Central Administrative Tribunal - Ernakulam
K.V Joshy vs Union Of India on 16 August, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/61/2015
Tuesday, this the 16th day of August, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
K.V Joshy
Engine Driver (Retd)
Kalathil House, Kairali Road
Cherai P.O, Ernakulam-683 514 . . . Applicant
(By Advocate Mr.C.S.G Nair)
Versus
1. Union of India
represented by its Secretary, Department of Revenue
North Block, New Delhi - 110 001
2. Chief Commissioner of Central Excise
Customs & Service Tax
Central Revenue Buildings
I.S Press Road, cochin - 682018
3. Commissioner of Central Excise
Central Revenue Buildings, I.S Press Road
Cochin - 682 018
4. Commissioner of Customs (Preventive)
Catholic Centre, Broadway
Cochin - 682 031
5. Pay & Accounts Officer
Customs, Customs House
Willington Island, Cochin- 682 009 . . . Respondents
(By Advocate Mr.N.Anilkumar, Sr.PCGC)
This application having been heard on 26.7.2016, the Tribunal on
16.8.2016 delivered the following :
ORDER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER Applicant retired as Engine Driver from the Customs Marine Wing under the 4th respondent on 30.11.2014. By Annexure A-2 he was granted 1 st financial upgradation under the ACP Scheme to the cadre of Engine Mate in the pay scale of Rs.4500-125-7000 w.e.f 9.8.1999. By Annexure A-3, he was granted 2nd financial upgradation under ACP Scheme w.e.f 28.12.2003 to the pay scale of Engine (Marine) in the scale of Rs.7450-225-11500. Applicant was promoted to the cadre of Engine Driver in the pay band 5200- 20200+2400 during October 2009. Applicant having completed 30 years of service as on 27.12.2009 was granted 3 rd financial upgradation under MACP scheme w.e.f 28.12.2009 to the pay band 9300-34800 with a grade pay of Rs.5400/-. Applicant had completed 4 years of regular service as on 27.12.2013 in the grade pay of Rs.4800/- and as such he is entitled for a grade pay of Rs.5400/- w.e.f 28.12.2013 on the basis para (x)(e) of Govt. of India Resolution F.No.1.1.2008-1C dated 29.8.2008. Applicant submitted Annexure A-5 representation for granting grade pay of Rs.5400/-, which has not been replied so far. He was granted 1 st financial upgradation under the ACP scheme to the cadre of Engine Mate in the pay scale of Rs.4500-125- 7000 w.e.f 9.8.1999, as per Annexure A-2. He was granted 2 nd financial upgradation under ACP scheme w.e.f 28.12.2003 to the pay scale of Engine (Marine) in the scale of Rs.7450-225-11500 as per Annexure A-3. Applicant was promoted to the cadre of Engine Driver in the pay band 5200- 20200+2400 during October 2009. Applicant having completed 30 years of service as on 27.12.2009 was granted 3 rd financial upgradation under MACP scheme w.e.f 28.12.2009 to the pay band 9300-34800 with a grade pay of Rs.5400/-. Applicant had completed 4 years of regular service as on 27.12.2013 in the grade pay of Rs.4800/- and as such he is entitled for a grade pay of Rs.5400/- w.e.f 28.12.2013 on the basis of para (x)(e) Govt. of India Resolution F.No.1.1.2008-1C dated 29.8.2008 which reads as follows:-
'X(e) Group B Officers Departments of Posts, Revenue, etc. will be granted Grade Pay of Rs.5400/- in PB-2 on non-functional basis after 4 years of regular service in the grade pay of Rs.4800/- in PB-2.' Para (x)(e) of the Resolution dated 29.8.2008 clearly makes it mandatory to sanction Rs.5400/- grade pay to all those who have completed 4 years of regular service in the grade of Rs.4800/-. Denial of this benefit to the applicant is arbitrary and illegal.
2 Reliefs sought by applicant is to declare that the applicant is entitled for a grade pay of Rs.5400/- w.e.f 28.12.2013 and accordingly disburse the pension and other retirement benefits.
3 Respondents in reply statement submits that the applicant joined as Driver Launch (Now Engine Driver) on 28.12.1979 and was granted 1 st ACP in the scale of Rs.4500-125-7000/- (Engine mate) and 2 nd ACP in the scale of Rs.7250-225-11500 (Engineer) on 9.8.1979 and 28.12.2003 respectively.
