Central Administrative Tribunal - Mumbai
Joseph Xavier Lobo vs M/O Finance on 21 November, 2019
i
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
Dated this Thursday the 21° day of November, 2019
'Coram: Dr.Bhagwan Sahai, Member (Administrative)
Ravinder Kaur, Member (Judicial).
(1) 0.A.210/00186/2017
V. Paramesh,
Assistant Director (Retired),
National Academy of Customs,
Excise and Narcotics (NACEN), Mumbai
and residing at -
34, 1%* Floor, 8** Main, 4° Cross,
Yadavagiri, Mysore,
State of Karnata 570020.. - .. Applicant.
Versus
indta, through its
erary to Government,
(R¥venue) (Adil), - .
Central Board of Excise and
Customs, Ministry of Finance,
Department of Revenue,
North Block,
New Delhi - 110 001.
2, The Chairman,
Central Board of Excise and
Customs, Department of Révenue,
Ministry of Finance,
North Block, New Delhi - 110 OO1.
32, Director General (NACEN},
National Academy of Customs,
Excise & Narcotics,
"NACEN Complex, Sector 29,
Faridabad - 121 008.
Additional Director Ge
National Academy of Cu
Excise & Narcotics {
Regional Training Ins
tern Zone, Fost Of
2
ra
He
--
D
New Excise Building,
Wagie Industrial Estate,
Road No.16, Thane (W)-400 604. ..Respondents.
(2) O.B8.210/00117/2018
V.K. Shastri,
Assistant Commissioner (A.R.)
at Customs, Excise and Service
Tax Appellate Tribunal and
esiding at: 602, Vardhaman Tower,
Naupada, Thane (W)- 400 602. . Applicant.
Versus
1. Union of India, through its
Revenue Secretary,
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 001.
2.. The Chairman,
Central Board of Excise and
Customs, Department of Revenue,
u
inistry of Finance,
North Block, New Delhi-110 OOl1.
3. The Secretary,
Department of Personnel and
Training, Ministry of Personnel,
'Public Grievances & Pensions,
Government of India,
Room No.112, North Block,
New Delhi - 110
4
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6. Administrative Officer/Assistant
Commissioner,
Office of the Deputy Commissioner
of Central Excise,, Rasayani Division,
254 Floor, Kendriya Utpad Shukla Bhavan,
Khandeshwar, New Panvel-410 206.
7. The Pay and Accounts Office,
Central Excisé & Customs ©
Belapur' & Raigad, 6 Floor,
C.G.0,. Complex, C.B.D. Belapur,
Navi Mumbai - 400 614. .. Respondents.
(3) 0.A.210/00324/2018
M.P.S.Sengar,
Assistant Commissioner (Retired),
PCCO, GST & Central Excise,
Mumbai Zone and
Residing at A-2/404, Vikas Complex,
L.B.S. Marg, Thane (W)-400 601... Applicant.
Versus
+. Union of India, through its .
Revenue Secretary,.
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 O01.
2. The Chairman,
Central Board of Excise and
Customs, Department of Revenue,
Ministry of Finance,
North Biock, New Delhi-110 OO1.
3, The Secretary, .
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
Government of India,
Room No.112, North Block,
New Delhi - 110 O01.
A Joint Commissioner (Pé&V),
CGST & Central Excise,
Mumbai Central,
3°*° Floor, GST Bhawan,
115, M.K. Road, Cnurcngate,
Mumbai --- 400 020
5 The Pay and Accounts Crfice,
CST & Central Excise, Mumbai Central,
4
Ground Floor, GST Bhawan,
115 M.K. Road, Churchgate,
Mumba i ~ 400 020.
The Priricipal Commissioner,
GST & Central Excise, Mumbai Central,
115, M.K. Road, 4" Floor,
GST Bhawan, Churchgate,
Mumbai-400 020. -- .. Respondents.
(4) 0.A.210/00044/2017
Viiaykumar Umarshi Shah,
presently posted as
Assistant Commissioner of
Central Excise (Audit),
Commissionerate ~ Mumbai-I and
Residing at 101, Tarangan,
Vithalbhai Patel Road, .
Mulund (West), Mumbai ~ 400 080 .- Applicant.
iP
VYersus
Union of India, through its
Revenue Secretary,
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi --- 110 OOQ1.
The Chairman,
Central Board of Excise and
Customs, Department of Revenue,
Ministry of Finance,
North Block, New Deihi-ii0 O01.
The Secretary,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
Government of India,
Room No.i12, North Block,
New Delhi - 110 O01.
The Secretary (Exoenditure),
Ministry of Finance,
Government of India,
Boom No.i29-A, North Block
New Delhi - 110 O01.
Chief Commissioner
Cantrell Excise, Zone-ir, Mumoal
4° Fioor, New Central Excise Biag
LL5, ME. scad, Cnourcngate,
Mumoai-400 G20
Commissioner of Central Excise (Audit),
Commissionerate Mumbai-TI,
4° Floor, Navprabhat Chambers,
Ranade Road, Dadar (West),
Mumbai ~ 400 028. .. Respondents.
(5) O.A,210/00047/2017
Sayed Wasi Ahmed Rizvi,
Assistant Commissioner (Retired),
Directorate General of Valuation (CBEC}),
New Customs House, Ballard Estate,
Mumbai and ~ _
Residing at: 24/103, God Gift Building,
'Thakur Pada, Shailesh Nagar,
Mumbra, Thane, Maharashtra- 400 612
i
~J
Versus
Union of India, through its Secretary
to Government (Revenue), (A Adll},
Central Board 'of Excise and Customs,
Ministry of Finance, Department of Revenue
North Block, New Delhi - i110 O01.
The. Secretary,
Department of Personnel and raining,
North Block, New Delhi --- 110 O01.
The Secretary (Expenditure),
Department of Revenue,
Ministry of Finance,
North Block, New Delhi - 1109 001,
The Chairman,
Central Board of Excise and Customs,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi-1i10 ool.
The Directorate General of Valuation,
CBEC, New Customs House, Ballard Estate,
Mumbai - 409 QO1.
The Principal Commissioner of
Customs (General)
Personnel & Establishment Department,
New Customs House, Ballard Estate,
Mumbai - 400 001
Chief Accounts Ofticer (Customs),
c ms =, Ballard Estate,
. Applicant.
8. The Pay and Accounts Officer,
Customs, 9*° Floor,
New Customs House, Ballard Estate,
Mumbai ~ 400 O01. .., Respondents,
(6) O.A.210/00048/2017
S.Paramasivam, ;
Assistant Commissioner,
Central Excise, Audit, Mumbai I.
Residing at 108/109, Sherawali
Complex, Near Chopra Court, ©
Behind Jai Hind School,
UlLhasnagar - 421 003,
Maharashtra | ... Applicant.
Versus
-1. Union of India, through its
Secretary to Government (Revenue) (Adil),
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 GOl.
2. The Chairman,
Central Board of Excise and Customs,
Department of Revenue,
Ministry of Finance, North Block,
New Delhi ~ 110 OO1.
3. The Chief Commissioner,
Central Excise, Mumbai zone-I,
'4°53 Floor, New Central Excise Building,
115, Maharishi Karve Road,
Oop. Churchgate Station,
Mumbai - 400 020.
The Commissioner,
A,
Central Excise, Audit, Mumbei-I,
4 Floor, Nav Prabhat Chamoers,
~Ranade Road, Mumbai - 400 028.
5 The Pay and Accounts Officer
entral Excise, Mumbai - IIT,
First Floor, Nav Praomat Chambers,
Ranade Road,
Mumbai - 490 001 Respondents
Directorate General of Goods
and Service Tax,
9% Floor, Piramal Chambers,
Jijibhoy Lane, Lalbaug, Parei,
Mumbai -- 400 012 and
Residing at ~- 06/B-002, Parera Ngar CHS,
Behind ST Workshop, Khopat, ,
Thane -- 400 601. |. .. Applicant.
