Central Administrative Tribunal - Bangalore
K M Cariappa vs D/O Personnel & Training on 21 July, 2023
1 OA No.353/2020/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00353/2020
ORDER RESERVED ON : 12.07.2023
DATE OF ORDER : 21.07.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri K.M.Cariappa,
Aged about 61 years,
Assistant Director (Public Relation) Retd.,
R/at, 5104, Trendz Whispering Woods Apartments,
51 Bogadi Gaddige Main Road,
Opp.Roopa Nagar Bus Stand,
Mysore -570026. ...Applicant
(By Advocate, Smt.Radha)
Vs.
1. The Director General,
Sashstra Seema Bal,
Block--V (East), R.K.Puram,
New Delhi-110066.
Delhi
2. The Union Home Minister,
Minister of Home Affairs,
North Block,
New Delhi -110001.
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3. The Director of Personnel & Training,
Ministry of Personnel, Public Grievances
and Pension, North Block,
Central Secretariat,
New Delhi-110001.
Delhi
4. The Director,
Intelligence Bureau,
35, Sardar Patel Marg,
Chanakyapuri,
New Delhi 110021. ....Respondents
(By Advocate Shri S.Prakash Shetty)
ORDER
Per: Justice S.Sujatha ...........Member(J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, Act, 1985 seeking the following reliefs:
"A A) give the applicant nt the notional promotion of DIG DIG, with effect from 2005, and fix his pay scale and other benefits as per 6th and 7th Pay Commission on the basis of the notional promotion.
Or Alternatively;
3 OA No.353/2020/CAT/BANGALORE BENCHTo give him his promotion to the post of Deputy Director after accepting the recommendations of the DPC dtd.29.05.18.
B)i) the applicant be given his second upgradation under B MACPS with effect from 01.01.06 instead of w.e.f., 01.09.08 in accordance with the judgment of the Supreme Court dated 8th December, 2017.
ii) the Grade Pay of 2nd upgradation be fixed at Rs.8700/ instead of 7600/- as per his scale and qualifying Rs.8700/-
service.
iii) the applicant be given his 3rd financial upgradation w.e.f., 01.01.16 under the Seventh Pay Commission in tthe next Pay Band-4 Band 4 and commensurate Grade Pay of 10000/ 10000/-
iv) that the applicant's revised pay under the 6th CPC as on 01.01.06 be calculated at 3% of total pay (Basic+DA+HRA+other emoluments) as seen in clause 4 Annexure 1 of the MACP Scheme.
Annexure-1 C) C the applicant
ant be given the benefits of NFFU as per his entitlement w.e.f.
D) D to pay all arrears due to the applicant on recasting his salary w.e.f., 01.01.2006.
E) to fix his pension based on the modified pay scale. F) to pass such other order of orders as this Hon Hon'ble Tribunal deems fit to pass in the interest of justice and equity."
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2. Since prayer (A) was not pressed, this Tribunal recorded the same in the order dated 05.07.2021 that the application is now confined to the alternative prayer (B)(i), (ii), (iii), (iv), (C), (D), and (E).
3. Briefly stated the facts as narrated by the applicant are that he joined the first Respondent as Assistant Publicity Officer (APO) which was then known as the Special Service Bureau (SSB). The applicant was promoted to the post of Publicity Officer with effect from 1993 itself, without any additional remuneration. In January, 2001 SSB was transferred from Cabinet Secretariat to Ministry of Home Affairs and came to be known as Sashastra Seema Bal. In April,, 2019 the Publicity Cadre of SSB was transferred en mass masse to Intelligence Bureau, Respondent No.4 herein without promotions. The applicant retired on 31.05.2018 on attaining the age of superannuation after putting 29 years of unblemished, hard and sinceree work. The applicant submits that in the year 2005 2005, he became eligible for promotion to the post of DIG (Publicity), the only top post of the Publicity Cadre after having completed 10 years of residency period in the grade of Publicity Officer. But he w was 5 OA No.353/2020/CAT/BANGALORE BENCH informed that the said post was surrendered in the year 2000, when the Government of India ordered for 10% cut in sanctioned strength of post of SSB. Subsequently the President of India sanctioned the reorganisation of Publicity Cadre into Public Rela Relations Cadre of the SSB. The post of Publicity Officer in Level Level-11 was redesignated as Assistant Director (Public Relations). The next highe higher promotion was mentioned as Deputy Director based on the above cadre review. The Departmental Promotion Committ Committee was constituted on 29.05.2018 just two days before his retirement and he was considered for the post of Deputy Director (Public Relations). The DPC recommended and forwarded the applicant's name for the post of Deputy Director to the second Respondent by hand on the same day. But for want of approval of recruitment rules which was pending, the recommendation was sent back. Pursuant to the introduction of MACP Scheme by office memorandum dated 19.05.2009, the applicant requested the Respondent No.1 to calculate his MACP with effect from 01.01.2006. Rejecting the same it was informed that the calculation oon grant of 2nd financial upgradation with effect from 01.09.2008 in the hierarchical pay scale and grade pay of Rs.7600/-
Rs.7600/ under MACP Scheme is in 6 OA No.353/2020/CAT/BANGALORE BENCH accordance with the Scheme. It is the grievance of the applicant that financial upgradation has not been extended with ef effect from 01.01.2006. The applicant further submits that he should have been given second upgradation in the Grade Pay of Rs.8700/ Rs.8700/- instead of Rs.7600/-- as per his qualifying service of more than 10 years. Further he was entitled for 3rd financial nancial upgr upgradation on 01.01.2016, since the second MACP was not given at the right time, the 3rd MACP was also denied. His request/representations made for extending the 2nd MACP benefits from 01.01.2006 placing reliance on the judgment of the Hon'ble Apex Court in Union of India & Ors. vs. Balbir Singh Turn & Anr. in Civil Appeal Diary No.3744/2016 (DD 08.12.2017) has been turned down. In July, 2019, the 2nd Respondent vide OM dated 04.07.2019 (Annexure A27), conveyed their approval for granting the consequential benefits of Non Functional Financial Upgradation (NFFU) and Non Functional Selection ction Grade with effect from 01.01.2006 to organised Group 'A' extended to Group 'A' Executive Cadre Officers by a cabinet decision. The Central Armed Para Military Forces (CAPFs) (CA were also considered by an order of the Hon'ble Apex Court as belonging to organised Group 'A' Service Officers. 7 OA No.353/2020/CAT/BANGALORE BENCH But the said benefit was not extended to the applicant on the ground that the said Scheme is not applicable to civilian officers. The representations resentations made in this regard not having yielded any positive results, the applicant was constrained to issue legal notice dated 08.09.2019. In response, the 1st Respondent replied that the charter of duties of Publicity Officer and that the Area Orga Organiser /Commandant (non-combatised) (non combatised) and combatised Executives were not the same. Being aggrieved, the applicant has preferred this OA.
4. Learned Counsel Smt.Radha representing the applicant submitted that as per Balbir Singh Turn supra, the applicant should be given second upgradation under the MACPs with effect from 01.01.2006 and not from 01.09.2008 and secondly his third upgradation would automatically become due on 01.01.2016. The announcement of 6th CPC as on pay fixation of the applicant on the announce 01.01.2006 and on fixing his second upgradation effective from 01.09.2008 was not calculated as per Clause Clause-4 of Annexure-I of MACP Scheme. Thus argued that second upgradation ought to have been fixed at Grade Pay of Rs.8,700/ Rs.8,700/- instead of Rs.7,600/-.
Learned Counsel further submitted that the applicant is entitled to 8 OA No.353/2020/CAT/BANGALORE BENCH NFFU and NFSG, NFSG referring to the OM dated 04.07.2019 (Annexure A27),, it was argued that Group 'A' Executive Cadre Officers ought to be given the benefits of NFFU with effect effect from 01.01.2006 as per DOPT guidelines dated 24.04.2009 and 06.06.
06.06.2000 and subsequent instructions thereon. The opinion of the respondents that the same is applicable only for the CAPF personnel in uniform and not to civilians is totally misconceived notion. A similar orgnaisation namely, Indo Tibetan Border Police (ITBP) implemented the benefits of NFFU and NFSG to its personnel including its civilian officers. The applicant qualifies as an Executive, as he was a Publicity Officer/Assistant Director Director in PB PB-3. As a Publicity Officer/Assistant Director (Information & Development) and Assistant Director (Public Relations) his assignments were supervising, publicity (including propaganda and counter progaganda), Public Relations (PR), Civic Action wo works and Perception Management works in the frontier areas. All these were executed by the battalion and Area Officers along the international borders. Hence the applicant cannot be deprive deprived of the benefits to which he is legally entitled to. In this regard, egard, reliance was placed on the judgment of Hon'ble Apex Court in Union of India and Ors. 9 OA No.353/2020/CAT/BANGALORE BENCH vs. Harananda & Ors - Civil Appeal No.1474/2019 dated 05.02.2019. On these grounds, learned Counsel submitted that the matter deserves interference of this Tribunal Tribunal.
5. Learned Counsel Shri S.Prakash Shetty representing the respondents submitted that the applicant was appointed as APO in SSB on 15.03.1989.
15.03.1989. He was promoted to the rank of Publicity Officer on 20.03.1995 (1st Promotion. However, in view of the introduction of the MACP Scheme on the recommendation of 6th CPC as per OM dated 19.05.2009 giving effect from 01.09.2008, second financial upgradation under MACP Scheme was granted to the applicant with effect from 01.09.2008, in the next higher Grad Grade Pay in PB-3 PB Rs.15600-39100 39100 + GP Rs.7600/ Rs.7600/- vide order dated 25.09.2009. Placing reliance on the judgment of the Hon'ble Apex Court in Union of India vs. R.K.Sharma and others Civil appeal No.1579/2021 dated 28.04.2021, learned Counsel submitted that the applicant is not entitled to seek benefits of MACP Scheme with effect from 01.01.2006. The second financial upgradation granted under MACP Scheme with effect from 01.09.2008 in the next higher pay of Rs.15600-39100 Rs.15600 + GP Rs.7,600 is in order. Referring 10 OA No.353/2020/CAT/BANGALORE BENCH to the letter dated 04.07.2019 issued by MHA submitted that the benefits of NFFU and NFSG has been extended to Group 'A' Executive Cadre Officer of CAPFs only. The post of Publicity Officer belongs to Publicity Cadre (non-combatised) (non combatised) which is not an Executive Cadre. The charter of duties of Publicity Officer (Publicity Cadre) is entirely different in nature than that of the officers of combatised Group 'A' officers. As such the benefit of NFFU and NFSG at par with that of of OGAS cannot be extended to the applicant. Thus justifying the action of the respondents, learned Counsel sought for dismissal of OA.
6. We have given our thoughtful consideration to the submissions of the learned Counsel for the parties and perused tthe material on record.
7. The points that arise for our consideration are :
(1) Whether the applicant is entitled to second financial upgradation under MACP Scheme with effect from 01.01.2006 1.01.2006 instead of 01.09.2008?11 OA No.353/2020/CAT/BANGALORE BENCH
(2) Whether the Grade Pay of second upg upgradation fixed at Rs.7,600/- is justifiable (claim made at Rs.8,700/-)?
(3) Whether the applicant is entitled to the benefits of NFFU and NFSG?
8. Re: Point No.(1) -
The applicant was appointed as APO in SSB on 15.03.1989 and was promoted to the rank of Publicity Officer on 20.03.1995 (first promotion). ACP Scheme has come into force with effect from 01.01.1996 pursuant to certain recommendations made by 5th Central Pay Commission applicable in respect of Group 'D', 'C' and 'B' officers and those holding holding isolated posts in Group 'A'. Admittedly, ACP Scheme is not applicable to the applicant. On the recommendations made by the 6th Central Pay Commission, Modified Assured Career Progression has come into force. The recommended by 6th CPC is that, salient feature of MACP Scheme recommended three increments shall be granted to the Central Government employees on completion of 10, 20 and 30 years of service. According to the Scheme of MACP, financial upgradation will be 12 OA No.353/2020/CAT/BANGALORE BENCH admissible on completion of 10 years of con continuous service in the same Grade Pay. This Scheme is in supersession of previous ACP Scheme and shall be applicable to all regularly appointed Group 'A', 'B' and 'C' Central Government Civilian Employees except officers of the Organised Group 'A' Servic Service. The claim of the applicant that he was denied the benefit of MACP with effect from 01.01.2006 deserves to be negated for the following reasons:
(i) The very same issue was considered by the Hon'ble Apex Court in R.K.Sharma supra, Hon'ble Apex Court considering Balbir Singh Turn supra and Union of India and Ors. vs M.V.Mohanan Nair reported in (2020) 5 SCC 421, held th thus:
"7.
7. For a better understanding of the dispute in these cases, it is necessary to examine the judgments of this Court in Balbir Singh Turn (supra) and M.V. Mohanan Nair (supra). The point that was considered by this Court in Balbir Singh Turn (supra) relates to the applicability of the benefit of MACPS from 01.01.2006. The Respondents therein approached the Armed Forces Tribunal which held that the benefit of ACP granted to an employee is part of the pay structure which affects the pay and also his pension. The Armed Forces Tribunal held that an ACP is not an allowance but a part of pay and therefore, in term termss of the Government resolution, the employees were entitled for MACP 13 OA No.353/2020/CAT/BANGALORE BENCH w.e.f. 01.01.2006. This Court in Balbir Singh Turn (supra) upheld the said finding recorded by the Armed Forces Tribunal. Instructions issued on 30.05.2011 were found to be contrary to the resolution dated 30.08.2008 as, according to the resolution the 01.01.2006 was the effective date for implementation of MACPS in matters relating to pay and dearness allowance.
8. In M.V. Mohanan Nair (supra) a three Judge Bench of this Court considered the ACPS as well as the MACPS to hold that the schemes are in the nature of incentive schemes which were brought into force to relieve stagnation. This Court was of the considered view that the Respondents therein were entitled only to the benefit of next gradee pay in the pay band and not to the benefit of grade pay of next promotional post. As the MACPS is a matter of Government policy pursuant to the recommendations made by the Pay Commission, this Court refused to accept submissions of the employees that MAC MACPS PS should be made applicable w.e.f. 01.01.2006.
9. In view of the judgment of this Court in M.V. Mohanan Nair (supra), the Respondents and other similarly situated employees are entitled for financial upgradation under MACPS only to the next grade pay and not to the grade pay of next promotional post. It is clear from the resolution dated 30.08.2008 that the recommendation of the 6th Pay Commission was accepted by the Government and was made effective from 01.01.2006 in respect of civilian employees with rregard egard to 14 OA No.353/2020/CAT/BANGALORE BENCH revised scales of pay and dearness allowances. In so far as the revised allowances other than dearness allowance, recommendation of the 6th Pay Commission were given effect from 01.09.2008. The judgment in M.V. Mohanan Nair (supra) clinches the issue.
issue. Benefits flowing from ACP & MACP Schemes are incentives and are not part of pay. The resolution dated 29.08.2008 is made effective from 01.09.2008 for implementation of allowances other than Pay and DA which includes financial upgradation under ACP & MACP Schemes. Therefore, the Respondents and other similarly situated officers are not entitled to seek implementation of the benefits of MACPS w.e.f. 01.01.2006 according to the resolution dated 29.08.2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band and not granting pay of the next promotional post w.e.f. 01.01.2006 would be detrimental to a large number of employees, particularly those who have retired. We find force in the submission made by the learned Additional Solicitor General that submission uniform implementation of MACPS for civilian employees w.e.f. 01.01.2006 would result in large scale recoveries of amounts paid in excess."
excess.
The argument of the learned Counsel for the applicant that this judgment (R.K.Sharma) ( ) is not applicable to the facts of the case cannot be countenanced. It is ex-facie ex facie apparent that the submission 15 OA No.353/2020/CAT/BANGALORE BENCH of the employees inasmuch as MACP Scheme should be made applicable with effect from 01.01.2006 has been reject rejected. MACP Scheme has come into force with effect from 01.09.2008 in terms of the OM issued by the DOPT dated 19.05.2009. The resolution dated 30.08.2008 makes it clear that the recommendation of 6th Central Pay Commission was accepted by the Government aand was made effective from 01.01.2006 in respect of civilian employees with regard to pay and dearness allowance. Benefits flowing from ACP and MACP Scheme are not part of pay, as held in M.V.Mohanan Nair.
Nair MACP is only a financial upgradation issued to avoid stagnation of promotion. Merely for the reasons that the applicant has not availed ACP, no MACP can be extended under the MACP Scheme from 01.01.2006.. The learned counsel for the applicant has strongly str relied elied on the judgment of the Hon'ble Apex Court in the case of Balbir Singh Turn supra, in support of her contentions in this regard. The same having been considered in R.K.Sharma supra, the claim to give effect for financial upgradation under MACP Scheme with effect from 01.01.2006 being rejected, rejected, no further adjudication is required on this issue. 16 OA No.353/2020/CAT/BANGALORE BENCH
9. Re: Point No.(2) -
The pay of the applicant in the revised pay structure as The recommended by 6th Pay Commission approved by the Government of India under Central Civil Ser Services (Revised Pay) Rules, 2008, fixed in the revised pay band, Grade Pay as on 01.01.2006 was Rs.6,600/-.
Rs.6,600/ . The next hierarchical Grade Pay is Rs.7600/--in the Pay Band-3. Accordingly, dingly, the second financial upagradation has been extended to the next hierarchical Grade Pay of Rs.7600/-
Rs.7600/ under the MACP Scheme which 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, 1, Part-A Part A of the first Schedule of the CCS (RP) Rules, 2008 (vide Clause-(2) Clause of the Annexure-11 of MACP Scheme). Qualifying service of 10 years from the Grade Pay Rs.6600/ Rs.6600/- to Grade Pay Rs.8700/-- is in the field of promotion on not for MACP Scheme.
Hence no irregularity is found in the pay fixation made pursuant to the implementation of the MACP. The arguments of the learned Counsel for the applicant that the Grade Pay ought to have fixed at Rs.8700/-- on promotional hierarchy lacks merit as the next higher Grade Pay of Rs.6600/-
Rs.6600/ being Rs.7600/-, which cannot be disputed. 17 OA No.353/2020/CAT/BANGALORE BENCH
10. Re: Point No.(3) -
The he Non Functional Financial Upgradation (NFFU) was introduced under the 6th Central Pay Commission to avoid stagnation to organised Group 'A' service services. By a cabinet decision it was extended to Group 'A' Executive cadre civilian officers also. Later CAPF's were also held to be organised Group 'A' Services (OGAS) after the decision decision of the Hon'ble Apex Court in the case of Harananda & Ors., supra.. Ministry of Home Affairs has extended the benefits of NFFU and NFSG to Group 'A' E Executive Officers on CAPFs only. The post of Publicity Officer belongs to Publicity Cadre, non-combatised non tised (does not come under Group'A' Executive Cadre). As such NFFU and NFSG benefit has been rejected to the applicant. It is significant to note that MACP Scheme itself makes it clear that the said Scheme is applicable to Group 'A', 'B' and 'C' Government ent civilian employees except organised Group 'A' service. As such, Non Functional Scale is viewed as one financial upgradation for the purpose of MACP. The applicant not being CAPF personnel, as the post of Publicity Officer belongs to Publicity cadre (non-combatised), combatised), the benefit of NFFU and NFSG at 18 OA No.353/2020/CAT/BANGALORE BENCH par with Group 'A' executive cadre has been denied denied, the same cannot be faulted with. MACP and NFFU are the schemes introduced under 6th CPC to meet the issue of stagnation.
11. In Harananda & Ors. supra, the Hon'ble Apex Court observed that merely because the 6th Pay Commission did not recommend to grant NFFU to CAPFs Group 'A' officers in PB PB-III and PB-IV, IV, the Group 'A' officers in PB PB-III and PB-IV cannot be denied the NFFU, which otherwise is granted granted to all the officers of Group 'A; Central Civil Services. Further it is observed that it is also required to be noted that, as such, the CAPFs were granted the benefit of recommendations of 4th Pay Commission, more particularly, the Modified Assured Career Progression Scheme Scheme, which was given to the Central Group 'A' Civil Services. Pursuant to the order passed in Harananda and Ors. supra, OM dated 04.07.2019 (Annexure A27) appears to have been issued conveying grant of Organised Group 'A' Service (O (OGAS) to Group 'A' Executive Cadre officers of CAPFs and consequential benefits of NFFU with effect from 01.01.2006 and NFSG with effect from 06.06.2000, thereby directing to extend the benefits of NFFU and 19 OA No.353/2020/CAT/BANGALORE BENCH NFSG to the eligible Group 'A' Executive Cadre Officers of CAPFs. In response to the legal notice issued by the applicant, the reasons assigned for not extending the benefits of NFFU and NFSG to the applicant that the post of Publicity Officer belong to Publicity Cadre which deals with professionall professionally implementation of publicity strategies and campaigns, press release of the overt field activities, press conference, analyzing local media coverage and the same would not come within the category category of OGAS Group 'A' cadre Officers of CAPF, cannot be faulte faulted with. Hence Harananda's case supra, also would not come to the aid of the Harananda's applicant.
12. It is unfortunate that the applicant was stagnated for about 23 years without any promotional promotion avenue as the post for which he was entitled on promotion was surrendered and on restructuring of the post for want of amendment of Recruitment Rules, though recommended by DPC, his promotion was not approved to the post of Deputy Director (Public Relations).
Relatio On sympathetic grounds, the conditions of the MACP/NFFU/NFSG Scheme cannot be relaxed.
20 OA No.353/2020/CAT/BANGALORE BENCH
13. Hence, for the foregoing reasons, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
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