Central Administrative Tribunal - Chandigarh
Unknown vs Comptroller And Auditor General Of ... on 12 April, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(ORDER RESERVED ON 30.03.2016)
O.A No. 1623/PB/13 Date of decision: 12.04.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
Partap Singh Nain, aged 59 years S/o Sh. Badlu Ram, Assistant Accounts Officer O/o Principal Accountant General (A&E), Haryana, Sector 33, Chandigarh, R/o Flat No.353, Tower S I, Savitri Towers, VIP Road, Zirakpur.
APPLICANT
BY ADVOCATE: Sh. R.K. Sharma.
VERSUS
1. Comptroller and Auditor General of India, 9, Deendayal Upadhyay Marg, New Delhi.
2. Principal, Accountant General (A&E), Haryana, Sector 33, Chandigarh.
3. Principal Accountant General (A&E), Punjab, Sector 17-E, Chandigarh-160017.
RESPONDENTS
BY ADVOCATE: Sh. Barjesh Mittal.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A):-
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8. (i) Quash order No.Admn-I/BCB/MACPs/PS/2013-14/1862 dated 04.11.2013 (Annexure A-1), whereby claim of the applicant for grant of proper 2nd ACP w.e.f. 09.08.1999 in the pay scale of Rs.7450-11500 revised to Rs.9300-34800 with Grade Pay of Rs.5400 has been declined.
(ii) Quash order No.Admn-I/19 dated 14.05.2013 (Annexure A-2), qua applicant, to the extent whereby instead of granting third MACP w.e.f. 01.09.2008 in the pay band of Rs.15600-39100 + Grade pay of Rs.6600 the same has been granted to the applicant in the pay band of Rs.9300-34800 + Grade Pay of Rs.5400.
(iii) Quash office order No.Admn.I/Pay fixation/2013-14/573-79 dated 06.06.2013, qua applicant copy Annexure P-3, whereby instead of fixing pay of the applicant in the proper Pay Band of Rs.15600-39100 + Grade Pay of Rs.6600 the same has been wrongly fixed in the pay band of Rs.9300-34800 + Grade pay of Rs.5400 after grant of 3rd ACP w.e.f. 01.09.2008 in pursuance of order no.Admn-I/19 dated 14.05.2013 (A-2).
(iv) Issue direction to respondents to consider and grant 2nd ACP to the applicant w.e.f. 09.08.1999 in the pay scale of Rs.7450-11500 revised to Rs.9300-34800 with Grade Pay of Rs.5400 w.e.f. 09.08.1999, ignoring the earlier promotions because his personal pay scale was higher than the pay scale granted to him on promotion as Accountant, Senior Accountant and Section Officer, by extending benefit of judgment passed by this Honble Tribunal in Ram Saran Vermas case OA No.356/HP/2010 as upheld by the Honble Punjab and Haryana High Court in CWP No.8772/CAT/2012 vide judgment dated 16.11.2012 and third MACP in the pay scale of Rs.15600-39100 + Grade Pay of Rs.6600 w.e.f. 01.09.2008 and grant all consequential benefits including arrears of pay and allowances.
2. It is stated in the OA that the applicant initially joined Beas Construction Board as Clerk on 05.01.1973 in the pay scale of Rs.110-250, which was revised to Rs.400-600 w.e.f. 01.01.1978. Later, this pay scale was bifurcated into two scales viz. Running scale of Rs.400-600 and Senior Scale of Rs.510-800 retrospectively w.e.f. 01.01.1978, on the basis of judgment of this Tribunal. Consequently applicant was placed in the senior scale of Rs.510-800 w.e.f. 01.01.1978. On completion of component of Beas Project, applicant was declared surplus w.e.f. 01.09.1984. He was redeployed in the respondent department on 08.01.1985 in the pay scale of Rs.260-400. At the time of redeployment, on giving option, applicant was granted Central Pay Scale of Rs.330-560, and was drawing Rs.620 as Basic pay in BCB/Central Surplus Pool w.e.f. 01.01.1985, which was revised to Rs.1200-2040 w.e.f. 01.01.1986. The applicant was promoted as Accountant w.e.f. 01.02.1988 in the same pay scale of Rs.1200-2040. Applicant was further promoted as Senior Accountant in the pay scale of Rs.1400-2600 w.e.f. 01.01.1992. The pay scale of Rs.1400-2600 was revised to Rs.5000-8000 w.e.f. 01.01.1996 and later to Rs.5500-9000 w.e.f. 01.01.1996. The applicant was promoted as Section Officer (Adhoc) in the pay scale of Rs.5500-9000 w.e.f. 02.04.1998. Later the scale was revised to Rs.6500-10500. The applicant was regularized as Section Officer in the same pay scale of Rs.6500-10500 w.e.f. 02.01.2007 which was revised in PB-2 in the Pay Band of Rs.9300-34800 + Grade Pay of Rs.4800. The post of Section Officer was re-designated as Assistant Accounts Officer in the same pay band and grade pay w.e.f. 27.05.2009 and classified as Group-B (Gazetted).