Versus
1. Union of India, through its
Secretary to Government (Revenue) {Adil} ,.
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi ~- 110 001.
2. Chairman,
Central Board of Excise and Customs,.
Ministry of Finance, Department of Revenue,
North Block, New Delhi-110 001.
3. . Department of Personnel & Training,
through Secretary,
Ministry of Personnel,
Public Grievances & Pension,
North Block, New Delhi - i110 O01.
4. Principal Chief Commissioner
_of Central Excise, Mumbai Zone-I,
Central Excise Building,
15%, Maharishi Karve Road,
Churchgate, Mumbai - 400 020.
5. Additional Director General,
Directorate General of Goods
and Service Tax, ,
9¢8 Floor, Piramal Chambers,
Jijibhoy Lane, Lalbaug, Parel,
Mumbai ~ 400 O12.
6 Assistant Director,
Directorate General of Goods
and Service Tax
9% Floor, Piramal Chambers,
Jijibhoy Lane, Lalibaug, Parel,
Mumbai - 400 Oi2, -
7. istrative Officer
torate General of Goods
ervice Tex,
econ, Piramal Chemboers,
bhoy Lene, Lalbaug, Parel,
2 - 499 O12 Respondents.
8
(8) 0O.A.210/00231/2017
Debashish Banerjee,
Assistant Commissioner,
Central Excise & Service Tax,
LTU-Audit, Mumbai and:
Residing at B/3, Chitrakut CHSL,
R.G. Gadkari Path, Near Karwa Hospital,
Dombivali (E) ~ 421 201. ,. Applicant.
Versus
1. Union of India, through its
Secretary to Government (Revenue) (Adll),
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 OO1, :
2. The Chairman,
Central Board of Excise and
Customs, Department of Revenue,
Ministry of Finance, _
North Block, New Delhi-i10 001.
3. Department of Personnel and Training,
Ministry of Personnel,
Public Grievances & Pensions,
North Block, New Delhi - 110 OO1.
4. The Commissioner,
entral Excise & Service Tax,
LTU-Audit, Mumbai
30° Floor, Centre-I,
World Trade Centre, Cuffe Parade,
Mumoai - 400 9005,
5. .The Joint Commissioner,
Central Excise & Service Tax, 4Zone-iI, Mumbai
LTU-Audit, Mumbai,
30°8 Floor, Centre-I,
World Trade Centre, Cuff Parade,
Mumpai~490 005. -. Respondents,
(9) O.A.210/00232/2017
455 fe (Audit),
Office of Commissioner of
c EB s¢ end Service Tax
Lv p
3 ve, Ceniter-i. Werld Trade
Centre. Curte Ferade
Mumoar - 400 005 » Applicant.
Versus
Union of India, through its
Secretary to Government (Revenue) (Adlij,
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi''- 110 C001.
Chairman,
Central Board of Excise and
Customs, Department of Revenue
Ministry of Finance,
North Block, New Delhi-110 001.
Department of Personnel & Training,
through Secretary,
Ministry of Personnel,
Public Grievances & Pensions,
North Block, New Delhi - 110 O01.
Principal Chief Commissioner
of Central Excise, Mumbai Zone-I,
Central Excise Building,
15° Maharishi Karve Road,
Churchgate, Mumbai - 400 020.
Commissioner of Central Excise
and Service Tax, LTU (Audit),
30° Floor, Centre-I, .
World Trade Centre, Cuff Parade,
Mumbai-400 005. a Respondents.
(10) 0.A.210/00233/2017
Joseph Lobo,
Assistant Commissioner of
Central Excise, Wagle-I Division,
Commissionerate- Mumbai Itt
and residing at.
Shree Nandanvan Apartment,
Mohan~-i, Louiswadi,
Thane - 400 604, OO ,.Applicant.
id
a
Union of India, through its
Revenue Secretary,
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 1290 001
10
Central Board of Excise and
Customs, Department of Revenue,
Ministry of Finance,
North Block, New Delhi-110 OO1.
3. The Secretary,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
Government of India,
Room No.1i2, North Block,
New Delhi - 110 O01.
4. Chief Commissioner,
"Central Excise, Zone-II Mumbai,
9** Floor, Piramal: Chamber,
Jijibnoy Lane, Lalbaug, Parel,
Mumbai --- 400 O12,
:
f
i
I
5. Commissioner of Central Excise
Commissionerate Mumbai-Iil,
4 Floor, Vardaan Center,
Wagle Industrial Estate,
Thane - 400 604. .. Respondents.
(11) ©.A.210/00234/2017
Pandit Rama Bagade,
Assistant Commissioner A.C. (Ad})
Thane I, C.Ex. Commissionerate,
Dadar, Mumbai and residing at
D-23, Mulund Sahakar Vishra CHS Ltd.,
Nahur Village Road, Mulund West,
Mumbai - 400 080. -++ Applicant.
Yersus
fF}
Union of India, through its
secretary to Government (Revenue) (Adll},
Central Board of Excise and Customs,
'Ministry of Finance, Department of Revenue,
Nortn Block, New Delhi --- 110 a0i1.
2 The Cnsirmen,
Central Board cf Excise and
Customs, Department cf Revenue,
Ministry of Finance,
North Block, New Delhi-iio ogi
3 Chief Commissioner of Central Excise,
é" Floor, New Central Excise Blag,
Lis, M.K. Road, Churchgate,
11.
4. Commissioner of Central Excise,
Thane - I, 4° Floor, Navprabhat Chambers,
Ranade Road, Dadar (West),
_Mumbai - 400 028.
5, Additional Commissioner {P&V).,
Central Excise, Thane-I, 4" Floor,
Navprabhat Chambers, Ranade Road,
Dadar (West), Mumbai --- 400 028.
6. Pay & Accounts Officer,
Central Excise, Mumbai - I,
2n4 Floor,
Navprabhat Chambers,
Ranade Road, Dadar
(West),
Respondents.
"Mumbai -- 400 028.
(12) 0.A.210/00374/2017
Shakil Mohammad Patel,
Assistant Commissioner of Central Excise (Rebate),
Mumbai III Commissionerate
and Residing at
C-404, Devasnhree Garden,
R.W. Sawant Marg,
Near Rutu Park, Majiwada,
Thane (W) - 400 601. ... Applicant.
Versus
i. Union of India, through its
, Secretary to Government (Revenue) (Adll),
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 O01.
2, The Chairman,
Central Board of Excise and Customs,
Department of Revenue,
Ministry of Finance
North Block, New elhi- i10 001.
3.- Chief Commissi
Mumbai Zone-I
"
4°. Floor, Central Excise Building,
115 M.K. Road, Churchgate,
Mumbai --- 400 020
4 Commissioner of Central Excise
Mumoaei-Iii Commissionerate,
3°44 ard 4° Floor, Vardean trade Center,
MIDC ¥acgie Industrial fstete,
Toane (Ff) - 400 604 Respondents
12
(13) ©0.8.210/00394/2017
Prabhakar Ganesh Kulkarni,
Assistant Director (Audit),
Mumbai Zone Unit, Mumbai and
Residing at B/33, Parijat,
3** Floor, Opp. MET College,
Bandra Reclamation, Bandra (W),
Mumbal, Maharashtra-~400050. . Applicant.
Versus
1. Union of India, through its
secretary to Government
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 oO1.
2. The Chairman,
Central Board of Excise and Customs,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi - 110 OO1.
3. Directorate General of Audit,
Customs and Central Excise,
C.R, Building, I.P. Estate,
New Delhi ~ 110 0909,
the
The Principal Additional Directorate
General, Mumbai Zonal Unit,
Room No.11i & 112, 18 Floor,
D,D. Building, Old Custom House,
Snhanid Bhagat Singh Marg,
Mumbai - 400 023, .
'Cise, Mumbai - I,
New Central Excise Building,
{14) ©.4,210/00433/2017
Oo
fa hd
i}
id ?
