Central Administrative Tribunal - Delhi
Akhil Tyagi vs Central Board Of Indirect Taxes A& ... on 11 July, 2024
1
Item No. 4/ Court No. 12 O.A. No. 140/2023
Central Administrative Tribunal
Nainital Circuit Sitting.
OA No. 140/2023
This the 11th day of July, 2024.
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A).
1. Akhil Tyagi, Aged about 47 years, Son of Shri Suresh Chand
Singh, resident of C-7, Shastri Nagar, Meerut. Presently
posted as Inspector, in the office of Commissioner, Central
Goods and Services Tax Commissonorate, E-Block, Nehru
Colony, Haridwar Road, Dehradun.
2. Aman Kant Patwal, aged about 55 years, Son of I. N.
Patwal, Resident of 134/1, Bhandari Bagh, Block-2,
Dehradun. Presently posted as Inspector, in the office of
Commissioner, Central Goods and Services Tax
Commissonorate, E-Block, Nehru Colony, Haridwar Road,
Dehradun.
3. Satish Singh Rautela, Aged about 56 years, Son of Govind
Singh Rautela, Resident of Ma Saraswati Sadan, Jagnath
Colony, near Hydrill Gate, Damuwadhunga, Kathgodawn,
Nainital. Presently posted as Inspector in the office of
Commissioner, Central Goods and Services Tax
Commissonorate, AE-II, Haldwani.
4. Rakesh Anand, Aged about 51 years, Son of Shri Madan Lal
Anand, Resident of Anand Niwas, Ward No. 1, Thane Wali
Gali, Missarwala, Doiwala, Dehradun. Presently posted as
Inspector, in the office of Commissioner, Central Goods and
Services Tax Commissonorate, E-Block, Nehru Colony
Haridwar Road, Dehradun.
5. Smt. Ambika Joshi, aged about 51 years, Wife of Shri
Sudeep Joshi, Resident of 140, Lane No. 1, Doon Hills
Colony, Behind Raja Suchna Ayog, Ring Road, Dehradun.
Presently posted as Inspector, in the office of Commissioner,
Central Goods and Services Tax Commissonorate, E-Block,
Nehru Colony, Haridwar Road, Dehradun.
2
Item No. 4/ Court No. 12 O.A. No. 140/2023
...Applicants
(By Advocate: Mr. Sunil)
Versus
1. Union of India through Secretary, Ministry of Finance,
Department of Revenue, New Delhi.
2. The Chief Commissioner, Central Goods and Service Tax,
Meerut Zone, Mangal Pandey Nagar, Opp. Chaudhary Charan
Singh University, Meerut.
3. The Additional Commissioner, Central Goods and Services
Tax Commissonorate, E-Block, Nehru Colony, Haridwar
Road, Dehradun.
4. The Pay and Accounts Officer, Central Board of Indirect
Taxes and Customs, Central Goods and Service Tax, Meerut
Zone, Mangal Pandey Nagar, Opp. Chaudhary Charan Singh
University, Meerut.
...Respondents
(By Advocate: Mr. T.C. Aggarwal.)
O R D E R (ORAL)
In the instant OA, the applicants are seeking the following reliefs:
"i. This Hon'ble Court may be pleased to quash and set aside the impugned order dated 14.02.2023 and 03.08.2022 passed by the respondent No.3 (Annexure No.A-1).
ii. Any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of present case.
iii. Award cost of the original application in favour of the applicants."3
Item No. 4/ Court No. 12 O.A. No. 140/2023
2. At the outset, the learned counsel for the applicant draws our attention to the order dated 14.03.2024 in OA No. 237/2022, CAT, Ahmedabad Bench, wherein the impugned order dated 14.07.2021 has been quashed and set aside. He further submits that the impugned order in the instant matter has been passed on the basis of the impugned order dated 14.07.2021 in OA No. 237/2022, which has been quashed and set aside by Ahmedabad and, therefore in light of the order in OA No. 237/2022 (supra) the impugned order in the instant matter also needs to be quashed and set aside and the OA deserves to be allowed.
3. Opposing the arguments put forth by the learned counsel for the applicant, the learned counsel for the respondents relies upon the averments made in paras 7 , 8, 9, 10 11, 12, 13 & 14, which read as under:
"7. That the content of the Para no. 4.12, 4.13, 4.14 and 4.150.A as concerned with the Hon'ble Supreme Court judgment in state of Punjab Vs Rafiq Masih, and matter of record needs no comment. However regarding the Recovery of excess amount paid to the employees, the Hon'ble Madras High Court vide Order dated OS.072019 in the case ofS. Thomas Granadura vs The Principal Secretary. [W.P. (MD) Nos. 9727 to 9729 of 2015] vide Para 7 has observed as under :
"7. In Chandi Prasad Uniyal's case (Supra), a specific issue was raised and canvassed. The issue 4 Item No. 4/ Court No. 12 O.A. No. 140/2023 was whether the Appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court aftertaking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a http://www.judis.nic.in later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered. While holding so this Court observed at paragraphs 14 and 16 as under:
"14. We are concerned with the excess payment of public money which is often described as"tax payers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see whey the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to abona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reason like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
16. The Appellant in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in 5 Item No. 4/ Court No. 12 O.A. No. 140/2023 the condition of irregular/wrong pay fixation, the institution in which the Appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In suchcircumstances, we find no reason to interfere with the judgment of the High Court. However we order that excess payment made be recovered from the Appellants salary in 12 equal monthly instalments."
In view of the aforesaid observation of Hon'ble Court the contention under paras is not admissible. A copy of judgment and the Honb'le Madras High Courtvide Order dated 08.07.2019 in the case of S. Thomas Gnanadura vs The Principal Secretary. [W.P. (MD) Nos. 9727 to 9729 of 2015 is marked and annexed as Annexure CA 1 to this Counter Affidavit.
8. That the contents of the Para no. 4.16of the O.A is not admitted as stated, it is submitted in reply thereof that the 3rd MACP allowed to the applicants, Inspector is not valid in the light of clarification given vide F.No. A-
26017/2014/2017-Ad.IA dated 14.07.2021 of the Under Secretary, Govt. of India, Ministry of Finance, Dept. of Revenue, CBIC, North Block, New Delhi. As per the said clarification "for the purpose of MACP scheme, service rendered on assumption of charge of the post on regular basis alone will be counted for determining eligibility for the next financial up gradation as the MACP scheme provides that financial upgradation will be admissible to an employee only on spending 10 years tafter actual joining in the post." However, in the cases of Sh. Akhil Tyagi and others, they have been allowed 3rd MACP from the date of their notional promotion i.e. 06.12.2002 instead of his actual joining in the post of Inspector i. The aforesaid clarification also clarifies that the period of notional promotion till assumption of charge of the post on promotion shall not count for determining eligibility for a financial upgradation under MACP scheme, whereas in the case of Sh.
6Item No. 4/ Court No. 12 O.A. No. 140/2023 Akhil Kumar Tyagi and others, period of notional promotion from 06.12.2002 has been counted for determining eligibility for 3rd MACP on 06.12.2012 which is not correct in the light of the said clarification. The Assistant CommissionerCGST Commissionerate Dehradun vide F. No. II20)40V/MACP/Gr-B-C/HQRS/72/2019-20/618 dated 14.02.2023 informed Akhil Tyagi and others about this aforesaid OM and the observations made by Pay and Accounts Officer Meerut in the cases similar to the case of Akhil Tyagi that in the light of clarification given vide F.No. A-26017/2014/2017- Ad.IIA dated 14.07.2021, 3rd MACP granted on basis of notional promotion is not valid and were asked to inform the department if such prior intimation from the department were given to them. In response to said letter dated 14.02.2023 and 03.08.2022 the applicants submitted their representation to the Assistant Commissioner, CGST Commissionerate Dehradun vide their letter dated 17.02.2023 and also filed an OA No. 331/140 of 2023 before the Honb'le Tribunal, who vide its order dated 23.02.2022 has granted interim relief to the impugned order 14.02.2023/03.08.2022 A copy of letter/file No. F.No. A-26017/214/2017-Ad.IA dated 14.07.2021; letter . II(20)Act/MACP/Gr- B- C/HORS/72/2019-20/618 dated 14.02.2023 and letter dated 17.02.2023 are marked and annexed as Annexure No. CA 2, CA 3 and CA 4to this Counter Affidavit.
That the contents of the Para no. 4.17of the O.A as concerned with the matter of record needs no comment. However suitable reply to the contents under para has already been given in the preceding paragraph of counter affidavit needs no further comment.
10. That the contents of the Para no. 4.18, 4.19, and 4.20of the O.A, need no comment being matter of record.
11. That in reply to the contents of the Para no. 4.210.A,it is submitted that Para of the OM dated 7 Item No. 4/ Court No. 12 O.A. No. 140/2023 06 February 2014, stipulates that in all cases where the excess payments on accounts of wrong pay fixation, grant of scale without due approvals, promotion without following the procedure, or inexcess of entitlements etc. come to notice, immediate corrective action must be taken. Therefore as a measure of corrective action, correct fixation of pay is to be done in the present case of Sh. Akhil Kumar Tyagi and others. Further, on perusal of the order passed by the Honb'le Supreme Court in the case of " State of Punjab and others etc Vs Rafig Masih (White Washer)[(2015)4 SCC 334]and subsequent orders passed by the various High Courts and Central Administrative Tribunal in the wake of said order dated 18th December, 2014 of the Honb'le Supreme Court, it is inferred that Honb'le Supreme Court as well as other High Courts have not quashed the re-fixation of pay wrongly fixed but they have quashed only the order of recovery of excess payments arising out of such re-fixation of salary. If the intention of the Honb'le Supreme Court and High Courts was to quash the re-fixation order instead of quashing recovery order, they would have quashed the re-fixation order and recovery would have stood quashed automatically.
COMMISS The aforesaid inference is established from the orders of the High Jurt Madras and CAT Bilaspur passed in the following cases wherein, it is interalia ordered that the correct fixation of pay as applicable to the writ petitioners is to be effected and pension permissible is to be paid in accordance with the rules and the Government order in force. A copy of the Order dated 19.06.2019 passed by Madras High Court in the case of M. Jankai vs The District Treasury Officer, Tirunelveli and order in OA No. 203/00886- 00897/2018 dated 20.09.2019 of CAT, Jabalpur Bench Circuit Sitting : Bilaspur in the case of Milap Ram Chandra & Others Vs 8 Item No. 4/ Court No. 12 O.A. No. 140/2023 UOI are marked and annexed as Annexure CA 5 and CA 6 to this Counter Affidavit.
12. That the contents of the Para no. 4.22, 4.23 and 4.24of the O.A are not admitted as stated hence denied. However the reply to contents underparas has already been given in the preceding paragraphs of this Counter affidavit hence, need no further comments.
13. That the contents of the Para no. 4.25 and 4.26of the O.A. as concerned with the jurisdiction of the Hon'ble Tribunal needs no comments however, it is submitted that the order dated 14.02.2023 and 03.08.2022 passed by respondent no. 3 are just, proper and in accordance with the existing rules.
14. That the contents of ground taken under Para no. 5 (A) to 5 (M) of theO.A are not admitted being misconceived and incorrect and duly replied in the preceding paragraph of the counter affidavit, needs no further comment. The applicants on the basis of grounds taken under para are not entitled for the relief claimed."
