Central Administrative Tribunal - Ernakulam
A.Praveen Kumar vs Union Of India Represented By Its ... on 6 April, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00005/2016,
Original Application No.180/00089/2016,
Original Application No.180/00091/2016,
Original Application No.180/00176/2016,
Original Application No.180/00262/2016,
Original Application No.180/00488/2016,
Original Application No.180/00651/2016,
Original Application No.180/00725/2016
& Original Application No.180/00726/2016
Thursday, this the 6th day of April, 2017
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
Original Application No.180/00005/2016
A.Praveen Kumar,
S/o.late A.Choykutty,
Assistant Commissioner of Customs,
Customs Preventive Division,
Central Revenue Buildings,
Manachira, Kozhikode - 673 001. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.
5. Commissioner of Customs (Preventive),
Catholic Centre, Broadway, Cochin - 682 031.
6. Pay & Accounts Officer,
Customs, Customs House,
Willington Island, Cochin - 682 009. . . . Respondents
(By Advocates Mr.K.S.Dilip,ACGSC)
Original Application No.180/00089/2016
Rasheed Ali P.N.,
S/o.late Ahamed Koya P.N.,
Assistant Commissioner of Central Excise (Retd.),
Mayflowers, Zilla Colony, P.T.Usha Road,
Kozhikode - 673 032. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. Commissioner of Central Excise & Customs,
Central Revenue Buildings, Mananchira,
Kozhikode - 673 032.
5. Pay & Accounts Officer,
Central Excise & Customs,
Central Revenue Buildings,
Mananchira, Kozhikode - 673 032. . . . Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.180/00091/2016
M.M.Mathew,
S/o.late M.V.Michel,
Superintendent of Central Excise (Retd.),
Machiyanickal House, Pearl Avenue, Poovani,
Viyur, Thrissur - 680 010. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
3. Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.
4. Commissioner of Central Excise & Customs,
Central Revenue Buildings,
Mananchira, Kozhikode - 673 032.
5. Assistant Commissioner,
Central Excise Thrissur Division,
Sakthan Thampuran Nagar,
Thrissur - 680 001.
6. Pay & Accounts Officer,
Central Excise & Customs,
Central Revenue Buildings,
Mananchira, Kozhikode - 673 032. . . . Respondents
(By Advocates Mr.P.G.Jayan,ACGSC)
Original Application No.180/00176/2016
C.Sreedharan,
S/o.late K.K.Nair,
Assistant Commissioner of Customs,
Air Customs, Nedumbassery, Cochin - 683 111. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.
5. Commissioner of Customs,
Customs, Customs House,
Willington Island, Cochin - 682 009.
6. Pay & Accounts Officer,
Customs, Customs House,
Willington Island, Cochin - 682 009. . . . Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.180/00262/2016
1. C.D.Jose,
S/o.C.T.Daniel,
Superintendent of Central Excise,
Central Excise Divisional Office,
Sakthan Tampuran Nagar, Thrissur - 680 001.
2. Varma K.Raghu,
S/o.A.K.Raja Raja Varma,
Superintendent of Central Excise,
Thiruvananthapuram Audit Circle,
ICE Bhavan, Press Club Road,
Thiruvananthapuram - 695 001.
3. P.G.Suresh Babu,
S/o.Govinda Pillai,
Superintendent of Central Excise,
Central Excise Range Office, P.T.Jacob Road,
Thoppumpady, Cochin - 682 005.
4. N.Vijayan,
S/o.late O Narayanan,
Assistant Commissioner of Central Excise,
Thiruvananthapuram Audit Circle, ICE Bhavan,
Press Club Road, Thiruvananthapuram - 695 001. . . . Applicants
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.
5. Commissioner of Central Excise & Customs,
Central Revenue Buildings, Mananchira,
Kozhikode - 673 001.
6. Commissioner of Central Excise (Audit),
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
7. Pay & Accounts Officer,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
8. Pay & Accounts Officer,
Central Revenue Buildings, Mananchira,
Kozhikode - 673 001. . . . Respondents
(By Advocates Mr.S.Ramesh,ACGSC)
Original Application No.180/00488/2016
K.K.Subramanyan,
S/o.late K.S.Kesavan,
Assistant Commissioner of Customs,
Calicut Airport, Karipur,
Malappuram District. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.
2. Chairman, Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. Commissioner of Customs (Preventive),
Catholic Centre, Broadway,
Cochin - 682 031.
5. Commissioner of ,
Central Revenue Buildings, Mananchira,
Kozhikode - 673 001.
6. Pay & Accounts Officer,
Customs, Customs House,
Willington Island, Cochin - 682 009. . . . Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.180/00651/2016
K.R.Satish,
S/o.late K.N.Ramesh,
Assistant Commissioner of Central Excise,
Office of the Commissioner of Central Excise,
Central Revenue Buildings, I.S.Press Road, Cochin - 682 011.
