Central Administrative Tribunal - Ernakulam
N.K. Gopinathan vs Union Of India on 6 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 870 of 2011
Original Application No. 873 of 2011
Thursday, the 6th day of September, 2012
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
1. Original Application No. 870 of 2011 -
N.K. Gopinathan, son of the late Krishnan,
aged 61 years, Joint Deputy Director (Retired),
Intelligence Bureau, residing at Naduvalappil House,
East Kombara, PO Irinjalakuda, Thrissur District,
Kerala, Pin-680 121. ..... Applicant
(By Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of
India, Ministry of Home Affairs, North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance,
North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal,
Public Grievances & Pensions, North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs,
Government of India, North Block, New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs,
Government of India, North Block, New Delhi - 110 001.
6. The Pay & Accounts Officer (IB), Intelligence Bureau,
Headquarters, AGCR Building, New Delhi-110 002.
7. The Pay & Accounts Officer, Central Pension Accounting Office,
Government of India, Trikoot-2, Bhikaji Cama Place, New Delhi-
110 002. ..... Respondents
(By Advocate - Mr. Millu Dandapani, ACGSC)
2. Original Application No. 873 of 2011 -
Allath Sundaran, son of the late M.G. Menon,
aged 61 years, Assistant Director (Retired),
Intelligence Bureau, resding at Allath House,
Harisree, Shirdi Avenue, Kolazhy PO, Thrissur District,
Kerala Pin- 680 010. ..... Applicant
(By Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of
India, Ministry of Home Affairs, North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance,
North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal,
Public Grievances & Pensions, North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs,
Government of India, North Block, New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs,
Government of India, North Block, New Delhi - 110 001.
6. The Additional Director, Subsidiary Intelligence Bureau,
Ministry of Home Affairs, 25 Infantry Road, Bangalore-560 002.
7. The Pay & Accounts Officer (IB), Intelligence Bureau,
Headquarters, AGCR Building, New Delhi-110 002.
8. The Pay & Accounts Officer, Central Pension Accounting Office,
Government of India, Trikoot-2, Bhikaji Cama Place, New Delhi-
110 002. ..... Respondents
(By Advocate - Mr. Millu Dandapani, ACGSC)
These applications having been heard on 22.08.2012, the Tribunal on
06.09.2012 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member-
Having common facts and issues, these OAs were heard together and are disposed of by this common order.
2. The applicant in OA No. 870 of 2011 commenced service as Personal Assistant (Stenographer Grade-II) under the respondents on 15.3.1971. He was promoted as Section Officer on 7.12.1988. He was granted 2nd financial up-gradation w.e.f. 9.8.1999 in the pay scale of Rs. 10,000-15,200/-. He was promoted as Assistant Director (NP) in the pay scale of Rs. 10,000-15,200/- in October, 2006. He was granted non-functional pay scale of Rs. 8000- 13,500/- w.e.f. 1.1.1996 notionally and on actual basis from 3.10.2003 vide order dated 31.12.2009. The 3rd financial up-gradation from the grade pay of Rs. 6,600/- to Rs. 7,600/- in PB-3 15600-39,100/- w.e.f. 1.9.2008 was granted vide order dated 14.1.2010. Further he was promoted as Joint Director on 15.4.2010. The order of the 3rd financial up-gradation was kept in abeyance vide order dated 21.4.2010. Hence, no pay fixation was granted. He retired on 31.5.2010. His representation for benefits of 3rd financial up- gradation was replied to vide Annexure A6 dated 15.6.2011 stating that the desired clarification is still awaited from the respondents 2 & 3. Aggrieved he has filed this OA for the following reliefs:-
"a. Quash Annexure A4 order issued by the 5th respondent keeping in abeyance the Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and pensionary benefits accordingly and to disburse him the arrears thereof.
d. To grant such other reliefs as may be prayed for and the court
may deem fit to grant, and
e. Grant the cost of this Original Application."
