.01.2024.
6. Learned counsel for the applicant filed in open court two documents viz communication dated 22.08.2023 issued by the respondents addressed to the PAO, Vadodara on subject of certain clarification on grant of grade pay of Rs. 5400/- to the officials ::12 :: OA No.237/2022 promoted notionally on non-functional basis to Group -„B‟ in CBIC. She particularly drew attention to the para -3 sub para A and Sub Para B therein; the sub-para 3 (B) thereof stipulates that the officers placement in the erstwhile Rs. 7500-12000/- scale was determined from the date of notional promotion to the grade of Superintendent which was evident since the pay fixation benefits were granted starting from the date of notional promotion. Of course, this also stipulates that scenario involve only notional promotion and not MACP, ACP. The counsel argues that this clearly mentions that even the date of notional promotion cannot be regarded as non regular service. She further drew attention to the sub-para 3 (D) of this communication which reads as under: -
"d) The interpretation of the term „regular service‟ seems to have been misconstrued in the current situation. The relevant aspect to consider is that the promoted officers were indeed in regular service, except if instances like unauthorized absence, EOL, vigilance issues, etc., challenge the regular service criteria. It is reasonable to believe that DDOs have adequately considered these aspects."
6.1 She reiterated the grounds taken in the OA to impress upon the fact that the revision of the effective date of MACP from 19.07.2011 to 30.12.2011 which was authorised in establishment order no. 09/2022 (Annexure A-3/1) was based on excluding the period of notional promotion which is disputable. She submitted that para 9 of the MACP scheme defines regular service. For the sake of clarity the same is quoted below.
"9. Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the ::13 :: OA No.237/2022 purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
The order dated 22.08.2014 (Annexure A/8) in which upgradation under MACPS was allowed to the Inspectors of Excise and Customs w.e.f. 19.07.2011 was sought to be revised and postponed by the orders impugned here.
6.2 She argues that these changes had excessive bearing and weredone without any prior notice; the officials were not given an opportunity to explain their position. The representation by the applicants in this regard dated 21.10.2021 (Annexure A/1) were replied to vide communication dated 27.04.2022 (Annexure A/13) but no grounds were given in it.
6.3 Treating regular service as a core issue, the learned counsel for the applicant submitted that she relied on the judgments in Union of India Vs K B Rajoria [2000 (3) SCC 562] which laid down as to what constituted regular service. The Hon‟ble Apex Court in its judgment had observed that the word "regular" did not mean actual service. She further relied on the Hon‟ble Supreme Court judgment in K. Madhvan & Anr. Vs Union of India [1987 (4) SCC 566] in which although the Hon‟ble Apex Court was adjudicating the issue of DPC and retrospective promotion, the judgment does not permit excluding the retrospective promotion thereby taking that service duration also into account. However, the counsel submitted that the department was not following these legal dicta. It is amply clear that the applicants have not asked for the wages for the notional period. The counsel has also placed on record office order no. 77/2022 dated 13.07.2022 (Annexure R/1) which is a order of promotion of a officer on notional basis from a date his junior was promoted and he was also allowed the arrears of pay etc. for the period of notional promotion preceding the date of actual promotion. Quoting this, she argued that in this matter, the same ::14 :: OA No.237/2022 department cannot adopt different stand. She also filed a copy of the decision of Ernakalum Bench of this Tribunal dated11.05.2022 in OA No. 713/2018 in which the concept of notional promotion has been dealt with and it has been observed that paragraph 9 of MACP guidelines never specifically excluded notional service unlike other kind of service. This order of Ernakulam Bench of this Tribunal has also indicated the implications on pension and internal benefits of the retiring employees.
7. Learned counsel for the respondents reiterated the stand taken in the reply and submitted that it was in view of the clarification in the order dated 14.07.2021 (Annexure A/1) and DoPT‟s ID dated 29.06.2021 (Annexure A/2) which were clear in content and therefore the action of the respondents was justifiable on this basis. She also submitted that since there is difference in details of dates etc. even the joint application was not maintainable in this matter. She further argued that it was under the DoPT‟s instruction that only the actual period of service was to be counted and accordingly the CBEC Board had ordered. She also referred to the para 9 of the MACPS order which defines „Regular Service‟ and says that very clearly adhoc and contract basis services were not to be taken as regular service clearly stipulated that regular service for the purpose of MACPS would commence from the date of joining a post in direct entry grade on regular basis either on direct recruitment or on absorption/re-employment basis.
7.1 Learned counsel for respondents further argued that the reliance placed on K. Madhavan case (supra) was not applicable in this case; the issue dealt with there was about postponing DPC. Similarly, she argued that K B Rajoria case relied upon by the applicants too was not applicable in this matter as that case was for regular promotion which is not the main issue here. She specifically submitted that MACAP scheme was not something granted in lieu of promotion; it was merely a placement of an ::15 :: OA No.237/2022 employee in the next immediate higher pay grade without change in status, designation or classification. This was further buttressed by the stipulation in the impugned order dated 11.06.2014 that monetary benefits would be admissible w.e.f. the date of actual assumption of charge in the grade of Inspectors. Under these circumstances, it was necessary to count the period of 10 years for MACP from the date of assumption of charge in the grade and not from the date of notional promotion.
8. Heard learned counsel for the parties and perused the material available on record. It is indisputably clear that first the post of Inspectors carried the pay scale of Rs. 5500-9000/- which was upgraded to the pay scale of Rs. 6500-10500/- w.e.f. 21.04.2004. The scale was further upgraded to Rs. 7450-11500/- which was equivalent to PB-2 + GP-4600/- under the 6th Pay Revision Recommendation. Here the applicants were promoted in the year 2002 and 2003 and then after 6th Pay Revision Recommendation, the upgradation under MACP after 10 years of service from then came up. Since the basic fixation of these Inspectors had to be in the grade pay of Rs. 4600/- in PB-2, the next upgradation - 2nd or 3rd as the case could be - was to be to the grade pay of Rs. 4800/- after 10 years of regular service as per the MACP scheme. In this case, the Inspectors were promoted pursuant to the order dated 26.09.2005 (Annexure R/3) and 19.07.2006 (Annexure R/4) and accordingly the order of promotion to the grade of Inspector was issued vide order dated 11.06.2014 (Annexure R/5). This order stated that the promotions were notionally given w.e.f. 19.07.2009 which was consequent upon the findings of the Review DPC Meeting. It was stipulated that the monetary benefit would be admissible from the date of assumption but were allowed to exercise option for pay fixation on 11.06.2014. On this basis, the MACP was given vide the order dated 19.07.2009. However, in view of subsequent clarification from DoPT at Annexure A/1 and ::16 :: OA No.237/2022 Annexure A/2, the MACP was revised excluding the period covered under notional promotion and it was permitted from the date of actual assumption of charge which has been questioned and impugned here.
9. We have carefully gone through the judgments of the Hon‟ble Apex Court relied upon by the counsel for the applicant as also through the judgment of the Ernakulam Bench of this Tribunal. Although it was contested by the counsel for the respondents that the Hon‟ble Supreme Court‟s judgments were distinguishable as they were on different issue, we can still benefit from the opinion expressed on the issue of regular service as discussed in preceding paragraphs, according to which, the word „regular‟ would not mean actual and as it implication what we have to see whether the appointment was a regular or irregular in the sense whether it was contrary to any extant instruction or principle of law. In its para 12 of this judgment, it further lays down that the expression „on a regular basis‟ would mean appointment to a post on a regular basis in contradistinction to appointment on adhoc or stop gap or purely temporary basis. None of the parties have commented or argued that notional promotion was irregular and therefore the appointment even on notional appointment was on a regular basis in contradistinction from the appointment on adhoc or stopgap basis. This appears to be the spirit of the stipulation in para 9 of the MACP scheme itself which expressly excludes the adhoc or contractual period of service. Similarly we can benefit from the order in K. Madhvan & Anr. case (supra) which elaborates on the interpretation of regular service that it is not adhoc or stopgap or temporary basis. In the similar way the Ernakulam Bench‟s judgment relied upon by learned counsel for the applicant also indicates the same thing. Infact, it has specifically observed that the effect of the notional appointments will be lost if their eligibility for upgradation under MACP is fixed at a later stage. Even if there ::17 :: OA No.237/2022 are differences in the matters of details and the strict context, the general guiding principle cannot be dichotomous and it has to adopted universally without any discrimination whatsoever. Therefore, if in course of regular service incumbents have been given notional promotion from any particular date, it is perfectly in order to allow the monetary benefit from the date of actual assumption of charge but to completely disallow the period of service under notional promotion will have the effect of negating the service itself which cannot be a tenable interpretation.
10. Under these factual matrix, we allow the OA and quash and set aside the orders 14.07.2021 (Annexure A/1), DoPT ID note dated 29.06.2021 (Annexure A/2) and establishment order no. 09/2022 dated 05.08.2022 and establishment order no. 21/2022 dated 30.0.2022 (Annexure A-3/1 and A-3/2) and direct the respondents to consider and grant the benefit of 2nd / 3rd financial upgradation under MACP taking into account the period served on notional basis also, subject to other procedural requirements. This consideration must be completed within 3 months from the date of receipt of this order. No orders as to cost.
(Umesh Gajankush) (A K Dubey)
Member (J) Member (A)
PA