Residing at Shivapadh, Near Government UP School,
Padamugal, Kakkanad P.O., Ernakulam - 682 030. . . . Applicant
(By Advocate Mr.Shafik M Abdul Khadir)
Versus
1. The Chairman,
Central Board of Excise and Customs,
Department of Revenue, Ministry of Finance,
North Block, New Delhi.
2. The Deputy Secretary,
Central Board of Excise and Customs,
North Block, New Delhi.
3. The Commissioner of Central Excise,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. The Deputy Controller of Accounts,
Central Excise, 121, Mahatma Gandhi Road,
Chennai - 600 034.
5. The Pay and Accounts Officer,
Central Excise and Customs, Cochin - 682 018. . . . Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.180/00725/2016
1. Mohan Philip,
S/o.late P.P.Philip,
Superintendent of Central Excise,
Central Excise Bhavan, Kathrikadavu,
Cochin - 682 017.
2. M.C.Rajendra Babu,
S/o.Chandrasekharan Pillai,
Superintendent of Central Excise,
Central Excise Range II, Alapuzha - 682 017.
3. C.Haridas,
S/o.Chakrapani Warrier,
Superintendent of Central Excise,
Office of the Commissioner of Central Excise & Customs,
I.S.Press Road, Cochin - 682 018.
4. S.Sidheswaran,
S/o.late P.P.Sivasankaran Nair,
Superintendent of Central Excise,
Angamaly, Ernakulam Dist. - 683 572. . . . Applicants
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Personnel & Training,
New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.
4. The Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.
5. Pay & Accounts Officer,
Central Excise, Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018. . . . Respondents
(By Advocates Mr.T.C.Krishna,Sr.PCGC)
Original Application No.180/00726/2016
Mathew John,
S/o.late N.J.John,
Assistant Commissioner of Customs,
Office of the Commissioner of Customs (Preventive),
Catholic Centre, Broadway, Cochin - 682 031. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Department of Personnel & Training, New Delhi - 110 001.
2. Chairman, Central Board of Excise & Customs,
North Block, New Delhi - 110 001.
3. Chief Commissioner of Central Excise & Customs,
Central Revenue Buildings, I.S.Press Road, Cochin - 682 018.
4. The Commissioner of Customs (Preventive),
Catholic Centre, Broadway, Cochin - 682 031.
5. Commissioner of Central Excise,
Bangalore I Commissionerate,
Central Revenue Buildings, Queen's Road,
Bangaluru - 560 002.
6. Pay & Accounts Officer,
Customs, Customs House,
Willington Island, Cochin - 682 009. . . . Respondents
(By Advocates Mr.Thomas Mathew Nellimoottil)
These applications having been heard on 31 st March 2017, the Tribunal
on 6th April, 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants in the O.As before us are presently working as Assistant Commissioner of Central Excise. They joined service in Central Excise Department as a direct recruit Inspector of Central Excise (OG) on various dates. Subsequently they were promoted to the grade of Superintendent or granted 1st ACP to the post of Superintendent. The applicants have been granted the 2nd financial upgradation as per ACP Scheme on completion of 24 years of service to the scale of pay of Assistant Commissioner. Thereafter when the 6th CPC pay scales were implemented they were reckoned to be in PB2 with the grade pay of Rs.5400/-. Thereafter they have been granted the 3rd MACP to the grade pay of Rs.6600/- on completion of 30 years. They were also given a functional promotion as Assistant Commissioner in turn. Applicants argue that the MACP Scheme and clarification of 2010 by the DOPT specifically details the manner in which the pay is to be fixed for those who has been granted the ACP benefits between 1.1.2006 and 31.8.2008. Some applicants have not been given 3 rd MACP and for some others the 3 rd MACP upgradation granted to the grade pay of Rs.6600/- is sought to be withdrawn. Challenging this action the applicants approach this Tribunal for relief.
2. All the applicants being similarly placed we cite O.A.No.651/2016 to state the facts of the case. The applicant is aggrieved by Annexure A-1 order dated 28.7.2016 by which the 3 rd MACP upgradation granted to the grade pay of Rs.6600/- on completion of 30 years of service is withdrawn, pay reduced and refixed with effect from 18.5.2013, affecting his pay and pension. The applicant also impugnes Letter F.No.A-23011/25/215-Ad.II.A dated 20.6.2016 issued by the 2nd respondent reckoning the erstwhile ACP upgradation granted to the applicant from PB2 to PB3 with the grade pay of Rs.5400/- as one financial upgradation and a cause for withdrawing the 3 rd MACP upgradation.
3. The applicant is presently working as Assistant Commissioner of Central Excise in the office of the 3rd respondent. He joined service in Central Excise Department as a direct recruit Inspector of Central Excise (OG) on 18.5.1983. He was promoted to the grade of Superintendent in June 1998 after 15 years of service. He has put in 33 years and 2 months of service in the department and retired on superannuation on 31.7.2016.
