Central Administrative Tribunal - Madras
D Usha Rani vs M/O Women And Child Development on 22 December, 2023
yt £ \W OA 1685,1686,;1687,1688,1689,1690,1691,1693 & 1694/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA Nos.1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 Date of order:22.12.2023 1.N.Chandran APPLICANT(SV 2.A.Thirunavukarasu PETITIONER(S) 3.S,Malarvizhi 4,.N.Srinivasa 5.M.R.Venkateswarulu 6.C.Jayapal 7.Sankaran Kulangara 8.D.Usha Rani 9.K.Savithry M/s.P.Ulaganathan ADVOCATE(S) FOR THE APPLICANT -VERSUS- i. Union of India rep., by, The Secretary, RESPONDENT(S) Ministry of Women and Child Development, -- Shastri Bhawan, New Delhi-110 001 Mr. Su.Srinivasan ADVOCATE(S) FOR THE RESPONDENTS CORAM: HON'BLE SMT. LATA BASWARAJ PATNE, JUDICIAL MEMBER & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A) 1. Whether reporters of local newspapers may be Yes/No allowed to see the Judgment? 2. Whether to be referred to the reporter or not? Yés/No 3. Whether the Judgment is to be circulated to other Yes/No Benches of the Tribunal? Judgment pronounced by (LATA BASWARAJ PATNE) Judicial Member l OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/01685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 Dated 21 tay the day of December Two Thousand Twenty Three CORAM : 'HON'BLE SMT. LATA BASWARAJ PATNE, Member (J) & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A)} 1.N.Chandran ... Applicant in OA 1685/2019 2.A.Thirunavukarasu ... Applicant in OA 1686/2019 3.5.Malarvizhi Applicant in OA 1687/2019 4.N.Srinivasa Applicant in OA 1688/2019 5.M.R.Venkateswarulu .. Applicant in OA 1689/2019 6.C.Jayapal ...Applicant in OA 1690/2019 7.Sankaran Kulangara .. Applicant in OA 1691/2019 8.D.Usha Rani .. Applicant in OA 1693/2019 9.K.Savithry ... Applicant in OA 1694/2019 By Advocate M / s.P.Ulaganathan Vs 1, Union of India rep., by, The Secretary, Ministry of Women and Child Development, Shastri Bhawan, New Delhi-110 001 ..1* respondent in all OAs 2. The Director Ministry.of Women and Child Development, Food and Nutrition Board Shastri Bhawan, New Delhi-110 001 ..2™ respondent in all OAs 1685, 1686, . 1688, 1689, 1690, 1691, 1693/2019 2, The Joint Secretary Ministry of Women and Child Development, Food and Nutrition Board Shastri Bhawan, New Delhi-110 001 »2™ respondent in OA 1687&1694/2019 3. The Deputy Technical Adviser (SR) Ministry of Women and Child Development Food and Nutrition Board, Southern Region 26, Haddows Road, Shastri Bhawan, Chennai-600 006 ....3° Respondent in ali OAs By Advocate Mr. Su.Srinivasan 2 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 ORDER
(Pronounced by Hon'ble Smt.Lata Baswaraj Patne, Member(J)) The applicants have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) to call for the records on the file of the second respondent in connection with his order No. NA-29/1/2019-NUTRITION ADMN dated 30.10.2019 and quash the same as illegal, insofar as it relates to the applicant;
b} to direct the respondents to grant to the applicants first financial up-gradation under ACPS in the pre-revised pay scale of Rs.5500-9000 wef 09.08.1999, instead of 01.03.2000, 01.10.1999, 01.09.1999, 01.03.2000, 01.11.1999, 09.08.1999, 01.01.2000, 09.08.1999 & 01.12.1999 respectively and second financial up-gradation in the pre-revised pay scale of Rs.8000- 13500 w.e.f 09.03.2005, 03.10.2003, 06.09.2003, 19.03.2006, 29.11.2004, 20.03.2004, 11.01.2006, 07.07.2008 & 14.12.2003 respectively and fix the pay accordingly;
c) to re-fix the pay of the applicant in terms of the CCS (RP} Rules, 2008 dated 30.08.2008, w.e.f. 01.01.2006, as per the fitment table corresponding to the pay fixed jn the pre-revised pay scale of Rs.8000-13500 prior to 01.01.2006 in the replacement pay structure of PB-2 Rs.9300-34800 with Grade Pay of Rs.5400;
d) to ignore the first financial up-gradatton, under ACPS in the pre- revised scale of pay of Rs. 5500-150-8000, as per para 5 of MACPS circulated vide OM dated 19.05.2009 of Department of Personnel & Training and treat 2nd financial up-gradation under ACPS, to be granted in the pre-revised scale of pay of Rs.8000- 13500 w.e.f 09.03.2005,. 03.10.2003, 06.09.2003, 19.03.2006, 29.11.2004, 20.03.2004, 11.01.2006, 07.07.2008 & 14.12.2003 respectively as first financial up-gradation;
e) to grant the second financial up-gradation under MACPS, in P.B-3 fe Rs.45600-39100 with Grade Pay of Rs.6600 wef. 01.09.2008, in place of Grade Pay of Rs.4800/- allowed by R3;
f) to grant third financial up-gradation, on completion of 30 years of service, in the PB-3 Rs.15600-39100 with Grade Pay of Rs.7600/- from 09.03.2011, 03.10.2009, 06.09.2009, 19.03.2012, 29.11.2010, 20.03.2010, Nil, 07.07.2014 & Nil respectively, when they retired on superannuation; and
g) or pass any other order or direction or grant any other relief, in the circumstances of the case and thus render justice."
3 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2015
2. Since the issue involved in the above OAs are common, they are heard together and disposed of by this common order.
3. The brief facts of the case, as stated by the applicant, are as follows:
The applicants have joined the 3% respondent as Technical Assistants in the pre-revised pay scale of Rs.5000-150-8000, on 09.03.1981, 03.10.1979, 06.09.1979, 19.03.1982, 29.11.1980, 20.03.1980, 11.01.1982, 07.07.1984, 14.12.1979, respectively, and retired on superannuation on 31.05.2011, 31.03.2013, 28.02.2014, 30.04.2012, 31.12.2014, 31.08.2017, 31.05.2011, 29.02.2019, 31.03.2006. They are aggrieved by the act of the Respondents, in not granting them the financial up-gradations under ACPS in the pay scales in the promotional hierarchy in the cadre, on completion of 12 years of service in the pay scale of Rs.5500-9000 with effect from 09.08.1999 ( the date of effect of ACPS), and on completion of 24 years on 09.03.2005, 03.10.2003, 06.09.2003, 19.03.2006, 29.11.2004, 20.03.2004, 11.01.2006, 07.07.2008 & 14.12.2003 respectively, in the pay scale of Rs.8000- 13500, with its corresponding replacement pay structure in Pay Band PB-3 (Rs.
15600-39100) with Grade Pay of Rs.5400/- with effect from 1.1.2006.
3.1 The grievance of the applicants is that they should be granted the third financial up-gradation under MACPS on 09.03.2011, 03.10.2009, 06.09.2009, 19.03.2012, 29.11.2010, 20.03.2010, Nil, 07.07.2014 & Nil, respectively, on completion of 30 years of service in the pay structure in PB 3 (Rs.15600-39100) with grade pay of Rs.6600/-. But the respondents have, on the other hand, granted them the financial up-gradation under ACPS, the first one in the pay scale of Rs.5500-9000, with effect from 01.03.2000, 01.10.1999, 01.09.1999, 01.03.2000, 01.11.1999, 09.08.1999, 01.01.2000, 09.08.1999 & 01.12.1999 instead of 09.08.1999 and the second one in the pay scale of Rs.6500-10500/- with effect from 09.03.2005, 03.10.2003, 4 OA 1685,1686,1687,1688.1689,1690,1691,1693 & 1694/2019 06,09,2003, 19.03.2006, 29.11.2004, 20.03.2004, 11.01.2006, 07.07.2008 & 14,12,2003, respectively. The pay was re-fixed as per the CCS (RP) Rules, 2008, corresponding to the pay so fixed, w.e.f. 09.03.2005, 03.10.2003, 06.09.2003, 19.03.2006, 29.11.2004, 20.03.2004, 11.01.2006, 07.07.2008 & 14.12.2003, respectively, in the pay scale of Rs.6500-10500/-. The respondents have granted them the 2nd financial up-gradation under MACPS in PB 2 (Rs.9300-34800) + G.P Rs. 4800 and 3rd MACP in PB 2 (Rs.9300- 34800) +G.P Rs. 5400/-. For illustrative purpose, the claim of the applicant in OA 1685/2019 is stated in the following comparative statement :-
S.No. |Date Pay fixed in the PayScale of |Pay ought to have been and events fixed with events.
1 09/03/81 jRs. 5000-8000 09/03/93 {Completion of 12 years 3 09/08/99 | Date of effect of ACP Date on which 1st ACP to be . scheme. given.
4 01/03/00 |Rs.5500-9000(ist ACP) Qught to have been given | ( Date of effect erroneous) |effect from 09.08.1599.
5 09/03/05 |Rs.6500-10500 (2nd ACP} Rs.8000-13500 (2nd ACP) (Erroneous) (treated as Ist |{treated as 1st financial up-
financial up-gradation in gradation in view of para 5 view of para 5 of MACPS) of MACPS) 6 01/01/06 |PB 2 (Rs.9300-34800) + G.P |PB 3 (Rs. 15600- 39100) Rs. 4600 (Erroneous) +G.P Rs. 5400 7 01/09/08-|PB 2 (Rs.9300-34800) + Rs. 'PB 3 (Rs.15600- 39100) + | 4800 (2nd MACP)} .G.P Rs. 6600 (2nd MACP) ss, 8 09/03/11 [PB 2 (Rs.9300-34800) + G.P 'PB 3 (Rs.15600- 39100) + | Rs. 5400 (3rd MACP) |G.P Rs. 7600 (3rd MACP) 3.2 The claim of the applicants is based on the decision of various benches of the CAT, including the Madras Bench, the Principal Bench and the Ernakulam Bench that attained finality before the Hon. Supreme Court in Civil Appeal No.2488/2009, dated 20.01.2016, wherein the appeal filed by the respondent department was rejected by the Apex Court. The representations of the applicants were ordered to be disposed of by a 5 OA 1685,1686,1687,1688,1689, 1690,1691,1693 & 1694/2019 speaking order by this Tribunal in OA Nos.1693-1701 of 2018 filed by the applicants. The 2nd Respondent chose to reject the representations by order, dated 30.10.2019, on the sole ground that the benefit of the judgment cannot be extended to similarly placed persons, unless there is a specific direction to do so by the Court itself. Being aggrieved, the applicants have filed the present OA seeking the aforesaid relief.
4, After notice, the respondents have entered appearance through their counsel, and filed their reply and opposed the relief. The respondents contended that on the recommendation of the V CPC, 50% of posts in the grade of Demonstration Officers/Sentor Technical Assistant/Chemist should remain in the existing pay scale of Rs.5500-9000/- and redesignated as Grade If, while the remaining 50% should be upgraded in the pay scale of Rs.6500-10500/-, vide Ministry's Order No. No.A-11020/2/2004-NA, dated 18.01.2006. After implementation of the above said order, the hierarchy of posts in the Food and Nutrition Board (FNB) is as follows:
(i) Technical Assistant / Demonstrator - Rs.5000-150-8000/-.
(ii} Demonstration Officer / Senior Technical Assistant / Chemist Grade ITI Rs. 5500-175-9000/-.
(iii) Demonstration Officer / Senior Technical Assistant / Chemist Grade I- Rs.6500-200-10500/-.
(iv) Assistant Technical Adviser - Rs, 8000-275-13500/-.
(v) Deputy Technical Adviser - Rs. 10000-325-15000/-.
(vi) Joint Technical Adviser - Rs, 12000-375-16500/-
(vii) Technical Adviser - Rs. 14300-4000-18300/-.
4,1 Based on the V CPC recommendations and, in consultation with the DOP&T, the Ministry has reviewed and implemented the bifurcation of DO into DO.It and DO.I, vide Ministry's Order No.A-11020/2/2004-NA, dated 6 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 18.01.2006. The post hierarchy clearly establishes that the Demonstration Officers/Senior Technical Assistant (bifurcated as DO.II and DO.1) Cadre is totally different from those of Demonstrator and Technical Assistant. The OA. Nos.197-200 of 2006 pertain to DO.II and DO.I. But, in the present case, the applicants belong to Demonstrator/Technical Assistant cadre as per their initial appointment. Hence, the case cannot be compared to the previous O.A.Nos.197-200/2006.
4.2 The respondents submit that, on implementation of the VI CPC recommendations, the scales of Rs.5000-8000/-, Rs.5500-900C/- and Rs.6500-10500/- were merged and given as Rs.9300-34800/- with GP Rs.4200/-. VI CPC also recommended merger of feeder cadre and promotion cadre, Technical Assistant/Demonstrator were granted Rs.4200/- grade pay and Demonstration Officer were granted Rs.4600/- as grade pay w.e.f.01.01.2006.
4.3. The applicants joined the respondent department in the post of Technical Assistant. On completion of 12 years and after implementation of the ACP scheme, they were granted the first financial upgradation in departmental hierarchy of DOs in the pay scale of Rs.5500-175-9000/-. On completion of 24 years of service, the applicants were granted second financial upgradation in the departmental hierarchy in the pay scale of Rs.6500-200- 10500/-. After implementation of the VI CPC, the first financial upgradation has been changed in the departmental hierarchy scale of PB-2 with Grade Pay of Rs.4600/- and second financial upgradation in the scale of 'PB-2 with Grade Pay of Rs.4800/-. All the applicants, except the applicants in OAs 1691/2019 & 1694/2019, were granted the 3rd financial upgradation under the MACP, and were granted the pay scale of Rs.9300-34800/- with grade pay of Rs.5400/-, with effect from the date of completion of 30 years vw 7 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 of service from their initial appointment, and, since the applicants in OAs 1691/2019 & 1694/2019 had retired from service before completion of 30 years, they were not granted the third financial upgradation. All the financial upgradations were granted as per the applicable rules.
4.4 The respondents further submit that, on implementation of VI CPC, the three pay scales, i.e., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, got merged to the corresponding revised Pay Band of Rs.9300-34800 with the grade pay of Rs.4200/-. Hence , the first ACP granted to the applicants in the pay scale of Rs.5500-9000 was already ignored and they were granted I ACP in the grade pay of Rs.4600.
4.5 The applicants were appointed as Technical Assistant/Demonstrator in the pay scale of Rs.5000- 150-8000/- (V CPC scale). The referred Apex Court Order is applicable to the incumbents holding the post of Demonstration Officer at the time of Initial appointment. Hence, granting of Ist ACP In the pay scale of Rs.8000-275-13500/- (hierarchy post of ATA) does not arise and is against the Rules of ACP.
3.6 'For illustrative purpose, the details of the applicant in OA 1685/2019 provided by the respondents is extracted hereunder:-
S.No. Date - Pay fixed in the Pay scale of and events 1 09/03/81 Rs.5000-8000/- (Joined as Technical Assistant) 2 09/03/93 |Completion of 12 years 3 09/08/99 Date of effect of I ACP scheme in the hierarchy pay scale of Rs.5500-9000/- granted.
4 01.03.2000 /Rs.5500-9000/- (ist ACP pay fixation done as per the applicant's self-exercised option for pay fixation on his next increment due date j.,e, 01.03.2000).
5 --|09/03/05 Rs.6500-10500/- (2nd ACP granted in the hierarchy of pay scale of Rs.6500-10500/-).
6 01/01/06 PB 2 (Rs.9300-34800/-) + GP Rs.4600/- (On implementation of VI CPC the merger of 3 pay scales, i.e., Rs.5000-150-8000/-, Rs.5500-175-9000/- and TATE. TE 8 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 aoe Hee a we eee t Rs.6500-200-10500/-, to the corresponding revised Pay Band of Rs. 9300-34800/- with grade of Rs. 4200/-.The I ACP granted in the pay scale Rs.5500-175-9000/- was aiready ignored and granted I ACP in the grade pay of Rs.4600/-) 7 01/09/08 PB 2 (Rs.9300-34800/-) + Rs.4800/- (2nd MACP) 8 09/03/11 PB.2 (Rs.9300-34800/-) + GP Rs.5400/- (3rd MACP) Hence the impugned order dated 30.10.2019 has been issued as per the applicants' eligibility and rules in force and therefore there is no illegality in the said order. Hence they prayed for dismissal of the OA.
5. Heard learned counsels, MrP.Ulaganathan, for the applicant and Mr.Su.Srinivasan, for the respondents.
5, Learned counsel for the applicant contended that the applicants have joined the respondent department as Technical Assistants in the pre-revised pay scale of Rs.5000-150-8000, on 09.03.1981, 03.10.1979, 06.09.1979, 19.03.1982 29.11.1980, 20.03.1980, 11.01.1982, 07.07.1984, 14.12.1979 respectively. While so, to mitigate the hardship of stagnation in the same post, the ACP Scheme was introduced on 09.08.1999 as per which an employee is entitled for two financial upgradations, oné on completion of 12 years and another after completion of 24 years of regular service. Accordingly, the applicants who were working as Technical Assistants have been granted first financial upgradation under the ACP Scheme in the pre- revised pay scale of Rs.5500-175-9000 with effect from 01.03.2000, 01.10.1999, 01.09.1999, 01.03.2000, 01.11.1999, 09.08.1999, 01.01.2000, 09.08.1999 & 01.12.1999 instead of 09.08.1999. However, they have not been granted the benefit of second ACP in the pre-revised scale of Rs.8000- 275-13500 for which they are eligible and entitled. Since the applicants' pay scales have not been fixed in the appropriate pre-revised pay scale while grant of second ACP benefit, the applicants were denied the further benefit 9 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1594/2019 for which they are eligible and entitled on refixation, after the introduction of the MACP Scheme.
6.1 The applicants are relying upon the various orders passed by this Tribunal as well as other co-ordinate Benches on similar issue wherein similarly situated employees who have been initially granted the benefit of second ACP in the appropriate pre-revised pay scale and subsequently withdrawn, approached this Tribunal against the said recovery of overpayment made retrospectively and this Tribunal after relying upon the order passed by the CAT, Principal Bench have set aside the order of recovery and directed the respondents to extend the benefit which has been already granted and return the amount if any recovered from them. The respondents have implemented the said orders and granted the further benefits to the applicants therein.
6.2 Learned counsel for the applicant also relied upon the order passed by the Hon. High court of Kerala in WP © No.31538 of 2007 dated 27.07.2015 wherein dealing into the same issue, the Court has confirmed the orders passed by the Tribunal after taking into consideration, the orders dassed by the PB CAT on the ground that when the applicants were permitted to enjoy the benefit for a long period and the said attempt of recovery was made without giving a fair hearing when there was no fraud/misrepresenzation has been committed by the employees/applicants therein and the said order of the Hon. High Court attained finality when the Hon.Supreme Court dismissed the appeal filed by the department on 20.01.2016 in Civil Appeal No.2488/2009. Therefore, the applicants herein have made a request, vide their representations and requested to prepone their date of first ACP from 2000 to 1999 and to grant the benefit of second ACP which is attached the post of Assistant Technical Advisor in the pre-revised pay scale of Rs.8000- 10 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 13500 under the said financial upgradation and refix the applicants' pay in terms of CCS (RP) Rules, 2008 dated 30.08.2008 w.e.f 01.01.2006 as per the VI CPC's recommendations and as per the fitment table corresponding to the pay fixed in the pre-revised pay scale in the replacement pay structure and also requested to grant the benefit under Para 5 of the MACP Scheme by ignoring the first financial upgradation under the ACP as well as grant the second and third financial upgradation under the MACP. Since there is no consideration, the applicants have approached this Tribunal in earlier round of litigation by filing OA 1693-1701/2018 wherein this Tribunal, vide order, dated 21.12.2018 directed the applicants to make a fresh representation with further direction to the respondents to consider the same in accordance with law. Accordingly, the applicants have submitted their fresh representations in the year 2019 and vide order, dated 30.10.2019, the respondents have declined to extend the said benefit to the applicants. 6.3 In support of his contention, the learned counsel for the applicant has also relied upon the judgment of the Hon. Supreme Court in Civil Appeal Nos.4134-4137/2022 dated 18.05.2022 to explain the delay and latches although he has submitted there is no delay in the matter of the applicants to approach this Tribunal since in pay/pension matters there is a recurring cause of action.
6.4 -Learned counsel for the applicant has relied upon the judgment of the Hon. Supreme Court in Civil Appeal No.1297/1977 dated 02.12.1977, the relevant portion of the judgment is extracted hereunder:
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention il OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 to the observations of Bose J. in Gordhandas Bhanji."
6.5 'He has also relied upon the order passed by the Hon. High Court of Madras at Madurai in WP Nos.1133,1143/2016 with other connected matters (CDI 2017 MHC 2563) dated 28.03.2017 on the ground that the respondents cannot supplement the rejection order by way of affidavit. The relevant portion of the order is extracted hereunder:
"However, it is not appropriate to ignore totally the explanations at the time of passing the impugned order and then try to establish before this Court that the explanations have no. merits. It is a well settled proposition of law that the reasons have to be seen from the order and cannot be supplemented by way of affidavit or otherwise before this Court when the order is challenged. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SC 851 wherein the Hon'ble Supreme Court has held as follows:
8.The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds jater brought out."
6.4 Learned counsel for the applicant also submits that though the applicants have not raised their grievances in time, the respondents cannot deny the said benefit to the applicants and they have not given any justifiable reason while rejecting their request.
7. On the other hand, learned counsel for the respondents vehemently opposed the relief on the ground of delay stating that none of the applicants have raised their grievances against the said upgradation or pay scale as and when the right was accrued to them, i.e., when they have been not granted such benefit. To challenge the said action of the respondents, the cause of action for the applicants arose on the date on which they were granted the financial upgradation, but they chose to remain silent when cause was there to raise their grievances and even during their service till they retired they toe Oe oe FIAT Se 12 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 have not raised the same and all the applicants have approached the respondent authorities almost 7 to 8 years after their retirement and thereafter to this Tribunal. Hence the applicants are not entitled for any relief.
7.1 Learned counsel for the respondents further arqued that none of the applicants in the present OAs, claiming the benefit of the order of this Tribunal as well as the orders passed by the Ernakulam Bench of this Tribunal, were appointed as Demonstration Officer/Senior Technical Assistant. All these applicants were appointed as Technical Assistants and on the recommendation of the V CPC, 50% of posts in the grade of Demonstration Officers/Senior Technical Assistant/Chemist should remain in the existing pay scale of Rs.5500-9000/- and redesignated as Grade II, while the remaining 50% should be upgraded in the pay scale of Rs.6500-10500/-, vide Ministry's Order No. No.A-11020/2/2004-NA dated 18.01.2006. After implementation of the above said order, the hierarchy of post in FNB fs as follows:
(i) Technical Assistant / Demonstrator - Rs.5000-150-8000/-.
(ii) Demonstration Officer / Senior Technical Assistant / Chemist Grade IT Rs. 5500-175-9000/-.
(iii) Demonstration Officer / Senior Technical Assistant / Chemist Grade I- Rs.6500-200-10500/-.
(iv) Assistant Technical Adviser - Rs. 8000-275-13500/-.
(v) Deputy Technical Adviser - Rs. 10000-325-15000/-.
(vi) Joint Technical Adviser - Rs. 12000-375-16500/-
(vii} Technical Adviser - Rs. 14300-4000-18300/-.
7.2 Learned counsel for the respondents further submits that the post hierarchy clearly establish that the Demonstration' Officer/Senior Technical y ¢ 13 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 Assistant (bifurcated as DO.II and DO.I) Cadre is totally different from Demonstrator and Technica! Assistant. The O.A. Nos.197-200 of 2006 pertains to DO.II and DO.I. But in the present case, the applicants, belong to Demonstrator/Technical Assistant as initial appointment. Hence the present case cannot be compared to the previous 0.A.Nos.197-200/2006.
He further argued that on implementation of the VI CPC recommendations, the scales of Rs,5000-8000/-, Rs.5500-9000/- and Rs.6500-10500/- were merged and given as Rs.9300-34800/- with GP Rs.4200/-. Vi CPC also recommended merger of feeder cadre and promotion cadre, Technical Assistant/Demonstrator were granted Rs.4200/- grade pay and Demonstration Officer were granted Rs.4600/- as grade pay w.e.f.01.01.2006, 7.3 The applicants joined the respondent department in the post of Technical Assistant. On completion of 12 years and after implementation of the ACP scheme, they were granted the first financial upgradation in departmental hierarchy of Dos, in the pay scale of Rs.5500-175-9000/-. On completion of 24 years of service, the applicants were granted second financial upgradation in the departmental hierarchy, in the pay scale of Rs.6500-200- 10500/-. After implementation of the VI CPC, the first financial upgradation has been changed in the departmental hierarchy scale of PB-2 with Grade Pay of Rs.4600/- and the second financial upgradation in the scale of PB-2 with Grade Pay of Rs.4800/-. All the applicants, except the applicants in OA 1691/2019 & 1694/2019 were granted the 3rd financial upgradation under the MACP, the pay scale of Rs.9300-34800/- with grade pay of Rs.5400/- with effect from the date of completion of 30 years of service from their initial appointment and since the applicants In OA 1691/2019 & 1694/2019 retired from service before completion of 30 years, 14 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 they were not granted third financial upgradation. All the financial upgradations were granted as per the applicable rules. It is further submitted that accordingly all the financial upgradations were granted as per the applicable rules at that time when the applicants were entitled for such benefit under the financial upgradation of ACP on recommendation of the VI CPC as well as financial upgradation under the MACP., Therefore, learned counsel for the respondents submits that raising question at this time that they have not been granted the benefit as per the recommendation is not sustainable, that too, 7 to 8 years after their retirement. After accepting the said benefit, none of the applicants have raised their grievances -before the authorities that they have been given wrong fixation under the financial! upgradation.
7.4 Learned counsel for the respondents further submits that on implementation of VI CPC, the three pay scales, i.e., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, got merged to the corresponding revised Pay Band of Rs.9300-34800 with grade pay of Rs.4200/-. Hence , the first ACP granted to the applicants in the pay scale of Rs.5500-9000 was already ignored and they were granted I ACP in the grade pay of Rs.4600. With regard to the Apex Court judgment relied upon by the applicants, learned counsel for the respondents submits that the applicants were appointed as Technical Assistant/Demonstrator in the pay scale of Rs.5000- 150-8000/- (V CPC scale) and the referred Apex Court Order is applicable to the incumbents holding the post of Demonstration Officer at the time of initial appointment. Hence, granting of the second ACP in the pay scale of Rs.8000-275-13500/- (hierarchy post of ATA) does not arise and is against the Rules of ACP. Therefore, the claim of the applicants is entirely different frorm that of the employees who filed OA before different Benches of this Tribunal with regard
i) 15 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 to post and cadre. Hence, no parity can be claimed. He further submitted that the applicants who have been appointed as Technical Assistants in pay scale Rs.5000-8000 were granted 1* financial upgradation under ACP Scheme and the same was already ignored as per para 5 of the MACP OM dated 19.05.2009 of DOPT and revised and 2 and 3 MACP already granted as per the eligibility and rules in force.
7.5 wherein the details of all the applicants are given as under:
Learned counsel for the respondents has also placed detailed chart, OA |Date of]/Grant of ACP Grant of MACP Date of|Date of No appointm Superann | First ent uation representa tion 1685 |09/03/81 jist ACP TI MACP 31.05.11 |28/12/18 of -09.08.1999 ( as (01.09.2008 2019 per the self PB2 9300-34800 exercised option |GP-4800 pay fixation done on 01.03.2000 at /TTT MACP 5500-9000 09.03.2011 PB2 9300-34800 2" ACP GP 5400 ~09.03.2005 at 6500-10500 1686 {03/10/79 |1* ACP II MACP 31/03/13 |29/12/18 of -09.08.1999 ( as }01.09.2008 2019 per the self PB2 9300-34800 exercised option |GP-4800 pay fixation done on 01.10.1999 at|III MACP 5500-9000 03.10.2009 PB2 9300-34800 2" ACP GP 5400
-03.10.2003 at 6500-10500 1687 |06/09/79 |1* ACP JI MACP 28/02/14 |26/12/18 of ~09.08,1999 ( as [01.09.2608 2019 per the self PB2 9300-34800 exercised option |GP-4800 pay fixation done on 01.09.1999 at|/III MACP 5500-9000 06.09.2009 PB2 9300-34800 2" ACP GP 5400
-06.09.2003 at PT SET "Redes © ogy 16 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 6500-10500 1688 |19/03/82 |i ACP II MACP 30/04/12 {31/12/18 of -09,08,1999 ( as |01.09.2008 2019 per the self PB2 9300-34800 exercised option |/GP-4800 | pay fixation done 1 on 01.09.1999 at/ITI MACP ' 5500-9000 19.03.2012 PB2 9300-34800 2°° ACP GP 5400
-06.09.2003 at 6500-10500 ;
1689. [29/11/80 |1* ACP Il MACP (31/12/14 '26/12/18 | of -09.08.1999 ( as [01.09.2008 2019 per the self PB2 9306-34800 exercised option |GP-4800 pay fixation done : on 01.11.1999 atjITT MACP E 5500-9000 29.11.2010 PB2 9300-34800 2rd ACP GP 5400
-29,11.2004 at 6500-10500 | | 1690 |20/03/80 | 1% ACP Tl MACP 31/08/17 ;28/12/18 ; of -09.08.1999at (01.09.2008 2019 5500-9000 PB2 9300-34800 | ;
2"¢ ACP GP-4800 | | ~01.08.2004 at | 6500-10500 III MACP | ' 20.03.2010 PB2 9300-34800 GP 5400 1691 |11/01/82 }1* ACP II MACP 31/05/11 of ~09,08.1999 ( as |01.09.2008 2019 per the self PB2 9300-34800 exercised option |GP-4800 pay fixation done on 01.01.2000 at | ' 5500-9000 2™ ACP
-11.01.2006 at 6500-10500 1693 |07/07/84 |1* ACP II MACP 29.02.19 [02/04/19 of ~-09.08.1999at |01.09.2008 2019 5500-9000 PB2 9300-34800 2"3 ACP GP-4800
-07.07.2008 at 6500-10500 III MACP 07.07.2014 | PB2 9300-34800 | GP 5400 17 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 1694 [14/12/79 |1* ACP 31/03/06 |27/12/18 | of | -09.08.1999 ( as | 2019 | per the seif | | ; ; | 'exercised option pay fixation done on 01.12.1999 at 5500-9000 2" ACP
-14,12,2003 at 6500-10500 7.6 The learned counsel for the respondents further submits that as per the recommendation of the V CPC, 50% of the posts in the grade of Demonstration Officer/Senior Technical Assistant/Chemist should remain in the existing pay scale of Rs.5500-9000 and redesignated as Grade IT while the remaining 50% should be upgraded in the pay scale of Rs.6500-10500, vide Ministry's order dated 18.01.2006. Accordingly, on implementation, the hierarchy of the post has been notified. Learned counsel for the respondents further submits that none of the applicants were given wrong pay scale.
Their pay has been fixed under the benefit of the 2" ACP rightly. None of the applicants have raised objection on their pay upgradation at that time. Relying upon the judgments only, now they want to treat them at per with those. employees before the courts, however, they are not actually at par with them. They belong to a lower category. Therefore, they cannot claim the benefit which is granted to the higher category. On facts itself, the applicants' case is different from those cases.
7.7 The learned counsel for the respondents relied upon the order of the Hon. Supreme Court in UOI Vs. C.Girija, dated 13.02.2019, to support his objection, raised on the ground of delay.
"12. This Court had occasion to consider the question of cause of action in reference to grievances pertaining to service matters. This Court in C.Jacob Vs. Director of Geology and Mining and Another, (2008) 10 SCC 115 had occasion to consider the case where an employee was terminated and after decades, he filed a representation, which was decided. After decision of the representation, he filed an 18 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 O.A. in the Tribunal, which was entertained and order was passed. In the above context, in paragraph No.9, following has been held:-
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not invoive any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex- employee files an application/writ petition. not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
13. This Court again in the case of Union of India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59 on belated representation laid down following, which is extracted below:-
"15. When a belated representation in regard to a "stale" or "dead"
issue/dispute is considered and decided, in compliance with a direction by the couri/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time- barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
14. Again, this Court in State of Uttaranchal and Another Vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh following was laid down:-
"19, From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix.
Similarly, a mere submission of representation to the competent authority does not arrest time.
23.In State of T.N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para
16) "16. ... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay andfor laches on the part of a government 19 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2015 servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
7.8 Learned counsel for the respondents argued that mere fact that the representation was replied to by the department that does not extend the period of limitation from the original case. He has also relied upon the order, dated 02.02.2022, of CAT Bangalore Bench in OA 390/2020. The relevant Paras of the said order are extracted hereunder:
"9.In their reply to MA No: 264/2020, respondent No.2 has filed objections to the MA and have averred as under:
a} The applicant had retired on superannuation with. effect from *30.09.2016 and he has filed the present OA in the year 2020, after a lapse of 4-years. The application therefore deserves to be dismissed on ground of delay alone. The respondents have submitted that Hon'ble Supreme Court has categorically ruled in many cases that stale claims cannot be gone into by this Tribunal.
b) The respondents have relied upon Hon'ble Supreme Court case in UO! vs. MK Sarkar (2010) 1 SCC (L&S) 1126in which the Apex Court has observed that issue of limitation or delay and latches has to be ;
considered with reference to original cause of action and not with reference to date on which an order is passed in compliance with courts directions.
c) The applicant had retired from railway service 4 years back in the year 2016 and the present OA is filed in 2020. Hence the present MA as 'weil as the OA needs to be dismissed.
22.In its judgment dated 05.03.2020 passed by the Supreme Court of India in SLP (C) No. 8271/2014 titled Union of India vs. MV. Mohanan Nair, the Honourable Apex Court has observed as follows:-
29. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of alt the disparities and the representations of the employees.
The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of india. After accepting the recommendation of the Sixth Centra! Pay Commission, the ACP Scheme was withdrawn and the same 20 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body -- Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter- departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer. {emphasis added)
23.The above judgement by the Apex Court has clearly laid down the parameters for judicial review of issues which have been finalised by the Government based on recommendations of an expert body such as the Pay Commission. The MACP scheme formulated by the Government based on recommendations of the Sixth Pay Commission j 'has clearly laid down the parameters for granting of financial upgradation to employees facing stagnation. Under this scheme, there is no provision for simultaneous grant of MACP-Il and MACP -ill after 20 years from the grant of first promotion.
28.The applicant, vide his MA No: 264/2020, has also prayed for condonation of delay of around 2 years and 7 months from the date of issuance of the modified order dated 16.08.2016. The only ground in the MA for condonation of delay is that he came to know about the case of a Station Master at Mysore Division, who has been granted a similar relief on 10.12.2018 based on Court Orders in OA.No.187/2016 dated 21.7.2017 passed by this Tribunal.
29,The respondents have objected to the grant of condonation of delay in this case relying on the judgement of the Hon'ble Apex Court in the 'case of UOI vs. MK Sarkar (2010) 1 SCC (L&S) 1126,where it has been ruled that the issue of limitation or delay and latches has to be considered with reference to original cause of action and not with reference to the date on which an order is passed in compliance with Court directions.
j 30.Keeping the above in view, we find no justifiable reason for condonation of delay in filing the present OA, Hence the prayer made in the MA seeking condonation of delay in filing the present OA also deserves to be dismissed, en (2 21 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019
31.There is, therefore, no merit in the OA, as well as inthe MA seeking condonation of delay, filed by the applicant and both deserve to be dismissed. Accordingly, the OA, as well as the MA seeking condonation of delay, are dismissed."
8. tt is to be noted that, admittedly, all the applicants were granted the financial upgradation benefit under the ACP Scheme/MACP Scheme and, accordingly, on the recommendation of the VI CPC, their pay was fixed.
9. It is to be noted that as per the recommendation of the V CPC, 50% of the posts in the grade of Demonstration Officer/Senior Technical Assistant/Chemist should remain in the existing pay scale of Rs.5500-9000 and redesignated as Grade IT while the remaining 50% should be upgraded in the pay scaie of Rs.6500-10500, vide Ministry's order dated 18.01.2006. Accordingly, on implementation, the hierarchy of the post has been notified.
10. it is to be noted that the applicants in the present OAs have been appointed as Technical Assistants/Demonstrators and subsequent to the recommendations, the next post in hierarchy has been bifurcated as Demonstration Officer Grade II and Demonstration Officer Grade I. The issue was under consideration and finally the same came to be implemented on 18.01.2006.
11. It is to be noted that against the first financial upgradation, the persons who were holding the post of Demonstration Officer are entitled to seek the benefit of the next post in the hierarchy, since during the said 12 years period they had not got any promotion and were stagnating and in order to mitigate the hardship of stagnation, they are entitled to financial upgradation under the ACP Scheme. Accordingly, those persons have been granted the benefit, however, when the recommendation of V CPC was implemented, the error has been noticed, therefore, the respondents have initiated the action of recovery against which the said employees approached 22 OA 1685,1686,1687, 1688, 1689,1690,1691,1693 & 1694/2019 the Tribunal/High Court. The Hon. High Court, relying upon the order passed by the CAT, PB, have not accepted the stand taken by the respondents on the ground that the employees were permitted to enjoy the benefit for long period and, subsequently, when the said benefit was sought to be withdrawn, the applicant were not given any fair hearing before issuing such recovery orders. Therefore, the Tribunal as well as the Hon. High Court has not allowed the respondents to recover the amount granted under the said benefit.
12. It is to be noted that, in the present OAs, the applicants were not granted such a benefit. Moreover, the applicants were granted the benefit as per the recommendations of the V CPC, by which 50% of the posts in the grade of Demonstration Officer/Senior Technical Assistant/Chemist should remain in the existing pay scale of Rs.5500-9060 and redesignated as Grade I, while the remaining 50% should be upgraded in the pay scale of Rs.6500- 10500, vide Ministry's order, dated 18.01.2006. The applicants have accepted the said pay fixation at that time and, till their retirement, they have not raised any grievance. As rightly observed by the Hon. Supreme Court in the matter of UOI Vs. V.Girija and the co-ordinate Bench, Bengaluru, on the ground of delay, the cause of action for the applicants arose when they were granted the benefit under the 2™ ACP, way back from the year 2003 to 2006. They should have raised their objection at that time.
13. Itis also to be noted that the applicants have approached this Tribunal for the first time in OA Nos.i693-1701/2018, whereby liberty was given to the applicants to make a fresh comprehensive representation but that does not extend their period of limitation.
14. It is also to be noted, on bare perusal of the facts, that on the recommendations of the V Pay Commission, 50% of the - .s in the grade
--_-- we a = 23 OA 1685,1686,1687,1688,1689,1690,1691,1693 & 1694/2019 of Demonstration Officer/Senior Technical Assistant/Chemist was to remain in the existing pay scale of Rs.5500-9000 and be redesignated as Grade II, while the remaining 50% was to be upgraded in the pay scale of Rs.6500- 10500. As per the Ministry's order, dated 18.01.2006, the respondents have implemented the bifurcation and, since the applicants were entitled to their second pay upgradation under the ACP Scheme, they were rightly granted "financial upgradation in the pay scale of Rs.6500-10500. It is also to be noted that, in the matter of grant of thé MACP benefit, the issue has: already been settled by the Hon. Supreme Court of India in a catena of cases, more particularly in the Union of India Vs. Mohanan Nair, in SLP(C) No.8271/2014, vide order, dated 05.03.2020, that the employees are only entitled to grade pay and not to the pay scale in the promotional hierarchy. Therefore, in our considered opinion, the respondents have rightly rejected the claim of the applicants by demonstrating the entitlement under the promotional hierarchy after the Vth CPC recommendations. None of the applicants have raised their objection at the time of grant of the financial upgradation, which they themselves accepted til! 2017. Hence, we do not find any merit in the OAs and no interference is called for. Accordingly, OAs are dismissed. No order as to costs.
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