IT HAS BEEN DECIDED TO FILE A CAT CASE FOR NOT TO CONSIDER GRANTING TIME SCALE SHALL UP SET ONE UP GRADATION UNDER MACP.ACCORDINGLY THE DRAFT OF OA IS PRODUCD BELOW FOR YOUR PERUSAL. ALL ARE REQUESTED TO SEND THEIR VIEWS DIRECTLY TO SG AIACEGEO.
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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A NO. _________ OF 2013
IN THE MATTER OF :
1.
2. ALL INDIA
GAZETTED EXECUTIVE OFFICERS, DELHI,
OFFICE AT G 54, CENTRAL REVENUE BUILDING, I. P.
ESTATE, NEW DELHI
THROUGH ITS PRESIDENT, C. S. SHARMA S/O LATE SH. R/O 9/768, LODHI COLONY, NEW DELHI WORKING AS SUPERINTENDENT OF CENTRAL
EXCISE AT LAW BRANCH, HEADQUARTERS OFFICE OF CENTRAL EXCISE COMMISSIONERATE, DELHI-II AT C. R. BUILDING, I. P. ESTATE, NEW DELHI
3. ALL INDIA
GAZETTED EXECUTIVE OFFICERS,OFFICE AT G 54, CENTRAL REVENUE 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.
APPLICANTS
VERSUS
1. THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH 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, DEPARTMENT OF EXPENDITURE, NORTH BLOCK, NEW DELHI
5. Pr. CHIEF CONTROLLER OF ACCOUNTS,CENTRAL BOARD OF EXCISE AND USTOMS, A.G.C.R.BUILDING(Ist FLOOR)NEW DELHI-110009
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 Order No. 53/2013 issued vide C.No. II-34-(09)/CCU/MACP/2012/22358-383 dated 06-03-13 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 MACP upgradation has been offset with the time scale and recovery made from the officers arbitrarily.
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 Applicants declare that the Application is within the limitation proscribed under Section 21 of the Administration Tribunal Act.
4. FACTS OF THE CASE:
A. The fact and circumstances giving rise to the present Application are mentioned in detail as under :
1. That the applicant No.1 is working as Superintendent under the Delhi Zone of Central Excise presentlyposted in Customs wing. The Applicant is member of Applicant No.2 & 3 Associations whose members are posted a various places throughout India including Delhi, Gurgaon, Faridabad, Rohtak, Panchkula etc. That the Applicant No.1 was initially recruited as Inspector in the pay scale of Rs. 425-800 (equivalent to present Grade Pay of Rs 4600 in Pay Band 2).
2. The Applicant No. 1 was promoted to the post of Superintendent . The applicant has served the department under the jurisdictional area of Central Excise Delhi Zone at different locations.
3. The Applicant No.1, presently as Superintendent, is under a grade pay of Rs 6600 in PB3 after getting after getting IIIrd MACP upgradation. He got time scale on 01.01.06 after completion of 4 years of regular service as Superintendent in the pay scale of Rs. 6500-10500/- . (notional). The pay scale of Rs. 6500-10500/- was revised to Rs. 7500-12000/- w.e.f. 21-4-04. He got IInd ACP upgradation on 21.09.06 with a grade pay of Rs, 5400/- in PB3.
4. It is stated that the Estt. Order No. No. 53/2013 dated 06-03-13 has been 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 (Annexur-I) 129 officers working in the grade of Superintendent.
5. The Applicants made representations Dt. 15.05.13 and 17.06.13 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 under the Chairman of CBEC for not making recovery and also not offsetting the MACP upgradation with the time scale. Copies of the representations are annexed as Annexure-
6. A member of Association received a letter Cno.II-34(7) Cadre/MACP/2011/11770 dt. 2.9.2011 of the Admistrative Officer, Cadre Control Unit, Office of the Commissioner of Central Excise, Delhi
“ In this context, it is intimated that 2nd financial upgradation granted in the past under MACP scheme in the Scale of PB3+5400 to the Superintendents (appointed as Inspector), already benefited by Non Fuctional 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 Annexur-A-3.
7. The member of Association again made a detailed representation on 08.05.2012 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 is Annexur-4.
8. 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. The contents of the letter are as bellow:-
“In this context, as intimated earlier also vide this office letter of even number dated 02.09.2011 that 2nd financial upgradation 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 10.05.2012(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 Annexur-5.
9. The objection made/raised by the Pay & Account Office as mentioned/stated by the Adminstrative Officer/Additional Commissioner, Cadre Control Unit, Office of the Commissioner of Central Excise, Delhi-I, C.R.Building, I.P.Estate,New Delhi-110002 in their letters is illegal, arbitrary and discriminatory due to the following reasons:-
(a) That the next promotion of Superintendent ‘Group-B’ is Assistant Commissioner Group-A and its scale is Rs.15600-39100, + Grade Pay of Rs. 5400/- in PB3 (Corresponding Scale of Rs.8000-275-13500) and not Rs.9300-34800,PB2+5400.
