Central Administrative Tribunal - Cuttack
Nihar Ranjan Biswal And Others vs Central Excise And Customs on 24 March, 2025
1 O.A.260/00640 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00640 of 2021
Reserved on: 03.03.2025 Pronounced on : 24.03.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER(J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Nihar Ranjan Biswal, Assistant Commissioner (Retired). Aged
about 60 years, S/o Sri Kedar Nath Biswal,R/o Flat No. 125,
Govind Block,Balaji Complex, Jharpada Jail
Road,Bhubaneswar-751006.
2. Shankar Patro,Superintendent(Retired),Aged about 65
years,S/o Late Binayak Patro,R/o Plot No. K9B-385,
BDA,Bhagabanpur, P.O-Patrapada,Bhubaneswar-751019,Dist-
Khurda, Odisha.
3. Padma Charan Dash, Assistant Commissioner (Retired), Aged
about 61 years, S/o Late Banabihari Dash, R/o Block D/201,
Basant Villa Apartment, Bomikhal, Bhubaneswar, Dist-
Khurda, Odisha, PIN-751010.
4. Chepulla Ravi, Assistant Commissioner (Retired), Aged about
61 years, S/o Sri C. Veera Swamy, R/o Plot No. 6A/272,
Kosambhi Villa, Bairagi Nagar, Jharpada, Bhubaneswar-
751006.
5. Chitta Ranjan Das, Assistant Director (Retired), Aged about 60
years, S/o Late Bana Bihari Das, Plot No. 273/632, Paika
Nagar, Baramunda, Bhubaneswar-751003.
6. Sitaram Agarwal, Superintendent (VRS), S/o Late Shrinarayan
Agarwal, Aged about 59 years, Flat No. A-205, Siddhibinayak
Enclave, Cuttack Road, Jharpada, Bhubaneswar-751006.
7. Muralidhar Panigrahi, Superintendent (Retired),Aged about 62
years, R/o Flat No. E/205, Block-C,S/o Late Adikanda
Panigrahi, Sri Jagannath Plaza, Gajapati Nagar,
Bhubaneswar-751005.
8. Priyabadi Mohanty,Superintendent (VRS),Aged about 62 years,
S/o Late Dharmananda Mohanty, Santa Sahi, Canal Road,
Cuttack-753001, Odisha.
2 O.A.260/00640 of 2021
9. Gopal Charan Bahubalendra,Superintendent (Retired),Aged
about 62 years,S/o Late Muli Bahubalendra, R/o D/210, Sector-
7, CDA, Abhinav Bidanasi, Cuttack-753014, Odisha.
10. Ajay Kumar Parida, Assistant Commissioner (Retired),
Aged about 60 years,S/o Late Chakradhar Parida,R/o Flat No-
A/021, Block-A/3.
11. Pradipta Kumar Pattanaik, Assistant Commissioner,Aged
about 59 years, S/o Late Rajkishore Pattanaik, R/o Flat No.
101, Block-L, Trident Galaxy, Kalinga Nagar, Bhubaneswar-
751003, Dist- Khurda, Odisha.
12. Prafulla Kumar Mahapatra,Assistant Commissioner (Retired),
Aged about 62 years, S/o Late Kishore Chandra Mahapatra, R/o
C/101, Ratna Lifestyle Apartment, Sikharchandi Nagar,
Bhubaneswar-751024.
13. Umesh Chandra Pradhan,Assistant Commissioner (Retired),
Aged about 60 years, S/o Late Rusi Pradhan, R/o Danipali, Near
Bhimabhoi Park, P.O-Budharaja, Sambalpur-768004.
14. Kishore Kumar Mahakur, Superintendent,Aged about 62 years,
S/o Late Mrutyunjoya Mahakur. R/o Mourya Residency, Block-
A, Flat No. A-103, Singhpali, Kainsir Road, P.O. Sankarma-
768006. Dist-Sambalpur, Odisha.
15. Subrata Sanyal,Assistant Commissioner (Retired), Aged about
60 years, S/o Late Jyotirmoy Sanyal, FD-203, Salt Lake,
Kolkata, (W.B).
16. Basab Bardhan, Assistant Commissioner, Aged about 60 years,
S/o Late Ajit Chandra Bardhan, R/o D-38, Metro Satellite City,
Hansapal, Bhubaneswar-752101.
17. Debasish Ghosh, Assistant Commissioner (Retired), Aged about
60 years, S/o Late Radhakanta Ghosh, R/o Vill/Post- Hasnabad,
Dist- North 24 Parganas-743426, (West Bengal).
