Central Administrative Tribunal - Mumbai
Deeepak B Deshmukh vs Defence Production on 20 March, 2024
Central Administrative Tribunal Mumbai Bench, Mumbai 0.A. No. 373/2020 Orders reserved on : 15.03.2024 Orders pronounced on : Z2&.3.2024 Hon'ble Mr. R.N. Singh, Member (J) Hon'ble Mr. Rajinder Kashyap, Member (A) 1. Shri. Deepak B. Deshmukh, Son of Shri Babasaheb J. Deshmukh, Date of Birth: 18.04.1963 Working as Junior Works Manager (SG) T-Mech. In the office of Ordnance Factory. Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at-13, Indrayani Colony, 32 Bangla, Talegaon Dabhade, Dist Pune, Tal. Maval, Maharashtra, Pin Code-410 506. Mob No. 9922680873/ [email protected] 2. Shri. Kishor C. Deo Son of Shri Chintamani Dattatrya Deo, Date of Birth: 07.12.1960 Working as Junior Works Manager (SG) Mech. In the office of Ordnance Factory. Dehu Road, Talegaon Dabhade, Dist. Pune 410 506. R/at: "Ganga Vishnu Heights", G-75, Samarth Path, Opp. Rama Ambiki Devi Mandir, Karve Nagar, Pune - 411 052. Mob: 9552452077 / [email protected] 3. Shri. Jayant S. Deshpande, Son of Shri Shamrao Jayrao Deshpande, Date of Birth: 03.06.1960 2 OA No.373 of 2020 Retired as Junior Works Manager From the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. a\ Pune-410 506. R/at: C-18, Sonigara Classics, Ekta Nagar, Akurdi. Pune - 411035. Mob: 9552728997 / [email protected] 4. Shri. Dattatraya M. Humane, Son of Shri Manik K. Humane Date of Birth: 13.10.1969 Working as Junior Works Manager In the office of Ordnance Factory. Dehu Road, Talegaon Dabhade, Dist. Pune-410 506 R/at: Qtr. No. 108/1, Type 4, Ordnance Factory Estate, Dehu Road, Pune-410 506 Mob: 9422224368/ dattatraya [email protected] 5. Shri. Anil K. Yadav, Son of late Shri Gorakh Nath Yadav, Date of Birth: 01.01.1968 Working as Junior Works Manager In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506, R/at: P-III 3/4, Ordnance Factory Estate, Dehu Road, Pune - 410 506. Mob: 9422674600/ [email protected] 6. Shri. Rajiv H. Motiwala, Son of Hasmukhlal Dahyalal Motiwala, Date of Birth: 31.12.1972 Working as Junior Works Manager In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, 3 OA No.373 of 2020 Dist. Pune - 410 506. . R/at: A/402, Gagan Galaxy, "4\ Opp. Gagan Vihar, Bibwewadi, Villanagar Road, Pune - 411 037. Mob: 982274667 / [email protected] 7. Shri. Rajiv B. Shende, Son of Shri Balkrishna Vamanrao Shende, Date of Birth: 14.12.1960 Working as Junior Works Manager In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506 R/at. "Rajyog" Plot No. 96, Sector 30/32, Chinchwad, Pune 411 033 Mob: 9604615804/ [email protected] 8. Shri. Bajrang B. Pansare, Son of Shri Pansare Baburao Mahadeo Date of Birth: 02.06.1964 Working as Junior Works Manager In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506 R/at: B-601, Bliss Housing Society. Datta Mandir Road, Sr. No. 168, Hiss No. 713, Wakad, Pune 411 057. Mob No: 9623147335 / [email protected] 9. Shri. Prashant P. Sonpawale, Son of Prabhakar D. Sonpawale, Date of birth: 23.03.1963 Working as Junior Works Manager (T). In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Plot No. 28, Mascarnis Colony, 4 OA No.373 of 2020 Talegaon Dabhade, Dist. Pune-410506. Mob: 9657888100/ [email protected] 10. Shri. Milind G. Joshi, Son of late Shri Gopalkrishna V. Joshi, Date of Birth: 01.07.1987 Working as Junior Works Manager (T). In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: 35/47, Viveknagar, 'Pitru-Chaya', Akrudi, Pune - 411 035. Mob: 9689179021 11. Shri. Rajkumar K. Gajbhiye, Son of Shri Kothuram Gajbhiye, Date of Birth: 