Central Administrative Tribunal - Kolkata
Shyamal Kr Das vs I C M R on 31 March, 2022
i . O.A. 656 of 2015, M.A. 337 of 2018, 0.4.52 of 2021 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH, KOLKATA 0.A./350/00656/2015 a Order dated: 31.03.2022 M.A./350/00337/2018 0.A./350/00052/2021 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member | Hon'ble Dr. N. Chatterjee, Administrative Member _ Sri Shyamal Kumar Das, son of Late Bani Prasad Dan, aged about'57 years, ' residing at 43/8, Tala Park Avenue. Belgachia, Kolkata, Pin No-700037 | ase Applicant. -VERSUS- 2, Union of India through Secretary, -- _ Ministry of Health and Family Welfare, - V. Ramalingeswami Bhawan, Ansari Nagar, - cee . New Delhi, Pin Code: 110029, . 2. Indian Council of Medical Research through the Director General, Department of Health Research (Ministry of Health and Family Welfare}, V, Ramalingeswami Bhawan, Ansari Nagar, New Delhi, Pin Code: 110029. 3. The Director, National institute of Cholera and Enteric Diseases, P.33, CIT Road, Scheme-XM, Ballaghata, Kolkata, Pin Code- 700-010. 4. The administrative Officer, -NICED, P33, CIT Road, Scheme XM, Ballaghata, Kolkata, Pin Code 700 010. weacnhaes Respondents. : : < fa. _O.A, 856 of 2045, M.A, 337 of 2018, O.A. 52 of 2021 For the applicant Mr. A. Chakraborty, Counsel . Ms. P. Mandal, Counsel For the respondents ; Mr. 6.8. Chatterjee , Counsel ORDER (Oral)
Per : Bidisha Banerjee, Judicial Member bh Ld. Counsels were heard, The applicant has prayed for the following relief(s}:
"a) Order dated 24.01.2015 issued by the Director General, ICMR can not be tenable in the eve of law and and as such the same may be quashed.
b} Such further order/orders and/or direction/directions as your Lordships deem fit and proper,"
The facts narrated by the applicant would be as under:
"The applicant joined service in the past of Junior Stenographer on 05.09.81 in the scale of pay of Rs. 350-560, (8 CPC} revised as Rs. 1200-2040 (4th CPC) and thereafter in the Pay Band of Rs 5200-20200 PB-1 Grade Pay ~ 2400(6 CPC).
He was promoted to the post of Sr. Stenographer, and 'thereafter re- designated as Personal Assistant as per 4" CPC. He said post of Personal Assistant) on 01.09.1989. The relevant scale of pay was Rs. 1640-2900(4th CPC}/ Rs. 5500/-9000/ which was replaced as (Rs. 6,500-10,500/- In gh CPC} and In PB-2, with corresponding Pay Scale Rs. 9300-34,800/- in the 6"
CPC. | | The applicant completed 24 years of service on 05.09.2005 and thereby he was granted the benefit of ACP to the next hierarchical post of P.S. vide order dated 28.09.2005, in the scale of 6500-10,500 his pay was fixed under FR 22(1}{a}(p! at Rs. 8300 pom.
The applicant was again promoted to Private Secretary (PS) on regular basis w.8.f. 01.08.2006 in scale of 6500 10,500 (Sth CPC}, revised by 6 CPC as PB-
2, Rs. 9300-34,800 with G.P. Rs. 4200 w.e.f. 01.01.2006, it is further submitted that a letter dated 41.2010 was issued on the subject "grant of pay structure of GP Rs. 4600/-In the PB-2 to the post that existed in the pre-revised scale of Rs. 6,500-10,500 as on 01.01.2006" and which were granted the normal replacement pay structure of G.P. 4200 in P.8.-2. The said letter conveyed the approval of the Director General/ICMR te the grant of GP Rs, 4600 to the Council employees who were in the pre-
3 OA, 656 of 2015, M.A, 337 of 2018, 0.4. 52 of 2021
- revised scale of pay of Rs 6,500-10.500 as on 1.1.2006 and who were earller granted GP Rs. 4200/-w.e.f, 1.1.2006 in the PB-2.
