Central Administrative Tribunal - Ahmedabad
Ashok Godhandas Israni vs Central Board Of Excise & Custom on 22 September, 2017
(CAT/AHMEDABAD BENCH/OA/246/17) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O. A.No. 246/2017
This the 22nd day of September, 2017
CORAM:
HON'BLE SHRI M. NAGARAJAN, JUDICIAL MEMBER
......
OA 246/2017
Ashok S/o Godhandas Israni,
Male, Aged 55 years,
Presently posted as :
Superintendent of Customs, Kandla,
Residing at
21, Siddha Chaitra Co-op Hsg. Society,
Sabarmati, Ahmedabad - 380 019. ... Applicant
(By Advocate : Shri N.S.Kariel)
Versus
1. The Union of India, Notice to be served through
The Secretary, Ministry of Finance,
Department of Expenditure, North Block,
New Delhi - 110 001.
2. Central Board of Excise and Customs,
Notice to be served through :
The Chairman, CBEC, Ministry of Finance,
Department of Revenue, New Delhi - 110 001.
3. The Department of Personnel and Training,
Notice to be served through :
The Secretary, Department of Personnel
& Training, North Block, New Delhi - 110 001.
4. The Pr. Chief Controller of Accounts,
Central Board of Excise & Customs,
Room No. 107, A.G.C. R. Building,
I.P. Estate, New Delhi - 110 002.
5. The Chief Commissioner of Customs,
'CUSTOM' House, Nr. All India Radio,
Navrangpura, Ahmedabad - 380 009.
6 The Principal Commissioner of Customs.
'CUSTOM' House, Kandla-380009. ... Respondents.
(By Advocate : Ms. F.D.Patel)
(CAT/AHMEDABAD BENCH/OA/246/17) 2
ORDER
Per : Hon'ble Shri M. Nagarajan, Member (Judicial)
1. The applicant in OA is serving as Superintendent of Central Excise and Customs. His grievance in this O.A. against the respondents is that he is entitled to be given the benefit of 3rd financial upgradation under the Modified Assured Career Progression Scheme (MACPs) to the grade of Rs. 6600/-, but the same was denied to him. Instead of granting the 3rd MACP in the grade pay of Rs.6,600/-, he was granted the 2nd MACP at Rs.5,400/-.
2. The Central Board of Excise & Customs (CBEC) by its communication dated 20.6.2016 vide Annexure A/3issued a clarification regarding grant of 3rd financial upgradation under the MACP to the Superintendents who were granted the non functional grade pay of Rs.
5400/- in pay band - 2. The said communication dated 20.6.2016 reads as under:-
"P.No.A-23011/25/2015-Ad.IIA Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs xxxxxxx North Block th New Delhi, the 20 June, 2016 Subject : Clarification on MACP-Grant of 3rd MACP to the Superintendents in CBEC who were granted non-functional grade pay of Rs. 5400/- in Pay Band-2 - reg.
Sir/Madam, I am directed to say that the Board is in receipt of various references / representations from field offices / officers seeking clarifications on the issue of grant of 3rd financial upgradation under MACP Scheme to Superintendents who were granted non-functional grade pay of Rs. 5400/- in Pay Band-2.(CAT/AHMEDABAD BENCH/OA/246/17) 3
2. The matter regarding counting of non-functional Grade pay of Rs. 5400/- in Pay Band-2 to the Superintendents as one financial upgradation for the purpose of MACP Scheme has been re-examined in consultation with Department of Personnel & Training (DoP&T). DoP&T has now advised in consultation with Department of Expenditure that the grant of non functional grade pay of Rs. 5400/- in PB-2 to the Superintendents needs to be counted as one financial upgrdation for the purpose of MACP Scheme. DoP&T has drawn attention to the specific provision in Para 8.1 of Annexure-1 of OM No. 35034 / 3 /2008 - Estt (D) dated 19th May, 2009 read with FAQ No. 16 (copy enclosed) which indicate that the Non functional scale in Grade Pay of Rs. 5400 in PB 2 is to be treated as a financial upgradation under MACP Scheme. DoP&T has also advised that court cases including the case of R. Chandrasekaran may be agitated / defended as per the MACP Scheme vide DoP&T OM dated 19.5.2009.
3. The Board's letter of even number dated 26.05.2015 addressed to Chief Commissioner of Central Excise, Chennai Zone in the case of Shri R. Chandrasekaran has been treated as withdrawn.
4. All Cadre Controlling Authorities are requested to take appropriate action to settle MACP cases accordingly. Also, appropriate action may be taken to defend the cases, emerging out of the case of Shri R. Chandrasekaran, on behalf of Union of India.
5. This issues with the approval of Chairman, CBEC."
3. Being aggrieved by the clarification contained in the above communication dated 20.6.2016, the applicants have presented the instant O.As seeking the following reliefs :
"(A) Be pleased to allow this Application.
(B) Be pleased to quash and set aside Para 8.1 of Annexure 1 of OM No. 35034 / 3 / 2008 - Estt. (D) dated 19th May, 2009 (Annex. A1) and further be pleased to declare the same to be ultra-vires the MACP Scheme as well as the 6th Pay Commission's Recommendations.
(C) Be pleased to quash and set aside Instruction dated 22.06.2015 issued by the Pr. Chief Controller of Accounts CBEC, New Delhi under F.No. Coord. / Expdt. / O.A. 675 of 2013 / 2015-16 at Annx. A2 to this Application.
(D) Be pleased to quash and set aside Clarification being F. No. A - 23011 / 25 2015 - AD IIA dated 20.06.2016 at Annex. A3 to this Application.(CAT/AHMEDABAD BENCH/OA/246/17) 4
(E) Be pleased to declare that the benefit of Non Functional Grade Pay granted to Group B officers cannot be set off against Financial Upgradation under the Modified Assured Career Progression Scheme.
(F). Be pleased to declare that the present applicant is eligible to be granted the benefit of 3rd MACP by way of fixing the pay of the present applicants in PB-3 with pay of Rs. 15600-39100 with Grade Pay Rs. 6600/-.
