ALL INDIA ASSOCIATION OF CENTRAL
EXCISE
GAZETTED
EXECUTIVE OFFICERS
President:
Address for communication:
Secretary General:
A. Venkatesh 240, Razapur,
Ghaziabad-201001 (U.P.)
Ravi Malik
Vice Presidents: Apurba Roy, P. C. Jha (East); A. K. Meena,
Somnath Chakrabarty (west); Ashish Vajpayee, Ravi Joshi (North); B. Pavan K.
Reddy, M. Jegannathan (South); K.V. Sriniwas, T. J. Manojuman (Central) Joint
Secretaries: Ajay Kumar, R. N. Mahapatra (East); B. S. Meena, Sanjeev Sahai
(West); Harpal Singh, Sanjay Srivastava (North); M. Nagraju, P. Sravan Kumar
(South); Anand Kishore, Ashutosh Nivsarkar (Central)
Office Secretary: C. S. Sharma T reasuer: N. R. Manda Organising
Secretary: Soumen
Bhattachariya
(Recognised by G.O.I., Min. of Fin. vide
letter F.No. B. 12017/10/2006-Ad.IV A Dt.21.01.08)
Ref. No. 304/AIB/N/18
Dt. 19.11.18
To,
The Secretary DOPT,
North Block, New Delhi.
Sub: Offsetting
of time scale/NFG with the MACP upgradation.
Sir,
Your
kind attention is also invited to the to the verdict given by the Hon’ble Apex
Court in SLP No. 77457/2017 in r/o the order Dt. 23.03.17 given by the Hon’ble
High Court of Delhi in WP No. 2634/2017 in which the Apex Court said, “Once
the question, in principle, has been settled, it is only appropriate on the
part of the Government of India to issue a circular so that it will save the
time of the court and the Administrative Departments apart from avoiding
unnecessary and avoidable expenditure.” The Hon’ble Court further directed the
Government of India to immediately look into the matter and issue appropriate
orders so that people need not unnecessarily travel either to the Tribunal or
the High Court or the Supreme Court.
2. Your kind attention
is also invited to the orders of Hon'ble Supreme Court in P.K. & Ors. V. K.
Kapoor & Anr. JT 2007 (12) 439, Inderpal Singh Yadav & Ors., State of
Maharashtra Vs. Tukaram Trymbak Choudhary by order dated 20.02.2007, Dt. 17.10.14 in the Civil Appeal
No. 9849 of 2014 in the matter of State of Uttar Pradesh & Ors Vs. Arvind
Kumar Srivastava & Ors etc. mandating to give the benefit of court
verdict to all equally placed persons. The Hon'ble Supreme Court in the judgment Dt. 17.10.14 in
the Civil Appeal No. 9849 of 2014 in the matter of State of Uttar Pradesh &
Ors Vs. Arvind Kumar Srivastava & Ors held as under:
“Normal rule is that when a particular set of
employees is given relief by the Court, all other identically situated persons
need to be treated alike by extending that benefit. Not doing so would amount
to discrimination and would be violative of Article 14 of the Constitution of
India. This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this Court from time to time
postulates that all similarly situated persons should be treated similarly.
Therefore, the normal rule would be that merely because other similarly
situated persons did not approach the Court earlier, they are not to be treated
differently.”
3.
Despite of above verdicts, the officers are forced to go to the CAT/High Court
even in same matters which have already been finalized/settled by the Hon’ble
High Courts/Apex Court. The verdicts, in which no appeal has been made, are
also not being implemented. The benefit of court verdicts in the settled issues
is being given only to the petitioners/applicants instead of implementing in
rem.
4.
Your kind attention is also invited to the order Dt. 27.09.18 of the Hon’ble
High Court of Delhi in W.P.(C) 11277/2016 taking serious note against
the CBIC letter Dt. 05.09.07. This letter says, “in cases where the Court
orders are adverse to the interest of the department/Government, such orders
should not be implemented without clearance of the Board”. The Hon’ble High Court
took strong exception to this letter and was prima facie of the opinion that
this letter invites contempt of Court. However, at the request of the ASG, the
Hon’ble Court refrained from passing further orders and offered an opportunity
to the CBIC to withdraw the letter. Thus,
it is very clear that any government department including nodal departments
like DOPT & Expenditure is never above the Hon’ble Court and it is
contemptuous not to follow the court orders.
5.
Further, your kind attention is invited to the following verdicts regarding
the offsetting of time scale/NFG with the MACP upgradation-
i) In the verdict given by the
Hon’ble High Court of Delhi on 20.12.17 in the W.P.(C) No. 9357/2016 upholds
that non-functional financial upgradation (time scale) is not MACP upgradation
on account of being integral
part of the
pay. Thus, it can no way be treated as one MACP upgradation. The order of the Hon’ble High Court has already been
implemented vide office order No. 190/E-IV/Estt/DHC Dt. 23.02.18 of Delhi High
Court without preferring any appeal in it. Thus, no need to say that the matter
has been finalized and settled.
ii)
In the case of U.O.I. Vs. Delhi Nurses Union (Regd.) W.P. (C) 5146 / 2012
also, the Hon’ble High Court of Delhi vide its judgement dated 24.08.12 held
the same and granted the next higher Grade Pay of Rs. 6600/- after the time
scale to the employees. The order of the High Court was also upheld by the
Hon’ble Supreme Court by dismissing the Appeal of Union of India on 04.03.13 in
SLP(C) No. 010607/2013. Thus, the above Order dated 24.08.12 of the Hon’ble
High Court of Delhi also attained finality after the dismissal of SLP in the
Hon’ble Supreme Court.
iii)
In Subramanium case also, it has been established that 4 years
time-scale/NFG and ACP/MACP upgradation are altogether different. If time scale
was to be counted as one MACP upgradation, it would have been granted after 10
years of service instead of 4 years. By the finalization of the issue at the
level of the Apex Court, the time scale can never be treated as one MACP
upgradation.
iv)
In Balkrishnan case in Writ Petition No. 11535/2014 with
M.P. No. 1/2014 also, the offsetting of time scale with the MACP upgradation
was not allowed. The said judgment was finalized by the Hon’ble Apex Court in
Special Leave to Appeal (C) 15396
of 2015 by dismissing the SLP filed by the Govt. establishing the verdict as
law of land.
6.
No need to say that any finally settled verdict becomes the law of land
particularly being settled at the level of the Hon’ble Apex Court. Thus, the
government is supposed to issue the appropriate order as per the verdict given
in SLP No. 77457/2017 without forcing every employee to approach the legal
court as mentioned under very first para and also in view of the second para
above. If every employee is forced to go to the legal court on an already
decided issue, no need to say that it would not only be the wastage of the
precious time of the courts but it would also be wastage of the precious time
and money of the government and also inappropriate use of the manpower. If the
officers are not forced to go for unwarranted litigations, their hard earned money, energy
and time will be saved to be utilized in a positive manner for Nation building and it will also save the huge
litigation cost being incurred by the Govt. on such legal cases.
7. In view of the above, it is requested
that the due circular may kindly be issued not to offset the time scale/NFG with the
MACP upgradation.
Thanking you,
Yours sincerely,
(RAVI MALIK),
Secretary General.