4. We have heard the learned counsel for the respective parties, perused the pleadings available on record and judgments relied upon. Analysis/Findings:
5. For better understanding and appreciation of facts, we reproduce the order of Ahmedabad Bench in OA No. 237/2022, which reads as under:
"1. Aggrieved by the communication dated 14.07.2021 issued by the respondents (Annexure A/1), the communication dated 29.06.2021 (Annexure A/2) issued by the respondent no.1 as 9 Item No. 4/ Court No. 12 O.A. No. 140/2023 also establishment order dated 05.08.2022 (Annexure A-3/1)and 30.08.2022 and (Annexure A-3/2) by which the period of notional promotion has not been included as a regular service and instead, for the purpose of calculating the eligible 10 years of service for financial upgradation under MACPS, only the regular service on and after resuming the charge of a post was indicated as countable, the applicants have moved this OA seeking quashing of these communications and declaration that counting the period under notional promotion or upgradation too in the grade of Inspector was just and proper for granting the benefit of second or third financial upgradation to the applicants.
2. The applicant had preferred MA No. 216/2022 for permitting joint application as the main issue involved in their cases is the same. Similarly, another MA No. 347/2022 was moved to carryout amendments in the prayer clause consequent upon issuance of the establishment orders no. 9/2022 dated 05.08.2022 (Annexure A3/1) and 21/2022 dated 30.08.2022 (Annexure A-3/2) issued by the respondents. These two MAs were allowed. In this case, applicants had joined the service of the Central Board of Excise and Customs (CBEC) in different capacities and on different dates. However, they were promoted from the ministerial cadre to the executive cadre in the grade of Inspector of Central Excise and Customs then, on the pay scale of Rs. 5500-9000/-. Later, this pay scale of Inspector was revised to Rs. 6500-10500/- w.e.f. 21.04.2004 vide OM dated 21.04.2004. The relevant service details of the applicants are at Annexure A/4.
2.1. The pay scale of Rs. 6500-10500/- came to be revised as PB-2 with grade pay of Rs. 4600/- consequent upon implementation of 6th Pay Revision recommendations. Earlier, the Assured Career Progression (ACP) Scheme was there since 09.08.1999. However, with the implementation of the recommendation of 6th Pay Revision the ACP 10 Item No. 4/ Court No. 12 O.A. No. 140/2023 was modified vide Office Memorandum dated 19.05.2009 and rechristened as MACPS (Annexure A/5). Under the MACPS, financial upgradation at the intervals of 10, 20 and 30 years of continuous regular service was made admissible to the Central Government employees. Accordingly, upon completion of 10 years of regular service in a single grade i.e., Inspector, the applicants were granted their financial upgradation in the grade of PB-2 +GP-4800/- by way of their second or third financial upgradation (as per their details at Annexure A/6). These upgradation were granted after the due screening process as laid down in the OM dated 19.05.2009 (Annexure A/5). 2.2 In accordance with the direction of CBEC in their letters dated 26.09.2005 (Annexure R/3), 17.05.2006 & 19.07.2006 (Annexure R/4) with regard to implementation of various common orders of Hon‟ble Andhra Pradesh High Court and various orders of Coordinate Benches of this Tribunal, review DPC meeting was held on 23.05.2014 to review the findings of DPC held on 25.11.2002 for promotion to the grade of Inspector in the combined cadre of Gujarat Zone. As decided in the review DPC, the candidates were notionally promoted to the grade of Inspector w.e.f., 19.07.2001 vide establishment order No. 53/2014 dated 11.06.2014 (Annexure A/7). This order specifies that the monetary benefit will be admissible w.e.f. from the date of actual assumption of charge in the grade of Inspector. Of course the process of exercising of options within a month regarding pay fixation etc. were permitted as per rules.