(G) Be pleased to direct the respondents to grant the benefit of 3rd MACP to the present applicant by fixing his pay at Rs. 15600-
39100/- with Grade Pay Rs. 6600/- in PB-3 with all consequential benefits including arrears of pay.
(H) Be pleased to impose appropriate costs on the respondents.
(I) Be pleased to pass any other or further orders that this Hon'ble Tribunal may deem fit in the facts and circumstances of the present application and in the interests of justice and equity."
4. When the matter is taken up for hearing, on my specific query to Shri N S Kariel as to whether the issues involved in this OA are identical to the issue which was dealt with and disposed of by a Division Bench of this Tribunal by the order dated 28.07.2017 in OA 247/2017, he submits that he will leave it to the Tribunal and the Tribunal may proceed to pass appropriate order.
5 In view of the above submission of Shri N S Kariel, the first question is as to whether this OA can be disposed of in terms of the order dated 28.07.2017 in OA 247/2017 (Bajranglal v/s Union of India). In the process, I have perused the facts stated, grounds urged, the documents annexed thereto and the reliefs sought by the applicant in the above OA and compared the same with the facts stated, grounds urged, the documents annexed thereto and the reliefs sought by the three applicants (CAT/AHMEDABAD BENCH/OA/246/17) 5 in Bajranglal (supra). The relief column in the said OA 247/2017 (Bajranglal) is as under:-
"VIII.A Be pleased to allow the application.
B Be pleased to quash and set aside Para 8.1 of Annexure I of OM No.35034/3/2008-Estt.(D) dated 19th May 2009 (Annex. A1) and further be pleased to declare the same to be Ultra-vires the MACP Scheme as well as the 6th Pay Commission's Recommendations. C Be pleased to quash and set aside instruction dated 22.06.2015 issued by the Pr. Chief Controller of Accounts, CBEC, New Delhi under F.No.Coord/Expdt./O.A.675 of 2014/2015-16 at Annex. A2 to this Application.
D Be pleased to quash and set aside Clarification being F.No. A- 23011/25/2015-Ad IIA dated 20.06.2016 at Annex. A3 to this Application.
E Be pleased to declare that the benefit of Non Functional Grade Pay granted to Group B officers cannot be set off against Financial Upgradation under the Modified Assured Career Progression Scheme. F Be pleased to declare that the present applicants are eligible to the benefit of 3rd MACP by way of fixing the pay of the present applicants in PB-3 with pay of Rs.15600-39,100/- with Grade Pay of Rs.6600/-.
G Be pleased to direct the respondents not to disturb the benefit of grant of 3rd MACP in the pay scale of Rs.15600-39,100/- with Grade Pay Rs.6600/- in PB-3 to the present applicants. H Be pleased to impose appropriate costs on the respondents. I Be pleased to pass any other or further orders that this Hon'ble Tribunal may deem fit in the facts and circumstances of the present applicable and in the interests of justice and equity."
6 The relief column at para-8 in OA 581/2015 is as under:-
"VIII A Be pleased to allow this Application.
B Be pleased to quash and set aside Para 8.1 of Annexure I of
OM No.35034/3/2008-Estt.(D) dated 19th May 2009 (Annex. A1) and further be pleased to declare the same to be Ultra-vires the MACP Scheme as well as the 6th Pay Commission's Recommendations. C Be pleased to quash and set aside Instruction dated 22.06.2015 issued by the Pr. Chief Controller of Accounts, CBEC, New Delhi under F.No.Cood/Expdt./O.A.675 of 2013/2015-16 at Annx. A2 to this Application.
D Be pleased to quash and set aside Clarification being F.No. A-23011/25/2015-Ad IIA dated 20/06./2016 at Annx. A3 to this Application.
E Be pleased to declare that the benefit of Non Functional Grade Pay granted to Group B officers cannot be set off against (CAT/AHMEDABAD BENCH/OA/246/17) 6 Financial Upgradation under the Modified Assured Career Progression Scheme.
F Be pleased to declare that the present applicant is eligible to be granted the benefit of 3rd MACP by way of fixing the pay of the present applicant in PB-3 with pay of Rs.15600-39,100/- with Grade Pay Rs.6600/-.
G Be pleased to direct the respondents to grant the benefit of 3rd MACP to the present applicant by fixing his pay at Rs.15600- 39,100/- with Grade Pay Rs.6600/- in PB-3 with all consequential benefits including arrears of pay.
H Be pleased to impose appropriate costs on the respondents. I Be pleased to pass any other or further orders that this Hon'ble Tribunal may deem fit in the facts and circumstances of the present application and in the interests of justice and equity."
7 A comparison of the relief columns in Bajranglal with that of the reliefs sought by the applicant in the above OA reveal that the reliefs sought by the applicant are nothing but verbatim of the reliefs sought by the applicants in Bajranglal.
8 By the order dated 28.07.2017 a Division Bench of this Tribunal declined to entertain the said OA 247/2017 on the ground that the same would serve no purpose in view of the fact that the issue is pending consideration before the Hon'ble Supreme Court and rejected the same.
The applicants in OA No. 247/2017 were represented by Shri N.S.Kariel.
The contentions urged and argued by Shri N S Kariel in the said OA 247/2017 and the grounds and contentions urged in this OA are similar.
Neither any extra grounds is urged nor any extra relief is sought by the applicant other than the one sought by the applicants in Bajranglal. On perusal of the pleadings, documents annexed thereto and the reliefs sought by the applicant in this OA and comparing the same with that of the facts pleaded, grounds urged and reliefs sought in Bajranglal, I do not find that the facts and circumstances of the case on hand are in no way (CAT/AHMEDABAD BENCH/OA/246/17) 7 different from that of the facts and circumstances of the case in Bajranglal.
9 That in view of the orders of the Hon'ble Chairman dated 20.01.1992 at Appendix III to CAT Rules of Practice, the subject matter of this OA requires to be heard and decided by a Bench of two Members. It is needless to mention that a subsequent Division Bench is bound by the earlier Division Bench judgment of the Tribunal. Even if a subsequent Division Bench forms a different opinion, it can only refer the matter to the Hon'ble Chairman for constituting a Full Bench/Larger Bench, but can't over rule the earlier judgment.