4. In 1999 the Government of India introduced the Assured Career Progression (ACP) Scheme in order to offset the problem of stagnation faced by the employees due to lack of adequate promotional avenues. As per para 3.1 of the OM :
Keeping in view of all relevant factors, it has, therefore, been decided to grant two financial upgradations as recommended by the fifth Central Pay Commission and also on accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group C and D employees) entered into with the staff side of the National Council (JCM) under the ACP Scheme to Group B, C and D employees on completion of 12 years and 24 years (subject to condition No.4 in Annexure I) of regular service respectively.
5. As the applicant was not granted any further promotion from the level of Superintendent, he was granted 2 nd ACP upgradation on completion of 24 years in May 2007 and accordingly was placed in the Group A promotional post in Pay Scale of Rs.8000-275-13500/- (V CPC scale) pertaining to Assistant Commissioners of Central Excise and Customs. This 2 nd financial upgradation was granted prior to the implementation of the 6 th CPC recommendations. The 6th CPC had replaced ACP Scheme with Modified Assured Career Progression Scheme (MACPS) with effect from 1.9.2008, granting three financial upgradations at intervals of 10, 20 and 30 years of continuous regular service. The MACPS envisaged placement in the immediate next higher grade pay in the hierarchy of the recommended pay band. The implementation of the 6 th Pay Commission as per the Central Civil Services (Revised Pay) Rules, 2008, had the deemed effect from 1.1.2006.
The erstwhile ACP Scheme remained effective till 31.8.2008. The new MACP Scheme was notified in 19.5.2009, but was given retrospective effect from 1.9.2008. Applicants were subsequently promoted as Assistant Commissioner in turn, after being given the 2 nd financial upgradation under the ACP Scheme in the V CPC Pay Scale of Rs.8000-275-13500 pertaining to Assistant Commissioner of Central Excise and Customs with effect from 15.8.2007. The corresponding 6 th CPC scale was PB3 Rs.15400-39000/- and Grade Pay Rs.5400/-.
6. We note from the VI CPC First Schedule Part A Section 1, that V CPC scale S-15 Rs.8000-13500 has been given VI CPC corresponding scale of PB 2 Rs.9300-34800 with Grade Pay Rs.5400/-. We also note that VI CPC has introduced a new scale Rs.8000-13500/- in the First Schedule as a Group A entry scale which is given a different and higher Pay Band 3 Rs.15600-39100 with same GP ie. Rs.5400/-. Hence the old scale of Rs.8000-13500 is now bifurcated and placed in two VI CPC Pay Bands, II and III with differing pay scales of Rs.9300-34800 and Rs.15600-39100, but given the same grade pay. Hence though the Pay Band undergoes an upward rise, giving beneficiaries higher pay, the grade pay remains the same. Counsel for the applicants in O.A.No.725/2016 argue that they are placed in PB III by CPC as per the Government's Resolution introducing the VI CPC recommendations. Applicants also bring to our notice Clause X(e) in the Government of India VI CPC Resolution which reads as follows :
X(e). Group B officers of Department of Posts, Revenue etc. will be granted Grade Pay of Rs.5400/- in PB-2 on non-functional basis after 4 years of regular service in the grade pay Rs.4800/- in PB-2.
7. If on 1.1.2006 date of implementation if VI CPC pay scales applicants are placed in PB III, then they will not be entitled to benefit under Clause X(e), as X(e) is introduced by VI CPC for PB II in which PB applicants are not placed on 1.1.2006. They are placed in PB III on 1.1.2006 as argued, and hence a retrospective effect of Clause X(e) pre 1.1.2006 is not admissible. Applicants are not entitled for two benefits on 1.1.2006 but one benefit only ie. pay as drawn on 1.1.2006. Hence there appears no clarity on the benefit applicants are seeking on 1.1.2006, the crucial date of VI CPC pay fixation ie. as Superintendent or as Assistant Commissioner. Applicants cannot be assumed to draw two pay scales of two posts on 1.1.2006.
8. Respondents, on the other hand, argue that since Pay Band changes from the lower Group B Pay Band Rs.9300-34800 to higher Group A Pay Band Rs.15600-39100, the grade pay remaining the same, the financial benefits of higher Pay Band is the benefit which accrues to applicants on promotion. We agree with this argument as the benefit on promotion in the form of increase in emoluments is on account of higher Pay Band of Rs.15600-39100/-.
9. The CCS (Revised Pay) Rules 2008 notified on 29.8.2008 was made effective from 1.1.2006. The erstwhile ACP Scheme of 1999 was still in force, when the new revised Pay Rules 2008 was introduced. The applicants who had completed 24 years regular service on 18.5.2007 were granted the 2nd financial upgradation in the Assistant Commissioner's scale as per Annexure A-5. Relevant portion of Annexure A-5 is reproduced below :
F.No.A-32013/2/2007.AD.II.A Government of India, Ministry of Finance, Department of Revenue CBEC.AD.II.A New Delhi dated the 3rd June 2008 Office Order No.04/2008 Sub : ACP Scheme in the case of Direct Recruit Group B and Group C officers working in the field formations under CBEC - regarding.
