Central Administrative Tribunal - Bangalore
P Bharat Raj vs Dgqa on 15 March, 2023
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OA.No.170/00403/2021/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00403/2021
ORDER RESERVED ON 07.02.2023
DATE OF ORDER: 15.03.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
P.Bharat Raj,
S/o late K.P.Purushotham,
Aged 60 years, retired as
Assistant Engineer (Quality Assurance),
Senior Quality Assurance Establishment (Electronics),
DGQA COMPLEX, 1st Main Road,
S.K.Garden, Benson Town PO,
Bengaluru - 560 046,
Residing at No.237,
'Bhagavathi Nilayam',
CQAL Layout, Sahakaranagar (PO),
Bengaluru - 560 092. .... Applicant
(By Shri A.R. Holla, Advocate)
Vs.
1. The Union of India,
By Secretary,
Ministry of Defence,
South Block, New Delhi - 110 001.
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OA.No.170/00403/2021/CAT/BANGALORE
2. The Director General,
Quality Assurance,
Department of Defence Production/DGQA,
Room No.38, 'H' Block,
Nirman Bhavan PO,
New Delhi -110 011.
3. The Senior Quality Assurance Officer,
Senior Quality Assurance Establishment (Electronics)
DGQA Complex, 1st Main Road,
S.K.Garden, Benson Town PO,
Bengaluru - 560 046. ...Respondents
(By Shri S. Sugumaran, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) To quash the (a) Order No.QLBG/02440/HQ/ESTT dated 21.06.2021, issued by the respondent No.3, Annexure A9 and (b) letter No.QLBG/02440/HQ/ESTT dated 23.06.2021 communicating the Order No.A/86320/MACPS/ Gen/DGQA/Adm-10 dated 04.06.2021, issued by the respondent No.2, Annexure A10,
(ii) Direct the respondents to re-fix the pay of the applicant giving effect to the O.M dated 13.11.2009, Annexure A1 and the order dated 10.05.2013, Annexure A3 and extend consequential benefits to the applicant accordingly and 3 OA.No.170/00403/2021/CAT/BANGALORE
(c) Grant such other relief deemed fit, having regard to the facts and circumstances of the case."
2. The facts in brief as stated by the applicant are that the applicant was appointed as Telecom Mechanic (Highly Skilled-I) in the Controllerate of Quality Assurance (Radars), Bengaluru on 08.04.1988. After passing the prescribed trade test, he was promoted to the post of Chargeman-II on 22.03.1991 and to the post of Chargeman-I on 23.07.2003 in the pay scale of Rs.5500- 9000/-. The applicant was promoted as Assistant Foreman on 01.09.2008 in PB-2 + Grade Pay Rs.4600/-. The applicant was given second MACP benefit with effect from 22.03.2011 in the pay of PB-2+Grade pay of Rs.4800/- vide order dated 16.10.2017. The applicant made representation on 22.03.2021with a request to grant him ACP benefit from 2003. However, the Respondents No.2 and 3 passed orders withdrawing the MACP benefits granted to the applicant with effect from 22.03.2011 holding that the applicant has got two promotions in a span of 20 years and, as such, is not entitled to ACP benefit and 2ndMACP benefit, but is entitled to 3rd MACP benefit with effect from 01.09.2018 consequent to promotion as Assistant Foreman 4 OA.No.170/00403/2021/CAT/BANGALORE with effect from 01.09.2008. Being aggrieved, the applicant is before this Tribunal.
3. Learned Counsel Shri A.R. Holla representing the applicant submitted that having regard to the fact that pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, have been merged with effect from 01.01.2006 and Grade Pay of Rs.4600 has been granted in PB-2, in terms of OM dated 13.11.2009, the applicant is entitled to fixation of his pay in PB-2 + Grade Pay of Rs.4600/- with effect from 01.01.2006. Hence, his promotion as Chargeman Grade-I with effect from 23.07.2003 and as Assistant Foreman with effect from 01.09.2008 in the pre-revised scale of Rs.6500-10500 are inconsequential. Accordingly, the applicant is entitled to 2nd MACP benefit with effect from 22.03.2011, the same was given as per the order dated 16.10.2017. Hence, the applicant is entitled to 3rd MACP benefit with effect from 22.03.2021 (after completion of 30 years of service). The pay of the applicant has to be fixed accordingly from time to time and financial benefits are to be extended to the applicant accordingly. Learned Counsel argued that the Respondents No.2and 3 have taken inconsistent stance as per Annexure-A3 and Annexure-A9 5 OA.No.170/00403/2021/CAT/BANGALORE & A10, depriving the applicant the lawful benefits to which he is entitled to. Learned Counsel has placed reliance on the orders passed by the Hon'ble High Court of Karnataka in the case of Union of India and others vs. N.P.Ramesan reported in 2021 (2) AISLJ 156.