01.10.1956 Junior Works Manager (Retired) Office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at. Plot No. 4-B, H.A. Employees Co-op. Hsg. Society, Sector No. 21, Ankush Chowk, Nigdi, Pune 411 044. Mob: 9011221162 / [email protected] 12. Shri. Indudharayya P. Hiremath, Son of Shri Panchayya Hiremath, Date of Birth: 01,06.1958 Junior Works Manager (Retired) Office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Om Sai Ganesh Apartment, Plot No. 5, CTS 211, Near Vidyanand Bhavan High School, Nigdi, Pune 411 044, 5 OA No.373 of 2020 Mob: 8793579843 \ 13. Shri. Balasaheb B. Mane, §| Son of Shri Bajrang B. Mane, Z~ } Date of Birth: 04.12.1958 Junior Works Manager (Retired) Office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune- 410 506. R/at: Sheet Chaya Society, S.No. 26, Block No. 13, Nigdi, Pune- 411 044. Mob: 9881286902. 14, Shri. Dilip S. Patole, Son of late Shripati Visnu Patole, Date of Birth: 01.06.1963 Working as Junior Works Manager /T-Mech. In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Sr No. 78/96, Bidg. No. T-703, Phase-I, Celestial City, Dehu Road, Pune-412 101. Mob No. 7875740080/[email protected] 15. Shri. Rajendra Y. Bhosale, Son of Shri Yashwant A. Bhosale, Date of Birth: 13.04.1960. Retired as Junior Works Manager From the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Survey No. 140/16, Behind Gurudwara, Near Nachiket Balgram, Chinchwad, Pune 411 033. Mob No. 960449280/ [email protected] 6 OA No.373 of 2020 16. Shri. Nitin S. Purandare, \ Son of Shri Sudhakar R. Purandare, Date of Birth: 21.05.1963 Working as Junior Works Manager In the office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: 57, Shukrawar Peth, Deshmukhwada Coop. Hsg. Scty., Near Mandai Ganapati Temple, Pune 411 002. Mob No. 9405427499 / [email protected] 17. Shri. Jayant B. Mamdapurkar, Son of Shri Bhaurao R. Mamdapurkar, Date of Birth: 03.04.1959 Junior Works Manager (Retired) Office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at. A-106, Shree Balwant Niwas, 846-47, Sadashiv Peth, Near Scout Ground, Pune 411 030. Mob No. 9923695330/[email protected] 18. Shri. Kiran G. Kulkarni Son of Gopal Rajaram Kulkarni Date of Birth 01.08.1971 Working as Junior Works Manager In the Office of Ordnance Factory, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Sunder Shrishti CHS, D5/104, Anandnagar, Sinhagad Road, Pune 411 051. Mob: 9422312065 7 OA No.373 of 2020 19. Shri. Pramod P. Tarwe, \ Son of Late Shri P. N. Tarwe, Date of Birth: 24.08.1961 Working as Junior Works Manager (SG) In the office of Ordnance Factory, Section ISO Cell, Dehu Road, Talegaon Dabhade, Dist. Pune-410 506. R/at: Uday Hill Top Residency, P1/603, Near PCMC Water Tank, Ravet, Pune - 412 101. Mob No. 9423022406/ [email protected] .. Applicants (By Advocate: Ms. Annie Nadar) VERSUS The Union of India, through 1. The Secretary, Ministry of Defence, Department of Defence Production, South Block, New Delhi-110 001. 2. The Chairman and Director General, Ordnance Factories, Ordnance Factory Board, Ayudh Bhavan, 10-A, S.K. Bose Road, Kolkata -- 700 001. 3. The General Manager, Ordnance Factory, Dehu Road, Pune-412 101. ... Respondents (By Advocate: Shri R.R. Shetty) 8 OA No.373 of 2020 ORDER Sj :| Hon'ble Mr. R.N. Singh, Member (J):
By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following reliefs:-
"(a) To allow the Original Application
(b) To quash and set aside the impugned Office Orders No.1914/ESTT/JWM/NFU/2019 dated 18.10.2019 (Annex A -1) and _ the identical orders passed by the Respondents in respect of ail the Applicants.
