Central Administrative Tribunal - Ahmedabad
Vijay Mohandas Gawada vs Central Excise And Customs on 13 February, 2025
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No.274 of 2023
Dated, this the 13th February, 2025.
CORAM : Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Vijay Mohandas Gawada
S/o. Mohandas Gawada
Aged about 52 years, Male
Resident of : Ramayan Nagar, E- Building Flat No.301,
Nr. Dassera Maidan, Ulhasnagar,
Thane, Maharashtra - 421 002. ............... Applicant
(By Advocate: Shri Prithu Parimal)
VERSUS
1) Union of India
Notice to be served through:
The Secretary, Dept. Of Revenue
Ministry of Finance,
North Block, New Delhi - 110001
2) The Chairman
Central Board of Excise & Customs,
North Block,
New Delhi. 110001.
3) The Chief Commissioner, CGST
CGST Bhavan, Near Polytechnie,
Ambawadi, Ahmedabad-380015.
4) The Commissioner, CGST
Plot No.67-76/B-1, "Siddhi Sadan"
Narayan Upadhyay Marg,
Bhavnagar - 364002. .............................. Respondents
(By Advocate: Shri H.D.Shukla)
2 OA No.274/2023
O R D E R (ORAL)
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
Being aggrieved by the inaction on the part of the respondents by not granting the benefits of Non-Functional Upgradation to the Pay Level-09 i.e. in the Grade Pay of Rs.5400/- in Pay Band-II with effect from 01.09.2012 along with all consequential benefits, the applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(A) This Hon'ble Tribunal be pleased to direct the Respondents to issue a fresh pay fixation order granting non-functional upgradation to the level-09 (prevised grade pay of Rs. 5400/- in P.B.-II) w.e.f.
01.09.2012 along with all consequential benefits to the applicant.
(B) This Hon'ble Tribunal be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require and in the interest of justice."
2. Brief facts of the case as stated by the applicant are as under:-
2.1 The applicant joined the service as direct recruit Inspector under the respondents on 11.12.1997 in the Pay Band of Rs.6500-10500/- with Grade Pay of Rs.4600/- in Pay Band-II.
2.2 Thereafter, the applicant was granted the benefits of 1st financial upgradation under MACP in the Pay Band of Rs.9300-34800/- in the Grade Pay of Rs.4800/- w.e.f. 01.09.2008 vide Establishment Order No.32/2010 dated 06.08.2010.
2.3 As per the recommendation of the 6th CPC, on completion of four years of service in the Grade Pay of Rs.4800/-
w.e.f. 01.09.2008, the applicant was eligible for grant of benefits of 2nd financial upgradation under the Grade Pay 3 OA No.274/2023 of Rs.5400/-. However, the said benefit was not extended to the applicant.
2.4 Thereafter, the applicant was promoted regularly to the post of Superintendent vide Establishment Order No.85/2012 dated 28.09.2012 and was granted the Grade Pay of Rs.5400/- w.e.f. 28.09.2016 on completion of four years of regular service in the Grade Pay of Rs.4800/-.
2.5 It is stated that 6th CPC was introduced and brought into force w.e.f. 01.01.2006 for revision of pay of persons appointed to the civil services and posts in connection with the affairs of the Union by framing the Central Civil Services (Revised Pay) Rules, 2008. Further, it is stated that by these rules, a complete revised pay structure of Pay Band and GP specified against each post or the Pay-scale specified in the column had been provided. Section II of Part-C provides revised pay structure qua Income Tax officers/Superintendent, Appraisers etc. (Customs and Central Excise) as under:
Sl. Post Present Revised Pay Corresponding Para No. Scale scale Pay Band & No. Of Pay Grade Grade the Band Pay Report 9 Income Tax 7500- 7500- PB-2 4800 7.15.17 Officers/ 12000 12000 Superintendent, Appraisers etc. (Customs & Central Excise) 8000- PB-2 5400 13500 (after 4 years) Further, by referring the aforesaid, the applicant has pleaded that there was a specific mandate for grant of Grade Pay of Rs.5400 in PB-2 after completion of four years in Grade Pay of Rs.4800 in PB-2. Accordingly, officers of Customs and Central Excise department, who 4 OA No.274/2023 completes four years in GP Rs.4800/- became entitled to receive NFG in GP Rs.5400/. The applicant herein as such completed 04 years of service in GP of Rs.4800/- long back since he was granted 1st financial upgradation under the benefits of MACP benefit in the Grade Pay of Rs.4800/- w.e.f. 01.09.2008.
