Central Administrative Tribunal - Delhi
D.S. Rawat vs Union Of India Through on 11 March, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3038/2013
MA-2306/2013
Reserved on : 05.03.2015.
Pronounced on :11.03.2015.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. D.S. Rawat,
S/o late Sh. Prem Singh Rawat,
R/o F-98, Nauroji Nagar,
New Delhi-29.
2. R.K. Yadav,
S/o Sh. Gorakh Prasad Yadav,
R/o H.No. G-326A, Pratap Vihar,
Ghaziabad (UP-201001).
3. B.P. Singh,
S/o Sh. Peetam Singh,
R/o H.No. U-115, Vijay Nagar,
Narela, New Delhi-40.
4. Nalnish Srivastava,
S/o Sh. D.N. Khare,
R/o C-9 Wireless Staff Colony,
Gorai Road, Vorivali,
Mumbai.
5. Vinod Singh
S/o Sh. Mohinder Singh,
R/o FCA-266, Jain Colony,
Ballabgarh,
Faridabad-121004.
6. Smt. Leela Kumari,
W/o Sh. Daya Shankar Singh,
R/o Wireless Monitoring Staff Colony,
Q.No. Type-III/2, Gurauli Buzurg,
P.O. Chhapia Khajani Road,
Gorakhpur, UP-273016.
7. H.S. Dabas,
S/o Sh. Katar Singh Dabas,
R/o Vill. Rasul Pur, Post Rani Khera,
Delhi-81. .. Applicants
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Communication & IT,
Department of Telecommunication,
Sanchar Bhawan, New Delhi.
2. The Senior Administrative Officer,
Ministry of Communication & IT,
Department of Telecommunication,
Wireless Monitoring Organization,
E-Wing, III Florr, Pushpa Bhavan,
New Delhi.
3. The Secretary,
Department of Personnel & Training,
Govt. of India, North Block,
New Delhi. .. Respondents
(through Sh. Rattan Lal with Ms. Komal Gautam, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicants No. 1 to 6 are working as Junior Wireless Officer in the respondent department whereas the applicant No. 7 is working as Junior Engineer. According to the applicants, the hierarchy of posts in the department is as follows:-
Junior Engineer (W) (Rs.5000-8000/PB-II+4200 GP.) / Junior Wireless Officer (Rs.5500-9000/PB-II=4200 GP.) / Engineer.
(Rs.8000-13500/PB-III+5400 GP.) / Engineer-in-Charge/Assistant Wireless Advisor (Rs.10,000-15600/PB-3+6600 GP)
2. Further, they have submitted that on completion of 12 years of service on different dates between 12.05.2000 to 15.03.2005 applicants No.1 to 6 were granted first financial upgradation under the ACP Scheme to the scale of Rs. 5500-9000 from due dates. Applicant No.7 was granted this benefit from 29.12.2007. On the basis of Sixth Central Pay Commission (CPC) recommendations the pay scales of Rs.5000-8000 and Rs.5500-9000 were merged and granted replacement scale of PB-2 with grade pay of Rs.4200 w.e.f. 01.01.2006. Further, from 01.09.2008 MACP Scheme was introduced which provided for three financial upgradations on completion of 10, 20 and 30 years of service. The contention of the applicants is that since the pay scales of Rs.5000-8000 and Rs.5500-9000 were merged, the first financial upgradation granted to the applicants was to be ignored in terms of Government of India Clarification No. 27(iii) in 2012, which is reproduced below:-
Doubts Clarification If a Government servant recruited in the pre-revised pay scales of Rs.5000-8000 has been promoted in the promotional hierarchy in the pre revised pay scale of Rs.5500-9000 prior to 1.1.2006 and he has put in 12 years of regular service, then would there be any claim for financial upgradation under ACPS?
The pre-revised pay scales Rs.5000-8000 and Rs.5500-9000 have been merged and placed in PB-2 with grade pay of Rs.4200/- with effect from 1.1.2006. Hence the promotion would be ignored as he has completed his 12 years of regular service and the benefits of 1st ACP would accordingly be allowed in the promotional hierarchy in the grade pay of Rs.4600/- w.e.f. 1.1.2006. Thus, the respondents should have ignored this first ACP and granted the scale of next promotional post of Engineer i.e. Rs.8000-13500/PB-3+Grade pay of Rs.5400 as first financial upgradation w.e.f. 01.01.2006 to the first six applicants and w.e.f. 29.12.2007 to applicant No.7 and thereafter granted PB-3 with grade pay of Rs.6600 on the date on which each of the applicants completed 20 years of service or 01.09.2008, the date on which the MACP Scheme came into existence, whichever was later. However, instead of doing so, the respondents referred the matter to DoP&T for advice. The advice given by DoP&T on 30.11.2012 is reproduced below:-
3.Clarification point No. 27(iii) is applicable in cases where the Government servants who got promotion from the pay scale of Rs.5000-8000 to the pay scale of Rs.5500-9000 prior to 1.1.2006 the instant reference relates to JWOs (Rs.5000-8000) who got ACP in the scale of Rs.5500-9000/-. For such cases the ignoring factor will be available only w.e.f. 1.9.2008. We may clarify the referring Department that clarification rendered by Estt.(Pay I) as mentioned in the para 1(iii) of the referring note is in order. 2.1 The applicants made a detailed representation to the respondents on 05.06.2013 but the same was rejected on 06.08.2013 on the basis of Clarification received from DoP&T. Hence, the applicants have filed this O.A. seeking the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned DOP&T clarification dated 30.11.2012, order dated 09.01.2013 passed by the Ministry of Communication & IT, and order dated 29.05.2013, declaring to the effect that the same are illegal, unjust, against the ACP scheme and against the law of the land and consequently, pass an order of quashing all the order regarding re-fixation of pay of the applicants w.e.f. 1.1.2006 including order dt. 6.8.2013 & 8.4.13.
(ii) That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to grant Ist financial upgradation to the applicants under ACP scheme in the Grade pay of Rs.5400/- w.e.f. 1.1.2006 and 2nd financial upgradation in Grade pay of Rs.6600/- on completion of 20 years of service or w.e.f. 1.9.2008 which is later, with all the consequential benefits, including re-fixation of pay and allowances with the arrears of difference of pay and allowances with interest.
(iii) Any other relief which the honble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation. 2.2 The applicants have contended that consideration for promotion in a fair manner is a legal right as held by Honble Supreme Court in the case of Dwarka Prashad and Ors. Vs. UOI & Ors., 2004(1) ATJ (SC) 591. The Government in the guise of issuing a clarification have taken away the right which had accrued to the employee by the main Scheme. As per Clarification No. 27(iii) the promotions/upgradations granted to scales which got merged as a result of Sixth CPC recommendations were to be ignored. However, by further Clarification issued on 30.11.2012, the respondents have stated that Clarification No. 27(iii) is applicable only for promotion cases and not for financial upgradation cases and that such ignoring factor will be available in such cases only w.e.f. 01.09.2008. Further, the applicants have submitted that under the ACP Scheme, the upgradation is to be granted to the pay scale of the next promotion post but the respondents by their actions have taken away the right of the applicants to get promoted to the next scale. In support of their contention, the applicants have relied on the judgment of Chandigarh Bench of this Tribunal in OA-1038/CH/2010 in which the following has been held:-
13. It has been settled that the ACP would be granted on the completion of the required years of service in the hierarchy of posts for the posts of LDC/Hindi Typist, and not in the next higher scale in the recommended scales. The same principle would have to be applicable in regard to grant of MACP to the applicant. The only difference is that while in case of ACP two financial upgradations were granted on completion of 12 and 24 years of service, in case of MACP, three upgradations on the intervals of 10,20 and 30 years of service.
15. Be that as it may, the principle enunciated and settled by the Tribunal/High Court for grant of ACP cannot be changed and the same principle would apply for grant of MACP to him. The only difference is of number of years is required to be completed. We find no justification to take a different view in the matter.
16. For the foregoing reasons, the impugned order dated 9-8-2010 (Annexure A-1) qua the applicant, fixing his pay in PB-1 with grade pay of Rs.2400/- under the second MACP, and the order dated 9-8-2010 (Annexure A-2) are hereby quashed and set aside. Consequently, the respondents are directed to grant second financial to the applicant under the MACPS from due date fix his pay in the hierarchy of posts decided in his case earlier and to pay the resultant arrears without interest within a period of 2 months from the date of receipt of a copy of this order. This order has been upheld by Honble High Court of Punjab & Haryana in Writ Petition No. 19387/2011 vide their order dated 19.10.2011. SLP No. 7467/2013 filed against the aforesaid order was dismissed by Honble Supreme Court on 15.04.2013. The judgment was thereafter complied with by the respondents on 05.01.2012. In view of the aforesaid submissions, the applicants have prayed that their O.A. be allowed.
3. In their reply, the respondents have stated that Clarification No. 27(iii) issued by DoP&T applies only to promotion cases and not to cases of financial upgradation. The matter was, therefore, referred to DoP&T, who advised on 30.11.2012 as follows:-
Reference preceding notes.
2. The matter has been examined. Clarification sought by the referring Department on the effective date of applicability with regard to ignoring of upgradations granted under ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts as a part of the 6th CPC recommendations.
3. Clarification point No. 27(iii) is applicable to cases where the Government servants who got promotion from the pay scale of Rs.5000-8000 to the pay scale of Rs.5500-9000 prior to 01.01.2006. The instant reference relates to JWOs (Rs.5000-8000) who got ACP in the scale of Rs.5500-9000. For such cases the ignoring factor will be available only w.e.f. 01.09.2008. We may clarify the referring Department that clarification rendered by Estt. (Pay 1) as mentioned in the para 1(III) of the referring note is in order. 3.1 In accordance with this advice, the first financial upgradation granted to the applicants was ignored w.e.f. 01.09.2008 and they were grant first ACP benefit on that date and placed in PB-2 with grade pay of Rs. 4600. On the same date, they were granted the second MACP and their grade pay was increased to Rs.4800. This has been done in accordance with the provisions of the MACP Scheme under which on getting benefit of financial upgradation, next higher grade pay is to be awarded.
4. We have considered the submissions of both sides and have perused the material on record. Two issues need to be decided in this case. The first issue is to determine the date from which the first financial upgradation granted to the applicants prior to 01.01.2006 was to be ignored. The second issue to be decided is the pay band and the grade pay i.e. to be granted to the applicants. As regards the first issue, we find that the respondents have gone by the advice of DoP&T that Clarification No. 27(iii) is applicable only in promotion cases and that for financial upgradation cases under the ACP Scheme, the ignoring factor will be available only w.e.f. 01.09.2008. In our opinion, this is unsustainable for if this was to be accepted, it would have the effect of postponing grant of first ACP benefit to the applicants from 01.01.2006 to 01.09.2008. Moreover, those juniors of the applicants who completed 12 years of service after 01.01.2006 will steal a march over the applicants. This is because such persons on 01.01.2006 will be placed in PB-2 + Grade Pay of Rs.4200 due to merger of pay scales of Rs.5000-8000 and Rs.5500-9000. Thereafter, on completion of 12 years of service between 01.01.2006 and 01.09.2008 they will move to higher scale of promotional post. Thus, they will get placed in the next higher pay scale of Engineer i.e. PB-3 + Grade Pay of Rs. 5400 whereas the applicants who are senior to such persons will keep languishing in PB-2 with Grade Pay of Rs.4200. This obviously is an unacceptable position. Hence, we come to the conclusion that the ignoring factor has to be applied w.e.f. 01.01.2006 and not w.e.f. 01.09.2008 as advised by DoP&T. In fact the distinction made by DoP&T between promotion and financial upgradation is itself untenable as financial upgradation is granted in lieu of promotion. Thus, the applicants have to be extended benefit of first ACP on 01.01.2006 itself. Consequently, their pay would be first fixed in PB-2 with Grade Pay of Rs.4200 as replacement scale on grant of Sixth CPC recommendations and thereafter from that very date they have to be granted the benefit of first ACP.
4.1 The next issue to be decided the pay scale in which the applicants would be placed on grant of such benefit. In this regard, we have gone through the provisions of the MACP Scheme. This Scheme has come into existence w.e.f. 01.09.2008. Para-9 of the Office Memorandum No. 35034/3/2008-Estt.(D) dated 19.05.2009 reads as follows:-
Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational w.e.f. 01.09.2008. In other words, financial upgradation as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008. 4.2 A mere reading of this para makes it clear that till 31.08.2008 the earlier ACP Scheme was to remain in operation. Under that Scheme on granting financial upgradation, the beneficiaries had to be placed in the scale of the next promotional post. In the case of the applicants that happens to be the post of Engineer in the PB-3 with Grade Pay of Rs.5400. Hence, the applicants No.1 to 6, who completed 12 years of service prior to 01.01.2006, deserve to be placed in PB-2 with Grade Pay of Rs.5400 w.e.f. 01.01.2006. Applicant No.7, who completed 12 years on 29.12.2007, would first be placed in PB-3 with Grade Pay of Rs.4200 on 01.01.2006 and will be granted first financial upgradation under the ACP Scheme to PB-2 + Grade Pay of Rs.54000 on 29.12.2007. This view has also been taken by Chandigarh Bench of this Tribunal in the judgment mentioned above. Further, on completion of 20 years of service on 01.09.2008 or later the applicants will be eligible for upgradation to Grade Pay of Rs.6600 as second MACP benefit.
5. In view of the above, we allow this O.A. and quash the impugned orders dated 30.11.2012, 09.01.2013 and 29.05.2013. We direct that the pay of the applicants be re-fixed in the light of the observations made above within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /vinita/