(c) To be pleased to call for the records and proceedings/deliberations of the case in respect of Non-Functional Grade Pay and salary and after going through its proprietary, legality and constitutional validity be pleased to order and direct the Respondents to grant Non-Functional Grade (NFG) Scale i.e., Pay Band -2 (Rs. 9300 - 34800) + GP Rs.5400/- on completion of 4 years of regular service of the Applicants in PB-2 (Rs.
9300 - 34800) + GP Rs.4800/- with all consequential benefits such as pay fixation, arrears of pay, pension/family pension fixation, arrears of pension/family pension and other retiral dues along with interest @ 18% thereon.
(d) To allow the O.A. With exemplary costs.
VV 9 OA No.373 of 2020 Pass such other directions/orders as_ this Hon'ble Tribunal may deem fit and proper to meet the ends of justice."
Pursuant to notice, the respondents have filed their reply affidavit opposing the claim of the applicants. The applicants have filed rejoinder to the counter affidavit filed by the respondents reiterating the claim of the applicants on the grounds as mentioned in the OA.
3. The brief facts leading to filing of the captioned OA are that the applicants, 19 in number, were initially appointed on various posts in the Office of the respondent no.3 on different dates during the period from 1981 to 1995 and are now working/retired as Junior Works Manager (in short 'JWM) under the respondents. The Government of India on 9.8.1999 introduced the Assured Career Progression Scheme (hereinafter referred to as 'ACP Scheme') for all the Group 'B', 'C' and 'D' employees. According to which, the Government servant, who has stagnated in a regular post for the last 12 years or 24 10 OA No.373 of 2020 years should be granted first and second financial upgradation(s) under the said ACP Scheme respectively.
The said ACP Scheme came to be modified on the recommendations of the VIth CPC dated 1.9.2008 and the Modified Assured Career Progression Scheme (hereinafter referred to as 'MACP Scheme') was introduced on 19.5.2009 with retrospective effect, which provides that the Government employees are to be granted three financial upgradations upon completion of 10, 20 and 30 years of regular service. In accordance with the recommendations of the VIth CPC, the Govt. of India passed a resolution bearing No.1/1/2008-I C stating that the Group 'B' officers of Department of Posts, Revenue etc. will be granted GP Rs.5400/- in PB-2 on non-functional basis after rendering four years of regular service in the GP Rs.4800/- in PB-2.
4. The Hon'ble High Court of Judicature at Madras in Writ Petition No. 13225 of 2020, titled M. Subramaniam VY 11 OA No.373 of 2020 vs. Union of India and others, held that if an officer has completed 4 years in the pre-revised pay scale of Rs.7500- 12000 (corresponding to Grade Pay of Rs.4800/-) on 1.1.2006 or earlier, he will be given the non-functional upgradation with effect from 1.1.2006 and if the officer completes 4 years after 1.1.2006, he will be given non- functional upgradation in PB-2 + GP Rs.5400 from such date on which he completes 4 years in the pay scale of PB- 2 + GP Rs.4800/- (revised in 6t Pay Commission) and the appeal preferred against the aforesaid judgment of the Hon'ble High Court of Judicature at Madras by way of Civil Appeal No. 8883/2011 filed by the Union of India in M. Subramaniam (supra) was dismissed by the Hon'ble Supreme Court vide judgment dated 10.10.2017 and Review Petition preferred in the said Civil Appeal was also dismissed by the Hon'ble Supreme Court. Since the applicants claim is similar as decided by the Hon'ble High Court of Judicature at Madras vide judgment rendered in Vy 12 OA No.373 of 2020 M. Subramaniam (supra) which was upheld by the Apex Court vide aforesaid judgment dated 10.10.2017, the applicants preferred their representations to the respondent No.3 stating therein that their claim is similar to that of M. Subramaniam (supra) and thus they have become entitled to non-functional upgradation in the pay scale of PB-2 (Rs.9300-34800) + GP Rs.5400 (pre-revised). However, the said representations of the applicants have been rejected by the respondents vide order dated 18.10.2019 on the sole ground that the benefit of the judgment of the Hon'ble High Court of Judicature at Madras in M, Subramaniam (supra) is applicable to the individual petitioner only. Petitioners identically placed as the applicants had filed OA No.503/2017, titled Kumar S. Krishnamurthy and others vs. Union of India and others before this Tribunal, which was allowed by this Tribunal vide Order/Judgment dated 8.10.2018 observing that the respondents therein have acted ina very arbitrary 13 OA No,373 of 2020 and discriminatory manner and their action is result of slackness and further directed the respondents therein to extent the benefit of the judgment of the Hon'ble High Court of Judicature at Madras in M. Subramaniam (supra) to the applicants therein in a time bound manner. A similar view was also taken by this Tribunal in OA Nos.100 and 716 of 2019 vide Orders/Judgments dated 11.2.2019 and 21.112019 respectively. Thereafter on 13.5.2010, the Ministry of Defence, Deptt. Of Defence Production in consultation with Department of Expenditure, have decided to grant level - 9 (PB-2 + GP Rs.5400/- to Junior Scientist Officers in Directorate General Aeronautical Quality Assurance on non-functional basis on completion of 4 years continuous service in the GP of Rs.4800/-. Both the present respondents and Directorate General Aeronautical Quality Assurance are the branches of the Department of Defence Production and function under the Ministry of Defence. When the v 14 OA No.373 of 2020 grievances of the applicants have not been redressed by the respondents, the applicants have filed the present OA seeking the reliefs as quoted above.
S. We have heard the learned counsels for the parties and perused the pleadings available on record as well as the order(s)/judgment(s) on which reliance has been placed by the learned counsels for the parties.
6. During the course of the hearing, learned counsel for the applicants has submitted that there is no denial of the fact that the claim of the applicants are not similar to that of M. Subramaniam (supra) but the same has been rejected by the respondents solely on the ground that judgment of the Hon'ble High Court of Madras in M. Subramaniam (supra) is applicable only in the case of the petitioner therein. Learned counsel for the applicants has submitted that similar nature of claims have been decided by the Hon'ble Supreme Court and other High Courts as well as this Tribunal (supra) and other Benches of this 15 OA No.373 of 2020 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 & other vs. vs. Government of NCT of Dethi and another, which was upheld by the Hon'ble Supreme Court vide Judgment dated 1.9.2017 (Annexure A-10) in case (Diary No.23663/2017), titled Government of NCT of Dethi and another vs. Somvir Rana (TGT Eng) and others.
7. Learned counsel for the applicants has strenuously argued that although the cases of the applicants have been rejected solely on the ground that the benefit of the judgment of the Hon'ble High Court of Judicature at Madras in M. Subramaniam (supra) is applicable to the individual petitioner only vide the impugned order dated 18.10.2019 but when Directorate General of Aeronautical Quality Assurance (hereinafter referred to as "DGAQA") issued the letter/order dated 13.5.2020, which also comes 16 OA No.373 of 2020 under the Ministry of Defence as the present respondents, vide which the policy decision dated 13th May 2020 has been conveyed to all the directorates come under Ministry of Defence that "it has been decided to grant Level 9 in the pay Matrix (pre-revised Grade Pay of Rs.5400/- in Pay Band-2) to Junior Scientific Officers in DGAQA on non- functional basis on completion of four years continuous Service in the Grade Pay of Rs.4800/- w.e.f. 01.01.2006' and the said policy decision has been issued with the concurrence of Ministry of Finance, Department of Expenditure vide their UO Note No.10(12)/E.III(B)/2015 dated 11.03.2020 and the said DGAOA mentioned in the said letter/order dated 13.5.2020 (Annexure A-14) that "The cases of eligible officers for grant of the above benefit may be assessed accordingly and submitted to this Haqrs alongwith vigilance & disciplinary status of the concerned officers on the date of maturity of the qualifying service, for seeking approval of the Competent Authority, the cases 17 OA No.373 of 2020 of the applicants in the present OA have not been considered for grant of the benefits of the said policy decision. 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. She 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.
18 OA No.373 of 20208. Per contra, although learned counsel for the respondents has not disputed the factual matrix of the present case, however, he has submitted by referring the submissions made in the reply affidavit that the post of JWM is a Group 'B' Gazetted Officer post in the Ordnance Factories holding Grade Pay of Rs.4600/- in PB-2 (Rs.9300-34800) placed on Level-7 of pay matrix as per the recommendations of the VIth CPC. There was never any specific post of GP Rs.4800/- in Ordnance Factories. However, Govt. of India issued Gazetted Notification dated 15.6.2017 wherein it was stated as under:-
i) Of the total pool of posts in GP Rs.4200 and GP 4600, ten percent should be earmarked to be placed in GP 4800;
ii) The posts of GP Rs.4800 should be filled up from personnel in GP Rs.4200 and GP 4600 in the following manner:
° 70 percent of each earmarked posts should be filled up through promotion from GP Rs.4600/-;
° 30 percent should be filled up through a Limited Departmental Competitive Examination in which employees from both GP Rs.4200 ad GP Rs.4600 19 OA No.373 of 2020 would be eligible to compete. This will enable deserving and meritorious employees at GP Rs.4200 to jump to GP Rs.4600 and go directly to GP Rs.4800/-
80 percent of the employees in GP Rs.4800/- will be eligible for non-functional upgradation to Level 9 (GP Rs.5400/- (PB-2) upon completion of four years in level 8 on seniority-cum-suitability basis."
9. In compliance of Notification dated 15.6.2017 (Annexure R-1), new specific post in GP Rs.4800/- in Level-8 (PB-2) was created as Junior Works Manager (Selection Grade), (hereinafter referred to as JWM {SG} came into effect on 13.9.2018 and subsequently the first batch of JWM (SG) came into effect on 13.9.2008 after scrutiny of eligible JWMs by Departmental Promotion Committee (DPC) and as such it is amply clear that the first batch of JWM (SG) in GP Rs.4800/- will be completing four years only on 12.9.2022 and _ the promotion order in respect of such JWM (SG) is annexed as Annexure R-2. Learned counsel for the respondents has submitted that all the applicants in the instant OA were 20 OA No.373 of 2020 granted financial upgradation in GP Rs.4800/- prior to 2018 upon completion of eligibility as per the MACP Scheme and para 8.1 of MACP Scheme provides that consequent upon the implementation of sixth CPC's recommendation, grade pay of Rs.5400/- is now in two pay bands viz. PB-2 and PB-3. The Grade Pay of Rs.5400/- in PB-2 and Rs.5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme (Annexure R3).
Since all the applicants had been granted financial upgradation in GP Rs.4800/- under MACP scheme only which does not mean that they have attained the designation of JWM (SG), hence, the recommendations of the 6% CPC and the notification of Govt. of India dated 15.6.2017 only applicable to 80% of those who will be completing four years of regular service in the post of JWM (SG). In support of the above contentions, learned counsel has placed reliance on the common Order dated 19.6.2018 21 OA No. 373 of 2020 of the Earnakulam Bench of this Tribunal in OA No.123/2017 and other connected OAs, titled K.S. Revi vs. The Chairman, Central Board of Excise, etc. etc. Learned counsel for the respondents has _ further submitted by placing reliance on the decision of the Hon'ble Supreme Court in the case of Union of India v. P V Hariharan, reported in [1997 (3) SCC 568] that Hon'ble Apex Court observed as under:-
"S. Before parting with this appeal, we feel impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunals on the question of pay scales. We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of "equal pay for equal work" is also being 22 OA No.373 of 2020 misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of things if all matters relating to pay scales, i.e., matters asking for a higher pay scale or an enhanced pay scale, as the case may be, on one or the other eround, are heard by a Bench comprising at least one Judicial Member. The Chairman of the Central Administrative Tribunal and the Chairmen of the State Administrative Tribunals shall consider 'issuing appropriate instructions in the matter."
10. Lastly, learned counsel for the respondents has submitted that the instant OA deserves to be dismissed by this Tribunal.
11. In rebuttal to the above submissions of the learned counsel for the respondents, learned counsel for the applicants has submitted that in the impugned order dated 18.10.2019, the respondents have stated that "The Judgment in the O.A. No.167 of 2009 is aimed at the va 23 OA No.373 of 2020 particular petitioner and accordingly relief of the judgment is also applicable to the individual petitioner only', but they have not denied that the applicants in the instant OA are similarly placed and the Madras Bench of this Tribunal vide Order dated 19.4.2010 in OA No.167/2019, challenged the same before the Hon'ble High Court of Judicature at Madras by way of Writ Petition No. 13225 /2010 quashed the abovesaid order/judgment of the Madras Bench of this Tribunal vide Order/ Judgment dated 6.9.2010, which was challenged by the respondents before the Hon'ble Apex Court by way of Civil Appeal No.8883/2011, titled Union of India and others vs. M. Subramaniam and while upholding the aforesaid Order/Judgment of the Hon'ble High Court of Judicature at Madras, the Hon'ble Apex Court dismissed the said Writ Petition preferred by the respondents therein and 24 OA No.373 of 2020 thereafter Review Petition No.2519 /2018 preferred by the respondents therein was also dismissed vide Judgment dated 23.08.2018. So far as reliance placed by the learned counsel for the respondents on the decision of the Earnakulam Bench of this Tribunal in the case of K.S. Ravi (supra) is concerned, the same is per incuriam, as the Earnakulam Bench of this Tribunal has not taken into consideration the Order/Judgment of the Hon'ble High Court of Delhi in the case of Somvir Rana (supra), as the Hon'ble High Court of Delhi in the said case as held that unlike "stagnation" or performance based increments or placement in higher scales, the grant of Rs.5400/- is automatic, after the happening of a certain event, i.e., completion of four years' service. This is quite different from promotion or placement in the selection grade, which is performance dependent or based on the availability of a few slots or vacancies (usually confined to a portion of the entire cadre say 20%). The Hon'ble High Court of Delhi 25 OA No.373 of 2020 categorically held that the grant of a higher grade pay did \ not preclude the grant of the third financial upgradation.
She has further pointed out that already in the case of M. Subramaniam (supra), the Hon'ble High Court of Judicature at Madras has categorically held that there will be no distinction between Group 'B' Officers, who have gained the pay scale of PB-2 + Grade Pay Rs.4800/- either by way of promotion or by way of ACP/MACP for the purpose of granting the pay scale of PB-2 + Grade Pay Rs.5400/- on non-functional basis upon completion of 4 years regular service in PB-2 + GP Rs.4800/-. She has further submitted that even though the applicants have gained the pay scale of PB-2 + GP Rs.4800/- through MACP, they are rightfully entitled to be granted the pay scale of PB-2 + GP Rs.5400/- on non-functional basis upon completion of 4 years of regular service in PB-2 + GP Rs.4800/-, as held in the case of M. Subramaniam (supra) by the Hon'ble Supreme Court and Hon'ble Delhi 26 OA No.373 of 2020 High Court in the case of Somvir Rana (supra) as well as various Benches of this Tribunal in a catena of judgments, few of which are referred to hereinabove.
12. Having heard the learned counsels for the parties, we observe that the Hon'ble High Court of Judicature at Madras in the case of M. Subramaniam (supra) held as follows:-
"6. Itis 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 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 27 OA No.373 of 2020 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 fromn 01.01.2006 and if the officer completes 4 years on date after 01.01.2006, he will be given non-28 OA No.373 of 2020
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. 2400. 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."
13. The aforesaid Order/Judgment of the Hon'ble High Court of Judicature at Madras has been upheld by the Hon'ble Supreme Court in a appeal (supra), preferred by 29 OA No.373 of 2020 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."
14. 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 23.8.2018 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 v 30 OA No.373 of 2020 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."
15. 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 31 OA No.373 of 2020 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."
16. This Bench of this Tribunal in the case of Kumar S. Krishnamurthy and others (supra) considered the same issued in which this Tribunal observed as under:-
"SO. 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. 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 32 OA No.373 of 2020 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 14 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."
17. This Bench of the Tribunal as well as various Benches of this Tribunal have consider the similar issue, which were decided on the basis of law laid down by the Homble Suprem Court in the case of M. Subramaniam (supra).
33 OA No,373 of 2020
18. Keeping in view the aforesaid decisions, the Ministry of Defence vide letter/order dated 13.5.2020 (Annexures A-14), the Ministry of Defence took a policy decision to grant Level 9 in the pay Matrix (pre-revised Grade Pay of Rs.5400/- in Pay Band-2) to Junior Scientific Officers in DGAQA on non-functional basis on completion of four years continuous service in the Grade Pay of Rs.4800/- w.e.f, 01.01.2006 and the said policy decision has been issued wih the concurrence of Ministry of Finance, Department of Expenditure vide their UO Note No.10(12)/E.IN(B)/2015 dated 11.03.2020.
19, In view of the aforesaid factual matrix of the case and keeping in view the law laid down by the Hon'ble Supreme Court in the case of M. Subramaniam (supra), Hon'ble Delhi High Court in the case of Somvir Rana (supra) as well as the order(s)/judgment(s) of this Bench of the Tribunal in the cases referred to hereinabove and the 34 OA No.373 of 2020 policy decision taken by the Ministry of Defence (supra), we are of the considered view that the applicants are entitled for grant of Level 9 in the pay Matrix (pre-revised Grade Pay of Rs.5400/- in Pay Band-2) on non-functional basis on completion of four years continuous service in the Grade Pay of Rs.4800/- w.e.f. 01.01.2006 or on any subsequent date.
20. Learned counsel for the respondents by placing reliance on the decision of the Hon'ble Supreme Court in the case of Union of India and others vs. Tarsem Singh, reported in (2008) 8 SCC 648, has submitted that at all, if this Tribunal is of the view that the applicants are entitled for grant of the relief prayed for by them in the captioned OA, the arrears be restricted to three years prior to filing of the captioned OA, as the applicants have approached this Tribunal belatedly for seeking the benefits of the judgment rendered by the Hon'ble Supreme Court in the case of M. Subramaniam (supra). We have carefully 35 OA No.373 of 2020 gone through the judgment of the Hon'ble Supreme Court in the case of Tarsem Singh (supra). We find that in the said case of Tarsem Singh (supra), the said employee was declared invalid from army service on 13.11.1983 and he had however approached the High Court as late as in 1999 for grant of disability pension, but the facts of the present case are entirely different as in this case the applicants are seeking grant of benefit of a judgment in which the similar claim was upheld by the Hon'ble Supreme Court in the case of M. Subbramanian (supra) decided on 10.10.2017, vide representations preferred in 2019, which were rejected by the respondents vide impugned order dated 18.10.2019 and when the Hon'ble Delhi High Court as well as this Tribunal in a catena of cases granted the similar reliefs, as also a policy decision has been taken by the Ministry of Defence under which the respondents herein function vide letter dated 13.5.2000, despite the above, when the grievances of the 36 . OA No.373 of 2020 applicants were not redressed by the respondents, they have approached this Tribunal. Therefore, the judgment of the Hon'ble Supreme Court in the case of Tarsem Singh (supra) is not relevant in the captioned OA. It is further observed that this Tribunal is always guided by the law declared by the Hon'ble Supreme Court and also abide by the same. In the instant case, this Tribunal has not granted any pay scale to the applicants suo moto rather this Tribunal is following the judgment of the Hon'ble Supreme Court as well as of the Hon'ble High Court of Delhi and a catena of Orders/Judgments rendered by this Tribunal, referred to hereinabove, on the issue in hand.
21. It is pertinent to mention that the Hon'ble Supreme Court in a catena of cases, including in the cases of K.C. Sharma (supra) held that the benefit of a judgment cannot be denied to similarly situated employees and that in the case of State of Karnataka (supra), the Hon'ble Supreme Court observed that "Service jurisprudence 37 OA No.373 of 2020 evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly.
Only because one person ahs approached the court that would not mean that persons similarly situated should be treated differently"
22. In view of the above facts and circumstances, the present OA deserves to be allowed. The same is accordingly allowed with the following direction{s) / order(s):-
Gi) The impugned Office Order No.1914/ESTT/JWM/NFU/2019 dated 18.10.2019 is set aside;
(ii) The respondents are directed to consider and grant Non-Functional Grade {NFG) Scale i.e., Pay Band -2 (Rs. 9300 -- 34800) + GP Rs.5400/- on completion of 4 years of regular service by the applicants in PB-2 (Rs. 9300 -- 34800) + GP Rs.4800/- with all consequential benefits, i.e., pay fixation, arrears of \V
(iii)
(iv)
23. 38 OA No.373 of 2020 pay, pension/family pension fixation, arrears of pension /family pension and other retiral dues;
The above exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this Order; and If the above direction(s) are not complied within the period stipulated above, the applicants are entitled for interest on delayed payments of above dues at the rate applicable to GPF amount till the date of actual disbursal to them.
In the facts and circumstances, there shall be no order as to costs.
(Rajinder Kashyap) - (R.N, Singh) Member (A) Member (J) /ravi/