Central Administrative Tribunal - Delhi
Gaje Singh S/O Sh. Bhagwan Singh vs Union Of India Through on 15 February, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2815/2011
MA-2016/2011
Reserved on : 12.02.2013.
Pronounced on :15.02.2013.
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Gaje Singh S/o Sh. Bhagwan Singh,
R/o 184/2 D/2, Sec.VII, Rohini,
Delhi-110085.
2. Jaichand S/o Sh. Ant Ram,
R/o 669, Gali No.16, Mohalla Lajja Puri,
Hapur, Ghaziabad.
3. Girdhari Lal S/o Sh. Sohnu Ram,
R/o 20 A-1, Railway Colony,
Punjabi Bagh, New Delhi-26.
4. Prahlad Singh S/o Sh. R.N. Singh,
R/o 222/B Sec.12, Noida (UP).
5. S.K. Verma S/o late Sh. B.L. Verma,
R/o L-108, Lajpat Nagar, Sahibabad,
Ghaziabad-201005. . Applicants
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway,
Baroda House, New Delhi.
2. The Secretary (Estt.),
Ministry of Railway,
Railway Board,
Rail Bhawan, New Delhi.
3. The Deputy Director,
Pay Commission-V, Ministry of Railway,
Govt. of India, Railway Board,
New Delhi.
4. The General Manager (P),
Northern Railway Headquarters,
Baroda House, New Delhi. . Respondents
(through Sh. VSR Krishna, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) MA-2016/2011 for joining together in one application is allowed.
The applicants, who joined the Railways as Assistant Station Master (ASM), have sought the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 12.07.2011, declaring the effect that same is illegal, arbitrary and discriminatory in the eyes of law and consequently pass an order declaring to the effect that the applicants are entitled and have been rightly granted the benefit of 3rd MACP Scheme in the grade pay of Rs.4800/- w.e.f. 01.09.2008 with all the consequential benefits.
That the Honble Tribunal may further graciously be pleased to pass an order of quashing the conditions No.8 prescribed in MACP Scheme declaring to the effect that the same against the object of the MACP Scheme.
Any other relief which the Honble Tribunal deem fit and roper may also be granted to the applicant.
2. Facts of the case are that applicants joined service as ASM in the initial pay scale of Rs. 330-560 and after putting in about 30 years of service in Railways are now serving as Chief Controller/Dy. Chief Controller. The hierarchy of the cadre is as shown in the table below:-
Design III CPC IV CPC V CPC VI CPC Director Entry Grade ASM 330-560 1200-2040 4500-7000 PB1+GP 2800 Promotion ASM 425-640 1400-2300 merged on 1/1/1986 5000-8000 PB-II+GP 4200 Merged on 01.01.2006 Promotion SCNL 455-700 1400-2600 5500-9000 PB-II+GP 4200 Promotion Dy. CHC 2000-3200 6500-10500 w.e.f. 1/1/96 PB-II+GP 4600 Merged on 01.01.2006 Promotion CHC 7450-11500 PB-II+GP 4800 According to the applicants Railway Board while accepting recommendations of 6th Central Pay Commission (CPC) and revising the pay scales as shown in the above chart also introduced MACP Scheme for the Railway Board employees vide Railway Board Circular No. R.B.E. No. 101/2009 dated 10.06.2009. Under this Scheme three financial upgradations were made admissible to the railway employees on completion of 10, 20 and 30 years of service respectively in case they had not been able to find regular promotion in their cadre. Clause-5 of the Scheme, which is relevant to the present case, reads as follows:-
5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
Illustration The pre-revised hierarchy (in ascending order) in a particular organisation was as follows:
Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500.
(a) A Railway servant who was recruited in the hierarchy in the pre-revised pay scale Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006, he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre-revised scales of Rs.5500-
9000 and Rs.6500-10500.
(b) Another Railway servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 & Rs.6500-10500 during this period.
In the case of both (a)and (b) above,the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 recommended by the Sixth CPC. As per the RS(RP) Rules, both of them will be granted Grade Pay of Rs.4200 in the Pay Band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher Grade Pays of Rs.4600 and Rs.4800 in the Pay Band PB-2. Clause-8 of the said Scheme, which is also relevant to the present case, reads as follows:-
8. Promotions earned in the post carrying same Grade Pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth CPC's recommendations, Grade Pay of Rs.5400 is now in two Pay Bands viz., PB-2 and PB-3. The Grade Pay of Rs.5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separate Grade Pays for the purpose of grant of upgradations under MACPS. According to the applicants while considering grant of benefit under MACP Scheme, General Manager, Northern Railway vide his letter dated 09/16.08.2010 sought the following clarification from the Railway Board:-
While implementing MACP Scheme, it is noticed that the ASM who had passed selection and promotion as section controller are getting deprived of MACP benefit whereas the ASM who failed in the selection are on beneficial side getting the benefit of MACP. The illustration is given in enclosed annexure.
It is clear from the enclosed annexure that ASM who failed in the selection of section controller is due 3rd MACP in grade pay Rs.4800/- whereas the ASM of the same batch who passed the selection is getting deprived of MACP benefit as a lateral shifting from ASM grade pay Rs.4200/- to Selection Controller grade pay Rs.4200/- is being treated as status promotion as per instructions contained in para-8 of RBE 101/2009. However, when no clarification was received from the Railway Board, General Manager vide his order dated 05.07.2011 granted the benefit of 3rd MACP Scheme to the applicants in the grade pay of Rs. 4800/- w.e.f. 01.09.2008. This upgradation was granted subject to clarification from the Railway Board. Thereafter, Railway Board vide their impugned letter dated 12.07.2011 issued a clarification, which reads as follows:-
With reference to the above, it is stated that the instructions on MACP Scheme are categorical and unambiguous. The same should be strictly adhered to, in terms of Para-8 of annexure to Boards letter dated 10.06.2009 (RBE No.101/2009) promotions earned in the post carrying same Grade Pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPs. Northern Railways decision to decide MACP cases contrary to these instructions is a clear violation of the prescribed policy instructions. It is thus advised that corrective steps to rectify the error may be taken at the earliest and all such MACP cases in future to be decided strictly in accordance with the extant instructions on the subject. The applicants are aggrieved by the clarification given by the Railway Board and have sought quashing of the same.
3. The respondents have not disputed the facts stated above but have emphasized that the clarification issued by Railway Board is in accordance with the provisions of the Scheme and must be upheld. The applicants had cited the judgment of this Tribunal in OA-1002/2009 in the case of Smt. Minakshi Mitra and Ors. Vs. NCTD & Ors. dated 13.08.2009 as well as the judgment of the Honble High Court of Delhi in the case of Grade-I DASS Officers Association Vs. Secretary, Govt. of India & Ors., 148(2008) Delhi Law Times 342(DB) in support of their contention. However, during arguments learned counsel for the applicants agreed that these judgments would not be relevant for the MACP Scheme as they pertain to the ACP Scheme which was earlier in force and which has now been replaced by MACP Scheme.
4. We have heard the learned counsel for the parties and perused the material placed on record.
5. While the General Manager granted the applicants benefit of Clause-5 of the Scheme, the Railway Board has clarified that the cases of the applicants have to be dealt with under Clause-8 of the MACP Scheme. Thus, the issue to be decided is whether Clause-5 or Clause-8 would be applicable for deciding the cases of applicants. Counsel for applicants stated that there is contradiction between Clause-5 and Clause-8 of the Scheme whereas counsel for respondents argued that Clause-5 deals only with ACP cases and not cases of substantive promotions. We are not inclined to accept either of the two view points. In our opinion a mere reading of Clause-5 quoted above would make it clear that it deals with cases in which promotions/upgradations under the ACP Scheme have been earned prior to acceptance of the new pay scales as recommended by the 6th CPC. On the other hand, Clause-8 deals with promotions earned after acceptance of new pay scalea. This is clear from the fact that Clause-8 mentions grade pay in the promotional hierarchy, a concept which was introduced only after acceptance of 6th Pay Commission recommendations. Prior to that there was no provision of grade pay. In the instant case, the contention of the applicants is that in the old pay scales they had earned promotion Rs.5000-8000 to Rs.5500-9000. In our opinion since these two grades have been merged in the revised pay scales and have been put in Pay Band-II with Grade Pay of Rs.4200/- these promotions have to be ignored as per Clause-5 of the MACP Scheme while considering their cases for 3rd upgradation in MACP. If this is not done, then those juniors to the applicants who were still working in the pay scale of Rs.5000-8000 would get placed in the new pay scales in Pay Band-II with Grade Pay of Rs.4200/- and would be entitled to two upgradations under the MACP Scheme to reach Grade Pay of Rs.4800/- whereas applicants would remain entitled to one MACP and would only reach grade pay of Rs.4600/-. Thus, an anomalous situation would be created in which juniors would get more pay than their seniors. Thus Railway Board have erred in giving the clarification vide their impugned letter dated 12.07.2011.
6. Under these circumstances, the O.A. is allowed and the impugned order dated 12.07.2011 of the Railway Board is quashed. The respondents shall consider grant of MACP benefit to the applicants as per Clause-5 of the Scheme within six weeks from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (V. Ajay Kumar)
Member (A) Member (J)
/Vinita/