In pursuance of Department of Personnel and Training's O.M.No.35034/1/97-Estt. (D) dated 9th August 1999 and clarifications issued thereon from time to time on Assured Career Progression (ACP) Scheme, with the approval of competent authority the under mentioned Inspectors of Central Excise, Preventive Officers/Examiners are hereby granted 2nd financial upgradation/1st Financial upgradation in the case of Appraiser (Direct Recruit)/Superintendent etc. under the ACP Scheme and are accordingly placed in the pay scale of Rs.8000-275-13500/-.
10. ACP Scheme was applicable upto Group B level officers. The ACP Scheme notified vide Department of Personnel OM 35034/1/97-Est. dated 9 th August 1999 had in para 2.1 stated that in respect of Group A Central Services no financial upgradation under the scheme is being proposed for the reason that promotion in their case must be earned. Hence on 1.1.2006, the crucial date of VI CPC pay fixation, applicants were holding Group B Superintendent post in PB-2. Applicants were entitled to upgradation as Assistant Commissioner under ACP Scheme, as they were holding Group B post and entitled to the next Group A upgradation. This was also on account of the fact that the replacement for ACP Scheme ie. MACP was introduced on 1.9.2008. Hence ACP benefit for upgradation to promotional post was applicable to applicants.
11. Various PAO Office had expressed doubts as to the correct grade pay fixation of the Superintendents who had got their 2 nd financial upgradation under ACPS. These doubts were cleared by the respondent department in May 2011 by Annexure A-7 Letter F.No.A-23011/29/2010-Ad.II A dated 20.5.2011. The Ministry's Annexure A-7 letter has clarified that the pre- revised scale Rs.8000-275-13500 granted as financial upgradation under ACP to the promotional hierarchy of Assistant Commissioner is equivalent to Rs.15600-39100/- in PB-3 with Grade Pay Rs.5400/-. In para 5 of the said Annexure A-7, respondent has quoted para 8.1 of MACP Scheme which states that grade pay of Rs.5400/- in PB2 and PB-3 would be counted as separate upgradation and would be offset against financial upgradation under the Scheme.
12. The basic difference between the MACPS and ACPS is that the financial upgradation in ACP is to the promotional hierarchy, whereas in MACPS it is the placement in the immediate next higher grade pay. Applicants argue that illustration at 28(C) of MACP Scheme is applicable to them. The applicants have completed 30 years service with just one regular promotion as Superintendent from the cadre of Inspector of Central Excise. They are entitled to 2nd financial upgradation under the ACP Scheme to promotional post of Assistant Commissioner after completion of 24 years of regular service and the 3rd financial upgradation under the MACP Scheme to the next Grade Pay. There is no contest on these claims of applicants. The contest is regarding the manner in which the pay fixation was effected. It is also argued that V CPC pay scale Rs.8000-13500/- has also been given a Group B Pay Band of Rs.9300-34800/- PB-2 and a Group A Pay Band of Rs.15600-39100/- in PB-3. The latter Pay Band in PB-3 is a Group A Pay Scale. In the Government of India VI CPC Resolution of 29 th August 2008 benefit under Clause X (e) is extended to Group B officers of Posts, Revenue etc. with Grade Pay of Rs.5400/- in PB-2 on non-functional basis after 4 years of service in Grade Pay Rs.4800/-. This relief hence lies in PB-2 and not PB-3.
13. In the reply statement the respondents contend that a person who joins the CBEC as an Inspector, the first three promotions and the present pay band/Grade Pay would be as under :-
Sl. No. Cadre/Post Pay Band Grade Pay
1 Inspector PB-2:9300-34800 Rs. 4600/-
2 Superintendent PB-2: 9300-34800 Rs. 4800/-
3 Assistant PB-3: 15600-39100 Rs. 5400/-
Commissioner
4 Deputy PB-3: 15600-39100 Rs. 6600/-
Commissioner
14. Applicants are Assistant Commissioner and entitled to GP Rs.5400/- applicable to Assistant Commissioner as per above table. Prior to the introduction of Modified Assured Career Progression Scheme (MACPS), the benefits of financial upgradations under the ACP Scheme (ACPS) of August, 1999, used to be granted in the promotional hierarchy on completion of 12 and 24 years of regular service. The benefits of ACP scheme of August, 1999 had been allowed till 31.8.2008. The ACP financial upgradations granted in the then existing promotional hierarchy gave rise to uneven benefit to employees as several organizations adopted different hierarchical patterns. Consequently, employees working in organizations having greater number of intermediate grades suffered because financial up gradation under ACP scheme placed them in lower pay scale vis-a-vis similarly placed employees in organizations that had fewer intermediary grades. The 6 th CPC, therefore, recommended a systemic change in the ACP scheme by introducing MACP, whereby all employees irrespective of the hierarchical structure as prevalent in their organization, would get the same benefit.
