Central Administrative Tribunal - Madras
S Rajavel vs M/O Communications on 29 November, 2023
1 OA No.310/01644/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01644/2016
Dated Wednesday the 29th day of November Two Thousand Twenty
Three
CORAM :
HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
&
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
S. Rajavel,
S/o. S. Shanmuga Sundaram,
No. 73, Loyds road,
Royapetta,
Chennai - 600014. ... Applicant
By Advocate Mr. S. Ramaswamy Rajarajan
Vs
1. The Union of India Rep. by
The Director General,
Department of Posts,
Dak Bhawan,
Sansad Marg,
New Delhi - 110001.
2. The Chief Postmaster General,
Tamil Nadu Circle,
Chennai - 600002. ... Respondents
By Advocate M/s. Shakila Anand
2 OA No.310/01644/2016
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this Original Application, the applicant is seeking the following relief:
"i) To quash the impugned order no. STC/1-5/OA 342/16, dated 17.08.2016 passed by the 2nd respondent
ii) To direct the respondents to grant benefits of 2nd Financial Upgradation under MACP Scheme as per the applicant's next promotional hierarchy and to give all consequential benefits and
iii) To pass such further or other orders as this Hon. Tribunal may deem fit and proper in the circumstances of the case with cost."
2. The brief facts of the case in nutshell is as under:
The Applicant was joined as Manager in the Mail Motor Service in the year 1988 and got his 1st financial upgradation in the year 2000 in the cadre Senior Manager, the cadre of his next promotional hierarchy. And got his 2nd financial upgradation under MACP Scheme in the year 2008. But his pay was not fixed in the cadre of Director, according to the next promotional hierarchy as envisaged in the MACP Scheme. Requesting to fix his pay according to the next promotional hierarchy, he made representations to the respondents. But as there was no 3 OA No.310/01644/2016 reply from the respondents, he filed O.A. No. 342 of 2016 before this Hon'ble Tribunal and on hearing the parties, this Hon'ble Tribunal had passed an order directing the respondents to consider his representations and to pass a speaking order. In pursuance of this Hon'ble Tribunal's direction, the respondents had passed a speaking order rejecting the request of the applicant. Aggrieved on that this O.A before this Hon'ble Tribunal to get remedy and justice.
3. After notice, the respondents have filed their reply opposing the relief on the ground that the applicant has got his first ACP on completion of 12 years of service in the pay scale of Rs. 10000-325-15200 (Equivalent to Rs. 15600-39100 with GP 5400) w.e.f. 01.06.2000 (i.e., Rs. 15600-39100 + GP 6600). The representation submitted by the applicant in respect of his fixation of pay in the pay scale in promotional hierarchy has been addressed appropriately even though the direction issued by this Tribunal in the OA also considered and appropriate reply has been given to the applicant. Issue in respect of fixation of payscale against the upgradation under the MACP. The 4 OA No.310/01644/2016 applicant is only eligible for grade pay not the payscale on the promotional post.
4. Heard both sides. Perused the record.
5. The learned counsel for the applicant submits that similar issue had been considered by the Guwahati Bench in OA 52/2014 in the matter of Shri Narayan Kalita and ors. vs Union of India and Central Public Works department vide order dated 25.06.2014 has directed to grant the scale of pay in the promotional hierarchy along with grade pay. On the other hand the learned counsel for the respondents vehemently opposed the argument raised by the learned counsel for the applicant on the ground that the applicant has midread the scheme of MACP thereby this issue has been settled in the various matters by coordinate bench as well as the Apex Court.
6. The learned counsel for the respondents in her support relied upon the order passed by the CAT Hyderabad Bench in OA 1209/2014 in the matter of T. Venkateswarulu vs Union of India and others vide order dated 15.10.2020. Relying upon the observations of the Hon. Apex Court in the matter of Union of India and others 5 OA No.310/01644/2016 Vs. M. V. Mohanan Nair in Civil Appeal No. 2016/2020 and batch. Wherein it has been held in MACP, financial upgradation shall be granted only in the immediate next grade pay.
"The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy Grade Pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration.
The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court cannot substitute its views. As held in Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the court should approach such matters with restraint and interfere only when the court is satisfied that the decision of the Government is arbitrary. Even in a case where the court takes the view that order/Scheme passed by the Government is not an equitable one, ordinarily only a direction could be given to the State Government or the authority for consideration of the matter and take a decision. In the present batch of cases where the respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next grade pay is arbitrary and unjust, warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies, but as pointed out earlier, MACP Scheme itself is not under challenge."
With the Hon. Supreme Court, clearing the mist about the dispute in question, there is nothing further for us to intervene on behalf of the applicant. Hence other averments made by the applicant are not tenable. Respondents have taken proper action in granting the next 6 OA No.310/01644/2016 higher grade pay of Rs. 4800/- to the applicant. He is not entitled to the grade pay of Rs. 6600/- as prayed for in view of the MACP guidelines explained above. Therefore, for reasons stated supra, finding no merit in the O.A., we dismiss the same with no order as to costs."