18 . Ratan Kumar Saha,Assistant Commissioner (Retired), Aged
about 62 years. S/o Late Niranjan Saha, R/o D/1, Nataraj
Apartment, 45, Sukumar Ghosh Road, Belghoria, Kolkata-
700056, (W.B).
19. Parameswar Panda, Assistant Director, NACEN, Aged about 58
years, S/o Late Panchanan Panda, R/o Flat No. 302, Archid
Maple, Jagannath Nagar, 1st Lane, Bhubaneswar.
20. Prasanna Kumar Parida, Assistant Commissioner, Aged about
59 years, S/o Late Uchhaba Charan Parida, R/o DD Road, P.O.
Kalyani Nagar, Cuttack-753013, Odisha.
......Applicants
3 O.A.260/00640 of 2021
VERSUS
1. Union of India represented through the Secretary to
Government of India, Ministry of Finance, Department of
Revenue, North Block, New Delhi-110 001.
2. The Chairman, Central Board of Indirect Taxes &
Customs, Govt. of India, Ministry of Finance, Department
of Revenue, North Block, New Delhi.
3. The Chief Commissioner, GST & Central Excise and
Customs, Bhubaneswar Zone, Odisha, C.R. Building,
Rajaswa Vihar, Bhubaneswar-751 007.
4. The Principal Commissioner, GST & Central Excise,
Bhubaneswar Zone, Central Revenue Building, Rajaswa
Vihar, Bhubaneswar, Dist. Khurda, PIN-751 007.
5. The Commissioner, GST & Central Excise, Rourkela
Commissionerate, KK-42, Civil Township, Rourkela, PIN-
769 004.
6. The Commissioner, Customs (Preventive), Commissione-
rate, C.R. Building, Rajaswa Vihar, Bhubaneswar-751
007.
7. The Principal Commissioner, Audit Commissionerate,
GST & Central Excise, Central Revenue Building,
Rajaswa Vihar, Bhubaneswar, Dist. Khurda, PIN-751
007.
8. The Commissioner, Appeals Commissionerate, GST &
Central Excise, Bhubaneswar, Central Revenue Building,
Rajaswa Vihar, Bhubaneswar, Dist. Khurda, PIN-751
007.
9. The Principal ADG, National Academy of Customs,
Indirect Taxes & Narcotics (NACIN), Bhubaneswa Zone,
Plot No.35, Satya Nagar, Bhubaneswar, Dist. Khurda,
PIN-751 007.
10. The Principal ADG, DGGI, Bhubaneswar Zonal Unit, 27
Saheed Nagar, Bhubaneswar -751 007.
......Respondents
For the applicant : Mr. Niranjan Pradhan, Counsel
For the respondents : Mr. B. Samantaray, Counsel
4 O.A.260/00640 of 2021
O R D E R
SUDHI RANJAN MISHRA, MEMBER(J):
The applicants got financial upgradation to GP Rs. 4800/- and, according to them, after completion of four years in the said grade they should have been given Non-Functional Upgradation (NFU) to GP Rs. 5400/- in terms of CBEC Circular F.No.26017/98/2008-Ad.II.A dated 11.02.2009 but their grievance is that despite representations filed by applicant Nos. 1 to 20 on 01.11.2021, 09.11.2021, 02.11.2021, 02.11.2021, 02.11.2021, 02.11.2021, 03.11.2021, 05.11.2021, 08.11.2021, 08.11.2021, 28.10.2021, 03.07.2021, 09.11.2021, 09.11.2021, 12.11.2021, 12.11.2021, 15.11.2021, 14.11.2021, 10.11.2021 & 05.11.2021 respectively claiming the financial benefits under NFU w.e.f. 01.01.2006 they have not been given the benefits of NFU even though the similarly situated employee, in similar circumstances, have been extended the benefits in compliance of orders of this Bench as also other Benches of this Tribunal. Hence, the applicants have filed the instant O.A. with the following prayer(s):-
"(i) To direct the Respondents to extend the benefit of NFU/NFS of Rs. 5400/- to the officers with effect from 01.01.2006 since they had completed four years in GP Rs. 4800/- (pre revised scale of Rs. 7500-12000/-) as on 5 O.A.260/00640 of 2021 01.01.2006 and re-fix their pay accordingly and grant them the arrears;
(ii) To pass appropriate order/orders directing the Respondents to extend all consequential benefits to the applicants; and
(iii) To pass other order/orders as deemed fit and proper."