15. The DOP&T introduced MACPS which allows three financial upgradations in the hierarchy of Grade Pay at regular intervals of 10 years, from the direct entry grade. Further, DOP&T vide their letter dated 26.7.2010 reiterated that the benefit of non-functional upgradation granted to the Superintendent (Group-B) officers on completion of 4 years of service would be treated as an upgradation, in terms of para 8.1 of the Annexure to MACP Scheme OM dated 19.5.2009, which introduced the Scheme and the same would be offset against one financial upgradation under MACP scheme. Para 8.1 of the Annexure-I of MACP scheme reads as follows:
'Consequent upon the implementation of the Sixth CPC's recommendations, grade pay of Rs. 5400 is now 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 MACP scheme.'
16. The MACP Scheme in para 8.1 having laid down the terms of implementation of the Scheme in the O.M rolling out the Scheme, any further clarification need not have been sought or given. Respondents argue that in the 30 years of their service, the applicants have been granted 3 financial upgradations as below :
a) One regular promotion from Inspector of Central Excise to Superintendent of Central Excise.
b) One MACP upgradation from Superintendent of Central Excise (Grade Pay Rs. 4800/-) to Superintendent of Central Excise with Grade Pay Rs. 5400/- in 9300-34800 in PB II.
c) One financial upgradation from the pay in the pay band of the post of Superintendent of Central Excise to that of the Assistant Commissioner of Central Excise with fixation benefit with Grade pay Rs. 5400/- in 15600-39100 in PB 3.
17. We are not in agreement with (b) above, as (b) was introduced by VI CPC and in the interregnum between application of VI CPC Pay Band ie. 1.1.2006 and announcement of VI CPC benefits ie. Government of India Resolution dated 29th August 2008, applicants had been granted 2 nd ACP to the promotional post of Assistant Commissioner. If applicants wanted to have their pay fixed as per VI CPC as on 1.1.2006, they were in the scale of Superintendent and not Assistant Commissioner. They were given 2 nd ACP benefits on dates subsequent to 1.1.2006. Applicants cite the case of S.Balakrishnan & Others (O.A.No.280/2012) in support of their case which was upheld by the High Court of Madras in W.P.11535/2014 by order dated 16.10.2014. It is also brought to our notice by respondent that the High Court, Madras vide subsequent order dated 8.12.2014 in W.P.No.19024/2014 of R.Chandrasekharan superceded its earlier order in W.P.No.11535/2014 dated 16.10.2014 and directed the respondent to issue a fresh circular codifying all the circulars issued earlier, explaining the nature and scope of the MACP scheme and as to whether non-functional scale would be counted or not against future upgradation under MACP scheme. Accordingly, the matter was again referred to DOPT for clarification by CBEC. In consultation with DoP&T and Department of Expenditure, the CBEC vide F. No. A23011/25/2015-Ad II A, dated 20.6.2016 clarified that non-functional Grade Pay of Rs. 5400/- in PB 2 would be counted as one upgradation under MACP scheme, drawing attention to para 8.1 of introduction of MACP Scheme OM No.35034/3/2008 Estt.(D), dated 19.3.2009. We note that this clarification issued in accordance with para 8.1 of the original MACP Scheme of Department of Personnel the department which notified the scheme, is the correct clarification and any other clarification without modifying or amending para 8.1 of the notification and introduced by an Office Order or Clarification will not survive.
18. In the argument note produced by counsel for applicants in O.A.No.5/2016 and others, it is contended that 2 nd ACP was granted prior to introduction of VI CPC, between, June 2006 and June 2008 to the next promotional hierarchy pay scale of Rs. 8000-13,500/- (pre-revised) to the post of Assistant Commissioner which is a Group A post. Pay of applicants was to be fixed on 1.1.2006 as per pay drawn on 1.1.2006 in old pay scale as per fitment table applicable to the scale of pay, and applicants will be given the benefit of Government of India resolution 29th August, 2008 clause X(e) non-functional Grade Pay benefit of Rs.5400/- in PB-II on spending 4 years in Grade Pay Rs.4800/- as on 1.1.2006 the date the Government of India resolution came into effect as this benefit was in VI CPC given to persons holding Group B post, which post applicants held on 1.1.2006, and the 2nd ACP be granted thereafter to applicants on dates falling between 2006 and 2008 as the ACP Scheme was still in operation, not yet replaced by MACP. Any claim prior to that date of 1.1.2006 is not admissible as this benefit of non-functional grade pay of Rs.5400/- was not available. Clause X(e) of Government of India resolution of 29 th August, 2008 declares that grant of GP 5400/- in PB-2 on non-functional basis, subject to residency of four years of regular service, would be effective from 1.1.2006 subject to the condition that applicants had spent 4 years in GP Rs.4800/-.
19. Applicants are borderline cases of conversion from V CPC to VI CPC pay scales and ACP to MACP Scheme. For the applicants the residency of 4 years in Grade Pay 4800/- cannot be adduced prior to 1.1.2006 as the Grade Pay system was introduced w.e.f. 1.1.2006. We note from the table produced with the argument note that applicants were promoted as Superintendent, a Group-B post, as early as 1997 and latest in 2000. Hence as on 1.1.2006, applicants already have a residency of 4 years in the post of Superintendent which has been given a replacement GP of Rs.4800/- and Clause X(e) non- functional Grade Pay of Rs.5400/- would be applicable and should be granted on 1.1.2006 and before the grant of 2 nd ACP to the promotional post. 2nd ACP will be granted if the 24 th year falls prior to date of introduction of MACP scheme. Applicants in OA No.725/2016 who have now completed 20 years of service will therefore be given 2 nd and 3rd MACP on the said completion dates to the next Grade Pay as they are short of service for grant of ACP till the date the ACP Scheme was in operation. Hence they will be admissible for MACP benefits.
20. Another argument of the applicants is the grant of same Grade Pay Rs.5400/- in PB-2 and PB-3. We note that the Grade Pay remaining the same, financial benefit has been provided by upgrading PB-2 Rs.9300-34800/- to PB-3 Rs.15,600-39,100/-. Hence, this is not a case where there is no financial benefit in the movement from PB-2 to PB-3. Hence, there appears no need to intervene in the instructions of the Government of India in the notified scheme, on this argument. The arguments of applicants were based on similarity of Grade Pay, but the increase of pay in the movement from one pay band to the next which gave a financial benefit was not addressed by applicants. The crucial term used is financial upgradation. The upgradation can be by way of movement from lower pay band to the higher pay band, movement from lower Grade Pay to the next Grade Pay, and also grant of NFU which is also a financial upgradation. The crucial term is b� financial upgradationb� and not the manner in which it is granted ie. by way of conduct of DPC or a selection/screening process or by way of a residency period prescribed. We note that even the High Court of Madras had remitted the matter back to DOP&T for a re-consideration and the decision so taken on the High Court order would be applicable to applicants in this case also.
21. While issuing the MACP memorandum it is stated that any clarification to the scheme will be given by DOP&T, the nodal Ministry which introduced the Scheme. As a matter of fact in another OA the interpretation given by the Railway Board to the scheme was set aside by the Tribunal on the ground that clarification, if any, will be given by the Department who introduced the scheme and no other. DOP&T has issued a comprehensive FAQs which has addressed various clarification sought on the scheme produced as Annexure R-1(o) in O.A.No.488/2016. In query No.16 it has been clarified that NFU Grade Pay would be viewed as one financial upgradation. This would be in consonance with para 8.1 of the MACP scheme which intended to provide a financial upgradation by the upward movement from PB-2 to PB-3. This upgradation can take the form of a DPC in case of promotion, a screening committee in case of MACP or simple time related upgradation as in the case of NFU - all intended to give a financial benefit so that stagnation in the same pay can be averted. To ignore NFU upgradation would be ignoring a financial benefit, or giving an unintended financial benefit without accounting for the same in the financial hierarchy. Movement from PB-2 to PB-3 similarly is a financial upgradation, Grade Pay being the same, and as stated by the nodal Ministry DOP&T in para 8.1 of the O.M introducing the Scheme that there is a financial benefit in moving from a lower to a higher Pay Band.
22. The High Court of Madras in WP No. 19024/2014 has also in para 15 of the judgment held that 'different departments have interpreted the clarification in different manner and the same has resulted in this unfortunate situation'. In para 16 of the judgment, the High Court instead of deciding the matter in one way or another, has referred the matter to the nodal Ministry DOP&T to take a decision. This could be on account of the fact that the solution to the issues raised in the WP before the High Court and the O.As before us, lay in the terms and conditions of the Scheme as rolled out by the nodal Ministry of the Government of India.
23. Applicants entered service as Inspectors. They were promoted in turn or given ACP to the Superintendent cadre on completion of 12 years. Applicants were granted 2 nd ACP as Assistant Commissioner, a Group-A post, in the interregnum between implementation date of VI CPC i.e. 1.1.2006 and announcement of VI CPC implementation i.e. 31.8.2008. Neither applicants nor respondent submit whether grant of Grade Pay Rs.5400/- on account of four year residency in Grade Pay Rs.4800/- existed in V CPC or was introduced in VI CPC under clause X(e). If it existed prior to VI CPC then applicants would have got the benefit pre-VI CPC. Since no such claim has been made we are presuming the benefit is with effect from 1.1.2006. A Superintendent, if his Grade Pay is fixed at Rs.4800/- and has four years service as on 1.1.2006, would be entitled to clause X(e) non-functional upgradation to Grade Pay Rs. 5,400/-. While so, if prior to date of implementation of VI CPC recommendation ie.1.1.2006 applicants have got 2nd ACP as Assistant Commissioner, his pay will be fixed in VI CPC pay band Rs. 15600-39100 with Grade Pay Rs. 5400/-. But applicants were visited by 2nd ACP on a date subsequent to 1.1.2006. Para 8.1 included in the DOP&T MACP OM dated 19.5.2009 states:
'8.1. Consequent upon the implementation of the Sixth CPC's recommendations, grade pay of Rs. 5400 is now 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 MACP scheme.'
