Central Administrative Tribunal - Allahabad
Ashwani Kumar Dubey vs Cgst on 17 May, 2024
Page No.1
(Reserved on 18.04.2024)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No.1085/2018
This the 17th Day of May, 2024.
Hon'ble Mr. Justice Rajiv Joshi, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
1. Manoj Mishra, son of, Late Shiv Kumar Mishra, Resident of, Flat No.
204, Antram J.S.R. Glory Apartment, Near Khyati Hospital,
Paschimpuri, Agra- 282007, (U.P.). Presently posted as Inspector,
CGST & Central Excise, CGST & Central Excise, Range-VII, Division-
II. Commissionerate, Agra.
2. Pramod Kumar Sagar, son of, Late Khoob Chand Sagar, Resident of,
Flat No. 111-C, Brij Dwarika Colony. Dehhtora, Agra-282007, U.P.
Presently posted as Inspector, CGST & Central Excise, CGST &
Central Excise, Range-VI, Division-II, Commissionerate, Agra.
3. Shiv Singh, son of, late Ram Swaroop, Presently posted as Inspector,
CGST & Central Excise, CGST & Central Excise, Commissionerate,
NOIDA.
4. Mahesh Arya, son of, Late P.L. Arya, Resident of, House No. 189,
Arya Nagar, Block-2, Rajpur Road, Dehhradun-248001 Presently
posted as Inspector, CGST & Central Excise at the CGST & Central
Excise Commissionerate, Dehradun-Uttarakhand.
5. Mohit Agarwal, son of, Late Gopal Agarwal, Resident of, 126, Krishan
Nagar, Dehradun, Teliyarganj, Allahabad-U.P. Presently posted as
Inspector, CGST & Central Excise at the CGST & Central Excise
Commissionerate, Dehradun-Uttarakhand.
........... Applicants
By Advocates: Shri Shyamal Narain
Versus
1. Union of India through the Secretary, Ministry of Finance,
Department of Revenue, Government of India, New Delhi.
2. The Central Board of Indirect Taxes And Customs, through its
Chairman, Government of India, New Delhi.
3. The Principal Chief Commissioner, (Cadre Controlling
Authority), Central Goods and Services Tax and Central Excise,
Lucknow Zone, 7-A, Ashok Marg, Lucknow-U.P.
Page No.2
4. The Commissioner, Central GST & Central Excise, Sanjay Place,
Agra-U.P.
5. The Commissioner, Central GST & Central Excise Dehradun-
Uttarakhand.
6. The Commissioner, Central GST & Central Excise NOIDA-U.P.
7. The Secretary, Department of Personnel and Training, Ministry
of Personnel, Public Grievances and Pensions, Government of India,
New Delhi.
........... Respondents
By Advocate: Shri M.K. Sharma
Along with
Original Application No.691/2023
1. Ashwani Kumar Dubey, S/o Late Shri J P Dubey, R/o 287/04, NLC,
Kidwai Nagar, Kanpur-208023.
2. Sandeep Khanna, S/o Late Bhola Nath Khanna, R/o 126/27-A, R
Block, Govind Nagar, Kanpur 208006.
3. Manoj Agarwal, S/o Late R R Agarwal, R/o A-701, Dilbagh Rose
Garden, 122/238, Fazalganj, Kanpur-208012.
4. Naveen Chand Shukla, S/o Late Gulal Chand Shukla, R/o X-1/57-A,
Krishna Puram, Kanpur-208007.
5. Anil Kumar Jatav, S/o Late Mukh Lal, R/o Flat No.303, Rohini Shree
Dham, 127/7, U Block, Nirala Nagar, Kanpur.
6. Anil Kumar Nigam S/o. Late. Gomti Prasad Nigam, R/o 119/286 'B'
Ram Nagar Darshan Purwa, Kanpur-208012.
7. Arvind Tiwari S/o. Late V.D. Tiwari, R/o C-3/1 Gulmohar Vihar,
Juhi Kanpur-208014.
8. Sudhir Ranjan Tripathi S/o. Late Satya Narayan Tripathi, 7/59
Ambedkarpuram, Kalyanpur Kanpur-208017.
9. Lalit Kumar Verma S/o Late A.K. Verma, R/o O-37 Keshavpuram,
Awas Vikash No.1, Kalyanpur, Kanpur-208017.
10. Munish Mehra S/o. Late Dinesh Mohan, R/o 3/247 Vishnupuri
Kanpur.
.................. Applicants
By Advocate: Shri Jaswant Singh
Versus
Page No.3
1. Union of India, through the Secretary, Ministry of Finance,
Department of Revenue, Government of India, New Delhi
2. The Central Board of Indirect Taxes and Customs, through its
Chairman, Government of India, Ministry of Finance, Department of
Revenue, New Delhi
3. The Principal Chief Commissioner, (Cadre Controlling
Authority), Central Goods and Services Tax (CGST) and Central
Excise 7-A Ashok Marg Lucknow..
4. The Pr. Commissioner/Commissioner (Audit) Audit
Commissionerate, Central Goods and Services Tax (CGST) and
Central Excise, GST Bhawan, 117/07, Sarvodaya Nagar, Kanpur-
208005.
5. The Pr. Commissioner/Commissioner Central Goods and
Services Tax (CGST) and Central Excise, Commissionerate, GST
Bhawan, 117/07, Sarvodaya Nagar, Kanpur-208005.
6. The Secretary, Department of Personnel and Training (DoP&T)
Ministry of Personnel, Public Grievance and Pensions Government of
India, North Block, New Delhi.
............ Respondents
By Advocate: Shri M.K. Sharma
ORDER
Delivered by Hon'ble Mr. Justice Rajiv Joshi, Member (J) Heard Shri Shyanal Narain, learned counsel for the applicant in OA No.1085/2018, Shri Jaswant Singh, learned counsel for the applicant in OA No.691/2023, and Shri M.K. Sharma, learned counsel for the respondents in both the Original Applications.
2. Since the issue involved in both the Original Applications is similar/identical, the same is being decided finally by the common orders.
Brief facts of OA No.1085/2018
3. The instant Original Application filed by the applicants, who are 05 in number for the following main relief(s):-
Page No.4"(i) That this Hon'ble Tribunal be pleased to quash and set aside the impugned orders dated 21.08.2018, 16.05.2018, 15.05.2018 and 16.05.2018 issued by the respondents for withdrawing the benefits of financial upgradation granted to the applicants (Annexure Nos. A-2, A-3, A-4 and A-5 to Compilation No.I, respectively).
(ii) That this Hon'ble Tribunal be pleased to hold and declare that the applicants are not hit by the provisions of MACP Scheme referred to in the impugned letter/order dated 07.02.2018 issued by the CBEC (Annexure No. A-1 to Compilatiion No.II)."
(a) The facts in the aforesaid Original Application is that all the applicants were promoted on regular basis to the grade of Inspector in the Customs & Central Excise Department in the pay scale of Rs.6500-200-10500/- with grade pay of Rs.4600/- on notional basis, w.e.f. 06.12.2002, in pursuance of a Review Departmental Promotion Committee (DPC) held in compliance of the judgment of the High Court of Andhra Pradesh in Writ Petition No.7963 of 2004. The copy of the Establishment order dated 19.09.2007, showing the names of Applicant No.1 (Manoj Mishra), and Applicant No.3 (Shiv Singh) at Sl. No.276 and 286 respectively and the copy of the Establishment Order dated 16.06.2011, showing the names of Applicant No.2 (Pramod Kumar Sagar), Applicant No.4 (Mahesh Arya), and Applicant No.5 (Mohit Agarwal) at Sl. No.190, 39, and 151 respectively which are appended as Annexures 6 and 7 to the compliance-II.
(b) From the plain reading of the aforesaid promotion order, it appears that the same was issued in compliance of the judicial verdict given by the High Court of Andhra Pradesh and the applicants had been promoted on regular basis retrospectively w.e.f. 06.12.2002. The words "on notional basis" used in the orders were in respect of the pay scale and grade pay assigned to the promotees and its only implication was that even though the applicants had been granted promotion to the grade of Inspector, on regular basis, w.e.f. 06.12.2002, they would not be Page No.5 entitled for any arrears of salary from the date of their retrospective promotion. However, the applicants were given salary from 06.12.2002 onwards along with the other benefits with their retrospective promotion on regular basis to the grade of Inspector.
