Central Administrative Tribunal - Cuttack
Basant Kumar Swain vs Revenue on 23 January, 2025
1 O.A.No. 260/00619 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00619 of 2022
Reserved on 16.01.2025 Pronounced on 23.01.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Sri Basant Kumar Swain, aged about 65 years,
(retired Gr.B, Gaz.) son of Late Ratnakar Swain,
retired as Superintendent, form GST & central
Excise, Cuttack-I Division, GST & Central Excise,
Bhubaneswar presently residing at Flat No.A-103,
Laxmi Residency, Ph-II, Hanspal, Haridaspur,
P.S.Pahala, Dist. Khurda.
2. Shri Manoj Kumar Rout, aged about 54 years,
(retired Gr.B, Gaz). son of Late Sridhar Rout,
Voluntarily Retired as Superintendent from GST &
Central Excise, Bhubaneswar Commissionerate-2,
presently residing at 21- Ekamra Villa, Jayadev
Vihar, Bhubaneswar.
3. Shri Abhaya Sankar Mishra, aged about 59 years,
(Gr.B, Gaz.) son of Late Sashi Bhusan Mishra,
serving as Superintendent in Bhubaneswar-II
Division of GST & Central Excise Commissionerate,
Bhubaneswar, permanent of Temple Road, P.S/Dist.
Puri.
......Applicant
VERSUS
1. Union of India represented through the Secretary to
Government of India, Ministry of Finance,
2 O.A.No. 260/00619 of 2022
Department of Revenue, North Block, New Delhi-
110 001.
2. The Chairperson, Central Board of Indirect Taxes &
Customs, Govt. of India, Ministry of Finance,
Department of Revenue, North Block, New Delhi.
3. The Chief Commissioner, GST & Central Excise and
Customs, Bhubaneswar Zone, Odisha, C.R.Building,
Rajaswa Vihar, Bhubaneswar-751 007.
4. The Commissioner, GST & Central Excise,
Bhubaneswar Zone, Central Revenue Building,
Rajaswa Vihar, Bhubaneswar, Dist. Khurda, PIN-
751 007.
......Respondents
For the applicant : Mr. S.K.Ojha, Counsel
For the respondents : Mr. D.R.Swain, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicants got financial upgradation to GP Rs. 4800/- and, according to them, after completion of four years in the said grade they should have been given Non-Functional Upgradation (NFU) to GP Rs. 5400/- in terms of CBEC Circular F.No. 26017/98/2008- Ad.II.A dated 11.02.2009 but their grievance is that despite several representations, followed by reminders, they have not been given the benefits of NFU even though the similarly situated employee, in similar circumstances, have been extended the benefits in 3 O.A.No. 260/00619 of 2022 compliance of orders of this Bench as also other Benches of this Tribunal. Hence, they have prayed for direction to the respondents to extend the benefit of NFU of Rs. 5400/- w.e.f. the date they completed four years in GP Rs. 4800/- and to pay interest of Rs. 12% on the arrears and to refix their pay.
2. Respondents, at the first instant, questioned the very maintainability of this OA on the ground of delay and laches by stating that applicant No.1 submitted representation on 30.07.2021, applicant no.2 on 29.07.2021 and applicant No.3 on 09.09.2021 claiming the financial benefits under NFU w.e.f. 01.03.2009, 23.02.2009 and 01.01.2006 respectively whereas they filed this OA on 14.11.2022, which is grossly barred by limitation enshrined in Section 21 of the AT Act. In order to bolster their stand, they have relied on the decisions of the Hon'ble Apex Court in the cases of State of Uttaranchal & Anr. Vs. Sri Shiv Charan Singh bhandari &Ors, (2013) 12 SCC 179, UOI & Ors Vs. M.K.Sarkar, (2010) 2 SCC 59, Statge of T.N. Vs., Seshachalam, (2007) 10 SCC 137, Jagdish Lal Vs State of Haryana, (1997) 6 SCC 538, UOI Vs. Birpal singh Chauhan, (195) SCC 684, State of U.P. Vs Arvind Kumar Srivastav & Ors (2015) 1 SCC 4 O.A.No. 260/00619 of 2022 (L&S) 191.
2.1 Insofar as merit of the matter is concerned, it has been averred that in terms of the rules/circular/instruction of the Govt., the Group-B officers in GP Rs. 4800/- are entitled to NFU of GP Rs. 5400/- on completion of four years regular service. Since, the applicants were placed to Rs. 4800/- by way of financial upgradation under MACP and, not on regular promotion, they were rightly not granted the NFU to GP Rs. 5400/- on completion of four years in GP Rs. 4800/-. However, it is stated that similarly situated employee having faced similar situation approached before the Chennai Bench of the Tribunal in OA No. 167/2009 (M.Subramaniam vs Unoin of India and others), which was dismissed and the said order of the Chennai Bench was challenged before the Hon'ble High Court of Madras in W.P.No. 13225/2010. The Hon'ble High Court of Madras reversed the order of this Tribunal vide order dated 06.09.2010 and allowed the relief to the applicants. The matter was carried to Hon'ble Apex Court in Civil Appeal No. 8883/2011 but the same was dismissed on 10.10.2017. The said order was implemented in respect to the concerned applicant. Therefore, there was no illegality 5 O.A.No. 260/00619 of 2022 committed by the respondents department in not granting the benefits of NFU to the present applicants.
2.2 It is the case of the respondents that the All India Association of Central Excise Gazetted Executive Offices, Odisha Unit filed OA No. 494/2019 before this Bench. This Bench directed to consider their grievances vide order dated 13.05.2020 and, as per the order of the competent authority dated 13.05.2020, the benefit of NFU was granted to the applicants therein and, since, the present applicants were not the parties, they were not extended the NFU, as such, the plea of discrimination between the applicants in OA No. 494/2019 qua the present applicants is not correct.
2.3 It is the case of the respondents that applicant No.3 was also a member of All India Association of Central Excise Gazetted Executive Offices, Odisha Unit but, inadvertently, his name was skipped from the list of members of the Association while filing the OA. Therefore, he can be extended the benefits of NFU after getting necessary orders from the court and acceptance by the Board because the issue is a policy matter and the Board alone is competent to extend the benefit. It is stated that taking into consideration the orders passed by the 6 O.A.No. 260/00619 of 2022 various courts, directing extension of the benefits of the M.Subramaniam's case, the Board examined the matter but the Dept. of Expenditure, New Delhi did not agree to the proposal for extending the benefits of NFU to all similarly placed officers. However, in letter No. 23022/67/3030-Ad.IIA dated 7 th April, 2021, which was addressed by Under Secretary to Government of India, Central Board of Indirect Taxes and Customs, New Delhi to PCCA, New Delhi, it has been stated that "the Court Judgments which are passed by placing reliance on the M.Subramaniam case are forwarded to the Board for further directions insofar as implementation of such CAT/Court orders are concerned." Accordingly, Respondents have prayed that this OA has no legs to stand both on limitation so also merit.
3. Concerned parties have reiterated their stand and, having heard them at length, perused records.
4. Since Respondents raised the question of limitation, we would like to deal with the said point at the first instance. According to the Respondents, Applicant No.1 submitted representation on 30.07.2021, applicant no.2 on 29.07.2021 and applicant No.3 on 7 O.A.No. 260/00619 of 2022 09.09.2021 claiming NFU w.e.f. 01.03.2009, 23.02.2009 and 01.01.2006 respectively whereas they filed this OA on 14.11.2022, which is grossly barred by limitation enshrined in Section 21 of the AT Act. In this regard, they have placed reliance of the decisions of the Hon'ble Apex Court in the cases of Sri Shiv Charan Singh Bhandari & Ors (supra); M.K.Sarkar (supra); Seshachalam, (supra); Jagdish Lal (supra); Birpal Singh Chauha (supra) and Arvind Kumar Srivastav & Ors (supra).
5. It may be noted that all the three applicants have got GP Rs. 4800/- by way of financial up gradation under MACP and had also completed four years in the said grade are not in dispute. It is also not in dispute that an employee after completing four years in GP Rs. 4800/- is to be placed to GP Rs. 5400/- is not in dispute. The Respondents have also fairly admitted that all the similarly situated employees, who were members of the association, were granted the said benefit and though Applicant No.3 was also a member his name was inadvertently skipped for which necessary order for granting the said benefit to him was sought from Board. Facts remain that many of the similarly situated employees have been given the 8 O.A.No. 260/00619 of 2022 benefits, who have approached and got the order from Court/Tribunal. It is also not in dispute that placing the employees concerned to GP Rs. 5400/- is unrelated to availability of vacancies etc. and as per the decision of the Hon'ble Apex Court in the case of Union of India & Ors Vs. N.M.Raut & Ors. (arising out of SLP(C) No. 8015 OF 2022) grant GP to Rs. 5400/- is off set as against one financial up gradation. In other words, cases relate to financial benefits come under recurring cause of action and application of limitation has no role to play. In this regard, it is profitable to rely on the decision of the Hon'ble Apex curt in the cases of Union of India Vs Tarsem Singh, AIR 2019 SC 4689, and M.R. Gupta Vs Union of India & Ors, 1996 AIR 669. Hence the plea of the respondents to be above effect is hereby overruled.
6. Insofar as merit of the matter is concerned, the relevant portion of the decision of the Hon'ble High Court of Madras in the case of M.Subramaniam (supra) in W.P.No. 13225/2010 dated 06.09.2010, which was upheld by the Hon'ble Apex Court vide Civil Appeal No. 8883/2011 dated 10.10.2017, reads as under:
6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Officers of the 9 O.A.No. 260/00619 of 2022 Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/- in Pay Band 2.
According to the petitioner, he has already reached the pay scale of Rs. 7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four year, he is entitled to the grade pay of Rs. 5400/0 with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised pay-scale of 7500-12000 (corresponding to grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non-financial upgradation the pre-revised pay-scale of Rs. 8,000-13,500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the Pre-revised pay scale of Rs. 7500-12000.
7. We are unable to agree with this clarification given by the under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non-functional upgradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4-year in the pay scale of Rs. 7,500- 12000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government on India, having accepted the recommendations of the 6th pay commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on non- financial basis after four Group B Officers in pay Band 2 of Rs. 10 O.A.No. 260/00619 of 2022
4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
9. Accordingly, the writ petition is allowed setting aside the order of the Tribunal, dated 19.4.2010 passed in O.A.No. 167 of 2009. The respondents are directed to extend the benefit of grade pay of Rs. 5400/- to the petitioner from 1.1.2008 as per the resolution dated 29.8.2010. No costs.
7. The Respondents have also admitted in their counter so also in course of hearing that in compliance of the order of this Tribunal dated 13.05.2020 in OA No. 494 of 2019 of this Bench, they have considered the cases of the applicants therein & the Members of the All India Association of Central Excise Gazetted Executive Officers, Odisha in the light of the decisions in the case of M.Subramaniam in W.P.No. 13225/2010 dated 06.09.2010, which was upheld by the Hon'ble Apex Court vide Civil Appeal No. 8883/2011 dated 10.10.2017, and granted the benefit of NFU to GP Rs. 5400/- on completion of four years in GP Rs. 4800/- to them. It has also been admitted that Applicant No.3 though one of the Members of the said association but, inadvertently, his name was skipped for which appropriate order for extension of NFU was also 11 O.A.No. 260/00619 of 2022 sought from the Board. In the case of K.C. Sharma & Ors Vs Union Of India & Ors, AIR 1997 SUPREME COURT 3588, the Hon'ble Apex Court while quashing the order of the Tribunal have held that the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted to others.
8. In view of the facts and law discussed above, this OA is disposed of with direction to the respondent No.2 to consider the pending representations of the applicants under Annexure-A/8 series in the same terms and conditions based on which Sri M.Subramaniam and the applicants in OA No. 494 of 2019 were granted the benefits of NFU. The entire exercise shall be completed within a period of 180 days from the date of receipt; of a copy of this order. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS