Central Administrative Tribunal - Bangalore
Sanath Kumar M vs D/O Revenue on 19 June, 2019
1 OA.NO.170/01877/2018 CAT,Bangalore
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/01877/2018
DATED THIS THE 19TH DAY OF JUNE 2019
HON'BLE SHRI DR. K.B. SURESH, MEMBER (J)
HON'BLE SHRI CV.SANKAR MEMBER (A)
M.Sanath Kumar
S/o late D.Madegowda,
Aged 58 years
Working as Assistant Commissioner of
Central Taxes,
North Commissionerate
SP.Complex, Lalbagh Road,
Bangalore - 560 027. ....Applicant
(By Shri BS.Venkatesh Kumar..... Advocate)
Vs.
1.Union of India represented by
Secretary to Government,
Ministry of Finance
Department of Revenue ,
North Block,
New Delhi-110001.
2.The Central Board of Indirect Taxes
by its Chairman,
North Block, New Delhi 110 001.
3.The Principal Chief Commissioner of
Central Tax, Bengaluru(Cadre
Controlling Authority), PB.No.5400,
Central Revenue Building,
Queens Road,
Bangalore - 560 001. ...Respondents.
(By Shri S.Sugumaran , ACGSC )
2 OA.NO.170/01877/2018 CAT,Bangalore
ORDER (ORAL)
DR. K.B. SURESH, MEMBER (J):
1. Heard. The matter seems to be in a very short compass. Apparently, for promotion prior to 1.1.2018 a Bench mark of 'Good' was required. Apparently, even today it is so. But then one circular was issued indicating that it may be 'Very Good' for granting MACP and in this regard an Circular seems to be issued vide dated 27.1.2018 which we quote:-
"HIGH COURT OF DELHI, NEW DELHI (Establishment-I Branch) No. 107/E-9/Estt.-I/DHC Date: 27.01.2018 CIRCULAR In partial modification of circular No. 608/E-10/Estt.-I/DHC dated 17.08.2017, it is hereby circulated for information of all concerned that O.M.F.No. 35034/3/2015-Estt.(D) dated 27/28.09.2016, issued by the Government of India, Ministry of Personnel, regarding upgradation of benchmark from "Good" to "Very Good" under the Modified Assured Career Progression Scheme (MACPS), is applicable w.e.f. 1st January, 2018. The required grading of "Very Good" will be applicable only in respect of ACRs from the current year, i.e. 2017 onwards. For earlier years grading of "Good" upto the grade pay of Rs.6600/- (pre-revised), will be treated as qualifying/ eligibility criteria for the benefit under the MACP Scheme.
Sd/-
(Shekhar Chandra) Joint Registrar (Estt.)"3 OA.NO.170/01877/2018 CAT,Bangalore
2. Relating to grant of MACP the government seems to have issued a clarification relating to RBE No.86/2019 for Railways Employees which had been placed before us for the purpose of comparison which also we quote:-
"Clarification on MACP Benchmark to Railways Employees- RBE No. 86/2019 Modified Assured Career Progression Scheme (MACPS) for the Railways Employees-Benchmark Regarding - RBE 86/2019 GOVERNMENT OF INDIA MINISTRY OF RAILWAYS Railway Board S.No.PC-VIl/138 No. PC-V/2016/MACPS/1 RBE No. 86/2019, New Delhi, dated 28-5-2019 The General Managers (P) All Zonal Railways & PUs (As per mailing list) Sub:-Modified Assured Career Progression Scheme (MACPS) for the Railways Employees-Benchmark Regarding.
Subsequent to acceptance of the recommendations of 7th CPC by the Government regarding raising the benchmark for performance appraisal for promotion and financial upgradation under MACPS from "Good" to "Very Good". Railway Board vide letter dated 19-12-2016 enhanced the benchmark for grant of financial upgradation under MACPS to "Very Good" tor all posts. These changes were made effective from 25th July. 2016 i.e. from the date of resolution notified by Department of Expenditure, Ministry of Finance regarding acceptance of the recommendations of 7th CPC.
4 OA.NO.170/01877/2018 CAT,Bangalore
2. On the demand raised by the Staff Side persistently in all forums including in the National Council (JCM) for revision of enhanced benchmark on prospective basis, the matter has been considered by the Board and it has been decided that APAR grading "Good" for the period prior to 25-7-2016 i.e. the date from which the new Benchmark was made applicable. may be treated as ··very Good" while considering those cases of MACPS in which APARs for the said period are required to be taken into account.
3. This issues with the concurrence of the Finance Directorate of the Ministry of Railways."
3. Apparently, the Directorate General under the Home Ministry had also issued one OM No.1/Org/MACP/2018(186)/117 dated 10.1.2019 which also we quote:-
"MACP guidance as per recommendations of the 7th CPC Directorate General Sashastra Seema Bel East Block-V, R.K. Puram New Delhi 110066 No. 1/Org/MACP/2018(186)/ 117 Dated: 10th Jan 2019 OFFICE MEMORANDUM This is in reference to DoP&T OM F. No. 35034/3/2015-Estt.(D) dated 27/28.09.2016 regarding enhancement of Benchmark for financial up-gradation under MACP Scheme as per recommendations of the 7th CPC accepted by the Government.
Of late, field units have been seeking clarification regarding the applicability of benchmark 'Very Good' for considering financial up- gradation under MACP Scheme. The matter has been examined at FHQ and the following clarifications are issued for compliance by all concerned:-
(i) For grant of financial up-gradation under the MACPS, the prescribed benchmark would he 'Very Good' for all the posts w.e.f. 25.07.2016.5 OA.NO.170/01877/2018 CAT,Bangalore
(ii) APAR grading 'Good' for the period prior to 25.07.2016 i.e. the date from which the new Benchmark made applicable, may be treated as 'Very Good' while considering such cases by the Screening Committee/BOO.
(iii) There should be at least three 'Very Good' grading and other two not below 'Good' grading out of last five ACRs/APARs considering point (i) &
(ii) in view for arriving at the prescribed Benchmark 'Very Good'. Some illustrations are given in the enclosed Annexure-A for guidance.
Encl:-As above.
(Rakesh Kumar) Commandant(Org)"
4. Following the cumulative effect of these stipulations of various Government Organizations, we had passed an order in OA.75- 77/2018 disposed of on 5.2.2019 which we quote:-
"Heard. Both the counsel submits that the matter is covered by OM No.1/Org/MACP/2018(186)/117 dated 10.1.2019 which we quote:
Directorate General Sashastra Seema Bal East Block-V, R.K. Puram New Delhi - 110 066 No.1/Org/MACP/2018(186)/117 Dated:
10.01.2019 OFFICE MEMORANDUM This is in reference to DoP&T OM F. No. 35034/3/2015-
Estt. (D) dated 27/28.09.2016 regarding enhancement of Benchmark for financial upgradation under MACP Scheme as per recommendations of the 7th CPC accepted by the Government.
Of late, field units have been seeking clarification regarding the applicability of benchmark 'Very Good' for considering financial upgradation under MACP Scheme. The matter has been examined at FHQ and the following clarifications are issued for compliance by all concerned:-
1. For grant of financial up-gradation under the MACPS, the prescribed benchmark would be 'Very Good' for all the posts w.e.f. 25.07.2016.6 OA.NO.170/01877/2018 CAT,Bangalore
2. APAR grading 'Good' for the period prior to 25.07.2016 i.e. the date from which the new Benchmark made applicable, may be treated as 'Very Good' while considering such cases by the Screening Committee/BOO.
3. There should be at least three 'Very Good' grading and other two not below 'Good' grading out of last five ACRs/APARs considering point No. (i) and (ii) in view for arriving at the prescribed Benchmark 'Very Good'. Some illustrations are given in the enclosed Annexure-A for guidance.
Encl:- As above. (Rakesh
Kumar)
Commandant (Org)
To
1. All Frontier Hqrs & SSB Academy
2. All Sector Hqrs & Composite Hospitals
3. All Training Centre's & CSD & W
4. All Bns.
5. Pers-I, Pers-II, Pers-III, Training & Establishment
6. Order File
2. Therefore, OA is disposed of on the same terms, the benefits to be made available within two months next. OA is allowed. No order as to costs."
which apparently covers the entire gamet of the issue raised in this matter. Therefore, we hold that the applicant herein also is eligible for the same benefits. Benefits to be made available within three months next. OA is allowed. No order as to costs.
6. At this point of time Shri S.Sugumaran asks for a clarification. The issue is very very simple. In any legal stipulation the effect can only be prospective unless for verifying significant reasons it has been 7 OA.NO.170/01877/2018 CAT,Bangalore specifically made as retrospective. This is also unchallengeable. That being so when it has been made applicable only from 1.1.2018 prior to that date one cannot assume any effect in such stipulation as well. Therefore, all these cumulative reasons applicant should benefit.
7. OA is allowed. No order as to costs.
(CV.SANKAR) (DR. K.B. SURESH)
MEMBER (A) MEMBER (J)
bk
8 OA.NO.170/01877/2018 CAT,Bangalore
Annexures referred to by the Applicants in OA No.1877/2018 Annexure-A1: Copy of letter dated 7.10.98 and dro dated 7.11.98 Annexure-A2: Copy of order dated 23.9.2002 Annexure-A3: Copy of pay fixation order of NFUG dated 16.8.10 Annexure-A4: Copy of impugned reply dated 13.2.18 Annexure-A5: Copy of forwarding letter dated 19.2.18 Annexure-A6: Copy of 2nd representation dated 12.2.18 Annexure-A7: Copy of representation dated 20.2.18