Central Administrative Tribunal - Cuttack
Sib Nath Paul vs Defence on 25 May, 2018
O.A.No.1098 of 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No.1098 of 2014
Cuttack this the 25th day of May, 2018
CORAM:
THE HON'BLE SHRI S.K.PATTNAIK, MEMBER(J)
THE HON'BLE DR.MRUTYUNJAY SARANGI, MEMBER (A)
Sib Nath Paul, aged about 56 years, S/o. late Nani Gopal Paul at
present working as Technical Officer -B (TO-B) in Proof &
Experimental Establishment, Ministry of Defence, Chandipur-
757 025, Dist-Balasore
...Applicant
By the Advocate(s)-M/s.S.K.Ojha
S.K.Nayak
-VERSUS-
Union of India represented through:
1. The Secretary, Ministry of Defence, South Block, New
Delhi-110 011
2. Department of Defence Research & Development,
Ministry of Defence represented through its Secretary-
cum-Director General, DRDO & Scientific Adviser to
Rakshya Mantri, DRDO Bhawan, Rajaji Marg, new Delhi-
110 105
3. Director, Directorate Human Resource & Development,
DRDO Bhawan, Rajaji Marg, New Delhi-110 105
4. Director, Directorate of Personnel, Room No.266, DRDO
Bhawan, Rajaji Marg, New Delhi-110 105
5. Director, Proof & Experimental Establishment, Ministry of
Defence, Chandipur-756 025
6. Secretary, Ministry of Personnel, Public Grievances &
Pension(Department of Personnel & Training), 3rd Floor,
Laknayak Bhawan, Khan Market, New Delhi-110 003
...Respondents
By the Advocate(s)-Mr.S.K.Patra
1
O.A.No.1098 of 2014
ORDER
DR.MRUTYUNJAY SARANGI, MEMBER(A):
The applicant was working as Technical Officer -B in Proof & Experimental Establishment, Ministry of Defence, Chandipur at the time of filing the O.A. In this O.A. he has prayed for the following reliefs:
i) Let the action of the Respondents in rejecting the claim of the applicant for grant of 2nd MACP w.e.f. 23.12.2006 vide the impugned order dated 25.08.2014 under Annexure-A/5 be declared as illegal and as such liable to be set aside.
ii) Let the Respondents be directed to extend the benefit of 2nd MACP in shape of financial upgradation of Grade Pay from Rs.4600 to Rs.5400/- w.e.f. 23.17.2006 to 31.08.2012 within a stipulated time.
iii) Let the Respondents be directed to sanction and disburse the arrear entitlements on such sanction of 2nd MACP for the period 23.12.2006 to 31.08.2012 within a stipulated time.
iv) Let any other appropriate order/orders, direction/directions may kindly be passed which would be deemed fit and proper in the facts and circumstances of the case.
2. The brief facts of the case are as follows:
The applicant was appointed as Junior Scientific Assistant, Gr.II on 23.12.1986. He was promoted to JSA-I with effect from 2.3.1991 and as Sr. Technical Assistant with effect from 1.9.2004. He was subsequently promoted to Technical Officer-A with effect from 1.9.2009 and to Technical Officer-B with effect from 1.9.2012. He had availed the benefit of financial 2 O.A.No.1098 of 2014 upgradation from Grade Pay of Rs.4200 to Rs.4600 under the MACP Scheme. On 5.6.2009, Grade Pay of the Technical Officer-
A was raised from Rs.4600 to Rs.4800 with effect from 1.1.2006 consequent upon the implementation of the 6th CPC recommendations. However, on 10.5.2013, an order was passed by the DRDO withdrawing GP of Rs.4800 from the Technical Officer-A in DRDO and the Grade Pay was fixed at Rs.4600 with effect from 1.1.2006. The applicant claims that he became entitled to get financial upgradation by way of 2nd MACP from Grade Pay of Rs.4600 to Rs.5400 after completion of 20 years of regular service with effect from 23.12.2006. This is in view of the fact that Grade Pay of Rs.4800 was withdrawn vide the Department's order dated 10.5.2013. On 15.5.2015 the applicant submitted an application to Respondent No.5 for grant of 2nd MACP which was rejected. The applicant moved another application on 9.6.2014 to Respondent No.4 which was rejected vide order dated 25.8.2014(A/5). Aggrieved by this the applicant has filed the present O.A. praying for the reliefs as stated at Para-1 above.
3. The applicant has based his prayer mainly on the ground that as per the 6th CPC recommendations on completion of 20 years of regular service on 22.12.2006 he had received one financial upgradation from Grade Pay of Rs.4200 to Rs.4600/- On completion of 20 years of regular service he became entitled to 2nd MACP from Rs.4600 to Rs.5400 with effect from 3 O.A.No.1098 of 2014 23.12.2006. Since the applicant was promoted in the meanwhile to the post of Technical Officer-B in the Review Assessment held for the year 2012 with effect from 1.9.2012, his claim is confined to the period from 23.12.2006 to 31.8.2012. The rejection of representation by Respondent No.5 in the impugned order dated 25.8.2014 is illegal and arbitrary. The applicant claims that the MACP Scheme is applicable to DRTC and the extension of benefit is co-extensive with the financial upgradation in the Grade Pay hierarchy.
4. The respondents have filed a counter-reply on 3.3.2017 and have submitted that as per Rule-6 of Defence Research & Development Organization Technical Cadre Recruitment Rules, 2000 promotion from one grade to another in the DRDO Technical Cadre is made under the Limited Flexible Complimenting Scheme through assessment. As per Rule-7 of DRDO Rules, 2000 on promotion from one Grade to the next higher grade, the post held by an individual in the lower grade automatically stands upgraded. The ACP Scheme was introduced on 9.8.1999 under which the employees of Group-B, C & D are eligible for 1st financial upgradation after completing 12 years of regular service without any promotion (in situ promotion) and for 2nd financial upgradation after 24 years of regular service with not more than one promotion including in situ promotion. In respect of Group-A Central Services (Technical and non-Technical) no financial upgradation under 4 O.A.No.1098 of 2014 the Scheme was proposed for the reasons that promotion in their case must be earned. As per Para-2(iii) of Directorate of Manpower Planning & Development, R& D Headquarters, New Delhi Letter No.DRDO/76213/Policy/MPD dated 01.09.1999 (R/2) the ACP Scheme was not to be applicable to (i)the posts covered by Flexible Complementing Scheme (ii)the ad hoc/contract/casual employees and (iii) those who have already got two regular promotions)including in-situ promotions) in their career. The MACP Scheme was introduced with effect from 1.9.2008 in supersession of ACP Scheme providing for financial upgradation on completion of 10/20 and 30 years of service. Financial upgradation under the Scheme is also permissible whenever a person falls 10 years continuously in the same Grade Pay. On 23.7.2014 the Directorate of HRD, DRDO Headquarters New Delhi had clarified that the ACP Scheme promulgated in 1999 was not applicable to DRTC due to merit based promotion under Limited Flexible Complementing Scheme and therefore, the MACP Scheme was not applicable to DRTC. Therefore, the claim of the applicant for grant of benefit of MACP is wrong and has been rightly rejected by Respondent No.5 vide order dated 25.8.2014. The applicant has earned two promotions since the date of his initial appointment as Junior Scientific assistant, Gr.I on 23.12.1986, viz., from the Grade of JSA-I to Technical Officer-A carrying Grade Pay of Rs.4600 and next from the Gr. 5 O.A.No.1098 of 2014 Technical Gr.A carrying Grade Pay of Rs.4600, to the Grade of Technical Officer -B carrying GP of Rs.5400/-. He earned the Grade Pay of Rs.4200 to Rs.4600 by virtue of regular promotion through Central Assessment under merit based Limited Flexible Complementing Scheme and not through MACP. Based on the Directorate of HRD, DRDO Headquarters, New Delhi letter dated 22.12.2009 and subsequently letter dated 23.7.2014 it has been specifically clarified that neither the ACP nor MACPS will be applicable to DRTC due to merit based promotion under Limited Flexible Complementing Scheme.
5. The learned counsel for the applicant during the course of arguments submitted that the issue involved in the present O.A. is already covered by the decision of CAT, Bengaluru Bench vide order dated 8.1.2016 in O.A. No.1020/2013.
6. The matter was argued on 9.5.2018 when the learned counsels from both the sides were heard. Learned counsel for the applicant submitted that a similar issue has already been heard and settled by the CAT, Bengaluru Bench vide order dated 8.1.2016 in O.A.No.1020/2013 which has been upheld by the Hon'ble High Court of Karnataka at Bengaluru vide common judgment dated 13.2.2017 in W.P. Nos.61691/16 and 61692/16. The judgment of the Hon'ble High Court of Karnataka at Bengaluru has also been upheld by the Hon'ble Supreme Court vide judgment dated 6.7.2017.