Thereafter, a letter dated 15.02.2010 was issued on the subject grant of the revised pay structure of GP Rs. 4600 in the PB-2 to Assistant and Personal Assistant of ICMR and that with approval of the Director General, w.ef. 11.2006. | se |
8. On 23.02.2012 the respondent No. 3 at office at Kolkata, issued a letter on the basis of the approval of Director General dated 3.2,2012 whereby fixed the pay of the applicant under MACP scheme. The applicants pay as on 1.1.2006 was fixed under 2 ACP w.e.f. 1.1.2006 in PB-3, Rs. 15600-
-39100+GP Rs. 5400 and the pay of the applicant was also fixed under 3
- MACP in the PB 3, GP-6600, w.ef.5.9.2011. --
The applicant is aggrieved by an Order dated 24.01.2015 (Annexure 4-3) by which the pay of the applicant was sought to be refixed, It was decided that the pay of the applicant will be re-fixed in the Grade Pay of Rs. 4800 under MACP with effect from 05.09.2011 on completion of 30 years of service. According to the authority concerned as per Para 8 of MACP Scheme, the promotion earned in the post carrying the same Grade Pay in the Promotional hierarchy as per Recruitment Rules shall be counted for the
-purpase of MACP."
A, The respondents have filed their reply. They have catepatically denied the entitlement as per Para 5 of the MACP., On the contrary they state that Para 8 of the MACP Scheme would apply: Para 8 envisages "Promotion earned in the post carrying same-prade pay in the promotional as per Recruitment Rules shall be | counted for the purpose of MACP Scheme,"
5, In 0.A, 063/00687/2018 with M.A. 063/00460/2019 Principal Bench was considering a case of reversal and recovery of MACP benefits. It saw that -
"The applicants were granted third MACP with effect from 30.07.2014, 27.09.2013 and 16.12.2012 vide letters dated 28.07.2014, 03.03.2014 and 03.01.2013 respectively on completion of 30 years of service and on remaining in the same grade pay for ten years. Some persona junior to the applicants wha had not been promoted, were granted the benefit of third MACP with Grade Pay of Rs.4600/- The applicants continued te receive pay and allowances on the basis of pay fixed after grant of MACP. However, through communication dated 22.05.2017, it was informed by respondent 4 , 0.4. 656 of 2015, M.A. 337 of 2018, 0.4. 52 of 2024 ned to respondent no.2 that MACP was nat admissible to the applicants as the promotion from the post of Assistunt to OS cannot be ignored for this purpose, 2.3 Subsequently, vide orders dated 09.06.2017 and 01.12.2017 (Annexures A-7 and A-8), the grant of MACP to the applicants was reversed. The applicants thereafter submitted representations to reconsider the decision of reducing the grade pay (Annexures A-9, A-10 and A-11) but no relief was granted by the respondents. Applicants have relled on the judgment rendered by the Hon'ble Delhi High Court in Government of NCT of Delhi & Anr, Vs. S.K. Saraswat & Ors. decided on 09.05.2016 to fortify their stand."
it considered the respondents' contention that --
"They always have a right to rectify the mistake and in this regard, they have cited the judgments in Jagdish Prajapati Vs. the State of Rajasthan and Ors., 1998 (2) ATL, P-286, Anand Prakash Vs. State of Punjab, 2005 (4) RSJ #49 ane Raj Kumar Batra Vs. State of Haryana, 1992 (1) SCT 129"
Hon'ble Court dismissad the Writ Petition having observed as follows:
"f a
2. The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is nat between two successive grades, be different than what is available at the time of reqular promotion. in such cases, the figher grade pay attached to the next promation post in the hierarchy of the concerned cadreforganization will be given anly at the time of reqular promotion. | ANAM XXX KXXK AEA d2. Paragraph 5 of the MACP Scheme refers to both ungradations granted under fhe erstwhile ACP Scheme and promotions earned in the past to grades. which Pave merged as a result of merger _of pay-scoles or upgradation of posts. These have to be jgnared. and the reason is Hluminate, Merger of pay scales nullifies and negates the very objective and purpose of the Scheme. Thus, promotians earned or upgradations granted under the ACP Scheme when they have merged, either as a result of merger of pasts or pay scales, have to be ignored for the purpose of granting uogradatians under the MACP Scheme. Mandate of Rule 4 is clarified by way of an illustration, which ts instructive. A government servant, recrulted § OA. 656 of 2015, MA, 337 of 2048, O.A, 52 of 2021 in the hierarchy in the pre-revised pay-scale of Rs.5000-8000 and granted financial upgradations in the pre-revised pay-scale of Rs.5500-9000 and Rs.6500-10500, on merger of the aforesaid three pay-scales would be entitied to financial upgradations in the Grade Pay of Ra.4600 and Rs.4800 in Pay Band-2. Such government servant would not be paid the Grade Pay af Rs.4200 in Pay Band-2, which is the grade pay corresponding to pre- revised pay-scales. The reason is that pay scales of Rs 5000-8600, Rs. 5500- 9000 and Rs.6500-10500, have been merged into ene pay-scale.
MANS KAA " KXKX MXN 17, Paragraph 8 also deals with computation for the purpose af MACP ocheme, in the beginning itself, we would say and accept that parcaraph 8 is ambiquous and confusing, ft is not happily worded. One way of reading the said paragraph, which consists of one sentence, is in the manner suggested by the petitioners Le. promotions in the hierarchy which hove the the MACP Scheme. Hawever, this interpretation would be counter to and is in confliet with the precept and foundation af the MACP Scheme, which, us noticed above, refers to the immediate next higher grade pay in the _ hierarchy given in Section 1. Part-A of the first schedule of the Rules. The difficulty in accepting this interpretation is that it will aver-turn the basis and edifice of the said Scheme and would be contrary to paragraphs 1, 2, 4, Sand 6.2. We have already noticed these paragraphs, including paragraph 2 and interpreted the same. Paragraph 2 states that financial upgradation under the MACP Scheme cannot be understood and applied with reference to promotional pay-scales, for the same can be different. This is clear from the second sentence of paragraph 2 The third and the last sentence of paragraph 2 by way of an illustration accepts that the higher grade pay attached to the next promotional post in the hierarchy will be given at the time of regular promotion. We would observe that use of word "higher in the last sentence is for the purpose of demonstration to rule out canfusian and anibiguity. It is possible that the next higher promotional past may well have pay-scale of the lower post. it is in this context that. the recommendations of the Sixth Pay Commission in paragraph 6.1.15 are relevant. [f the legislature ie. the Government, which had issued the Scheme, wanted to restrict financial upgradation and not collate it to the next higher grade pay in the hierarchy, it would have stipulated as such in --
Section 1, Part-A of the Rules. The said stipulation, would have been properly clarified ond so stated in paragraph 2 itself The second sentence of _ paragraph 2 expressly and clearly states that the grade pay at the time of financial upgradation under the MACP Scheme can in some cases be different fram the pay-scale/grade pay applicable on regular promotion. The second sentence does not refer only to the situation where the grade pay is higher in the promotional post. The third sentence in paragraph 2 is also by way of an illustration. Consequence of the interpretation, as suggested by the petitioners would be an absurdity, contradiction and cause 6 | OLA. 656 of 2045, M.A. 337 of 2018, O.A, 82 of 2021 hardship. We would hesitate to observe that this was the legislative intent Such interpretation would frustrate the core foundation of the Scheme.
XXXK - XKXN XXX _ KXXK
28. In view of the aforesaid discussion, we do not find any merit in the present writ petition and the same is dismissed. In the facts of the present case, there will be no order as to costs."
The Principal Bench, having noted above held:
"Q1. From a reading of Para 5 of the MACP Scheme, it is abundantly clear that the cose of the applicants is fully governed by the said provisien. Further, from the illustration given with Para 5 of the MACP Scheme, there is no doubt left whatsoever. Para 8 of the Scheme is of a-general nature, in a different context and cannot be said to have overriding effect on Para 5 of the Scheme, which is very specific.
. 42. As for the case law cited by the respondents, in the foots and circumstances of the case they lend no support to the arguments advanced by the respondents. .
13. in view of the above, the OA is allowed and the impugned orders are set aside. The applicants shall be granted all consequential benefits within a period of sixty days of the receipt of a certified copy of this order. No order as to costs." .
Relying upon the Judgement passed by Hon'ble High Court, Delhi, the ; Tribunal i in Para 11 of its Order was pleased to observe that from a reading ft in Para 5 of the MACP Scheme, it is abundantly clear that the case of the applicant fs fully 'governed by the said provision. Para 8 of the scheme is of a general Nature, in different context and cannot be said to have overriding effect on Para 5 of the Scheme, which is very specific.
The Tribunal allowed the application, set aside the impugned and directed the respondents to grant all consequential benefits.
The applicant's claim that the Judgement passed by Hon'ble Delhi High _ Court in S.K.Saraswat Case is fully applicable and Impugned order passed by 7 0.A; 656 of 2015, M.A. 337 of 2018, O.A. 52 of 2021 authority concerned in respect of the applicant (Annexure A-3) should be quashed and pensionary benefits withheld by the respondents may be released with interest.
6. In view of the settled position, the O.A. is disposed of with a direction upon the respondents to consider and grant benefit of the order extracted supra if nothing else stands in the way.
7. Appropriate order be issued in 3 months.
8. This O.A. accordingly stands disposed of. No costs.
(Dr. N. Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member drh