(c) The Government of India had introduced the Assured Career Progression Scheme (ACP) upon the recommendation of 5th Central Pay Commission, providing for a maximum of two financial upgradations to be given to the employees upon the completion of 12 years of continuous service in the same grade. The 6th Central Pay Commission went on the recommendation recommended introduction of Modified Assured Career Progression (MACP) Scheme, which was accepted by the Central Board Government with further modification to grant three financial upgrdation at intervals of 10, 20 and 30 years of continuous service.
(d) In pursuance of MACP Scheme, the applicant Nos. 1 and 2 were granted the benefit of financial upgradation w.e.f. 06.12.2012 upon completion of 10 years of regular service in the grade of Inspector. Likewise, vide Establishment Order No.5/2013, dated 28.10.2023, Applicant No.3 was granted the 3rd Financial Upgradation under the aforesaid Scheme upon completion of 10 years of regular service which had been granted promotion of Inspector on regular basis. Similarly, Applicant Nos. 4 and 5 vide order dated 02.04.2014 and 05.10.2013 issued by the concerned respondents were granted 2nd and 3rd financial upgradation under MACP Scheme on completion of 10 years of regular service in the grade of Inspector.
(e) However, all of sudden vide impugned letter/order No.F.A.26017/214/2017-Ad.IIA, dated 07.02.2018 (wrongly Page No.6 typed as 7th February, 2017), came to be issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India, to the Principal Chief Commissioner, CGST & CX, Lucknow Zone clarifying that as per par 9 of D.O.P.&T, Office Memorandum dated 19.05.2009, and Sl. No.4 of frequently naked question in DoP&T, office memorandum dated 09.09.2010 on MACP Scheme, 'Regular Service' for the purpose of the MACP Scheme shall commence from the date of actual joining of a post in entry grade on a regular basis, and requesting him to take corrective action.
(f) Subsequently, upon circulation of the aforesaid clarification dated 07.02.2018 to all the Commissioners, CGST, vide letter dated 26.02.2018, issued by the office of the Principal Chief Commissioner, CGST & CX, Lucknow Zone, the consequential impugned orders have been issued by the respective Commissionerates where the applicants are presently posted, whereby the benefits of financial upgradations granted to the applicants long back, have been sought to be withdrawn, unilaterally, and without any notice or opportunity of hearing to them.
4. A short counter affidavit from the side of the respondents has been filed on 23.04.2019, in which it is stated that as per prescribed procedure, MACP is granted to an employee on the recommendation of the Departmental Promotion Committee (DPC), wherein only vigilance clearance and ACR's cum seniority of the individuals are considered for their fitness for grant of MACP. No interview or any other criteria is being taken for considering and selection of the candidates. Likewise while withdrawing the MACP, similar procedure is followed. As such, the question of granting a personal hearing before withdrawing the MACP does not arise. The MACP is grant of financial benefits only and does not amount to actual/financial promotion of the employee concerned. Further, the MACP orders were issued by the Page No.7 competent authority on the recommendation of the DPC and the same were withdrawn by him on the recommendation of DPC after being satisfied that some procedure lapses/deficiencies had occurred for one reason or another. Therefore, there is no illegality or infirmity in passing the impugned orders withdrawing the MACP to the applicants.
Brief facts of OA No.691/20235. The instant Original Application filed by the applicants, who are 10 in number for the following main relief(s):-
"(a) That this Hon'ble Tribunal be pleased to quash and set aside the impugned orders dated 07-02-2018 26-02-2018, 14-07-
2021, 29-07-2021 issued by the respondent by clarifying that the notional period would not be counted for grant of MACP and issued instruction to withdraw the benefit of financial upgradation already granted under MACP Scheme by the Estt. Order No I/A/154/2014 dated 29-09.2014 to the applicants (Annexure No. A-1, A-2, A-4 and A-5 to Compilation No.I respectively).
(b) That this Hon'ble Tribunal be pleased to quash and set aside the impugned orders dated 27-03-2019 and 22-04-2019 issued by the respondent by which the benefit of Non Functional Upgradation (NFSG) of Rs. 5400/- in PB-2 already granted to the applicants vide order dated 19-03-2019, has been held in abeyance by order dated 22-04-2019 (Annexure No. A-3 to Compilation No.I ).
(c) That this Hon'ble Tribunal be pleased to hold and declare that the applicants are not hit by the provision of the MACP Scheme referred to in the impugned letter/order dated 07-02- 2018 & 14-07-2021 issued by the CBIC (Annexure No.A-1, and A 4 to Compilation No.I respectively)
(d) That this Hon'ble Tribunal be pleased to hold and declare that the applicants are eligible for grant of Non Functional Upgradation (NFSG) of Rs. 5400/- in PB-2 w.e.f. 06-12-2016 as the same relief has already been granted by this Hon'ble Tribunal in OA No.560/2023 dated 20.07.2023 to the similar placed Inspector."
Page No.8(a) The facts, in brief, are that all the applicants were promoted on regular basis against the regular vacancy to the grade of Inspector in hte Customs & Central Excise Department w.e.f. 06.12.2002 (notionally) and their pay was also fixed in accordance with the FR-22(I)(a)(i) in the pay scale of Rs.6500-200- 10500 with grade pay of Rs.4600/- w.e.f 06.12.2002, in pursuance of a Review DPC held in compliance of a judgment of the High Court of Andhra Pradesh in Writ Petition No.7963/2004. A copy of the Establishment order dated 19.09.2007, showing the name of Applicant No.2 (Sandip Khanna) at Sl. No.203, and a copy of the Establishment order dated 16.06.2011, showing the name of Applicant No.1 (Ashwani Kumar Dubey) at Sl. No.112 are appended as Annexure No.A-6 and A-7 to the compliance No.II respectively.
(b) From the plain reading of the aforesaid promotion order, it appears that the same was issued in compliance of the judicial verdict given by the High Court of Andhra Pradesh which was implemented by the respondents by issuing various orders from time to time by giving promotion prior to 07.12.2002 in accordance with the RR of 1979. The applicants had been promoted on regular basis w.e.f. 06.12.2002 and their pay was also fixed. The words "on notional basis" used in the orders were in respect of the pay scale and grade pay assigned to the promotees and its only implication was that even though the applicants had been granted promotion to the grade of Inspector, on regular basis, w.e.f. 06.12.2002, they would not be entitled for any arrears of salary from the date of their retrospective promotion. However, the applicants were given salary from 06.12.2002 on words along with the other benefits with their retrospective promotion on regular basis to the grade of Inspector.
Page No.9(c) The sixth Central Pay Commission went on to recommend introduction of the modified Assured Career Progression Scheme (MACPs) by replacing the earlier Scheme formerly known as Assured Career Progression (ACP) w.e.f. 01.09.2009 to grant three financial upgradations at the intervals of 10, 20, and 30 years of continuous regular service by counting it from the date of direct entry in the respective pay scale.
(d) It is further submitted by the applicants' counsel that all the applicants were granted the benefit of 3rd Financial upgradation under MACP Scheme after due consideration by the Departmental Screening Committee w.e.f. 06.12.2012, upon completion of 10 years of regular service in the same grade pay, reckoned from 06.12.2002, the date w.e.f. Which they had granted promotion to the grade of Inspector and accordingly their pay scale was revised.
(e) However, all of sudden, the Under Secretary (Ad.IIA) of Central Board of Indirect Taxes and Customs (CBIC), Ministry of Finance, Department of Revenue, New Delhi issued impugned letter/order F.No.26017/214/2017-Ad.IIA, dated 07.02.2018 (wrongly typed as 7th February, 2017), to the Principal Chief Commissioner, CGST & CX, Lucknow Zone clarifying that as per para 9 of Annexure A-1 of D.O.P.&T, Office Memorandum No.35034/3/2008-Estt.(D) dated 19.05.2009, and Sl. No.4 of frequently naked question (FAQ) in DoP&T, office memorandum dated 09.09.2010 on MACP Scheme, 'Regular Service' for the purpose of the MACP Scheme shall commence from the date of actual joining of a post in entry grade on a regular basis, and requesting him to take corrective action.
(f) Subsequently, upon circulation of the aforesaid clarification dated 07.02.2018 to all the Commissioners, CGST & CX, vide letter dated 26.02.2018, issued by the office of the Page No.10 Principal Chief Commissioner, CGST & CX, Lucknow Zone, the consequential impugned orders have been issued by some commissionerates where the applicants are presently posted, whereby the benefits of financial upgradations granted to the applicants long back, have been sought to be withdrawn, unilaterally, and without any notice or opportunity of hearing to them.
6. Counter affidavit from the side of the respondents has been filed on 28.02.02024, in which it is stated that the Establishment Order No.I/A/ET/05/2019 dated 19.03.2019 granting NFSG inPB-2 on completion of 04 years of regular service of the Officers in the pay scale of Rs.7500/- 1200/- (pre-revised) corresponding to the Grade Pay of Rs.4800/- in Pay Band-2, is held in abeyance vide C. No.II(22) 05- Estt./MACP/Audit/KNP/2018 dated 22.04.2019 through Establishment Order No.I/A.ET.05/2019 dated 22.04.2019.
7. No rejoinder affidavit to the said counter affidavit dated 28.02.02024 has not been filed by the applicants.
8. We have heard learned counsel for the parties both the OAs and perused the material available on record.
9. Learned counsel for the applicants submitted that respondents have committed illegality while passing the impugned order withdrawing the MACP to the applicants on the ground that they were not working on actual physical service. The applicants relied upon the judgment of the Apex Court in Union of India vs. K.B. Rajoria as well as several other judgments including the recent judgment dated 14.03.2024 passed by the Central Administrative Tribunal, Ahmedabad Bench in OA No.237/2022 - Sureshan P.V. & 41 Ors. Vs. DoP&T, Ministry of Personnel, Public Grievance and Pensions Government of India & Ors., relying upon the judgment of the Apex Court.
Page No.1110. Learned counsel for the applicants further submitted that even the date of notional promotion cannot be regarded as non-regular service. He further drew attention to sub-para 3 (D) of this communication which reads as under:
"d) The interpretation of the term „regular service seems to have been misconstrued in the current situation. The relevant aspect to consider is that the promoted officers were indeed in regular service, except if instances like unauthorized absence, EOL, vigilance issues, etc., challenge the regular service criteria. It is reasonable to believe that DDOs have adequately considered these aspects."
11. He reiterated the grounds taken in the OA to impress upon the fact that the revision of the effective date of MACP which was authorized in the establishment order was based on excluding the period of notional promotion which is disputable. He submitted that para 9 of the MACP scheme defines regular service. For the sake of clarity, the same is quoted below.
"9. Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre- appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
12. He argues that these changes had excessive bearing and were done without any prior notice; the officials were not given an opportunity to explain their position.
13. On the other hand, learned counsel for the respondents submits that the action of the respondents has been in accordance with the stipulation in the MACPs notified vide Office Memorandum dated 19.05.2009 (Annexure A-8 in OA No.1085/2018) whereunder, it is Page No.12 clearly stipulated that the Non-Functional Upgradation under MACPS is admissible on completion of 10, 20 & 30 years of regular service without any promotion or upgradation and in para 9 of the said Office Memorandum, it has been stipulated that any interpretation/clarifications to the scope and meaning of the provisions of MACPS has to be given by DoPT. Even the Office Memorandum also specify that in its para XI that no past cases would be reopened and while implementing the MACPs, differences in pay scale on account of grant of financial upgradation under old ACP scheme of August, 1999 and under MACPs within the same cadre would not be construed as an anomaly. The impugned orders have been passed as per the instruction issued by the DoP&T and various other instructions governing the issue and therefore the action of the respondents is perfectly in order.
14. Taking into consideration the arguments advanced by learned counsel for both parties, it is indisputably clear that first, the post of Inspectors carried the pay scale of Rs. 5500-9000/- which was upgraded to the pay scale of Rs. 6500-10500/- w.e.f. 06.12.2002. The scale was further upgraded to Rs. 7450-11500/- which was equivalent to PB-2 + GP-4600/- under the 6th Pay Revision Recommendation. Here the applicants were promoted in the year 2002 and 2003 and then after 6th Pay Revision Recommendation, the upgradation under MACP after 10 years of service from then came up. Since the basic fixation of these Inspectors had to be in the grade pay of Rs. 4600/- in PB-2, the next upgradation - 2nd or 3rd as the case could be - was to be to the grade pay of Rs. 4800/- after 10 years of regular service as per the MACP scheme. In this case, the Inspectors were promoted pursuant to the respondents' order and accordingly, the order of promotion to the grade of Inspector was issued. This order stated that the promotions were notionally given w.e.f. 06.12.2002 which was consequent upon the findings of the Review DPC Meeting. It was stipulated that the monetary benefit would be admissible from the date of assumption but were allowed to exercise option for pay fixation. On Page No.13 this basis, the MACP was given vide the order dated 06.12.2002, however, in view of subsequent clarification from DoPT, the MACP was revised excluding the period covered under notional promotion and it was permitted from the date of actual assumption of charge which has been questioned and impugned here.
15. We have carefully gone through the judgments of the Hon ble Apex Court relied upon by the counsel for the applicants as also through the judgment of the Ernakulam Bench of this Tribunal. Although it was contested by the counsel for the respondents that the Hon ble Supreme Court s judgments were distinguishable as they were on different issue, we can still benefit from the opinion expressed on the issue of regular service as discussed in preceding paragraphs, according to which, the word "regular would not mean actual and as it implication what we have to see whether the appointment was a regular or irregular in the sense whether it was contrary to any extant instruction or principle of law. In its para 12 of this judgment, it further lays down that the expression "on a regular basis" would mean appointment to a post on a regular basis in contradistinction to appointment on adhoc or stop gap or purely temporary basis. None of the parties have commented or argued that notional promotion was irregular and therefore the appointment even on notional appointment was on a regular basis in contradistinction from the appointment on adhoc or stopgap basis. This appears to be the spirit of the stipulation in para 9 of the MACP scheme itself which expressly excludes the adhoc or contractual period of service. Similarly, we can benefit from the order in K. Madhvan & Anr. case, which elaborates on the interpretation of regular service that it is not adhoc or stopgap or temporary basis. In the similar way the Ernakulam Bench s judgment relied upon by learned counsel for the applicant also indicates the same thing. In fact, it has been specifically observed that the effect of the notional appointments will be lost if their eligibility for upgradation under MACP is fixed at a later stage. Even if there are differences in the matters of details and the strict context, the general Page No.14 guiding principle cannot be dichotomous and it has to adopted universally without any discrimination whatsoever. Therefore, if in course of regular service, incumbents have been given notional promotion from any particular date, it is perfectly in order to allow the monetary benefit from the date of actual assumption of charge but to completely disallow the period of service under notional promotion will have the effect of negating the service itself which cannot be a tenable interpretation.
16. Under these factual matrix, we allow the OAs and quash and set aside the impugned letter/order 07.02.2018 and with Circular letter dated 26.02.2018 (Annexure A-1 in OA No.1085/2018), impugned MACPs withdrawal order dated 21.08.2018 in respect of Applicant Nos. 1 and 2, and order dated 16.05.2018 in respect of applicant Nos. 3, order dated 15.05.2018 in respect of applicant No.4 and order dated 16.05.2018 in respect of applicant No.5 in OA No.1085/2018. As well as the orders dated 07-02-2018, 26-02-2018, 14-07-2021, 29-07-2021, 27- 03-2019 & 22-04-2019 in O.A. No.691/2023 and direct the respondents to consider and grant the benefit of 2nd / 3rd financial upgradation to the applicants under MACP taking into account the period served on notional basis also, subject to other procedural requirements. This consideration must be completed within 3 months from the date of receipt of this order.
17. No orders as to cost.
18. All pending M.As, if any, shall be treated as disposed of. The registry will take appropriate action in this regard for removing the M.As.
(Mohan Pyare) (Justice Rajiv Joshi)
Member (A) Member (J)
Sushil/pm