2.3. The Madras Bench of this Tribunal passed the order dated 24.02.2014 in OA No. 675/2013 and CBEC‟s decision pursuant thereto, on the issue of financial upgradation under MACP Scheme to the superintendent of Central Excise and Customs, vide the establishment order No. 34/2014 dated 22.08.2014 proceeded to cancel/revise the date of financial upgradation granted to certain officials.11
Item No. 4/ Court No. 12 O.A. No. 140/2023 The main issue there was that an officer was to become eligible for grant of MACP on completion of 10, 20 and 30 years of regular service or stagnation for a period of 10 years in the grade whichever is earlier. This enunciated the changes in the date of promotion to the grade of Inspector. 2.4 The applicants were thereafter promoted to the grade of Superintendent in the pay scale of PB-2 + GP - 4800/- w.e.f. 30.09.2014 vide establishment order no. 99/2014 dated 30.09.2014 (Annexure A/9).
2.5. In accordance with recommendation of the Sixth Pay Commission, the benefit of the non functional upgradation to the Grade Pay of Rs. 5400/- in PB-2 was allowed after four years of service in the Grade Pay of Rs. 4800/-. It is the say of the applicant that this four years of service was counted only on the regular service basis and their date of notional promotion in the grade of PB-2 + GP-4800/- was not taken into account. Therefore, the applicant approached Hon‟ble High Court of Gujarat vide SCA No. 19396/2018 which was allowed and considering it the applicants were granted nonfunctional upgradation on completion of four year in Grade Pay of Rs. 4800/- and accordingly their pay was fixed at Grade Pay of Rs. 5400/- (pay slips at Annexure A/10). 2.6. However, upon noticing pay anomaly in some cases, in comparison with some juniors, those applicants made a representation for removal of anomaly (Annexure A/11). Later, communication dated 27.04.2022 (Annexure A/13) was issued indicating that as per the Board‟s (CBCE) clarification dated 14.07.2021, the financial upgradation was to be admissible to an employee on spending 10 years after actual joining in the post and if one had not worked in past on that grade, one would not get paid for it. This was similar to the principle of no work no pay and on this ground, the representations were dismissed. It is the say of the applicant that after 7 to 8 years of 12 Item No. 4/ Court No. 12 O.A. No. 140/2023 service, the whole issue is unfavourably revised by the impugned communication on the wrong interpretation of the term "regular service". The OA relies on the decision of Hon‟ble Supreme Court in Union of India Vs. K B Rajoria in which it was held that the Hon‟ble High Court erred in equating the words "regular service" as "actual physical service" and if that were so then an adhoc appointee who actually serves in the post could also claim to be qualified to consider for the post. The counsel for the applicants also relies on Hon‟ble Apex Court‟s decision passed in K. Madhvan Vs Union of India [1987 (4) SCC 566] where it was laid down that the expression: "on regular basis" would mean the appointment to the post on a regular basis in contradistinction to appointment on adhoc or purely temporary basis. The OA further relies on the judgment of Hon‟ble Patna High Court in Md. Hafiz Vs State of Bihar & Ors were the Hon‟ble High Court observed that in notional promotion, it had to be as if for service benefits he had been given due promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and service of the employee concerned. Reliance is also laid on the judgment dated 05.04.2017 of Hon‟ble Gauhati High Court in WP (C) No. 2844 of 2015 where it was held that the scheme had to be given a harmonious interpretation. Even if a situation arose where two meanings were possible on the issue of grant of benefits or otherwise,, the scheme being in the nature of welfare policy, had to be construed in favour of the employees concerned. It is contended by the applicants that the DoPT‟s clarification impugned here is also against the spirit of the Hon‟ble Apex Court‟s decision in M. Subramaniam‟s case that No.237/2022 the NFSG of Rs. 5400/- is to be granted after completion of four years from date of granting financial upgradation under MACPS in the grade pay of Rs. 4800/- and not from the date of actual promotion in the grade pay of Rs. 4800/-.13
Item No. 4/ Court No. 12 O.A. No. 140/2023
2. Reply was filed by the respondents. Reply mainly informs that the action of the respondents has been in accordance with the stipulation in the MACPS notified vide OM dated 19.05.2009 (Annexure R/2) where under, it is clearly stipulated that the Non Functional Upgradation under MACPS is admissible on completion of 10, 20 & 30 years of regular service without any promotion or upgradation. In the para 9 of this OM, it has been stipulated that any interpretation/clarifications to the scope and meaning of the provisions of MACPS has to be given by DoPT. This OM also specify in its para XI that no past cases would be reopened and while implementing the MACPS, differences in pay scale on account of grant of financial upgradation under old ACP scheme of August, 1999 and under MACPS within the same cadre would not be construed as an anomaly. The respondents have mainly argued in the reply that the action in revising the date of implementation of the 2nd /3rd MACPS benefits to the applicant has been in accordance with the instructions from DoPT and the MACPS and various other instructions governing the issue and therefore the action of the respondents is perfectly in order.
4. The applicants had submitted rejoinder reiterating the grounds taken in the OA.
5. After completion of pleading the matter came up for final hearing on 01.12.2023 and it concluded on 03.01.2024.
6. Learned counsel for the applicant filed in open court two documents viz communication dated 22.08.2023 issued by the respondents addressed to the PAO, Vadodara on subject of certain clarification on grant of grade pay of Rs. 5400/- to the officials promoted notionally on non-functional basis to Group -„B‟ in CBIC. She particularly drew attention to the para -3 sub para A and Sub Para B therein; the sub-para 3 (B) thereof stipulates that the officers placement in the erstwhile Rs. 7500- 12000/- scale was determined from the date of notional promotion to the grade of Superintendent 14 Item No. 4/ Court No. 12 O.A. No. 140/2023 which was evident since the pay fixation benefits were granted starting from the date of notional promotion. Of course, this also stipulates that scenario involve only notional promotion and not MACP, ACP. The counsel argues that this clearly mentions that even the date of notional promotion cannot be regarded as non regular service. She further drew attention to the sub-para 3 (D) of this communication which reads as under: -
"d) The interpretation of the term „regular service‟ seems to have been misconstrued in the current situation. The relevant aspect to consider is that the promoted officers were indeed in regular service, except if instances like unauthorized absence, EOL, vigilance issues, etc., challenge the regular service criteria. It is reasonable to believe that DDOs have adequately considered these aspects."
6.1 She reiterated the grounds taken in the OA to impress upon the fact that the revision of the effective date of MACP from 19.07.2011 to 30.12.2011 which was authorised in establishment order no. 09/2022 (Annexure A-3/1) was based on excluding the period of notional promotion which is disputable. She submitted that para 9 of the MACP scheme defines regular service. For the sake of clarity the same is quoted below.
"9. Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre- appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same 15 Item No. 4/ Court No. 12 O.A. No. 140/2023 grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
The order dated 22.08.2014 (Annexure A/8) in which upgradation under MACPS was allowed to the Inspectors of Excise and Customs w.e.f. 19.07.2011 was sought to be revised and postponed by the orders impugned here.
6.2 She argues that these changes had excessive bearing and were done without any prior notice; the officials were not given an opportunity to explain their position. The representation by the applicants in this regard dated 21.10.2021 (Annexure A/1) were replied to vide communication dated 27.04.2022 (Annexure A/13) but no grounds were given in it.
6.3. Treating regular service as a core issue, the learned counsel for the applicant submitted that she relied on the judgments in Union of India Vs K B Rajoria [2000 (3) SCC 562] which laid down as to what constituted regular service. The Hon‟ble Apex Court in its judgment had observed that the word "regular" did not mean actual service. She further relied on the Hon‟ble Supreme Court judgment in K. Madhvan & Anr. Vs Union of India [1987 (4) SCC 566] in which although the Hon‟ble Apex Court was adjudicating the issue of DPC and retrospective promotion, the judgment does not permit excluding the retrospective promotion thereby taking that service duration also into account. However, the counsel submitted that the department was not following these legal dicta. It is amply clear that the applicants have not asked for the wages for the notional period. The counsel 16 Item No. 4/ Court No. 12 O.A. No. 140/2023 has also placed on record office order no. 77/2022 dated 13.07.2022 (Annexure R/1) which is a order of promotion of a officer on notional basis from a date his junior was promoted and he was also allowed the arrears of pay etc. for the period of notional promotion preceding the date of actual promotion. Quoting this, she argued that in this matter, the same department cannot adopt different stand. She also filed a copy of the decision of Ernakalum Bench of this Tribunal dated11.05.2022 in OA No. 713/2018 in which the concept of notional promotion has been dealt with and it has been observed that paragraph 9 of MACP guidelines never specifically excluded notional service unlike other kind of service. This order of Ernakulam Bench of this Tribunal has also indicated the implications on pension and internal benefits of the retiring employees.
7. Learned counsel for the respondents reiterated the stand taken in the reply and submitted that it was in view of the clarification in the order dated 14.07.2021 (Annexure A/1) and DoPT‟s ID dated 29.06.2021 (Annexure A/2) which were clear in content and therefore the action of the respondents was justifiable on this basis. She also submitted that since there is difference in details of dates etc. even the joint application was not maintainable in this matter. She further argued that it was under
the DoPT‟s instruction that only the actual period of service was to be counted and accordingly the CBEC Board had ordered. She also referred to the para 9 of the MACPS order which defines „Regular Service‟ and says that very clearly adhoc and contract basis services were not to be taken as regular service clearly stipulated that regular service for the purpose of MACPS would commence from the date of joining a post in direct entry grade on regular basis either on direct recruitment or on absorption/re-employment basis.
7.1. Learned counsel for respondents further argued that the reliance placed on K. Madhavan case (supra) was not applicable in this case; the 17 Item No. 4/ Court No. 12 O.A. No. 140/2023 issue dealt with there was about postponing DPC.
Similarly, she argued that K B Rajoria case relied upon by the applicants too was not applicable in this matter as that case was for regular promotion which is not the main issue here. She specifically submitted that MACAP scheme was not something granted in lieu of promotion; it was merely a placement of an employee in the next immediate higher pay grade without change in status, designation or classification. This was further buttressed by the stipulation in the impugned order dated 11.06.2014 that monetary benefits would be admissible w.e.f. the date of actual assumption of charge in the grade of Inspectors. Under these circumstances, it was necessary to count the period of 10 years for MACP from the date of assumption of charge in the grade and not from the date of notional promotion.
8. Heard learned counsel for the parties and perused the material available on record. It is indisputably clear that first the post of Inspectors carried the pay scale of Rs. 5500-9000/- which was upgraded to the pay scale of Rs. 6500-10500/- w.e.f. 21.04.2004. The scale was further upgraded to Rs. 7450-11500/- which was equivalent to PB-2 + GP-4600/- under the 6th Pay Revision Recommendation. Here the applicants were promoted in the year 2002 and 2003 and then after 6th Pay Revision Recommendation, the upgradation under MACP after 10 years of service from then came up. Since the basic fixation of these Inspectors had to be in the grade pay of Rs. 4600/- in PB-2, the next upgradation - 2nd or 3rd as the case could be - was to be to the grade pay of Rs. 4800/- after 10 years of regular service as per the MACP scheme. In this case, the Inspectors were promoted pursuant to the order dated 26.09.2005 (Annexure R/3) and 19.07.2006 (Annexure R/4) and accordingly the order of promotion to the grade of Inspector was issued vide order dated 11.06.2014 (Annexure R/5). This order stated that the promotions were notionally given w.e.f. 19.07.2009 which was consequent upon the 18 Item No. 4/ Court No. 12 O.A. No. 140/2023 findings of the Review DPC Meeting. It was stipulated that the monetary benefit would be admissible from the date of assumption but were allowed to exercise option for pay fixation on 11.06.2014. On this basis, the MACP was given vide the order dated 19.07.2009. However, in view of subsequent clarification from DoPT at Annexure A/1 and Annexure A/2, the MACP was revised excluding the period covered under notional promotion and it was permitted from the date of actual assumption of charge which has been questioned and impugned here.
9. We have carefully gone through the judgments of the Hon‟ble Apex Court relied upon by the counsel for the applicant as also through the judgment of the Ernakulam Bench of this Tribunal. Although it was contested by the counsel for the respondents that the Hon‟ble Supreme Court‟s judgments were distinguishable as they were on different issue, we can still benefit from the opinion expressed on the issue of regular service as discussed in preceding paragraphs, according to which, the word „regular‟ would not mean actual and as it implication what we have to see whether the appointment was a regular or irregular in the sense whether it was contrary to any extant instruction or principle of law. In its para 12 of this judgment, it further lays down that the expression „on a regular basis‟ would mean appointment to a post on a regular basis in contradistinction to appointment on adhoc or stop gap or purely temporary basis. None of the parties have commented or argued that notional promotion was irregular and therefore the appointment even on notional appointment was on a regular basis in contradistinction from the appointment on adhoc or stopgap basis. This appears to be the spirit of the stipulation in para 9 of the MACP scheme itself which expressly excludes the adhoc or contractual period of service. Similarly we can benefit from the order in K. Madhvan & Anr. case (supra) which elaborates on the interpretation of regular service that it is not adhoc or stopgap or temporary basis.
19Item No. 4/ Court No. 12 O.A. No. 140/2023 In the similar way the Ernakulam Bench‟s judgment relied upon by learned counsel for the applicant also indicates the same thing. Infact, it has specifically observed that the effect of the notional appointments will be lost if their eligibility for upgradation under MACP is fixed at a later stage. Even if there are differences in the matters of details and the strict context, the general guiding principle cannot be dichotomous and it has to adopted universally without any discrimination whatsoever. Therefore, if in course of regular service incumbents have been given notional promotion from any particular date, it is perfectly in order to allow the monetary benefit from the date of actual assumption of charge but to completely disallow the period of service under notional promotion will have the effect of negating the service itself which cannot be a tenable interpretation.
10. Under these factual matrix, we allow the OA and quash and set aside the orders 14.07.2021 (Annexure A/1), DoPT ID note dated 29.06.2021 (Annexure A/2) and establishment order no. 09/2022 dated 05.08.2022 and establishment order no. 21/2022 dated 30.0.2022 (Annexure A- 3/1 and A-3/2) and direct the respondents to consider and grant the benefit of 2nd / 3rd financial upgradation under MACP taking into account the period served on notional basis also, subject to other procedural requirements. This consideration must be completed within 3 months from the date of receipt of this order. No orders as to cost."
6. In light of what has been observed by the Ahmedabad Bench, we cannot take a divergent view contrary to the view already taken by the coordinate bench of this Tribunal.
7. We, therefore deem it appropriate to allow this OA and quash and set aside the impugned 20 Item No. 4/ Court No. 12 O.A. No. 140/2023 order dated 14.02.2023 and 03.08.2022 in the instant matter, which has been passed on the basis of the order dated 14.07.2021., which has already been quashed and set aside by the coordinate bench of this Tribunal. We direct the respondents to consider and grant the benefit of 2nd / 3rd financial upgradation under MACP taking into account the period served on notional basis also, subject to other procedural requirements. This consideration must be completed within 3 months from the date of receipt of this order. No orders as to cost.
8. Pending MAs, if any, stand closed.
(Dr. Anand S. Khati) (Mr. Manish Garg) Member (A) Member (J) /abhay/