Central Administrative Tribunal - Kolkata
Ramashish Prasad vs M/O Health And Family Welfare on 27 September, 2019
•--=
?r 1
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
O.A. No. 350/1660/2016 Date of order: 27.09.2019
Present: HON'BLE SAAT. MANJULA DAS, MEMBER (J)
HON'BLE NEKKHOMANG NEIHSiAL, MEMBER (A)
Ramashish Prasad
Son of Late Sitaram Mahto
Aged about 58 years
Residing at Kanchan Colony
49/5/3P, Karl Marx Sarani
(C.G.R. Road), Kolkata - 700023.
At present working as Junior Hindi Translator
Group-B under the office of the Central
Food Laboratory, Kolkata - 7000)6.
...Applicant
-Versus-
1. Union of India
Service through the Secretary
Ministry of Health and Family Welfare
Government of India, Nirman Bhawan
New Delhi - 110011.
2. The Secretary
Ministry of Finance
Government of India
Department of Expenditures
Implementation Cell, Trikoot-I
Vikaji Cama Place, R.K, Puram
New Delhi-6.
3. The Director General of Health Services
Mirman Bhawan, New Delhi - 110001.
4. The Chairman/Chair Person
Food Safety and Standards
Authority of India, FDA Bhawan
Kotla Road, New Delhi - 110001.
Jl 2
5. The Director
Central Food Laboratory
3, Kyd Street, Kolkata - 700016.
...Respondents
For the Applicant Mr. P.C. Das & Ms. L Maity
For the Respondents : Mr. R. Haider
ORDER (ORAL)
NEKKHOMANG NEIHSIAL MEMBER (A)> This O.A. was last heard on 27.09.2019 and disposed of.
2. In this O.A., the applicant is asking for the following reliefs:-
"8(a) To quash and/or set aside the impugned speaking order dated 28th July, 2016 issued by Dr. A.K. Adhikari, the Director of Food Safety and Standards Authority of India, Kolkata who is not a competent authority to say whether the present applicant is entitled for benefit of MACP or not.
(b) To quash and/or set aside the impugned office order dated 27.6.2011 issued by the Director, Central Food Laboratory, Kolkata in respect of wrong fixation of MACP Benefit as well as 2nd Financial Upgradation along with Audit Objection by violation of the office memo dated 24th November, 2008 of the Ministry of Finance. . Department of Expenditures (Implementation Cell), New Delhi.
(c) To pass an appropriate order directing upon the respondent authority to fix the appropriate Grade Pay in favour of the applicant at the rate of Rs. 4600 with effect from 1.1.2006 and Rs. 5400 with effect from 16.06.2007 after granting 2nd 3 ACP along with all consequential arrears benefits accordingly in the light of the order of the Government of India, Ministry of Finance, Department of Expenditures, Implementation Cell, New Delhi dated 24.11.2008.
(d) To pass an appropriate order directing upon the respondent authority to fix his pay in the scale of Rs. 15600 to 39100 along with appropriate Grade Pay of Rs. 5400 with effect from 16.06,2007 after granting 2nd ACP along with all consequential benefits."
3. This is a second round of litigation. In the previous O.A. No. 1106 of 2012, this Tribunal vide its order dated 10.03.2014 had observed and directed as under:-
"4. The applicant has relied upon the decision rendered by this Bench in OA 1070 of 2012 (Smt. Manju Dhawan -Vs- Health & Family Welfare) wherein this Bench of the Tribunal in an identical matter directed the respondents to examine the case in the light of the decision rendered in OA 107 of 2011. The respondents, having considered the matter, appropriately have given the benefit of Grade Pay of Rs. 5400/- to the said applicant of that OA. It is submitted by Id. Counsel for the applicant that the present applicant stands on the same footing of Smt. Manju Dhawan. The Ld. Counsel for the respondents submits that the matter has been referred to for consideration in terms of the said order in OA 107 of 2011. In such view of the matter, with the consent of the parties the present OA is disposed of at the admission stage with a direction upon the respondents to examine the grievance , of the applicant in the light of the OM dated 19.9.2013 and order passed in OA 1070 of 2012 dated 8.8.2013 and to pass appropriate order within a period of three months from this date. If the applicant is found entitled and similarly circumstanced to that of Smt. Manju Dhawan, appropriate benefit be given within a further period of one month."
:
4
4. In compliance of the aforesaid order of this Tribunal, the respondents issued speaking order vide their order No.3-15/2016-103 dated 28.07.2016 rejecting the case of the applicant on the ground that the order passed in the case of Smt. Manju Dhawan Vs. Health & Family Welfare is not applicable in the case of the applicant and he has been given benefit of MACP as per the instructions of the Government of India applicable in such cases.
In the present case, apart from the points of argument, the applicant has brought in the adjudication of the CAT, Ernakulam Bench in O.A. No. 107 of 2011 (T.P. Leena Vs. Union of India and Ors.). We have carefully gone through this adjudication of the Tribunal. The Co ordinate Bench of CAT had allowed the said O.A. vide its order dated 27.09.201 Ion the ground of Clause 5 of DOP&T's OM dated 19.05.2009 which was reproduced therein as follows:
"5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPs."
Aaaa^aaaa^ 5 Finally the Co-ordinate Bench had passed the following order:
"Thus, w.e.f. 01-09-2008 the pay scale of the applicant shall be 9,300-34,800 with grade pay of Rs. 4,800/- and w.e.f. 30-03-2010 the pay scale and grade pay of the applicant should be Rs. 9,300-34,800 and Rs. 5,400 respectively. It is the same which has been claimed by the applicant and this is the same which has been observed by the internal audit as well, vide MA 1 (para 7). The claim of the applicant is not based on the pay scale applicable to the Central Secretariat Services but one purely within the ambit and scope of the provisions of the MACP including para 5 of the scheme, which is applicable to the facts and circumstance of this case."
This particular order of the CAT, Ernakulam Bench had been challenged before the Hon'ble High Court of Kerala at Ernakulam vide OP (CAT) No. 467 of 2012 (Z). After detailed examination, the Hon'ble Kerala High Court, vide its order dated 21.06.2012 had upheld the order of the CAT, Ernakulam Bench dated 27.09.2011 on the same principle with the following remarks:-
"For the foregoing reasons, we find no jurisdictional or legal infirmity in the order passed by the Tribunal in holding the respondent entitled to first financial upgradation in the pay scale Rs. 9300-34800 with the grade pay of Rs. 4800/- w.e.f. 1.9.2008 and grade pay of Rs. 5400/- in the same pay scale w.e.f. 30.3.2010. Consequently, there is no reason for interfering with the order to grant arrears pursuant to such fixation of pay to the respondent as well. In the circumstances, the application is liable to fail. Accordingly, it is dismissed."
yAAAAV''/ 6 The issue was challenged in the Hon'ble Supreme Court of India vide Special Leave to Appeal (Civil) No. (s) 28536/2012 and the same had been dismissed by the Hon'ble Apex Court vide its order dated 15.10.2012.
7. We have carefully gone through the speaking order of the respondents dated 28.07.2016. Respondent authorities did acknowledge the judgment of the CAL Ernakulam Bench (supra). In para 5 of speaking order, 2 they have also stated that the applicant is not similarly situated with Smt. Manju Dhawan (O.A. No. 1070/2012) read with order in OA 107/2011. Thereafter, they brought in the clarification issued by the DOP8J (FAZ No. 26) wherein the DOP8J has affirmed that the benefits of 1st and 2nd financial upgradation under ACP shall be considered/allowed in the Grade Pays of Rs. 4600 and Rs. 4800 in PB-2, as the case may be due between 01.01.2006 and 31.08.2008 in respect of isolated cases in terms of para 5 of Annexure-1 of MACPs OM dated 19.05.2009.
8. Since respondent authorities has not elaborated as to how the case of Smt. Manju Dhawan (supra) is not applicable in case of the applicant in the present OA, we have looked at the case of Smt. Manju Dhawan V fW<AAAAAr 7 adjudicated in O.A. No. 1070/2012 dated 08.08.2013. It is observed that the applicant in that O.A. was asking for Grade Pay of Rs. 4600/- w.e.f. 01.01.2006 and Grade Pay of Rs. 5400/- w.e.f. 01.05.2007after granting 2nd AGP. The Tribunal however, had disposed of the said O.A. by directing the respondents to issue speaking; order within a period of three months from fhe date of the communication of the order in the light of the decision •\ § taken by Ernakulam Bench of Central Administrative £1 / ' Tribunal in O.A. No. 107 .of 2011. Thus it is clear that the case of the applicant hinges on the decision of CAT, Ernakulam Bench in O.A. No. 107 of 2011 dated 27.09.2011. The detailed order of CAT, Ernakulam Bench is however, based on Clause 5 of MACP Scheme (supra). In this O.A., applicant's grievance is not relaYing to MACP. It is relating to the granting of ACP, the 1st ACP on 01.01.2006 .and 2nd ACP on 16.08.2007. On perusal of the speaking order28.07.20V6f it is found that the respondent authorities have rightly granted the 1st ACP on 09.08.1999, that is, after completion of 12 years but with effect from the operative date of ACP Scheme.
9. They also stated to have granted the 2nd financial upgradation under ACP on 16.06.2007 i.e. on completion MAAj (r 8 of 24 years. With the implementation of 6th CPC w.e.f. 01.09.2008, the applicant has been granted Grade Pay of Rs. 4600/- nationally w.e.f. 01.01.2006. This followed by another 2nd upgradation under MACP w.e.f. 01.09.2008 and 3rd financial upgradation under MACP in the Grade Pay of Rs. 5400/- w.e.f. 16.06.2013.
10. As stated above, the basic grievance of the applicant is that he should be granted the 1st ACP in the Grade Pay of Rs. 4600/- w.e.f. 01.01.2006. This is stated to have been done by the respondents in their speaking order as referred to above. His remaining grievance is that he should be granted the 2nd ACP in the Grade Pay of Rs. 5400/- w.e.f. 16.08.2007, that is, on completion of 24 years of service. In this connection, the applicant has submitted copy of Office Memorandum of. Ministry of Finance, Department of Expenditure dated 24.11.2008 and its Corrigendum dated 27.11.2008 wherein the pay scales of Central Secretariat Official Language Service (CSOLS) cadre has been extended to the various subordinate offices of the Central Government consequent upon the implementation of. the recommendation of the Sixth CPC as under:-
V>v/ Kb 9 \ Designation Recommended Corresponding Pay Band pay scale & Grade Pay Pay Band Grade Pay Jr. Translator 6500-10500 PB-2 4200 Sr. Translator 7450-11500 PB-2 4600 Asstt. Director (OL) 8000-13500 PB-3 5400 Dy. Director (OL] 10000-13500 PB-3 6100 Jr. Director (OL) 12000-16500 PB-3 6600 Director (OL) 14300-18300 PB-3 7600
11. It would be seen from the above that the pay scales of these Official Language posts as extended to various subordinate offices has the Grade Pays of 4200/-, 4600/-, 5400/- etc. The logic of his submission is that since the pay scales have been revised, the Grade Pay w.e.f. 01.01.2006 should be 4600/-, which the respondent authorities claimed to have granted to him from the same date. Accordingly, his next upgradation on completion of 24 years of service on 16.06.2007 under AGP should be with Grade Pay of Rs. 5400/-. The respondent authorities have given him the Grade Pay of Rs. 4800/- on 01.09.2008, i which is found not falling in any line of the any existing t orders.
<
12. Keeping in view of the above, it is established that the applicant is entitled for 2nd financial upgradation i under AGP Scheme w.e.f. 16.08.2007. As on this date, the Scheme of MACP was yet to be operational. Accordingly, i '' ~v> 10 the respondent authorities are hereby directed to examine once again whether this upgradation should be with Grade Pay of Rs. 5400/- from 16.06.2007 as notified by the Ministry of Finance in the above Office Memorandum dated 24.11.2008 for pay scales of the Official Language posts in various subordinate offices of the Central Government. This exercise may be completed by the respondent authorities within a period of three months XS | from the date of receipt of copy of this order.
13. O.A. is disposed of to the above extent. There shall be no order as to costs.
' \
(NEKKHOMANG'NBHSIAL) (MANJULA DAS)
MEMBER (A) MEMBER (J)
PB