Central Administrative Tribunal - Ernakulam
Annie Abraham vs The Secretary Department Of Personnel ... on 20 October, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00333/2021
Thursday, this the 20th day of October 2022
CO RAM:
HON'BLE MR. JUSTICE K. HARIPAL, JUDICIAL MEMBER
HON'BLE MR. K. V. EAPEN, ADMINISTRATIVE MEMBER
Annie Abraham, W/o. Abraham Paul, aged 60 years,
Assistant Commissioner (Rtd.), Central Tax and
Central Excise, Erakkathil House, Kalathipadi,
Vadavaathoor P.O., Kottayam - 686 010. ...Applicant
(By Advocates: Mr. C. S. Gopalakrishnan Nair & Mrs. Rashmi K. R)
versus
1. Union of India, rep. by its Secretary,
Department of Personnel & Training,
New Delhi - 110 001.
2. Chairman,
Central Board of Indirect Taxes & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Tax, Central Excise & Customs,
Central Revenue Buildings, I.S. Press Road,
Cochin - 682 018.
4. Principal Commissioner of Central Tax & Central Excise,
Central Revenue Buildings, I. S. Press Road,
Cochin - 682 018.
5. Principal Commissioner of Central Tax & Central Excise,
G. S. T. Bhavan, Press Club Road,
Thiruvananthapuram - 695 001.
6. Pay & Accounts Officer,
Central Excise, GST Bhavan,
Press Club Road,
Thiruvananthapuram - 695 001. ...Respondents
(By Advocate: Mr. N. Anilkumar, Sr. Panel Counsel)
This application having been heard on 29 th September 2022, the Tribunal on 20 th
October 2022 delivered the following :
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ORDER
Per: Hon'ble Mr. K. V. Eapen, Administrative Member The applicant has filed this O.A seeking the following relief:
"(i) To call for the records leading upto the issue of Annexure A6 and quash the same.
(ii) To direct the respondents to pre-pone the 3rd financial upgradation under MACP Scheme to 28.2.2016 and grant all consequential benefits within a time frame.
(iii) To direct the respondents to draw and disburse arrears of pay and allowances with all consequential benefits within a stipulated period.
(iv) To direct the respondents to grant the applicant all arrears of all retirement benefits including pension, gratuity, leave encashment etc., within a time frame.
(v) Grant such other relief or reliefs that may be prayed for or that are found to be just and proper in the nature and circumstances of the case.
(vi) Grant cost of this O.A."
2. The applicant is aggrieved by the letter at Annexure A6 issued by the respondents which, inter alia, states as follows:
"In this regard, it is to inform that, in a similar issue, the Hon'ble Apex Court in the case of Union of India & others Vs. Ashok Kumar Sharma in civil appeal No. 568 of 2011, wherein it was ruled that if an employee availed EOL for private purpose, without salary, then such period is to be excluded for the purpose of computing qualifying service for grant of financial upgradation. Similarly, the Hon'ble Tribunal, Chandigard in O.A No. 888/CH/2013 dated 25.04.2017 filed by Smt. Rajesh Kumar Vs. Union of India through Secretary, Ministry of Defence, New Delhi has held that, since no salary was paid to the applicant for the period of EOL, that period has to be excluded for counting of qualifying service for the grant of benefit of financial upgradation and the contrary arguments are hereby repelled in view of ratio of law laid down by the Hon'ble Apex Court in Ashok Kumar Sharma's case (Supra). The ratio of law laid down is mutatis mutandis applicable to the instant controversy. It has also been pointed out that, in terms of Rule 21 of the Central Civil Services (Pension) Rules, 1972 extraordinary leave granted on medical grounds is counted as qualifying service. However, extraordinary leave taken on account of private affairs is not counted as qualifying service. Hence, the decision of screening committee meeting held on 28.07.2020 in respect of the officer is found in order. The officer may be informed accordingly."
3. The applicant joined service as Inspector of Central Tax & Central Excise on 28.02.1986. She was promoted as Superintendent on 24.11.2003 and as Assistant Commissioner on 24.12.2020. She retired from service on -3- superannuation as Assistant Commissioner of Central Tax & Central Excise on 30.04.2021. She was granted 1st financial upgradation under the Assured Career Progression (ACP) Scheme with effect from 09.08.1999. She had completed more than 12 years of service on that date and was placed in the pay scale of Superintendent. Later, the Modified Assured Career Progression Scheme came into force with effect from 01.09.2008. The Scheme dated 19.05.2009 as originally announced after the 6th Pay Commission has been produced at Annexure AI (A1/4). As per point No. 1 of the annexure I of the Scheme it has been indicated that there shall be three financial upgradations under the Modified Assured Career Progression Scheme (MACPS) counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. It has also been indicated that financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade-pay. On this basis, the applicant claims that she should have got her 2 nd financial upgradation under the MACPS and should have been placed in Pay Band 2 with grade pay of Rs.5400/- with effect from 09.08.2009 counting the 10 year period with effect from her 1st financial upgradation from 09.08.1999. However, she was granted the 2nd financial upgradation only, as per Annexure A2, with effect from 14.05.2012. She was placed in the grade pay of Rs.5400/- in PB 2. She submits that the reason for postponing the date is not stated anywhere.
4. Later, after the 7th CPC, an O.M dated 22.10.2019 being the Consolidated Guidelines Regarding the Modified Assured Career Progression Scheme (MACPS) for Central Government Civilian Employees was issued. This is produced at Annexure A3. It is indicated therein, similar to point No. 1 in the -4- Scheme at Annexure A1, that there would be three financial upgradations under the MACPS counted from the direct entry grade on completion of 10, 20 and 30 years service respectively or after 10 years of continuous service in the same Level in Pay Matrix, whichever is earlier. In point No. 9 of the annexure I of the MACPS at Annexure A3 it is also indicated that 'regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re- employment basis. Further, in point No. 11, it is indicated that 'regular service' shall include all periods spent on deputation/foreign service, study leave and all other kind of leave, duly sanctioned by the competent authority.
5. It is submitted by the applicant that she had completed 30 years of regular service, as defined under the MACPS as above, on 28.02.2016. As such, she had become entitled for the 3rd financial upgradation as per the Annexure A3 Scheme to the level 10 of Pay Matrix. However she was granted 3 rd financial upgradation under the MACPS only with effect from 01.03.2020 as per orders issued by the respondents produced at Annexure A4. She submits that the reason for postponing the financial upgradation to 01.03.2020 from 28.02.2016 is not known. No reason was mentioned in Annexure A4 order also. She submits that she has completed 34 years of 'regular service' on 01.03.2020. On receipt of the aforestated order, she made a representation dated 17.09.2020 (produced in the O.A at Annexure A5), wherein, she drew attention to the fact that she had completed 30 years of qualifying service on 28.02.2016 but her MACP was granted only with effect from 01.03.2020. She also invited attention to the point No. 11 of the MACPS which had allowed that periods spent on -5- deputation/foreign service, study leave and all other kind of leave duly sanctioned by the competent authority, would be included in 'regular service'. She submits that she had taken Extra Ordinary Leave (EOL) for the period from 01.06.2006 to 31.07.2007 and from 01.04.2008 to 31.03.2011. However this is permissible to be reckoned as qualifying service for the purpose of grant of benefits under the MACPS, since the availed EOL was duly sanctioned by the competent authority. She submits that she should therefore be considered eligible for the 3rd Modified Assured Career Progression (MACP) for completion of 30 years on 28.02.2016. It is her representation in this regard which was responded to by the impugned order at Annexure A6, the details of which had been brought out earlier in paragraph 2.
6. In essence, therefore, the main ground taken by the applicant in the O.A is that the respondents' reply to her at Annexure A6, turning down the grant of the 3rd MACPS with effect from 28.02.2016, is on the basis of a wrong conclusion and contention that only the Extra Ordinary Leave (EOL) granted on medical grounds can be counted as qualifying service and that EOL granted for private affairs cannot be counted as qualifying service. It is submitted by her that the respondents have taken the so called lack of 'qualifying service' as the basis for turning down her claim for the 3 rd financial upgradation with effect from 28.02.2016. However, the point No. 11 of annexure I produced at Annexure A3 has defined 'regular service' as including all periods spent on deputation/foreign service, study leave and all other kinds of leave, duly sanctioned by the competent authority. In her case the EOL was duly sanctioned for going abroad to meet her family members, i.e., on private grounds in different spells. She -6- submits that she had taken EOL from 01.06.2006 to 31.07.2007 (1 year & 2 months) and again from 01.04.2008 to 31.03.2011 (3 years), which came to a total of 4 years and 2 months. This period has not been counted as qualifying service for the purpose of pension and other retirement benefits, to which she has no objection. Clarifying this point she draws attention to the definition of 'qualifying service' under Rule 3(q) of the CCS (Pension) Rules, 1972. Qualifying service is defined therein as service rendered while on duty or otherwise which shall be taken into consideration for the purpose of pension and gratuities admissible under these Rules. Thus, she seeks to make a distinction between 'regular service' as mentioned in point No. 11 of Annexure A3 Consolidated Guidelines Regarding Modified Assured Career Progression Scheme (MACPS) for the Central Government Civilian Employees and the Rule 3(q) of the CCS (Pension) Rules defining 'qualifying service'. Her point is that qualifying service is only meant for the purpose of calculation of pension and gratuity as admissible under CCS (Pension) Rules 1972 and has nothing to do with 'regular service', as defined in paragraph No. 11 of Annexure A3 guidelines for the MACPS.
7. Drawing from the above distinction she submits that the period of over 4 years that was duly sanctioned by the competent authority as Extra Ordinary Leave (EOL) in her case has therefore to be counted as part of 'regular service', as defined in point 11 of the Annexure A3 MACPS guidelines. As such she is entitled for financial upgradation with effect from 28.02.2016. In other words, she submits that there has been a misinterpretation by the respondents by taking into consideration her qualifying service and not counting EOL taken by her as -7- part of regular service for financial upgradation under the MACPS. The EOL was not counted for pension and gratuity as non qualifying service in her case; however, as the leave was duly sanctioned, it has to be counted as part of 'regular service' for the purpose of grant of MACPS. Thus, she should get the MACP 3 rd financial upgradation on completion of 30 years' service, i.e., with effect from 28.02.2016.
8. The respondents have filed a reply statement in which they have at the outset drawn attention to the fact that even though the applicant had mentioned at paragraph No. 4(3) of the O.A that she should have got the 2 nd financial upgradation with effect from 09.08.2009 and had instead been given the 2 nd financial upgradation only from 01.04.2011, it was not protested by her at the relevant point of time nor later till this O.A for grant of 2 nd financial upgradation on 09.08.2009. The fact was that she was on EOL on private grounds with effect from 01.06.2006 to 31.07.2007 and from 01.04.2008 to 31.03.2011. Hence, she was granted the 2nd financial upgradation only with effect from 01.04.2011 which she had quietly accepted. Her first protest against this has come only on 17.09.2020, i.e., much later, after almost 10 years. It is submitted by the respondents that after the decisions of the Central Administrative Tribunal, Ernakulam Bench in O.A 180/862/2018 as well as the order of the Hon'ble Madras High Court dated 06.09.2010 in WP No. 13225 of 2010 (against which SLP was dismissed) all similarly situated applicants were made eligible for GP of Rs. 5400/- (in PB 2) after 4 years of service in GP of Rs. 4800/- with all consequential benefits. Accordingly, the applicant herein was also granted NFG in the GP of Rs. 5400/- (PB-2) with effect from 01.01.2006. Subsequently, she -8- completed 10 years in the said Grade Pay with effect from 01.01.2016. However, since she was on Extra Ordinary Leave (EOL) on private affairs for a total of 1521 days with effect from 01.06.2006 to 31.07.2007 and 01.04.2008 to 31.03.2011, she was granted 3rd financial upgradation only with effect from 01.03.2020.
9. Clarifying the action taken by the them the respondents have further submitted that the applicant has been informed by the impugned order at Annexure A6 that the Hon'ble Apex Court in the matter of Union of India & others v Ashok Kumar Sharma [2011 (13) SCC 2] in civil appeal No. 568 of 2011 had ruled that, if an employee availed Extra Ordinary Leave (EOL) for private purpose without salary then such period is to be excluded for the purpose of computing qualifying service for grant of financial upgradation. Similarly, the Central Administrative Tribunal, Chandigarh Bench in the matter of Smt. Rajesh Kumari v Union of India and others [O.A No. 888/CH/2013] had held in its order dated 25.04.2017 that since no salary was paid to the applicant therein for the period of Extra Ordinary Leave (EOL) that period has to be excluded for counting of qualifying service for the grant of benefit of financial upgradation. It was also held therein that contrary arguments were repelled in view of the ratio laid down by the Hon'ble Apex Court in Ashok Kumar Sharma(supra). Therefore, it is submitted that the ratio of law laid down in Ashok Kumar Sharma's case(supra) is, mutatis mutandis, applicable to the instant matter. It is only EOL granted on medical grounds in terms of Rule 21 of the Central Civil Services (Pension) Rules, 1972 that can be counted as qualifying service. However, EOL taken on account of private affairs is not counted as qualifying -9- service. Thus, the decision to grant Modified Assured Career Progression (MACP) in her case with effect from 01.03.2020 is fully justified.
10. In a rejoinder filed by learned counsel for the applicant Shri C. S. Gopalakrishnan Nair on behalf of the applicant it has been reiterated that there is a difference between 'qualifying service' and 'regular service' and that 'qualifying service' as defined in the CCS (Pension) Rules, 1972 is only in regard to pension matters. As far as financial upgradation under the Modified Assured Career Progression Scheme (MACPS) is concerned it is only on the basis of 'regular serivce', which has been defined in point No. 9 of annexure I in the Annexure A3 MACPS guidelines. Point No. 11 of annexure 1 in Annexure A3 has clearly brought out that 'regular service' shall include all periods spent on deputation/foreign service, study leave and other kind of leave duly sanctioned by the Competent Authority. It is submitted that when the competent authority regularizes the period of leave, it becomes a part of 'regular service'. Hence, it is submitted that the distinction between 'regular service' and 'qualifying service' needs to be considered and understood properly, as the competent authority had regularised the period and treated it as Extra Ordinary Leave (EOL). However the respondents have ignored in their responses and have mixed up the two kinds of services while taking their decision in this matter.
11. We have carefully considered the above contentions and also have heard the learned counsel appearing for both sides. Learned counsel for the respondents, Shri N. Anil Kumar, Sr. Panel Counsel has stressed on the judgment of the Hon'ble Apex Court in Ashok Kumar Sharma's case(supra). In that -10- matter, the Hon'ble Apex Court had dealt with the issue relating to grant of 2 nd financial upgradation to the respondent therein in accordance with the Assured Career Progression Scheme (ACPS). The respondent had been a Sub-Inspector in the Border Security Force, who had been dismissed from service on the charge of overstaying his sanctioned leave by a period of 210 days. Later, he was reinstated with the direction that the period of absence from duty would be converted into leave of the kind due which may be admissible to him. It appears that the absence was regularised by the authorities by grant of Half Pay Leave and Extra Ordinary Leave (EOL). It was claimed by the respondents that once the period between the date of dismissal and date of reinstatement was so regularized by grant of Half Pay Leave and Extra Ordinary Leave (EOL), the competent authority was also bound to give the benefit of second financial upgradation from the date of completion of 24 years' service. It was submitted that the failure to do so has resulted in violation of his right to equality before law. However, the appellant Union of India contested the writ petition by asserting that the Extra Ordinary Leave (EOL) was granted to the respondent only with a view to prevent break in his service; however, the period cannot be treated as one spent on duty and therefore cannot be taken into consideration for the purpose of computation of 24 years service necessary for grant of the benefit of 2 nd financial upgradation under the Assured Career Progression Scheme framed by the Government of India. After an examination of the Rule 21, 25 and Rule 40(5) of the CCS (Pension) Rules 1972 the Hon'ble Apex Court held as follows:
"10. A reading of the plain language of R.21 makes it clear that all kinds of leave for which leave salary is payable and all extraordinary leave granted on medical certificate are treated as qualifying service. In case of extraordinary leave other than the one granted on medical certificate, the competent authority can at the time of grant make it clear that the period of that leave shall count as qualifying service if the leave is granted due to the government servant's inability to join or rejoin duty -11- on account of civil commotion or for prosecuting higher scientific and technical studies. What is important to note is that the period spent on leave can count as qualifying service only if leave salary is payable during that period. The only exception to this is when extraordinary leave is granted on medical certificate of the Competent Authority, while granting extraordinary leave, makes it clear that such period shall count as qualifying service because the Government Servant could not join duty on account of civil commotion or he had gone for prosecuting higher scientific and technical studies. R.25 provides for counting of past service on reinstatement. It lays down that if a person dismissed, removed or compulsorily retired from service is reinstated, then he is entitled to have his past service counted as qualifying service. The expression "past service" used in clause (I) of R.25 refers to the service prior to dismissal, removal or compulsory retirement. However, the period of interruption in service between the date of dismissal, removal or compulsory retirement during which an employee did not perform duty and the date of reinstatement as also the period during which an employee remained under suspension does not count as qualifying service unless the same is regularized as duty or leave by specific order of the competent authority. R.40(5) makes it clear in so many words that a government servant on Extraordinary Leave is not entitled to leave salary."
Further to this in paragraph 12 of the judgment, the Hon'ble Apex Court also found that even though the period between his dismissal from service and reinstatement had been regularized by the grant of Half Pay Leave and Extraordinary Leave, the respondent was neither paid salary for the period of Extraordinary Leave and nor was that period treated as on duty. It was held that in its very nature the decision of the competent authority to grant Extra Ordinary Leave (EOL) to the respondent was thus intended only to avoid break in service, which would have otherwise entailed the consequence of depriving him of all the benefits of his past service. It was held that the period of Extra Ordinary Leave (EOL) cannot be treated as period spent on duty and if that was to be so the respondent would have claimed salary for the said period of 5 years, 7 months and 27 days and would have also questioned the decision of the authorities to postpone the date of increment. However, the fact was that the respondent did not question the orders passed by the authorities for shifting his date of increment. Hence, the said period was found to be rightly not counted as part of the 24 years' -12- service which is sine qua non, for grant of the benefit of 2nd financial upgradation in terms of the Scheme. The Hon'ble Apex Court accordingly allowed the appeal and turned down the grant of the benefit of 2 nd financial upgradation with effect from completion of 24 years.
12. In addition to the above judgment learned Sr. Panel Counsel brought to our notice the decision of the Chandigarh Bench of this Tribunal in O.A 888/CH/2013 decided on 25.04.2017. This matter related to an LDC where a claim for grant of benefit of 2nd ACP and 3rd MACP had been rejected by the competent authority as she was on Extra Ordinary Leave (EOL) for the period from 1998 to 2004. In its Order, the Bench after due consideration and reliance on the orders of the Hon'ble Apex Court in Ashok Kumar Sharma's case(supra), found as follows:
"16... It is not a matter of dispute that in normal course of service tenure of the applicant, she would have been entitled for 2 nd ACP on 26.12.2004, but since she had availed 548 days of EOL on account of private affairs between the period 26.12.1980 to 23.11.2004 and she was not paid any salary during the relevant period of EOL for which she never raised any protest, at any stage, therefore, the period of 548 days of EOL for which she was not paid any salary, has to be excluded from the qualifying service for the purpose of grant of 2nd ACP.
17. Therefore, since no salary was paid to the applicant for the period of EOL of 548 days and no protest has been raised by her at any stage, so that period has to be excluded for counting the qualifying service for the grant of benefit of 2 nd ACP and the contrary arguments of learned counsel for the applicant are hereby repelled in view of ratio of law laid down by the Hon'ble Apex Court in Ashok Kumar Sharma's case (supra), wherein it was ruled that if any employee availed EOL for private purpose, without salary, then such period is to be excluded for the purpose of computing qualifying service for grant of financial upgradation. The ratio of law laid down is mutatis mutandis applicable to the instant controversy and is complete answer to the problem in hand."-13-
13. We feel that the import of the above two decisions will have a close bearing on our considerations in this case. Drawing from these decisions it is clear that even if the two decisions have mainly allowed excluding the Extra Ordinary Leave (EOL) on private grounds from 'qualifying service', the distinction which is now being sought to be made by the applicant in this O.A regarding the difference between 'qualifying service' and 'regular service' is overstretched in view of the ratio behind these decisions. What comes through clearly from these two decisions is that the basic issue, which has been considered crucially, was whether any salary was paid during the period of the Extra Ordinary Leave (EOL) or not? That seems the crux of the issue as normally when Extra Ordinary Leave (EOL) on private ground is taken, there is no salary which is paid to the Government employee for that period. Thus, the position taken by the applicant herein that the leave which was sanctioned should therefore be taken as part of 'regular service' and make her eligible for the Modified Assured Career Progression Scheme (MACPS) upgradation with effect from earlier date of 28.02.2016 will not hold water if no salary was paid for the period when she was on EOL. It is significant also, similar to the cases brought out earlier, that when the grant of her 2 nd financial upgradation under the Modified Assured Career Progression Scheme (MACPS) was given to her at a later date of 01.04.2011 there was no protest made by her contemporaneously as she perhaps understood and accepted that the period of Extra Ordinary Leave (EOL) had to be excluded in the counting of the service.
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14. In any case the grant of Modified Assured Career Progression Scheme (MACPS) is also effective, as per the guidelines produced at Annexure A1 and A3, on a benchmark APAR gradings. There is no dispute regarding the fact that the applicant had been on Extra Ordinary Leave (EOL) for a period of over 4 years and may not have had any APAR gradings. As per the MACP Scheme produced at Annexure A1 point No. 17 the financial upgradation would be on a non-functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter, for upgradation under the MACPS, the benchmark of 'good' would be applicable till the grade pay of Rs. 6600/- in PB-3. The benchmark will be 'very good' for financial upgradation to the grade pay of Rs. 7600/- and above. Even if the APAR issue may not be relevant in this case, we still have to be guided by the judgment of the Hon'ble Apex Court, which found that the period of Extra Ordinary Leave (EOL) cannot be treated as period spent on duty for the purpose of grant of financial upgradation, especially when the EOL was granted for purposes other than medical or study reasons and when salary was not paid during the period.
15. Learned counsel for the applicant brought to our notice a judgment of the Hon'ble Supreme Court in in State of Rajasthan & ors v O. P. Gupta [SLP (C) 16734/2022] wherein the Hon'ble Apex Court declared that whenever financial rules framed by the Government such as Pension Rules are capable of more interpretation than one, Courts should lean towards that interpretation which goes in favour of the employee. However, we do not find that this judgment has much applicability in this matter as the issue of whether Extra Ordinary Leave (EOL) taken on private ground can be counted for the purpose of Modified -15- Assured Career Progression Scheme (MACPS) has already been settled in Ashok Kumar Sharma(supra). The judgment of the CAT Chandigarh Bench in O.A 888/2013 is also equally applicable.
16. Thus, drawing from the above considerations, we are not allowing the O.A. The O.A is dismissed. No order as to costs.
K.V.EAPEN JUSTICE K. HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp
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List of Annexures
Annexure A-1 - True copy of the MACP Scheme O.M 35034/3/2008-Estt.(D) dated 19.05.2009.
Annexure A-2 - True copy of the order No. 61/2012 dated 14.05.2012 issued by the 4th respondent.
Annexure A-3 - True copy of the OM No. 35034/3/2015 Estt.(D). dated 22.10.2019.
Annexure A-4 - True copy of the Order No. 71/20 dated 03.08.2020 issued by the 4th respondent.
Annexure A-5 - True copy of the representation dated 17.09.2020. Annexure A-6 - True copy of the letter C.No.II/3/1/20 20 conf.Cx/103/2021 dated 19.03.2021.
Annexure A-7 - True copy of the Order C.No.II/39/07/2019/ESH/650/20 dated 13.02.2020 by the 5th respondent.
Annexure A-8 - True copy of the application on 16.12.2020 to the 5 th respondent.
Annexure A-9 - True copy of the O.M No. F.No.14029/5/2019-Estt.(L) (Pt.2) dated 28.07.2020.
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