Central Administrative Tribunal - Madras
Rameswar Mondal vs M/O Defence on 17 March, 2023
f ty CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH we DATED THIS THE /7 DAY OF MARCH TWO THOUSAND TWENTY THREE PRESENT: THE HON'BLE SHRI. T. JACOB, MEMBER (A) THE HON'BLE SMT. LATA BASWARAJ PATNE, MEMBER (J) OA/310/1276/2014 Rameswar Mondal, JWM/P No.824704 Heavy Vehicles Factory, Avadi.Chennai-600054. . Applicant By Advocate M/s Paul & Paul Versus 1. -- Union of India, rep.by its Secretary, Ministry of Defence, Department of Defence Production, South Block, New Delhi-110 001. 2. The General Manager, Heavy Vehicles Factory, Avadi, Chennai-600 054. 3. The General Manager, Heavy Vehicles Factory, Avadi, Chennai. .. Respondents By Advocate: Ms. Shakila Anand ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member (A}) This OA has been filed by the applicant under Sec.19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
a) for quashing of the order No,1(1)/Estt./2014/MACP dated 11.04,2014 passed by the 3rd respondent as illegal and void and
b) for consequential directions to the respondents to grant the applicant, the 2nd financial upgradation under ACP scheme in the grade pay of Rs.5400/- on completion of 24 years of service and 3rd financial upgradation under MACP scheme in the grade of Rs.6600/-on completion of 30 years with effect from 23.05.2010 with all attendant benefits like arrears of pay, allowances, etc,
c). for such further or other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice."
2. The brief facts of the case as submitted by the applicant are as follows:-
The applicant was appointed as Tracer in the year 1980 and was further promoted as Draughtsman, Chargeman Grade (Technical), Chargeman Grade 1, Assistant Foreman (Technical), and finally Junior Works Manager, which post he is working at present. The applicant was granted 3rd financial upgradation under MACP scheme in the grade pay of Rs.4800/- in pay band II (9300-34800 w.e.f. 23.5.2010. On 6.1.2014, the applicant filed a detailed appeal on his claim being rejected earlier on erroneous grounds, seeking grant of 2nd financial upgradation in the grade pay of Rs.5400 under ACP scheme and 3rd financial upgradation in the grade pay 3 of Rs.6600/- under MACP scheme with all attendant benefits. However, the claim of the applicant was rejected on the ground that the applicant had €arned two promotions in his career i.e. from Tracer to Draughtsman and from Draughtsman to Chargeman / AF/JWM (T). According to the applicant the said rejection on the stated grounds is incorrect, since appointment to the posts of Chargeman and to AF and to JWM had not been treated as Promotion after the said cadre had been merged into single cadre on implementation of 6th central Pay commission.. Hence this original application, seeking grant of 2nd financial upgradation in the grade pay of Rs.5400/- and 3rd financial upgradation in the grade pay of Rs.6600/- under ACP & MACP schemes respectively with all attendant benefits.
3. The applicant has sought the aforesaid relief inter alia, on the following grounds:-
a). The action of the respondents in not granting proper grade pay to the applicant in the facts and circumstances of the case is patently arbitrary, unjust, illegal and void.
b). The rejection of the applicant's claim for 2nd financia} upgradation on ACP scheme by treating the appointment to the post of Chargeman as one of promotion is contrary to instructions issued by the 2nd respondent Board and therefore the same is illegal and unsustainable,
c). The rejection of the applicant's claim without dealing with the same in Proper perspective suffers from non-application and misapplication of mind and therefore the same is unsustainable.4
d). The grant of Grade pay of Rs.4800/- to the applicant as against the Grade pay of Rs.6600/- to other similarly piaced officers is per se discriminatory, arbitrary, unreasonable and violative of article 14 of the Constitution of India.
e). The impugned rejection of the respondents in the face of clear instructions by the Government is patently malafide, and the same is a colourable exercise of power and hence liable to be interfered with.
f). The grant of Grade pay of Rs.4800/- and denial of 2nd financial upgradation is also contrary to the clear provisions of ACP & MACP schemes and therefore the impugned action is clearly unsustainable,
g). The impugned rejection is even otherwise opposed to equity, fair play, good conscience and justice.
4. Learned counsel for the applicants have relied on the following decisions in support of their contentions.
i) Judgement of the CAT Principal bench in Sudarasn Pramanik and 4 others vs Union of India and 2 others in O.A No.2599 of 2008 dated 16.02.2010.
ii) Judgement in the OA No.518 of 2005 (Full bench Judgement of CAT , Bombay Bench,Mumbai) in Sanjay Padmakar Singatkar vs Union of India and 2 others Dated 29.11.2010.
5. The respondents have filed a detailed reply.
It is submitted that the applicant was working as Junior Works Manager in the 3rd Respondent factory and had superannuated from service on 31.01.2015. The applicant's service profile is appended below:
Present Pay Date Designation Scale of pay Band & Grade Mode of Pay induction 19.01.1977 Labourer 'B' 196-232 1800 GP PB-t Appointment 03.05.1980 Tracer 260-430 GP 1900, PB-1 Appointment 16.03.1983 Draughtsman 330-560 GP 4200, PB-2 Promotion 10.05.1993 CM-II (Tech) 1400-2300 GP 4200, PB-2 By transfer 19.07.1996 CM-I (7) 5500-9000 GP 4200, PB-2 Promotion 19.04.2003 | Asst oe 6500-10500 | GP 4600, PB-2 | Promotion 25,05.2007 JWM (T) 7450-11500 GP 4600, PB-2 Promotion ___ 23-05,2010 MACP-III 4800 GP GP 4800, PB-2 Upgradation It is submitted that since the applicant has completed 30 years of service, he was granted 3rd financial upgradation under Modified Assured Career Progression (MACP) scheme and his Grade Pay was fixed at Rs. 4800/- in Pay Band-2 ( 9300 - 34800) w.e.f. 23.05.2010, while working in the 3rd respondent's factory. The statement of the applicant that the grant of Grade Pay of Rs.4800/- to the applicant was contrary to the provisions of MACP Scheme is denied. The applicant was granted two promotions before completion of 24 years of service as shown in the table below:
Mode of Equivalent MACP/ Cate Designation . Scale of pay induction scale of pay Promotion 19.01.1977 Labourer B' Appointment 196-232 GP 1800 03.05.1980 Tracer Appointment 260-430 GP 1900 16.08.1983 Draughtsman Promotion 330-560 GP 4200 15 Promotion 10.05.1993 CM-II (Tech} By Transfer 1400-2300 GP 4200 19.07.1996 CM-I (T) Promotion 5500-9000 GP 4200 Asst. Foreman ;
19.04.2003 a Promotion 6500-10500 GP 4600 2°? Promotion 29,05.2007 JWM (T) Promotion 7450-11500 GP 4600 6 | 23.05.2010 | MACP-ITI | Upgradation | 4800 GP | GP 4800 | 3° MACP | The applicant was given 3rd financial upgradation w.e.f. 23.05.2010 on completion of 30 years of service in the next Grade Pay of 4800/- in accordance with Para 1 & 2 of Annexure-I of DOP&T O.M. No. 35034/3/2008-
Estt.(D) dated 19.05.2009 which states that: -
"(i) There shall be three financial up gradations under MACPS counted from the direct entry grade on completion of 10, 20 and 30 years service respectively,
ii) The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS(Revised Pay) Rules, 2008".
The actions of the respondents are as per the Government of India Instructions on the subject; hence the contentions of the applicant are not correct.
6. Itis submitted that the applicant, vide his representation dated 07.05.2011 requested for grant of 2nd Assured Career Progression Scheme (ACP). The 3rd Respondent, vide letter dated 11.05.2011 had intimated the applicant that he had already earned two promotions t.e., from Tracer to Draughtsman with effect from 16.08.1983 and thereafter from Chargeman to Assistant Foreman w.e.f. 19.04.2003. Since the applicant had got two promotions on regular basis before completion of 12 years and 24 years of service, he was not entitled for financial upgradation under ACP Scheme.
Therefore, the 3rd respondent's letter dated 11.05.2011 was not an 7 Erroneous appreciation of the applicant's claim. All the representations and appeals received from the applicant had been considered as per rules on the subject and were replied suitably, 7, -- It is submitted that the applicant's statement that Officers who were appointed like him as a Tracer got their promotions like him up to the level of Junior Works Manager, got their Grade Pay fixed at Rs. 5400 & Rs.6600/- and only he alone was discriminated against is not correct and denied. All the officers, who have been referred by the applicant in his representation, had been appointed to the post of Draughtsman/ Chargeman and in the post of Tracer. The Draughtsman was the promotional post of Tracer and the applicant was promoted from Tracer to Draughtsman. Other employees referred by the applicant were not promoted to the post of Draughtsman as claimed by the applicant. The applicant's appeal dated 06.01.2014 for sanction of ACP/MACP was examined carefully. The applicant had got two . promotions on regular basis before completion of 12 years and 24 years of service i.e., from Tracer to Draughtsman (ist promotion) and from Draughtsman/Chargeman Grade-II & I to Assistant Foreman (AF)/ Junior Works Manager (JWM) (2nd promotion - Grade Pay from = 4200/- to 2 4600/-). Hence, he was not entitled for grant of financial up gradation under ACP Scheme. As per the Modified Assured Career Progression Scheme (MACP) issued vide DOPT O.M. No. 35034/3/2008-Estt(D) dated 09.09.2010, employees stagnating in a post are entitled for financial upgradation on completion of 10th, 20th and 30th year of service. The upgradation under MACP is to be granted in the immediate next higher Grade Pay in the 8 hierarchy in the revised Pay Band and Grade Pay as per the Central Civil Services (Revised Pay) Rules, 2008. Accordingly, the applicant was granted 3rd MACP in the immediate next higher Grade Pay of 4800/- on completion of 30 years of service, which is as per rules on the subject. The same was also intimated to the applicant vide 3rd respondent letter dated 11.04.2014,
8. It is further submitted that the applicant's claim was examined and based on the facts and rules, the claim was rejected vide letter dated 11.04.2014. As stated by the applicant movement from Draughtsman to Chargeman-II was never treated as promotion in the applicant's case, as the same was treated as transfer only. However, the movement from Chargeman to Foremen/Junior Works Manager has been considered as promotion. The claim of the applicant that the post of Chargeman to Junior Works Manager (JWM) came to be merged into a single cadre and any promotion within the erstwhile cadre is not treated as promotion for the purpose of grant of MACP is denled. As per the 6th Central Pay Commission orders, the Grade pay of Chargeman is Rs. 4200/- and Grade pay of JWM is 4600/-. The Chargeman is the feeder grade for promotion to the post of JWM. Therefore, any upward movement from Chargeman to JWM is considered as promotion. Thus, the applicant has effectively earned the following two promotions within 24 years of his service f.e., the ist promotion from Tracer to Draughtsman (Pre- revised Pay scale from 260/- Rs.430/- to Rs. 330 - 560 = 6th CPC Grade Pay from 1900/- to 4200/-) and 2nd promotion from Chargeman to JWM from Grade Pay 4200/- to = 4600/-. Therefore the applicant is not entitled for ACP-
Il. The above facts were intimated in detail to the applicant, vide 3rd respondent letter dated 11.04.2014. Accordingly, the claim of applicant was rejected as per rules on the subject,
9. Learned counsel for the respondents have relied on the following decision in support of their contentions.
i) Judgement in OA. No 681 of 2013 dated 16.07.2019 in Shekar Gurusamy Pillai vs Union of India and 2 others.
10. Learned counsel for the respondents have filed written arguments.
11. Heard the learned counsel for the respective parties and perused the pleadings and documents on records.
12, The facts not being under dispute, the same obviate debate. Para 5 of Annexure to MACP Scheme postulates to ignore promotions/up-gradation in scales which are merged consequent to implementation of VI CPC recommendations for the purpose of grant of benefits under MACPS. The same is reproduced as under:
"5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
13. Though promotions have been granted to the applicant from tracer upto Junior Works manager, of the total number of promotions so granted, promotions to those posts which have been merged with the feeder posts or where the pay scales are merged, are to be first discounted. Admittedly as 10 given in the written arguments of the respondents, initially the applicant was appointed as Tracer on 3.5.1980. He was then Promoted to the post of Draughtsman on 16,8.1983. (1st promotion). Thereafter he was further promoted as Charge Man Grade II on 10.5.1993. But the same has been treated as transfer. Then again the applicant was promoted to the post of Charge Man Grade - I on 19.7.1996. But the post of Draughtsman, Charge Man Grade TI and Charge Man Grade I are merged with effect from 1.1.2006. The grade pay for all the posts after merger was fixed as Rs. 4200/. Itis at this juncture that the table appended by the respondents has to be analysed.
At the cost of repetition, the same is reproduced as under:-
oo. Mode of Equivalent MACP/ Date Designation . ; Scale of pay induction scale of pay] Promotion 19.01.1977 Labourer B' | Appointment 196-232 GP 1800 03.05.1980 Tracer Appointment 260-430 GP 1900 16.08.1983 | Draughtsman | Promotion 330-560 GP 4200 1* Promotion 10.05.1993 | CM-IT(Tech} | By Transfer | 1400-2300 GP 4200 19,07,1996 CM-I (T} Promotion 5500-9000 GP 4200 Asst, 19,04,2003 Promotion | 6500-10500 GP 4600 2™ Promotion Foreman (T) 29.06.2007 IWM(T) Promotion | 7450-11500 GP 4600 23.05.2010 MACP-TIT Upgradation 4800 GP GP 4800 | 3 MACP 14, The respondents have counted promotion from Tracer (260-430) to Draughtsman (330-560) as the first promotion. The pay scale of the post of Tracer which was initially at 260-430, was later on revised to Rs 330-560 as could be seen from the judgment of the Apex Court in the case of Union il of India vs Debashis Kar (1995) Supp (3) SCC 528, extract of which is as hereunder:-
13. We will first take up the case of draughtsmen in the Ordnance Factories......... According to the Tribunal, the qualifications prescribed for Draughtsmen in Ordnance Factories are similar or equivalent to those prescribed for recruitment in CPWD. ........ In this context, it would be relevant to mention that as per the pay scales fixed on the basis of report of the First Pay Commission of 1947 there was no difference in the pay scales of Draughtsmen and Tracers in the Ordnance Factories and the pay scales of Draughtsmen and Tracers in CPWD..... and Tracers in Ordnance Factories as well as in CPWD were placed in the scale of Rs 60-150. On the basis of the report of the Second Pay Commission in 1959 ...... Tracers in the Ordnance Factories and CPWD were placed in the same pay scale of Rs 110-200 By Notification dated 1-9-1965, eves Tracer was designated as Draughtsman Grade III.
Thereafter on the basis of the report of the Third Pay Commission in 1973, Tracers in the Ordnance Factories and Draughtsmen Grade III in CPWD were placed in the same pay scale of Rs 260-430........ This would show that Tracer in Ordnance Factories has all along been treated as equivalent to Tracer/Draughtsman Grade IIT in CPWD and 12 Draughtsman in Ordnance Factories has all along been treated as equivalent to Assistant Draughtsman/Draughtsman Grade II in CPWD. As a result of the revision of pay scales in CPWD on the basis of the Award of the Board of Arbitration, the pay scale of Draughtsman Grade IIT was revised to Rs 330-560, while that of Draughtsman Grade II was revised to Rs 425-700 and of Draughtsman Grade I was revised to Rs 550-750. The denial of similar revision of pay scale to Draughtsmen in Ordnance Factories would result in their being downgraded to the level of Tracer/Draughtsman Grade ITI in CPWD. Office Memorandum dated 13-3-1984 cannot, in our opinion, be construed as having such an effect.
15. The above judgment of the Apex Court clearly reflects that the Pay scale of Tracer in the Respondents' Organization was revised from 260
-430 to 330-560 w.e.f. 1973. As such, it is only when the Grade Pay of the applicant underwent an upward revision from Rs.4200 to Rs.4600 that the applicant is treated to have got his first ACP/promotion, which is effective from 19-04-2003 when the applicant was promoted from Draughtsman I to Asst. Foreman. In that event, the second promotion/Second MACP is revision of Grade Pay from Rs 4600 to 4800 which is on completion of 24 years of service, i.e. 03-05-2004 . The next MACP being on completing 30 years of service, the same shall be from 03-05-2010 and the Grade Pay tO) 13 would be Rs. 5400/-.. In other words, the applicant's promotion/ACP Financial upgradation is as under:-
a}.Entry level: Tracer 03-05-1980
b).First promotion: 19-04-2003 as Asst. Foreman (intermediate promotions to be ignored in view of merger of these posts of DM II and DM I. °
c) Second promotion/ACP : on completion of 24 years of service from 03-05-2004 enhancing his GP from Rs. 4600 to Rs.4800/-
d) Third MACP w.e.f. 03-05-2010 enhancing his GP from Rs.4800 to Rs.
Rs.5400/-.
16. The OA is allowed to the above extent. Resultantly, the impugned order is quashed and set aside and the Respondents are directed to refix the salary of the applicant, giving effect to the above direction of this Tribunal and pay the arrears arising therefrom within 6 months from the date of receipt of this order. No costs.