Cnurengate, Mumbai - 400 020. . Respondents.
13
Versus
Lt. Union of India, through its
Revenue Secretary,
Central Board of Excise and
Customs, Ministry of Finance,
Department of Revenue,
North Block, New Delhi.
2. The Chairman,
Central Board of Excise and Customs,
Department of Revenue,-
Ministry of Finance, North Block,
New Delhi-- 110 OQ1.
3. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances
& Pensions, Government of India,
Room No.112, North Block,
New Delhi - i110 O01.
4, Additional Commissioner (P&V),
Central Excise, Audit, Mumbai-II,
4t} Floor, MTNL Building,
Administrative Wing, Sector - 16A,
Vashi, Navi Mumbai - 400 703.
5. Pay and Accounts Office,
Central Excise, Mumbai - fl,
Central Board of Excise and Customs,
8% Floor, Piramal Chambers,
Jijibhoy Lane, Lalbaug, Parel,
Mumbai - 400 012.
6. The Principal Commissioner,
Central Excise, Zone-I, Mumbai
115, M.K. Road, 4 Floor,
Central Excise Building, Churchgate,
Mumbai - 400 020. ',. Respondents.
d OAs are
F: af wdhikari,
lereo and Ms.Minal Kanade and tha
resented by Advocates Shri R.R.
"woe, Shri Suhas Mandal, proxy
Rajpureohnit, Shri M.N. Muila,
AM
PLORY Seathna.
Order resesved on 19,07, 2023
Order delivered on 21,43 .2519.
4
ORDER
Per : Dr.Bhagqwan Sahai, Member (A} l(a). | These i4 OAs have 'been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 on these dates 18.11.2016 ~ ©.4.44/2017 & ©.A.48/2017, 19.12.2016 ~ 0.A,.374/2017, 12.01.2017 ~ O.A.47/2017, 30.01.2017 © ~ 0.A.186/2017, .
31.01.2017 ~ O.A.230/201716.03.2017 - 0.A.234/2017, 17.03.2017 -- 0.A.231/2017, O.A.232/2017 and O.A.233/2017 : .
21.06.2017 - 0.A.394/2017, 06.07.2017 ~ 0.A.433/2017, 13.09.2017 _ - 0.A.117/2018 and 09.04.2018 ~ O.A.324/2018.
in these 'OAS they have sought the following reliefs:-
(i). | declaration that they are entitled for grant of 3° MACP from cifferent 8 dates in 2012 and 6 dates in 2013;
(ii). setting aside of orders withdrawing 3° MACP granted to them and refixation of pay issued in four cases in 2014, in one case in 2015, in seven cases in 2016 and in two cases in 2017; and poncents for
6)
(iii). setting aside of orders of re | 1S 1(b). th all these OAs the respondents have filed their replies. In response, the applicants have filed their rejoinders and then the respondents have filed sur-rejoinders, | As submitted by the counsels for the . parties, the subject matter of all these OAS - involves common issues relating to grant and withdrawal of 3*4 MACP. to the applicants. therefore, with their consent, by. taking O.-A.48/2017 as the lead case, they have .been heard together by us on 23.04.2019, 25.04.2019. and 17.07.2018 and all these fourteen OAs are being decided by this common order.
2. | summarized facts:
2(2). : At the time of filing of the 0.A.48/2017, applicant 'shri S. Paramsivam was working as Assistant Commissioner, 'Central -Excise (Audit) "Mumbai - FT. . He joined as Inspector on 19.03.1983 (pay scale of Rs. 5000-9000), on completion of 12 years he was granted first ACP in 1999, then was promoted as Superintendent of central Excise from 24.09.2002 (pay scale of Rs.7500-12000),. after ~he got upgradation under non-functional selection vade from 24.09.2006 (Pay Band of Rs.9300-34800) = De 5 _ 7 a -_ = with gveace pay of Rs.5400/-, then on completion of ot ramen he Ha mpeneant Im PTA OU OE ACD fram 45 YSeLrs Moe wes Elenrec UPpgrTacaltilon 425 <£ wi ELE OrT | 16 19.03.2007 in PB-3 with grade pay of Rs.5400/- and from 19.03.2013 he was again granted financial upgradation under 3** MACP in PB-3 with grade pay of Rs.6600/- by order dated 21.01.2013.
2{b). subsequently based on clarification issued by Ministry of Finance vide letter dated 04.06.2014 as per DOPT OM. dated 26.07.2010, by order dated 25.09.2014 the benefit of 3" MACP was withdrawn by treating the benefit of. non-functional grade granted to him earlier as offset against the _ financial upgradation under the MACP Scheme and revised pay fixation order .was issued on 26.07.2016, contemplating recovery of the benefit of 3°° MACE and letter dated 30.09.2016 was issued for . recovery of the excess amount paid of Rs.2,04,093/- in 10 instalments of Rs.22,677/- from Catoper, 2016 to June 7017. The first instalment
-of Rs.22,677/~ was recovered from the applicant's salary of October, 2016. Therefore, the present OA x has been filed challenging the order of withdrawal On 15.01.2017, recovery of the already caid amount of 3°* MACP was stayed by this Tribuna and that interim relief has continued thereafter Zia) The facts in all these OAs have been wn c i i su) ry j my Ml
0) Q kK Q ct ry ray) IF O-
fu QO oe iB ww ci Qu oO pet re] No | OA Nos.
and date of filing Namie of Applicants and their designations when OAs were filed Date of grant of 3 MACP Pate of Date of withdrawal of 3°¢| order of MACP and date of refixation of pay recovery Date of © Retirement Sayed Wasi Ahmed Rizvi, Asstt. Comm.
(Retired), Central Excise 01/03/13 25/09/14 26/09/16 _ 30/09/16 S. Paramsivam, Asstt. Commr., Central Excise 19/03/13 25/09/14 26/07/16 © 30/06/17 186/2017 30.01.17 V. Parmesh, Asstt. Dir.(Retd) NACEN 08/04/12 25/09/14 03/06/16 30/06/16 230/2017 31.01.17 C.G. Shahane, Asstt.
Dir. (Retd), Dte.Gen of Goods and Service Tax .
01/03/12 25/09/14 26/11/15 31/01/16 233/2017 17.03.17 Joseph Lobo, Asstt.
Commr., Central Excise 01/06/12 25/09/14 3/05/47 31/05/17 23.4/2017 16.03.17 Pandit Bagade, Assit.
Comm, Central Excise O1/14/12 25/09/14 31/08/16 30/04/17 394/2017 21.06.17 UP. Kulkarni, Asstt.
Dir, (Audit) 15/02/13 28/11/16 30/04/17 31/077 -
433/2017 06.07.17 M.O, Varghese, Asstt.
'Comrar. (Retd.) Central Excise 21/01/13 25/09/14 31/03/17 31/03/17 374/2017 19.12.16 S.M. Patel, Asstt.
Commy., Central Excise 1421/03/13 .| 25/09/14 05/06/18 31/08/38 10 3324/2018 09.04.18 MPS Sengar, Assit.
Comur., (Retd.) PCCO, GST & Central Excise 21/01/13 25/09/14 05/03/18 28/02/18 11 Vijaykumar U. Sheh, Asstt. Comm, lente) Ty 2 Central Excise 10/05/12 25/09/14 03/08/16 30/11/16 12 23 1/2017 17.03.17 Debashish Banerjee, Assit. Commr., Central Excise & 28/06/12 |o5/09/14 iS/1Z/16 31/01/20 13 232/2017 Lalit Suneja, Assit.
Comme (Audit), Central Excise & Qamne Tay SSryics Lax 40/02/12 25/09/14 15/12/46 30/11/18 2/01/12 22/10/15 25/09/14 26/09/16 31/08/17 (VRS) 18 2i{d). The "other 13 applicants also joined the Department initially as Inspectors during 1982 {9 of them) and 1983 (5 of them), Under the ACP Scheme issued by DOPT om dated 09.08.1999, they were "granted first financial . upgradation in the year 1999, then they were promoted as superintendents during 2001 and 2002. Thereafter on completion of four years service as Superintendents, they were granted the benefit of Non-Functional Selection Grade in that post during 2000 to 2006.
Then they were granted 274 financial upgradation under ACP Scheme on completion of. 24 years of service i.e. from agifferent dates in 2006- 2007 ain PB-2 with grade pay of Rs.5400/-. ter they were. again granted the third financial upgradation under MACP Scheme in PB-3 with grade pay of Rs.6600/- on' completion of 30 years from different dates in 2012 and 2013. However, in view of clarification issued by the DOPT in OM dated 19.05.2009, the financial
-> Le 4 = at = ~ --_ _ 4 4 PAY was rertixec and the amount already released to
--™ Peniitedd L + ~ rd TR > = + a hem was crdered to be recovered inerefore, tnese iN te ee Per a + 74 oom -- yoee an = VRS Nave oeen filed for tne relisfis sum arized in 19
3. Contentions of the parties:
In 0.A.48/2017, rejoinder dated 24.07.2017. and during hearing of arguments, the applicant has contended that -
3 (a). "Chennai Bench of the Tribunal while' dealing with identical issue in case of Shri 5. Balakrishnan in 0.A.280/2012 by decision dated | 22.07.2013 quashed the order of recovery from the applicant as being illegal: _. That decision was challenged before 'Madras' High Court. in Writ Petition No.11535/2014 and in the decision dated 16.10.2014, the order of the Tribunal was upheld.
The High Court order was curther challenged by the respondents as Special | Leave Appeal (C) No.15396/2015 in the Supreme Court and by condoning -- the delay that <SLP was dismissed. Thus the order . of DOPT. in para 8.1 of | MACP Scheme and clarification contemplating withdrawal of 3*4 MACP benefit due to NESG benefit granted earlier have been set "aside by the Chennai Bench .of the Tribunal, Madras High Court and Apex Court 20 fixation of his pay followed by order dated 26.07,2016 contemplating recovery of the amount paid to him are not correct. 'In view of the Apex Court decision in case of State of Punjab Vs. Rafiq Masih dated 18.12.2014, the DOPT has also issued the OM on 02.03.2016. Since he was due for retirement om 30.06.2017, the recovery is not permissible; | 3(b). the financial upgradation 3s grade pay of Rs.5400/- in PB-2 granted to-the applicant under NFSG was distinct from the financial upgradation in O) grade pay of Rs.5400/- in PB-3 and, therefore, h is entitled for the grade pay of Rs.6600/- in PB-3 as 3°° MACP;
Sic). his representation dated 11.08.2016 has also not been considered by the respondents and the etter dated 30,09.2016 has been issued by jn Assistant Commissioner Central Excise, Audit, _Mumbai-I for recovery of Rs.2,04,093/- in 19 instalments from October, 2016 to June 2017 which is not justified;
3{d). the applicant was granted the grade pay Or Civil Services (Revised Peay) Rules, 2016 Issuance of corricencum by the respondents dated 25.09.2014, LS incorrect in view of the aforesaid decisions of Crennai Bencn of the Tribunal, Madras Hlgn Cour 4 and Apex Court. | Thus inspite of contrary view taken by the DOPT in letter dated 21.07.2010, similarly placed employees have been granted by the respondents the grade pay of Rs.6600/-. by order dated 21.01.2013; | Bie). 'the decision of Chennai Bench of the Tribunal 'in R. Chandrasekharan 'is a factual position, so the applicant has no comments on it. 3(£). During hearing of these OAS, the applicants have given copies of. the ~ following caselaws:-
fi). Decision of Chennai Bench of the Tribunal in 0.A.280/2012 dated 22.07.2013 in S$. Balakrishnan s Others Vs. Union of India and others and its upholding. by Madras High Court: order dated 16.10.2014 in Writ Petition No.11535/2014;
(il). Decision of C.A.T., . Chennai of the Tribunal dated 24.02.2014 in R. Chandrasekaran and Madras High Court order in W.P.19024/2014 dated 08.12.2014;
(iii). C.A.T., Lucknow Bench decision in O.A.467/2012 (Ashwani Kumar Choudhary Vs. Union of India & Others) dated 15.05.2017;
{iv). Decision in 0.A.633/2015 (Prakash V. 22 (Rajendra Kumar Vidyarthi & others Vs. Union of India & Others) of Jabalpur Benth of this Tribunal dated 20.09.2018;
(vi) Decision of CAT, Ernakulam _ Bench, e O.A.816/2012 (M.V. Mohanan Nair Vs. Union of India & Others) dated 29.01.2013;
(VEL). Decision of CAT, Anmedabad Bench in O.A.18/2015 (Manubhai Bhagwanji. Rathod Vs. Union of India & Others) dated 16.10.2015;
{viii}. Decision of CAT, Calcutta © Bench in O.A.195/2014 (S.H.K. Murthy & Others Vs. Union of -
India & Others) dated 28.04.2016;
(ix). Decision of CAT, Principal Bench in O.A.904/2012 in Sanjay Kumar & Others Vs. Secretary, Ministry of Defence & others, dated
(x), | Decision of CAT, Principal Bench in O,A.1586/2014 in Vinai Kumar Srivastav .& Anr.
Vs.EHast Delhi Municipal Corporatio & others, dated 08.09.2015.
(mi}, Delhi High Court decision in Writ Petition | No.3420/2010 (R.S. Sengor & Ors.
& Ors.) dated 04,04,2011;
(xii} DHeinl Hign Court cecision in Writ retition No.5C82/2013 (Swaran Pal Singh & Ors. Vs. Union of india & Ors.) dated 17.03.2015;
3"W.P.No.5146/2012 (Union of India Vs. Delhi Nurses Union (Regd.) & Anr.) dated 24.08.2012; |
(xiv). Punjab & Haryana High Court, Chandigarh decision in CWP No.19387/2011 (Union of India «& Ors. Vs. Raj Pal & Another) dated 19.10.2011; and
(xv). Apex Court decision in Union of india & Ors. Vs. M.V. Mohanan Nair, in SLA No.21803/2014_ dated 09.08.2017; | Bg). - the decision of Kolkata Bench of the
-. Tribunal dated 28.04.2016 rejecting the OLA. of shri SHK Murthy for grant of the benefit under the MACP Scheme is not applicable to the applicant's case in view of finality attained by S. Balakrishnan Gecision. Respondents' interpretation of Para 8.1 of MACP Scheme. is incorrect. The Delhi High Court judgment in case of Sengor dealing with.
interpretation of Para 8.1 of MACP Scheme did not | decice the issue of offsetting of NFSG benefit as contended by the respondents and that decision cannot be said to be ratio decidendi. The Punjab and Haryana High Court decision in case of Rajpal a and another was not with respect to Para 8.1 of th "MACP Scheme.
Similarly the decision of Principal Bench 24 "Shrivastava - and Vikas Bhutani involved. different issues. The decision of Ernakulam Bench of the Tribunal in M.V. Mohanan Nair case also did not deal "with the issues related to the present applicants and that .decision has also been 'stayed by the Apex Court;
3h). the main issue involved in the present case is whether the "benefit Of Financial upgradation under the MACP Scheme can be offset against the benefit of upgradation granted unde:
NFSG. The Lucknow Berich of the Tribunal has also Followed the 5.° Balakrishnan decision in deciding the O.A.467/2012 in case of Ashwini Kumar Choudhary (page 282) in view of Apex Court decision in case of Maharaj Kishan Bhat holding that the benefit granted cannot be denied to other similarly Situated persons. Therefore, all the Iletters issued by the respondents i.e. 20.01.2016, 01.03.2016 and 17.05.2616 ere not relevant. Hence the ©.A. be allowed.
as a4 toe te te ke .