6 O.A.No.1098 of 2014
7. In O.A.No.1020/13 before the CAT, Bengualuru Bench the applicant was a Technical Officer, Gr.A working under the Aeronautical Development & Establishment under the DRDO. The relevant paragraphs in the said order are as follows:
"16.When the Flexible Complementing Scheme was introduced in 1998, there was no such provision/mention regarding ACP benefit, since the ACP Scheme was introduced/became applicable later on 09.08.1999. The DRDO had also issued a circular indicating the non-applicability of the ACP to the posts covered by the flexible complementing scheme. However, the modified complementing scheme based on the6th Central Pay Commission says that the modified ACP would also be applicable to the scientists covered under FCS to provide an alternative channel for development. Had there been no ceiling in the number of eligible employees to be promoted to the next higher grade under the FCS then the question of any alternative financial progression under the MACP would not have arisen. In spite of the fact that under Flexible Complementing Scheme, the promotion from one grade to another grade in a cadre is not post based but by automatic upgradation of the existing post, there is a ceiling limit which bars 70% of the employees from getting promotion each assessment year even if they might meet required bench mark. Therefore rightly the Modified Flexible Complementing Scheme allows for applicability of the MACP to the persons covered under FCS. So that a person gets financial upgradation at least thrice in his/her service period instead of remaining stagnant in any grade throughout.
17.In the backdrop of the above, we are of the view that the stand of the respondents that MACP shall not be applicable to the persons who come under the Flexible Complementing Scheme is totally incorrect especially in terms of the Modified Flexible Complementing Scheme following 6th CPC recommendations. The applicants should be eligible for financial upgradation under the MACP provided they meet the required bench mark stipulated for the promotion. It has also been specified in the guidelines that MACP was expected 7 O.A.No.1098 of 2014 to provide an alternate channel for development for Scientists and is expected to maintain the rigors of assessment required for assessment under FCS. Therefore the applicant is to meet the stipulated bench mark for getting benefits under MACP.
18.Therefore, after considering the entire facts and circumstances of the case, we hold that the applicant is entitled to be considered under MACP scheme and the respondents are therefore directed to constitute an Assessment Board for considering the case of the applicant for financial upgradation under MACP with three (3) months from the date of receipt of copy of the order. The respondents shall lay down the bench mark for grant of such financial benefits taking into account the normal standards adopted for granting promotion. In case the applicant meets the required stipulation for grant of MACP benefit, then she shall get the 2nd MACP w.e.f. 01.09.2008 and 3rd MACP on completion of 30 years of service".
8. The Hon'ble High Court of Karnataka at Bengaluru vide common judgment dated 13.2.2017 W.P.Nos.61691 and 61692/2016 & also upheld the decision of CAT, Bengaluru Bench in O.A.No.1020/2013. At Paragraphs-5 and 6 of the Hon'ble High Court observed as follows:
"5. The aforesaid shows that though initially ACP scheme was not applicable to the FCS, but subsequently by the office memorandum dated 10.9.2010 read with office memorandum dated 1.5.2012, it has been made applicable.
6. Under the circumstances, it is not possible to accept the contentions of the learned counsel for the petitioners that the MACP scheme is not at all applicable".
9. The issue of the applicability of the ACP and MACP having been conclusively established by the above orders of the CAT, Bengaluru Bench as upheld by the Hon'ble High Court of 8 O.A.No.1098 of 2014 Karnataka at Bengaluru and subsequently the SLP filed by the Union of India having been dismissed by the Hon'ble Supreme Court, we follow the identical ratio and quash the impugned order dated 25.8.2014(A/5) which has been passed solely on the ground that the ACP of 1999 has not been made applicable to DRTC due to merit based promotion under Limited Flexible Complementing Scheme and after 6th CPC, the ACP Scheme has been modified as MACPS which is also not applicable to DRTC. The Respondents are directed to reexamine the case of the applicant in the light of the eligibility under the MACP Scheme by constituting an Assessment Board and consider the case of the applicant for financial upgradation under the MACP Scheme within a period of three months from the date of receipt of this order.
10. The O.A is disposed off with the above direction. No costs.
(DR.MRUTYUNJAY SARANGI) (S.K.PATTNAIK)
MEMBER(A) MEMBER(J)
BKS
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