Central Administrative Tribunal - Bangalore
Ravikumar vs D/O Space on 1 December, 2022
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OA.No.170/458/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00458/2019
DATED THIS THE 01ST DAY OF DECEMBER, 2022
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Ravikumar,
S/o Late V. Ramaiah,
Aged 58 years,
Working as Senior Project Assistant,
ISRO Satellite Centre,
Old Airport Road, Bengaluru-560 017,
Residing at No.274, 3rd Main,
ISRO Layout,
Bengaluru-560 111. ..Applicant.
(By Advocate Shri A.R. Holla)
Vs.
1.Union of India,
By Secretary,
Department of Space,
Antariksh Bhavan, New BEL Road,
Bengaluru-560 231.
2. The Secretary,
Department of Personnel & Training,
Central Secretariat, North Block,
New Delhi-110 001.
3. The Director,
ISRO Satellite Centre,
Old Airport Road, Vimanapura P.O.,
Bengaluru-560 017.
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OA.No.170/458/2019/CAT/Bangalore Bench
4. The Senior Administrative Officer (E),
UR Rao Satellite Centre,
Old Airport Road, Vimanapura P.O.,
Bengaluru-560 017. ....Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the Office Order No.020/1(1)/Estt-1/2019/1560 dated 01.04.2019 issued by Respondent No.4, vide which his career progression has been revised in compliance to the Common orders of this Tribunal in OA Nos: 334/17, 335/17,340/17, 342/17 and 349/17 dated 15.02.2017.
b) Direct the respondents to grant the applicant the benefit of NFSG at PB-
3 + Grade Pay of Rs.5400/- with effect from 17.12.2010 with all consequential benefits.
c) Grant such other relief deemed fit, having regard to the facts and circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was appointed as Office Clerk 'A' in ISRO Satellite Centre, Bengaluru in the pay scale Rs. 260-6-290-EB-8-390-10-400, by an order dated 21.12.1982. He was promoted as Senior Assistant in 3 OA.No.170/458/2019/CAT/Bangalore Bench the scale of Rs.5000-8000/- on 12.08.2003. Thereafter, he was promoted as Senior Project Assistant-A on 13.11.2006. Subsequently, he was given the benefit of 2nd ACP benefit with effect from 17.12.2006 in PB-2 with the grade pay of Rs. 4800/-.
b) The Government issued an O.M. dated 24/26.12.2009 which was in continuation of earlier O.M. by which an employee in the Grade Pay of Rs. 4800/- is eligible to be in the Grade Pay of Rs. 5400/- after four years from the date of his assignment of Rs. 4800/-. Accordingly, it was decided to assign the Grade Pay of Rs. 5400/- in PB-3 to the following categories of employees, who were assigned with the Grade Pay of Rs. 4800/- on completion of four years from the date of assigning the Grade Pay of Rs. 4800/-.
i. Personal Secretary, ii. Project Personal Secretary, iii. Senior Project Assistant, iv. Assistant Catering Manager, v. Assistant Security Officer.
c) The applicant was not given the benefit of NFSG in Grade Pay of Rs.
5400/- on completion of four years in the Grade Pay of Rs. 4800/- i.e., with effect from 17.12.2010 in terms of the above order. 4
OA.No.170/458/2019/CAT/Bangalore Bench
d) In similar situation, one Sri. A Shivakumar approached this Tribunal in O.A. No. 308/2013 with a prayer to grant him pay in the PB-3+Grade Pay of Rs. 5400/- after four years from the date of assignment of Grade Pay of Rs. 4800/-. This Tribunal, vide orders dated 27.10.2015 allowed the OA and granted him the benefit of Grade pay of Rs. 5400/- after 4 years from the date of assignment of Rs. 4800/- to him. The said order of this Tribunal was upheld by the High Court of Karnataka by order dated 02.09.2016 in W.P No. 32501 of 2016. The SLP (C) No. 34238 of 2016 filed against the above order of the Hon'ble High Court has been dismissed by the Hon'ble Supreme Court by an order dated 23.02.2017.
e) The applicant submitted a representation to the Respondent No.3 on 08.05.2017 with a request to grant him the Grade Pay of Rs. 5400/- in PB-3 on completion of four years from the date of assigning the Grade Pay of Rs. 4800/-, i.e., from 17.12.2010 in the light of the above order of this Tribunal, which had become final in terms of the orders of the High Court and Supreme Court. In response to the same, the applicant has been informed by an order dated 05.06.2017 that the order of this Tribunal as confirmed by the High Court High Court and the Hon'ble Supreme Court, in identical circumstances would be restricted to concerned employees only.