3h) wnil@ granting anterim relief by order at 40 N49 SA oa as = = 4 oem apo aated 19.01.2017, this Tribunal considered oniv the order passeaq by the Chennai Bencn cf the Tribunal in cass of Shri S$. Balakrishnan, which was woheld-
"5 py the Madras High court. In DOPT OM dated 19.05.2009 issuing the MACP Scheme, it has been unambiguously stipulated that the MACP Scheme envisages merely placement .in the immediate next. higher Grade Pay 'in the hierarchy of the:
recommended revised pay bands and grade pay as given in Section 1, Part-A of the first Schedule of the CCS (Revised Pay) Rules, 2008, and not in promotional hierarchy 'as was available under the ACP Scheme; _ 3(4). it has been further clarified that promotions earned / upgradations granted under the ACP Scheme in the past are to be ignored for MACP upgradation only when those grades which carry the same grade pay due to merger of pay scales - / upgradation of post as per accepted 6 CPC recommendations. | In terms-of Para 8.1 of the MACP Scheme, grade pay of Rs.5400/- in PB-2 and 25 .5400/2 in PB- 3 have been treated as separate grade pay tor the purpose of upgradations under che MACP Schemes;
3(k) . after the applicant joined as Inspector on 19,03,1983, he was cromoted as Superintendent irom 5 eh 24.09.2002 As per the 6 CPC recommendations, SuDerinrvendents in Devoartiment cm Ravenue wuverince aNcs in eparcmene OL Revenve on completion of 4 years of regular service in that
26. Rs .5400/- in PB-2. Accordingly, the applicant as Superintendent was granted NFS grade pay of Rs.5400/- in PB-2 on 24.09.2006. Since he had already been granted the NFSG financial upgradation from 24.09.2006 and placed in pre-revised Group 'A! pay scale of Rs.8000-13500/-, his pay was revised in Group 'A' i.e. PB-3 with grade pay of Rs.5400/-, "After completion of 24 years of service :he was granted the second ACP benefit -in pay scale of Rs.6000-13500/- with effect from 19.03.2007. Then 3**° financial upgradation was granted: to him.in PB-3 with grade pay of Rs.6600/~ from 19.03.2013. However, as per the objection raised by the Pay. & Accounts Officer, the applicant was not. eligible for grant of 3°? MACP because he had already got one promotion in 2002 and two financial upgradations as NFSG and 2°* ACP in 2006 and 2007; | 3fd). DOPT vide letter of 26.07.2010, clarified that the benefit of WNon-Functional Grade was granted to Superintendents (Group 'B' officers) on 27 " élarification no.16 clarified that Non-functional Selection Grade Pay would be viewed as 'one financial upgradation for the purpose of -MACP 'Scheme in terms of Para 8.1 of Annex-l of DOPT OM dated 19.05.2009 (P.182);
3 (m) . therefore, as per letter of CBEC, dated 06.05.2013 it was clarified that as per Para 5 of 'the Board's Circular dated 20.05.2011, the NFSG had - no effect undér ACP Scheme for grant of financial upgradation upto 31.08.2008, but the demand that NFSG should not offset financial upgradation under MACP Scheme has not been agreed to by the DOPT. because it was against the stipulation under Para 8.1 of the MACP Scheme (Annex-R-6, P.187). Further as per letter of CBEC dated 04.06.2014, the decision Was reiterated that NESG granted during 01.01-2006 to 31.08.2008 would be counted / offset. against the financial upgradation under MACP Scheme -- fAnnex-BR-7, P.190). However, before the above clarifications dated 06.05.2013 and 04.06.2014 were received, the Commissioner, Central Excise, Mumbai- I after conducting Screening Committee meetings ranted the 3°¢ Financial upgradation cf Rs.6600/- ay 23 Ministry, the respondents have issued corrigendum on 25.09.2014, thereby withdrawing the grant of 34 MACP from the applicants who -had been earlier granted NFSG benefit;
3(o). in view of different: representations received citing various caselaws such as the Punjab & Haryana High Court decision dated 19.10.2011 in case of Union of India & others Vs. Rajpal and another and Madras Righ | Court decision dated 16.20,2014 in' case of Union of India & others Vs. S. Balakrishnan and others by which the grant of grade pay of Rs.6600/- as 3%° financial upgradation for direct recruit Inspectors in the hierarchical a grade pay of post of ° Dy. Commissioner, the Respondent No.3 again sought .on-. 15.01.2015 clarification from the Ministry as to whether in x ra view of the above High Court decisions, gran + © grade pay of Rs.6600/- as 37° MACP, which is the grade pay in the hierarchical grade pay of Dy. Commissioner, was correct;
3{p). - however, the Chennai Bench cf the Tribunal Elied by Shri R Chandrasekaran, ocjecting to withdrawal of earlier granted 3°*° MACP with grade pay of Rs.6600/- In Writ Petition, tne Madras High Court in its decision dated 08.12.2014 set 29 O.A.675/2013 and remitted the matter.to the DOPT for consideration of ali the circulars issued earlier and to issue a fresh circular explaining the nature and scope of MACP Scheme and whether the NFSG wouid be counted for the purpose of this Scheme "(Annex-R-9). Thereafter the DOPT re- examined the proposal of the CBEC and Department of Revenue in consultation with the Department of Expenditure and it was decided vide note dated 02.05.2016 that, grant of NFSG in grade pay of Rs.5400/= in PB~2 to the superintendents needs to be counted as one financial upgradation for the purpose of MACP Scheme. Thus the DOPT did not agree to the request of the CBEC and Department of Revenue for ignoring the grant of NFSG of Rs.5400/-
"in PB-2 to the Superintendents from 01.01.2006 to 31.08.2008 for the purpose of MACP Scheme (Annex-R-
15).
. Subsequently vide note dated 02.06.2016 the DOPT reiterated its opinion given on 02.05.2016 and advised the respondents to take appropriate 30 ft accordingly the benefit of 37° financial upgradation under MACP with grade pay of Rs.6600/- granted to Shri R. Chandrasekaran was- withdrawn, revised pay fixation was issued on 08.08.2016 (Annex-R~18) and recovery of excess amount paid was also ordered;
3(q). thereafter the Department of Revenue, vide instructions dated 07.12.2016 directed all Cadre Controlling authorities under CBEC to follow the guidelines of DOPT on MACP Scheme in letter and spirit, and to take action in terms of DOPT Oh dated 02.03.2016 about excess .payment wrongfully made to the individuals.
Tn. pursuance to that letter, the Respondent 'No.4 has informed the applicant on 30.09,2016 that his | representation had been considered and che amount of Rs.2,04,093/- needs to bs recovered in instalments. That action has been challenged in the present O.A. 3{x). the DOPT vide letter dated 20.01.2016 and 17.05.2016 forwarded a copy of the Apex Court stay India Vs. M.V. Mohanan Nair regarding. grant of MACP 31 "Tribunal in case of SHK Murthy -and others whereby the demand of the applicants for grant of MACP in promotional hierarchy was dismissed holding that the MACP benefit should be given in the hierarchy of the next higher grade pay and not in the grade pay of promotional hierarchy (Annex-R-20); | | 3(s). as per letter of CBEC dated 31.08.2016. the Cadre Controlling Authorities "nave been directed to review all cases of doubts and ensure that there are no cases of excess payments made to Government servants. Wherever any excess. payment has been made on account of fraud, misrepresentation, collusion, favouritism, negligence, carelessness, etc, cole of those responsible for overpayment in such cases and the employees who benefitted from such actions. should be identified, and gepartmental/criminal action should be considered in appropriate cases;
3(t). . the Delhi High Court decision in case of, R.S. Sengor Vs. Union of India and others has not been challenged before the Apex Court and thus it has attained finality. In view. of dismissal of Punjab & Haryana High Court decision in case of | |
32. applicant is not eligible for grant of 3*° financial upgradation .on the basis of Madras High Court decision in case of-S.: Balakrishnan; 3(u). since the order of withdrawal of 3°! MACP to the applicant had been issued on 25.09.2014, filing of this O.A. on 18.11.2016 is barred by limitation, The applicant had been granted first ACP from 09.08.1999, then he was promoted as Superintendent from 24.09.2002, further granted NFSG in PB-2 from 24.09.2006, and then he was granted 2° ACP benefit from 19.03.2007 in PB-3 with grade pay of Rs.5400/-. Hence he was not eligible for grant of 3°4 MACP in the grade pay of Rs.6600/- on completing 30 years of service. Based on the clarification issued by the CBEC dated 20.06.2016 in consultation with DOPT nd Department of axpenditure, the grant of NFSG with grade cay of Rs.5400/- in PB~2 to Superintendents on completion of 4 years service in that grade nas to be counted as one financial upgradation under the MACPs.
Therefore, the revised pay fixation order was issued for the applicant oy Rescondent No.4 on = 2 a ar oo _ = se =.
of Rs.2,04,093/- as excess payment made to him from 19.63.2013 to 31.07.2616. Furtner 2s cer istter = my mae at a4 AO SA5 slew trot tt Aw n -- ELor BEC Ggeted 21.08.2016, with instructions to 33 officers and to initiate departmental or criminal action against employees who have benefitted from grant of wrong MACP upgradation, necessary action for recovery has been initiated; and = 3(v). as cited in the decision - Ahmedabad Bench of the Tribunai dated 22.09.2017 in
0.A.581/2016 and other OAs, the Apex Court judgment in case of S. Balakrishnan did not attain finality and the dismissal of the SLP against that judgment does not resuit in affirmation or confirmation or' approval of the High Court. decision. fn. R. Chandrasekaran case, in the decision of the Madras High Court there is no categorical finding as to which grade pay should.be granted under MACP, and th (D DOPT was directed to examine afresh the nature and scope of MACP Scheme and clarify as to whether the NESG granted would amount to MACP benefit, etc, Therefore, the applicant not being eligible and entitled for 37¢ MACP, its withdrawal and order of recovery issued against him are fully justified.
Similarly all these 14 OAs be dismissed.
ny Analysis and conclusions:
4fa)}. We nave carefully considered the OA memo veoly and sur-rejoinder fiied by the respondents, 34 during the hearing on 19.07-2019. Based thereon our analysis of the issues involved is discussed hereunder. ; . -
4{b). The main issue for decision in these OAs' is as to whether the. withdrawal by the respondents of earlier granted 3°* MACP benefit. with grade pay of Rs.6600/- to the applicants (Superintendents in CBEC) and | resultant recovery from them are justified. | Ate). in the context of these . OAs, ere applicable main stipulations under the MACP Scheme are these- (i). . The Modified Assured Career Progression (MACP) Scheme for Central Government Civilian employees was introduced by | DOPT, Government of India vide OM dated 19.05.2009, replacing the earlier ACP Scheme -implemented since 1999. The DOPT is the final authority to decide scope and modalities of this Scheme, Hh
(ii). As per para. 9 fe) that OM, any oD terpretation/clarification of doubt as to the He rd scope and meaning of the provisions of the MACP "Scheme shall be. given by the Department of 35 revised pay bands and grade pay as given in Section 1, Part-A of First Schedule of CCS (Revised Pay) Rules, 2008.
(iv). Tn para A of the Scheme it has been stipulated that there. shall, however, be no further fixation of pay at the-time of regular promotion if it is in the same grade pay as granted under MACP Scheme. However, at the time. of actual promotion if it happens to be in a post carrying higher grade pay than what is available under the MACP Schene, no pay fixation would be available and only difference of grade pay would be made available. iw). As provided under Para 5 of the Scheme, promotion. earned or upgradation 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 6% CPC shall be ignored for the purpose of granting upgradations under MACP Scneme.
(vi). As per Para 8, promotions earned in the post 'carrying "same gradé pay-in the promotional hierarchy as per Recruitment Rules shall be counted (vil). Para 8.1 has provided that consequent upor. implementation of tne 6" CPC recommendations, the grade pay oF Rs.5400/- is now in two pay bands 1.¢ 36 ft 'and PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme. .
(vili}l. Para 17 -of the Scheme stipulates that the financial upgradation would be on non-functional basis subiect to fitness and other grading at different levels.
©
(ix). As provided in the "last part of the Scheme, if a Government servant has been granted either two regular promotions or. 2°¢ financial upgradation under ACP Scheme after completion of 24 years of regular. service, chen only 3% financial upgradation would be admissible to him under the MACP Scheme on completion of 30 years of service, provided that he has not earned third promotion in the hierarchy.
(x). In the subsequently issued Clarifications on the Scheme by the DOPT OM dated O9.09.2010, clarification at Point No.6 - Whether the promotion in the same grade would be counted for the purpose of MACP Scheme, it has been clarified that the _ 2 . me ae meek te Anne given in che CCS (RevVLsea Pay; RULES, 2008 aad + 5 a ae we = 4 =~ = ao MOWeVSeL,; af cae oromotional Nmierertcory as oer 37° earned in the same grade pay, then the same shall be counted for the purpose of MACP.
(xi). As per the clarification on item no.16, whether 'Non-functional Scale' of _Rs.8000-13500 (revised to grade pay of Rs.5400 in PB-3) would be "viewed as one financial upgradation for the purpose .of MACP Scheme, Yes, in terms of para 8.1 of Annex- I to the DOPT OM dated 19.05.2009.
(xil}. As per DOPT letter dated 26.07.2010, 'penefit of Non-functional Grade was. granted to Superintendents (Group 'B' officers) on completion of four years and as per Para S61 of the MACP Scheme, the same would. be offset against one financial upgradation under the MACP scheme.
4(d). The applicants have relied on number of caselaws. .«-However, their main reliance is on.S. Balakrishnan decision. They contend that the issue involved in the Mohanan Nair and Raj Pal's case is about the parity in granting grade pay in the nigher grade pay whereas issue involved in the S&S. Balakrishnan is withdrawal of benefit of 3** MACP Scheme in view of para gil of MACP Scheme on account of granting non-functional grade pay in grade pay of Rs.5400/- in PB-2 Hence the issues being different the decision in case of Monanan Neir and Rajocal are not binging precedent for the 38 C.A.T., Chennai: in case of So Balakrishnan in O.A.280/2012 is having the binding precedent since the said decision has attained Einality in view view of dismissal of Writ Petition filed by respondents against the order of CAT before the Madras High Court and further dismissal of SLP by the Apex Court filed by respondents against the order of Madras High Court and finally dismissal of Review Petition by Apex Court which was Filed by respondents on merits as well as on delay against the order of dismissal of SLP.
Ale}. The respondents have also attempted to benefit mainly from these caselaws:-~
(i). C.A.T., Mumbai Bench in ©O.A.Nos.286/2017, O.A.287/2017 & O.A,288/2017 (Madhukar R. Natu & 2 Others Vs. Union of . India and others) dated 06.02.2019;
(ii). CAT Chennal and Madras High Court decisions in case of R. Chandrasekaran;
(iil}. Apex Court decision in Kunhayammed and others Vs. State of Kerala and another, Civil Ropeal No.12308/199¢ decided on 19.07.2000;
(iv) Apex Court decision in H.S.E.B. & Anr. Vs Rajbir Singh & Ors., Civil Acpeal No,6506/20095 39° No.3420/2010. dated 04.04.2011; (vi} Delhi High Court decision in Writ Petition No.5082/2013 {Swaran Pal Singh and others Vs. -Union of India and others) decided on 17.03.2015; (vid). Gujarat High, Court decision in Hasmukh B. Desai. Vs. Director General, Spl. Civil Appln. No.4464/2016 dated 28.06.2016; _ 4(£). Our careful consideration Of the above case details. shows that in. S$. Balakrishnan: and others, the Chennai Bench of the Tribunal in its order dated 22.07.2013 allowed the O.A, for grant of 3% MACP with grade pay of Rs.6600/- in PB-3 for refixing pension and disbursing . the terminal benefits to the applicants. 'The Madras High Court by its order dated 16.10.2014 upheld the decision of the Tribunal by referring. to decision of Chandigarh Bench of the Tribunal, (which was upheld 'by the Punjab & Haryana High Court) in case of Ras Pal, and stating that the grade pay of Rs.5400/- in PB-2 in that case had been earlier granted on non- functional scale, which cannot be a. functional grade for Assistant Directors and it cannot be o counted as one financial upgradation under MACP as per Para @.1 of the MACP Scneme An SLP No.15396/2015 filed egeinst that order of the Madras High Court was cismissed boy two-Jucge Bench Or tne Supreme Court vide order dated 31,08.2015, 40 On after condoning the delay, (copy at page 97). this basis the applicants claim that the decision Chennai Bench of the Tribunal has attained finality and its benefit should be allowed to them.
However, this contention is not correct.
4(g). The contention of the respondents on this issue is correct in view of Supreme Court decision of a larger Bench in Kunhayammed and others Vs. another ain Civil Appeal of Kerala and No.12309/1996. decided on 19.07.2000, (AIR 2000 sc Fh 2587), explaining that the exercise of jurisdiction conferred on the Supreme Court by Article 136 o consists of two steps (i) che Constitution granting special leave to appeal, and (ii) hearing also clearly the appeal. This distinction is provisions of Order XVI of the demonstrated by the framed in exercise of the power supreme Court Rules conferred by the Article 145 of the Constitution As per Para 40 of that decision, a Seeking grant of special leave to appeal may be oy time, being a defective presentation, petitioner naving no locus standi to file the petition, sentitling him to any conduct o indulgence by the Court, question raised by the eestitioner for censideraticn by the Court being not or deserving. The at expressions often used by the Apex Court while disposing of such petitions are heard and dismissed; dismissed, dismissed as barred by .time and soon.
When at the admission stage itself the opposite party appears on caveat or on notice and contests the maintainability of the petition, the Court may _apoly its mind to the meritworthiness -of the petitioner's prayer seeking leave to file an
-appeal and having formed an opinion may say dismissed on merits. Such an order may be' passed even ex parte, that is, in. the absence of the opposite party. | In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons. have been assigned and no law has been declared by the supreme Court. | The dismissal is not of the: appeal but of the Special Leave Petition. When an order refusing special leave to appeal is by a non-speaking order or a speaking on, it does not attract the doctrine of merger, An order refusing special leave to appeal does not Stand substituted in place of the order under chalienge. All that it means is that tne Court was-
42decided on 08.10.2002, Para 3 states that as in case of Kunhayammed & Ors. Vs. State of Kerala & Anr., the Apex Court repeatedly held that when an SLP to the Supreme Court is dismissed by a non-
speaking order, such dismissal neither attracts the doctrine of merger nor amounts to declaration - of law by this Court under Article 141 of the Constitution.
4 (i). Since the Apex Court decision dismissing the SLP against the order of Macras High Court and Chennai Bench of the Tribunal in case of S&S. Balakrishnan and others was not by a speaking order on merits, in our opinion it did not amount te "finality of that decision of the Chennai Bench of . the Tribunal, hence that decision does not have binding effect, Thus the contention of the applicants that the decision has binding effect is rejected.
The same was tne view of Ahmedabad Bench of the Tribunal in ©.A.581/2016 and 8 other OAs gated 22,09.2017, concluding that in addition to x 7 Tad 7.7 eet Te ey tS =i = am soo Che Princiocle Laid aown in Runnayeal mea ana Orners, awnrA a me Tir mean =< 4 Towne TR = oe en 4 and supsequently in case cf Bhakra Beas MWenagement ren a om TT om TS an ee 5 om " a anes TS OT we ey omy Or Un a2 WS. iA LCL Pat we TSS SHULLAS - TiS = + + Z = et ae ee eT " a a SaxriLter ADS: wOULE PUSS ae an Case os o affirmation or confirmation or approval. There is no categorical finding on the issue in question and the issue did not attain finality.
A(¥). We also note that after the S. Balakrishnan decision, the same Chennai Bench of the Tribunal dismissed 0O.A.675/2013 on 24.02.2014 {in case 'ef R. Chandrasekaran) by taking. a different view than the one taken in case of S. Balakrishnan and others. That "decision was challenged by Shri Re Chandrasekaran . before the Madras High Court in Writ Petition No.19024/2014, which was decided on 08.12.2014.
In para 10 and 11 of that decision the High Court observed that - .
"10. We have dismissed the writ petition filed by the respondents herein and confirmed the order passed by the Central Administrative Tribunal. .The circulars and instructions given by the Ministry of Personnel, Public Grievances and Pensions and the earlier circular issued by the Central Board and Excise and Customs dated 20 May 2011, the order dated 21 February 2013 on the file of Central Board of Excise and Customs passed pursuant to the. direction in 0.A.No.140 of 2012 on the- file of Central Administrative Tribunal, Madras Bench were not before us while considering the writ petition in W.P.No.11535 of 2014, It was only in the present writ petition the petitioner and the respondents have eroduced the Classificatory circulars dated 25 February 2011, 20 May 2011, and the order passed by the Central Board of Customs and Excise dated 21 rebruary 2012.
id fe neve perused tre circulars issued ny the concerned authorities and the order Age dated 21 'February 2013 on the file of Central Board of Excise and Customs."
Hence the order of the Tribunal dated 24,02.2014 was set aside but the High Court remitted the matter to the DOPT to consider the issue in light . of the provisions of MACP Scheme and.~ earlier clarifications as to whether the MACP benefit can be given to the employees such as petitioners in that case who had been granted non-functional scale earlier. | This was the subsequent decision of the Madras High Court on' the same issue i.e. after the earlier decision in SS. Balakrishnan, clearly observing that the decision in the earlier cases (i.e. S$. Balakrishnan). was without considering "various Clarifications issued by DOPT and Department of Revenue. In view of that categorical observation by" the same High Court, the Balakrisnhnen decision cannot be applied to other cases &{k). Thereafter the DOGPT °-re-examined che ie eee a ea wan = faith ed eal am aur = o mARN = chat tne gram l of NFSG in grace pay of As.5400/- in co ~ Cae a ae se oe eh = -- oi = "
PE-2 to Superintendents needs te be counted a5 one "a = 7} an 3 ia --_ _ cos Ty > TANaNnclalL ungraaaeticn for tne purocose oF MACP
45. Scheme. The DOPT reiterated the same view again on. 02.06.2016 and advised the respondents to take appropriate action in case of R. Chandrasekaran as well as other similar cases. . Thereafter the 34 MACP granted to 'Shri R. Chandrasekaran has been withdrawn and recovery made. There has not been:
any challenge to this. Therefore, the above decision of DOPT is 'the final . view on interpretation of the MACP Scheme to be complied with.
A(l). "We further observe that the decision of Ernakulam Bench of the Tribunal in O.A.816/2012, in case of M.V. Mohanan Nair, relying upon view of Chandigarh Bencn of the Tribunal case of Raj Pal in O.A.1035/2010, allowed the fixation of his pay with grant of 2% MACE in PB-2 (Rs.9300-34800) with grade pay of Rs.4600/-, which was upheld by the Kerala High Court as grant of higher pay scale under MACP Scheme was purely on the basis of completion of requisite years of service by the incumbent. But that High Court decision has been stayed by the Apex Court in SLP No.10791/2014 on 08.08.2014. In the above various casciaws, we notes that varying views have been taken with reference 46 upgradation. However, with reference to the main question involved in these OAs i.e. whether the applicants were at all eligible for grant of 3° MACP upgradation with grade pay of Rs.6600/- after having received NFSG. upgradation earlier, the main stipulations under the MACP Scheme, rules and the caselaws directly relevant to the present case have to be considered.
