Central Administrative Tribunal - Mumbai
Satish Dhandeo Karamkar vs M/O Defence on 20 March, 2019
@ wo I OF No. Si Lens CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAL ORIGINAL APPLICATION No S11/2015 Dated this Wednesday, the 20" day of March, 2019 CORAM: DR. BHAGWAN SAHAIL MEMBER (ADMINISTRATIVE) (All RAVINDER KAUR, MEMBER (IUDICIAL) Shri Satish Dhandeo Karamkar, Age : 54 years, Designation ; Fireman -- 2 1035/FB, R/o Plot No.23, Navneet Nagar, Amaravati Road, Nagpur 440 023. Shri Moreshwar Domaji Meshram, Age : 48 Yrs., Designation : Fireman-21042/FB, Rio Plot No.79, Smurt Nagar, Opp. Wadi Police Station, Duttawadi, Nagpur 440 023, Shri Ashok Kishan Kispotta, Age : 44 yrs., Designation Leading Fireman -- 2081 L/FB, R/o Ou No.9/42/2, Type- TL, Ordnance Factory Ambhjhari Estate, Amaravati Road, Dist. : Nagpur 440 021. Applicants are employees of Ordnance Factory Ambhajhari, Amravati Road, Dist : Nagpur 440 021.)... Applicants (By Advocate Shri M.G.Burde) 1. 9 Spd VERSUS The Union of India, represented through The Secretary, Department of Defence Production, Ministry of Deferice, South Block, New Delhi 110 001. The D.G.0.F, / Chairman, Ordnance Factory Board, lO-A, §.K Bose Road, Kolkata 700 001. The General Manager, Ordnance Factory Ambajhari, Amaravati Road, Dist. Nagpur 440 021. ..., Respendents (By Advocates Ms. Sushina) Order reserved on 24.01.2019 Order delivered on 20.03.2019 ba OA No Sil 30ks ORDER
Per: Dr. Bhagwan Sahai, Member (Administrative) Shri Satish Dhandea Karamkar, Fireman; Shri Moreshwar Domaji Meshram, Fireman and Shri Ashok Kishan Kispotta, Leading Fireman Working at Ordnance actery, Ambaihari, > Amaravati Read, Nagpur have filed t 5 his OA on 08.09.2015 seeking striking down and setting {a} impugned order dated 20.05.2015 issued by respondent No.3 granting third financial upgradation under Modified Assured Career Progression (MACP} Scheme to the applicant No.i with lower Grade Pay and accordingly fixing of his pay (Annex A-1}, ib} order dated 03.02.2014 of respondent Na. (Annex-A-2Z} turning down their representations to grant benefit of MACP in G hierarchical promotion grade, and {Cc} order dated 23.01.2011 (Annex-A~4} granting first and second financial upgradation with Grade Pay of Rs.2,000/- effective from G1.09,2008 te all the applicants and fixation of their pay accordingly; and th $ of we (a} seeking direction to the respondents © GOLEM GG OOOOOCOCOOOOOOOOOMMMMLLLLLLLLELLL EOD 3 O4 No. SHle2073 to grant them appropriate grade pay. with hierarchical promotion posts, and to -pay a rrears of ACP / MACP along with interest at the rate of 128 or any other reasenable rate of interest till the amount of arrears is paid te them and also cost of these proceedings.
a. Facts of the case :-
2(a). The applicants have stated that the x respondent No.3 i.e. General M R wo ry anage 'Ordnance Pactory, Ambatjhari, Amaravati Road, Nagpur granted third financial upgradation under MACP to applicant No.1 in correct Rt Grad ® Pay Band with incorrect Grade pay o CF Rs.2,400/- by order dated 20.05.2015 (Annex A-1) but he should have been granted Grade fs.
pay of Rs.4,200/- attached with hierarchical promotion post of Chargeman (N/T).
bh 2fb). They have further» stated that respondent No.3 has also granted first and.
'second financial upgradation under MACP to all the applicants in correct Pay Band with rh Grade Pay of Rs.1,90G/- and Rs.2,000/- vide order dated 27.09.2009 (Annex A-3)} anid another order dated 23.01.2061 'Annex A-11} by fixing their pay accordingly. But the 4 G4 No. 311/2013 applicants claim that they should have been granted Grade Pay of Rs.2,000 and Rs.2,400/-
attached with hierarchical promotional post identical individual representations dated Q8.10.2013 to the respondant No.3 against the grant of the Grade Pays in first ane a second financial upgracations under MACP Scheme and requested the respondent No.3 to consider their claims in light of the {Annex A=-§).
4(d). Vide letter dated 17.10.2613, the applicants were asked to submit copies of documents / orders mentioned in their representations. The applicants subm itted the copies Of documents f orders individually to the respondent No.3 in the third week of Decamber, 2013. Vide order dated 63.02.2014, the respondent No.3 Oo replied toa them by turning down their representations on the oround that the judgment dated 26.11.2012 massed by the Principal Bench of the Tribunal in OA CW SOLO © ss OA No. S11 2015 No.904/2012 was restricted only to. the applicants in that OA and in absence of directions from porn, it was not possible for them to take action based on their representations. Subsequently, the oy respondent No.3 granted rade Fay. of Rs.2,000/- to applicant No.3 when he was promoted to the post of leading fireman by erder dated OL.11.2014 but it is claimed that the grade pay was not correct.
2fe). The applicants Nos.i and 2 were initially appointed as Durwan on 15.04.1985 and 29.04.1986, and applicant No.3 was employed as Messenger Boy at the age of 18 Saget Ht 83 tf Zp ety ft G a SS WO ae ~d jul WO oo ae oe cr ey © factory order £2{f). The respondent No.3 published 4s oo vacancies of Fireman Grade IIT on 20.12.19 inviting applications from the departmental candidates holding equivalent or identical or nearly identical posts, which have no promotional avenues. The apolicants accordingly applied for the posts of Pireman Grade If, appeared in the Departmental } Examination, pas ie) sed it and consecuently, they were appointed by transfer to the pasts 6 OA No. SEI/2015 of Fireman Grade it on 03.08.1958, 20.69.1999 and 09.05.1995 respectively.
2(g). The Assured Career Progression (ACE) Scheme made applicable by the Government of India to all the Central Government employees with effect fron 09.08.1999 and therefore, the applicants claim that they were ¢éligible for getting ACP I after comple ting 12 years of service in the hierarchical promotion post of Pireman Grade 3 Y upto 31.12.2005 ana thereafter with promotion post of Leading Fireman in Fay ~ "Band I with Grade Fay of Rs.2,000/- with ef rR the posts of Fireman Grade IT and Fireman Grade I were merged in the post of Fireman as per the recommendation of Vi Central Pay ) ommission with effect from 01.01.2006 2th). The applicants also' claim that they ware entitied for MACE Scheme from 91.09.2008 in the hierarchical romotion post of Supervisor (Non-Technical) in Pay Band = with Grade Pay of Rs,2,400/-, immediately after completing 20 ears of service, till completion of 30 years of service when they became eligible for MACP ect From O1.01.2006. This is soa because 7 O4 No SEL 2015 TIT in the hierarchical promotion post of Chargeman (Non-Technical) in Fay Bana If with Grade Pay of Rs.4,200/-. However, the applicants were not granted ACP I in the hierarchical promotion post of leading Fireman on the pretext that they had been promoted to the post of Fireman Grade If from the post of -Durwan / Messenger Boy, This reason was totally wrong. They were archical fede also not granted MACP IT in the hh promotion post of Supervisor (Non-Technical) in Pay Band I with Grade Pay of Rs.2,400/~ oy with effect from O1.09,29008, after completion of 20 years of service stating that the service rendered in earlier post could not be counted in the present post as it was fresh appointment. Similarly, Shri S.D.Karamkar i.e. the applicant No.1 has not been granted MACE ITI in the hierarchical promotion post of Chargemen (Non-Technical) in Pay Band IT with Grade Pay of Rs.4,200/- with effect from 15.04.2015, after completion of 30 years of service.
Zfij). The applicants served a legal notice on the respondents on 19.08.2015 requesti for grant of ACP / MACP benefits oan due g OA No.$11/2015 dates and in aporopriate pay scales / Pay Bands plus Grade Pay within ten days, failing which they would be constrained to approach the Tribunal {Annex A-9). in short, the applicants claim that they should have been granted MACP TFT in Pay Band I of service, MACP IT in Pay Band I with Grade Pay of Rs.#,400/- after completion of 26 years of service and MACP TII in Pay Band IT i.e. Rs.9,300-34,800/- with Grade Pay of Rs.4,200/~ on completion of 30 years of service. AS against the above, it. is claimed that the respondents granted MACP If in Pay Band IT with Grade Fay of Rs.2,000/-
From 02.09.2008 which was iil ih gail. The reason given by the respondents was wrong that they were appointed on transfer to the post of Fireman Grade II which was a fresh im ppointment and therefore, ~ the earlier service rends ip red by them as Durwan / "A Messenger Boy could nob be counted for granting ACP / MACP. Hence this OA.
3. Cententions of the parties -
The applicants have contended that -
® 9 Oa No.S11/2015 3fa}. the ACP Scheme was introduced BY 09.08.1999 to deal with the problem of genuine stagnation and hardship faced by the amployees due to 'Lack af adequate avenues for promotions. Under that Scheme, the employees were to be granted first and second Financial Upqradations in the pay scales of hierarchical promotion post on completion of 12 and 24 years of qualifying service in case they could not get promoted "in the meantime. But the respondents did not grant the financial upgradations under ACP Scheme and MACP Scheme in accordance with the provisions of the scheme;
3(b). this action of the respondents is not as per the decision of the Principal Bench of the Tribunal in OR SNo.904/2012. dated i 26.11.2012 that the eligible Government a8) servants are to be placed in the immediate next higher grade pay in the hierarchy Of the recommended revised pay bands and grade pay and not merely in the next higher scale of pay as per the recommendations of the VI Central Pay Commission. This decision relied upon the decision of Punjab and Haryana High Court dated 29.16.2011 in cW mg 10 OA No. SLI/201F No.i9387/2011 which upheld another decision of Chandigarh Bench of the Tribunal;
3fe}). the Mumbai Bench of this Tribunal in its decision dated 20.07.2010 in O.A. No. 2213/2008 and O.Ag2195 to 2203 of S009 in ~ the cases of Shri M.B.Shiwarkar Vs. Union of India and others, directed the respondents to allow ACP by counting their earlier @ service in the post of Durwan or Sweeper. a including the present post of unskilled labourer. This decision of the Tribunal was challenged by the respondents in Bombay High Court in Writ Petition No.4734/2011 which Was subsequaentiy withdrawn by the Petitioners and they iinplemented the decision of the Tribunal by granting the © benefit of first, second and third financial upgradation under ACP/MACP Scheme to the applicants in those OAs by adding the earlier services rendered in the post of Durwan and Sweeper (Annexes A-1l and A~-id); 3fd). ain the orders issued by the respondent No.3 in case of the present applicants, counting of earlier service of the applicants in the post of BDurwan and yp Li O4 No Sii/20ls M a tr senger Boy has been rejected in granting financial upgradation under ACP Scheme and MACP Scheme. The applicants were transferred from Durwan and Messenger Boy to Fireman Grade II, which was merged with the post of Fireman with effect from Q1.921.2006.
The applicants were eligible for getting the first, second and third financial upgqradations under MACP Scheme after it completing 16, 20 and 30 years of servic which included the service rend ered by them as Durwan and Messenger Boy;
3fea). the claim of the respondents that the OR ° iB 'hapelessl time-barre is re misrepresentation of facts and law on the subject of bar of limitation. The O.A. is within the period of Limitation as per Section 21 of the Administrative Tribunals Bet, 1985, since the cause of action arose every month because of denial of entitied Grade Pay of ACP / MACP benefit as held in the case of P.L.Shah Vs. Union of India in Civil Appeal No.38/1989 on 196.90 jt 985 and pods M.R.Gupta Vs. Union of India and others, 1995 {31} aATc 8eé. The OA is thus net 12 OA Na S1LE2015 barred by limitation;
3). the cl ain of the respondents is net correct that appointment / movement of the applicants on transfer Erom the posts of a Durwan and Messenger Boy to the post of Fireman Gracie-II was a movement From lower _ to the higher posts in higher pay scale, which was treated as fast track promotion and hence they were granted MACE IZ by order of 01.09.2008. This contention of the respondents is erroneous ana illegal because for the post of Fireman Grade II, they appeared in the prescribed trade test and passed it. The applicants did not belong to feeder grade/cadre post fer the post of Fireman Grade ITI. Thus if was their fresh appointment to the post of Fireman Grade II on transfer from the post of Durwan / Messenger Boy, which had equivalent pay acales to the post of Fireman Grade If, » pre-revised Group 'D' pay scales of Rs.2550- rah 3 rt os it 3 & "a sala w © ch tx oy fe tr Ths rm Q I with Grade Pay of oO 13 Od No. S1L2015 Ra.i,800/- for those employees in Group 0D ies who got the Revised Pay Band I with Grade ee wen oes t Promotion © Pay of Rs.i,800/- in Group ° earned or upgradsatic ry uh 8 granted under ACP Scheme in August, 1999 ain those four pay seales (which now carried the Grade Pay of Rs.i,800/-}) would be ignored for the purpose of MACP (Annex A-13)}:
© . 3fh). the instructions f clarifications f + © rt @ issued by the respondent No.2 D.G.OQ.F. / Chairman, Ordnance Factory Board, Kolkata also enable grant of financial upgradation to the applicants as contended by them. In view of these clarifications, the respondents must have ignored the as earlier upgradations granted toa the applicants in Group 'D' pests and should have granted ACP I and ACP II afresh after cempletion of 12 and 24 years of qualifying service with effect From G1.01.,2006 ain the * higher pay scale of hierarchical promotional post of the applicants. This is also as per the clarification Given on Point of Doubt Ne,i in DOPT OM dated 10.02.2000 (Annex A-~ iS}. However, the respondents have not $.
qranted them thi fe in benefit;
i4 O4 Noli 2013 ew 3fi}). the Principal Bench of this Tribuna has aiso recently dacided the case of employees holding the post of © Durwan, Jamadar Durwan and Subedar Durwan in the Ordnance Factory, DBehradun in case of Shri Te On Prakash & & Others Vs. Union of India and 3 others, in OA No. 3626/2014 dated 27,.410,2015 holding that the new | pay structure was adopted with effect from O1.01.2006, the benefits of ACP would have to be worked out again in the new pay scale hierarchy and if the two scales are merged and the higher pay scale was the promotional a this is to be ieancred and the. benefits of the first financial uporadation under MACP would be granted Lr the promotional hierarchy. This will be subject to fulfilment of promotional rmorms as Stipulated in the Condition No.6 of the AC Scheme;
3{i). in view of the above decision in case of Shri Om Prakash € 5 Others Vs. Union of India and 3 others, & similar decision was also given by the Principal Bench of the Y, i5 | O4 No SPi20i3 Tribunal in the case of Bhanu Prasad and others Vs. Union of India and others, in OA No.1195/2014 (with MA Nos.1453/2015 and 4035/2015} decided on 25.10.2017; and 3f{k}). the Kolkata Bench of the Tribunal in case of Mainak Banerjee Vs. Union of India and others, [f[AISLY III-Z016(1) Page 553] on decided on O06.08.201 alsa anaiyzed the x object of the MACP Scheme which envisaged g promotion with financial upgradation also i.e. if the premetion post is merged with earlier post, it is not relevant for MACP. While the decision of the Ernakulam Bench of the Tribunal in case of Union of India Vs. M.V. Mohanan Nair was upheld by the Kerala High Court, in the SLP No.10791/2014 filed by the respondents in the Supreme Court, the above orders have been stayed by the Supreme $3.
ee oi CD oD ho co fet és eB QO oO oO MS Court by its order date:
of the said order has also been circulated te all concerned Ministries of Government of India by DOP T through its OM dated -
as 2G.01.2016.;3 3({1}. The applicants have also filed a copy of the Ordnance Factory Bosrd order Part IT 16 OA No.SLU2015 published by the respondent No.3 for appointment of applicants by transfer to -the post of Fireman Grade IIT under the Ordnance and Ordnance Equipments Factory Group Ct and -- Group py! Non-Industrial posts (Recruitmen and Condition of Service) Rules, 1989. Under SRO 14(B}, these rules specified that the an Grade IT nG) Oo ip ct 1 rh | pe hen ry wh 3 Dp would carry a pay scale of Rs,.8@00-1,150/- WO and it would be filled by selection, The posts of Durwan and Messenger Boy carried the scale of pay of Rs. 752~-940/-. In the notes below the schedule, it has peen stated that transfer means in public interest by the management of persons already holding the posts in the sama or identical or nearly Sim). the applicants have alsa included copies of thelr posting erders of Pireman Grade IT by transfer. The applicant No.3 Boy was posted and appointed as Fireman Grade IT in the pay scale of Rs.800-1,150/-+ by order of O9.05.1995. Shri M.D.Meshram, 17 Ga No 5112013 the applicant No.2, Durwan was appointed to the post of Fireman Grade IT in the pay ° ale of Rs.2,650-4,000/~- vide order dated 16.08.1998. Sh iD oo * r Karamkar, the applicant No.l was appointed as . Fireman Grade II with effect from 26.09.1989 by order of 36.09.1999 in the scale of pay of Rs.2,610-3,540/-. Hence the OA be allowed, © they have contended. | The respondents have contended that -
3i{n). the applicants have challenged the order of 20.05.2015 by which third financial upgradation under MACP Scheme was swativea ts applicant No.l in Pay Band I with grade pay of Rsa.2400/-, orders of 27.09.2009 and 23.01.2011 which granted the first and © second financial upgradations in next higher grade pay under MACP Scheme to all the applicants, and the order dated O1.11.2014 promoting the applicant No.3 to the post of Leading Fireman. But there is no substance in the OA;
S3fo}. the order issued by the Principal Bench of this Tribunal in OA No.904/2012 dated 26.11.2012 was restricted only to the oy applicants in that OA and unless directives i8 Od No.1 L/2018 ry
45) rR Oo Cy © Ke & OG 4 rh from DOPT, the respondents were not in a position hoa consider the representation OF the applicants for granting them ACP /MACE benefits on years of service;
3(p). after merger of post of Fireman Grade Il and Fireman Grade I as the post of Fireman with effect from O1.01.2006 and revision of its pay structure in Pay Band I of Rs.5,200-26,200/- with Grade Pay. of Boy, this transfer was from lower to higher pay scale and it was treated as one promotion. Therefore, MACP Il was granted in the next higher Grade Pay of Rs.2,000/- vide order dated 23.01 20113 3fq). as per SRO 32 dated 04.05.2012, vide mf order dated O1.11.2014 the 'applicant Ne.3 wy wet i.e. Shri Ashok Kishan Kispotta was promoted ns from post of Fireman to that of Leading 4 » 33 ~ oe aoe ed ¥ ~_ Tos TRON OP tows Fireman with @ Grade Pay of Re. Z,000/ Ln Pay Band I of Rs.5, 200-20, 200/-
~e 3ir). the OA filed by the applicants is 19 O4 No. SLL 2013 hopelessly time-barred and if they were four-five years earlier the orders of grant on dated 27.059,200¢ i .
of financial upgrada and 23.01.2011, However, they have filed this OR on 08.09.2015 and they have not given any reason as te why they could not file it earlier. -- Therefore, the OA should be dismissed on this gro und itself;
3{s). as per the Macp Scheme enclosed with DOPT OM dated 19,05.:
fh3 oy coon) Ge j t ct ey oy ion 4 fo ef $5 4 @ (5 recommended Revised Fay Band and Grade Pay as given in Section 1, Part A of the First Schedule of the ecg (Revised Pay} Rules, 2008 we 3ft}. The details of initial appointments, promotions and Financial upgradations granted to the applicant Nos.1, 2 and 3 are as follows :-~
a) Ss. D.Karamkar |_Durwan Apptt.: 196-232 (750-| 15/04/85 Fireman /FB Fireman-Il 940) "
(Appt, by Transfer! 800-1150 8/5/1995 'treated as fast track promotion, .
MACP- 'GP Rs.2000/-a 1/2011
_ so MACPAI P Rs.2400/ 205) 2015 | 20 Od No.S11/2018 _Apptt./ a 'Pay Seale/ GP [Date : : ACP/MACP
b) .M.D.Meshram | "Durwan Appt. "{96- 232 (750. 29/04/86 Fireman/FB Fireman-Il 940) (Apptt. by Transfer 800-1 1150 8/3/1995 'treated as fast track "promotion.
'MACP-I [GP Rs.2000/- 3/1/2011 'MACP-Hl GP Rs.2400/- | 20,5,.2015. o} 'A.K Kispotta "'M/Boy Apptt. 160-170 (750- 28 [05/86 leading 'Fireman-I1 940) Fireman (Appt. by Transfer, 800-1150 (8/5/1995 : fas fast track:
promotion.) - & MACP-U . GP Rs.2000/- | 1/9/2008 ©) Leading Fireman, GP Rs. 2000/- aA 1/2014 :(Promotion) MACPHE 205.2018 As per para 4 and 5 of the Ordnance Factory directives dated 18.99.2002 {Annex R-9), tmovement of the applicants from the lower posts to higher post in higher pay scales was treated as fast track promotion | & and accordingly they were granted financial © upgradation in the Lime sdiate next higher grade;
From 01.01.2006, the earlier posts of Fireman Grade ff and Grade I were merged as ~ the post of Fireman in Pay Band TI with Grade 3fu). the Government of India introduced MACP for Central Government Civilian 2 \ 21 OA No.S11/2015 employees vide DOPT OM dated 19.05.2005 making it operational from 61.09.2008 in supersession of previous ACP Scheme. Under it, for £. inancial upgradations completion o£ service period of 10, 20 and 30 years is to rb be counted from date of direct entry. = A Financial upgradation is admissible under MACP whenev an anployee completes continuous service of 10 years in the same os rade Pay. The promotion earned an upgradation granted under ACP Scheme in the past for those grades which now carried the same Grade Pay due to merger of pay scale or upgradation of post as per the Vi Central Pay Commission recommendation are to he ignored under the MACP Scheme;
3(v). the applicants hav been > granted a ct iD a ee Ht T bs i @ es Financial upgradation by considering the clarification issued by the Ordnance Factory Board, Ministry of Mafence, Kolkata dated 48.09.2000 and accordingly, the benefit of second financial upgradation under MACP i Scheme was granted to the applicants from 01.09.2008.
ths fete % pot Oh ince the applicant nad already earned one fast track promotion on transfer from the posts of Durwan and 22 OA No. S£2/2015 Messenger Boy to Fireman Grade IT, they were not eligible for ACP I on completion of 12 years of service and after its discontinuation from 61.09.2008, they have bean granted the benefit of MACP II from O1.09.2008. Subsequently, on completion of 36 years of regular rvice, thay have also H oe been granted benefit of MACP TIT in the Grade Pay of Rs.2,400/~ in Pay Band i. In view of these stipulatians under the rules, the action of the respondents is correct, hence the ©.A. be dismissed.
4. Analysis and conclusions:
We have perused the OA memo and its annexes, rejoinder of the applicants, reply and sur-rejoinder filed by the respondents, various case lawe cited by the parties and considered all these as well as the arguments advanced by both of them on 24.01.2019.
4(a}. With reference to comtention of the the present O.A. ais time-barred and the applicants if aggrieved ought to have challenged the orders of grant of financial oye upgradations dated 27.08.2009 and 33 Od NOIL LO 23.01.-2011, the applicants have contended bad that this claim of the res pondents is rot correct. They have relied on the view taken in the caselaws P.s. Shah Vs. Union of tndia in Civil Appeal Wo. 38/1989 dated L8.G2.1989 and M.R. Gupta Vs. union of India. and obhers, 4595 (31) ATC L86é, eontending that Financial o Ph rts non-grant of the benefit upgradations to them on due dates and in the yy) applicable grade pay is 4 continuous cause of action. In view of this ubmission and our conclusions in the succeeding paragraphs, We feel inclined to accept the contentis os of the applicants, and thus to re ensure fairness to them, the delay in filing the present 0.A. is condoned, 3 4{b). Here two main issues of contention £ a the applicants are ~ one for grant of ACE-1 on completion of lez years of service and in next pay scale in promotional hierarchy; and two for grant of MACE upgradations in grade pay higher than those granted to them by the respondents.
Their claim Ls chat when they Ware appointed ag Fireman-IT from tne earlier posts of Durwan and Messenger Boy, it was 24 OA No 31/2015 their appointment only by transfer. on passing the required trade test. It was not a promotion. fence it was not to be equated with grant of first financial under ACP and thus ACP-I benefit should have been granted to them separately.
The contention of the respondents in this regard is that when they were appointed as Fireman-itl, Lt WAS a promotion, therefore, it is to be factored in for the purpose of grant of financial upgradation 4(c). In this regard the follos wing details are relevant ~-
(i). As per Ordnance Pactories and Ordnance Equipment Factories Group 'C' and Group o Non-Industrial posts (Recruitment and Conditions of Service) Rules, LORS, { te OS L4iB) (Annex-A-16, page 175 onwards}, om the post of Durwan (Pay scale Rs. 750-940} -
appointment was to be made by selection on merit (Sr.No.5, page 179).
In case of recruitment by promotion, deputation or absorption, grad les from which orometion, deputation or absorption to be made - by Transfer on passing a trade test ba tet O4 Nos PL 2015 On the post of Fireman Gr.-IT (Pay scale Rs. 800-1159) appointment was to be made by selection on merit (Sr.No.5, page
177). (In case of recruitment by promotion, deputation or absorption, grades from which promotion, deputation or absorption Was LG be made - by transfer on passing trade test.
For Messenger Boy aise the Pay scale was Thus all these posts held by the applicants at that time 1.8. the post of Durwan, Messenger Boy and Fireman Gr.il were (dij). As per Note 4 pelow schedule ta SRO 14(B}, transfer has peen defined To include transfer in public interest by the Management, of persons already holding the.
fer Che
3) posts. in the Same oF ntical or nearly equivalent scale pay to post in factories or offices in the same station in the Ordnance wactories Organization or also . transfer within the same factory of office at the request of the persons concerned where agreed to by the management -
Transfer in public interest will also 26 OA No. 5112015 include filling up of posts by tran sfer of persons holding posts from which there is no promotion to any other poat or grade whether or not such gosts are deciared equivalent posts and such appointments by transfer may be made pricr to filling up af posts by promotion from other grades ox by direct ecruLlpment.
Note-6 covers Trade Test to be prescribed by the General Manager of the Factory ofr the Ordnance Factories Board and ths term trade trest wid include written, oral and tf $B oy cr bs 2 fo pre examination and aptitude test and interview and any other qual lificati on test {neluding physical standards test and statutory qualification test.
4(da). "The orders of appointment of the applicants by transfer were issued as follows:
eh i. Shri §.D. KNaramkar - from the post o Durwan was appointed to the post of Fireman Gr.Il (Group 'D') (pay scale of ws s.2610- 3540) with effect from 03.08.1998 (page T85)}.
Durwan was appointed to the post of Pireman Gr.tI (Group 'B'}) {pay scale Rs. 2650-4000) oy yy GOLLLLLLLOLLOOOOOOOOOOOOOUOOOOUIUUU I le 27 Od No. STL2013 "rh against an existing @acancy with effect from 93.08.1998 (page 184).
3. ehri A.K. Kispotta, from the post of Messenger Boy wa appointed as Fireman Gr.il (Group 'D") in the pay scale of Rs. §O0-1150 against the existing vacancy by transfer with effect from O8.05.1995 (page 183). | All these orders mantioned appointment by transfer of the applicants. Those orders did not mention that they were being appointed on promoti &4i{e). From the above details it is clear that the applicants were appointed as Fireman OGr.II in Group 'D? category only by transferring ther from other Group 'D' posts of Durwan and Messenger Boy which had nearly equivalent pay scales. Therefore, those appointments cannot be treated as promotion and they cannot be equated with ACP-T. In this regard the contention of the applicants is correct and that of the respondents that the appointment of the oresent applicants to This conclusion gets fortified by the clarification of the Ordnance Fac tor ry Board, 28 Od No.S11/2015 Ministry of fefence, Kolkata dated 49.09.2000 about ACP Scheme (page 100-104).
tn Para 5, transfer on selection - it.
has been stated that the appointments made by way of transfer on Se: lection in identical scale from among departmental candidates such as skilled worker moving to LDC ar semi-skilled (same pay scale) after selection test, such appointments should be treated as transfer and previous service yenderad in the same geale should be counted In Para § on Messenger Boys - it has been specified tnat the movement of Messenger Boys by transfer to any regular post in the pre-revised pay scale of ' 50-940 after attaining the prescribed wo ~3 age and qualification for recruitment, shall x x 5 --
not. be considered as promotion for the Z "J sa
43) © o bey we .CP Scheme and the mobility under ACP Scheme is te be allowed in the existing hierarchy available in tne ree g te ress r post he 4(f£). From the above facts and stipulations, the emerging clear position is that the present applicants were appointed as Fireman WC LOL QUITO 29 O4 No 5112015 Gr.It (Group 'D!) by transfer on selection por (on passing the Trade Test) from the earlier other Group 'D' posts held by them i.e. Durwan and Messenger Boy. Also the pre- revised pay scales of Durwan and Messenger Boy were the same soe. Rs. 750-940 and that 'yeman Gr.ifI was ms. 800-1150. Hence -
rf feck of these were nearly equivalent pay scales.
Thus their movement by transfer from the osts of Durwan and Messenger Boy to Fireman Gr.it was from the nearly equivalent pay scales.
4ig). The ACP Scheme was introduced by the DOPT OM of 59.08.1999, with 15 conditions.
Condition No.l of the Scheme anvisaged merely the placement in the higher pay scale or grant of financial benefits through Financial upgradation, As per Condition No.3, the financial benefits under the Scheme, were to be granted from the date of completion of eligibility period prescribed under it or from the dats of issue of those instructic ng_whichever was jater.
As per Condition No.4, first financial upgradation under the ACP Scheme was allowed after i2 years of reguiar service and the 30 OA No. STL 2013 second upgradation after 12 years of regular service from the date of First financia upgradation | subject to fulfiliment of prescribed conditions. As per Condition No.6, fulfilment of normal promotion NOEs (bench-mark, departmental examination, seniority-cum-fitness in the case af Group ''p' employees} shall be ensured for grant of benefits _ under the ACP Scheme. The financial upgradations were to be personal to the incumbent for the stated purposes and o PR there was restriction the ACP Scheme for financial and certain other benefits such as House Building Advance, allotment oF Government accommodation, advances, etc. As per Condition No.7, financial upgradation under the Scheme was to be given to the next higher grade in accordance with the existing hierarchy in a cadre or eategory of posts. As per Condition No.3, on upgradation under the ACP Scheme, pay of an employee was to be fixed under the provisions of FR-22 (Tia) subject te minimum financial benefits of Rs.lO0/- as oer DOPT OM of 05.07.
yl Jonnt sO ot te '?O & 4 4a re;
i3 C. he ct od o uo No.lS (subject to Condition No.4), In cases @ SLL OTOL COLOLLO COOOL ® yy 31 OA No.S11/2015 where the employees have already completed te 24 years of regular service with or without promotion, the second financial upgradation vander the Scheme shall be granted directly.
Subsequently DOPT issued clarifications from time to time on several issues related to the ACP Scheme. As per OM ACP Scheme cy) of 10.02.2000, cases where th has already been implemented shail be reviewed/rectified if the same are not found to be in accordance with the Scheme of clarifications (Para 2). As per DOPT OM dated 01.06.2001, ib was decided that the financial upgradations.
under the ACP Scheme introduced by the DOP?
08.1999 shall be allowed =o <i OM. dated 9 Group 'D' civilian emplovees af the Central Government. in the revised hierarchical grades /pay scales.
4th). To sum up on she first issue, in the present case from the posts of Durwan and @ Messenger Boy the applicents wer posted as "hy Pireman Gr.ii by transrer From neariy be equivalent pay scales, they remained in the equivalent pay scale in Group 'D' and those appointments were not on promotion. Hence 32 OA No. 5112018 those apoointments did not disentitie them for grant of ACP-I on completion of 12 years of service from their initial appointment as Durwan and Messenger Soy. Therefore, the y oe action of th it respondents to deny them benefit of the financial upgradation under ACP-I by the impugned order was not justified, so the imougned order is liable to be set aside. The respondents have to sanction them ACP-I from due date i.e. O9.08.15999 and subsequent consequential benefits of pay fixation.
4(i). QThe applicants have also attempted to benefit from decision of the Principal Bench of the Tribunal dated 25,10.2 S 419 an wet bd, O.A. 11985 /2014 [Bhanu Prasad &€ 19 others Vs. Union of India (Ministry of Defence, Ordnance Pactory Board}]. While passing this order, the Principal Bench cited another decision of the same Bench dated 27.10.2015 in OG.A.3626/2014 [Shri Om Prakash er z o ct a my rs Vs. Union of India (Ministry of Refence, Ordnance Fartory Board, etec}]. in the latter case, the respondents had brought * a to the notice of the Trisunal an Apex Court Stay order dated 08.08.2014 in SLP 8271/2014 © LLL 33 O4 No. 5112015 in the case of Union of India & Ors. Vs. MLV. Mohanan Nair. TH that case the Brnakulam Bench of the Tribunel an O.A.816/2012 dated 29.01.2013 had granted the MACP benefit in the promotional hierarchy. That order of the Tribunal was also upheld by the Kerala High Court it its order dated 24.06.2013. © However, against those decisions of the Ernakulam Bench of the Tribunal and the Kerala High Court, the Apex Court has already granted ths stay on 08.08.2014. | Pa Relying on the decision of the
-Brnakulam Bench of the Tribunal and the Kerala High Court mentioned above, the * Principal Bench of the Tribunal Ln C O.A.3626/2014 also held that in view of thse clarification by DOPT in OM dated 16.02.2000, the Financial uogradation should be granted in the pay scales introduced from O1L.01.2006 subject to Condition No.6 of the In the decision of the Principal Bench dated 25.10.2017 in o.AR, 1195/2014, reliance wags alse placed on the earlier decision of the game Bench in case af Shri Om rakash 34 O4 Na.Sihe2ols and others Vs. Union of India, in which benefit of ACP under financial upgradation was allowed in promoticnal hierarchy of posts subject to Condition No.@ of the ACP Scheme. However, in view of the Apex Court stay mentioned above, we would mot iLike to draw on those caselaws for the present OA. 4(j}). With references Lo the second contention of the appli cants that they were not granted MACE benefits in grade pay of hierarchical romotion, the following stipulations under the MACP Scheme are relevant.
The MBACP Scheme for Central Government civilian employees was introduced by the Government of India through DOPT OM of 12.65,2009 and made operational from 01.09.2008. While under the ACP Scheme only two financial upgradations in the next higher pay scale in the promotional hierarchy after completion of 12 years and 24 years were allowed during entire service period of an employee, under the MACP Scheme financial uporadations have been allowed ad on completion of 10, 20 and 30 years of = aed see he ee ey Syroa mas + £4 serviee From the entry Feces. ena financial © gq, SELLE Wa 35 | O04 No.1 1/2013 upgradation under Jit has been made admissible whenever a person has spent. 10 years continuously in the same qrade pay.
Since the concept of pay hands with grade pay was introduced from 01.01.2006 as recommended by the 6 | Central Fay Commission, the MACP scheme envisages merely placement in the immediate next higher grade pay "in the hierarchy of the recommended revised pay bands and grade pay as given in Saction 1, Part-A of the first sehedule of the CCS (Revised Pay} Rules, 2008.
As per Para 5 of the MACP Scheme, promotions earned or upgradations granted under the ACP Scheme in the past ta those grades which now carry the same grade pay bts due to merger of pay scales/upgradations © posts shall be ignored for the purpose of granting upgradations under MACE. Th case of all the employees granted financial upgradations under ACP till o1.01.2006, the revised pay will be fixed with reference re che pay scale granted to them under the ACP Scheme.
As per para 6.1, in. case of ACP Te oh ow o rr z 99 B wo o> feet * ms be a he oa > oa fy 3 Ch upgradations grant 36 Od No.51 1/2013 31.08.2008, the Government servant has option under the Cts (Revised Pay} Rules, 29008 to have his pay fixed in the rev riged pay structure either fi} with effect from 01.01.2006 with reference to his pre- revised 4 be Da ies) Ot ms mS ban * i> fort N Cc mo CF Oo re po rt Hem ish th eh © on ctr from the date of his financial upgradation under the ACE with reference to the pre- revised scale granted under the ACP. in case of option {ii}, he shall be antitled to draw his arrears of pay only from the date t £ his i option i.e. from the date - of financial 'uogradation ander ACP.
On examining the case of the present applicants with reference to the above 3 ¥ he re stipulations under the ACP Scheme and MACE Schemes, with reference to their financial upgradation, the position becomes clear a8 under -
Since the applicants were appointed on the post of Fireman Gr.IT only by transfer ag explained in the preceding paragraphs 4{d} and 4{e}, they became eligible for ACF-
Tl benefit aes under -
Date ef appointment & Durwan/Messenger Boy tsi ACE due on COTTE COOL LCLOOLO LT i D OA No SEMQOIS fad 3 Apo .No.i- 25.04.1985 09.08.1939 App.No.2- 19.04.1986 09,08.1993 App.No.3- 69.07.1998 . oo, 07. 2002 Since the respondents treated their appointment to the post of Fireman on B transfer from the post of ODurwan and t Messenger Boy 45 promotion, the applicants were not granted the benefit of the first s he above stipulations cr ACP. However, as per of the ACP Scheme, they were entitled for grant of the First ACP upgradation from 09.08.1999 and g9.07.2001. Hence they should be granted the first ACP accordingly.
C8 nder the ACP Scheme since there was no concept of grade pay and only pay scales were there, the entitlement of the applicants for first ACP upgradation would be in the immediately next higher pay scale i.e. the pay scale of Fireman Gr.i 1.4. Rs. 2750-4400/-.
The applicants also would have become eligible for grant of oxd ACP benefit after completion of le years of requiar service from the dates of grant of first ACP i.e. 2 2073 and > applicant No.l ang 2 from 69.0 RS 'Nee 38 0C~* OA No. Si 2015 applicant No.3 from O3,01.2023. However, in the meantime the MACP Scheme came to be introduced from O1.08.2008. Thus while the applicant No.l and 2 had already completed 20 years of regular service on 15.04.2005 applicant No.3 would have ees | 20 years of service only on 09.07.2009. In view of these requirements, the applicant No.1 and 2 became eligible for grant of benefit of MACP-II from 01.08.2008 and applicant No.3 became eligible from O38 .07.2009. The applicants thereafter would become eligible for 3° MACP after completion of service period of 10 years from the dates of grant Crom ih of 2M MACP i.e. applicant No.l and 2 01.98.2018 and applacant No.3 From 89.07.2029, in case in the meantime if they did not get promoted.
Since the applicant No.3 came to be promoted from 01.11.2014 to the post of beading Fireman (Pay Band Rs.5200-20200, Grade Pay Rs.2000/-}, he will not se entitled for grant of 3% MACP. in view of the eligibility of the applicants fer 1* ACP, 2° MACP and 3°° MACP as explained above, LMT & Ry tsa oe O4 Nal Sf E2073 ct
-
@ impugned orders issued by che respondents under challenge in the present O.A. will have to be revised, hence those orders are liable te be set aside.
While issuing the revised orders of et en © fe ig eu ncial upgradation under the first st io Pe tn a '¢;
a ri oh MACP and third MACP from .dus ev.
RE ch wy 'SS as stipulated under the ACE and MACP { oo Schemes, the payments on such financial upgradations already made to the applicants should be adjusted and only the resulting balance amount shouid be paid to them ck without any interest on the arrears. While the upgradation under the first ACP has to 1.8. fot the pay scale of Pireman 6Gr.I, MACP are to be granted only in the relevant higher grade pay in the same pay band, as per the stipulations/cor nditions of the MACP Scheme. While carrying out this exercise, the respondents shall also ensure compliance of the other conditions of the ACP and MACE Schemes.
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4 ass bd ond et sed a ~- 6 8 a * 3a Oo & i & @ without any (Ravinder Kaur) Member (7) km a f Bh 2 mA i al ~~ 4 G4 No. 3112023 three manths from the date of th rt Ee copy of this order. Parties bear their own costs.
(Dr. Bhagwan Sahai) Member {A).