Central Administrative Tribunal - Ernakulam
N.K. Gopinathan, Son Of The Late ... vs Union Of India, Represented By ...
Original Application No. 870 of 2011
Original Application No. 873 of 2011
Thursday, the 6th day of September, 2012
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
1. Original Application No. 870 of 2011 -
N.K. Gopinathan, son of the late Krishnan,
aged 61 years, Joint Deputy Director (Retired),
Intelligence Bureau, residing at Naduvalappil House, East Kombara, PO Irinjalakuda, Thrissur
District,
Kerala, Pin-680 121. ..... Applicant (By Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of India, Ministry of Home Affairs,
North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance, North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal, Public Grievances & Pensions,
North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North Block,
New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North
Block, New Delhi - 110 001.
6. The Pay & Accounts Officer (IB), Intelligence Bureau, Headquarters, AGCR Building, New
Delhi-110 002.
7. The Pay & Accounts Officer, Central Pension Accounting Office, Government of India,
Trikoot-2, Bhikaji Cama Place, New Delhi- 110 002. ..... Respondents (By Advocate - Mr. Millu
Dandapani, ACGSC)
2. Original Application No. 873 of 2011 -
Allath Sundaran, son of the late M.G. Menon,
aged 61 years, Assistant Director (Retired),
Intelligence Bureau, resding at Allath House,
Harisree, Shirdi Avenue, Kolazhy PO, Thrissur District, Kerala Pin- 680 010. ..... Applicant (By
Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of India, Ministry of Home Affairs,
North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance, North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal, Public Grievances & Pensions,
North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North Block,
New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North
Block, New Delhi - 110 001.
6. The Additional Director, Subsidiary Intelligence Bureau, Ministry of Home Affairs, 25 Infantry
Road, Bangalore-560 002.
7. The Pay & Accounts Officer (IB), Intelligence Bureau, Headquarters, AGCR Building, New
Delhi-110 002.
8. The Pay & Accounts Officer, Central Pension Accounting Office, Government of India,
Trikoot-2, Bhikaji Cama Place, New Delhi- 110 002. ..... Respondents (By Advocate - Mr. Millu
Dandapani, ACGSC)
These applications having been heard on 22.08.2012, the Tribunal on 06.09.2012 delivered the
following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member- Having common facts and issues, these
OAs were heard together and are disposed of by this common order.
2. The applicant in OA No. 870 of 2011 commenced service as Personal Assistant (Stenographer
Grade-II) under the respondents on 15.3.1971. He was promoted as Section Officer on 7.12.1988.
He was granted 2nd financial up-gradation w.e.f. 9.8.1999 in the pay scale of Rs. 10,000-15,200/-.
He was promoted as Assistant Director (NP) in the pay scale of Rs. 10,000-15,200/- in October,
2006. He was granted non-functional pay scale of Rs. 8000- 13,500/- w.e.f. 1.1.1996 notionally and
on actual basis from 3.10.2003 vide order dated 31.12.2009. The 3rd financial up-gradation from
the grade pay of Rs. 6,600/- to Rs. 7,600/- in PB-3 15600-39,100/- w.e.f. 1.9.2008 was granted
vide order dated 14.1.2010. Further he was promoted as Joint Director on 15.4.2010. The order of
the 3rd financial up-gradation was kept in abeyance vide order dated 21.4.2010. Hence, no pay
fixation was granted. He retired on 31.5.2010. His representation for benefits of 3rd financial upgradation
was replied to vide Annexure A6 dated 15.6.2011 stating that the desired clarification is
still awaited from the respondents 2 & 3. Aggrieved he has filed this OA for the following
reliefs:-
Quash Annexure A4 order issued by the 5th respondent keeping in abeyance the
Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under
the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed
accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under
the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and
pensionary benefits accordingly and to disburse him the arrears thereof. d. To grant such other
reliefs as may be prayed for and the court may deem fit to grant, and
e. Grant the cost of this Original Application.
