Central Administrative Tribunal - Mumbai
Smt Vidya Vijaya Sakhare vs Union Of India on 14 February, 2025
1 OA No.50/2024
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
(CAMP AT NAGPUR)
ORIGINAL APPLICATION No.50 OF 2024
Dated this Friday, the 14th day of February, 2025
CORAM :HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
1. Smt. Vidya Vijay Sakhare, aged 58 yrs.,
working in the post of Sr. Nurse Gr.1 in O.F. Hospital,
O.F. Bhandara, R/O, Qtr. No. E/22, O.F.Bhandara,
Jawaharnagar, Bhandara-441906.M. No. 8830402415
E-Mail:[email protected].
2. Smt. Damayanti Ganesh Borkar, aged 51 yrs.,
working in the post of Sr. Nurse Gr.I in O.F. Hospital,
O.F. Bhandara, R/O, Qtr. No. 1/2 Type-IV, O.F.Bhandara,
Jawaharnagar, Bhandara-441906.
3. Smt. Sunita Narendra Gautam, aged 51 yrs.,
working in the post of Sr. Nurse Gr.I in O.F. Hospital,
O.F. Bhandara, R/O, Qtr. No. 7/2 Type-F, O.F. Bhandara,
Bhandara-441906.
4. Smt. Jyoti Rajesh Dungdung, aged 52 yrs.,
working in the post of Sr. Nurse Gr.l in O.F. Hospital,
O.F. Bhandara, R/O, Qtr. No. 7/4 Type-F, O.F. Bhandara,
Jawaharnagar,Bhandara-441906.
5. Smt. Archana Nandkishor Yeole, aged 47 yrs.,
working in the post of Matron in O.F.Hospital, O.F. Bhandara,
R/O, Plot No. 35, Orange Nagar, Wathoda Layout,
Nagpur-440034.
6. Smt. Sunita Dhanraj Chimankar, aged 55 yrs.,
working in the post of Metron in O.F.Hospital, O.F. Bhandara,
Page 1 of 15
2 OA No.50/2024
R/O, Qtr. No. 9/1, Type-G, O.F. Bhandara, Jawaharnagar,
Bhandara-441906.
7. Smt. Pradnya Subhash Khakse, aged 54 yrs.,
working in the post of Sr. Nurse Gr.I in O.F. Hospital,
O.F. Ambajhari, R/O, Plot no. 201, Gajanan Society,
Dutrtawadi, Amraoti Road, Nagpur-440023.
8. Smt. Vandana Dhanraj Tekade, aged 48 yrs,
working in the post of Sr. Nurse Gr. I in O.F. Ambajhari,
R/O, C-5, Forest Society, Katol Road, Nagpur-440013.
9. Smt. Trupty Rahul Mendhe, aged 44 yrs.,
working in the post of PHN in O.F. Hospital, O.F. Ambajhari,
R/O, Plot No. 280, Krishna Palace, Flat No. 102,
Chitnis Nagar, Dighori Road, Nagpur-440024.
10. Shri Vivek Yadavrao Kale,aged 48 yrs.,
working in the post of Radiographer in O.F. Hospital,
O.F. Ambajhari, R/O, F3 Bhaskar Arvind Apartment,
Borkute Lay out, Narendra Nagar,
Nagpur-440024. - Applicants
(By Advocate Shri B.Lahiri)
VERSUS
1. Union of India, through, The Secretary, Ministry of Defence,
Department of Defence Production, New Delhi-110011.
2. Director General of Ordnance (C&S),
10/A, Shaheed Khudiram Bose Road, Kolkata-700 001
(Medical Section).
3. Deputy Director General, Directorate of Ordnance (C&S),
Directorate Field Unit Ambajhari, 1st Floor,
Admin Block, Ordnance Factory, Ambajhari,
Nagpur-440021. -Respondents
(By Advocate Shri Bhaskar D. Pandit)
Page 2 of 15
3 OA No.50/2024
Reserved on 12.02.2025
Pronounced on 14.02.2025
ORDER
Per : Umesh Gajankush, Member (J)
The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 by seeking the following reliefs :
"8.1. Pass an order directing the respondents to grant the benefit of non-functional grade pay of Rs.5400/- to the applicants with effect from the date(s) on which the applicants have completed 4 years regular service in the grade pay of Rs.4,800/- as per Resolution of Ministry of Finance dated 29.08.2008.