7. The learned counsel for the respondents further relied upon the order passed by the Hon. Apex Court in Civil Appeal Number 442/2022 in the matter of The Director, Directorate of enforcement and Anr. vs K. Sudheesh Kumar and others. After considering the issue at length and followed with the decision of the Apex Court in the matter of Mr M. V. Mohanan Nair which is binding decision it has been held that an employee is entitled to the higher grade pay as provided under the MACP scheme. More particularly, as per section 1, part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Therefore, so long as clause 8.1 and the grade pay mentioned as per section 1, Part A of the First Schedule of CCS (Revised Pay) Rules, 2008 stands, the employee shall be entitled to the grade pay accordingly. Therefore, if any of the employees is aggrieved by the clause 8.1 and if in his opinion, there is any anomaly the same has to be challenged by the aggrieved employee, which can be considered in accordance with law and on its own merits. However, as 7 OA No.310/01644/2016 the same is not under challenge, we have to go by the MACP scheme as it is.
8. The learned counsel for the respondents however relied upon the issue of the Hon. Apex Court in the matter of Civil Appeal No. 1880/2022 in the matter of The Vice Chairman Delhi Development Authority vs Narender Kumar and others by its order dated 08.03.2022.
"In M.V. Mohanan Nair (supra) a three judge Bench of this court held, in the context of a dispute, which asserted that MACP benefits would result in regular promotional advancement, that:
"The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body - Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the 8 OA No.310/01644/2016 recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer."
This court, in R.K. Sharma & Ors.16, commented on the effect of M.V. Mohanan Nair (supra) on the MACP scheme, especially the date from which it was operative. It was held that:
"The judgment in M.V. Mohanan Nair clinches the issue. Benefits flowing from ACP and MACP Schemes are incentives and are not part of pay. The Resolution dated 29-8-2008 is made effective from 1-9-2008 for implementation of allowances other than pay and DA which includes financial upgradation under ACP and MACP Schemes. Therefore, the 16 (2021) 5 SCC 579 respondents and other similarly situated officers are not entitled to seek implementation of the benefits of MACPS with effect from 1-1-2006 according to the Resolution dated 29-8-2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band and not granting pay of the next promotional post with effect from 1-1-2006 would be detrimental to a large number of employees, particularly those who have retired."
It is therefore, quite clear that both Mohanan Nair(supra) and R.K. Sharma(supra), examined the MACP scheme; the latter, especially, ruled that the scheme was operable from 01-09-2008, and that the respondents "officers are not entitled to seek implementation of the benefits of MACPS with effect from 1-1-2006 according to the Resolution dated 29-8-2008". Having regard to this clearly enunciated principle, which, in this court's opinion, stems from a correct reading of the scheme, the reasoning of the High Court, that the MACP scheme is operative not from 01-09-2008, but from 01-01-2006, is untenable. The mere circumstance that the resolution of the Government which led to adoption of the MACP also contained the effective date for implementation of the pay-benefits of the Pay Commission recommendations, did not obliterate the fact that the date from which the scheme was to be made effective, was another one."
9. The learned counsel for the respondents further relied upon the order passed by this bench in OA 1573/2019 in the matter of K. Chandran vs Union of India, Department 9 OA No.310/01644/2016 of Defence Production by its order dated 01.06.2022 "i) Order In O.A. No. 477 of 2019 passed by Hon'ble CAT, Bangalore Bench, dated 12.05.2021.
ii) Order in O.A. NO. 267 of 2013 passed by Hon'ble CAT, Ernakulam Bench, dated 18.05.2016 (Delay aspect).
iii) Judgement of the Hon'ble Supreme Court In 'Civil Appeal No. 1579/2021 arising out of SLP (C) No. 15572/2019 of Union of India vs R.K. Sharma & Others.
iv) Judgement of the Hon'ble Supreme Court in Civil Appeal Nos. 1625- 1627/2021 in UOI & Ors Vs S. Ranjit Samuel and Ors dt. 24.03.2022."
„In view of the judgment of this Court in M.V. Mohanan Nair (supra), the Respondents and other similarly situated employees are entitled for financial upgradation under MACPS only to the next grade pay and not to the grade pay of next promotional post. It is clear from the resolution dated 30.08.2008 that the recommendation of the 6 th Pay Commission was accepted by the Government and was made effective from 01.01.2006 in respect of civilian employees with regard to revised scales of pay and dearness allowances. In so far as the revised allowances other than dearness allowance, recommendation of the 6th Pay Commission were given effect from 01.09.2008. The judgment in M.V. Mohanan Nair (supra) clinches the issue. Benefits flowing from ACP & MACP Schemes are incentives and are not part of pay. The resolution dated 29.08.2008 is made effective from 01.09.2008 for Implementation of allowances other than Pay and DA which Includes financial upgradation under ACP & MACP Schemes. Therefore, the Respondents and other similarly situated officers are not entitled to seek Implementation of the benefits of MACPS w.e.f. 01.01.2006 according to the resolution dated 29.08.2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band and and not granting pay of the next promotional post w.e.f. 01.01.2006 would be detrimental to a large number of employees, particularly those who have retired. We find force in the submission made by the learned Additional Solicitor General that uniform implementation of MACPs for civillian employees w.e.f. 01.01.2006 would result in large scale recoveries of amounts paid in excess."
10. It is to be noted since the issue to grant the scale of pay in the promotional hierarchy along with grade pay under the MACP scheme applicant is entitled only grade 10 OA No.310/01644/2016 pay of promotional post and not pay scale is already settled and squarely covered by the judgement relied by the respondents, we do not find any merit. No interference is called for.
11. OA is dismissed. No order as to cost.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member (A) Member (J)
29.11.2023
LM