Central Administrative Tribunal - Chandigarh
Tarsem Singh Employees No. 502855/Lms ... vs Union Of India Through Chief ... on 28 January, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 19.01.2015)
O.A No. 060/00326/2014 Date of decision -28.01.2015.
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. RAJWANT SANDHU, MEMBER (A)
1. Tarsem Singh employees no. 502855/LMS S/o Sh. Stapal Singh, aged 44 years, R/o 409/4, Ghuman Nagar-B, Patiala (Punjab).
2. Surya Narain S/o Ram Kewal, employee No. 502685, working as TM/FTR-III, in TMS shop.
3. Darshan Singh S/o Nachhattar Singh, employee No. 502680, working as TM/FTR-III, in TMS shop.
4. Sewa Singh S/o Matwal Singh, employee No. 503955, working as TM/FTR-III, in TMS shop.
5. Shamsher Singh s/o Harchand Singh, employee no.503836, working as TM/FTR-III, in TMS shop.
6. Gurcharan Singh S/o Rattan Singh, employee no. 504479, working as TM/FTR-III, in TMS shop.
7. Vikas Bhalla S/o Tribhawan Bhalla, employee No. 504199, working as TM/FTR-III, in TMS shop.
8. Bhag Singh S/o Bhopal Singh, employee no. 400477, working as TM/FTR-III, in TMS shop.
9. Mukh Lal Ram S/o Pati Raj Ram, employee no. 504260, working as TM/FTR-III, in TMS shop.
10. Sunder Singh S/o Bhopal Singh, employee No.503664, working as TM/FTR-III, in TMS shop.
11. Sarabjit Singh S/o Nasib Singh, employee no. 502678, working as TM/FTR-III, in TMS shop.
12. Manbar Singh S/o Narain Singh, employee no. 501359, working as TM/FTR-III, in TMS shop.
13. Gurtej Singh S/o Bachan Singh, employee no. 400400, working as TM/FTR-III, in TMS shop.
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169. Pargat Singh S/o Sh. Gurmukh Singh, employee No. 502719, working as Tech. III in SSS.
170. Balwinder Singh S/o Jai Ram, employee No. 503550, working as Tech-III in SSS.
171. Yogender Kumar Yadav S/o Nagrat, employe No. 503179, working as Tech III in BS.
172. R.K.T. S/o Shyam Lal, employee No. 504224, working as MCT-III in LMS.
173. Dharamvir Singh S/o Darshan Singh, employee No. 503970, working as MCT III in LMS.
174. Davinder Kumar S/o Roshan Lal, employee No. 504435, working as TM/FTR in TMS.
175. Parveen Kumari S/o Lachhiam Dass, employee No. 504438, working as TM/FTR III in CS.
176. Kashama Kwatra S/o Deepak Raj, employee No. 504463, working as TM/FTR-III in CS.
177. Amrjit Singh S/o Karnail Singh, employee No. 504427, working as G/FTR in HMS.
All working under the respondents.
Applicants
BY ADVOCATE: SH. Karnail Singh.
VERSUS
1. Union of India through Chief Administrative Officer (R) Diesel Modernization Works Patiala, Punjab.
2. Chief Personnel Officer Diesel Modernization Works Patiala, Punjab.
RESPONDENTS
BY ADVOCATE: SH.Yogesh Putney
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The applicant has filed the present O.A seeking the following relief:-
8.2. that this Honble Tribunal is humbly prayed to quash the impugned order dated 14.11.2009 (Annexure A-4) granted the second ACP benefit contrary to the ACP Scheme.
8.3. That the Honble Tribunal please be granted the second financial benefit under MACPs scheme in scale of Rs. 5200-20200 with grade pay of Rs. 2400/- w.e.f. the date of completion of requisite service of the respective applicant as shown in the service particulars. (Annexure A-1, A-2 & A-3).
8.4. That this Honble Tribunal is graciously pleased to grant the arrear with 12% interest as due.
2. The factual scenario, which is almost undisputed is as follows. 177 applicants have filed the O.A jointly, being a common cause of action, feeling aggrieved against the order of the respondents whereby they have been denied the financial benefit under the ACP and Modified Assured Career Progression Scheme (in short MACP). Initially, the applicants were appointed as Khalasi/technicians with respondent department in the pay scale of Rs. 5200-20200 +G.P of Rs. 1800/- on different dates. They were promoted to the post of technicians grade III in the pay band of Rs. 5200-20200 with G.P of Rs. 1900/-. It is the case of the applicants that they have not been granted the grade pay in the hierarchy of pay band which is inviolation of para 7 of the ACP Scheme. They have also placed reliance upon the order dated 07.10.2004 vide which the respondents had granted the benefit to the similarly situated persons and their pay was fixed in the Grade Pay of Rs. 2400/- whereas the applicants have been granted the grade pay of Rs. 2000/- only which is illegal. Hence, the present O.A.
3. Pursuant to notice the respondents contested the claim of the applicant by filing a detailed reply wherein they have taken two preliminary objections. Firstly, that since the applicants have not approached this Tribunal with clean hands and twisted the facts in a way to prejudice the mind of the court, therefore, the O.A is to be dismissed. Reliance in support of plea has been placed upon the judgment passed by the Honble Apex Court in case of Dalip Singh Vs. State of U.P. & Ors. , 2010(2) SCC 114. Secondly, O.A is barred by limitation and may be dismissed on the ground of delay and latches. By way of present O.A, the applicants have challenged the order dated 14.11.2009 by filing the same in year 2014, that is almost after the 5 years, which is not permissible under Section 21 of the Administrative Tribunals Act, 1985, therefore, petition deserves to be dismissed being hopelessly barred by limitation. Reliance in support of the plea is placed upon the judgment passed the Honble Apex Court in case of Union of India & Ors. Versus M.K.Sarkar (2010 (2) S.C.C. Page 58). It is also submitted that the applicants tried to confuse the issue by placing reliance upon the part of ACP Scheme and Part of MACP Scheme ignoring the other relevant elements. It is also submitted that as per the MACP Scheme, effective from 01.09.2008, the applicants were granted the 1st Financial Upgradation vide order dated 14.11.2009. As earlier, they were granted the promotion, therefore, they are not entitled for benefit under ACP Scheme as the same was replaced by MACP Scheme w.e.f. 01.09.2008. It is also submitted that since the applicants were getting the G.P of Rs. 1800/- and Rs. 1900/- respectively, therefore, they were granted the next higher grade pay of Rs. 1900 & Rs. 2000/- respectively as per their entitlement. It is also submitted that the order dated 07.10.2004 (Annexure A-5), upon which the applicants are placing reliance is entirely different as in that case those persons did not get the promotion due to which they got financial upgradation which is not their case. In the present case, since the applicants have got promotion under ACP Scheme, which was in force at that time, and subsequent, on completion of minimum tenure they were granted the first financial upgradation under the MACP Scheme, therefore, the O.A be dismissed.
4. The applicants have also filed a rejoinder contradicting the averments made in the written statement.
5. We have heard Sh. Karnail Singh, learned counsel for the applicants and Sh. Yogesh Putney, learned counsel for the respondents.
6. Sh. Karnail Singh, learned counsel for the applicants vehemently argued that the impugned order dated 14.11.2009 granting the first ACP in the G.P of Rs. 1800/- and of Rs. 1900/- is totally illegal, arbitrary and contrary to the ACP Scheme. Therefore, same is liable to be set aside. To elaborate his arguments, he submitted that the applicants are entitled to be granted the financial upgradation in the grade pay of hierarchy as granted to the similarly situated persons as reflected in Annexure A-5. He also submitted that this court has already granted similar benefit of financial upgradation in hierarchical grade pay in the case of Raj Pal Vs. U.O.I (O.A No. 1038/CH/2010) as upheld by the Honble Supreme Court.
7. Per contra, Sh. Yogesh Putney, learned counsel for the respondents started from where the applicants stopped. He submitted that in terms of the MACP Scheme, the benefit is to be granted in terms of Section 1 part A of the First Schedule of the Railway Service (Revised Pay) Rules, 2008 of revised pay structure for posts carrying scales in Group D, C, & B. He submitted in terms of clause of 3 of the letter dated 10.06.2009 issued by the Railway Board under the subject of Recommendations of Sixth Central Pay Commission-Modified Assured Career Progression Scheme (MACPs) for Railway Employees, the Scheme is in supersession of previous ACP Scheme and clarification issued there under and as such same was made effective from 01.09.2008 and by virtue of above communication, the employees are to be placed in the Pay Band and Grade Pay, as per the Section 1, part A of the First Schedule of the Railways Services (Revised Pay) Rules, 2008. In terms of the above, the applicants were granted the 1st Financial upgradation under the MACP Scheme. He submitted the judgment in case of Raj Pal (supra) is not applicable to the present case as a finding has been recorded by the court that the post carried by the applicant therein was isolated one and, thereafter, instructions dated 19.08.2013 were issued by the Nodal Ministry DoPT, clarifying that the judgement in case of Raj Pal (supra) cant be treated as precedent, therefore, it does not help the applicants as it is non-applicable. Lastly, he argued that the present O.A is barred by limitation. In support of his arguments, he placed reliance upon the judgment passed by the Honble Supreme Court in case of E. Parmasivan Vs. Union of India, 2003(12) SCC 270, C.Jacob Vs. Director of Geology & Min. Indus. Est and Anr., 2009(1) RSJ 255 and Director of Settlement & Ors. Vs. D.Ram Prakash , 2002(3) SCT 657. He also placed reliance upon the judgment passed by the Honble Jurisdictional High Court in case of Bal Krishan Vs. State of Punjab & Ors. 2013(2) RSJ 18.
8. We have given our thoughtful consideration to the entire matter and perused the pleadings as available on record, with the able assistance of the counsel for the parties.
9. A conjective perusal of the pleadings of parties makes it clear that the applicants were initially appointed as Khalasi/technician and subsequently, were promoted to the posts of technicians grade III in the pay band of Rs. 5200-20200 with grade pay of Rs. 1900/- . Reason behind ACP Scheme, which was made applicable w.e.f. 01.10.1999, was that the persons who were not promoted and were facing stagnation on a particular post were to be granted the financial upgradations. The said scheme was superseded by MACP Scheme which was made applicable from 01.09.2008. It was also clarified by the Railway Board vide its circular dated 28.10.2010 that financial upgradation under the MACP scheme shall be allowed in the immediate next higher pay grade in the hierarchy of recommended revised pay bands as given in Railway Services (Revised Pay) Rules, 2008. The perusal of the MACP Scheme makes it clear that on enforcement of new/modified Scheme, the earlier ACP lost its relevance and the benefits available under the new MACP Scheme were to be extended. The respondents have categorically stated in their reply that the applicants were granted the benefit of 1st MACP vide letter dated 14.11.2009 by placing them in another Grade Pay as per the revised pay structure, since they did not get any promotion. Since, the ACP scheme stood superseded, therefore, the submission of the learned counsels for the applicants that they are to be granted the 2nd financial upgradation that too in the grade of hierarchy, does not arise. After grant of 1st promotion, the applicants became entitled for grant of financial upgradations under MACP on completion of 10, 20 & 30 years of service, therefore, the applicants were granted the 1st Financial upgradation w.e.f. 01.09.2008 that too in next grade pay only, therefore, they cannot lodge a claim which is contrary to the MACP Scheme and Railway Service (Revised pay) Rules, 2008. Accordingly, we do not find any fault with the impugned order. Even the case of the persons, annexed as Annexure A-5 by the applicants, does not help the applicants as in that case, the employees were granted the financial upgradation under ACP Scheme. And the reliance placed by the applicants on case of Raj Pal (supra) is also not applicable to the present case as, there, are specific findings recorded by the court that the post of the applicant, therein, was an isolated post for which reason, he was given the benefit and subsequently, instructions were also issued by the DoPT regarding that judgment that same will not be treated as a precedent and now in connected matters for grant of similar benefit of judgment has been stayed by the higher court.
10. In the backdrop of above discussion, this Original Application turns out to be devoid of any merit and is dismissed.
11. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Dated: 28.01.2015 `jk ??
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1O.A No. 060/00326/2014