2. Respondents have filed their counter opposing the stand of the applicants. It is the contention of the respondents that the benefit of M. Subramaniam is not extended to them in Bhubaneswar Zone because the applicants were neither parties in O.A. No. 494 of 2019 nor have secured any order from this Tribunal for getting such benefits as directed by the Board vide letter dated 30.07.2020.
Since, no direction either from the Tribunal or from the Board is available in favour of the applicants, the same benefits of NFU in GP of Rs.5400/- in PB 2 cannot be granted to them in view of Board's letter dated 07.04.2021. In view of the above, relief sought by the applicants to extend the benefit of NFU/NFS of Rs.5400/- to the officers with effect from 01.01.2006 cannot be considered at this stage in absence of any order from this Tribunal.
3. In course of hearing Learned counsel for the applicant has brought to our notice a copy of the order of this Bench dated 6 O.A.260/00640 of 2021 23.01.2025 passed in O.A. No.619 of 2022 to state that another set of employee of the same department earlier approached this Tribunal in O.A. No.494 of 2019. The respondents in both the case have filed their counter opposing the prayer of the applicants therein both on merit as well as maintainability of the O.A. on the ground of delay and laches. The Bench of this Tribunal after taking into consideration all aspects of the matter directed for consideration for grant of NFU to the said applicants. The present case being one and the same both on facts and law similar direction may be issued. The issue in both cases are same and similar have not been disputed by the respondents. The relevant portion of the orders of this Bench dated 13.05.2020 passed in O.A. No.494 of 2019 and dated 23.01.2025 passed in O.A. No.619 of 2022 respectively are quoted herein below:-
In O.A. No.494 of 2019"6. The respondents challenged the order dated 6.9.2010 of Hon'ble Apex Court in Civil Appeal No. 8883/2011 which was dismissed vide order dated 10.10.2017(Annexure-A/5) of Hon'ble Apex Court and a Review Petition filed was also dismissed vide order dated 23.8.2018 (Annexure-A/6).
7. It was also submitted by the applicants' counsel that the Principal Chief Commissioner, Central GST & Central Excise, Kolkata has extended the same, benefit to the staffs under 7 O.A.260/00640 of 2021 his jurisdiction, who are similarly placed as the applicants vide his order dated 6.12.2019. It is seen that in this case also a representation dated 29.5.2019 & 18.6.2019 (Annexure-A/10 series) of the applicant no. 1 i.e. All India Association of Central Excise Gazetted Executive Officers, Odisha Unit, Bhubaneswar, is pending with the respondent no. 3.
8. In the circumstances, we dispose of this OA with direction to the Respondent No. 3 to examine the representations dated 29.5.2019, and 18.6.2019 (Annexure-A/10 series) of the applicants with reference to the order dated 6.9.2010 of Hon'ble Madras High Court in 'W.P. No. 13225/2010 (Annexure-A/4 of the OA), which has been upheld by Hon'ble Apex Court and if the applicants are similarly placed as the petitioner before Hon'ble Madras High Court in the above writ petition, then allow similar benefits as allowed in the above order of Hon'ble Madras High Court, taking into consideration the fact that similar benefit has been allowed by Principal Chief Commissioner, Central GST & Central Excise, Kolakata vide his order dated 6.12.2019. If it is felt that the above orders will not be applicable to the applicants, then a speaking and reasoned order is to be passed copy of which is to be communicated to the applicants. The above direction is to be complied by the respondent no. 3 within 3 (three) months of receipt of a copy of this order.
9. The OA stands disposed of as above. There will be no order as to costs.In O.A. No.619 of 2022
"4. Since Respondents raised the question of limitation, we would like to deal with the said point at the first instance. According to the Respondents, Applicant No.1 submitted 8 O.A.260/00640 of 2021 representation on 30.07.2021, applicant no.2 on 29.07.2021 and applicant No.3 on 09.09.2021 claiming NFU w.e.f. 01.03.2009, 23.02.2009 and 01.01.2006 respectively whereas they filed this OA on 14.11.2022, which is grossly barred by limitation enshrined in Section 21 of the AT Act. In this regard, they have placed reliance of the decisions of the Hon'ble Apex Court in the cases of Sri Shiv Charan Singh Bhandari & Ors (supra); M.K.Sarkar (supra); Seshachalam, (supra); Jagdish Lal (supra); Birpal Singh Chauha (supra) and Arvind Kumar Srivastav & Ors (supra).
5. It may be noted that all the three applicants have got GP Rs. 4800/- by way of financial up gradation under MACP and had also completed four years in the said grade are not in dispute. It is also not in dispute that an employee after completing four years in GP Rs. 4800/- is to be placed to GP Rs. 5400/- is not in dispute. The Respondents have also fairly admitted that all the similarly situated employees, who were members of the association, were granted the said benefit and though Applicant No.3 was also a member his name was inadvertently skipped for which necessary order for granting the said benefit to him was sought from Board. Facts remain that many of the similarly situated employees have been given the benefits, who have approached and got the order from Court/Tribunal. It is also not in dispute that placing the employees concerned to GP Rs. 5400/- is unrelated to availability of vacancies etc. and as per the decision of the Hon'ble Apex Court in the case of Union of India & Ors Vs. N.M.Raut & Ors. (arising out of SLP(C) No. 8015 OF 2022) grant GP to Rs. 5400/- is off set as against one financial up gradation. In other words, cases relate to financial benefits come under recurring cause of action and application of 9 O.A.260/00640 of 2021 limitation has no role to play. In this regard, it is profitable to rely on the decision of the Hon'ble Apex curt in the cases of Union of India Vs Tarsem Singh, AIR 2019 SC 4689, and M.R. Gupta Vs Union of India & Ors, 1996 AIR
669. Hence the plea of the respondents to be above effect is hereby overruled.
6. Insofar as merit of the matter is concerned, the relevant portion of the decision of the Hon'ble High Court of Madras in the case of M.Subramaniam (supra) in W.P.No. 13225/2010 dated 06.09.2010, which was upheld by the Hon'ble Apex Court vide Civil Appeal No. 8883/2011 dated 10.10.2017, reads as under:
6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/-
in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs. 7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four year, he is entitled to the grade pay of Rs. 5400/0 with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised pay-scale of 7500- 12000 (corresponding to grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non-financial upgradation 10 O.A.260/00640 of 2021 the pre-revised pay-scale of Rs. 8,000-13,500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the Pre-revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non-functional upgradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4-year in the pay scale of Rs. 7,500-12000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government on India, having accepted the recommendations of the 6th pay commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on non-financial basis after four Group B Officers in pay Band 2 of Rs. 4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
11 O.A.260/00640 of 2021
9. Accordingly, the writ petition is allowed setting aside the order of the Tribunal, dated 19.4.2010 passed in O.A.No. 167 of 2009. The respondents are directed to extend the benefit of grade pay of Rs. 5400/- to the petitioner from 1.1.2008 as per the resolution dated 29.8.2010. No costs."
7. The Respondents have also admitted in their counter so also in course of hearing that in compliance of the order of this Tribunal dated 13.05.2020 in OA No. 494 of 2019 of this Bench, they have considered the cases of the applicants therein & the Members of the All India Association of Central Excise Gazetted Executive Officers, Odisha in the light of the decisions in the case of M. Subramaniam in W.P.No. 13225/2010 dated 06.09.2010, which was upheld by the Hon'ble Apex Court vide Civil Appeal No. 8883/2011 dated 10.10.2017, and granted the benefit of NFU to GP Rs. 5400/- on completion of four years in GP Rs. 4800/- to them. It has also been admitted that Applicant No.3 though one of the Members of the said association but, inadvertently, his name was skipped for which appropriate order for extension of NFU was also sought from the Board. In the case of K.C. Sharma & Ors Vs Union Of India & Ors, AIR 1997 SUPREME COURT 3588, the Hon'ble Apex Court while quashing the order of the Tribunal have held that the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted to others.
8. In view of the facts and law discussed above, this OA is disposed of with direction to the respondent No.2 to consider the pending representations of the applicants under Annexure-A/8 series in the same terms and conditions based on which Sri M.Subramaniam 12 O.A.260/00640 of 2021 and the applicants in OA No. 494 of 2019 were granted the benefits of NFU. The entire exercise shall be completed within a period of 180 days from the date of receipt; of a copy of this order. Parties to bear their own costs."
4. We find no such justification to differ from the view already taken in the above two cases. Hence, this O.A is disposed of with direction to the respondent No.2 to consider the pending representations of the applicants under Annexure-A/9 and Annexure-
A/10 in the same terms and conditions based on which the applicants in O.A. Nos. 494 of 2019 and 619 of 2022 were granted the benefits of NFU. The entire exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
There shall be no order as to costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) KB/PS