24. This would be on account of different pay bands to which this same grade pay applies, the PB-3 being a higher pay band than PB-2 and the financial benefit being covered by the higher pay band. The difference between V CPC ACP and VI CPC MACP is that whereas former gave the upgradation benefit to the promotional post, MACP extends the upgradation benefit to the next grade pay. Hence, there appears no reason to not read the NFU upgradation from Rs.4800/- to Rs.5400/- on completion of 4 year residency as a upgradation as the same is upgradation to the next GP as envisaged in the MACP scheme and para X(e) has also not given any contrary instruction. We say this in view of the second view taken by the High Court of Madras in WP No.19024 of 2014 dated 8.12.2014 which is in supercession of High Court order in WP No.11535/2014 order dated 16.10.2014. In the concluding para 17 of latter W.P.No.19024 of 2014 the matter was remitted back to the Department of Personnel to consider the issue once again. The High Court set aside the order passed by the Tribunal dated 24.2.2014 in O.A.No.675/2013, which the applicants rely upon to argue their contention, and remitted the case back to DOP&T for fresh consideration. Hence neither the above O.A nor earlier W.PC.No.11535/2014 order of 16.10.2014 will come to the aid of the applicants. DOP&T was directed in latter WP No.19024/2014 to re-consider the issue in extenso in the light of the provisions of MACP Scheme and the benefits given to the employees like the petitioner to count the non-functional scale for the purpose of MACP. The DOP&T vide its 26.5.2015 letter produced as Annexure A-15 in O.A.No.262/2016 initially allowed the benefit as prayed by applicants in this O.A ie. 3rd MACP in GP Rs.6600/-. It is not clarified by respondents why such clarification was necessitated as Clause 8.1 of the MACP Scheme notification clearly stated that GP of Rs.5400/- in the two pay bands of PB2 and PB3 shall be treated as separate grade pays for the purpose of grant of upgradation under the MACP Scheme. The grant of functional upgradation to GP Rs.5400/- had ensured that applicants had surpassed the criteria of completion of 10 years stagnation in a single grade pay and the grant of promotion from PB2 to PB3 also ensured a financial upgradation, grade pay remaining the same. The stagnation was also offset by grant of ACP to the promotional post of Assistant Commissioner in 2007/2008 to the applicants. Since the criteria of stagnation for 10 years in a grade pay has not occurred while being granted Non-functional Grade Pay and Assured Career Progression to the promotion post, the purpose of grant of ACP and MACP has been met ie. no stagnation.
25. The applicants have been granted either ACP or promotion to the higher post of Superintendent and Assistant Commissioner in V CPC scale Rs.6500-10500 and Rs.8000-13500 respectively. They are therefore eligible for 3rd MACP. The issue that arises before us is the manner in which second ACP which was granted in the period 1.1.2006 date of effect of VI CPC pay scales and the Government of India Resolution dated 29.8.2008, when the VI CPC scales were approved for implementation, is to be fixed. It is therefore necessary to understand the VI CPC recommendations on pay fixation in order to understand the applicants and respondents contentions on pay fixation as laid down by VI CPC.
26. As per Government of India Resolution referred above, clause (iv) and X(e) of the Resolution, and Rule 5 and 7 A(i) of CCS (RP) Rules 2008 are relevant to the applicants in the O.As under consideration :
Government of India Resolution Clause (iv)
(iv) With regard to fixation of pay in the revised Pay Bands, the pay drawn on 1.1.2006 on the existing V CPC pay scales will be multiplied by a factor of 1.86 and then rounded off to next multiple of 10. This will be the pay in the revised running Pay Band, Grade Pay, as approved by the Government, corresponding to the pre-revised pay scale, will then be added to the pay in the revised Pay Band. The total of pay in the Pay Band and Grade Pay will be the revised Basic Pay as on 1.1.2006.
(emphasis provided) Clause X(e) Group B officers of Department of Posts, Revenue etc. will be granted Grade Pay of Rs.5400/- in PB2 on non-functional basis after 4 years of regular service in the Grade Pay of Rs.4800/- in PB2. CCS (RP) Rules 2008 Rule 5 reads as follows :
Drawal of pay in the revised pay structure -
Save as otherwise provided in these rules, a Government servant shall draw pay in the revised pay structure applicable to the post to which he is appointed :
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
Provided further that in cases where a Government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scales etc. (read as 2nd ACP in the case of applicants), the Government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. (emphasis provided) Under Rule 6 of CCS (RP) Rules 2008, the above option was to be exercised within three months of the date of publication of these Rules to the Head of Office. If a person failed to exercise such an option then their pay would be fixed as per Rule 7 A (I) as reproduced below and they would forgo their 2nd ACP and draw 2nd and 3rd MACP.