4. The respondents have filed reply statement. Learned Counsel Shri S.Sugumaran referring to the reply statement argued that after noticing the second financial upgradation under MACP scheme granted to some of the individuals including the applicant herein, in the Grade Pay of Rs.4800 with effect from particular date(s) on completion of 20 years of service from the date of their promotion to the grade of Chargeman Grade-II, not being in accordance with Government of India, DOPT instructions on the subject, necessary action for rectification of bonafide mistake has been initiated in respect of concerned affected individuals including the applicant herein. During the said process of rectification under consideration, the applicant made a claim for grant of financial upgradation under ACP scheme with effect from 22.03.2003 vide his application dated 22.3.2021, which was received in the office of the Respondent No.2 by the 6 OA.No.170/00403/2021/CAT/BANGALORE letter of Respondent No.3 dated 30.03.2021. In response, it was communicated to the applicant that 2nd MACP is not admissible, the applicant is only entitled for grant of 3rd MACP in the Level-8 with effect from 01.09.2018 i.e., after completion of 10 years of service in the Grade Pay of Rs.4600 consequent to his promotion as Assistant Foreman with effect from 01.09.2008. The applicant got two regular promotions much before 24 years of regular service, hence he is not entitled for grant of financial upgradation under ACP scheme with effect from 22.03.2003.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
6. The undisputed facts are that the applicant was appointed as Telecom Mechanic (Highly Skilled-I) in the Controllerate of Quality Assurance (Radars), Bengaluru on 08.04.1988 in the pay scale of Rs. 1320-2040. He was promoted to the post of Chargeman Grade-II on 22.03.1991 in the pay scale of Rs. 5000-8000. He was further promoted to the post of Chargeman Grade-I on 23.07.2003 in the pay scale of Rs. 5500- 7 OA.No.170/00403/2021/CAT/BANGALORE 9000 (revised to PB-2 + Grade Pay of Rs. 4200). The applicant was further promoted as Assistant Foreman in the pay in PB-2 + Grade Pay of Rs. 4600 with effect from 01.09.2008. Consequent to merger of pay scales of Rs. 5000-8000 and Rs. 5500-9000 with effect from 01.01.2006 as per 6th CPC recommendations, the grades/posts of Chargeman Grade-II and Chargeman Grade-I were merged and re-designated as Chargeman carrying pay scale of PB-2 + Grade Pay of Rs. 4200 with effect from 01.01.2006.
7. The letter dated 10.05.2013, though states that the applicant will be considered as direct recruitee from the date of assuming appointment as Chargeman Grade-II with effect from 22.03.1991, it has been held to be erroneous in the letter dated 04.06.2021 (Annexure-A10). Obviously, the same has to be considered as promotion i.e., promotion to the Grade of Chargeman Grade-II with effect from 22.03.1991 in the pay scale of Rs.5000-8000 corresponding Grade Pay of Rs.4200 in PB-2 as the applicant was appointed as direct recruitee for the post of Telecom Mechanic (Highly Skilled-I) on 08.04.1988.Now the controversy relates to the denial of second MACP to the applicant in terms of the order impugned at Annexure-A10. 8
OA.No.170/00403/2021/CAT/BANGALORE
8. OM dated 13.11.2009 issued by the Government of India, Ministry of Finance, Department of Expenditure stipulates that posts which were in the pre-revised scale of Rs. 6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of Grade Pay of Rs. 4200 in the Pay Band PB-2, will be granted Grade Pay of Rs. 4600 in the Pay Band PB-2 corresponding to the pre-revised scale of Rs. 7450-11500 with effect from 01.01.2006. Accordingly, in terms of Rule 6 of CCS (RP) Rules 2008, revised pay of government servants in the pre- revised scale of Rs. 6500-10500 who were earlier granted Grade Pay of Rs. 4200 and who have already exercised their option for drawal of pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules, has to be fixed again.
9. OM dated 13.11.2009 has only conveyed the general decision of the Government with the posts which were in the pre- revised scale of Rs. 6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of Grade Pay of Rs. 4200 in the Pay Band PB-2, would be granted Grade Pay of Rs. 4600 in the Pay Band PB-2 corresponding to the pre-revised scale of Rs. 7450-11500 with effect from 01.01.2006. 9
OA.No.170/00403/2021/CAT/BANGALORE
10. Consequent to implementation of 6th CPC recommendations regarding merger/upgradation of payscales and issuance of the administrative orders regarding revised grade structure vide Government of India, Ministry of Defence letter dated 22.01.2009 as amended vide Ministry of Defence letter dated 22.10.2009, the revised grade structure of the technical cadre in DGQA organization with effect from 01.01.2006 is as under:
Name of Pre-revised Revised Pay
the post Pay Scale Scale as per
Post
after 6th CPC
merger
Chargeman
Rs.5000-8000
Grade-II PB-2 GP
Chargeman
Chargeman Rs. 4200/-
Rs.5500-9000
Grade-I
Assistant Junior
Rs.6500-10500
Foreman Technical PB-2 GP
Junior Technical Officer Rs. 4600/-
Rs.7450-11500
Officer
The posts of Chargeman and JTO were later re-designated as Junior Engineer (QA) and Assistant Engineer (QA) respectively vide Government of India, Ministry of Defence letter dated 23.03.2012.