3. The applicant in OA No. 873/11 commenced service under the respondents as Personal Assistant (Steno Gr.II) on 5.9.1974. He was promoted as Section Officer on 8.7.1994 with notional effect from 26.2.1992. He was granted the 2nd financial up-gradation in the pay scale of Rs. 10,000-15,200/- w.e.f. 9.8.1999. He was granted non-functional pay scale of Rs. 8000-13,500/- w.e.f. 1.1.1996 vide order dated 31.12.2009. He was granted the 3rd financial up-gradation under the MACPs vide order dated 14.1.2010. He retired on 30.4.2010. His pension was calculated on the basis of the 3rd up-gradation as per order dated 7.4.2010. Vide order dated 21.4.2010 the order of the 3rd up-gradation was kept in abeyance. His pension was revised on the basis of Grade Pay of Rs. 6600/- only and an amount of Rs. 56,364/- was adjusted from his gratuity amount. Aggrieved he has filed this OA for the following relief:-
"a. Quash Annexure A6 order issued by the 5th respondent keeping in abeyance the Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and pensionary benefits accordingly and to disburse him the arrears thereof. d. Declare that no amount is liable to be withheld/recovered from the applicant's pensionary benefits on account of the pay granted to him under the third financial upgradation under the MACP scheme.
e. Direct the respondents to reimburse the amount withheld/recovered from the applicant from his pensionary benefits consequent to the revision and refixation of his pensionary benefits on the basis of his pre-revised pay.
f. Declare that the applicant is entitled to get the service rendered as Private Secretary counted towards the eligibility for the grant of the non-functional pay with effect from 1.1.1996 and that he is entitled to get the non-functional pay with effect from 1.1.1996. g. Direct the respondent to grant the applicant the non-functional pay with effect from 1.1.1996 and to refix his pay accordingly with effect from 1.1.1996.
h. To grant such other reliefs as may be prayed for and the court
may deem fit to grant, and
i. Grant the cost of this Original Application."
4. The applicants contended that despite passage of two years no clarification is received as to his 3rd financial up-gradation under MACP scheme and no orders have been issued on the financial up-gradation. The delay for which no reasons have been put forwarded has caused monetary loss to the applicants. It is not stated what clarification is being sought from the Ministry of Finance and what is the impediment in receiving the said clarification. The benefits of 3rd financial up-gradation has been denied only to the category of Assistant Director (NP) who are promotees from the cadre of Section Officers. The Assistant Directors (Staff Officer) who are promoted from the category of Private Secretary under the respondents have already been disbursed the entire monetary benefits under the financial up- gradation scheme in both ACP and MACP. No recovery can be made unless payment is made on account of the fraud or misrepresentation on the part of the employee, it was contended by the applicant in OA 873/2011.
5. In the reply statement the respondents submitted that the grant of non- functional scale of Rs. 8000-13,500/- (revised grade pay of Rs. 5400/- in PB-III) to the applicants was neither by way of promotion nor ACP/MACP. However, as per the provisions of the MACP scheme the benefits given under non-functional scale on completion of four years of regular service in the grade of SO/PS w.e.f. 1.1.1996 (notional basis) and actual basis w.e.f.
3.10.2003 have been counted as one financial up-gradation in terms of paragraph 8.1 of the MACP Scheme. The respondents admitted that the applicants were never given the grade pay of Rs. 5400/- as the non-functional pay of Rs. 8000-13,500/- which was granted to them on 1.1.1996 long before the introduction of the concept of grade pay by the VIth Central Pay Commission. It was believed by them that the 2nd financial up-gradation to the applicants would be in the grade pay of Rs. 6,600/-. The clarifications at Annexures R2 and R3 are to the effect that Direct Recruit (Assistant)/Direct Recruit (Grade-C Stenographers) who has got non-functional grade in the grade pay of Rs. 5400/- would only be entitled for 3rd financial up-gradation in the immediate grade pay of Rs. 6,600/- on completion of 30 years of completion of service or on completion of 10 years of stagnation in a single grade pay whichever is earlier. Therefore, it was decided that grant of financial up-gradation under the MACP scheme to the applicants and similarly placed officers to the grade pay of Rs. 7,600/- be kept in abeyance and a clarification from the government may be sought as to whether the same is admissible as 3rd financial up-gradation in the case of the applicants who got the grade pay of Rs. 5400/- as non-functional scale. As the applicant in OA No. 870/11 was retiring on 31st May, 2010 his pensionary benefits were calculated on the basis of the basic pay admissible in the grade pay of Rs. 6,600/- and the financial up-gradation under the MACP scheme to the grade pay of Rs. 7,600/- is denied to him by way of clarification from the DOP&T. However, the respondents held that the instructions at Annexures R3 and R4 are applicable only to those direct recruit Assistants/Grade-III Stenographers who got non-functional grade with grade pay of Rs. 5400/- on or after 1.1.2006 as the concept of grade pay was introduced in the VIth Central Pay Commission effective from 1.1.2006 and not to the applicant who got the non-functional grade pay of Rs. 8000-13,500/- well before 1.1.2006. In the case of Assistant Directors (Staff Officer) orders granting 3rd financial up-gradation with grade pay of Rs. 7,600/- were issued in respect of four officers on 23rd November, 2009 and their pay and allowances were also fixed much before the issue of Annexure R3. Once the clarification is received the admissible pensionary benefits would be calculated accordingly and the accrued benefits would be restored. Pending government's decision, the overpaid amount was adjusted in the retirement benefit of the applicant in OA No. 873 of 2011.
6. In the rejoinder statements the applicants submitted that clause-VI of the MACP scheme is applicable to their case. They are entitled to 3rd financial up- gradation under the MACP scheme to the next higher pay band of Rs. 15,600-39,100/- with grade pay of Rs. 7,600/- which has been rightly sanctioned to them by Annexure A3 as they were granted 2nd financial up- gradation under the ACP scheme in the pre-revised pay scale of Rs. 10,000- 15,200/- (PB-III Rs. 15,600-39,100/- with grade pay of Rs. 6,600/-). The order dated 31.12.2009 granting non-functional pay scale of Rs. 8,000- 15,500/- (pre-revised) to the Section Officers/Private Secretaries of the Intelligence Bureau has nothing to do with the VIth Central Pay Commission recommendations. The MACP scheme was introduced by the respondents by OM dated 19.5.2009 while the non-functional pay was introduced by order dated 31.12.2009 i.e. subsequent to the introduction of the MACP scheme. The Assistant Directors (NP) who are promoted from Section Officers in as far as they are not given 3rd financial up-gradation under the MACP scheme which was granted to the Assistant Directors (Staff Officers) who are promoted from Private Secretaries. The conditions listed in the order dated 31.12.2009 regarding non-functional scale is equally applicable to both Section Officers and Private Secretaries. The reply statement of the respondents is vague on the issue as to on what date the respondents have sought the clarification and what is the hurdle in getting it. No reasons have been given for the inordinate delay in getting the clarification.
7. We have heard the learned counsel for the parties and perused the records.
8. The non-functional pay of Rs. 8,000-13,500/- was granted to the applicants w.e.f 1.1.1996. They were granted the 2nd financial up-gradation under the ACP scheme in the pay scale of Rs. 10,000-15,200/- w.e.f. 9.8.1999. The pay scale of Rs. 10,000-15,200/- was replaced with PB-III Rs. 15,600-39,100/- with grade pay of Rs. 6,600/- w.e.f. 1.1.2006. Therefore, the respondents granted them the 3rd financial up-gradation under the MACP scheme from the grade pay of Rs. 6,600/- to Rs. 7,600/- in the pay band of Rs. 15,600-39,100/- w.e.f. 1.9.2008. The order of 3rd financial up-gradation was kept in abeyance on the basis of clarifications dated 12.1.2010 and 12.4.2010 at Annexures R3 and R4 respectively. They clarify that in terms of paragraph 8.1 of the MACP scheme direct recruit Assistants/Stenographers Grade-C who got non-functional grade pay of Rs. 5400/- would be entitled to 3rd financial up-gradation in the immediate higher grade pay of Rs. 6,600/- on completion of 30 years of service or on completion of 10 years of stagnation service in a single grade pay whichever is earlier. Paragraph 8.1 of the MACP scheme dated 19.5.2009 is reproduced as under:-
"8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs. 5400 is now in two pay bands viz. PB-2 and PB-3. The grade pay of Rs. 5400 in PB-2 and Rs. 5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."
As per paragraph 8.1 above the grade pay of Rs. 5400/- in PB-II and PB-III should be treated as separate grade pays for the purpose of up-gradation under the MACP. Paragraph 8.1 and clarification dated 12.4.2010 pertain to grade pay of Rs. 5400/-. The respondents have admitted that the applicants never got the grade pay of Rs. 5400/-. Therefore, Annexures R3 & R4 dated 12.1.2010 and 12.4.2010 respectively do not have application to the cases of the applicants in granting the 3rd financial up-gradation. Thus, there is no factual or legal basis for keeping the order of 14.1.2010 in abeyance granting the 3rd financial up-gradation to the applicants.
9. As per the statement of the respondents orders granting 3rd financial up-gradation with grade pay of Rs. 7,600/- to Assistant Directors (Staff Officer) was issued in respect of four officers and their pay and allowances were also fixed before the issuance of Annexure R3. The clarification is effective not from the date of its issue but from the date of the order it clarifies. The clarification elucidates the position that existed earlier. Seen from this angle the clarification at Annexures R3 and R4 whether right or wrong should apply to all including the Assistant Directors (Staff Officer). The clarifications cannot be restricted in application to Assistant Directors (NP) alone, as is the case here which is discrimination.
10. The non-functional scale of Rs. 8000-13,500/- (revised pay scale Rs. 13,600-39,100/- with grade pay of Rs. 5400/-) granted with effect from 1.1.1996 was neither by way of promotion nor ACP/MACP. Therefore, the consequent financial up-gradation of the applicants w.e.f. 9.8.1999 was in the equivalent Grade Pay of Rs. 6,600/- in PB-III. Therefore, the 3rd financial up-gradation of the applicant in the grade pay of Rs. 7,600/- in PB- III was rightly given vide order dated 14.1.2010. Paragraph 6 of the MACP scheme reads as under:-
"6. In the case of all the employees granted financial upgradations under ACPS till 01.01.2006, their revised pay will be fixed with reference to the pay scale granted to them under the ACPS."
11. As rightly stated by the applicants their case is covered by paragraph 6 of the MACP scheme and not by paragraph 8.1 of the MACP scheme. Paragraph 8.1 does not come into play in the instant cases. The non- functional pay was granted by order dated 31.12.2009 with retrospective effect from 1.1.1996. Since 2010, the clarifications sought by the respondents are pending consideration in the Ministry. The impugned orders do not state any reason whatsoever for keeping in abeyance the order of granting 3rd financial up-gradation to the applicant along with others. The reply statement of the respondents do not give any reasons as to the inordinate delay in getting the clarifications sought by them. The lethargy on the part of the respondents in getting the desired clarification, in the light of the submissions made by the respondents themselves should not be allowed to cause delay in granting justice to the applicants.
12. In the light of the discussions above the Original Applications are allowed. The impugned order dated 21.4.2010 is set aside. It is declared that the applicants are entitled to get the benefits of 3rd financial up-gradation under the MACP scheme granted to them as per Annexure A3 in OA 870/11 and Annexure A4 in OA 873/11 and to get their pay and pension re-fixed accordingly. The respondents are directed to grant the applicants the benefits of 3rd financial up-gradation and to revise and re-fix their pay and pensionary benefits accordingly and disburse them the arrears thereof and to refund the withheld amount of Rs. 56,364/- to the applicant in OA No. 873/11 within a period of sixty days from the date of receipt of a copy of this order. No order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"