3. The applicant in OA No. 873/11 commenced service under the respondents as Personal Assistant
(Steno Gr.II) on 5.9.1974. He was promoted as Section Officer on 8.7.1994 with notional effect from
26.2.1992. He was granted the 2nd financial up-gradation in the pay scale of Rs. 10,000-15,200/-
w.e.f. 9.8.1999. He was granted non-functional pay scale of Rs. 8000-13,500/- w.e.f. 1.1.1996 vide
order dated 31.12.2009. He was granted the 3rd financial up-gradation under the MACPs vide
order dated 14.1.2010. He retired on 30.4.2010. His pension was calculated on the basis of the 3rd
up-gradation as per order dated 7.4.2010. Vide order dated 21.4.2010 the order of the 3rd upgradation
was kept in abeyance. His pension was revised on the basis of Grade Pay of Rs. 6600/-
only and an amount of Rs. 56,364/- was adjusted from his gratuity amount. Aggrieved he has filed
this OA for the following relief:-
. Quash Annexure A6 order issued by the 5th respondent keeping in abeyance the
Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under
the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed
accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under
the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and
pensionary benefits accordingly and to disburse him the arrears thereof. d. Declare that no amount
is liable to be withheld/recovered from the applicant's pensionary benefits on account of the pay
granted to him under the third financial upgradation under the MACP scheme. e. Direct the
respondents to reimburse the amount withheld/recovered from the applicant from his pensionary
benefits consequent to the revision and refixation of his pensionary benefits on the basis of his prerevised
pay.
f. Declare that the applicant is entitled to get the service rendered as Private Secretary counted
towards the eligibility for the grant of the non-functional pay with effect from 1.1.1996 and that he
is entitled to get the non-functional pay with effect from 1.1.1996. g. Direct the respondent to grant
the applicant the non-functional pay with effect from 1.1.1996 and to refix his pay accordingly with
effect from 1.1.1996.
h. To grant such other reliefs as may be prayed for and the court may deem fit to grant, and
i. Grant the cost of this Original Application."
4. The applicants contended that despite passage of two years no clarification is received as to his
3rd financial up-gradation under MACP scheme and no orders have been issued on the financial upgradation.
The delay for which no reasons have been put forwarded has caused monetary loss to
the applicants. It is not stated what clarification is being sought from the Ministry of Finance and
what is the impediment in receiving the said clarification. The benefits of 3rd financial up-gradation
has been denied only to the category of Assistant Director (NP) who are promotees from the cadre
of Section Officers. The Assistant Directors (Staff Officer) who are promoted from the category of
Private Secretary under the respondents have already been disbursed the entire monetary
benefits under the financial up- gradation scheme in both ACP and MACP. No recovery can be
made unless payment is made on account of the fraud or misrepresentation on the part of the
employee, it was contended by the applicant in OA 873/2011.
5. In the reply statement the respondents submitted that the grant of non- functional scale of Rs.
8000-13,500/- (revised grade pay of Rs. 5400/- in PB-III) to the applicants was neither by way of
promotion nor ACP/MACP. However, as per the provisions of the MACP scheme the benefits given
under non-functional scale on completion of four years of regular service in the grade of SO/PS
w.e.f. 1.1.1996 (notional basis) and actual basis w.e.f. 3.10.2003 have been counted as one financial
up-gradation in terms of paragraph 8.1 of the MACP Scheme. The respondents admitted that the
applicants were never given the grade pay of Rs. 5400/- as the non-functional pay of Rs. 8000-
13,500/- which was granted to them on 1.1.1996 long before the introduction of the concept of
grade pay by the VIth Central Pay Commission. It was believed by them that the 2nd financial upgradation
to the applicants would be in the grade pay of Rs. 6,600/-. The clarifications at
Annexures R2 and R3 are to the effect that Direct Recruit (Assistant)/Direct Recruit (Grade-C
Stenographers) who has got non-functional grade in the grade pay of Rs. 5400/- would only be
entitled for 3rd financial up-gradation in the immediate grade pay of Rs. 6,600/- on completion of
30 years of completion of service or on completion of 10 years of stagnation in a single grade pay
whichever is earlier. Therefore, it was decided that grant of financial up-gradation under the MACP
scheme to the applicants and similarly placed officers to the grade pay of Rs. 7,600/- be kept in
abeyance and a clarification from the government may be sought as to whether the same is
admissible as 3rd financial up-gradation in the case of the applicants who got the grade pay of Rs.
