Central Administrative Tribunal - Jabalpur
N M Raut vs M/O Defence on 11 October, 2018
1 OA No.200/00367/2017
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00367/2017
Jabalpur, this Thursday, the 11th day of October, 2018
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
1. N.M. Raut, S/o Shri Mahdev Rao Raut, Date of birt 28.05.1959,
Working as Pharmacist, R/o - 137-E, Type IV, West Land,
Khamaria, Jabalpur, District Jabalpur - 482005 (M.P.).
2. Kailash Prasad Shrivastava, S/o Late Madan Gopal Shrivastava,
Date of birt 28.10.1958, Working as Pharmacists, R/o - 135/2950,
Chandan Colony, Ranjhi, Jabalpur, District Jabalpur - 482005
(M.P.).
3. R.K. Shrivastava, S/o Shri Ved Prakash Shrivastava, Date of
birth 14.07.1961, Working as Pharmacist, R/o - Block No.14,
Satyam Kunj, 27, Chimni Plot, Behind Gulzar Hotel, Mahanadda,
Jabalpur, District Jabalpur - 482001 (M.P.),
4. P.C. Ojha, S/o Dr. S.N. Ojha, Date of birth 11.02.1963, Working
as Pharmacist, R/o - 625, JDA Colony, Vijay Nagar, Near SBI,
Scheme No.5, District Jabalpur - 482002 (M.P.).
5. S.K. Pandey, S/o Late S.T. Pande, Date of birth 21.05.1957,
Working as Pharmacist, R/o - C-8, Chandrika Vihar, Home
Science College Road, Napier Town, Jabalpur, District Jabalpur -
482002 (M.P.),
6. Sunil Kumar, S/o Shri C.D. Raghu, Date of birth 08.11.1965,
Working as Pharmacist, R/o-D-14, Prestige Town, South Civil
Lines, Jabalpur, District Jabalpur - 482001 (M.P.).
7. Smt. Shanti Devi Ahirwar, D/o Shri Mahveer Prasad, Date of
birth 25.12.1959, Working as Pharmacist, R/o-H. No.467,
Ambedkar Ward, Ranjhi, Jabalpur, District Jabalpur - 482005
(M.P.). -Applicants
(By Advocate - Shri Vijay Tripathi)
Page 1 of 13
2 OA No.200/00367/2017
Versus
1. Union of India through its Secretary, Ministry of Defence,
Department of Defence Production & Supplies, New Delhi -
110001.
2. Director General, Ordnance Factory Board, 10-A, Shaheed
Khudiram Bose Marg, Kolkata 700001.
3. Senior General Manager, Ordnance Factory, Khamaria, Jabalpur
(M.P.) - 482005 - Respondents
(By Advocate - Shri Surendra Pratap Singh)
(Date of reserving order : 10.09.2018)
ORDER
By Ramesh Singh Thakur, JM.
The applicants are aggrieved by the order dated 14.12.2015 (Annexure A-1), whereby their pay has been refixed and the benefits of third upgradation in the Grade Pay of Rs.5400/- under the MACP scheme has been withdrawn. They are also challenging the order dated 29.07.2016 (Annexure A-2), whereby placement of the applicants in the Grade Pay of Rs.4200/- pursuant to letter dated 03.11.2011, issued by the respondent No.3, has been treated as promotion under the MACP scheme. The applicants are also aggrieved by the order dated 04.01.2017 (Annexure A-3), whereby pay of the applicant Nos.1 to 3 has been refixed after withdrawing the Grade Pay of Rs.5,400/-, as a consequence of which, recovery Page 2 of 13 3 OA No.200/00367/2017 has been imposed upon the applicants vide order dated 13.01.2017 and 03.03.2017 (Annexure A-4 colly.)
2. They have sought for the following reliefs:
"8.1 Summon the entire record from the possession of official respondents for its kind perusal; 8.2 Set aside the orders dated 14.12.2015 Annexure A/1, and the order dated 29.07.2016 Annexure-A/2 04.01.2017 Annexure-A/3 and orders dated 13.01.2017 and 03.03.2017 Annexure A/4 with all consequential benefits. 8.3 Direct the respondents to refix the pay of the applicants by excluding the G.P. of Rs.4200/- granted to the applicants as for the post of Pharmacist (non-functional grade).
8.4 Any other order/orders, direction/directions may also be passed.
8.5 Award cost of the litigation to the applicant."
3. The brief facts of the case are that the applicants were initially appointed as Pharmacist between 1981 to 1988. Since the applicants were working as Pharmacist in the pay scale of Rs.4500- 7000/- under the 5th CPC, and have not received any promotion, they were given the benefit of ACP scheme on completion of 12 & 24 years of their service respectively.
3.1 The Pharmacists working in the various hospitals of the respondent organisation were facing stagnation, therefore, a Fast Track Committee was recommended vide letter dated 29.12.2009 Page 3 of 13 4 OA No.200/00367/2017 (Annexure A-6) for refixing the pay structure of Pharmacist working in the Ordnance Factory w.e.f 01.01.2006. As per the recommendations of Fast Track Committee, the Pharmacists in Grade Pay of Rs.2800/- in PB-1, were decided to grant non- functional upgradation in the Grade Pay of Rs.4200/- in PB-2 of Rs.9300-34800 on completion of two years of service in the Grade Pay of Rs.2800/-. Accordingly, the applicants were given the upgradation in the Grade Pay of Rs.4200/- (non-functional grade) w.e.f. 01.01.2006.
3.2 After introduction of the MACP scheme, as per the recommendations of 6th CPC, the applicants were considered for financial upgradation under the MACP scheme and vide order dated 08.11.2010 (Annexure A-7), they were granted first and second upgradation in the Grade Pay of Rs.4600/- and 4800/- on completion of 10 and 20 years of service.
3.3 It is the case of the applicants that all-of-sudden vide order dated 14.12.2015 (Annexure A-1), the financial upgradations given to the applicants (IST, IIND) vide order dated 08.11.2010 has been cancelled by treating the non-functional grade granted to them in the Grade Pay of Rs.4200/- as first promotion/upgradation, without affording any opportunity of hearing to the applicants. Page 4 of 13 5 OA No.200/00367/2017 3.4 Subsequently, the respondent No.3 issued an order dated 29.07.2016 (Annexure A-2) whereby it was intimated that the non- functional upgradation to the Grade Pay of Rs.4200/- will be counted as ACP-I/MACP-I, and therefore, the Pharmacist will be eligible to get second upgradation in the Grade Pay of Rs.4600/- and they shall not be eligible for the Grade Pay of Rs.4800/- under the MACP scheme. Consequently, vide order dated 04.01.2017 (Annexure A-3), the third upgradation granted to the applicant Nos.1 to 3 under MACP scheme has been withdrawn. The respondent department has also issued orders dated 13.01.2017 and 03.03.2017 (Annexure A-4), whereby recovery orders have been issued.
3.5 It is the case of the applicants that the Ordnance Factory Board has issued a clarification dated 19.10.2009 (Annexure A-9), whereby it was clarified that the upgradation to Skilled grade based on ECC recommendation is to be ignored for MACPs. Therefore, the non-functional grade of Rs.4200/- granted to the applicants, as per the recommendations of Fast Track Committee, cannot be treated as promotion/upgradation for the purpose of MACP scheme.
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4. In their reply, the respondents have submitted that the Ordnance Factory Board, vide letter dated 29.12.2009, approved the revised pay structure for Pharmacists working in Ordnance Factory organization w.e.f. 01.01.2006, as per the recommendations of the Fast Track Committee. Thereafter, DoP&T, vide letter No.35014/1/2014-Estt.D dated 10.06.2015 issued the instructions regarding treatment of non-functional grade granted to Pharmacists on completion of two years of service, as 1st MACP.
4.1 It has been further submitted that pay scale of 1st and 2nd upgradation granted under ACP scheme has been merged in a singe Grade Pay of Rs.4200/- w.e.f. 01.01.2006 and due to merger of pay scales of Rs.5000-8000 and 5500-9000 in single Grade Pay of Rs.4200/-, the 2nd upgradation is ignored in the cases of the applicants and again granted 2nd upgradation under ACP/MACP scheme w.e.f. 01.01.2006 or thereafter as per their entitlement in the Grade Pay of Rs.4600/-. Subsequently, the 3rd upgradation has been granted to the applicants after completion of 30 years of service.
4.2 As per direction of DoP&T letter dated 19.08.2015, received under OFB letter dated 21.08.2015, it was directed to Page 6 of 13 7 OA No.200/00367/2017 review/reconcile case of Pharmacists regarding upgradations under ACP & MACP. Accordingly, case of the applicants have been reviewed vide order dated 14.12.2015.
4.3 It was further submitted by the respondents that a similar matter i.e. OA No.359/2013 (All India Ordnance Factories, Para Medical Staff Association, Jabalpur & Ors. vs. Union of India & Anr.) was also the subject matter before the Principal Bench of this Tribunal, which has been dismissed on 20.12.2016 and the controversy involved in the present case as well as before the Principal Bench is identical.
4.4 It was also submitted by the respondents that ACP scheme is not a time bound promotion scheme. It is a non-functional financial upgradation scheme to deal with problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Therefore, applicants were given 1st upgradation in the Pay Scale of Rs.5000-8000 with Grade Pay of Rs.4200/- under ACP scheme from 09.08.1999. The Pay Scale of Rs.5000-8000 is replaced with Grade Pay of Rs.4200/- w.e.f. 01.01.2016 after implementation of 6th CPC.
4.5 The applicants got first financial upgradation under ACP in the Grade Pay of Rs.4200/-. Therefore, they were entitled for 2nd Page 7 of 13 8 OA No.200/00367/2017 upgradation in the Grade Pay of Rs.4600/- and 3rd upgradation in the Grade Pay of Rs.4800/-. More than three upgradations are not allowed, as per the MACP scheme. Hence, the erroneous upgradation granted to the applicants has been withdrawn and the excess paid amount is to be recovered from the pay of the applicants.
5. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
6. In support of claim of the applicants, learned counsel for the applicants placed reliance on the following decisions:
(i) Judgment of Hon'ble High Court of New Delhi in W.P. (C) No.9357/2016 dated 20.12.2017 (Hari Ram & Anr. vs. Registrar General, Delhi High Court).
(ii) Judgment of Hon'ble High Court of Madras dated 16.10.2014 in W.P. No.11535 of 2014 (The Union of India & Ors. vs. Sri S. Balakrishnan & Ors.).
(iii) Judgment of Hon'ble High Court of Madras dated 08.12.2014 in W.P. No.19024 of 2014 (R. Chandrasekaran vs. The Central Administrative Tribunal, Madras Bench).
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(iv) Judgment of Hon'ble High Court of Madras dated 14.02.2017 in Writ Petition Nos.33946, 34602 and 27798 of 2014 (The Union of India & Ors. vs. S. Ranjit Samue & Ors.).
7. It is an admitted fact that the applicants were given the upgradation in the Grade Pay of Rs.4200/- (non-functional grade) w.e.f. 01.01.2006, as per the recommendations of the Fast Track Committee. After introduction of the MACP scheme, the applicants were granted benefit of 1st and 2nd financial upgradation vide order dated 08.11.2010 (Annexure A-7), on completion of 10 and 20 years of service respectively. However, subsequently, vide order dated 14.12.2015 (Annexure A-1), the financial upgradations given to the applicants (IST, IIND) vide order dated 08.11.2010, has been withdrawn by treating the non-functional grade granted to them in the Grade Pay of Rs.4200/ as first promotion/upgradation under the MACP scheme.
8. It is not in dispute that there are various judicial pronouncements on this subject, as has been placed on record by either sides regarding treatment of non-functional scale as upgradation/promotion for the purpose of benefit under the ACP/MACP scheme or not. In the case of R. Chandrasekaran Page 9 of 13 10 OA No.200/00367/2017 (supra), relied upon by learned counsel for the applicants, though the issue was somehow similar, however, in the absence of any specific clarification issued by the Nodal Ministry, DoP&T, the matter was referred to DoP&T to take a decision in the light of MACP Scheme.
9. In the instant case, the matter was taken up by the Joint Consultative Machinery (JCM) seeking clarification for MACP entitlements of Pharmacist (Entry Scale PB-I with Grade Pay Rs.2800/-) in PB-II with Grade Pay of Rs.4200/- consequent upon recommendations of the Fast Track Committee, to which, the DoP&T, vide its clarification dated 10.06.2015, replied as under:
"I am directed to refer to your letter No. NC/JCM/2015/MACP dated 06.05.2015, on the above mentioned subject.
2. With regard to point (i) raised in your above mentioned letter, it is stated that Para 8.1 of Annexure-I of OM on MACPS dated 19.05.2009 provides that every financial upgradation including non-functional grades granted have to be treated as an offset against one financial upgradation under the Scheme.
The Pharmacists in the entry grade pay of Rs. 2800/- are getting the higher GP of Rs.4200/- on completion of two years only. As such, they can not said to be stagnating in the Pharmacists (entry grade with GP Rs.2800/-) to the next GP of Rs.4200/- in PB-2 on completion of 2 years of service in the GP of Rs. 2800/- in PB-1 has to be treated as 1st MACP. Therefore, they become entitled for 2nd MACP on completion of next 10 years of service i.e. total 12 years of Page 10 of 13 11 OA No.200/00367/2017 service and further 3rd MACP on completion of 22 years of continuous service.
3. So far as the issue (ii) raised in your letter, it is informed that the MACP Scheme has come into force w.e.f. 01.09.2008 which provides financial upgradation in the grade pay hierarchy. The ACP Scheme was in operation between 01.01.2006-31.08.2008. Financial upgradations under ACP Scheme were allowed in the promotional hierarchy as per the existing hierarchy and Non Functional Upgradation was not treated as financial upgradation under ACP Scheme. Hence, the Pharmacists on completion of 12 years or 24 years of service are to be allowed financial upgradation under the ACP Scheme in the promotional hierarchy existing between 01.01.2006 to 31.08.2008.
4. As regard, point (iii) it is clarified that the Pharmacists, at the time of their placements from GP of Rs.2800/- in PB-1 to GP of Rs.4200/- in PB-2, they may be allowed the pay fixation benefit equal to 3% of existing basic pay and the difference in GP as consequent to such 'placement' not only the Grade Pay changes but does the Pay Band also. This is also in conformity with the para 4 of Annexure to the OM dated 19.05.2009, since it is being treated as first financial upgradation under the MACPS."
9.1 A bare reading of the above instructions issued by the DoP&T clearly reveals that placement of the applicants from Grade Pay of Rs.2800/- in PB-1 to Grade Pay of Rs.4200/- in PB-2 not only carries the higher Grade Pay but also changes the Band Pay. Thus, the same is being treated as first financial upgradation under the MACPS and the upgradations granted to the applicants vide order dated 08.11.2010 has rightly been withdrawn. It is well Page 11 of 13 12 OA No.200/00367/2017 settled principle of law that employees cannot be allowed to take benefit of an erroneous, though inadvertent, action of the respondents.
10. Our view also fortify from the observation made by the coordinate Principal Bench in OA 2861/2013 (All India Defence Pharmacists Association & Anr. vs. Union of India & Ors.). Relevant paragraph 15 of the order dated 24.02.2015 (Annexure R/5-A), reads as under:
"15. First of all, we do not agree with the learned counsel for the respondents that because OA 3732/2012 has been referred to a Larger Bench this matter should also be referred to the Larger Bench, as the facts of both the cases are completely different. In this case, we are dealing with the post of Pharmacist. In the judgment in OA 3441/2012, somehow the existence of Ministry of Defence/ DoP&Tclarification dated 19.07.2013 was not brought to the notice of the Tribunal, which is being brought to our notice now and similar was the position with OA 760/PB/2012 decided by the Chandigarh Bench of the Tribunal. The authority to issue any clarification under MACP guidelines is the DoP&T and what the Ministry of Defence does internally is not relevant and, therefore, the order dated 29.04.2011 issued by the office of the CGDA will not be considered. Moreover, just because the word 'promotion' has been replaced by the word 'placement', does not logically mean that the NFG will not be treated as first upgradation under the MACP. In fact, that is why, the Ministry of Defence consulted the DoP&T and the DoP&T vide letter dated 4.07.2012 issued clarification that the Page 12 of 13 13 OA No.200/00367/2017 placement from GP 2800/- to GP 4200/- after two years of service in the entry grade in Pharmacist Cadre is required to be treated as financial upgradation under MACPS. The clarification issued by the Ministry of Defence in consultation with the DoP&T is final. In our view, in light of these additional documents, there is no need to refer the matter to a Full Bench.
11. In view of above backdrop of the matter, we do not find any fault in the impugned orders passed by the respondents at Annexure A-1 to A-4. Hence, the O.A lacks merit.
12. Resultantly, the O.A is dismissed. No order as to costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
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