IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW
DELHI
O.A NO. ______ OF 2013
IN
THE MATTER OF :
1.
SH.A.K. GAUTAM
S/O
LAE SH. M.L. GAUTAM
R/O
2.ALL INDIA ASSOCIATION OF CENRTRAL EXCISE GAZETTED EXECUTIVE OFFICERS OFFICE AT G-54, CENTRAL RENENUE
BUILDING , I.P. ESTATE, NEW DELHI , THROUGH ITS SECRETARY GENERAL , RAVI MALIK,
S/O LATE SH. MAHABIR SINGH R/O 638, SECTOR -9, R.K. PURAM, NEW DELHI
WORKING AS SUPERINTENDENT OF CENTRAL
EXCISE AT DIVISION VIII OF CENTRAL
EXCISE COMMISSIONERATE, DELHI –II AT
SCOPE MINAR, LAXMI NAGAR DELHI
APPLICANT
VERSUS
1.
THE CHAIRMAN
CENTRAL BOARD OF EXCISE AND CUSTOMS,
NORHT BLOCK, NEW DELHI
2.
SECRETARY ,
DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI
3.
SECRETARY,
DEPARTMENT OF PERSONNEL AND TRAINING, NORTH BLOCK, NEW DELHI
4.
SECRETARY,
DEPARTMET OF EXPENDITURE, NORHT BLOCK, NEW
DELHI
5.
Pr. CHIEF CONTROLLER
OF ACCOUNTS, CENTRAL BOARD OF EXCISE AND
CUSTOMS, A.G.C.R. BUILDIG IST FLOOR , NEW DELHI
6.
CHIEF COMMISSIONER OF CENTRAL EXCISE DELHI ZONE, C.R. BUILDING,
I.P. ESTATE, NEW DELHI -110009
RESPONDENTS
APPLICATION
UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACTS
TO
THE
HON’BLE CHAIRMAN AND HIS LORDSHIPS
COMPANION
MEMBERS AT CENTRAL
ADMINISTRATIVE
TRIBUNAL DELHI
1.
DETAILS OF APPLICATION :
PARTICULARS OF ORDER AGAINST WHICH THIS APPLICATION IS MADE:
1. The
present O.A. is preferred against
the Estt.Order No. 53/2013 issued
under C.No. II-34-(09)/CCU/MACP/20112/22358-383 dated 6-3-13 of the
Office of the Chief Commissioner of Central Excise, Delhi Zone, C.R. Building,
I.P. Estate, New Delhi-110009 working under Govt. of India, Central Board of Excise & Customs, Ministry of Finance,
Department of Revenue vide which the applicants have been
granted Grade Pay of Rs. 6600/-
in PB3 under MACP scheme (3rd Up-gradation ) but at the same
time withdrawn the Grade Pay of Rs.
5400/-in PB2 granted on 1-1-06 corresponding
to revised pay scale recommended by the VIth CPC and recovery made from the
officers arbitrarily. A copy of the Estt.Order No. 53/2013 issued under C.No.
II-34-(09)/CCU/MACP/20112/22358-383 dated 6-3-13 is Annexure A-1
2. JURISDICTION OF THE TRIBUNAL :
The Applicants
declare that the subject matter against
which redressal is sought is within the
jurisdiction of the Tribunal because the
Respondent is within the jurisdiction of
this Tribunal.
3. LIMITATION :
The Applicant declare
that the Application is within the limitation prescribed under Section 21 of the Administrative
Tribunal Act.
4. FACTS OF THE CASE:
A. The fact and circumstances giving rise to the present Application
are mentioned in detail as under :
I.
That
the Applicant No. 1 is working as Superintendent under the Delhi Zone of Central Excise presently posted in Customs wing. The applicant is a member of Applicant
No. 2 Association whose members are posted a various places throughout India including
Delhi, Gurgaon, Faridabad Rohtak, Panchkula,
Jaipur, Shillong, Chennai, Kolkata, Mumbai etc. That the Applicant No. 1 was
initially recruited as Inspector in the
pay scale of equivalent to present Grade Pay of Rs. 4600 in Pay Band -2.
II.
The
Applicant No. 1 was promoted to the post
of Superintendent on 30-9-97 in
the Pre-revised Pay Scale of Rs.
6500-10500/- which was revised to Rs.
7500-12000/- w.e.f. 21-4-2004. The VIth CPC revised the pay scale of Superintendents from Rs. 7500
- 12000/- to Rs. 7500 - 12000/- with Corresponding Pay Band & Grade Pay of PB2+Rs. 4800/- and after 4 years to the pay
scale of Rs. 8000 – 13500 with Corresponding Pay Band
& Grade Pay of PB2+Rs. 5400/- . In other words Superintendents pay Scale
after completion of 4 years as Superintendent is Rs.5400 in PB-2.The VIth CPC
also introduced a new scale of Rs. 8000-275-13500 (Group A Entry) with
corresponding Grade Pay of Rs. 5400/- in
the PB3. The next promotional post for the Superintendents is Assistant
Commissioner which carries the Grade Pay of Rs. 5400/- in PB3.
III.
Since
the Applicant No. 1 had completed 4 years of service on 01-01-2006, his pay was
fixed in Grade Pay of Rs. 5400/- in PB-2.
The Applicant No.1 thereafter completed 24 years of service
on 21-9-06 and was placed in the Grade Pay of Rs. 5400/- in PB3 ( Grade
Pay & Pay Band for Assistant Commissioner ) in terms of Assured Career
Progression Scheme (ACP).
IV.
That
the Applicant No. 1 completed 30 years of service on 21-9-12 and was vide Estt.
Order N. 53/2013 dated 6-3-2013 granted Grade Pay of Rs. 6600 in PB3 in terms of Modified Assured
Career Progression Scheme (MACPS). Vide the above mentioned order the
Additional Commissioner Cadre Control
Unit, Office of the Chief Commissioner of Central Excise, Delhi Zone, C.R.
Building , I.P. Estate, New Delhi-110009 (Annexure -1) has also withdrawn Grade Pay of Rs. 5400/- in PB-2
with effect from 1-1-06 and ordered recovery of excess payment .
V.
It
may be mentioned that the Union of
India had introduced Assured Career Progression Scheme w.e.f.
9-8-1999 which envisaged two financial
up-gradations; the first up-gradation after completing 12 years of service and the second after completion of
24 year’s service. The financial up-gradation was by way of fixation of pay
prescribed for the promotional post in the hierarchy. The said scheme remained
in force till 31-8-08. From 1-9-08, the Union of India replaced the ACP Scheme
by Modified ACP Scheme as per DOPT OM dated 19-5-09 which envisaged
three financial up-gradations; the first after 10 years of service, the second after 20 years of service and the third after 30 years of
service. The scope of the scheme was clearly defined in the para 2 of Annexure
to OM dated 19-5-2009 as that the MACPS envisages merely placement in the immediate next higher
grade pay in the hierarchy of
recommended pay bands and grade pay as given in Section I, Part A of the first schedule of the CCS (Revised
Pay ) Rules, 2008.
VI.
The
Applicants were thus entitled to second
up-gradation in terms of ACP/MACP Scheme
in PB3+Rs. 6600/- and third financial up-gradation in PB3+7600/-. The
fixation of Grade Pay in PB2+Rs. 5400/- was
infact on the basis of revised pay scale and could not be offset /
withdrawn as a financial up-gradation
under MACP Scheme.
VII.
The
Applicants made representation Dated
15-5-13 and 17-6-13 to the Chief Commissioner, Central Excise Delhi Zone, C.R.
Building I.P.Estate, New Delhi -110009 as well
as the Member (P&V) , CBEC, North Block, New Delhi
VIII. A
member of Association received a letter C. No. II-34(7) Cadre/MACP/2011/11770 dated
2-9-11 of the Administrative Officer,
Cadre Control Unit, Office of the Commissioner of Central Excise, Delhi –I,
C.R. Building , I.P. Estate, New Delhi -110032. The contents of the letter are
as below:
“ In this context, it is
intimated that 2nd financial
up-gradation granted in the past under MACP scheme in the Scale of PB3+5400 to
the Superintendents (appointed as
Inspector), already benefited by
Non-Functional scale under PB2+5400, are under objection by Pay & Account
Office as Non-Functional Scale received by Superintendents is being considered as
a 2nd promotion at
their end for the purpose of MACP .
The matter, as to whether
the Non –functional Scale received by Superintendents is to be counted as
promotion under MACP or not has already been referred to the Board for the
clarification /direction and the same is being vigorously followed. The further
necessary onward appropriate actions shall be initiated only after receipt of the
clarification / direction from the Board.”
The copy of letter dated 2-9-11 is annexed and marked as Annexure –A-3.
9.
The
member of Association again made a detailed representation on 8-5-2012 to the Chief
Commissioner, Central Excise & Service Tax (Delhi Zone), C.R. Building ,
I.P. Estate, New Delhi and copy to the Chairman, CBEC, North Block, New Delhi. The
Copy of Representation dated 8-5-2012 is annexed and marked as Annexure –A-4.
10.
A
letter C. No. II-34(7) cadre/MACP/2011/3138 dated 30-5-2012 from the Additional
Commissioner, Cadre Control Unit, Office of the Commissioner of Central Excise, Delhi –I, C.R. Building ,
I.P. Estate, New Delhi-110002 was also received by the member of the
Association. The contents of the letter are as below:-
“ In the context, as
intimated earlier also vide this office letter of even number dated
2-9-2011 that 2nd financial up-gradation granted in the past under MACP scheme in the Scale of PB3+5400 to the Superintendents
(appointed as Inspector), already
benefited by Non-Functional Scale under
PB2+5400, are under objection by Pay
& Account Office, as Non-Functional
Scale received by Superintendents is
being considered as a 2nd promotion at their end for the
purpose of MACP.
The matter has been taken up with
the Board for the want of direction on the issue and the same is being vigorously
followed as well for speedy decision/reply, as this office has recently
addressed a Reminder –IV dated 10-5-2012 (enclosed) to the Board and onward
appropriate actions shall be initiated only after receipt of the clarification
/ direction from the Board “. The copy of
Letter dated 30-5-12 is annexed and marked as Annexure –A-5.
11.
The
Respondent No. 2 i.e. Union of India however vide its letters to other
formations under respondents No. 1 i.e. CBEC informed that the demand that NFG
i.e. PB2+Rs. 5400/- should not offset financial up-gradation under MACP Scheme
has not been agreed to by DOPT being against the MACP Scheme (Para 8.1 of the
Scheme). The Para 8.1 of the scheme provided
that consequent upon
implementation of Sixth CPC’s
recommendations, grade pay of 5400/-is now in two pay bands viz. PB -2 &
PB-3. The grade pay of Rs. 5400/- in PB-2 and 5400/- in PB-3 shall be treated
as separate grade pays for the purpose of grant of up-gradations under MACP
Scheme. It is submitted that there is not a difference of even single rupee
between the grade pays of Rs. 5400/- under PB2 and PB3 while the govt.
notification says that the next higher grade pay is to be granted on MACP
upgradation. It has been specified nowhere which is higher of both and Rs.
5400/- in PB3 is noway higher than Rs. 5400/- in PB2. The single grade pay has
only been divided into two categories in arbitrary manner. It appears that it is on the basis of this
para 8.1 the respondent No. 6 has withdrawn the revised pay scale.
12.
It
is worth mentioning that the Respondents issued Estt. Order No.
189/2010 granting financial up-gradation under ACP / MACP Scheme for
Officer of Group B, C and D. Though vide said order financial up-gradation was
similarly granted however there was no provisional recovery was envisaged. A
copy of Estt. Order No. 189/2010 is annexed and marked as Annexure A-6.
13.
It
is stated that the Applicants are being aggrieved of discrimination by seeking
arbitrary provisional recovery vide the Estt.Order No. 53/2013 issued under
C.No. II-34-(09)/CCU/MACP/20112/22358-383 dated 6-3-13 of the Office of the
Chief Commissioner of Central Excise, Delhi Zone, C.R. Building
5. GROUNDS FOR RELIEF WITH LEGAL PROVISIONS:
GROUNDS:
A. For that the fixation of pay in the Grade Pay
Rs. 5400/- in PB-2 can by no interpretation be termed as
financial up-gradation under MACPS/ACPS in as much as the same is not an upgradation
but is pay Scale
B. For that a revised pay scale for
Superintendents of Customs & Central Excise after 4 years of service was
required to be fixed in this revised pay scale of Rs. 8000 – 13500 (Grade Pay
Rs. 5400+ PB-2) only and cannot be termed as financial upgradation in lieu of functional
promotion.
Understood thus the Grade
Pay of Rs. 5400/- in PB-2 from 1-1-06 revised to the Applicant No.1 was not by
virtue of any promotion or ACPS or MACPS but on the basis of fact that the pay scale
for Superintendents of Central Excise with 4 years was such.
C. For that it is submitted that the
scheme of MACP was implemented only from 1-9-08 much after 1-1-06. The revised
pay Scale after 4 years of service was not any financial up-gradation is
further confirmed by the facts that no Departmental / Screening Committee was constituted
as envisaged under ACPS / MACPS and this fixation was without any reference to
fitness / Bench Mark as prescribed in para 17 of the Annexure-I to the MACP implementing
OM No. 35034/ 3/2008-Estt. (D) Dated 19-5-2009. Thus pay of all the Superintendents
with 4 years of service having been fixed in the revised pay scale of Rs. 8000 – 13500 (Corresponding GP Rs. 5400 + PB-2) as per the resolution of govt.
notified on 29.08.08, it can not be treated as Financial Up-gradation for the
purpose of MACP.
D. It is submitted that the
Ernakulam Bench of Ld. Tribunal in the case of Sh. N.K. Gopinatham Vs. Union of India granted G.P. of Rs. 7600/- to Assistant
who had been granted promotion in the pay scale of Rs. 6500-10500 followed by a non-functional scale
of Rs. 8000- 13500(notional from 1.1.96
and actual from 2003) and another promotion in the pay scale of Rs.
10000-15200. In this case, the Ld. Tribunal did not consider the non-functional
scale as a financial up-gradation.
E. It is submitted that
even if such fixation of pay in Grade Pay
of Rs. 5400 in PB-2 is considered as a
financial up-gradation, then also grant of 2nd /next ACP/MACP upgradation
in the Grade Pay of Rs. 5400 in PB-3 can not be treated as another financial up-gradation
being against the spirit of the MACP which envisages placement in the immediate
next higher Grade Pay in the hierarchy of recommended pay bands and Grade Pay
vide para 4 of Part-A to
the resolution No. 1/1/2008-IC Dt. 29.08.08 of the government. From Para 8
& 8.1, it will be seen that the above said scheme envisaged placement in
the higher grade pay that will be immediately next to the Grade pay of Rs. 5400/-. The stress for determination of a
benefit of financial up-gradation is on the next higher grade pay and not on
Pay Band. It may be mentioned that in Grade Pay of Rs. 5400/- in PB-2 & Grade
Pay of Rs. 5400/- in PB-3 only the pay band changes and not the Grade Pay which
remains Rs. 5400/- only. Next higher Grade Pay after it is Rs. 6600/- only.
F. It will not be out of place to mention that Pay
Band associated with any post indicates the
status in the hierarchy like Groups A, B
or C etc. In the case of Delhi Nurses Union (Regd.) Vs. U.O.I. where the UOI granted only one increment to
the Assistant Nursing Superintendents in
the same grade pay to offset third up-gradation under MACP, the Hon’ble High
Court of Delhi held that the MACP scheme requires hierarchy of grade pays to be adhered and
granted the next higher grade pay of Rs.
6600/-. The findings of the High Court were upheld by the Hon’ble Supreme Court
by dismissing the Appeal of Union of India.
G. It is also submitted
that the same scheme provides that all the promotions earned / up-gradations
granted under the ACP scheme in the past to those grades which now carry the
same grade pay due to merger of pay scales / up-gradations of posts recommended
by VIth CPC shall be ignored for the purpose of granting up-gradations under
MACPS. Thus under the same scheme if earlier up-gradations now carry same grade
pay, it shall be ignored and the employees will get three more up-gradations
under MACP then the same grade pay of Rs. 5400/- in two different pay bands can
not be treated as separate grade pays for the purpose of determining number of
up-gradations under the same scheme of MACP.
H. That from para-2 of DOP&T OM
No.35034/9/2010-Estt.(D) dt.10.02.2011 it is clear that MACP, like ACP, is also
provided where promotions are not taking place due to non availability of posts. “Para-2 the issue
of providing an option to organisations/cadres to have a choice for the
benefits under the earlier ACPS or the MACPS was also discussed in the meeting
of the joint Committee. While the issue would require further deliberations, it is reiterated that MACPS is a fall back
option in the event of promotions not taking place” (Annexure- ). It is reiterated that the non-functional
grade of Rs. 5400/- in PB2 after 4 years of service is not granted in lieu of
ACP/MACP upgradation or functional promotion but it is the pay scale for the
post of Superintendent while ACP/MACP upgradation is not the part of the
pay scale.
I.
That
offsetting of MACP upgradation with the non-functional time scale amounts to discrimination and violation of
Articales 14 and 16 of the Constitution of India , as the ACP upgradation was
never offset with the time scale.
J.
Time scale and MACP/ACP upgradation
are altogether two different things. There exist no statutory provisions
to offset MACP benefit by time scale as wrongly clarified by Respondents. The
time scale can noway be linked with the MACP or ACP upgradation.
K.
Time scale and MACP/ACP upgradation
also have different mechanisms. Different procedures are followed for each of
them to be implemented.
L.
Holding of DPC is necessary for
granting the MACP upgradation like in the case of functional promotion but it
is not required for the grant of time scale.
M. It was
also nowhere mentioned either in the above referred Notification of the Govt.
dt. 29.08.08 or MACPS notification dt. 19-5-09 that the benefit of MACP
upgradation would be offset by the time scale.
N.
Even in para 8.1, nothing has been
said like offsetting of MACP upgradation with the non functional grade/time
scale. This para has merely divided the single grade pay of Rs. 5400/- into two
categories in arbitrary, illegal and discriminatory manner.
O. Even otherwise the impugned action of
the Respondents depriving the Applicants from next MACP upgradation in the next
higher Grade Pay is violative of Article 14 and 16 being arbitrary, illegal and
discriminatory thus is liable to be quashed.
P. For that the orders of
provisional recovery in the impugned order is bad in law in as much as the
Respondents cannot recover any amount in anticipation or on the ground of
uncertainty.
Q. For that the
Respondents have discriminated the applicants and thus violated the scheme of
Art 14 and 16 of the Constitution of India.
R. For that even
otherwise the impugned action of the Respondents is bad both on law and facts.
6. DETAILS
OF REMEDIES EXHAUSTED :
That there is no remedy, which
the applicant can avail, the applicant is likely to suffer irreparable harm and
injury if urgent interim orders are not passed in the matter.
7. MATTERS PREVIOUSLY WITH ANY OTHER COURT:
The Applicant has not filed any other Petition
in any Tribunal or in the High Court or in the Supreme Court challenging the
same action of the Respondents and the impugned order of penalty.
8. RELIEF SOUGHT:
The Applicant therefore prays
that this Hon’ble Court
A. Direct the Respondents to produce the
Record of the Scheme i.e. Resolution of Government of India
B. Quash the objection of Pay &
Accounts Office mentioned in the letter
dated 2-9-2011 & 30-5-2012 of Administrative Officer & Additional
Commissioner, Cadre Control Unit, Office of the
Commissioner of Central Excise,
Delhi-I, C.R. Building , I.P. Estate , New Delhi -110002 respectively and para
-8.1 of the Annexure-I to the DOP&T OM dated 19-5-09 issued under No.
35034/3/2008-Estt.(D).
C. Issue Directions to the Respondents
to quash the offsetting of MACP up-gradation
with the time scale and declare para 8.1 as against the scope of MACPS and also
grant a grade pay of Rs. 6600/- & Rs. 7600/- respectively on IInd &
IIIrd MACP upgradation to the Central Excise Superintendents after completion
of 20 & 30 years of service after joining as Inspector, if not got IInd
& IIIrd promotion.
D. To stay any permanent/provisional recovery in
relation of offsetting of MACP upgradation with the Non functional grade/time
scale vide any order throughout India including the Estt. Order No. 53/2013
dated 6-3-13 issued by the Additional Commissioner, Cadre Control Unit, Office
of the Chief Commissioner of Central Excise, Delhi Zone, C.R. Building, I.P.
Estate, New Delhi-110009.
E. Pass such other order as this Hon’ble Court
9. GROUNDS FOR INTERIM
RELIEF:
10. INTERIM ORDR IF ANY
PRAYED FOR PENDING DECISION OF THE TRIBUNAL :
i.
Grant
ex-parte stay against any permanent / provisional recovery in relation of
offsetting of MACP up-gradation with the time scale vide any order throughout India
ii.
Grant
ex-parte stay on the objection of Pay & Accounts Office mentioned in the
letter dated 02.09.2011 & 30.05.2012 of Administrative Officer &
Additional Commissioner, Cadre Control Unit, Office of the Commissioner of
Central Excise, Delhi-I, C. R. Building, I. P. Estate, New Delhi-110002
iii.
Pass
any such other order of orders, as may be deemed fit and proper.
11. In the event of
application being sent by registered post.
Not applicable.
Particulars of the Postal
Order filed in respect of the application fee.
Postal Order No. :
Value of the Postal
Order:
Date of Issue:
Payable at:
Issue by Post Office:
12. List of Enclosures:
As per Index.
APPLICANT
VERIFICATION:
I, Ravi Malik, presently at New Delhi do hereby verify
on this day of July 2013 at Delhi that the contents of the above OA are true and correct to best of my
knowledge.
APPLICANT
DATE:
FILED BY
YATENDRA SHARMA
660, AGGARWAL
CHAMBER III,
VIKAS MARG,
SHAKARPUR,
DELHI-92.