Consequent upon the implementation of 6th Central Pay Commission his pay was fixed at Rs.14700+4600 G.P in PB-2 9300-34800. On completion of 30 years he was granted 3rd MACP in pay band Rs.9300-34800 with GP Rs.4800/- in PB-2. Thus the benefit of ACP's/MACP has been granted to the applicant in time.
4 In the Original Application applicant is aggrieved by denial of higher grade pay of Rs.5400/-, which is not found to be correct in the light of Ministry's instruction No.A-26017/98/2008-Ad.II dated 16.9.2009 wherein it has been clarified that the non-functional grade pay of Rs.5400/- in PB-2 will not be granted to such Group B Officers who have got the Grade Pay of Rs.4800/- in upgradation under the ACP scheme and will be granted only on completion of 4 years of regular service in the respective post. As such the applicant is not eligible for higher grade pay of Rs.5400/- as he has got the Grade Pay of Rs.4800/- on upgradation under MACP scheme and not on promotion.
5 Heard the learned counsel for applicant and respondent and perused the written submissions made.
6 Applicant would argue that after 4 years of service in the grade pay of Rs.4800/- he is entitled for a grade pay of Rs.5400/-. This is as per the CCS (Revised Pay) Rules 2008. No special sanction or authorization from anybody is required to grant the grade pay of Rs.5400/-. This change of grade pay is automatic after 4 years of service in the grade. Annexure A-7 clarification on this matter issued by the Central Board of Excise & Customs on 21.11.2008 clearly states as follows:
'The Department of Expenditure have now clarified that the 4 year period is to be counted w.e.f the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre-revised). Thus, if an officer has completed 4 years on 1.1.2006 or earlier, he will be given the non-functional upgradation w.e.f 1.1.2006. If the Officer completes 4 years on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4 years in the pay scale of Rs.7500-12000 (pre-
revised).' 7 Following the above Annexure A-7 clarification the Chief Commissioner of Central Excise (Jaipur Zone) has directed the Commissioner to grant Rs.5400/- grade pay to those who were granted ACP with a grade pay of Rs.4800/- after 4 years. A true copy of the letter C.No.1- 2(03)AMN/CCO/J2/2007- dated 30.1.2009 issued by the Chief Commissioner of Central Excise Jaipur Zone is produced as Annexure A-8. The Hon'ble High Court of Madras in M.Subramanian v. Union of India (WP(C) 13225/2010) held as follows:-
'8. Thus, if an officer has completed 4 years 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 which he completed 4 year in the pay scale of Rs.7500-12000 (pre-revised), since the petitioner admittedly completed 4 years period in the scale of Rs.7500- 12000 as on 1.1.2008, he is entitled to grade pay of Rs.5400/-. In fact, the Government of 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-functional basis after four years of regular service in the grade pay of Rs.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.'
8 It is argued by respondents that the 3 rd MACP granted to the applicant vide order No.33 of 2010 dated 7.10.2010 is on the basis of instructions contained in O.M No.35034/3/2008-Estt(D) dated 19.5.2009 of DoP&T. As per Annexure A-1 O.M dated 19.5.2009, para 16 clearly states that 'on grant of financial upgradation under the scheme, there shall be no change in the designation, classification or higher status. However, financial and certain other benefits which are linked to the pay drawn by an employee such as HBA, allotment of Government Accommodation shall be permitted. 9 The applicant has quoted the clarification issued by the Chief Commissioner of Jaipur in C.No.1-2(03) ADMN/CCO/JZ/2007 dated 30.1.2009 vide Annexure A-8 wherein upgradation of Grade Pay from Rs.4800/- to 5400, was allowed to Inspectors (Non gazetted group 'B' Officers and not to Engine Drivers). Respondent brings to notice that as per letter dated 16.2.2009 issued by the Chief Commissioner, it was further clarified that the officers who got the pre-revised pay scale of Rs.7500-12000 (corresponding to grade pay of Rs.4800/-) by virtue of financial upgradation under ACP will not be entitled to the benefit of further non-functional upgradation to the pre-revised pay scale of Rs.8000-13500 (corresponding to the grade pay of Rs.5400/-) on completion of 4 years in the pre-revised pay scale of Rs.7500-12000. Hence the above order in WP(C) 13225/2010 is applicable to Inspectors.
10 The applicant in the Original Application is an Engine Driver. Annexure A-7 clarificatory letter produced by applicant refers to Part C Section II of the CCS (Revised Pay) Rules 2008 which under heading Ministry of Finance, Department of Revenue at serial no.9 indicates that Superintendents, Appraisers etc (Customs & Central Excise) who are in the pre-revised scale of Rs.7500-12000/- shall be granted grade pay of Rs.5400/- in P.B-2 corresponding to the pre-revised scale of Rs.8000-13,500 after 4 years of service. Clarifying the above, the O.M at Annexure A-78 in para 3 states as follows:-
'The Department of Expenditure have now clarified that the 4 year period is to be counted w.e.f the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre-revised). Thus, if an officer has completed 4 years on 1.1.2006 or earlier, he will be given the non-functional upgradation w.e.f 1.1.2006. If the Officer completes 4 years on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4 years in the pay scale of Rs.7500-12000 (pre- revised).'
11 Hence, though no reference is made to Engine Driver in the above O.M, reference is however made to pre-revised scale of pay of Rs.7500- 12,000/- for grant of benefit of non-functional upgradation after 4 years of regular service. Two important conditions are to be noted in the above O.M, first it is applicable to those cadres who in the recruitment rules have been provided non-functional upgradation after 4 years residency in scale Rs.7500-12,000/- and secondly the 4 years residency will be after 4 years of regular service which is different from service rendered on account of financial upgradation schemes of ACP and subsequent MACP Scheme. 12 On 24.5.2006 as per Annexure A-3 applicant was granted second ACP to the pay scale Rs.7450 - 11,500/- and not Rs.7500-12,000 referred in Annexure A-7. On 20.10.2009 as per Annexure A-4 applicant was promoted as Engine Driver in pay scale Rs.5200-20,200 with grade pay Rs.2400/- which is also not akin to Rs.7500-12,000 referred in Annexure A-7. Applicant has not produced the order granting 3 rd MACP, but it is presumed that it was granted in the replacement scale of same pay scale i.e, Rs.7450- 11,500, which is lower than scale Rs.7500-12000/- referred to in Annexure A-7. Hence applicant is not entitled to the benefit in Annexure A-7 as he is not drawing the pay scale Rs.7500-12000 indicated thereon. Further applicant has been granted 2 nd ACP in scale Rs.7450-11500 and has not been promoted on a regular basis and hence has not completed four years regular service after promotion. Thereafter he has been given MACP also. Here we refer to para 16 of Government of India MACP Scheme dated 19 th May 2009 which states as follows:-
'16. On grant of financial upgradation under the scheme, there shall be no change in the designation, classification or higher status. However, financial and certain other benefits which are linked to the pay drawn by an employee such as HBA, allotment of Government accommodation shall be permitted. '
13 Hence applicant is entitled to benefits of only HBA etc and not benefits of non-functional upgradation which is required to be provided as a provision in the recruitment rules of any cadre to which applicable. Applicant has not produced the recruitment rules of his cadre which extends the benefit of non- functional upgradation. WP(C) 13225 of 2010 cited by applicant and produced as Annexure A-9 has been filed by Inspector of Central Excise awaiting promotion as Superintendent of Central Excise who are covered by a different set of recruitment rules guiding their promotion to various scales of pay. This Tribunal order produced as Annexure A-11 is also with reference to financial upgradation of Inspector of Income Tax.
14 Parity can be claimed only with similarly placed persons in same cadre. In C.A 6583-84/2008 decided on 7th November 2008 Apex Court had held:
'Since the plea of parity of DMG & I with Supervisor had to be examined on the touchstone of Article 14 & 16 of the Constitution, the burden was on the appellant to establish discrimination by placing on record cogent materials. For this purpose, the crucial factor to be established is not only the functional parity of the two cadres, but also the mode of recruitment, qualification and responsibilities attached to the two offices. All this information is necessary to analyse the nationale behind the state action in giving different treatment to two classes of its employees and then determine whether or not an invidious discrimination has been practised. '
15 Applicant has not produced the recruitment rules which provide the benefit of non-functional upgradation to Grade Pay of Rs.5400. He has also not produced any functional parity of his post with those in the writ petition cited. Further applicant has also not explained the two different pay scales i.e, scale Rs.7500-12000 to which non-functional upgradation and grade pay of Rs.5400/- is applicable and applicants pay scale of Rs.7450 - 11500/-. 16 For the reasons stated above, this Original Application is dismissed. No costs.
(MRS.P. GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv