Tripura High Court
354609K Hav/Ciph Alak Chaudhuri vs The Union Of India on 1 February, 2018
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 1350 of 2016
354609K Hav/Ciph Alak Chaudhuri,
HQ 21 Sector Assam Rifles, C/o 99 APO,
... Petitioner
- Versus -
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs, Government of India, New Delhi
2. The Director General,
Assam Rifles, Shillong, Meghalaya
3. The Controller of Accounts,
Ministry of Home Affairs, Pay & Accounts Office,
Assam Rifles Old DGAR Complex, Laitumkharh, Shillong
... Respondents
W.P.(C) No. 1354 of 2016
354230A Hav/Cipher Govind Bahadur Gautam,
HQ 21 Sector Assam Rifles, C/o 99 APO,
... Petitioner
- Versus -
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs, Government of India, New Delhi
2. The Director General,
Assam Rifles, Shillong, Meghalaya
3. The Controller of Accounts,
Ministry of Home Affairs, Pay & Accounts Office,
Assam Rifles Old DGAR Complex, Laitumkharh, Shillong
... Respondents
W.P.(C) No. 1360 of 2016
JC353120Y Sub/Cipher Provakar Chakraborty,
HQ 21 Sector Assam Rifles, C/o 99 APO,
... Petitioner
- Versus -
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs, Government of India, New Delhi
2. The Director General,
Assam Rifles, Shillong, Meghalaya
3. The Controller of Accounts,
Ministry of Home Affairs, Pay & Accounts Office,
Assam Rifles Old DGAR Complex, Laitumkharh, Shillong
... Respondents
W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016;
2
W.P.(C) No. 1361 of 2016
JC353183F Sub/Cipher Arun Kumar Pandey,
HQ 21 Sector Assam Rifles, C/o 99 APO,
... Petitioner
- Versus -
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs, Government of India, New Delhi
2. The Director General,
Assam Rifles, Shillong, Meghalaya
3. The Controller of Accounts,
Ministry of Home Affairs, Pay & Accounts Office,
Assam Rifles Old DGAR Complex, Laitumkharh, Shillong
... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioners : Mr. CS Sinha, Advocate
For respondents : Mr. H. Deb, ASG
Date of hearing & delivery
of Judgment and Order : 01.02.2018
Whether fit for reporting : YES
JUDGEMENT AND ORDER (ORAL)
Heard Mr. CS Sinha, learned counsel appearing for the petitioners as well as Mr. H. Deb, learned ASG appearing for the respondents.
2. All these petitions being WP(C) 1350 of 2016 [Alak Chaudhuri vs. The Union of India and others], WP(C) 1354 of 2016 [Govind Bahadur Gautam vs. The Union of India and others], WP(C) 1360 of 2016 [Provakar Chakraborty vs. The Union of India and others] and WP(C) 1361 of 2016 [Arun Kumar Pandey vs. The Union of India and others] are consolidated for disposal by a common judgment as the question whether re- musteration can be considered as the benefit of Assured Career W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 3 Progress (for short ACP) scheme or Modified Assured Career Progress (MACP) scheme wades through all these writ petitions.
