Central Administrative Tribunal - Ernakulam
Thulasidharan K. Aged 54 Years vs Union Of India on 30 October, 2015
Author: P.Gopinath
Bench: P.Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 730 of 2012
Friday this the 30th day of October, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P.Gopinath, Administrative Member
Thulasidharan K. aged 54 years, S/o P.N.Kumaran,
Personal Secretary
Integration and Check Out Facilities,
Vikram Sarabhai Space Centre,
Thumba, Trivandrum residing at Sarojini Bhavan,
Kazhakootam, Trivandrum.
. . . . . Applicant
(By Advocate Mr.S. Ramesh Babu)
Versus
1. Union of India, represented by the Secretary
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pensions,
Lok Nayak Bhavan, Khan Market,
New Delhi.
2 Department of Space, represented by its
Secretary, Antariskh Bhavan,
New BEL Road, Bangalore-94.
3 Vikram Sarabhai Space Centre, represented
by its Director,Thumba, Trivandrum.22.
4 Chief Controller, Vikaram Sarabhai Space Centre,
Thumba, Trivandrum.22.
. . . . . Respondents
(By Advocate Mr. Thomas Mathew Nellimootil, SPCGC)
This application having been finally heard on 16.10.2015, the Tribunal on
30.10.2015 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member Complaining of denial of 3rd financial upgradation under the MACP Scheme this OA has been filed. The applicant entered service in Indian Space Research Organization (ISRO) under Department of Space (DOS) on 18.3.1982 as Jr. Stenographer. He was promoted as Stenographer/Personal Assistant on 13.3.1998. Again he was promoted as Personal Assistant B) /Personal Secretary on 18.8.2003. The applicant completed 30 years of service on 18.3.2012. The applicant contends as follows:
2. Since he obtained only two promotions as mentioned earlier, he is entitled to get 3rd financial upgradation under the MACP Scheme. The applicant came into the Grade Pay of Rs. 5400/- from the Grade Pay of Rs.
4800/- w.e.f. 1.1.2010. The applicant became Personal Secretary w.e.f. 18.8.2003 as evidenced by Annexure A4. He completed 4 years of service as Personal Secretary and therefore he became eligible in terms of Annexure A3 to the Grade Pay of Rs.. 5400/- w.e.f. 1.1.2010. Annexure. A7 order was issued stating that the applicant and others will be granted one increment at 3% of the basic pay and it would be added to the basic pay and would thereafter grant the non-functional grade pay of Rs. 5400/- with pay fixation as promotion for the purpose of MACP. It was done in order to deny the applicant the grant of the 3rd financial upgradation under the the MACP Scheme. The applicant has fulfilled all the requirements for entitlement of the 3rd MACP, the applicant pleads.
3. The respondents resisted the application contending as follows:
4. It is admitted that the applicant was initially appointed as Junior Stenographer on 18.3.1982 and that he was promoted as Stenographer/Personal Assistant on 13.3.1998. He was later promoted as Personal Assistant-C on 18.8.2003. The applicant who was drawing the Grade Pay of Rs. 4800/- was granted non-functional higher grade pay with fixation equivalent to promotion to the Grade Pay of Rs. 5400/- and as such it should be treated as third promotion. Hence the applicant is not entitled to get the 3rd financial upgradation under the MACP Scheme. It was done in terms of Annexure R1 order dated 19.11.2009 issued by the Department of Personnel and Training (DOP&T). Grant of non-functional scale to Section Officers is equivalent to a promotion. It was clarified by DOP&T, as per Annexure R.3 dated 29.9.2011 that, all upgradations are counted as promotion for the purpose of MACP. Therefore, the respondents contend that the applicant is not entitled to get the benefit of the 3rd financial upgradation under MACP Scheme.
5. We have heard the learned counsel appearing for both parties. We have also gone through the pleadings and records/annexures.
6. The short point that arises for consideration is whether the applicant is entitled to get the 3rd financial upgradation under MACP scheme as claimed by him?