4im). The unambiguous stipulations under the MACP Scheme and consistent clarifications issued by DOPT have already been explained by us in para 4(c) above. From them it is clear beyond doubt that che financial upgradation granted to the respondents under NFG is to be counted as one MACP upgradation.
Therefore, the applicants were not entitled for grant of 3*¢ MACE as grade pay of Rs.s6é00/-.
The Delhi High Court decisions in Writ Petition No.3420/2010 (R.S. Sengor and others Vs. Union of India and others decided on 04.04.2011) a
a) ay im un I~ a and Writ Petition WNo.5082/2013 (Swara and others Vs. Union of India and others) decided stipulations of the MACP Scneme, the financial upgradation is to be given in the next Righer grade pay anc mon ine grade pay of the next Rierarchical post This view has €150 osen acoptecd by the ap (S.HCK. Murthy and others Vs. Union of India) decided on 20.04.2016. The respondents have submitted that the above decisions of the "Delhi High Court have not been. challenged and, therefore, they have become final.
4 (n). In Writ Petition No.8515/2014 (Union of (India & Ors. Vs. All India CGHS Employees Association and others) decided on 09.11.2016, the contention of the respondents that grant of non- functional grade pay is treated as financial | upgradation for the purpose of MACP Scheme was accepted. | Alo). From the details of the case it is clear that the applicants had joined in 1982 to 1983 initially as Inspectors. After introduction of the ACP Scheme, they got financial upgradation as 1% "pep from 1999, They got promoted as
-. Superintendents during 2002-2003. Then in 2006- 2007 they were aiso granted NFSG. That means before completing 24 years of service, they had got i®* ACP benefit and one regular promotion as penefits in 2006-2007, Theretore, after introduction of MACP in 2009, they cculd have 43 promotion or financial upgradation. However, after completing their 20 years of service in 2002-03, they got upgradation as NFSG in 2006, i.e. before completing 30 years of service.
A(p). As per stipulation of the MACP Scheme, since they had already received one regular promotion, one ACP upgradation and one upgradation as NFSG before completing 24 years of service, how chey became eligible for grant of financial upgradation as 2° ACP during 2006-07 is not clear. However, benefit of that upgradation was given To chem. Suosequently on completion of 30 years, without verifying the fact" of the receipt of financial upgradation after completing 20° years, they were also granted the financial upgradation as 34 MACP ain 2013. This was not allowed under the MACP Scheme and the applicants were not eligible for grant of the 3°¢ MACP in 2013. Therefore, the bo Fe 3 corrective actio taken by the respondents subsequently by. withdrawing the benefit of 3°° MACP was not only justified but it was necessary.
4{q} We note that the case of the applicants in the oresent OAs is different from $. Balakrishnan and R. Chandrasekaran cases In S$, Baliakrisnnan's cass. tne aoclicants were found eiligible for grant of 355 MACP and since they were already arewing grade pay of Bs.5400/- they were found eligiole for e 49 grant of grade pay of Rs.6600/-. However, in the present OAs the applicants were not eligible for grant of 35° MACP. | 4(x). As per clear stipulation under Para 8.1 of the MACP Scheme and clarification on Item No.i6 of the Scheme that on grant of financial upgradation under the Scheme, there shall be no change in the designation, classification or higher higher studies. Financial upgradation under the MACP_ Scheme being only financial upgradation on -Non-
Functional basis, the availing of benefit of Non-
Functional Grade by the applicants before grant of MACP benefit obviously amounted to aqranting of one financial | upgradation under the MACP Scheme.
Therefore, after having availed of the benefit of the NFG in the form of higher grade pay, the®- applicants were not entitled for. grant of 3% MACP., Because of this unambiguous position under the stipulations of the MACP Scheme, and on having nent i failed in their attempts through the Depart # Revenue in getting the benefit of NFG waived for becoming eligible for grant of 3°74 MACP, the ta -- -- +4 amr = 226 i, 71, _ "
were not entitled for grant of 3°% MACP. That is wny in their written notes at sveymerts in Par il WOY AM CNhelr WHitLeo bveso ws SrQUMeres Lf ara Lil; they have supmicresc an aliernative oreyer cnat 50 Mr:Suneja, O.A.232/2017, if the MACP benefits have been granted to the applicants erroneously atleast action of recovery in case of 10 applicants i.e. O.A.Nos.44, 47, 48, 186, 230, 233, 234, 394, 433/2017 and 374/2018 is unsustainable in view of Apex Court decision in case of State of Punjab & Others Vs. Rafiq Masih as the recovery has been ordered within one year: of their retirement of after retirement. | 4({s). However, the applicants have not explained as to how the recovery of the excess payment made to them as 3*4 MACP would result in extreme hardsnip to them. In fact as per Rule 71 of che Pension Rules, even from the retiring employees recovery is to be made and it is the duty of the Head of the Office to ascertain and assess Government dues payable by Government servant due for retirement. The Government dues as ascertained and assessed by the Head of the Office that remain outstanding till . the date .of cetirement shail be adjusted against the amount of gratuity being payable and the = = -" Tr 7 att Jarier 7™ _ y pay and allowances or ieave salary. YTnerertcre, tne _ 7; 4 Po - 7 3 al = - =F a _ applicants are liable fer recovery of coe AQvarneyrenr mace - them ir tre fe OF meant = Qe CvVeroavment Maas CO CNS im tne TOrm of Grant oT Re D mim od MAC? Cenerit 31 Chandi Prasad Uniyal case the law is that the excess payment made due to wrong / irregular pay fixation can always be recovered.
Keeping in view the above discussed provisions, the Department of Revenue and CBEC have directed the Cadre Controlling authorities to 'recover excéss payment from the applicants and similarly placed other employees and fix the responsibility in such cases of overpayments.
"A(u). In view of. the above analysis, in our considered view the OAs have no-merit. The action ' of the respondents of withdrawing the wrongly 'granted 3°* -MACP benefit from the applicants and initiating recovery of the overpayment was fully 7 e -- 4 > justified.
However, after withdrawal of 3*¢ MACP earlier granted to the applicants and refixation of their pay, there was delay by the respondents themselves in issuing the orders of recovery..
= nerefore, in view of the Apex Court decision in Gc and DOPT OM:.dated 62.03.2016 in case of applicants Ss Fearem ata oO RR 186/39 o mr ans, {Ss Paramsivam) ; O.R, 1186/2017 (VY. Parmesh), ma BI FATT mr ot on \ rm. OP | a7 + 4 O,8.229/201 iC,.G. Shenene), BRi,233/2017 (doesepn _ a a nf v7, Cn | Loma ~ fos 2m = ~an i? "* can 7 Bose}, O.8.23¢/2017 (Pandit Bagece); O,R.433/2017 52
-O.m.324/2018 ({MPS Sengar), O.A.44/2017 (Vijaykumar U. Shah), 0.A.394/2017 (U.P. Kulkarni) and
0.A.117/2018 (V.K. Shastri) against whom the orders of recovery were issued within one year of their retirement, should be withdrawn and in their cases it would be better to refund the amount of récovery already made. In rest of the OAS (O.A.No.231/2017 and ©.A.232/2017) the recovery should be made.
0.8.47/2017, 0.A.48/2017, 0.A,186/2017, O.A.233/2017, O.A,234/2017, .A.394/2017, gn. 433/2017, 0.A.374/2017, (A.324/2018,. 0.8,44/2017 and O.A.117/2018 'are partly allowed only with respect Lo setting aside of orders of the recovery of 374 MACP benefit which 7 were issued within one year of their retirement. However, 0: K.Nos.231/2017 and O.A.232/2017 are dismissed. No order as to costs. | All' Mas filed by the parties also stands a {Dz.Bhagwan Saat] Member (A).