8.2. Pass an order directing the respondents to grant all consequential benefits as admissible under the rules upon grant of non-functional grade pay of Rs.5,400/- to the applicants.
8.3. Pass an order directing the Respondents to pay interest @ 12% per annum to the applicants on the arrears as there has been deliberate delay on the part of respondents in granting the entitled benefit to the applicants as soon as they became eligible for the said benefit.
8.4. Grant any other relief deemed fit and proper in the facts and circumstances of the case including costs."
2. MA No.54/2024 (Joint Petition) -
This application has been filed by the applicants stating that they have common grievance and seek common remedy in the matter. Consequently, the applicants have formed a homogeneous Page 3 of 15 4 OA No.50/2024 group to file this single application to seek redressal of their grievance by a common order, therefore, they have prayed for grant of leave to prefer this single application. Considering the submission made in the MA, the aforesaid MA No.54/2024 is allowed.
3. Brief facts of the case are that the applicants are nursing staff of Ordnance Factory Hospital of Ordnance Factory Bhandara and Ordnance Factory Ambajhari, working in Group A / Group B posts. The applicants had individually represented to respondent No.3 to extend the benefit of non-functional upgradation to Grade Pay of Rs.5,400/- (PB-2) on completion of service of four years in Grade Pay of Rs.4,800/- in terms of Government of India's OM dated 29.08.2008.
3(a). That the Government of India introduced the Modified Assured Career Progression Scheme (MACP) which has permitted the next higher Grade Pay on completion of 10, 20 and 30 years of service w.e.f. 01.09.2008. Accordingly, the applicants have been granted financial upgradation under MACP scheme in Grade Pay of Rs.4,800/- on different dates starting from 01.09.2008. 3(b). As per the Government Resolution No.1/1/2008-IC dated 29.08.2008 (Annexure A-2) issued by Ministry of Finance, all Group Page 4 of 15 5 OA No.50/2024 'B' Officers of Department of Posts, Revenue etc. will be granted Grade Pay of Rs.5,400/- in PB-2 on non-functional basis after four years of regular service in the Grade Pay of Rs.4,800/- in PB-2. 3(c). The above-said Resolution dated 29.08.2008 issued by Ministry of Finance speaks about grant of Non-functional Grade Pay of Rs.5,400/- to different cadres under the 6thCPC. Subsequently, the recommendation of the 6thCPC with regard to grant of Non-functional Upgradation to the Grade Pay of Rs.5,400/- stood extended to the 7thCPC as Level 9.
3(d). The applicants have duly completed four years of regular service in Grade Pay of Rs.4,800/- and became eligible for grant of non-functional upgradation to Grade Pay of Rs.5,400/- in terms of the Government Resolution dated 29.08.2008. In this connection, Annexure A-3 is a chart showing the date of entitlement of applicants to non-functional upgradation to Grade Pay of Rs.5,400/-. The applicants, therefore, made individual but identical representations to respondent no. 3. Annexure A-4 is a copy of bunch of representations identically made by applicants. 3(e). In response to the representations made by the applicants, the respondent No.3 gave the applicants a stereo-typed reply intimating Page 5 of 15 6 OA No.50/2024 the applicants that vide MOD ID dated 19.07.2023 and DoO (C&S) letter dated 18.08.2023, it is clarified that "the instruction issued by MOF vide their order dated 27.04.2022 are applicable to the cadre under Central Board of Indirect Taxes and Customs and not applicable to DoO (C&S) and no general instructions has been issued by DoP&T to implement the said order". Therefore, the present OA has been filed.
4. The official respondents have filed their reply and contested the OA. It is stated that theprayer of the similarly placed individuals for granting of Non-Functional Up-gradation to Grade Pay of Rs.5,400/- in respect of Officers on completion of 4 years' regular service in the grade pay Rs.4,800/- was referred to the Administrative Ministry, i.e. Ministry of Defence (Department of Defence Production) for necessary directives on the claim of the applicants.
4(a). In reply Ministry of Defence, vide MoD ID No.13(2)/2023- D(Estt./Gaz) dated 19.07.2023, has intimated that the instructions issued by Ministry of Finance vide their order dated 27.04.2022 are applicable to the cadre under Central Board of Indirect Taxes and Customs and not applicable to DOO (C&S) and no general Page 6 of 15 7 OA No.50/2024 instruction has been issued by DoP&T to implement the said order in respect of other services.
5. We have heard both the learned counsels for the parties and perused the pleadings and documents available on record.
6. During the course of the arguments, the learned counsel for the applicants have submitted that the official respondents have denied the claim of the applicants only on the ground that in this connection, vide MOD ID No.13(2)/2023 (Estt./Gaz) dated 19.07.2023 and DoO (C&S) L.No.DJWM (SG)/REP/Tech-Non-Tech/ GB dated 18.08.2023, it is clarified that "the instruction issued by MOF vide their order dated 27.04.2022 are applicable to the cadre under Central Board of Indirect Taxes and Customs and not applicable to DoO (C&S) and no general instructions has been issued by DOP&T to implement the said order".
6(a). However, it is submitted that this Tribunal in the case of Shri Deepak B. Deshmukh & Others Vs. Union of India and others in OA No.373/2020 decided on 28.03.2024 has categorically considered the claim of the employees of Ordnance Factory. Since the applicants are also the employees of Ordnance Factory and, therefore, they are also entitled for similar relief as has been granted Page 7 of 15 8 OA No.50/2024 by Coordinate Bench of this Tribunal in case of Deepak B. Deshmukh (supra).
6(b). It is submitted that the question of grant of benefit of non- functional upgradation to Grade Pay of Rs.5,400/- (PB-II) on completion of service of four years in Grade Pay of Rs.4,800/- has already been concluded in the judgment passed by the Hon'ble High Court of Judicature at Madras in Writ Petition No.13225/2020 titled M. Subramaniam Vs. Union of India and others up to level of the Hon'ble Supreme Court and following the aforesaid judgment various orders have been passed by the Hon'ble High Court and the facts of the Central Administrative Tribunal.
6(c). Learned counsel for the applicants have submitted that similar nature of claims have been decided by the Hon'ble Supreme Court and other High Courts as well as this Tribunal and other Benches of this Tribunal in a catena of cases, including vide Order/Judgment dated 23.3.2017 passed by the Hon'ble High Court of Delhi in Writ Petition No.2634/2017, titled Somvir Rana &OthersVs. Government of NCT of Delhi and Another, which was upheld by the Hon'ble Supreme Court vide Judgment dated 01.9.2017 (Annexure A-10) in case (Diary No.23663/2017), titled Government Page 8 of 15 9 OA No.50/2024 of NCT of Delhi and Another Vs. Somvir Rana (TGT Eng) and Others.
6(d). As such the stand taken by the respondents in the impugned order is arbitrary, unfair and violative of Articles 14, 16 and 21 of the Constitution of India. He has also submitted that time and again, the Hon'ble Supreme Court observed that the benefit of a judgment cannot be denied to similarly situated employees as held in the case of K.C. Sharma Vs. Union of India and others, reported in 1997 (6) SCC 721, as also in the case of State of Karnataka Vs. C. Lalitha, reported in 2006 SCC (L&S) 447. Thus, the benefits of the judgments rendered by the Hon'ble Supreme Court in M. Subramaniam (supra) and various High Courts as well as of this Tribunal on the very same issue need to be extended to the applicants without any discrimination, whatsoever.
7. On the other hand, on the basis of reply, the learned counsel for the respondents submits that the judgments of Hon'ble Madras High Court and Hon'ble Gujarat High Court and also the decision of various benches of Central Administrative Tribunal are judgments in personam and cannot be said to be judgment in rem and, therefore, the applicants are not entitled for grant of Grade Pay of Rs.5,400/-. Page 9 of 15 10 OA No.50/2024 They further submit that the OA is hit by delay and laches as the OA has been filed belatedly after 11 years.
8. After hearing the learned counsels for the parties and after perusal of the record, we observe that the Hon'ble High Court of Judicature at Madras in the case of M. Subramaniam (supra) held as follows:-
"6. It is not in dispute that the Government of India vide his resolution dated 29.08.2008 granted grade pay of Rs.5400 in pay band 2 on non functional basis to group-B officers of the department of posts, revenue etc. who completed 4 years regular service in grade pay of Rs.4800 in pay bond 2. According to the Petitioner, he has already reached the pay scale of Rs.7500-250-12000 by way of ACP scheme on 01.01.2004 which is corresponding to the pay scale of superintendent of central excise (Group B posts) and therefore on Completion of 4 years he is entitled to the grade pay of Rs.5400 with effect from 01.01.2008. In support of his claim, the Petitioner also relied upon the clarification by central board of excise and customs in letter No. A2601/98/2008- ADIIA, dated 21.11.2008 clarifying that the 4 years period is to be counted from the date of 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 and customs, dated 11.02.2009, wherein, it was clarified that the officers who got the pre revised pay scale of Rs.7500- 12000 (corresponding to the grade pay of Rs.4800) by virtue of financial upgradation under ACP would not be entitled to the benefits of further non functional upgradation to the pre revised pay scale of Rs.8000-13500 (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 the clarification given by the under secretary to government of India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to the Government of India, it was clarified as to how the 4 years Page 10 of 15 11 OA No.50/2024 period is to be counted for the purpose of granting non functional upgradation to group B officers, i.e. whether the 4 years period is to be counted with effect from the date on which the officers 1st placed in the pay scale of Rs.7500-12000 (Pre revised) or effect from 01.01.2006, i.e. the date on which the sixth CPC came in to force. It was clarified that the 4 years period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre revised).
8. Thus if an officer has completed 4 years on 01.01.2006 or earlier, he will be given the non-functional upgradation with effect from 01.01.2006 and if the officer completes 4 years on date after 01.01.2006, he will be given non-functional upgradation from such date on which he completes 4 years in the pay scale of Rs.7500-12000 (pre revised) since the Petitioner admittedly completed 4 years period in the pay scale of Rs.7500-12000, as on 01.01.2008, he is entitled to grade pay of Rs.5400. Infact, the government of India having accepted the recommendations of the sixth pay commission, issued a resolution dated 29.08.2008 granting grade pay of Rs.5400 to the group B officer in pay bond to on non functional basis after 4 years of regular service in grade pay of Rs.4800 in pay Band 2. Therefore, denial of the same benefits 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 the order of the Tribunal.
9. Accordingly, the writ petition is allowed setting aside the order of tribunal, dated 10.04.2010 passed in 0.A. No. 167 of 2009. The Respondents are directed to extend the benefits of grade pay of Rs.5400 to the Petitioner from 1.1.2008 as per the resolution dated 29.08.2010. No costs."
9. The aforesaid Order/Judgment of the Hon'ble High Court of Judicature at Madras has been upheld by the Hon'ble Supreme Court in an appeal (supra), preferred by the respondents therein, Page 11 of 15 12 OA No.50/2024 vide judgment dated 10.10.2017, the relevant paras of the same read as under:-
"We have heard learned counsel for the parties and perused the record.
We do not see any ground to interfere with the impugned order(s). The appeal and also the special leave petitions filed by the Union of India are accordingly dismissed."
10. The Review Petition (supra) in the said appeal (supra) preferred by the respondents therein before the Hon'ble Supreme Court was also dismissed by the Hon'ble Supreme Court vide Judgment dated 23.08.2018 with the following directions:-
"There is a delay of 357 days in filing Review Petition (C) No.2512 of 2018 and 264 days in filing Review Petition (C) No.2519 of 2018.
The challenge to the clarification issued by the Ministry of Finance clarifying that non-functional Grade Pay of Rs.5,400/- would not be granted to such of those officers who had got the Grade pay of Rs.4,800/- on upgradation under ACP Scheme, was accepted by the High Court and the writ petition preferred by the respondent was allowed. While dismissing the special leave petitions 2 filed at the instance of the present review petitioners this court did not find any ground to interfere.
We have gone through the review petitions and do not find any error apparent on the face of record.
These review petitions are, therefore, dismissed both on the ground of delay as well as merits."Page 12 of 15 13 OA No.50/2024
11. The Hon'ble Apex Court in the case of Somvir Rana (supra) while upholding the order/judgment of the Hon'ble Delhi High Court (supra), has observed as under:-
"Delay condoned.
We find that there are several matters in which the aggrieved employees have been going to the Tribunal, then to the High Court and thereafter those matters are brought before this court at the instance of the Union of India/NCT of Delhi.
One the question, in principle, has been settled, it is only appropriate on the part of the Government of India to issue a Circular so that it will save the time of the court and the Administrative Departments apart from avoiding unnecessary and avoidable expenditure.
The present situation is that the stepping up is available only to those who have approached the court. But since the issue has otherwise become final, we direct the Government of India to immediately look into the matter and issue appropriate orders for granting the pay scale so that people need not unnecessarily travel either to the Tribunal or the High Court or this Court.
With the above observations and directions, the special leave petitions are dismissed."
12. This Bench of this Tribunal in OA No.503/2017 titledKumar S.Krishnamurthy and others Vs. Union of India and others decided on 08.10.20218 considered the sameissue in which this Tribunal observed as under:-
"5. It is trite law that once an issue has been decided by the competent Court, the Government being the Model employer should not compel all similarly placed individual employees to approach the Court/Tribunal for grant of the same benefits.Page 13 of 15 14 OA No.50/2024
However, in the present case, the respondents have not only failed and neglected to extend the benefit of the judgment of the Hon'ble Madras High Court in M. Subramaniam (supra) to the applicant, they have passed the impugned order dated 14.09.2015 to the effect that the extension of the benefit of that judgment cannot be extended for others at that stage. In their reply dated 25.04.2018 as noted above, the respondents have said that they are awaiting directions of the Ministry of Finance for implementation of the order/judgment of the Hon'ble Madras High Court for the applicants and the same would be implemented in respect of similarly placed other officers including the applicants. However, till date no such clarification has been received by them. Learned counsel for the respondents submits that the respondents have been awaiting result of the Review Petition filed before the Hon'ble Apex Court which also has been dismissed on 23.08.2018. It may further be noted that though in their reply the respondents have specifically stated that the implementation of the directions of the Hon'ble Madras High Court in M. Subramaniam (supra) shall be made only on receipt of necessary instructions from the Ministry of Finance, even at this belated stage, considering the present OA, the respondents have filed MA No.544/2018 for deletion of Respondent Nos. 1 & 2 from the array of parties. We fail to understand as to how such an MA is maintainable. Accordingly, the MA is dismissed. From the aforesaid, it appears that the respondents have acted in a very arbitrary and discriminatory manner and their action is result of slackness. In the aforesaid facts and circumstances, the OA is allowed with directions to respondents to extend benefit of the judgment of the Hon'ble Madras High Court in OA No.503/2017 M. Subramaniam (supra) to the applicants within six weeks from the receipt of certified copy of this order. No order as to costs."
13. This Bench of the Tribunal as well as various Benches of this Tribunal have considered the similar issue, which were decided on the basis of law laid down by the Hon'ble Supreme Court in the case of M. Subramaniam (supra).
Page 14 of 15 15 OA No.50/2024
14. Issue in respect of grant of aforesaid benefit to the employees of Ordnance Factories was also considered in OA No.373/2020 by the Central Administrative Tribunal in case of Shri Deepak B. Deshmukh (supra) vide its order dated 28.03.2024 and the Coordinate Bench of Tribunal allowed the claim.
15. In view of the above, we direct the respondents to examine each case and grant them pay scale of Rs.5,400/-, if they have completed four years of service in Grade Pay of Rs.4,800/- and, if they satisfy the other eligibility criteria.
16. In view of the aforesaid observations, the Original Application is allowed in terms of above order and directions.
17. Pending MAs, if any, stand closed. No order as to costs.
(Umesh Gajankush) (Shri Krishna)
Member (Judicial) Member (Administrative)
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