10 I have carefully perused the order of the Hon'ble Chairman dated 20.01.1992 at Appendix III of CAT Rules of Practice. It deals with a situation with respect to a matter coming up for admission/preliminary hearing for the first time. The order at Appendix III do not preclude a Single Member Bench of this Tribunal to dispose of a matter which fall outside the classes of cases mentioned in the schedule to the Appendix I of CAT Rules of Practice, where the facts and circumstances involved and the points/questions to be determined stand on similar footing in all respects. There is no restriction or requirement in the order at Appendix III, for a Single Member Bench to dispose of a matter, the subject matter of which is fully covered by the orders of a Division Bench. Therefore, in such circumstances, the jurisdiction of a Single Member Bench under Section 14 of the Administrative Tribunals Act 1985 does not stand ousted. It is already pointed out that the cases of all the applicants in the above OAs are identical to that of the applicants in Bajranglal. The Advocates who represent the applicant in the above OA and the Advocate (CAT/AHMEDABAD BENCH/OA/246/17) 8 for the applicants in Bajranglal are one and the same. It is also to be noted that even in Bajranglal's case, this Tribunal has not given any specific finding on the issue that arose for consideration in this OA on the ground that the subject matter is seized of by the Hon'ble Supreme Court in the following cases.
(i)SLP No.22181/2014- Union of India v/s Reeta Devi
(ii) SLP No.23333/2014-Union of India v/s Babu Ram & Ors
(iii) SLP No.23335/2014-Union of India v/s. O.P.Bhadhani
(iv) SLP (CC) 10436/2014-Union of India v/s Dhirender Singh &
(v) SLP No.21803/2014 in Union of India v/s M V Mohanan Nair 11 I may further observe that a Division Bench of this Tribunal had an occasion to decide an issue with reference to the judgment of the Hon'ble High Court of Punjab and Haryana in CWP No.19387/2011 (Union of India v/s Rajpal) which is followed by the Hon'ble High Court of Madras in Union of India V/s S Balakrishnan in Writ Petition No.11535/2014 and R Chandrasekharan v/s Union of India in Writ Petition No.19024/2014 and the judgment of Hon'ble High Court of Kerala in OP(CAT) 2000/2013 and dismissed the claim in OA 369/2011 (Shri Hasmukh v/s Union of India). The applicant in the said OA namely Shri Hasmukh B Desai approached the Hon'ble High Court of Gujarat in SCA No.4464 of 2016. A Division Bench of the Hon'ble High Court of Gujarat by its order dated 28.06.2016 was pleased to dispose of the said petition. The relevant portion of the judgment in the said SCA No.4464 of 2016 dated 28.06.2016 is as under:-
"3 At the outset it is required to be noted that the dispute is with respect to grant of benefit of 3rd MACP Scheme w.e.f. 01.11.2011. It is not in dispute that against the judgment and order passed by Kerala High Court, of which reliance was placed by the petitioner, Special Leave Petition is pending before the Hon'ble Supreme Court. Therefore, a such the aforesaid issue is at large (CAT/AHMEDABAD BENCH/OA/246/17) 9 before the Hon'ble Supreme Court and it cannot be disputed that whatever decision of the Hon'ble Supreme Court will bind to all, including the petitioner and the respondent authorities.
4 Under the circumstances and in view of the above, the present petition is disposed of by observing and direct that whatever the outcome of Special Leave Petition (C) No.21813/2014 (CC No.10791/2014) shall be implemented. If the issue is held in favour of the employee the respondent authorities are bound to apply the same in the case of the petitioner and if the issue is held in favour of the Department, in that case, nothing further is required to be done by the Department.
5 With the aforesaid the present petition is disposed of. However, it is observed that in case the issue is held to be in favour of the employee by the Hon'ble Supreme Court, the same benefit be given to the petitioner without in any manner being influenced by any of the observations made in the impugned order."
12 The above portion of the judgment of Hon'ble High Court of Gujarat also comes to the aid of my view that no useful purpose would be served in keeping this OA pending. Thus, by reiterating my view that no purpose would be served in keeping this OA pending in view of the fact that the issues involved in this OA were already dealt with and disposed of by this Tribunal in Bajranglal case (OA 247/2017) (supra), I have no hesitation to dispose of this OA in terms of order dated 28.07.2017 in OA 247/2017 (Bajranglal).
13 The argument advanced and the contentions urged by Shri N S Kariel in Bajranglal were dealt with by a Division Bench and the same can be seen from the orders in Bajranglal commencing from paras 9 to 23 which are extracted hereunder:
Para 9 to 23 in Bajranglal is as under:-
"9 Heard Shri N S Kariel, learned counsel for the applicant. Perused the pleadings and the documents annexed thereto.(CAT/AHMEDABAD BENCH/OA/246/17) 10
10 Initially the matter came up for preliminary hearing on 20.6.2017 and at the request of the learned counsel for applicant, the case was adjourned to 23.06.2017. On 23.06.2017 Shri N S Kariel, the learned counsel for the applicant argued that the applicants are similarly situated persons to that of said Shri S Balakrishnan and Shri R Chandrasekaran. The respondents having taken a conscious decision to implement judgment of Hon'ble High Court of Madras dated 08.12.2014 in R Chandrasekaran (supra) by issuing the letter dated 26.05.2015 vide Annexure A/9, arbitrarily for no reason withdrew the same by the impugned order dated 20.06.2016 vide Annexure A/3. He argued that the judgment in R Chandrasekaran (supra) is a judgment in rem and as such the action on the part of the respondents in restricting the same only to Shri R Chandrasekaran is an arbitrary one. He further pointed out that the view taken by the Hon'ble Madras High Court in S Balakrishnan (supra) came to be confirmed by the Hon'ble Supreme Court in view of the fact that the SLP filed against the judgment in S Balakrishnan came to be dismissed by the Hon'ble Supreme Court by its order dated 31.08.2015 in SLP No.15396/2015 (Annexure A/7). He submitted that in view of the dismissal of the said SLP, it is clear that the issue had attained finality and as such the respondents ought not to have issued the impugned orders dated 20.6.2016 and 22.06.2015 at Annexures A/3 and A/2 respectively. He argued that once the DoP&T and CBEC having accepted the judgment in R Chandrasekaran (supra) and implemented the same, there can be no occasion for them to take a contrary decision that the Non functional scale in grade pay of Rs.5400/- in pay band - 2 is to be treated as a financial upgradation under MACPS.
11 By placing much emphasis upon the judgment of Honble Madras High Court in S Balakrishnan (supra) and R Chandrasekaran (supra), Shri N S Kariel argued that the applicants are absolutely eligible for the benefit of third financial upgradation under MACPS since they are identical and similarly situated persons to that of the said Shri S Balakrishnan and R Chandrasekaran in all respects. Therefore, the clarification dated 20.06.2016 cannot be sustained as it runs counter to the decisions of the Hon'ble Madras High Court in the said cases, he argued and prayed that notice on the OA be issued to the respondents and they be called upon to show cause as to why the clarification dated 20.06.2016 and the consequential letter dated 22.06.2016 respectively at Annexures A/3 and A/2 shall not be quashed and the declaration as well as the directions sought by the applicants shall not be granted.
12 On perusal of the documents annexed to the OA, we are of the opinion that the facts relating to their service particulars including the grant of financial upgradations cannot be disputed. It is already stated that the grievance is as to the order dated 20.02.2016 vide (CAT/AHMEDABAD BENCH/OA/246/17) 11 Annexure A/3 by which certain clarifications were issued relating to the question i.e. "Whether non-functional grade pay of Rs.5400/- in pay band 2 granted to the Superintendents on completion of four years service can be counted as one financial upgradation for the purpose of MACPS?"
The DoP&T and the Ministry of Expenditure having regard to the provisions of the MACPS dated 19.05.1999 clarified/opined and answered the above question in the affirmative. The impugned order dated 20.06.2016 vide Annexure A3 is pursuant to and in terms of the clarification/opinion of the DoP&T and the Ministry of Expenditure. Thus the question to be determined is as to the interpretation of the MACPS and not with reference to any facts.
13 The specific contention of Shri N S Kariel was that the clarification furnished in the impugned order at Annexure A3 is in utter disregard to the judgment of the Hon'ble High Court of Judicature at Madras in S Balakrishnan (supra) and R Chandrasekaran (supra). The reliefs sought in the OA is solely on the strength of the judgment in S Balakrishnan (supra) and R Chandrasekaran (supra). Therefore the question is that whether the judgment in S Balakrishnan (supra) and R Chandrasekaran (supra) attained finality and that whether the respondents are bound by the said judgments. Shri N S Kariel contended.
(i) that the Hon'ble Madras High Court had categorically held that the MACPS envisages placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay band and Grade pay.
(ii) that it is further held therein that the financial upgradation under the scheme will be available whenever an employee has spent ten years in the same grade pay.
(iii) that it is also held therein that the respondents failed to interpret the scheme in a meaningful manner.
(iv) that the Hon'ble High Court of Madras in S Balakrishnan (supra) and R Chandrasekaran (supra) followed the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Union of India v/s Rajpal (CWP No.19387/2011 decided on 19.10.2011).
(v) That the judgment in S Balakrishnan (supra) attained finality in view of the dismissal of the SLP No.15396/2016 against the judgment in S Balakrishnan (supra) on 31.08.2015 by the Hon'ble Supreme Court.
(CAT/AHMEDABAD BENCH/OA/246/17) 12(vi) that the issue is no more res-integra. 14 For the reasons stated hereunder, we are of the opinion that (i) That the issue did not attain finality.
(ii) The Hon'ble High Court of Madras did not give any specific finding on the issue relating to the interpretation of the MACPs.
(iii) The dismissal of the SLP No.15396/2016 against the judgment in S Balakrishnan (supra) does not result in affirmation or confirmation or approval of the view in S Balakrishnan (supra) and the same does not constitute any declaration of law or a binding precedent.
(iv) The views and findings of the Hon'ble High Court of Punjab and Haryana in Union of India v/s Rajpal stands stayed by the Hon'ble Supreme Court,
(v) the issue is sub judice.
(vi) The Hon'ble Delhi High Court upheld a similar clarification issued in consultation with the DoPT and Ministry of Expenditure in the case of Union of India v/s All India CGHS Employees Association and Others (CWP No.8515/2014 decided on 09.11.2016) and certain other cases.
(vii) We are bound by the views and findings of the Hon'ble High Court of Delhi in All India CGHS Employees Association (supra).
15 Whether the Honble High Court of Madras had given any specific finding.
15.1 We have carefully gone through the judgments in S Balakrishnan (supra) and R Chandrasekaran(supra). On going through the judgment in S Balakrishnan (Annexure A/6), we find that the Hon'ble High Court of Madras while dismissing the Writ Petition of the Union of India followed the judgment of Hon'ble High Court of Punjab and Haryana dated 19.10.2011 in the case of Union of India v/s Rajpal in (WP No.19387/2011) as can be seen at the concluding part of the said judgment, which reads as under:-
18 The Central Administrative Tribunal correctly interpreted clauses 8 and 8(1) of the MACPS and quashed the impugned orders and restored the earlier orders granting benefit to respondents 1 to 3. Similar view was taken by the Central Administrative Tribunal, Chandigarh Bench in O.A. No.1038 of (CAT/AHMEDABAD BENCH/OA/246/17) 13 2010 and it was upheld by the High Court of Punjab and Haryana by judgment dated 19 October 2011 in CWP No.19387 of 2011. We are therefore of the considered view that the impugned order does not call for interference by exercising the power of judicial review.
19 In the upshot, we dismiss the writ petition. Consequently, the connected MP is closed. No costs."
15.2 Similarly in R Chandrasekaran (supra) also the Hon'ble High Court of Madras followed the judgment of Hon'ble High Court of Punjab and Haryana in Rajpal (supra). However, in R Chandrasekaran, the Hon'ble High Court did not give a categorical finding as to whether the non-functional Grade Pay can be set-off against financial upgradation under the MACP or not? On the other hand it has remanded the matter to the DoP&T. The operative portion in R Chandrasekaran is as under:-
"15 The Central Administrative Tribunal, Madras Bench issued a direction dated 14 March 2012 in O.A. No.140 of 2012 to the Ministry of Personnel and Training to pass a reasoned order taking into account the representation submitted by the petitioners therein. The Department of Revenue passed a detailed order in the light of the demand made by All India Association of Central Excise Gazetted Executive Officers. The said order clarified the earlier instructions in a limited manner. It is a matter of record that different departments have interpreted the clarification in different manner and the same resulted in this unfortunate situation.
16 The Customs and Central Excise Department has granted benefits of MACP to the employees like petitioner herein without taking into account the financial upgradation given on non- functional scale. The departments have earlier maintained that only functional promotions would be counted for the purpose of extending the benefits of ACPs. The employees were all given benefits by taking a position that there was no provision for counting non-functional scale for the purpose of ACPs. Subsequently, on the basis of further clarification the benefits were all withdrawn. This resulted in filing several original applications before the Central Administrative Tribunal. The Central Administrative Tribunal Chandigarh Bench rejected the contention taken by the respondent in O.A. No.1038 of 2010. The said decision was upheld by the High Court of Punjab and Haryana. Even thereafter several orders were passed by the respondents. We have considered similar writ petitions. In case the concerned departments took earnest efforts to codify all the circulars issued earlier and to issue a fresh circular explaining the (CAT/AHMEDABAD BENCH/OA/246/17) 14 nature and scope of MACPS and as to whether non-functional scale would be counted for the purpose of ACPS, it would be possible to avoid cases like this and future cases that are bound to come. We are therefore of the view that instead of deciding the matter one way or the other it would be in the interest of all the parties to direct the Department of Personnel, Public Grievances and Pensions to look into the issue and to take a decision in the light of MACP Scheme.
17 Since the Central Administrative Tribunal has taken a decision not-withstanding the claim made by the petitioner and in view of our decision to direct the Department of Personnel, Public Grievances and Pensions to consider the issue once again, we set aside the order passed by the Central Administrative Tribunal dated 24 February 2014 in O.A.No.675 of 2013 and remit the matter to the Department of Personnel, Public Grievances and Pensions for fresh consideration. The Department of Personnel, Public Grievances and Pensions is directed to consider the issue in extenso in the light of the provisions of MACP Scheme and the benefits given to the employees like the petitioner to count the non-functional scale for the purpose of ACPS. Such exercise shall be completed within a period of three months from the date of receipt of a copy of this writ petition.
18 The writ petitioner is disposed of as indicated above. Consequently, the connected MP is closed. No costs."
The above portion of the judgment in R Chandrasekaran (supra) reveals that the Hon'ble High Court of Madras did not give a specific finding as to whether the benefits of financial upgradation in the promotional hierarchy under ACP should be given recognition in the revised pay structure. In other words, there is no specific finding as to the question, "whether benefit of non functional grade pay granted can be set off against the financial upgradation under MACPS?"
15.3 We also note that the judgment in S Balarkrishnan (supra) is dated 16.10.2014 whereas the judgment in R Chandrasekaran (supra) is dated 08.12.2014. Both the judgments are delivered by a bench comprising of the very same Hon'ble Judges. The Writ Petition in S Balakrishnan is by the Union of India whereas the writ petition by R Chandrasekaran is by an employee. The Madras Bench of this Tribunal allowed the OA filed by Shri S Balakrishnan whereas dismissed the OA filed by Shri R Chandrasekaran. The Hon'ble High Court in S Balakrishnan by referring to the provisions of MACP, held that the grade pay of Rs.5400/- would not be set off against one (CAT/AHMEDABAD BENCH/OA/246/17) 15 financial upgradation, but the very same bench subsequently did not reiterate the same. On the other hand as already pointed out in the above paragraph, the matter was remitted to the Department of Personnel and Training for fresh consideration. The very fact that the Hon'ble High Court remitted the matter to the Department of Personnel and Training in its judgment in R Chandrasekaran (supra) itself shows that the view taken by them in S Balakrishnan (supra) may not be correct. This is further evident from the judgment in R Chandrasekararan and the relevant portion reads as under:-
"10 We have dismissed the writ petition filed by the respondents herein and confirmed the order passed by the Central Administrative Tribunal. The circulars and instructions given by the Ministry of Personnel, Public Grievances and Pensions and the earlier circular issued by the Central Board and Excise and Customs dated 20 May 2011, the order dated 21 February 2013 on the file of Central Board of Excise and Customs passed pursuant to the direction in O.A.No.140 of 2012 on the file of Central Administrative Tribunal, Madras Bench were not before us while considering the writ petition in W.P. No.11535 of 2014. It was only in the present writ petition the petition and the respondents have produced the classificatory circulars dated 25 February 2011, 20 May 2011 and the order passed by the Central Board of Customs and Excise dated 21 February 2013.
11 We have perused the circulars issued by the concerned authorities and the order dated 21 February 2013 on the file of Central Board of Excise and Customs.
12 We agree with the views expressed by the Central Administrative Tribunal in its order dated 24 February 2014 which is impugned in this writ petition to the effect that there were contradictory circulars issued by various departments by interpreting MACP Scheme"
The above portion of the judgment in R Chandrasekaran (supra) goes to show that the view taken in S Balakrishnan (supra) was neither reiterated nor confirmed/affirmed by the very same High Court.
15.4 It is the specific argument of Shri N S Kariel that though in R Chandrasekaran, the matter was remanded to the DoPT, the view expressed in S Balakrishnan is confirmed by the Hon'ble Supreme Court in view of the fact that the SLP filed against the judgment of Hon'ble High Court of Madras in S Balakrishnan came to be dismissed by the Hon'ble Supreme Court by its order dated 31.08.2015 in SLP No.15396/2015 vide Annexure A/7. Now the question is "whether the order of the Hon'ble Supreme Court dated 31.08.2015 against the judgment in S Balakrishnan (Annexure (CAT/AHMEDABAD BENCH/OA/246/17) 16 A 7) amounts to affirmation or confirmation or approval of the view expressed by the Honble High Court of Madras?"
At this juncture it would be appropriate for us to refer to the orders of Hon'ble Supreme Court of India in the said SLP 15396/2015 vide Annexure A/7, It reads as under:-
"Upon hearing the counsel the Court made the following ORDER Delay condoned.
The special leave petition is dismissed."
15.5 The question as to what would be the effect of dismissal of a SLP in limine by the Hon'ble Supreme Court had come up for consideration before the Hon'ble Supreme Court several times. A Full Bench of the Hon'ble Supreme court in the case of Kunhayammed v. State of Kerala (2000) 6 SCC 359 held as under:
"in any case dismissal would remain a dismissal by a non speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but the SLP. Even if the merits have been gone into, in our opinion neither view would attract Article 141 of the Constitution to the said order."
15.6 Referring to the above principles laid down in Kunhayammed (supra), the Hon'ble Supreme Court subsequently in the case of Bhakra Beas Management Board v. Krishan Kumar Vij and Anr. (2010) 8 SCC 701, held as under:-
"Thus, according to the law laid down by the Bench of three learned Judges of this Court, it is clear that dismissal of a matter by this Court at the threshold, with non-speaking order, would not fall in the category of binding precedent. Meaning thereby that the impugned order of the Division Bench can still be challenged on merits by the appellant Board. Thus, the earlier orders of the High Court and this Court passed in Raninder Singh Patpatias case, creates no bar from re-examining the matter on merits."
15.7 The judgment of the Hon'ble Supreme Court in the case of State of Punjab v, Davinder Pal Singh Bhullar (2014) 1 SCC (L&S) 208 = (2011) 14 SCC 770 also comes in aid to answer to the above point. At paragraph Nos.112 and 113 in SCC (L&S), it is held:
The submission advanced on behalf of the respondents that as the Special Leave Petition filed against the impugned judgment by some other party, stood dismissed by this Court, these matters also have to be dismissed at the threshold without (CAT/AHMEDABAD BENCH/OA/246/17) 17 entering into merit, is not worth acceptance. The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra.
113. A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent."
15.8 In view of the principles laid down by the Hon'ble Supreme court in the cases viz. (i) Kunhayammed(supra), Krishan Kumar (supra) and Davinder Pal Singh Bhullar (supra), we are of the opinion that the submission of Shri N S Kariel that the view/findings of the Hon'ble High Court of Madras in S Balakrishnan has attained finality cannot be countenanced. We have already pointed out in R Chandrasekaran (supra), the Hon'ble High Court after referring its earlier judgment in S Balakrishnan (supra) remanded the matter to the DoPT for its fresh consideration. It did not reiterate its views and findings in S Balakrishnan. Therefore, in view of the judgment in R Chandrasekaran and the law declared by the Hon'ble Supreme Court as to the effect of a dismissal of a SLP in limine, it can be well said that there is no categorical finding of the Hon'ble High Court of Madras relating to the issue as to "whether the benefit of non functional grade pay on completion of four years can be set off against one financial upgradation under the MACP or not?"
mainly for the reason that there is no reiteration of its earlier judgment in S Balakrishnan (supra). For the reasons stated at para 15.1 to para 15.8, we hold:
(i) That the issue did not attain finality.
(ii There is no categorical finding as to the issue in question.
(iii) The dismissal of SLP against the judgment in S Balakrishnan (supra) does not result in affirmation/confirmation or approval.(CAT/AHMEDABAD BENCH/OA/246/17) 18
16 Whether the judgment of the Hon'ble High Court of Punjab and Haryana in Rajpal (supra) stands stayed?
16.1 The entire claim of the applicants in this OA is based on the judgment in S Balakrishnan (supra) and R Chandrasekaran (supra). It is already pointed out that in S Balakrishnan (supra), the judgment of Chandigarh Bench of this Tribunal in O.A.No.1038/2010 (Rajpal v. Union of India) came to be upheld by the Hon'ble High Court of Punjab and Haryana by its judgment dated 19.10.2011 in CWP No. 19387 of 2011 (Union of India v/s Rajpal). We may also add, that the SLP No.7467/2013 preferred against the judgment of Hon'ble High Court of Punjab and Haryana in Rajpal (supra) was dismissed by the Hon'ble Supreme Court by its order dated 15.04.2013. But, not on merits. It is only on the ground of delay and laches in limine.
16.2 At this juncture it would also be necessary for us to refer to the fact that an identical matter to that of Rajpal (supra) came up for consideration before the Ernakulam bench of this Tribunal in OA 816/2012 (M.V.Mohanan Nair v/s Union of India). By placing reliance on the orders of Chandigarh Bench dated 31.05.2011 in OA 1038/CH/2010, which was affirmed by the Hon'ble Punjab and Haryana High Court dated 19.10.2011, the Ernakulam Bench allowed the OA No.816/2012 of Shri M V Mohanan Nair (supra). As against the order in M V Mohanan Nair, the Union of India approached the Hon'ble High Court of Kerala in OP (CAT) 2000 of 2013. The Hon'ble High Court of Kerala by its judgment dated 24.06.2013 was pleased to dismiss the said OP(CAT) 2000/2013. The Union of India preferred SLP (C) No.21813/2014 (CC No.10791 of 2014) against the judgment of Hon'ble High Court of Kerala in OP (CAT) 2000/2013, and the Hon'ble Supreme Court by its order 08.08.2014 stayed the operation of the orders of Hon'ble High Court of Kerala in M V Mohanan Nair and the same is pending consideration before the Hon'ble Supreme Court. Thus it is clear that the original finding of Chandigarh Bench of this Tribunal in OA 1038/2010 Rajpal Supra which was confirmed by the Hon'ble High Court of Punjab and Haryana and was followed by the Hon'ble High Court of Madras in S Balakrishnan and the Hon'ble High court of Kerala in M V Mohanan Nair is seized of by Hon'ble Supreme court in SLP No.21803/2014 and the same stands stayed.
16.3 We would also like to mention about an order of the Bangalore Bench of this Tribunal dated 14.10.2015 in OA 896/2014 in the case of N Pushpa v/s The Director General, C.P.W.D. It would be appropriate to quote the relevant portion of the order in N Pushpa (supra). It reads as:
"1. The OA has been filed by the applicant under S19 of the Administrative Tribunals Act, 1985, seeking issuance of direction to the respondents to pass orders granting 2nd (CAT/AHMEDABAD BENCH/OA/246/17) 19 financial upgradation under the MACP Scheme in the promotional hierarchy of post with effect from the date the same has become due with all consequential benefits. 2 The learned counsel for the applicant has relied upon the judgment of the Punjab & Haryana Court in CWP No.19387/2011 as upheld by the apex Court in SLP (CC No.7467/2013). The applicant has also relied upon the order in OA No.864/2014 dated 12.03.2014 , decided by the CAT, Principal Bench, New Delhi relying upon the judgment in Rajpal Vs. Union of India & Ors. of the Punjab & Haryana High Court in CWP No.19387/2011.
3. ........
4 It has further been pointed out by the learned counsel for the respondents that with regard to the specific case of Rajpal (supra), that the judgment of CAT Principal Bench as well as that of Punjab & Haryana High Court was not considered on merits. The said SLP was dismissed due to technical reasons on account of insufficient explanation to condone the delay in re-filing the SLP. It has also been pointed out that the order of CAT, Principal Bench, New Delhi in another OA No.904/2014, in a similarly situated case, has also not attained finality and has also been challenged by the respondents before the Honble High Court of Delhi wherein vide order dated 26.07.2013, it has been held that the decision in Rajpal's case has prima-facie proceeded on a wrong presumption.
5 Be that as it may, today the OA was orally heard and reserved for orders. It is now known that the Hon'ble Supreme Court has granted stay in similar matter of grant of MACP on promotional hierarchy SLP Civil (CC) No.10435 of 2014 in Union of India v. Babu Ram & Ors. Arising out of the impugned order dt. 07.11.2013 in CWP No. 24279/2013 passed by the Hon'ble High Court of Punjab & Haryana, Chandigarh. The Hon'ble Supreme Court has condoned the delay, issued notice and stayed the operation of the impugned orders and directed that it may be tagged with SLP No.22181/2014 CC-8271/2014 vide order dt. 22.08.2014.
6 The Hon'ble Supreme Court has also recently granted stay vide order dated 08.08.2014 in CC No.8271/2014 converted to SLP No.21803/14 in the matter of Union of India v. M V Mohanan Nair on the order of CAT, Ernakulam Bench dt. 29.01.2013 in OA 816.2012, which was subsequently upheld by the Hon'ble High Court of Kerala in OP (CAT) No. 2000/2013 regarding grant of MACP benefit in promotional hierarchy. The Hon'ble Supreme Court has tagged the three other SLPs filed by Union of India in SLP No.s 21803/2014 in an identical matter. The three SLPs are (1) 22181/14 filed by (CAT/AHMEDABAD BENCH/OA/246/17) 20 Union of India v. Reeta Devi, (2) SLP No. 23333/2014 filed by Union of India v. Babu Ram and Ors. And (3) SLP No. 23335/2014 filed by Union of India v. O.P.Bhadani. Another SLP CC 10436 of 2014 in UOI v. Dhirender Singh and Ors. Is also linked with above SLP 23333 of 2014.
7 From the above, it is clear that subsequent to the judgment in Rajpal's case (supra), a number of cases on the same subject have got linked, in which a stay is operating on the basis of the orders off Hon'ble Supreme Court.
8 In view of the above, the outcome in the present OA will be subject to the outcome in the above SLPs.
9 With this observation, the OA is disposed of. No cost."
The above orders of the Bangalore Bench in N.Pushpa (supra) confirms our view that the issue is subjudice and the judgment in Rajpal (supra) stands stayed.
17 Initially when the matter came up for hearing on 23.6.2017 and referring to these facts (except the order in N Pushpa), we have put a specific query to Shri N S Kariel as to whether would it be appropriate for us to entertain the OA since the claim of the applicant is only on the strength of the judgment in S Balakrishnan (supra), Shri N S Kariel submitted that he may be granted some time to examine the same and requested for an adjournment. Accordingly, the matter was adjourned from 23.06.2017 to 07.07.2017.
18 On 07.07.2017, Shri N S Kariel vehemently argued that in view of the fact that the judgment in S Balakrishnan (supra) has attained finality and the applicants being similarly situated persons to that of Shri S Balakrishnan (supra) they are entitled for the reliefs sought by them in the OA. To our yet another specific query as to how the claim of the applicants can be entertained in view of the fact that the judgment in Rajpal came to be stayed by the Hon'ble Supreme Court in the said SLP No.21803/2014, he submitted that he is only relying upon the judgment in S Balakrishnan (supra) and R Chandrasekaran (supra) and the orders of the Hon'ble Supreme Court dated 31.08.2015 (Annexure A/7), by which the SLP preferred against the judgment in S Balakrishnan (supra) was dismissed. He submitted that M V Mohanan Nair can have no relevance with regard to the claim of the applicant. We are not in agreement with the submission that Mohanan Nair has no relevance. On the other hand, we hold that Mohanan Nair has direct nexus.
19 Conflicting views of different High Courts on the issue in question. The specific contention of Shri N S Kariel is that the non (CAT/AHMEDABAD BENCH/OA/246/17) 21 functional grade pay granted to the applicants cannot be set off against the grant of financial upgradation under MACP. To meet this argument, it would be appropriate for us to refer to the findings and views of the Honble High Court of Delhi in this regard. The question as to the validity of the clarification issued by the DoPT under the MACP scheme i.e. as per the provisions of MACPS, every financial upgradation under the scheme has been treated as one upgradation and would be offset against one financial upgradation came up for consideration before the Principal Bench of this Tribunal in OA 3441/2012 in the case of All India CGHS Employees Association & Ors v/s. Union of India and Ors. The Principal Bench of this Tribunal upheld the contention of the All India CGHS Employees Association and held that the financial upgradation granted to the CGHS employees after completion of two years cannot be treated as one financial upgradation under MACP. As against this, the Union of India challenged the order of Principal Bench dated 31.01.2014 in the said OA 3441/2012 in WP (C) No.8515/2014 on the file of the Honble High Court of Delhi at New Delhi. By quoting the relevant provisions of the MACP scheme and on a detailed analysis of the said scheme, the Honble Delhi High court held that once an employee has got the benefit of time bound promotion or in-situ promotion and has got the higher pay scale, the same has to be counted for the purpose of financial upgradation under the scheme.It would be appropriate for us to refer to para-15 of the judgment which reads as under:-
"15 Paragraph 13 of the MACP Scheme states that existing time- bound promotions, including in-situ promotion scheme or other kinds of promotion schemes existing for a particular category of employees in the Ministry of Department or its offices could continue to be operational if it was decided by the administrative authority to retain such schemes after consultation. However, the said scheme cannot run concurrently with the MACP Scheme. This stipulation is significant for it postulates that the employees cannot get dual benefit under the MACP Scheme or under the scheme relating to time-bound promotion or in-situ promotion. The reason is also obvious. Paragraphs 1 and 2 of the Scheme postulate grant of three financial upgradations after ten years of service, as per the pay band and grade pay as given in Section I, Part A to the First Schedule. Once an employee has got the benefit of time-bound promotion or in-situ promotion and has got the higher pay scale, the same has to be counted for the purpose of financial upgradation under the MACP Scheme."
The above portion of the judgment of Hon'ble Delhi High Court in All India CGHS Employees Association (supra) in (WP (C) No.8515/2014 dated 9th November, 2016) runs counter to the view of the Honble High Court of Punjab and Haryana and in Rajpal (supra) which is followed by the Hon'ble High Court of Madras in S Balakrishnan.
(CAT/AHMEDABAD BENCH/OA/246/17) 2220 Where there exists conflicting views and how to deal with such a dilemma was dealt with by a Full Bench of this Tribunal in OA 555/2001 in (Dr. A K.Dawar v. Union of India and others) on the file of the Principal Bench of this Tribunal. In Dr A D Dawar (supra), the Principal Bench was considering the situation arising out of conflicting decisions of Honble High Courts. It referred to the decisions in M/s East India Commercial Co. Ltd., Calcutta and Another v. Collector of Customs, Calcutta, (AIR 1962 SC 1893), Bhagaban Sarangi (supra) IPCL and Another v. Shramik Sena [(2001) 7 SCC 469] and Director General (I&R) v. Holy Angels Schools, [1998 CTJ 129 (MRTPC)], and it held as under:-
"17. Consequently, we hold:-
1. that if there is a judgment of the High Court on the point having territorial jurisdiction over this Tribunal, it would be binding;
2. that if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, this Tribunal would be bound by the decision of that High Court;
3. that if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding, and
4. that if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgment in the case of Indian Petrochemicals Corporation Limited (supra), this Tribunal would be free to take its own view to accept the ruling of either of the High Courts rather than expressing third point of view.
21 Thus, in view of the decision of the Full Bench in A K Dawar (supra), and by following the judgment in Indian Petrochemicals Corporation Limited (supra), we are free to take our own view to accept the rulings of either of the Hon'ble High Courts of Delhi or the Hon'ble High Court of Madras. At this juncture, we may observe that as already pointed out that though the Hon'ble High Court of Madras in R Chandrasekaran set aside the order of the Tribunal and did not reiterate its findings in S Balakrishnan, on the other hand it remanded the matter to DoPT; whereas on going through the judgment of the Hon'ble Delhi High Court in WP (C) No. 8515/2014 one can find that the Hon'ble High Court has extensively analyzed the MACP scheme and categorically held as "that once an employee has got the benefit of time bound promotion or in-situ promotion and have got the higher pay scale, the same has to be counted for financial upgradation under the MACP Scheme."
(CAT/AHMEDABAD BENCH/OA/246/17) 23The judgment in Rajpal (supra) of the Hon'ble High Court of Punjab and Haryana stands stayed by the Hon'ble Supreme Court. Therefore, in view of the guidelines in the Full Bench of this Tribunal in A K Dawar (supra), we follow the rulings of Hon'ble High Court of Delhi in WP (C) 8515/2014. However, we would like to mention that this view is pending consideration before the Hon'ble Supreme Court in M V Mohanan Nair (supra) and other four connected SLPs namely
(i) SLP No.22181/2014- Union of India v/s Reeta Devi
(ii) SLP No.23333/2014-Union of India v/s Babu Ram & Ors
(iii)SLP No.23335/2014-Union of India v/s. O.P.Bhadhani
(iv)SLP (CC) 10436/2014-Union of India v/s Dhirender Singh 22 For the foregoing, we are of the opinion that judicial discipline demands that we shall not entertain the OA mainly for the following reasons:-
(i) that the point that arises for consideration is pending consideration before the Hon'ble Supreme Court in the said (a) SLP No.21803/2014 in Union of India v/s M V Mohanan Nair (supra) and other five SLPs mentioned in the above paragraph.
(ii) that the judgments of the Hon'ble High Court of Punjab and Haryana in which Rajpal (supra) was upheld are stayed by the Hon'ble Supreme Court;
(iii) there exists conflicting views of different high courts.
(iv) We follow the ruling of the Hon'ble Delhi High Court.
23 Accordingly we decline to entertain the OA since the same would serve no purpose, particularly in view of the fact that the issue is pending consideration before the Hon'ble Supreme Court and the findings in Rajpal (supra) stands stayed by the Hon'ble Supreme Court. The OA stands rejected. There shall be no orders as to costs."
14 Resultantly, the OA is disposed of in terms of the above order dated 28.07.2017 in OA 247/2017 Bajranglal (supra).
15 There shall be no order as to costs.
(M.Nagarajan) Judicial Member abp (CAT/AHMEDABAD BENCH/OA/246/17) 24 (CAT/AHMEDABAD BENCH/OA/246/17) 25 (CAT/AHMEDABAD BENCH/OA/246/17) 26 (CAT/AHMEDABAD BENCH/OA/246/17) 27