7. The dates of initial appointment, grant of upgraditon/promotion etc. of the applicant are as shown below:
Sl.No. Pay Scale(Rs) Grade Designation Career Date Pay(Rs) Advancement/ promotion 330-10-380-EB-12- -- Jr.Stenograph Initial 18.3.1982 1 500-EB-15-560 er Appointment 4000-100-6000 -- Jr.Stenograph Revised scale 01.01/1996 2 er 3 5000-150-8000 -- Stenographer Promotion 13.03.1998 4 5500-175-9000 -- Stenographer Upgradation 13.03.1998 5500-175-9000 -- Personal Change in 31.12.1999 5 Assistant designation 6500-200-10500 -- Personal Promotion 18.08.2003 6 Assistant-C 9300-34800 Personal Revised Scale 7 4800 Assistant-C 01/01/06 9300-34800 Personal Re-designation 109.10.2006 8 4800 Secretary 15600-39100 Personal Grant of non-
Secretary functional
higher Grade
Pay with pay
fixation as per
9 5400 Promotion. 01/01/10
8. According to the respondents the applicant was assigned non functional Grade Pay of Rs. 5400/- in the pay band of Rs. 15600-39100 (PB3 ) with fixation benefit as in the case of promotion and that was done w.e.f 1.1.2010. There is no dispute regarding the fact that if this grant of non-functional Grade Pay of Rs. 5400/- in PB-3 with fixation benefit as claimed by the respondents is excluded, the applicant had only two promotions; the first one being promotion as Stenographer on 13.3.1998 and the second one being promotion as PA with effect from 18.8.2003. In other words, if item No.9 in the column shown above, namely, the grant of non-functional higher grade with pay fixation is not taken into account as promotion, then the applicant would be entitled to get the 3rd financial upgradation under th MACP Scheme, since the applicant has completed 30 years of service as on 18.3.2012.
9. It is not disputed that consequent to the recommendation of the 6th Pay Commission there was revision of scale of pay of Junior Stenographer w.e.f. 1.1.1996. Similarly it is also not in dispute that there was an upgradation in the scale of Stenographer with effect from 13.3.1998 also. The respondents do not contend that the upgradation granted on 13.3.1998 will amount to promotion. It is also not disputed that there was change in designation as Personal Assistant w.e.f.13.12.1999 The second promotion was to the post of Personal Assistant-C w.e.f. 18.8.2003. The fact that there was revision of pay scale as per the 6th CPC and it was then Grade Pay was introduced is also not in dispute. Thus the Grade Pay of the applicant on 1.1.2006 was fixed at Rs.
4800/-. That revision of pay scale does not amount to promotion. Though there was re-designation of the post of Personal Assistant -C as Personal Secretary the grade pay continued to be Rs. 4800/-.
10. It is admitted by the respondents that the MACP scheme has been made applicable to the respondents DOS/ISRO as well. It is submitted by the learned counsel for the applicant that since there were reports that in order to avoid the implications of MACP Scheme the respondents (DOS) was conceiving the grant of one more increment so as to reckon the same as promotion in order to disentitle the employees of DOS the benefit of MAC, Annexure A8 representation was given by him on 18.6.2010. In Annexure A8 it was stated that he could learn that there was proposal for grant of one increment to annex the already existing Rs. 5400 in respect of Personal Secretary etc. which according to the applicant was to deny the benefit of the 3rd MACP. It was stated that the proposed increment will forfeit the chance of getting the 3rd financial upgradation under the MACP Scheme. Thus according to the applicant it was unfair to grant one increment to convert to existing grade pay to promotion when a higher Grade Pay plus one increment was to be granted to the applicant.
11. Annexure A7 is the letter dated 22.6.2010 which is impugned in this case. As per Annexure A7, the applicant was informed regarding the grant of non -functional Grade Pay of Rs. 5400/- in PB3 to certain categories of employees of ISRO/DOS on completion of four years in the Grade Pay of Rs. 4800/- It was further informed that the issue regarding pay fixation on grant of non-functional Grade Pay of Rs. 5400/- on completion of four years in the grade of Rs. 4800/- has been examined in the department. Thus ultimately it was decided to grant non-functional Grade Pay of Rs.5400/- on completion of 4 years ie., on or after 1.1.2010. It was further stated that those persons will be granted one increment at the rate of 3% on the basic pay and to the figure so arrived at, the difference in Grade pay (Rs.5400-Rs.4800 = Rs. 600) should be added. The learned counsel for applicant would submit that grant of one increment at the rate of 3% of the basic pay was an idea trotted out by the respondents to pre-empt the applicant from getting the 3rd financial upgradation under the MACP Scheme and claiming such relief and it was indeed a subtle device invented by the department especially when it was totally unsolicited by the applicant. If there was no clamour for fixation by grant of increment at the rate of 3%, there can be no difficulty to hold that this grant of one increment at the rate of 3 % of the basic pay was certainly an unsolicited act calculatedly done to deny the benefit which the applicant was otherwise entitled to get, it is further argued. The applicant contends that there was no occasion or necessity to grant additional increment while revising the pay from Rs.4800/- to 5400/- de hors the provisions of the Pay Commission Report and that the 6th CPC did not recommend such grant of additional increment and there was already a provision for financial upgradation under the MACP Scheme.
12. Annexure A10 letter dated 30.12.2011 issued by the DOS/VSSC would show that the applicant had earned two promotions to the grade of Stenographer/Personal Assistant and Personal Secretary and assigned the non-functional Grade Pay of Rs. 5400/- with fixation in PB-3 on completion of four years from the assigning of Grade Pay of Rs. 4800/- and therefore it is stated that the applicant is not eligible for grant of 3rd financial upgradation under the MACP Scheme. In this connection the learned counsel for the applicant would submit that consequent to the revision of Pay Scale based on 6th CPC and the re-designation of the post as Personal Secretary on completion of 4 years the applicant is entitled to Grade Pay of Rs.5400/- and so there was no necessity to grant 3% of the basic pay as an increment when it was never asked for.
13. The respondents would contend that the applicant, after securing the non- functional Grade Pay of Rs. 5400/- in the Pay Band of Rs. 15600-39100 (PB3) with fixation benefit, is demanding yet another financial upgradation under the MACP Scheme, which is impermissible. The applicant would contend that it is not the case of the applicant that he is entitled to get a fixation/increment at the rate of 3% of the basic pay and also the 3rd financial upgradation. The consistent stand taken by the applicant is that the grant of increment at 3% of the basic pay was unsolicited and that the applicant was always ready and willing to forgo that increment/benefit. When the applicant is otherwise entitled to get the 3rd financial upgradation under the MACP Scheme on completion of 30 years, which would be on 18.3.2012 there was no necessity of getting increment at 3% of the basic pay, the applicant contends. It is not disputed that if the fixation as aforesaid is not taken into account or is totally ignored then the applicant would certainly be entitled to get the 3rd financial upgradation, when his Grade Pay would be Rs. 6600/-, that is, on 18.3.2012 on completion of 30 years of service.
14. It is also contended by the applicant that though the applicant had requested the respondents in advance, that is, even before Annexure A7 about the consequent loss of career progression, the 2nd respondent sanctioned the increment without giving him any option. It is further contended that the increment so granted to the applicant has no backing or approval of the government. It was issued only to deny next promotion/financial upgradation. As per Annexure A5 OM dated 24.12.2009 issued by the respondents pertaining to revision of pay scale of employees of DOS/ISRO it was stated that the issue regarding assignment of Grade Pay of Rs. 5400/- was examined in detail in the department and that taking all aspects into account they have decided to assign the Grade Pay of Rs. 5400/- in PB3 to Personal Secretary and four other categories of officers mentioned therein who were assigned with the Grade Pay of Rs. 4800/- on completion of 4 years from the date of assigning the Grade Pay of Rs. 4800/- ie.,from 1.1.2006. It was further stated that those category of officers shall also be eligible for placement in PB 3 with a Grade pay of Rs. 5400/- on or after 1.1.2010 There shall be no fixation benefit while placing them in PB 3 with a GP of Rs. 5400/-. The applicant contends that it was consequent to Annexure.A6 order dated 1.2.2010 Personal Secretaries, on completion of 4 years from the date of assigning the Grade Pay of Rs. 4800/- were assigned with the Grade Pay of Rs. 5400/- in PB3 w.e.f. 1.1.2010. Their pay was regulated as shown in Annexure A6.
15. Undisputedly the applicant got the financial upgradation including pay fixation to the non-functional Grade Pay of Rs. 5400/- with effect from 1.1.2010. According to the respondents the plea raised by the applicant that the non-functional Grade Pay with pay fixation should be totally ignored for the purpose of MACP and that the offer now made by the applicant that the benefit accrued can be even foregone by the applicant is only a ruse to get over the upgradation already given to the applicant so as to claim the benefit of the 3rd financial upgradation under the MACP scheme. The applicant cannot have his own way of getting another financial upgradation ignoring the upgradation already given to the applicant as stated above. According to the respondents the other existing time bound promotion schemes cannot run concurrently with the MACP scheme. It is further contended by the respondents that the applicant has actually obtained the non-functional Grade Pay of Rs. 5400/- in PB-3 with fixation benefit on completion of four years in the Grade Pay of Rs. 4800/-. The applicant was getting the Grade Pay of Rs. 4800/- in PB-II with effect from 1.1.2006. Therefore, on completion of four years when the applicant is given the Grade Pay of Rs. 5400/- it is incomprehensible how he can ignore the same and then contend that he should be granted the 3rd upgradation under the MACP scheme, respondents contend. The applicant was granted pay fixation also while placing him to the Grade Pay of Rs. 5400/-. Increase in band pay, increase in Grade Pay, 3% pay fixation benefit and all the consequential benefits for TA, DA, LTC etc. are also attached to the pay band changed, that is, from PB-2 to PB-3, and as such it can never be said it does not have the attribute of promotion or at any rate a financial upgradation which would disentitle the applicant from claiming a further financial upgradation under the MACP scheme. There is no case for the applicant that he did not receive financial benefits accrued to him by way of the grant mentioned earlier.
16. It is also argued by the learned counsel for the respondents that it is not a solitary act done by the respondents in respect of the claim made by the applicant alone. That is actually a general decision made in the form of a policy decision. It was so taken to give maximum benefits to majority of its employees and it was not whimsical or capricious as the applicant wanted to contend. It is also argued that simply because the applicant on his own thinking or calculation finds that something more beneficial would be there if a separate financial upgradation is given under the MACP he cannot thwart the benefit given to all the employees of that group to whom non-functional Grade Pay of Rs. 5400/- on completion of four years and fixation benefit were given. It is not a case where the applicant was singled out or any arbitrary action was taken against him so as to contend that he was discriminated against. According to the respondents it was a conscious decision taken by them to give benefit to a majority of its employees. This argument has been advanced by the learned counsel for the respondents to scuttle the plea raised by the applicant that the non- functional Grade Pay with fixation benefit was given without giving notice to the applicant. The question of giving individual notice in such cases is not called for. The decision was implemented based on a particular policy which was in consonance with the clarifications issued by the nodal department, namely DOP&T (Department of Personnel & Training).
17. Annexure R1 is the order dated 19.11.2009 issued by the Ministry of Personnel, Public Grievances & Pensions as per which clarification was issued at the time of grant of non-functional upgradation to Section Officers belonging to CSSS that their pay fixation be done under Rule 13 of CCS (Revised Pay) Rules, 2008 i.e. they should be granted one increment @ 3% of their basic pay and to the figure so arrived at, the difference in grade pay i.e. namely Rs. 5400-4800/- i.e. equivalent to 600/- should be added. The non-functional Grade Pay and pay fixation was done in accordance with Annexure R1.
18. Annexure R2 has also been pressed in to service by the respondents. The order dated 3.2.2001 and the subsequent file notings of DOP&T would show that the direction is to the effect that all upgradations are counted for the purpose of MACP. That fact was directed to be taken note of by all concerned.
19. Annexure R3 is the order dated 29.9.2011 of Government of India - Department of Space which reads as follows:
'ISRO Headquarters may refer to Smt. R. Malini, Project Personnel Secretary, ISRO Headquarters representation dated 15.6.2011 (copy enclosed) for grant of 3rd Financial Upgradation of Rs. 6600/- under MACP on the plea that their placement from Rs. 4800/- to Rs. 5400/- Grade Pay should not be treated as promotion. On a reference made by the Department to DoPT during January 2011 in this regard, DoPT has clarified that all upgradations are counted as promotions for the purpose of MACP.
2. In view of the above, the employees who were assigned the Non Functional Grade Pay of Rs. 5400/- (with pay fixation) in PB-III (Rs. 15600-39100) on completion of four years from the date of assigning the grade of Rs. 4800/- are not eligible for grant of 3rd financial upgradation under MACP.
3. Any similar representations may be disposed off by Headquarters on the above lines without referring to the Department.'
20. On going through Annexure R1 memo there can be no difficulty to hold that the clarification so issued was applicable to all Departments and as such all upgradations are to be counted as promotion for the purpose of MACP. Since, in the case on hand the applicant was assigned the non-functional Grade Pay of Rs. 5400/- with pay fixation in PB-3 on completion of four years from the date of assigning of the Grade Pay of Rs. 4800/- his claim that he is eligible to get the 3rd financial upgradation under the MACP scheme must certainly fall to the ground.
21. It is contended by the respondents that the Grade Pay of Rs. 5400/- in PB-3 was assigned to certain categories of employees on completion of four years from the date of assigning the Grade Pay of Rs. 4800/-. Though initially no pay fixation benefits was given in such cases it was in view of the representations made by the beneficiaries that request was also considered and fixation benefit at the rate of 3% of the basic pay was given to all the beneficiaries/employees. Therefore, the plea raised by the applicant that it was totally unsolicited and that was done without the backing of any rule or order of the department also stands stultified. Pay fixation benefit was extended treating the same as equivalent to a promotion and as such applicant cannot aspire for another financial upgradation as sought for by him. It is also pointed out that such policies are framed by the Government/DOP&T considering the grievances voiced by the employees as a whole and not considering the individual cases. Since the respondents decided to follow the direction issued by the DOP&T to allow the benefit of pay fixation for protecting the interest of majority of its employees, it cannot be said that the decision so taken was discriminatory or arbitrary. Rather it was done to benefit all the employees. No other employee who got that benefit has questioned the legality or rationality of the same.
22. In the light of what is stated above, we hold that the applicant is not entitled to get the relief as prayed for. As such this Original Application is dismissed. No order as to costs.
(P.Gopinath) (N.K. Balakrishnan)
Administrative Member Judicial Member
kspps