5400/- as non-functional scale. As the applicant in OA No. 870/11 was retiring on 31st May, 2010
his pensionary benefits were calculated on the basis of the basic pay admissible in the grade pay of
Rs. 6,600/- and the financial up-gradation under the MACP scheme to the grade pay of Rs. 7,600/-
is denied to him by way of clarification from the DOP&T. However, the respondents held that
the instructions at Annexures R3 and R4 are applicable only to those direct recruit
Assistants/Grade-III Stenographers who got non-functional grade with grade pay of Rs. 5400/- on
or after 1.1.2006 as the concept of grade pay was introduced in the VIth Central Pay Commission
effective from 1.1.2006 and not to the applicant who got the non-functional grade pay of Rs. 8000-
13,500/- well before 1.1.2006. In the case of Assistant Directors (Staff Officer) orders granting 3rd
financial up-gradation with grade pay of Rs. 7,600/- were issued in respect of four officers on 23rd
November, 2009 and their pay and allowances were also fixed much before the issue of Annexure
R3. Once the clarification is received the admissible pensionary benefits would be calculated
accordingly and the accrued benefits would be restored. Pending government's decision, the
overpaid amount was adjusted in the retirement benefit of the applicant in OA No. 873 of 2011.
6. In the rejoinder statements the applicants submitted that clause-VI of the MACP scheme is
applicable to their case. They are entitled to 3rd financial up- gradation under the MACP scheme to
the next higher pay band of Rs. 15,600-39,100/- with grade pay of Rs. 7,600/- which has been
rightly sanctioned to them by Annexure A3 as they were granted 2nd financial up- gradation under
the ACP scheme in the pre-revised pay scale of Rs. 10,000- 15,200/- (PB-III Rs. 15,600-39,100/-
with grade pay of Rs. 6,600/-). The order dated 31.12.2009 granting non-functional pay scale of
Rs. 8,000- 15,500/- (pre-revised) to the Section Officers/Private Secretaries of the Intelligence
Bureau has nothing to do with the VIth Central Pay Commission recommendations. The MACP
scheme was introduced by the respondents by OM dated 19.5.2009 while the non-functional pay
was introduced by order dated 31.12.2009 i.e. subsequent to the introduction of the MACP scheme.
The Assistant Directors (NP) who are promoted from Section Officers in as far as they are not given
3rd financial up-gradation under the MACP scheme which was granted to the Assistant Directors
(Staff Officers) who are promoted from Private Secretaries. The conditions listed in the order dated
31.12.2009 regarding non-functional scale is equally applicable to both Section Officers and Private
Secretaries. The reply statement of the respondents is vague on the issue as to on what date the
respondents have sought the clarification and what is the hurdle in getting it. No reasons have been
given for the inordinate delay in getting the clarification.
7. We have heard the learned counsel for the parties and perused the records.
8. The non-functional pay of Rs. 8,000-13,500/- was granted to the applicants w.e.f 1.1.1996.
They were granted the 2nd financial up-gradation under the ACP scheme in the pay scale of Rs.
10,000-15,200/- w.e.f. 9.8.1999. The pay scale of Rs. 10,000-15,200/- was replaced with PB-III
Rs. 15,600-39,100/- with grade pay of Rs. 6,600/- w.e.f. 1.1.2006. Therefore, the respondents
granted them the 3rd financial up-gradation under the MACP scheme from the grade pay of Rs.
6,600/- to Rs. 7,600/- in the pay band of Rs. 15,600-39,100/- w.e.f. 1.9.2008. The order of 3rd
financial up-gradation was kept in abeyance on the basis of clarifications dated 12.1.2010 and
12.4.2010 at Annexures R3 and R4 respectively. They clarify that in terms of paragraph 8.1 of the
MACP scheme direct recruit Assistants/Stenographers Grade-C who got non-functional grade pay
of Rs. 5400/- would be entitled to 3rd financial up-gradation in the immediate higher grade pay of
Rs. 6,600/- on completion of 30 years of service or on completion of 10 years of stagnation service
in a single grade pay whichever is earlier. Paragraph 8.1 of the MACP scheme dated 19.5.2009 is
reproduced as under:-
8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs.
5400 is now in two pay bands viz. PB-2 and PB-3. The grade pay of Rs. 5400 in PB-2 and Rs. 5400
in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under
MACP Scheme."
As per paragraph 8.1 above the grade pay of Rs. 5400/- in PB-II and PB-III should be treated as
separate grade pays for the purpose of up-gradation under the MACP. Paragraph 8.1 and
clarification dated 12.4.2010 pertain to grade pay of Rs. 5400/-. The respondents have admitted
that the applicants never got the grade pay of Rs. 5400/-. Therefore, Annexures R3 & R4
dated 12.1.2010 and 12.4.2010 respectively do not have application to the cases of the applicants
in granting the 3rd financial up-gradation. Thus, there is no factual or legal basis for keeping the
order of 14.1.2010 in abeyance granting the 3rd financial up-gradation to the applicants.
9. As per the statement of the respondents orders granting 3rd financial up-gradation with grade
pay of Rs. 7,600/- to Assistant Directors (Staff Officer) was issued in respect of four officers and
their pay and allowances were also fixed before the issuance of Annexure R3. The clarification is
effective not from the date of its issue but from the date of the order it clarifies. The clarification
elucidates the position that existed earlier. Seen from this angle the clarification at Annexures R3
and R4 whether right or wrong should apply to all including the Assistant Directors (Staff Officer).
The clarifications cannot be restricted in application to Assistant Directors (NP) alone, as is the case
here which is discrimination.
10. The non-functional scale of Rs. 8000-13,500/- (revised pay scale Rs. 13,600-39,100/- with
grade pay of Rs. 5400/-) granted with effect from 1.1.1996 was neither by way of promotion nor
ACP/MACP. Therefore, the consequent financial up-gradation of the applicants w.e.f. 9.8.1999 was
in the equivalent Grade Pay of Rs. 6,600/- in PB-III. Therefore, the 3rd financial up-gradation of
the applicant in the grade pay of Rs. 7,600/- in PB- III was rightly given vide order dated
14.1.2010. Paragraph 6 of the MACP scheme reads as under:-
"6. In the case of all the employees granted financial upgradations under ACPS till
01.01.2006, their revised pay will be fixed with reference to the pay scale granted to them under
the ACPS.
11. As rightly stated by the applicants their case is covered by paragraph 6 of the MACP scheme
and not by paragraph 8.1 of the MACP scheme. Paragraph 8.1 does not come into play in the
instant cases. The non- functional pay was granted by order dated 31.12.2009 with retrospective
effect from 1.1.1996. Since 2010, the clarifications sought by the respondents are pending
consideration in the Ministry. The impugned orders do not state any reason whatsoever for keeping
in abeyance the order of granting 3rd financial up-gradation to the applicant along with others. The
reply statement of the respondents do not give any reasons as to the inordinate delay in getting the
clarifications sought by them. The lethargy on the part of the respondents in getting the desired
clarification, in the light of the submissions made by the respondents themselves should not be
allowed to cause delay in granting justice to the applicants.
12. In the light of the discussions above the Original Applications are allowed. The impugned order
dated 21.4.2010 is set aside. It is declared that the applicants are entitled to get the benefits of 3rd
financial up-gradation under the MACP scheme granted to them as per Annexure A3 in OA 870/11
and Annexure A4 in OA 873/11 and to get their pay and pension re-fixed accordingly. The
respondents are directed to grant the applicants the benefits of 3rd financial up-gradation and to
revise and re-fix their pay and pensionary benefits accordingly and disburse them the arrears
thereof and to refund the withheld amount of Rs. 56,364/- to the applicant in OA No. 873/11 within
a period of sixty days from the date of receipt of a copy of this order. No order as to costs. (K.
GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER
N.K. Gopinathan, Son Of The Late ... vs Union Of India, Represented By ...
Original Application No. 870 of 2011
Original Application No. 873 of 2011
Thursday, the 6th day of September, 2012
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
1. Original Application No. 870 of 2011 -
N.K. Gopinathan, son of the late Krishnan,
aged 61 years, Joint Deputy Director (Retired),
Intelligence Bureau, residing at Naduvalappil House, East Kombara, PO Irinjalakuda, Thrissur
District,
Kerala, Pin-680 121. ..... Applicant (By Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of India, Ministry of Home Affairs,
North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance, North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal, Public Grievances & Pensions,
North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North Block,
New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North
Block, New Delhi - 110 001.
6. The Pay & Accounts Officer (IB), Intelligence Bureau, Headquarters, AGCR Building, New
Delhi-110 002.
7. The Pay & Accounts Officer, Central Pension Accounting Office, Government of India,
Trikoot-2, Bhikaji Cama Place, New Delhi- 110 002. ..... Respondents (By Advocate - Mr. Millu
Dandapani, ACGSC)
2. Original Application No. 873 of 2011 -
Allath Sundaran, son of the late M.G. Menon,
aged 61 years, Assistant Director (Retired),
Intelligence Bureau, resding at Allath House,
Harisree, Shirdi Avenue, Kolazhy PO, Thrissur District, Kerala Pin- 680 010. ..... Applicant (By
Advocate - Ms. Rekha Vasudevan)
V e r s u s
1. Union of India, represented by Secretary to Government of India, Ministry of Home Affairs,
North Block, New Delhi-110 001.
2. The Secretary to Government of India, Ministry of Finance, North Block, New Delhi-110 001.
3. The Secretary to Government of India, Ministry of Personal, Public Grievances & Pensions,
North Block, New Delhi-110 001.
4. The Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North Block,
New Delhi-110 001.
5. The Deputy Director, Intelligence Bureau, Ministry of Home Affairs, Government of India, North
Block, New Delhi - 110 001.
6. The Additional Director, Subsidiary Intelligence Bureau, Ministry of Home Affairs, 25 Infantry
Road, Bangalore-560 002.
7. The Pay & Accounts Officer (IB), Intelligence Bureau, Headquarters, AGCR Building, New
Delhi-110 002.
8. The Pay & Accounts Officer, Central Pension Accounting Office, Government of India,
Trikoot-2, Bhikaji Cama Place, New Delhi- 110 002. ..... Respondents (By Advocate - Mr. Millu
Dandapani, ACGSC)
These applications having been heard on 22.08.2012, the Tribunal on 06.09.2012 delivered the
following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member- Having common facts and issues, these
OAs were heard together and are disposed of by this common order.
2. The applicant in OA No. 870 of 2011 commenced service as Personal Assistant (Stenographer
Grade-II) under the respondents on 15.3.1971. He was promoted as Section Officer on 7.12.1988.
He was granted 2nd financial up-gradation w.e.f. 9.8.1999 in the pay scale of Rs. 10,000-15,200/-.
He was promoted as Assistant Director (NP) in the pay scale of Rs. 10,000-15,200/- in October,
2006. He was granted non-functional pay scale of Rs. 8000- 13,500/- w.e.f. 1.1.1996 notionally and
on actual basis from 3.10.2003 vide order dated 31.12.2009. The 3rd financial up-gradation from
the grade pay of Rs. 6,600/- to Rs. 7,600/- in PB-3 15600-39,100/- w.e.f. 1.9.2008 was granted
vide order dated 14.1.2010. Further he was promoted as Joint Director on 15.4.2010. The order of
the 3rd financial up-gradation was kept in abeyance vide order dated 21.4.2010. Hence, no pay
fixation was granted. He retired on 31.5.2010. His representation for benefits of 3rd financial upgradation
was replied to vide Annexure A6 dated 15.6.2011 stating that the desired clarification is
still awaited from the respondents 2 & 3. Aggrieved he has filed this OA for the following
reliefs:-
Quash Annexure A4 order issued by the 5th respondent keeping in abeyance the
Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under
the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed
accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under
the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and
pensionary benefits accordingly and to disburse him the arrears thereof. d. To grant such other
reliefs as may be prayed for and the court may deem fit to grant, and
e. Grant the cost of this Original Application.
3. The applicant in OA No. 873/11 commenced service under the respondents as Personal Assistant
(Steno Gr.II) on 5.9.1974. He was promoted as Section Officer on 8.7.1994 with notional effect from
26.2.1992. He was granted the 2nd financial up-gradation in the pay scale of Rs. 10,000-15,200/-
w.e.f. 9.8.1999. He was granted non-functional pay scale of Rs. 8000-13,500/- w.e.f. 1.1.1996 vide
order dated 31.12.2009. He was granted the 3rd financial up-gradation under the MACPs vide
order dated 14.1.2010. He retired on 30.4.2010. His pension was calculated on the basis of the 3rd
up-gradation as per order dated 7.4.2010. Vide order dated 21.4.2010 the order of the 3rd upgradation
was kept in abeyance. His pension was revised on the basis of Grade Pay of Rs. 6600/-
only and an amount of Rs. 56,364/- was adjusted from his gratuity amount. Aggrieved he has filed
this OA for the following relief:-
. Quash Annexure A6 order issued by the 5th respondent keeping in abeyance the
Annexure A3 order granting the third financial upgradation to the applicant.
b. Declare that the applicant is entitled to get the benefits of the third financial upgradation under
the MACP Scheme granted to him as per Annexure A3 and to get his pay and pension refixed
accordingly.
c. Direct the respondents to grant the applicant the benefits of the third financial upgradation under
the MACP Scheme sanctioned as per Annexure A3 order and revise and refix his pay and
pensionary benefits accordingly and to disburse him the arrears thereof. d. Declare that no amount
is liable to be withheld/recovered from the applicant's pensionary benefits on account of the pay
granted to him under the third financial upgradation under the MACP scheme. e. Direct the
respondents to reimburse the amount withheld/recovered from the applicant from his pensionary
benefits consequent to the revision and refixation of his pensionary benefits on the basis of his prerevised
pay.
f. Declare that the applicant is entitled to get the service rendered as Private Secretary counted
towards the eligibility for the grant of the non-functional pay with effect from 1.1.1996 and that he
is entitled to get the non-functional pay with effect from 1.1.1996. g. Direct the respondent to grant
the applicant the non-functional pay with effect from 1.1.1996 and to refix his pay accordingly with
effect from 1.1.1996.
h. To grant such other reliefs as may be prayed for and the court may deem fit to grant, and
i. Grant the cost of this Original Application."
4. The applicants contended that despite passage of two years no clarification is received as to his
3rd financial up-gradation under MACP scheme and no orders have been issued on the financial upgradation.
The delay for which no reasons have been put forwarded has caused monetary loss to
the applicants. It is not stated what clarification is being sought from the Ministry of Finance and
what is the impediment in receiving the said clarification. The benefits of 3rd financial up-gradation
has been denied only to the category of Assistant Director (NP) who are promotees from the cadre
of Section Officers. The Assistant Directors (Staff Officer) who are promoted from the category of
Private Secretary under the respondents have already been disbursed the entire monetary
benefits under the financial up- gradation scheme in both ACP and MACP. No recovery can be
made unless payment is made on account of the fraud or misrepresentation on the part of the
employee, it was contended by the applicant in OA 873/2011.
5. In the reply statement the respondents submitted that the grant of non- functional scale of Rs.
8000-13,500/- (revised grade pay of Rs. 5400/- in PB-III) to the applicants was neither by way of
promotion nor ACP/MACP. However, as per the provisions of the MACP scheme the benefits given
under non-functional scale on completion of four years of regular service in the grade of SO/PS
w.e.f. 1.1.1996 (notional basis) and actual basis w.e.f. 3.10.2003 have been counted as one financial
up-gradation in terms of paragraph 8.1 of the MACP Scheme. The respondents admitted that the
applicants were never given the grade pay of Rs. 5400/- as the non-functional pay of Rs. 8000-
13,500/- which was granted to them on 1.1.1996 long before the introduction of the concept of
grade pay by the VIth Central Pay Commission. It was believed by them that the 2nd financial upgradation
to the applicants would be in the grade pay of Rs. 6,600/-. The clarifications at
Annexures R2 and R3 are to the effect that Direct Recruit (Assistant)/Direct Recruit (Grade-C
Stenographers) who has got non-functional grade in the grade pay of Rs. 5400/- would only be
entitled for 3rd financial up-gradation in the immediate grade pay of Rs. 6,600/- on completion of
30 years of completion of service or on completion of 10 years of stagnation in a single grade pay
whichever is earlier. Therefore, it was decided that grant of financial up-gradation under the MACP
scheme to the applicants and similarly placed officers to the grade pay of Rs. 7,600/- be kept in
abeyance and a clarification from the government may be sought as to whether the same is
admissible as 3rd financial up-gradation in the case of the applicants who got the grade pay of Rs.
5400/- as non-functional scale. As the applicant in OA No. 870/11 was retiring on 31st May, 2010
his pensionary benefits were calculated on the basis of the basic pay admissible in the grade pay of
Rs. 6,600/- and the financial up-gradation under the MACP scheme to the grade pay of Rs. 7,600/-
is denied to him by way of clarification from the DOP&T. However, the respondents held that
the instructions at Annexures R3 and R4 are applicable only to those direct recruit
Assistants/Grade-III Stenographers who got non-functional grade with grade pay of Rs. 5400/- on
or after 1.1.2006 as the concept of grade pay was introduced in the VIth Central Pay Commission
effective from 1.1.2006 and not to the applicant who got the non-functional grade pay of Rs. 8000-
13,500/- well before 1.1.2006. In the case of Assistant Directors (Staff Officer) orders granting 3rd
financial up-gradation with grade pay of Rs. 7,600/- were issued in respect of four officers on 23rd
November, 2009 and their pay and allowances were also fixed much before the issue of Annexure
R3. Once the clarification is received the admissible pensionary benefits would be calculated
accordingly and the accrued benefits would be restored. Pending government's decision, the
overpaid amount was adjusted in the retirement benefit of the applicant in OA No. 873 of 2011.
6. In the rejoinder statements the applicants submitted that clause-VI of the MACP scheme is
applicable to their case. They are entitled to 3rd financial up- gradation under the MACP scheme to
the next higher pay band of Rs. 15,600-39,100/- with grade pay of Rs. 7,600/- which has been
rightly sanctioned to them by Annexure A3 as they were granted 2nd financial up- gradation under
the ACP scheme in the pre-revised pay scale of Rs. 10,000- 15,200/- (PB-III Rs. 15,600-39,100/-
with grade pay of Rs. 6,600/-). The order dated 31.12.2009 granting non-functional pay scale of
Rs. 8,000- 15,500/- (pre-revised) to the Section Officers/Private Secretaries of the Intelligence
Bureau has nothing to do with the VIth Central Pay Commission recommendations. The MACP
scheme was introduced by the respondents by OM dated 19.5.2009 while the non-functional pay
was introduced by order dated 31.12.2009 i.e. subsequent to the introduction of the MACP scheme.
The Assistant Directors (NP) who are promoted from Section Officers in as far as they are not given
3rd financial up-gradation under the MACP scheme which was granted to the Assistant Directors
(Staff Officers) who are promoted from Private Secretaries. The conditions listed in the order dated
31.12.2009 regarding non-functional scale is equally applicable to both Section Officers and Private
Secretaries. The reply statement of the respondents is vague on the issue as to on what date the
respondents have sought the clarification and what is the hurdle in getting it. No reasons have been
given for the inordinate delay in getting the clarification.
7. We have heard the learned counsel for the parties and perused the records.
8. The non-functional pay of Rs. 8,000-13,500/- was granted to the applicants w.e.f 1.1.1996.
They were granted the 2nd financial up-gradation under the ACP scheme in the pay scale of Rs.
10,000-15,200/- w.e.f. 9.8.1999. The pay scale of Rs. 10,000-15,200/- was replaced with PB-III
Rs. 15,600-39,100/- with grade pay of Rs. 6,600/- w.e.f. 1.1.2006. Therefore, the respondents
granted them the 3rd financial up-gradation under the MACP scheme from the grade pay of Rs.
6,600/- to Rs. 7,600/- in the pay band of Rs. 15,600-39,100/- w.e.f. 1.9.2008. The order of 3rd
financial up-gradation was kept in abeyance on the basis of clarifications dated 12.1.2010 and
12.4.2010 at Annexures R3 and R4 respectively. They clarify that in terms of paragraph 8.1 of the
MACP scheme direct recruit Assistants/Stenographers Grade-C who got non-functional grade pay
of Rs. 5400/- would be entitled to 3rd financial up-gradation in the immediate higher grade pay of
Rs. 6,600/- on completion of 30 years of service or on completion of 10 years of stagnation service
in a single grade pay whichever is earlier. Paragraph 8.1 of the MACP scheme dated 19.5.2009 is
reproduced as under:-
8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs.
5400 is now in two pay bands viz. PB-2 and PB-3. The grade pay of Rs. 5400 in PB-2 and Rs. 5400
in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under
MACP Scheme."
As per paragraph 8.1 above the grade pay of Rs. 5400/- in PB-II and PB-III should be treated as
separate grade pays for the purpose of up-gradation under the MACP. Paragraph 8.1 and
clarification dated 12.4.2010 pertain to grade pay of Rs. 5400/-. The respondents have admitted
that the applicants never got the grade pay of Rs. 5400/-. Therefore, Annexures R3 & R4
dated 12.1.2010 and 12.4.2010 respectively do not have application to the cases of the applicants
in granting the 3rd financial up-gradation. Thus, there is no factual or legal basis for keeping the
order of 14.1.2010 in abeyance granting the 3rd financial up-gradation to the applicants.
9. As per the statement of the respondents orders granting 3rd financial up-gradation with grade
pay of Rs. 7,600/- to Assistant Directors (Staff Officer) was issued in respect of four officers and
their pay and allowances were also fixed before the issuance of Annexure R3. The clarification is
effective not from the date of its issue but from the date of the order it clarifies. The clarification
elucidates the position that existed earlier. Seen from this angle the clarification at Annexures R3
and R4 whether right or wrong should apply to all including the Assistant Directors (Staff Officer).
The clarifications cannot be restricted in application to Assistant Directors (NP) alone, as is the case
here which is discrimination.
10. The non-functional scale of Rs. 8000-13,500/- (revised pay scale Rs. 13,600-39,100/- with
grade pay of Rs. 5400/-) granted with effect from 1.1.1996 was neither by way of promotion nor
ACP/MACP. Therefore, the consequent financial up-gradation of the applicants w.e.f. 9.8.1999 was
in the equivalent Grade Pay of Rs. 6,600/- in PB-III. Therefore, the 3rd financial up-gradation of
the applicant in the grade pay of Rs. 7,600/- in PB- III was rightly given vide order dated
14.1.2010. Paragraph 6 of the MACP scheme reads as under:-
"6. In the case of all the employees granted financial upgradations under ACPS till
01.01.2006, their revised pay will be fixed with reference to the pay scale granted to them under
the ACPS.
11. As rightly stated by the applicants their case is covered by paragraph 6 of the MACP scheme
and not by paragraph 8.1 of the MACP scheme. Paragraph 8.1 does not come into play in the
instant cases. The non- functional pay was granted by order dated 31.12.2009 with retrospective
effect from 1.1.1996. Since 2010, the clarifications sought by the respondents are pending
consideration in the Ministry. The impugned orders do not state any reason whatsoever for keeping
in abeyance the order of granting 3rd financial up-gradation to the applicant along with others. The
reply statement of the respondents do not give any reasons as to the inordinate delay in getting the
clarifications sought by them. The lethargy on the part of the respondents in getting the desired
clarification, in the light of the submissions made by the respondents themselves should not be
allowed to cause delay in granting justice to the applicants.
12. In the light of the discussions above the Original Applications are allowed. The impugned order
dated 21.4.2010 is set aside. It is declared that the applicants are entitled to get the benefits of 3rd
financial up-gradation under the MACP scheme granted to them as per Annexure A3 in OA 870/11
and Annexure A4 in OA 873/11 and to get their pay and pension re-fixed accordingly. The
respondents are directed to grant the applicants the benefits of 3rd financial up-gradation and to
revise and re-fix their pay and pensionary benefits accordingly and disburse them the arrears
thereof and to refund the withheld amount of Rs. 56,364/- to the applicant in OA No. 873/11 within
a period of sixty days from the date of receipt of a copy of this order. No order as to costs. (K.
GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER
