Central Administrative Tribunal - Chandigarh
Harshvardhan Singh Jamwal vs Union Of India Through Secretary on 26 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(CIRCUIT BENCH AT JAMMU)
ORIGINAL APPLICATION No. 061/00026/2016
Date of filing: 22.06.2016
Order reserved on: 21.07.2016
Chandigarh, this the 26th day of July, 2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J) &
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
1. Harshvardhan Singh Jamwal, age 50 years, son of Sh. Jagdev Singh, R/o W. No. 6, Karan Nagar, Udhampur.
2. Raj Kamal Sharma, age 47 years, son of late Sh. Rohlu Ram, R/o VPO Kanhal, Tehsil Bishnah, District Jammu.
3. Rano Devi, age 50 years, w/o Tsering Tashi, R/o VPO Choglamsar, Tehsil and District Leh.
4. Balbir Singh, age 54 years, s/o late Sh. Ajit Singh, R/o VPO Gharota, Mohalla Chhanni Karnailan Di, Tehsil Bhalwal District Jammu.
.APPLICANTs
BY ADVOCATE: SHRI PAWAN K. KUNDAL
VERSUS
1. Union of India through Secretary, Govt. of India, Ministry of Defence, Shastri Bhawan, South Block, New Delhi.
2. Director General, Defence Estates, Raksha Sampada Bhavan, Delhi Cantt. 110010.
3. Principal Director, Defence Estates (Northern Command) Narwal Pain, Satwari, Jammu Cantt. 180003.
4. Principal Director, Defence Estates (Western Command), Kendriya Sadan, Sector 9, Chandigarh.
5. Defence Estates Officer, Jammu Circle, Jammu Cantt.
6. Defence Estates Officer, Udhampur Circle, Udhampur.
.RESPONDENTS
ORDER
HONBLE MR. JUSTICE L.N. MITTAL, MEMBER(J):-
Harshvardhan Singh Jamwal and three others have filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
I Quash the MACPS-2009 to the extent it prescribe for the 2nd financial upgradation on the basis of the grade hierarchy.
II Quash the order dated 28.4.2016 by which the respondent rejected the claim of the applicants for the grant of 2nd financial upgradation in the next pay scale (Band of PB-2 9300-34800 with Grade pay 4200) on the basis of promotional hierarchy.
III Directing the respondents to grant the 2nd financial upgradation to the Applicants under modified assure career progressive scheme on the basis of promotional hierarchy and thereby placing the Applicant in the Pay Scale/Band of PB-2 9300-34800 with Grade pay 4200.
2. Case of the applicants is that they were appointed as Lower Division Clerks (LDCs) on 7.5.19087, 18.6.1990, 1.11.1991 and 24.12.19991 respectively in the pay scale of Rs. 3050-4590 as per 5th Pay Commission, Revised Pay Band-I of Rs. 5200-20200 with Grade Pay of Rs. 1900/- as per 6th Pay Commission. Govt. of India introduced Assured Career Progression (ACP) Scheme (Annexure-A) vide O.M. dated 9.8.1999 for providing financial upgradation to stagnating employees who were not getting promotion. According to the Scheme, only 2 financial upgradations were to be provided in the entire service career 1st on completion of 12 years service and 2nd on completion of 24 years service. The upgradations were to be granted on promotional hierarchy. Applicant no.1 had already completed 12 years service before introduction of ACP Scheme and, therefore, he was granted first financial upgradation w.e.f. 9.8.1999 when the Scheme came into force. Whereas applicants no. 2 to 4 were granted first financial upgradation w.e.f. 18.6.2002, 1.11.2003 and 24.12.2003 respectively on completion of 12 years service. Applicants no. 1 to 3 were later on promoted as Upper Division Clerks (UDCs) in the pay scale of Rs. 4000-6000, revised to Pay Band-I of Rs. 5200-20,200 with Grade Pay of Rs. 2400/- without any financial benefit because they had already been granted first financial upgradation under ACP Scheme. Promotional hierarchy of the applicants is from LDC ( Grade Pay of Rs. 1900 in Pay Band-I) to UDC (Grade Pay of Rs. 2400 in Pay Band-I) and then to Office Superintendent in Pay Band II of Rs. 9300-34800 with Grade Pay of Rs. 4200/-.
3. Govt. of India introduced Modified ACP (MACP) Scheme vide O.M. dated 19.5.2009 (Annexure-B) w.e.f. 1.9.2008 by superseding the ACP Scheme. Under MACP Scheme, three financial upgradations are to be granted on completion of 10 years, 20 years and 30 years service. Besides this, under MACP Scheme, financial upgradations are granted on the basis of Grade Pay hierarchy unlike promotional hierarchy under the ACP Scheme. On completion of 20 years service, the applicants became entitled to second financial upgradation under the MACP Scheme. Claim of the applicants is that they are entitled to said upgradation on the basis of promotional hierarchy and not on the basis of Grade Pay hierarchy which has been granted to them. In other words, according to Grade pay hierarchy, they have been given second financial upgradation with Grade Pay of Rs. 2800/- in Pay Band-I of Rs. 5200-20200 whereas in promotional hierarchy, they are entitled to Pay Band II of Rs. 9300-34800 with Grade Pay of Rs. 4200. Applicants made representations dated 16.7.2014, 1.7.2014, 27.6.2014, 25.6.2014 respectively (Annexure G collectively). The respondents did not decide the said representations. The applicants filed Writ Petition bearing SWP No. 3190/2015 (Annexure H) in the Honble High Court of Jammu & Kashmir. The same was decided by Honble High Court vide order dated 11.12.2015 (Annexure- J) directing the respondents to consider and decide the representations filed by the petitioners, keeping in view the judgment dated 19.10.2011 of High Court of Punjab and Haryana in CWP No. 19387 of 2011 titled Union of India and Others vs. Raj Pal and Another (Annexure-D). Thereupon, representations of the applicants have been rejected by the respondents vide impugned order dated 28.4.2016 (Annexure K). Feeling aggrieved, the applicants have filed this O.A. Main ground of claim of the applicants is that similar claim has been upheld in the case of Raj Pal (Supra) in which SLP filed by the respondents was also dismissed of by the Honble Supreme Court vide order dated 15.4.2013 (Annexure E). Judgment in the case of Raj Pal (Supra) was also followed by Honble High Court of Punjab and Haryana in CWP no. 24278/2013 titled Union of India and Another Vs. Smt. Reeta Devi and Another decided on 7.11.2013 (Annexure F). The applicants have also alleged that financial upgradations on the basis of promotional hierarchy under the ACP Scheme became service condition of the applicants which could not be altered to their disadvantage by MACP Scheme.
4. We have heard counsel for applicants on the question of admission of the O.A. and perused the case file.
5. Counsel for the applicants reiterated the contentions raised in the O.A. as noticed herein above.
6. We have carefully considered the matter. Main emphasis on behalf of the applicants is on the judgment of Honble Punjab and Haryana High Court in the case of Raj Pal (Supra). However, the said judgment does not support the claim of the applicants. Raj Pal of that case is Photocopier in Central Administrative Tribunal, Chandigarh Bench. The post of Photocopier is an isolated post. At the time of grant of first financial upgradation to him under the ACP Scheme in the year 1999, he claimed parity with other posts like Hindi Typist, which was also an isolated post, and also sought parity with post of LDC which was in equivalent pay scale. He filed O.A. No.278/CH/2004 claiming the said parity. The said O.A. was allowed by the Tribunal on 30.8.2004 holding Raj Pal to be entitled to the benefit of pay scale under the ACP Scheme as applicable for the similar post i.e. Hindi Typist and LDC. CWP No. 7356/CAT/2005 preferred against the said order was dismissed by Honble High Court vide judgment dated 23.5.2007 upholding the entitlement of Raj Pal as decided by the Tribunal. For claiming benefit under the MACP Scheme at par with Hindi Typist/LDC, Raj Pal again filed O.A. No. 1038/CH/2010 which was allowed by the Tribunal vide order dated 31.5.2011, upheld by the Honble High Court vide judgment (Annexure D) Raj Pal (Supra). SLP was dismissed as time barred because application for condonation of delay in filing the SLP was dismissed. Thus in the case of Raj Pal (Supra), he was granted parity with post of Hindi Typist/LDC vide order passed in his earlier O.A. and, therefore, his claim for said parity under MACP Scheme was upheld in the case of Raj Pal (Supra). However, in the case of Raj Pal (Supra), no such proposition of law was laid down that under MACP Scheme, financial upgradation is to be granted on the basis of promotional hierarchy and not on the basis of Grade Pay hierarchy. On pointed query, counsel for the applicants could not refer to any such finding, determination or conclusion by this Tribunal or by Honble High Court in the case of Raj Pal (Supra). Thus facts in the case of Raj Pal case (Supra) were completely distinguishable from the facts of the instant case, as rightly held by the respondents in the impugned order (Annexure K). Thus case of Raj Pal (Supra) does not help the applicants in any manner and the same is not applicable to the facts of the case in hand.
7. Even on principle, the applicants are not entitled to the relief claimed by them. The applicants want to have best of both the worlds. They want to have the cake and eat it too. Under the ACP Scheme, only two financial upgradations were provided whereas under the MACP Scheme, three financial upgradations have been provided. Besides it, under the ACP Scheme, financial upgradations were provided on completion of 12 years service and 24 years service whereas under the MACP Scheme, financial upgradations are granted on completion of 10 years, 20 years and 30 years service. Thus MACP scheme is more beneficial than the ACP Scheme on the aforesaid two counts. The applicants want to have the benefits of the MACP Scheme on these two counts but want to repudiate the Scheme regarding financial upgradation on Grade Pay hierarchy and not on promotional hierarchy. The applicants cannot to do so. MACP Scheme is a complete package. The applicants cannot pick and chose the beneficial portion thereof and discard the less advantageous part thereof. The package under the MACP Scheme has to be taken as a whole.
8. In the aforesaid context, it has to be noticed that the applicants at no stage opted to continue under the ACP Scheme even after introduction of the MACP Scheme. Even in the instant O.A., the applicants have not claimed that applicability of ACP Scheme be restored to them. They rather want benefits of both the Schemes which is not permissible. In this view of the matter, contention of the applicants that financial upgradations on the basis of promotional hierarchy as provided by ACP Scheme had become their service condition and, therefore, it could not be altered to their disadvantage by MACP Scheme, also cannot be accepted. Had they desired to revert or switchover to ACP Scheme instead of MACP Scheme, the position probably might have been different.
9. It would not be out of context to notice here with significance that while exercising power of judicial review, Courts do not interfere with the policy decisions of the Govt. particularly in financial matters unless the same are arbitrary, discriminatory, perverse, unconstitutional, vocative of any Act/statute/Rules or suffer from such like vice. In the instant case, the MACP Scheme does not suffer from any such vice so as to warrant inference by this Tribunal. There is no ground whatsoever to quash the offending part of the MACP Scheme (Annexure B).
10. The instant O.A. is also barred by limitation. Applicant No. 1 had completed 20 years of service on 6.5.2007 and, therefore, immediately on introduction of MACP Scheme vide O.M. dated 19.5.2009, the applicant no. 1 became entitled to second financial upgradation under the said Scheme and, therefore, cause of action to challenge the alleged offending part of the Scheme accrued to applicant no. 1 at that time. The O.A. by him could be filed within one year thereof. Applicants no. 2 to 4 completed 20 years service on 17.6.2010, 31.10.2011 and 23.12.2011 and became entitled to second financial upgradation under the MACP Scheme immediately thereafter and they could file the O.As. within one year thereafter. However, the instant O.A. has been filed on 22.6.2016 i.e. after delay of six years in the case of applicant no.1, five years in the case of applicant no. 2 and three and half years in the case of applicants no. 3 & 4, after excluding the period of limitation of one year. However, even no MA has been filed for condoning the said long and inordinate delay in filing the O.A. nor there is any ground to condone the same. The O.A. is also thus barred by limitation, besides having no merit.
11. Respondents have passed the impugned order (Annexure K) giving detailed facts and reasons for rejecting the representations of the applicants. Here it may be added that representations of applicants no. 2 to 4 were available with the respondents whereas representation of applicant no. 1 was neither traceable with the respondents nor it was enclosed or found attached with the Writ Petition NO. 3190/2015. However, representation of applicant no. 1 is also similar to the representations of applicants no. 2 to 4.Valid reasons have been assigned in the impugned order for rejecting the representations of the applicants. There is, therefore, no ground to interfere with the said order also. Even otherwise, for reasons already recorded, the impugned order does not suffer from any infirmity.
12. According to MACP Scheme, the applicants are entitled to financial upgradation as per Grade Pay hierarchy and not as per promotional hierarchy. The claim of the applicants in the instant O.A. for financial upgradation on promotional hierarchy is completely unfounded. Our conclusion in this regard finds support from order dated 28.4.2016 of Calcutta Bench of the Tribunal in O.A. No. 351/00195/2014 titled Shri S.H.K. Murti and Others Vs. Union of India and Others. In the said order, Calcutta Bench has also relied on order of Ahmedabad Bench of the Tribunal in O.A. No. 120/000018/2015 titled Manubhai Bhagwanji Rathod Vs. Union of India & Ors., taking a similar view.
13. As a necessary consequence of the discussion aforesaid, we find no merit in the instant O.A. which is also barred by limitation. The O.A. is accordingly dismissed in limine.
(JUSTICE L.N. MITTAL) MEMBER (J) (UDAY KUMAR VARMA) MEMBER (A) Dated: 26.07.2016 `SK 1 (O.A. No. 061/00026/2016)