3. It is further stated that the controversy with regard to pay scale of BCB employees was settled by this Tribunal in OA No.253/CH/1991 titled Bharat Bhushan and others versus Union of India and others decided on 09.02.2000. The Writ Petition filed against this order being CWP No.9969/CAT/2000 was also dismissed on 31.08.2005. As a result thereof, respondent department granted the revised personal pay scale to the Ex-BCB employees of Rs.510-800 as Rs.1640-2900 w.e.f. 01.01.1986 and Rs.5500-9000 w.e.f. 01.01.1996. In compliance of the orders passed by this Tribunal in Bharat Bhushans case, even non-applicants including the applicant, were granted benefit of two personal pay scales of Rs.1640-2900 w.e.f. 01.01.1986 and Rs.5500-9000 w.e.f. 01.01.1996 and consequently after recommendations of the 6th CPC the said benefit was extended to the applicant. Though the ACP Scheme was introduced w.e.f. 09.08.1999, but the applicant was not granted benefit of ACP on the ground that he had earned promotion, whereas applicant had completed 24 years of service as on 09.08.1999 and the personal pay scale of the applicant was higher than the pay scale granted to him on promotion as Accountant, Senior Accountant and Section Officer. Therefore, he was entitled to second ACP in the pay scale of Rs.7400-11500 w.e.f. 09.08.1999. The pay scale of Rs.7450-11500 was revised w.e.f. 01.01.2006 in the pay band of Rs.9300-34800 with grade pay of Rs.5400. There was further litigation of pay scales of Ex-BCB employees for the purpose of ACP and this controversy was settled by this Tribunal through a number of OAs including OA No.356/HP/2010 titled Ram Saran Verma versus Union of India and others, whereby persons who were in the pay scale of Rs.510-800 became entitled to financial upgradations in the pay scale of Rs.6500-10500 and Rs.7450-11500. Copy of judgment dated 23.11.2010 is attached as Annexure A-4. The respondent department filed review and the same was also dismissed by this Tribunal vide order dated 02.12.2011. This judgment was challenged by the respondent-department by way of Writ Petition no.8772 of 2012 and the same was dismissed vide order dated 16.11.2012. The applicant is similarly situated and it was the bounden duty of the respondent-department to extend the benefit of the said judgment to the applicant but he has not been extended the benefit of the judgment in Ram Saran Vermas case OA No.356/HP/2010.
4. Respondent no.3 took up the case of similarly situated colleagues of the applicant namely Smt. Geeta Joshi, Senior Accountant, Smt. Usha Dewedi, Senior Accountant (Retired), for grant of benefit of 3rd ACP w.e.f. 01.09.2008 in view of the judgment dated 19.03.2009 passed by this Tribunal in OA No.131/CH/2008 in the case of Kamlesh Chander vide letter dated 22.08.2012 (Annexure A-5) with respondent no.1. Besides, the Government of India introduced MACP Scheme w.e.f. 01.09.2008 vide notification dated 19.05.2009 (Annexure A-6). Accordingly applicant became entitled to third MACP w.e.f. 01.09.2008 in the pay scale of Rs.15600-39100 with Grade Pay of Rs.6600. However, the same has not been granted to the applicant.
5. In the amended written statement filed on behalf of respondents no.1 & 2, it has been stated that the applicant who was a permanent employee of BCB w.e.f. 05.01.1973, was declared surplus w.e.f. 01.09.1984 and was redeployed in the respondent department as Clerk w.e.f. 08.01.1985. While working in BCB, the scale of Rs.400-600 in which the applicant was working at the relevant time was bifurcated into two scales i.e. running scale of Rs.400-10-600 and senior scale of Rs.510-15-1580 retrospectively w.e.f. 01.01.1978. Consequently, the applicant was placed in the senior scale of Rs.510-15-800 w.e.f. 01.01.1978 and his pay was fixed at Rs.510. This pay scale of Rs.510-800 was not any revised pay scale rather it was a special or senior scale which was granted to a few clerks such as the applicant and not to all the employees of BCB and his pay was refixed from Rs.430 to 510 p.m. w.e.f. 01.01.1978. Thus, he was financially benefited which constitutes his first promotion/financial upgradation. The applicant has already been granted 3 promotions / financial upgradations under the ACP Scheme, 1999 and MACP Scheme. The following chart showing the complete details from the date of initial entry till grant of promotion/financial upgradations as under:-
Date Desig-nation Old pay scale Rs.
New pay scale Rs.
Remarks / ACP/MACP 05.01.1973 Clerk 110-250 Initial Appointment 01.01.1978 Clerk 110-250 400-600 01.01.1978 Clerk 400-600 510-800 First financial upgradation 08.01.1985 Clerk 510-800 Joined o/o AG (A&E) Haryana after being declared surplus in BCB. 01.01.1986 Clerk 510-800 1640-2900 Pay scales revised by 3rd pay commission. 10.02.1988 Accountant 1200-2040 1640-2900 Promoted as Accountant but higher pay scale protected. 01.01.1992 Senior Accountant 1400-2600 1640-2900 Promoted as Senior Accountant but higher pay scale protected. 01.01.1996 Senior Accountant 1640-2900 5500-9000 Pay scale revised.
03.04.1998 Section Officer 5500-9000 Promoted as Section Officer / 2nd Financial upgradation. 19.02.2003 Section Officer 5500-9000 6500-10500 Pay scale revised notionally w.e.f. 01.01.1996. 01.01.2006 Section Officer 6500-
10500 9300-34800+ 4800 GP Pay scales further revised.
01.09.2008 Section Officer 9300-34800 + 4800 GP 9300-34800+ 5400 GP 3rd financial upgradation under MACP 27.05.2009 Post of Section Officer re-designated as Assistant Accounts Officer in the same pay band and grade pay.
Hence, his claims for 2nd ACP w.e.f. 09.08.1999 in the pay scale of 7450-11500 revised to 9300-34800 + 5400 GP w.e.f. 01.01.2006 and 3rd MACP in the pay band of Rs.15600-39100 + 6600 GP w.e.f. 01.09.2008 are neither correct nor admissible. It is further, stated that the pay scale of Rs.7450-11500 has been revised to Rs.7450-11500+4800 and not as Rs.7450-11500+5400 as has incorrectly been mentioned by the applicant.
6. Further, the claim of applicant for 3rd MACP in the Grade pay of Rs.6600/- is not appearing in the hierarchy of his promotional cadres in the IA&AD, is thus, neither correct nor admissible. Moreover, the applicant has not annexed any judgment whereby the Honble Court has allowed the benefit of Grade Pay of Rs.6600 to any applicant in such a case. The hierarchy of the cadres in the IA & AD are given below:-
Cadre Scale 01.01.1996 Pay Band & Grade Pay 01.01.2006 Clerk 3050-4590 5200-20200 + 1900 GP Accountant 4500-7000 (notional from 01.01.1996 to 18.02.2003 and actual w.e.f. 19.02.2003) 5200-20200 + 2800 GP Sr. Accountant 5500-9000 (notional from 01.01.1996 to 18.02.2003 and actual w.e.f. 19.02.2003) 9300-34800 + 4200 GP Section Officer Supervisor 6500-10500 (notional from 01.01.1996 to 18.02.2003 and actual w.e.f. 19.02.2003) 9300-34800 + 4800 GP Asstt. Accounts Officer 7450-11500 (notional from 01.01.1996 to 18.02.2003 and actual w.e.f. 19.02.2003) 9300-34800 + 4800 GP Accounts Officer 7500-12000 (PB-2) 9300-34800 + 5400 GP Sr. Accounts Officer 8000-13500 (PB-3) 15600-39100 + 5400 GP Financial upgradations under the ACP Scheme, 1999 were to be allowed in the Departmental Hierarchy while as per the MACPs, 2009, placement was to be made in the immediate next higher grade pay in the hierarchy of 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. Consequently the immediate next higher grade pay in the hierarchy of the applicant in the revised pay bands and grade pay is that of (PB-3) 15600-39100 + 5400 GP and not pay band of Rs.15600-39100 + 6600 GP as claimed by the applicant in the OA. Moreover, as per the hierarchy of the cadre mentioned above, one can, through promotion/financial upgradation, achieve the pay scale maximally of Rs.15600-39100 + 5400 (Grade Pay) and not Rs.15600-39100+6600 (Grade Pay). Thus, his claim is neither correct nor admissible.
7. Rejoinder has been filed on behalf of applicant, wherein, it has been stated that the Pay Scale of Rs.400-600 in which the applicant was employed was bifurcated into two scales in 50:50 ratio viz Running Scale of Rs.400-600 and senior scale of Rs.510-800 w.e.f. 01.01.1978, on the basis of judgment of this Tribunal. Consequently the applicant was placed in the Senior Scale of Rs.510-800 and his pay was fixed at the lowest stage of the new scale of Rs.510-800 w.e.f. 01.01.1978. Hence, this was neither a promotion nor financial upgradation. This controversy with respect to pay scale of Rs.510-800 of Ex-BCB Employees for the purpose of ACP has since been settled by this Tribunal through a number of OAs including OA No.356/HP/2010 titled as Ram Saran Verma versus Union of India and others, whereby persons who were in the pay scale of Rs.510-800 became entitled to financial up-gradations in the pay scale of Rs.6500-10500 and Rs.7450-11500 w.e.f. 09.08.1999. As such, the applicant got only one promotion i.e. on 03.04.1998 as Section Officer in the pay scale of Rs.6500-10500 and was entitled to 2nd ACP in the pay scale of Rs.7450-11500 w.e.f. 09.08.1999 and 3rd ACP w.e.f. 01.09.2008 in the next higher pay scale of hierarchy.
8. Arguments advanced by learned counsel for the parties were heard. Learned counsel for the applicant narrated the background of the matter. He stated that keeping in view the judgment in Bharat Bhushans case and other litigation, the applicant was allowed the scale of Rs.510-800 from 01.01.1978. Thereafter, keeping in view the pay revisions and promotion the applicant got the scale of Rs.1200-2040 w.e.f. 10.02.1988, Rs.1400-2600 w.e.f. 01.01.1992, Rs.5000-8000 w.e.f. 01.01.1996 that was later revised to Rs.5500-9000 on 02.04.1998. The applicant was promoted as S.O. adhoc in the pay scale of Rs.5500-9000 which he was already drawing and this scale was later revised to Rs.6500-10500. The applicant was promoted as regular S.O. w.e.f. 02.01.2007 and his pay was refixed in the revised PB-2 Rs.9300-34800 + 4800. The applicant was redesignated as AAO on 25.07.2009. The intermediate promotions that the applicant got were in pay scales lower than that drawn by the applicant as he had been afforded pay protection as a BCB employee. Hence, these promotions were to be ignored for ACP purposes. The BCB employees had been held entitled to ACP on the basis of their pay scale and not the scale of the post. Learned counsel further stated that the claim of the applicant to 2nd ACP was covered by judicial pronouncements and the same had been allowed in respect of similarly situated employees working under the AG, Punjab Circle. The applicant was working in Haryana and he had been denied the benefit of 2nd ACP and had thus been treated in a discriminatory manner. Learned counsel placed reliance on judgement dated 23.11.2010 in OA No.356/HP/2010 Ram Saran Verma versus UOI and others (Annexure A-4) as well as the following supporting judgments:-
(i). OA No.131/CH/2008 titled as Kamlesh Chander versus The Comptroller and Auditor General of India and others decided on 19.03.2009.
(ii) CWP No.15637-CAT of 2009 titled as Comptroller and Auditor General of India and others versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and another decided on 19.01.2010.
(iii) MA No.364 of 2011 in OA No.356/HP/2010 titled as Ram Saran Verma versus Union of India and others decided on 02.06.2011.
(iv) MA No.1058 of 2011 & RA No.82 of 2011 in OA No.168-HP-2010 etc. titled as H.C. Sharma and others versus Union of India and others etc. decided on 02.12.2011.
(v) CWP No.8772/CAT/2012 etc. titled as Controller of Defence Accounts, (PD), Meerut Cantt versus H.C. Sharma and others etc. decided on 16.11.2012.
(vi) OA No.778/JK/2010 titled as Ashok Kumar Sharma versus Union of India and others decided on 07.01.2013.
(vii) SWP No.2347/2013 titled as Union of India and others versus Ashok Kumar Sharma decided on 04.11.2013.
Learned counsel further stated that at this stage he was only pressing the claim for 2nd ACP w.e.f. 09.08.1999 which had not been granted to him as he felt that if this was allowed by the Tribunal, revised pay fixation would follow and the claim of the applicant would thereafter be considered for 3rd MACP in the scale claimed by him.
9. Learned counsel for the respondents referred to the preliminary objection taken in the written statement that the claim was barred by limitation. Although the applicant was claiming 2nd ACP w.e.f. 09.08.1999, but the applicant had for the first time submitted his representation in this regard in 2006. Learned counsel further stated that although the applicant was placing his reliance on Kamlesh Chander (supra), but the same was distinguishable from the case of the applicant. Learned counsel also referred to Annexure A-2 stating that all the BCB Clerks who had been declared surplus and subsequently absorbed in various Departments of the Central Government were not granted the scales of Rs.510-800. Most of them were retained in the scale of Rs.400-600 while the applicant got the scale of Rs.510-800. Hence, the applicant had got his first financial upgradation in 1978 itself. Since the applicant had subsequently been promoted as Accountant in 1988, the applicant was not entitled to 2nd financial upgradation under ACP Scheme. Learned counsel further stated that the cited cases did not relate to the CAG establishment but these related to the CGDA establishment. Besides the employees who were declared surplus from BCB and who were absorbed in various departments of the Central Government had in fact got a bounty. While the surplus absorbed employees were getting high salary on account of pay protection, their counterparts in the same department were getting much less pay. Learned counsel also referred to the hierarchy of posts in the CAG establishment and stated that even if 2nd ACP were granted to the applicant, the 3rd MACP would have to be in grade pay of Rs.5400 which had already been granted to him.
10. We have given our careful consideration to the matter, perused the pleadings of the parties, the material on record and judgments cited by learned counsel. Arguments advanced by counsel have been heard at length. The issue regarding entitlement of 2nd ACP in the scale of Rs.7450-11500 to Ex-BCB employees who were in the pay scale of Rs.510-800 is no longer res-integra as the same has been settled in Ram Saran Verma (supra). Although Sh. Ram Saran Verma belonged to the CGDA establishment, similar direction was issued in Kamlesh Chander (supra), where the respondents were the CAG, Accountant General (A&E), Punjab, and Secretary to GOI, DOPT. The judgment in the case of Kamlesh Chander has been implemented and he has been granted the 2nd financial upgradation in the same manner as sought by the applicant. Some other employees of the office of AG, Punjab, were also similarly benefited (Annexures A-8, A-9). The respondents cannot distinguish between the similarly situated employees who may be working under AG, Punjab just because they are working with AG, Haryana, and hence we conclude that the applicant is entitled to the 2nd financial upgradation w.e.f. 09.08.1999 in the scale of Rs.7450-11500. At this stage we do not deem it necessary to adjudicate on the claim of the applicant for 3rd MACP with grade pay of Rs.6600 as this aspect is to be considered by the respondents, after the refixation of the pay of the applicant after granting him the 2nd financial upgradation under ACP Scheme as indicated above.
11. Regarding the aspect of limitation, we note that indeed this OA has been filed in December 2013, while the claim of the applicant for 2nd upgradation under ACP relates to 09.08.1999 onwards and the applicant filed his first representation in this regard as late as in 2006. Hence the 2nd upgradation may be granted to the applicant w.e.f. 09.08.1999 on notional basis and arrears allowed to the applicant only for a period of 18 months prior to the date of filing this OA i.e. from 08.12.2013 onwards. Action to implement the direction of the Tribunal regarding grant of 2nd financial upgradation to the applicant in the scale of Rs.7450-11500 may be completed within a period of four months from the date of a certified copy of this order being served upon the respondents. Consequential action regarding revision of pay, and pensionary benefits and release of arrears on this account may also be completed within this period.
12. No costs.
(RAJWANT SANDHU) MEMBER (A) (JUSTICE L.N. MITTAL) MEMBER (J) Place: Chandigarh.
Dated: 12.04.2016 rishi 13 O.A NO. 1623/PB/2013 (Partap Singh Nain Vs. UOI & Ors.)