3. The grievance of the petitioners emanates from the action of the respondents of considering the re-musteration as the first ACP. The petitioners initially joined as Riflemen/ORL on the dates as shown against them in the table below:
Sl. Name of the petitioner Writ petition No. Date of Date of re-
No enrollment as musteration as
Rifleman/ORL Hav/Cipher
1. Alak Chaudhuri WP(C) 1350 of 2016 29.09.1983 19.09.1987
2. Govind Bahadur Gautam WP(C) 1354 of 2016 16.10.1984 17.11.1990
3. Provakar Chakraborty WP(C) 1360 of 2016 07.06.1998 25.08.1984
4. Arun Kumar Pandey WP(C) 1361 of 2016 07.09.1979 19.01.1985
4. There is no dispute that on the recommendation of 5 th Central Pay Commission, the Government of India introduced the ACP w.e.f. 09.08.1999 as a measure of stagnation-relief for those posts where due to lack of promotional avenue the incumbents are stagnated. Since, there is no avenue for promotion, the higher pay scale was granted to them for continuous stagnation in the same rank after 12 years initially. In terms thereof, the persons who are stagnated for 12 years were granted the financial upgradation. Further upgradation is also provided if 24 years of service in the same rank has been rendered. Subsequently, the 6th Central Pay Commission modified the terms of getting such benefit by way of MACP. The government had introduced 3 financial upgradations on completion of 10 years, 20 years and 30 years of service for stagnation in the same rank. There is no dispute that the petitioners were remustered as Havilder/Cipher. For instance, W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016;4
in the case of the writ petitioner in WP(C) 1350 of 2016, on 19.09.1987 the re-musteration was granted before completion of 12 years of service in the post occupied by the said petitioners. It is apparent that re-musteration was granted. The said petitioner was remustered on 19.09.1987, but he had completed 12 years of service as Havilder/Cipher on 9.09.1999. According to the petitioners, re-musteration cannot be treated, in all cases, as the financial upgradation under ACP/ MACP scheme.
To strengthen the said submission, the petitioners have referred one communication dated 28.11.2011 (Annexure R-2) of the Director General, Assam Rifle addressed to the Pay and Accounts Officer, Assam Rifle stating, inter alia, that "remusteration is a method of appointment in RRs and it should be counted as upgradation for the purpose of appointment in RRs and it would be counted as upgradation for purpose of MACPs".
The petitioners have challenged the said decision as reflected in the communication dated 28.11.2011(Annexure R-
2).
5. Mr. CS Sinha, learned counsel appearing for the petitioners has submitted that the similar issue had fallen for consideration in Kerala High Court and Meghalaya High Court and both the courts have taken a similar view. Mr. Sinha, learned counsel has further referred to a clarification regarding remusteration vis-à-vis ACP/MACPs. For purpose of reference, the entire clarification dated 02.09.2011 is reproduced hereunder:
W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016;5
" A BRANCH (PERS SEC) CLARIFICATION REGARDING REMUSTERATION: ACP/MACPs
1. Ref 'A' Branch, HQ DGAR letter no. A/Pers/II-01/MACPs/2011/27 dated 28 June 2011.
2. Remusteration: All cases of remusteration will NOT be treated as financial upgradation for grant of ACP/MACP taking guidelines from CAT Eranakulam Bench order dated 25 June 2007 in OA No. 596/2005 filed by Shri Sentimon Mathews vs. UOI Service for the purpose of ACP/MACPs will be calculated from the date of remusteration of the individual.
3. All earlier cases which have been cleared restricting the benefits for MACPS/ACP w.e.f. 2008 shall also be revised accordingly.
This has the concurrence of PAO(AR) This order supersedes all previous orders on remusteration for grant of ACP/MACPs".
[Emphasis added] It has been clarified that the service for purpose of ACP/MACP will be calculated from the date of re-musteration of the concerned individual. Mr. Sinha, learned counsel has contended that the re-musteration is not a promotion. Despite that, the respondents have not granted the financial upgradation to the petitioners under ACP scheme taking the re-musteration of Cipher/Havilder cadre as promotion. Similarly situated one Sentimon Mathew approached the Central Administrative Tribunal, Ernakulam Bench by filing an Original Application being O.A. 596 of 2005 and the said application was allowed by the said tribunal on 25.06.2017 on observing that "re- musteration to the Cipher category has to be treated as direct recruit and the applicants will be eligible for first financial upgradation under ACP scheme on completion of 12 years of service in the grade".
[Emphasis added]
6. The respondents being aggrieved had approached the High Court of Kerala by filing a writ petition being WP(C) 32624 W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 6 of 2008. In the said writ petition, the respondents had fundamentally challenged the order dated 25.06.2007 delivered in O.A. 596 of 2005. The High Court of Kerala dismissed the writ petition on 04.12.2005 on affirming the order dated 25.06.2007 in O.A. 596 of 2005. The respondents accepted and implemented the said judgment and order dated 04.12.2008 and granted first financial upgradation to the petitioners under ACP scheme taking the re-musteration not as a promotion, but as a direct recruitment. On the basis of that, the petitioners herein got the second financial upgradation under the MACP scheme in terms of the order dated 25.06.2007 as delivered in O.A. 596 of 2005. On 28.11.2011, the Pay & Accounts office, Assam Rifles has communicated that the Ministry of Home Affairs has clarified that re-musteration is a method of appointment in RR and it would be counted as the upgradation for the purpose or MACPs. On the basis of the said clarification given by the Ministry of Home Affairs, the respondent no. 2 has cancelled and restored the status quo ante the grant of ACP/MACP benefits to the petitioners. In terms of the judgment of the Central Administrative Tribunal, Ernakulam Bench a circular was issued by the authority under No. A/Pers/1-01/MACP/2011/618 dated 02.09.2011. The relevant part of the circular dated 02.09.2011 reads as follows:
Re-musteration: All cases of remusteration will NOT be treated as financial upgradation for grant of ACP/MACP taking guidelines from CAT Eranakulam Bench order dated 25 June 2007 in OA No. 596/2005 filed by Shri Sentimon Mathews vs. UOI Service for the purpose of ACP/MACPs will be calculated from the date of remusteration of the individual.
3. All earlier cases which have been cleared restricting the benefits for MACPS/ACP w.e.f. 2008 shall also be revised accordingly. W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 7
7. By the said judgment dated 20.11.2014, the respondents had been directed to grant first and second financial up gradations under the ACP and/or under MACP w.e.f. the respective date of eligibility of the petitioners in that case. Similar writ petitions were filed in the High Court of Meghalaya following the judgment dated 25.06.2007. The said writ petition was allowed on the similar terms. The petitioners have drawn a parallel from 4th and 5th pay commissions which made several recommendations including the revision of the pay scale for para-military forces. It has been asserted in the present writ petition that by the judgment and order dated 28.01.2002 and 13.07.2016, the parity had been directed. The petitioners have therefore, urged this court may similarly treat the petitioners identically in respect of the benefit as declared by the High Court of Kerala.
8. The respondents by filing their reply have seriously disputed the averments in the writ petition. They have categorically stated that re-musteration from one trade to another trade in the higher pay scale would be counted as „financial upgradation‟. The petitioners were remustered in Hav/Cipher from various dates such as 19.09.1987, in the case of the writ petitioner in WP(C) 1350 of 2016. According to them, the writ petitioners were quite aware of the said circular and they have constructed the same differently. The petitioners were due for the second financial upgradation under ACP/MACP schemes. The petitioners were due to have their second W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 8 financial upgradation on the day when they had completed their 20 years of service.
9. By way of modification in the scheme w.e.f. 01.09.2008 some changes have been made, such as the first CAS/MCAS would be available on completion of 10 years of service whereas the second and third CAS/MCAS would be due on completion of 20 years and 30 years of service respectively. The respondents have categorically stated as under:
"Remusteration is a method of Appointment in Recruitment Rules and it would be counted as up-gradation for the purpose of MACPS' For example, the petitioner was enrolled in Assam Rifles as Rifleman (Operator Radia and Line) in the scale of Rs. 200-05-260/- and further remustered and promoted to the rank of Havildar (Cipher) in the pay scale of Rs. 975-25-1150-EB-30-1660. It is pertinent to be mentioned here that the Annexure-I enclosed with the writ petition have already been superseded vide letter dated 28 November 2011 (copy is annexed and marked as Annexure R/2)
10. The respondents have further asserted that by the impugned circular dated 28.11.2011 (Annexure R-2) in order to obviate any ambiguity, the Ministry of Home Affairs categorically returned their opinion that re-musteration is a method of appointment in RRs and it would be counted as up- gradation for the purpose or MACPs. Thus, by recalling the earlier order whereby the 2nd financial upgradation was granted, the circular was issued and the benefits, as granted were recalled by restoring the status quo ante.
11. Mr. Sinha, learned counsel has submitted that such decision of the Ministry of Home Affairs has been appreciated by the High Court of Kerala aswell as by the High Court of Meghalaya on the face of the challenge. Both the High Courts have taken a view which is contrary to the opinion of the W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 9 Ministry of Home Affairs. Rather, the view of those High Courts supports the clarification of re-musteration communicated vide no. A/Pers/1-01/MACT/11/618 dated 02.09.2011 (Annexure 1 to the writ petition). The High Court of Meghalaya has decided the similar controversy by the judgment and order dated 20.11.2012 in Jogindrappa Amarad and others vs. Union of India [WP(C) 61 of 2013]. The decision as reflected in the judgment and order dated 10.04.2013 delivered in WP(C) (SH) 256 of 2012 is similar inasmuch as it was observed in the said judgment as under:
"For the foregoing reasons, the respondents are directed to grant the 2nd financial up-gradation under the MACPs on the completion of 20 years in service as Havildar/Cipher with effect from 20.11.2011 and the first financial up-gradation should be from 20.11.2003 with consequential benefits and the impugned order st dated 07.10.2009 is modified to the extent that the 1 financial up-gradation should be with effect from 20.11.2003. It is further directed that the respondents should complete the whole exercise within a period of three months from the date of receipt of a certified copy of this judgment and order"
Mr. Sinha, learned counsel has submitted that against the judgment and order dated 04.12.2008 as delivered in WP(C) 32624 of 2008, the respondents approached the apex court but when similarly situated other persons claimed such benefit, the respondents took a stand that the said judgment was in personem. Therefore, the other persons cannot derive any benefit out of the said judgment.
12. On the face of such stance a group from the Cipher cadre, who were remustered, approached the High Court of Meghalaya and the High Court of Meghalaya by the said judgment had allowed the writ petition by directing the respondents to extend the similar benefit to the petitioners meaning on completion of 10/12 years of service, the W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 10 respondents were directed to release the 1st financial up- gradation, whichever is applicable, and thereafter on completion of 20 years and 30 years of service respectively the 2nd and 3rd financial up-gradation would be entitled to the petitioners. The writ petitioners were not given the benefit like the writ petitioners who had approached the High Court of Meghalaya. Hence, they have approached this court.
13. Mr. H. Deb, learned ASG has submitted that since the re- musteration is a promotion by trade, the petitioners cannot claim the stagnation-relief in terms of ACP and MACP. Since the re-remusteration has been clarified by the High Court of Kerala and that has not been un-settled by any superior forum, in the considered view of this court, such judgment has a great persuasive force. As such, the respondents are directed to treat the re-musteration in the case of the petitioners as the direct recruitment not as promotion and to grant them the financial up- gradation in terms of the ACP/MACP.
14. As consequence thereof, the opinion of the Ministry of Home Affairs is reflected in 28.11.2011 (Annexure R-2 to the writ petition) is interfered with and set aside. Further, the decision contained in the letter no. 19012/09/ACP/Adm-I/Sig/2015/2012 dated 15.07.2016 (Annexure 7 to the writ petition) shall be treated as in-operative and cancelled. The petitioners shall be granted such benefits within a period of 3(three) months from the date when the petitioners shall produce a copy of this order. W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016; 11
15. In terms of the above, these writ petitions are allowed to the extent as indicated above. No order as to costs.
JUDGE Saikat W.P.(C) No. 1350 of 2016; WP(C) 1354 of 2016; WP(C) 1360 of 2016; WP(C) 1361 of 2016;