f) The applicant challenged the order dated 05.06.2017 of the Respondent No.4 before this Tribunal in OA No. 334/2017 which was disposed of along with connected matters by an order dated 15.02.2018 directing 5 OA.No.170/458/2019/CAT/Bangalore Bench the Respondent No. 2 to examine the validity of relevant O.M.s in the light of the terms of ACP and MACP schemes in general and in particular as to whether the promotion from the post of Office Clerk-A to Office Clerk-B can be ignored for granting benefits under ACP/MACP schemes.
g) Subsequently, this Tribunal passed an order dated 21.12.2018 in MA No. 514/2018 in OA No. 329/2017 and connected matters granting liberty to the applicant to challenge the order of the respondents if the same goes against the applicant.
h) The Respondent No. 4 has now issued an order dated 01.04.2019, not only denying the benefit of pay in PB-3+Grade Pay of Rs. 5400/- with effect from 17.12.2010 but holding that the applicant is not eligible for the 2nd ACP benefit granted in PB-2+Grade Pay of Rs. 4800/-w.e.f 17.12.2006. It is further stated that the revised entitlements and regulation of pay there for will be issued separately.
3. The present OA had earlier been disposed of vide orders dated 12.02.2020 by this Tribunal. The operative portion of the order passed on 12.02.2020 by this Tribunal was as follows:-
"However, the issue in this application is different because of the earlier order passed by this Tribunal in OA No. 334/2017 wherein taking note of various promotions given to the applicant herein, this Tribunal ordered for confirmation whether the Dept. of Space OM dtd. 9.11.2011 in which the promotions from the post of Office Clerk-A to Office Clerk-B was ordered to be ignored for the purpose of granting financial upgradation under ACP/MACP was in line with the guidelines issued for 6 OA.No.170/458/2019/CAT/Bangalore Bench granting of ACP/MACP schemes. This Tribunal in that case has ordered the Department of Personnel & Training (DOPT) in consultation with the Department of Expenditure to examine the validity of the OMs issued by the Dept. of Space dtd 9.11.2011, 3.4.2012 & 7.8.2012. This Tribunal has also ordered that based on the decision taken by the DoP&T on the grant of financial upgradation allowed to the applicant under the ACP, the applicant shall be entitled for the GP 5400 in PB-3 on completion of 4 years of the regular service from the date of assignment of GP 4800. Based on which, the respondents have obtained the clarification from the DoPT and passed Annexure-A11 order wherein the applicant has been found to be not eligible for the 2nd ACP granted w.e.f. 17.12.2006 and also 3rd MACP granted w.e.f. 17.12.2012. In other words, instead of going by the earlier decision in OA No. 308/2013 etc., and granting him the GP 5400 w.e.f 2010 even the 3rd MACP granted w.e.f. 17.12.2012 is sought to be modified now. Even though we do appreciate the fact that the issue relating to the grant of GP 5400 after 4 years of service in the GP 4800 is a settled issue, based on the facts of this particular application and the decisions of this Tribunal in OA No. 334/2017 which has been strictly followed by the respondents, we find no ground to accept the contentions of the applicant. The applicant himself seems to have requested the respondents to at least maintain the status-quo vide his letter at Annexure-R15. However, since the above benefits have already been extended to the applicant since 2012 and the said orders have been passed without any misrepresentation or involvement of the applicant, it will not be fair to deny him upgradations already granted even though erroneously. In fact the Dept. of Space itself had interpreted the issue in a particular manner which led the people in the cadre of the applicant to believe that they are entitled for certain upgradations ignoring certain mergers and promotions. This is not due to the fault of the applicant and therefore to punish by revising whatever has already been granted to him for more than five years is also impermissible as per the Hon'ble Apex Court judgment in Rafiq Masih (White Washer)'s case. Therefore, the respondents are directed not to disturb the orders 7 OA.No.170/458/2019/CAT/Bangalore Bench already issued in this regard with respect to the upgradations granted to the applicant.
The OA is disposed of with the above. No costs."
4. A Review Application (RA. 53/2020) was filed against this order passed by this Tribunal by the respondents in the main OA. This RA was considered by this Tribunal and disposed of vide orders dated 12.09.2022. The order passed in RA. 53/2020 by this Tribunal are as follows:-
"5. As discussed in the preceding paragraphs, the crux of the issue revolves around the direction issued by the Tribunal in Original Application No. 458/2019 dated 12.02.2020 to the respondents not to disturb the upgradation granted to the original applicant. This order being passed having considered the legal principles enunciated by the Hon'ble Apex Court in the case of Rafiq Masih (White Washer)'s case which indeed deals with the recovery and earlier order passed in Original Application No. 334/2017 which indeed has been considered by the Tribunal. Having observed that there is no ground found to accept the contention of the applicant inasmuch as such decision taken with upgradation, no further observation ought to have been made by this Tribunal while disposing of this application 458/2019 inasmuch as upgradation is concerned.
6. Hence, for the reasons aforesaid, we are of the considered view that there is an error apparent on the face of the record and is a fit case for review. Accordingly, we allow this Review Application and recall the order dated 12.02.2020, to hear the Original Application No. 458/2019 afresh.
7. In the result, Review Application No. 53/2022 is allowed. Original Application No. 458/2019 is restored to file. List the matter for hearing on Original Application No. 458/2019 on 23.09.2022." 8
OA.No.170/458/2019/CAT/Bangalore Bench
5. Keeping in view the orders passed in the RA where the OA No. 458/2019 has been restored for hearing, the matter was listed and heard again.
6. Learned counsel for the applicant Shri A R Holla has argued against the order passed by this Tribunal in OA No. 349/2017, wherein a direction has been given to the DOPT to examine the validity of OMs dated 09.11.2011, 3.04.2012 and 07.08.2012 in light of the guidelines issued for grant of ACP and MACP schemes in general and in particular as to whether the promotion from the post of Office Clerk-A to Office Clerk-B can be ignored for the purpose of grant of financial upgradation under ACP scheme. The learned counsel stated that once the respondents (Department of Space) had clearly taken a stand to ignore the promotion from Office Clerk 'A' to Office Clerk 'B' for the purpose of grant of financial upgradation, it was not correct on the part of the Department of Space to again refer the matter to the DOPT for clarification.
7. He also argued that the view taken by the Respondent No. 4 as per the impugned order, (Annexure A-11) is not in accordance with law. The opinion given by the Respondent No. 2 that "since all the posts of Office Clerk -A were not abolished by DOS and these are very much in the hierarchy, the decision of DOS to ignore such promotion made as per the provision of statutory rules does not seem to be in accordance with the provisions of ACP/MACP Scheme" is contrary to the law declared by this Tribunal in OA No. 308/2013 disposed of on 27.10.2015, which has been upheld by the High Court and the Supreme Court. The issue raised in this 9 OA.No.170/458/2019/CAT/Bangalore Bench OA is no more res integra. The law laid down by this Tribunal vide order dated 27.10.2015 has attained finality with the confirmation of the same vide order dated 02.09.2016 passed by the High Court of Karnataka in W.P No. 32501 of 2016 and the dismissal of SLP (C) No. 34238 of 2016 by the Supreme Court vide order dated 23.02.2017.
8. He further argued that the employees were given the benefit of ACP/MACP based on the view held by the Department of Space that the promotion from Office Clerk-A to Office Clerk-B is to be ignored. Accordingly, benefits were given to the concerned employees under ACP/MACP schemes. The same benefit cannot be denied to the employees now based on the view taken by the Respondent No. 2. On the other hand, the vested right of the applicant to receive the benefits as per the order dated 26.09.2009 of the Department of Space and also in terms of the court orders cannot be taken away by subsequent clarification issued by the Respondent No. 2. If the view taken by the Respondent No. 2 is allowed to sustain, then it will have the effect of overruling the decisions of the court.
9. On the contra, the learned counsel for the respondents stated that in compliance with the common order passed by this tribunal dated 15.02.2018 in OA No. 349/2017, and in the light of DoPT, New Delhi clarification dated 07.12.2018 read with the instructions received from the Department of Space, Bangalore in the case of the applicant, the promotion effected from Office Clerk 'A' to Office Clerk 'B' which was hitherto being ignored for the purpose of ACP/MACP, is hereby reckoned as promotion. Consequently, on reckoning the promotion from OC 'A' to OC 'B' for the 10 OA.No.170/458/2019/CAT/Bangalore Bench purpose of ACP/MACP, the career progression of the applicant/ Shri Ravi Kumar is revised as follows:
Sl Date Promotion Reckoned as
No.
From To
1 01.11.1989 Office Clerk Office Clerk 1st Promotion
'A' 'B'
2 12.08.2003 Office Clerk 'B' Assistant (Sr. 2nd Promotion
Assistant A
3 20.03.2007 Sr. Assistant A Sr. Assistant B
4 20.04.2012 Sr. Assistant B Sr. Project 3rd Promotion
Asst.
(Rs.4800/-
5 20.04.2016 Level-9 in the Assignment on
Pay Matrix- completion of four
NFSG years (Placement)
10. Therefore, in terms of the clarification dated 07.12.2018 issued by DoPT and in compliance of the Hon'ble CAT, Common order dated 15.02.2018 passed in OA No. 334/2017, the applicant is not eligible for the 2nd ACP granted in Pay Band Rs. 9300-34800/- + Grade Pay of Rs 4800/- w.e.f. 17.12.2006 and he is also not eligible for the III MACP granted in Payband Rs.9300-34800 (PB-2) + Grade Pay Rs.5400/- w.e.f. 17.12.2012. The Revised entitlement and regularization of pay therefore will be issued separately.
11. Heard learned counsels for the parties and perused the pleadings in this case.
12. The applicant, in his written arguments, has stated that he was promoted from Office Clerk "A" to Office Clerk "B" on 1.11.1989. He further submitted that the promotion of employees from Office Clerk "A" to Office Clerk "B" is not considered as a promotion in terms of OM No: 11
OA.No.170/458/2019/CAT/Bangalore Bench A12013/3/2009 dated 9.11.2011. He was given 2nd ACP benefit on 17.12.2006 and he was consequently entitled to assignment of NFSG benefit of GP of Rs. 5400/- on completion of four years i.e. from 17.12.2010.
13. The guidelines under the ACP and MACP scheme clearly specify that any interpretation or relaxation under the ACP/MACP schemes shall have to be done in concurrence with Department of Personnel and Training, and, if required, with the Ministry of Finance. The controversy in this case was concerning the pay fixation of the applicant under the MACP and ACP schemes. Accordingly, the Department of Space was required to consult the DOPT before deciding whether the promotion from the post of OC 'A' to OC 'B' can be ignored for the purpose of grant of benefit under the ACP/MACP schemes.
14. Subsequent to the directions issued by this Tribunal in the common order dated 15.2.2018, the matter was referred to the DOPT by the Department of Space for clarification regarding ignoring the promotion of the applicant from OC "A" to OC "B" for the purpose of granting MACP benefits. After examination of this issue, the DOPT has categorically ruled that the promotion from OC 'A' to OC 'B' cannot be ignored for the purpose of grant of any benefit under ACP/MACP scheme.
15. The applicant has not challenged the directions issued by the CAT in their common order dated 15.02.2018 passed in OA No. 349/2017. Hence the observations and directions in that detailed order have reached a finality. It is as a consequence to this common order that the matter was referred to 12 OA.No.170/458/2019/CAT/Bangalore Bench DOPT by the Department of Space and subsequently the impugned Office Order No.020/1(1)/Estt-1/2019/1563 dated 01.04.2019 has been passed.
16. Keeping the above in view, the entire career progression and the consequent pay fixation, in the case of the applicant, was required to be revised. This career progression has been revised vide impugned orders dated 01.04.2019 issued in compliance of CAT common order dated 15.02.2018.
17. This Tribunal finds no ground to allow the prayer of the applicant seeking quashing of the order dated 1.4.2019 passed by the respondents. However, any excess payments made to the applicant on account of orders passed by the respondents extending benefits which were not due to him, consequent to revision of his career progression as per order dated 1.4.2019, would not be recoverable at this stage keeping in view the principles laid down in the Apex Court Judgment in State of Punjab & Others vs. Rafiq Masih (White Washer), 2012 case.
18. The respondents are accordingly directed to calculate the revised entitlements and regularization of pay of the applicant in terms of office order dated 01.04.2019 at Annexure A11. However, while revising the pay entitlements the applicant shall not be punished with the recovery of the amount already granted to him from year 2006-2019, the same being impermissible in terms of the decision of Hon'ble Apex Court in State of Punjab & Others vs. Rafiq Masih (White Washer), 2012 case.
19. The OA stands disposed of in terms of the above.
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OA.No.170/458/2019/CAT/Bangalore Bench
20. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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