2.6 The applicant herein had also completed 4 years of regular service in Grade Pay of Rs. 4800/- in PB-2, hence, he also became entitled for grant of Grade Pay of Rs.5400/- in PB- 2 with effect from the date of completion of 4 years service in Grade Pay of Rs. 4800/-, but the same was denied by the respondents.
However, despite the said rule position, the respondents denied the benefit of Grade Pay to the eligible Officers by relying upon the clarifications dated 11.02.2009 and 16.09.2009, wherein it was clarified that the Non-Functional Grade Pay of Rs. 5400/- in PB- 2 will not be granted to those Officers who have got Grade Pay of Rs.4800/- on financial upgradation under Modified Assured Career Progression Scheme (hereinafter referred to as 'MACP Scheme').
2.7 Further, the said issue of denial of grant of benefit of NFG in Grade Pay Rs.5400/- came up before the Hon'ble Madras High Court in case of M. Subramanian Vs. Union of India in WP No. 13225/2010 and the same was decided by the judgment dated 06.09.2010 (Annexure A/4 refer) inter-alia holding that four years period is to be counted with effect from the date on which an officer is placed in the Grade Pay of Rs. 4800/-.
2.8 The aforesaid order of the Hon'ble Madras High Court was challenged by the Respondents by way of Civil Appeal 5 OA No.274/2023 No. 8883 of 2011 before the Hon'ble Supreme Court. The Hon'ble Apex Court while dismissing the said Civil Appeal vide judgment dated 10.10.2017 (Annexure A/5 refer) upheld the judgment rendered by the Hon'ble High Court of Madras holding that the Grade Pay of Rs.5400/- has to be granted on completion of four years of continuous service in the Grade Pay of Rs. 4800/-, irrespective of fact that the Grade Pay of Rs.4800/- was granted by way of promotion or ACP/MACP.
2.9 Thereafter, the Respondents had preferred a Review Petition (Civil) No.2512 of 2018 seeking review of judgment dated 10.10.2017 in Civil Appeal No.8883 of 2011 before the Hon'ble Supreme Court, which was also dismissed on merits as well as on delay by the Hon'ble Supreme Court vide judgment dated 23.08.2018 (Annexure A/6 refer) and thus, the decisions qua grant of Grade Pay of Rs. 5400/- as postulated in the Civil Appeal No. 8883 of 2011 by the Hon'ble Supreme Court as well as by the Hon'ble Madras High Court in Judgment dated 06.09.2010 passed in WP No. 13225/2010 has attained finality.
2.10 It is also stated that a group of 25 Officers had filed OA No.310/2017 before this Tribunal for issuance of direction for grant of benefit of Grade Pay of Rs.5400/- in PB-II upon completion of four years of service in Grade Pay of Rs.4800/-. However, the said OA was dismissed by this Tribunal vide Order dated 26.07.2017.
Being aggrieved the said applicants approached the Hon'ble High Court of Gujarat by way of a petition being SCA No.346/2018.
6 OA No.274/2023The Hon'ble High Court by considering the decision of the Madras High Court and the same was confirmed by the Hon'ble Supreme Court, vide Judgement dated 10.10.2017, the said SCA No.346/2018 has been allowed by Hon'ble High Court vide judgment dated l0.04.2018 (Annexure A/6 refer) and had directed the respondents to implement the decision of the Hon'ble Apex Court and grant the benefit of Grade Pay of Rs.5400/- to the applicants therein.
2.11 In light of the above mentioned judicial pronouncements, it was incumbent upon the respondents' department to extend the benefit of the same to the similarly placed persons without insisting for judicial order in each case, however, respondents' department have followed the verdict only qua those who obtained orders from the Court of Law.
2.12 It is stated that as decided in the meeting held on 17.11.2017 at Zonal level, CGST CE, Vadodara Zone, to call for representations from individuals seeking benefit of NFG, the applicant made his representation on 31.01.2023 for grant of NFG in Grade Pay of Rs. 5400/- from his due date and revision of his pay accordingly as he was serving there at that time (Annexure A/8). Hence, this OA.
3. Learned counsel for the applicant mainly argued that :-
3.1 The entire controversy related to grant of NFG in Grade Pay Rs. 5400/- is settled by the Hon'ble Supreme Court by dismissing the appeal preferred by the Respondents' Department challenging the direction to grant the Grade Pay of Rs. 5400/- to persons like the present applicant.7 OA No.274/2023
Further, it is submitted that in SCA No.346/2018, SCA No.19273/ 2018 and SCA No.102/ 2019 the Hon'ble High Court of Gujarat has held that persons identically placed to the applicants therein could not be denied the benefit of Grade Pay of Rs. 5400/-. Thus, the legal issue involving the legality of grant of Grade Pay of Rs. 5400/- has already been settled and has attained finality. Therefore, denying benefit only on the ground that he doesn't have order of the Court of Law is highly condemnable and is required to be viewed very seriously by this Tribunal.
3.2 The conduct the Respondents' Department deserves to be strictly deprecated as the action on part of the Respondent Department to grant benefit only to the litigants is in direct violation of the decision of the Hon'ble Supreme Court and the decision of the Ministry of Finance to extend the benefit to eligible Officers and which is so implemented. Thus, order extending benefit passed in light of some instructions of the department can never be cancelled or withdrawn merely because applicant does not have any judicial order, which is not required at all.
3.3 It is submitted that the respondents failed to consider the fact that the very issue about entitlement of receipt of NFG Grade Pay of Rs.5400/- to Group 'B' employees who have competed 4 years of service in Grade Pay Rs.4800/- irrespective of the said Grade Pay of Rs.4800 was granted by way of ACP/MACP Schemes had been considered by the Hon'ble Madras High Court which was affirmed by the Hon'ble Apex Court. Not only that subsequently, the Hon'ble High Court of Gujarat vide judgment dated 10.4.2018 in SCA No.346/2018 directed the respondents to grant the benefit of fixation of Grade Pay Rs.5400/- in 8 OA No.274/2023 PB-II considering the decision of the Hon'ble Madras High Court in the case of M. Subramanimum (supra) confirmed by the Hon'ble Apex Court with all consequential and ancillary benefits to the respective petitioners. Therefore, it is not open for the respondents to say that the judgment passed by the Hon'ble Madras High Court is not applicable in the case of the applicant.
3.4 Further, it is not correct on the part of the respondents to insist and demand separate order passed by the Court in favour of the applicant for the purpose of grant of NFG in Grade Pay Rs.5400/- in PB-II. As such, the said stand of the respondents runs contrary to the dicta laid down by the Hon'ble Supreme Court as well as Hon'ble various High Courts.
3.5 In this regard, learned counsel would also argue that the law laid down by the Hon'ble Apex Court with regard to decisions being considered to be 'in- rem' is quite clear and do not support the stand of the respondents, more particularly, in light of the judgment passed by the Hon'ble Supreme Court in M. Subraminimum's case (supra) and the same cannot be treated as decision in personam.
In support of the aforesaid submissions, learned counsel for the applicant has placed reliance upon the judgments passed by the Hon'ble Supreme Court dated 17.10.2014 in Civil Appeal No. 9849 of 2014, in the matter of State of Uttar Pradesh & Ors vs. Arvind Kumar Srivastava & Ors., as also the judgment dated 1.9.2017 passed in SLP(C) No. 23742 of 2017 (Government of NCT Delhi & another vs. Somvir Rana (TGT ENG) & Others).
9 OA No.274/20234. Per contra, although Mr. H.D.Shukla, learned counsel for the respondents has not disputed the factual aspect of the case, as noted above, however, it is submitted that as per the OM dated 15.04.2021 issued by the Ministry of Finance, Department of Expenditure, the applicant had made a request vide his representation dated 31.01.2023 (Annexure A/8) to grant the Grade Pay of Rs.5400/- in PB-2 after completion of four years on regular service w.e.f. 01.09.2012.
4.1 Learned counsel also referred to the Board's letter dated 07.04.2021 (Annexure R-11) which is regarding extension of benefit in respect of non-petitioners/similarly placed officers with respect to order of Hon'ble Madras High Court dated 06.09.2010 in WP No. 13225/2010. Para 5 of the said letter provides as under:
"Keeping in view the fact that Hundreds of CAT/ Court cases are pending throughout India seeking benefit of M. Subramaniam case, the matter of extending the benefit of Order dated 06.09.2010 of the Hon'ble High Court of Judicature at Madras in W.P. No.13225 of 2010 in the case of M. Subramaniam to all similarly placed officers has been examined in the Board. Department of Expenditure has not agreed to the proposal of the Department to extend the benefit of the said judgement to all similarly placed officers. However, the Court judgements which are passed by placing reliance on the M. Subramaniam case are forwarded to the Board for further directions in so far as implementation of such CAT/Court orders are concerned."
4.2 Lastly learned counsel for the respondents argued that in the above background of the case, the applicant is not eligible for grant of Grade Pay of Rs. 5400/- in PB-2 w.e.f. 01.09.2012, as the applicant was regularly promoted to the post of Superintendent in the pay scale of Rs.7500-12000 in PB-2 with Grade Pay of Rs.5400 vide Order dated 28.09.2012 w.e.f. 28.09.2016.
5. Mr. Prithu Parimal, learned counsel for the applicant besides reiterating the contentions as raised in the OA, additionally, it has 10 OA No.274/2023 been submitted that the issue involved in this case is no more res integra in view of the following judgments:
I. Judgment dated 15.6.2021 passed by the Hon'ble High Court of Gujarat in SCA No.1892/2021 in the matter of Pradeep Kumar Pandey vs. Union of India;
II. Judgement dated 29.3.2022 of the Hon'ble High Court of Gujarat in SCA No.10710/2021 in the matter of Praveen K. Gokhroo vs. Union of India;
III. Judgment dated 24.3.2009 of the Hon'ble High Court of Gujarat in SCA No.1314/2009 in the matter of Vipulkumar Atmaram Parekh and others vs. State of Gujarat through Secretary and others, reported in Gujarat Law Reporter Vol.50 (5) 3914;
IV. Common order/judgment dated 18.12.2019 of this Bench of the Tribunal in OA No.467/19 and other connected cases, in the matter of Rajesh Kumar Sharma vs. Union of India and others; and V. Order/Judgment dated 13.10.2023 of this Bench of the Tribunal in OA No.403/23 in the matter of Shanker Parmar vs. Union of India and others.
6. The learned counsel for the respondents further submitted that judgment rendered by the Hon'ble Supreme Court in the case of M. Subramanian (supra) was implemented in personam and not to be quoted as a precedent as the said judgment had been accepted by the Department in personam and the same cannot be made applicable to similarly situated persons.
7. In rebuttal, besides reiterating, learned counsel for the applicant has placed on record the judgment dated 11.3.2019 passed by the Hon'ble High Court of Gujarat in SCA No.102 of 2019 in the matter of Anil Kanawal Gidwani vs. Union of India as also the final 11 OA No.274/2023 order/judgment dated 12.10.2023 passed by this Bench of the Tribunal in OA No.403/2022 and contended that applicant's case is also squarely covered by the said decisions and the present OA may be allowed on the same terms.
8. We have heard learned counsel for the parties and perused the pleadings and the judgments on which reliance has been placed.
9. At this stage, it is apt to mention that the issue involved in this case as to whether the employees, who had been granted financial upgradation under ACP/MACP in Grade Pay of Rs.4800/- had completed continuous four years of service in the said grade, i.e. Grade Pay of Rs.4800/- can be said to be eligible and entitled for grant of NFG in Grade Pay Rs.5400/- in PB-II in terms of Govt. resolution dated 29.8.2008 or not and whether the Department of Revenue, Central Board of Excise and Custom's can restrict the said benefit of grant of NFG in Grade Pay Rs.5400/- to such employees/officers (i.e. Customs Appraiser/Superintendent of Central Excise/Superintendent of Customs (P) is no more res integra in view of the various pronouncements of the Hon'ble Supreme Court, High Courts as well as of this Tribunal.
10. It is profitable to refer the judgement passed by the Hon'ble High Court of Judicature at Madras dated 6.9.2010 (M. Subramaniam vs. Union of India represented by the Secretary of Revenue and others (supra), the relevant paras of which are reproduced:-
"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 bond 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 12 OA No.274/2023 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 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 1s 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) 13 OA No.274/2023 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 re solution 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."
(emphasis supplied) 10.1 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 preferred by the respondents therein, 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."
10.2 The Review Petition in the said appeal preferred by the respondents therein before the Hon'ble Supreme Court was also dismissed by the Hon'ble Supreme Court vide Judgment dated 23.8.2018 with the following directions:-
14 OA No.274/2023"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 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."
(emphasis supplied) 10.3 As such, it is a settled law that the said judgment of the Madras High Court had attained finality.
10.4 It is noticed that by referring the dictum laid down by the Hon'ble High Court of Madras in respect to grant of NFG in Grade Pay Rs.5400/- in PB-II to the officers/employees who had completed four years of continuous service in GP Rs.4800/- irrespective of by way oof grant of financial upgradation under ACP/MACP Schemes, subsequently, the various Courts, including the Hon'ble High Court of Gujarat and this Bench of the Tribunal had had reiterated in their judgments/orders that the officers, who had got the Grade Pay of Rs.4800/- on upgradation under ACP Scheme and had completed continuous service of 4 years in Grade Pay Rs.4800/- are entitled for grant of NFG in Grade Pay Rs.5400/- in PB-II and the clarification issued by the Under Secretary to the Government to deny the said NFG in Grade Pay of Rs.5400/- was declared contrary to the rules of revised pay scales and law laid down by the Hon'ble Apex Court.
10.5 In this regard, it is profitable to refer and rely upon the observations and orders/judgments rendered by the Hon'ble High Court in SCA No.346/2018 (Shanti Swaroop S/o Bharat Lal vs. Union of 15 OA No.274/2023 India) decided on 10.4.2018 wherein the Hon'ble High Court of Gujarat by accepting the challenge of the petitioner against the denial of grant of NFG in Grade Pay Rs.5400/- and the order passed by this Tribunal in OA No.310/2017 and held in para 3.0 of the said judgment as under:-
"Having heard the learned advocates for the respective parties and considering the impugned order passed by the learned Tribunal, it appears that at the relevant time SLP before the Hon'ble Supreme Court against the decision of the Madras High Court was pending and therefore, the petitioners and other similarly situated persons, the employees were not granted the benefit of fixation of grade pay of Rs.5400/- in PB-2. It is not in disputed that the petitioners are similarly situated to those employees in whose favour there is a decision of the Madras High Court. It is also not in dispute that now the decision of the Madras High Court on the point has been confirmed by the Hon'ble Supreme Court vide Order dated 10.10.2017. Under the circumstances, there is no impediment now in the way of the Department to grant benefit sought in the present petition in the light of the decision of the Madras High Court confirmed by the Hon'ble Supreme Court. Under the circumstances, concerned respondent authorities are hereby directed to grant the benefit of fixation of Grade Pay of Rs.5400/- in Pay Band-2 considering the decision of the Madras High Court in the case of M. Subramanyam vs. Union of India and ors. rendered in Writ Petition No.13225/2010 confirmed by the Hon'ble Supreme Court with all consequential and ancillary benefits which maybe available to the respective petitioners. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of a present Order. The rule is made absolute to the aforesaid extent. Direct service is permitted.' 10.6 In another identical case, the Hon'ble High Court of Gujarat in SCA No.10710/2021 (Praveen K. Gokhroo vs. Union of India) vide judgment dated 21.3.2023 by referring the judgment passed by the 16 OA No.274/2023 Madras High Court in the case of M. Subramaniam (supra) had directed the very respondent to grant benefit of NFG in GP of Rs.5400/- to the similarly placed petitioners/officers.
10.7 Further this Bench of the Tribunal in the matter of Shanker Parmar vs. Union of India and others i.e. OA No.403/2022 decided on 22.3.2023 while allowing the identical claim/prayer had referred to the judgment passed by the Hon'ble High Court of Madras and Hon'ble High Court of Gujarat as also the order passed by the Principal Bench at New Delhi of the Tribunal in OA No.1994/2016 dated 22.2.2023 and taking into consideration the fact that the Judgment passed by the Hon'ble High Court of Madras which has attained finality, this Tribunal held that:
"7.........the admissibility of the prayer is unambiguously established and the departmental procedure have to conform to the law so laid down and discussed in the foregoing paragraphs. The respondents have not been able to bring to our notice any record to indicate that the law laid down by the Hon'ble Madras High Court and the position obtaining their from has undergone any change since then. Because of the fact that this order has attained finality, this has to be followed and accordingly, the OA has to be allowed. In particular when upon upgradation the pay fixation under FR-22(1)(a)(1) is permitted, there is no reason to treat it differently on any pre-text; this becomes a promotion and service starting from the date of such fixation cannot but be counted as a regular service which would qualify for being counted towards four years of stipulated period whereupon the incumbent would become entitled to further upgradation as per the stipulation in the notification dated 29.8.2008 (Annexure A/2).
8. Accordingly, the OA is allowed and the respondents are directed to implement the grant of Grade Pay of Rs.5400/- in PB-2 w.e.f. the date the incumbent completed four years of service in the Grade of PB-2 + Grade Pay of Rs.4800/- irrespective of whether on 17 OA No.274/2023 promotion or MACP/ACP, within a period of three months from the date of receipt of a copy of this Order."
10.8 On the case on hand, as noted herein above, undisputedly the applicant has been granted GP of Rs.4800/- in PB-II by way of 3rd financial upgradation under MACP Scheme w.e.f. 16.10.2013. Thereafter, on completion of continuous 4 years of service in GP of Rs.4800/-, the applicant herein was granted benefit of NFG in GP of Rs.5400/- w.e.f. 16.10.2017 vide order dated 20.11.2018 and accordingly his pay was fixed under FR (22)(I)(a)(I) w.e.f. 16.10.2017 (Annexure A/8 refer). We do not find any legal infirmities in the said pay fixation order dated 20.11.2018 as the benefit of grant of NFG of Rs.5400/- in PB-II to the applicant has been correctly extended in light of the judgments passed by the Hon'ble Madras High Court and other Hon'ble High Courts as well as this Tribunal as referred hereinabove.
11. So far submission of learned counsel for the respondents that the judgment passed by the Hon'ble High Court of Madras has been treated as in personum and as per the Respondents' Board vide letter dated 16.9.2009, the decision was taken that the judgment passed by the Hon'ble High Court of Madras has been treated as in personum and it was decided not to extend the benefits of the said judgment to other similarly placed employees, the said decision is not tenable in light of the judgments passed in Shanti Swaroop S/o Bharat Lal (supra), Praveen K. Gokhroo (supra) and PradeepKumar Pandey (supra) & other orders as referred hereinabove. In other words, it is reiterated that the very said stand of the respondents to deny the benefits of NFG of Rs.5400/- was already held to be contrary to the mandate of recommendations of 6th CPC and as such the said submission of the respondents runs contrary to the judgment passed by the Hon'ble High Court of Madras which has attained finality and on the basis of the said judgments, various Courts/Tribunals have extended the similar benefits to the similarly situated employees.
12. At this stage, it is apt to mention that the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors vs. Arvind Kumar 18 OA No.274/2023 Srivastava & Ors. (Civil Appeal No.9849/2014) decided on 17.10.2014 observed that 'the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently'. The relevant portion of the same is produced as under:-
"Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."
(emphasis supplied) 12.1 The Hon'ble Apex Court in SLP(C) No. 23742 of 2017 (Government of NCT Delhi & another vs. Somvir Rana (TGT ENG) & Others decided on 01.09.2017, while upholding the order/judgment of the Hon'ble Delhi High Court (supra), the Hon'ble Apex Court had observed as under:-
".........
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."19 OA No.274/2023
(emphasis supplied) 12.2. The Hon'ble High Court of Gujarat in the matter of Vipulkumar Atmaram Parekh and others vs. State of Gujarat through Secretary and others (SCA No.1314/2009) decided on 24.3.2009 (reported in Gujarat Law Reporter Vol.50 (5) 3914) has ruled that :
"9.......The model employer is one who would not deny just claim of his employee and employees on any technical ground. Such model employer would not wait for any direction to be given to accept just claim of the employee/employees. It is further observed that once it is found that an employee is similarly situated the benefits flowing from a judgment in a case of other similarly situated employee, it should be given to other similarly situated employee and employee should not be driven to the Court for addressing just grievances...."
12.3 In the present case, as discussed hereinabove, since the Hon'ble High Court held that such officers are entitled to receive benefit of NFG in GP of Rs.5400/- in PB-II, and the said finding attained the finality, on dismissal of SLP and Review Petition filed by the respondents, it is not open to take contrary view by the respondents. As such, the respondents are under lawful obligation to extend the benefit of grant of NFG in Grade Pay of Rs.5400/- to the similarly placed officers even without insisting him/them to approach the Court/Tribunal and to obtain separate order in light of law laid down by the Hon'ble Supreme Court and High Court as referred herein above.
13. Further, we are of the considered view that as per the dicta laid down by the Hon'ble Apex Court, Hon'ble High Courts and this Tribunal referred herein above, the applicant is entitled for grant of NFG in GP of Rs.5400/- on completion of four years of regular service in PB-II w.e.f. 01.09.2012 by the respondents.
14. In the result, for the forgoing reasons, the present OA is allowed and the respondents are directed to implement the Grade Pay of Rs.5400/- in P.B.-II w.e.f. the date of completion of four years of regular service in the Grade Pay of Rs.4800/- irrespective of 20 OA No.274/2023 whether on promotion or on MACP/ACP with all consequential benefits within a period of three months from the date of receipt of a copy of this order.
15. There shall be no order as to costs.
(Dr. Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
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