Rule 7 A(i) The pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
27. As on 1.1.2006 date of VI CPC Pay Fixation, applicants were drawing scale of pay of Superintendent and they had the option of fixation of pay in the VI CPC Pay Band and Grade Pay applicable to the pay drawn on 1.1.2006 in the post of Superintendent as per Rule 7 A (i). However, applicants were also eligible and had the option, to await the pay fixation of VI CPC till the grant of 2nd ACP, and switch over to the revised pay structure from the various dates of 2nd ACP upgradation. There is no provision that 2 nd ACP received and made applicable on a date subsequent to 1.1.2006 will be pre-dated to 1.1.2006 for pay fixation under VI CPC. However, the pay fixation date can be postponed from 1.1.2006 to the date of receipt of 2 nd ACP upgradation of each applicant and pay fixed in VI CPC as per Rule 7 A (i) multiplication of basic pay as on date of 2nd ACP by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
28. By following the above latter laid down procedure, applicants would have received the benefit of 1 st and 2nd ACP, and would also acquire the benefit of pay fixation in VI CPC as Assistant Commissioner on date of 2 nd ACP, instead of as Superintendent, the post they were holding as on 1.1.2006, date of VI CPC pay fixation. Hence applicants had the option of choosing 1.1.2006 or date of promotion as Assistant Commissioner under ACP Scheme, as the date of implementation of VI CPC recommendations for pay fixation. If they had chosen 2nd ACP upgradation date for VI CPC pay fixation then the VI CPC scale of Assistant Commissioner of Rs.8000-13500/- would be PB3 Rs.15600-39100 plus GP Rs.5400/-. Applicants having got two upgradation to Superintendent and Assistant Commissioner would be entitled to 3 rd MACP in GP Rs.6600/-. But to get this benefit applicants need to postpone their VI CPC benefit to date of 2nd ACP to the promotional post of Assistant Commissioner.
29. Applicants pay is required to be fixed as per option exercised by them for implementation of VI CPC benefits. In case applicants have given the option of fixation as on 1.1.2006 but the option of 2 nd ACP date is more beneficial, a revised option be accepted to be submitted, within 15 days of date of this order, after the applicants study the benefits that will accrue on choosing date as 1.1.2006 or date of 2 nd ACP, as the date of drawal of VI CPC (RP) benefits.
30. As per MACP Scheme Clause 8.1 the Grade Pay of Rs.5400/- in two Pay Bands viz. PB2 and PB3 will be treated as separate Grade Pays for the purpose of MACP upgradation. The benefit to applicants, GP being the same, is in moving from PB2 Rs.9300-34800 to PB3 Rs.15600-39100. Hence a financial benefit is already in built in the scale of the higher pay band, treating the GP of Rs.5400/- in PB2 and PB3 as distinct and separate grade pays for the purpose of MACP upgradation. Rule 8.1 of Annexure-I of MACP Scheme order dated 19.5.2009 holds, and any further or additional interpretation is not necessitated. Even the High Court of Madras has revisited its earlier judgment in W.P.No.11535/2014 granting the benefit, and in W.P.No.19024/2014, delivered two months later on 8.12.2014 directed DOP&T to consider the issue in extenso in the light of the provisions of MACP Scheme. DOPT in its re-consideration order dated 2.5.2016 (Annexure R-1[h]) has upheld clause 8.1 of MACP OM that grant of non- functional GP Rs.5400/- in PB-2 to Superintendent needs to be counted as one financial upgradation for the purpose of MACP Scheme. Therefore, the request of the Department of Revenue to issue general instructions for ignoring the grant of non-functional grade pay of Rs.5400/- in PB-2 to Superintendent for the purpose of MACP is not in accordance with the policy of the MACP Scheme. Since this was only a reiteration of the notification already issued the official issuing the same is immaterial.
31. If applicants are claiming the benefit of 2 nd ACP as Assistant Commissioner in the 24th year which falls between 1.1.2006 and 1.9.2008 and their pay fixation under VI CPC on a date thereafter, applicants can claim non-functional upgradation after 4 years in Superintendent scale as this is a benefit provided under clause X(e) of the VI CPC Government Resolution. If they claim pay fixation as on 1.1.2006 then also Clause X(e) can be extended to those applicants who were holding the post of Superintendent on 1.1.2006 and, have completed four years and become eligible for non-functional upgradation to Rs.5400/- on completion of 4 years service. However this upgradation will be counted as an upgradation and cannot be ignored on the ground of same grade pay.
32. Those of the applicants who had already got 2 nd financial upgradation as Assistant Commissioner prior to VI CPC announcement in 2008 but after 1.1.2006 are covered by Rule 5 of CCS (RP) Rules 2008 wherein those placed in a higher scale between 1.1.2006 and date of notification of VI CPC, on account of their promotion may elect to switch over to the revised pay structure from the date of earning 2 nd ACP in the V CPC scale and may switch over to revised VI CPC pay structure from the date of such upgradation to the post of Assistant Commissioner.
33. As per Apex Court order in C.A.No.11527/2014 State of Punjab & Others Vs. Rafiq Masiq etc. no recovery can be made from those applicants who are retired or due to retire in one year as per para 12 (ii) of the judgment.
34. The Original Applications are disposed of with the above directions. No costs.
(Dated this the 6th day of April 2017)
(P.GOPINATH) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp