Central Administrative Tribunal - Ahmedabad
Bhupendrasinh A Chudasama vs Central Excise & Customs on 17 January, 2024
::1 :: OA No. 511/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 511/2016
Dated this the 17th day of January, 2024
Reserved on: 06.10.2023
Pronounced on: 17.01.2024
CORAM:
Hon'ble Dr. A. K. Dubey, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
1. Bhupendrasinh Amarsinh Chudasama
Age: 60 years (DoB being 23.06.1956)
Son of Shri Amarsinh S Chudasama
Retd. Assistant Commissioner of Customs,
Jamnagar Commissionerate, No. 24,
Devpriyan Bungalows,Opp. Sahajanand Complex,
Ahmedabad
Bench
Stadium Road, Motera, Sabaramati, Ahmedabad 380 005.
... Applicant
(By Advocate Mr. M S Rao)
V/s.
1. Union of India (To be represented through
its Secretary to the Government of India,
Department of Revenue, Ministry of Finance,
Government of India, North Block, New Delhi 110 001)
2. Central Board of Excise & Customs,
(Through its Chairman, CBEC, Department of Revenue,
Ministry of Finance, Government of India,
Room No. 502, HUDCOVishala Bldg.,
Bhikhaji Cama Place, RK Puram, New Delhi 110 066)
3. The Principal Commissioner Customs (Prev.)
O/o The Commissioner of Customs (Prev.)
"Sarda" House, Bedi Bandar Road,
Near Panchvati , Jamnagar 361 008
4. The Chief Accounts Officer
O/o CAO, Customs (Prev) "SARDA" House, Bedi Bandar Road,
Near Panchvati, Jamnagar 361 008
5. The Senior Accounts Officer Customs (Preventive),
Jamnagar, O/o The Pay and Accounts Officer (Prev)
"Milestone", 6th Floor, Bedi Bandar Road, Jamnagar 361 002.
... Respondents
(By Advocate Ms. R R Patel)
::2 :: OA No. 511/2016
ORDER
Per: Hon'ble Dr. A. K. Dubey, Member (A)
1. Aggrieved by the communication dated 12.02.2015 in which the respondents have disallowed the grade pay of Rs. 6600/- (in PB-3) and had directed to re-fix his salary, the applicant has filed this OA seeking quashing of this communication dated 12.02.2015 (Annexure A/1) and the connected communications dated 13.02.2015 (Annexure A/2), the revised pay fixation order dated 12.02.2016 (Annexure A/3), the communication to the Pay and Accounts Officer dated 17.02.2016 (Annexure A/4) and the pension payment order communication dated 29.02.2016 Ahmedabad Bench (Annexure A/5).
2. The case of the applicant is that he had joined as Direct Recruit Inspector on 20.05.1982. He received his first promotion as Superintendent of Central Excise and Customs on 25.01.2000 in the pay scale of Rs. 6500-10500/-. This promotion was w.e.f. 09.03.2000. However, at that point in time, the Assured Career Progressing Scheme (ACP Scheme) was in force under which he had received his 1st upgradation in the scale of Rs. 6500 - 10500/- on 04.02.2001 but w.e.f. 09.08.1999. Later, after having completed four years of service in the grade of Superintendent as on 01.01.2006, his pay was fixed in the Pay Band - 2 with grade pay of Rs. 5400/- as on 01.01.2006 as per the extant rules. 2.1 Later, in view of the fact that the applicant had completed 24 years of regular service as on 20.05.2006, the applicant received his 2nd upgradation under ACP in PB-3 with grade pay of Rs. 5400/. After the acceptance of the recommendations of the 6th Pay Commission, the scheme of ACP was modified which came to be known as MACPS which provided for financial upgradation on completion of 10, 20 and 30 years of service provided the person had spent 10 years continuously in the same grade pay. So, vide order dated ::3 :: OA No. 511/2016 07.05.2010, the applicant got the 2nd financial upgradation w.e.f. 20.05.2006 (Annexure A/7) Later, he got the 3rd financial upgradation under MACP scheme on completion of 30 years of regular service in the pay scale of PB-3 + GP - 6600/- and accordingly, the pay fixation order dated 24.01.2013 was issued (Annexure A/10). It is this fixation which is sought to be disallowed by the impugned order dated 12.02.2015 (Annexure A/1) and the communication dated 13.02.2015 (Annexure A/2) consequent upon which his revised pay fixation was ordered on 12.02.2016 (Annexure A/3).
2.2 The applicant refers to the clarification issued by the respondents in column 7 of their communication dated 29.09.2009 (Annexure Ahmedabad A/11) which reads as under: -
Bench "Thus it is clarified that since the post of Assistant Commissioner (JTS) in the pay scale of Rs.8000-12500 is Group „A‟ one, 3rd financial upgradation would be granted in the Grade Pay of Rs. 6600/-."
This clear stipulation makes it that the Assistant Commissioners (JTS) in the pay scale of Rs. 8000-12500/- being a group-A post would receive the 3rd financial upgradation in the grade pay of Rs.
6600/-. The applicant had got his 3rd upgradation under MACPS vide office order dated 31.12.2012 (Annexure R/5) which was under MACPs w.e.f. 25.05.2012. Meanwhile, the applicant made a request dated 01.01.2015 for voluntary retirement vide his letter/notice intending to voluntarily retire (Annexure A/13). Accordingly, voluntary retirement was notified vide Establishment Order dated 21.09.2015 (Annexure A/18) which came into effect on that very date. Prior to that the applicant was promoted to the rank of Assistant Commissioner in the PB-3 with a grade pay of Rs. 6600/- in November, 2014.
::4 :: OA No. 511/20162.3 The applicant contends that since he was already in the grade pay of Rs. 5400/- in PB-3 by way of his 3rd financial upgradation, the grade pay of Rs. 6600/- upon promotion to the post of Assistant Commissioner was in order. For this purpose, he relies on the judgment of Hon‟ble Madras High Court dated 16.10.2014 in WP No. 11535/2014.
3. The counsel for the respondents mainly argued that in view of the clarification dated 29.09.2009 (Annexure R/6), the grade pay of Rs. 6600/- was permissible to the incumbents in the scale of PB-3 GP - 5400/- i.e., a Junior Time Scale for the Assistant Commissioners upon getting the 3rd financial upgradation. Further, in view of the clarification in the letter dated 20.05.2011, the Ahmedabad replacement scale of Rs. 8000-13500/- was PB-3 +GP-5400/-. Bench However, in the communication dated 04.06.2014 (Annexure R/8) it was very specifically stated that NFSG granted during 01.01.2006 and 31.08.2006 would be counted/ offset against the financial upgrdation under MACP. This benefit of non functional grade (NFSG) was granted` to the Superintendents (Group-B) upon completion of four years of regular service. This letter takes after the instructions from DoPT in which it was clarified that the benefit of NFSG to post of Superintendent after completion of four years would be taken as upgradation in terms of para 8.1of Annexure -1 of the OM dated 11.05.2009 and the same would be offset against one financial upgradation under MACPs (Annexure R/8 colly.). The intent of this letter was further clarified and reiterated in the respondent‟s letter dated 20.06.2016 (Annexure R/9) that the non functional scale in the grade pay of Rs. 5400/- in PB-2 was to be treated as financial upgradation under MACPS. This being the case, the applicant had no eligibility to be put in the grade pay of Rs. 6600/- by way of 3rd financial upgradation under MACPS and in view of these clarifications, his pay was ordered to be re-fixed on account of the grade pay of Rs. 6600/- in PB-3 being ::5 :: OA No. 511/2016 inadmissible to him. It is not discriminatory to the applicant as it follows from the extant rules, the counsel submitted. This clearly follows from para 8.1 of the MACPs which stipulates that the grade pay of Rs. 5400/- in PB-2 and in PB-3 are treated as separate grade pay for the purpose of grant of financial upgradation under MACP.
3.1 The counsel for the respondents stated that it was on the date 09.03.2000 that a regular promotion to the grade of Rs. 6500- 10500/- was given to the applicant. Later, this scale itself was upgraded to 7500- 12000/- w.e.f. 01.05.2004. Then the applicant got his first ACP upgradation on 04.02.2001 but effective from 09.08.1999. In his case, the upgraded pay scale was admitted to Ahmedabad the applicant in 2006 as at that point in time, he was undergoing a Bench minor penalty of withholding of increments for three years.
3.2 The counsel for the respondent further argued that it was in August, 2008 that the 6th Pay Commission‟s recommendations were accepted and the system of pay scales was switched over to the Pay Band + grade pay system. Accordingly, the applicant‟s pay was fixed in PB-2 with grade pay of Rs. 5400/- and w.e.f. 09.05.2002 he had become a regular Superintendent. It was after four years of regular service as Superintendent that he received the PB-2 +GP - 5400/-. Later, vide order dated 07.05.2010 he got his second ACP upgradation to the scale of 8000-13500 (replacement scale PB-3 +5400 grade pay) w.e.f. 20.05.2006. Thereafter, the applicant got the third MACP w.e.f. 20.05.2012 i.e., on completion of 30 years of service, in which he got the Grade Pay of Rs. 6600/- in PB - 3, which, being next in hierarchy was allowed.
3.3 The learned counsel further argued that the 3rd financial upgradation allowed to the applicant was w.e.f. 20.05.2012 and pay was fixed vide pay fixation order dated 24.01.2013. The counsel averred that the applicant had relied upon the letter dated 29.09.2009 (Annexure A/11) and letter dated 20.05.2011 ::6 :: OA No. 511/2016 (Annexure R/7) but the letter dated 04.06.2014 (Annexure R/8) clarified that the Grade Pay of Rs. 6600/- was inadmissible and this inadmissibility was further reiterated in the letter dated 20.06.2016 (Annexure R/9). She argued that disallowing the grade pay of Rs. 6600/- by way of 3rd financial upgradation was therefore in order. She further amplified that in view of the said letters, allowing PB-3 + Rs.6600/- as 3rd financial upgradation from PB-3 + Rs. 5400/- was wrong and irregular which had been corrected by withdrawing the Grade Pay of Rs. 6600/-.
4. Heard both the counsel at length. Instructions emerging from the letters and circulars mentioned in the discussions and submissions above clearly lay down that the non functional upgradation after Ahmedabad four years of continuous service in the rank of Superintendent by Bench allowing a grade pay of Rs. 5400/- in PB-2 is to be counted as one upgradation while counting financial upgradation as per the instructions contained in MACP mandated by the Office Memorandum dated 19.05.2009. In this case, the applicant had joined as a Direct Recruit Inspector on 20.05.1982. He received his regular promotion to the rank of Superintendent of Central Excise and Custom on 25.01.2000 which was effective from 09.03.2000. However, on 04.02.2001 he received his first upgradation under ACP upon completion of 12 years of service under the (earlier) ACP scheme. This upgradation was effective from 09.08.1999. Consequent upon this first ACP upgradation, he was given the scale of Rs. 7500-11500 w.e.f. 09.08.1999 alhough he had got this scale by way of regular promotion w.e.f. 25.01.2000. Further, upon completing four years of regular service as Superintendent as on 01.01.2006, he became entitled to grade pay of Rs. 5400/- in PB-2 and his pay was fixed accordingly. Later, upon completion of 24 years of regular service as on 20.05.2006, he was granted second ACP upgradation which took him to the scale of 8000-13500/- of which the replacement pay ::7 :: OA No. 511/2016 scale under 6th CPC was PB-3+ Grade Pay 5400/-. This pay scale he had already received on 01.01.2006 by way of non functional financial upgradation in the rank of superintendent. So, the applicant had received a regular promotion, a financial upgradation under ACP, and a non functional upgradation, before he got his 2nd upgradation under ACP. Subsequently, the applicant was granted the 3rd financial upgradation w.e.f. 20.05.2012 on having completed 30 years of regular service.
5. That he had received non functional upgradation in the scale of PB-
2 +GP-5400/- on completion of four years in the grade of Superintendent on 01.01.2006 is clear from the record. In November 2014, the applicant was granted promotion to Group -A Ahmedabad (Gazetted) post of Assistant Commissioner upon becoming a Bench member of Indian Revenue Service (IRS) and at this stage, his pay was fixed in Pay Band - 3 with grade pay of Rs. 6600/-. It is clear from the communication dated 20.05.2011 and the communication dated 04.06.2014 that grade pay of Rs. 5400/- in PB-2 and PB-3 are two different grades and such upgradation has to be counted for the purpose of financial upgrdatation. The applicant had relied on the clarification in the communication dated 19.09.2009 (Annexure R/6) which has been extracted in Para 2.2 above. That reads as under: -
"It is clarified that since the post of Assistant Commissioner (JTS) in the pay scale of Rs. 8000-12500 is Group „A‟ one, 3rd financial upgrdation would be granted in the Grade Pay of Rs. 6600/-."
The scale of Rs. 8000-12500 was revised as PB-3 + GP-5400/- in the 6th Pay Commission‟s recommendation. It is on this basis that 6600/- grade pay was claimed by the applicant. However, the respondents have chiefly depended upon clarification vide letter dated 04.06.2014 (Annexure R/8) and letter dated 20.06.2016 (Annexure R/9) to establish inadmissibility of the grade pay of Rs. 6600/- in PB-3 to the applicant. However, the subject matter in ::8 :: OA No. 511/2016 both these letters is upgradation under MACPs for Superintendent in CBEC who had received upgradation to Grade Pay of Rs. 5400/- in PB-2 after spending four years in the grade pay of Rs. 4800/- in PB-2. The above referred two letters make it amply clear that the non functional upgradation from Grade Pay of Rs. 4800/- to Rs. 5400/- in PB-2 has to be treated as upgradation and would be off set against one financial upgradation. Here the incumbent in this case was granted regular promotion as Superintendent of Central Excise and Customs on 25.01.2000. However, even though dated 04.02.2001, the applicant received his 1st ACP w.e.f. 09.08.1999 after completing 12 years of service which was in the scale of Superintendent.
Ahmedabad 6. Subsequently, on 01.01.2006 after having completed more than 4 Bench years of service as Superintendent in the Grade Pay of Rs. 4800/-, the applicant became entitled to grade pay of Rs. 5400/- in PB-2 w.e.f. 01.01.2006 and accordingly the same was given to him. In this sequence of upgradations and promotions, he received 2 nd financial upgradation under then prevailing ACP on completion of 24 years of regular service as on 20.05.2006. This ACP was in the grade pay of Rs. 5400/- in PB-3 w.e.f. 20.05.2006 which was incorrect as contended by the counsel for the respondents because the upgradation should have been to PB-2 +5400/-. Thereafter, he became entitled to the 3rd financial upgradation under the MACPS w.e.f. 20.05.2012. By this upgradation, the applicant got the scale of PB-3 + grade pay of Rs. 6600/- w.e.f. 20.05.2012. It is obvious that in the process of non functional upgradation upon completion of four years as Superintendent was ignored which actually should have countend as one upgradation as per the letters dated 04.06.2014 (Annexure R/8) and dated 20.06.2016 (Annexure R/9). Records are clear that the last promotion granted to him was to the rank of Assistant Commissioner which is a Group „A‟ post with a basic scale of PB-3 + GP- 5400/- on which he was already there ::9 :: OA No. 511/2016 under the 2nd ACP and the reply informs that consequent upon his promotion no fixation benefit was given to him. His promotion came w.e.f. 04.12.2014 whereas the 3rd MACPS upgradation consequent upon 30 years of service was given to him on 20.05.2012 (Annexure R/5). Therefore, as long as he had been in the rank of Superintendent he was given grade pay of Rs. 6600/- in PB-3 by way of 3rd MACP. No records have been produced granting substantive or non functional promotion from PB-2 +GP- 5400/- to PB-3+GP-5400/- which is clearly an omission in the light of the letters dated 04.06.2014 and 20.06.2016 and if that is taken into account, grant of grade pay of Rs. 6600/- under 3rd MACP does not appear to be in conformity with the extant instructions under MACPs and letters dated 04.06.2014 and Ahmedabad Bench 20.06.2016.
7. Under these factual matrix, we do not see an indefeasible right of the applicant to claim the grade pay of Rs. 6600/- in PB-3 by way of 3rd financial upgradation. Therefore, the OA fails and we are not inclined to interfere with the orders challenged here. OA is dismissed. No order as to cost.
(Umesh Gajankush) (A K Dubey)
Member(J) Member(A)
PA