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11. Paragraph 5 of the Execution Instructions issued by the Government of India dated 27.07.2011 reads thus:
"5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
Illustration-I The pre-revised hierarchy (in ascending order) in a particular organization was as under:-
Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500. A Government servant who was recruited in the hierarchy in the pre-revised pay scale Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006 he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500.
Another Government servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 & Rs.6500-10500 during this period.
In the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre- revised scales of Rs.5000- 8000, Rs.5500-9000 and Rs.6500- 10500 recommended by the Sixth CPC. As per CCS (RP) Rules, both of them will be granted grade pay of Rs.4200 in the pay band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs.4600 and Rs.4800 in the pay band PB-2. "
(Emphasis supplied) 11 OA.No.170/00403/2021/CAT/BANGALORE
12. A reading of these paragraphs makes it clear that the promotions earned/upgradation granted under the ACP scheme in the past i.e., prior to 01.01.2006 to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the 6th Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACP. After the 6th Pay Commission recommendations, it is not the pay scale that indicates any upward revision but only the Grade Pay, in respect of grant of MACP under the scheme. If the Grade Pay in the two grades remains the same i.e. Rs. 4200, under such circumstances, the promotion or upgradation should be ignored. In the present case, the promotion from Chargeman Grade-II to Chargeman Grade-I has to be ignored due to merger of scales with effect from 01.01.2006 as the Grade Pay was the same i.e. Rs. 4200 in both the posts (Chargeman Grade-II and Chargeman Grade-I). However, the applicant was promoted as Assistant Foreman in PB-2 with Grade Pay of Rs. 4600 on 01.09.2008. The promotion being from Grade Pay of Rs. 4200 to Grade Pay Rs. 4600 and the said promotion being subsequent to 01.01.2006, the same cannot be ignored even as per paragraph 5 of the Execution 12 OA.No.170/00403/2021/CAT/BANGALORE Instructions referred to above. Having regard to the two promotions earned by the applicant viz., first promotion on 22.03.1991 (Telecom Mechanic (Highly Skilled-I) to Chargeman Grade-II) and on 01.09.2008 (Chargeman Grade-I to Assistant Foreman) the applicant is entitled to the 3rd MACP in the Grade Pay of Rs. 4800 after completion of 10 years service in the promoted post of Grade Pay Rs. 4600 i.e. 01.09.2008 or on completion of 30 years from the date of joining into service i.e. 08.04.1988, whichever is earlier.
13. Thus, the applicant is neither entitled for any financial upgradation with effect from 22.03.2003 (after completion of 12 years of service) under ACP scheme nor entitled for 2nd financial upgradation with effect from 22.03.2011 under MACP scheme.
14. As on the date of commencement of MACP scheme with effect from 01.09.2008, the applicant has earned 3 promotions Telecom Mechanic (Highly Skilled-I) to Chargeman Grade-II, Chargeman Grade-II to Chargeman Grade-I, Chargeman Grade-I to Assistant Foreman. However, as per 6th CPC recommendations, Chargeman Grade-II and Chargeman Grade-I were 13 OA.No.170/00403/2021/CAT/BANGALORE merged.Ignoring promotion in merged grade, he had earned two promotions as on the date of commencement of MACP scheme. Much emphasis has been placed by the learned counsel on N.P. Ramesan, supra. The respondent therein (N.P. Ramesan), was appointed as Junior Engineer in pay scale of Rs. 1400-40-1600-50- 2300 on 23.12.1988. The pay was revised to Rs. 5000-8000 with effect from 01.01.1996.Keeping in view the recommendation of the 5th Pay Commission, the respondent was granted time bound promotion on completion of eight years of service in the payscale of Rs. 6500-200-10500 with effect from 23.12.1996. In that context, the Tribunal keeping in view the merger of two payscales, has not treated the upgradation from the payscale of Rs. 5000-8000 to Rs. 6500-10500 and, accordingly, has held that the respondent is entitled to two more upgradations. The Hon'be High Court of Karnataka referring to paragraph 5 of the Execution Instructions issued by the Government of India dated 27.07.2011 held that the Tribunal was justified in directing the Department to consider the case of the respondent therein for grant of upgradation under the MACP scheme, ignoring the upgradation granted to him earlier from Rs. 5000-8000 to Rs. 6500-10500. It is pertinent to note here that the promotion in the pay scale of Rs. 6500-200-10500 was 14 OA.No.170/00403/2021/CAT/BANGALORE prior to 01.01.2006. Hence, the same would not come to the assistance of the applicant.
15. For the reasons aforesaid, we find no irregularity or infirmity in the orders impugned.
16. In the result, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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