(b) That as per para-17of Annexure-I of DOP&T OM on MACP vide No.35034/3/2008-Estt.(D) dated 19.05.2009, for financial upgradation under the MACPs, the benchmark of ‘good’ would be applicable till the grade pay of Rs.6600/ in PB-3 and the benchmark will be ‘Very good’ for financial upgradation to the grade pay of Rs.7600 and above. Similarly ‘good’ benchmark is required for promotion from Superintendent ‘group-B’ to the grade of Assistant Commissioner but there is no requirement of any benchmark for Time Scale with a Grade Pay of 5400 in PB-2 granted to the Superintendent ‘Group-B’ after four years of regular service in the grade pay of Rs.4800 in PB-2 as such the Time Scale is not a promotion and the objection of the Pay & Accounts Office is totally illegal and arbitrary.
(c) That from para-3 of DOP&T OM No. 35034/3/2008-Estt.(D) dt.01.11.2010 also, it is clear that the benchmarks prescribed for MACP in para 17 of annexure-I of DOP&T OM dt.19.05.2009 are same as required for the promotion. “Para-3 the issue has been examined and it is clarified that where the financial upgradation under MACPS also happen to be in the promotional grade and benchmark for promotion is lower than the benchmark for granting the benefits under MACPS as mentioned in para 17 ibid, the benchmark for promotion shall apply to MACP also” (Annexur- ).
(d) 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- ).
(e) That offsetting of MACP upgradation with the time 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 and the officers due for ACP upgradation after the grant of time scale were given all the due benefits.
(f) That in the old ACP scheme , where two upgradations on 12 and 24 years service had been granted, the instances are that members of applicant Association got 2nd ACP on completing 24years service in the scale of Rs.15600-39100 with Grade Pay of Rs. 5400/- in PB3 (corresponding to the pre-existing scale of Rs.8000-275-13500) and then a Grade Pay of Rs. 6600/- under IIIrd MACP upgradation after 30 years of service. If the objection of Pay& Accounts Office/ Administrative Officer central Excise, Delhi-I, Cadre Control Unit has been accepted and the time scale with Grade Pay of Rs. 5400/- in PB2 given after 4 years of service in the grade of Superintendent (scale of Rs.7500-12000) is being considered as a second promotion, the members of applicant Associations would get pay scale of Rs.15600-39100 with Grade Pay of Rs. 5400/- in PB3 (corresponding to the scale of Rs.8000-275-13500) on completion of 30 years service instead of 24 years service which is illegal, arbitrary and discriminatory and against the objectives of MACP scheme.
(g) That non granting 2nd ACP/MACP upgradation to the members of applicant Associations in the scale of Rs.15600-39100 with Grade Pay of Rs. 5400/- in PB3 (corresponding to the scale of Rs.8000-275-13500) which has been granted to other Superintendents will be discriminatory and would be violation of Article 14 and 16 of the Constitution of India when 2nd ACP/MACP upgradation is being denied by stating that the said benefit granted till 31.08.2008 under ACP (where two upgradations one on 12 years and 2nd on 24 years service had been granted) and not be granted to the Superintendents who will be eligible as on 01.09.2008 or thereafter under MACPS (where three upgradations on 10,20 and 30 years service are to be granted).
(h) If the above observation of Pay & Accounts Office/ Department is accepted then a direct Recruited Inspector will get 1st MACP upgradation on 10 years of service in the scale of Rs.9300-34800 with a Grade Pay of 4800/- in PB2, 2nd MACP upgradation on 20 years of service in the scale of Rs.9300-34800 with a Grade Pay of 5400/- in PB2 and 3rd MACP upgradation on 30 years of service in the scale of Rs.15600-39100 with a Grade Pay of 5400/- in PB3. While on the other hand, a Direct Recruited Inspector who completes 24 years of service till 31.08.2008 will get 2nd ACP upgradation in the scale of Rs.15600-39100 with a Grade Pay of 5400/- in PB3 and 3rd MACP upgradation on 30 years of service in the scale of Rs.15600-39100 with a Grade Pay of 6600/- in PB3 which is again arbitrary and discriminatory.
5. GROUNDS FOR RELIEF WITH LEGAL PROVISIONS :
GROUNDS :
a. For that the Respondent authorities are granting Non-Functional scale after 4 years of service in the scale of Rs.9300-34800 with a Grade Pay of 5400/- in PB2 as well as 2nd ACP upgradation in the scale of Rs.15600-39100 with a Grade Pay of 5400/- in PB3 ( Corresponding pre-existing scale of Rs. 8000-13500) till 31.08.2008 to the Superintendents (appointed as Inspector). However in the applicant case, the time scale grated to each Superintendent after 4 years of service in the scale of Rs.9300-34800 with a Grade Pay of 5400/- in PB2 is being considered as 2nd promotion and the officers/members of applicant Association are not being granted the next MACP upgradation which is violative of Article 14 of the Constitution of India.
b. For that 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 is arbitrary in as much as this is based on bad logic particularly the scale of Rs.9300-34800 with PB2+5400 is not a scale of the post of Assistant Commissioner Group-A which is the promotional post for the Superintendent/applicant.
c. Prara-8.1 of Annexure-I of DOP&T Clarification letter dt. 19.05.2009 issued under No 35034/3/2008-Estt(D) is contrary to the para-17 of the said letter itself. Para-8.1 is also contrary to para-2 of DOP&T OM No.35034/9/2010-Estt.(D) dt.10.02.2011 and para-3 of DOP&T OM No. 35034/3/2008-Estt.(D) dt.01.11.2010. From the para-17, para-2 and para-3 of the said OMs it is clear that the benefit of the MACP, like ACP, will be given to the officers having the bench mark required for promotion i.e. good, very good etc. As such it is abundantly clear that the benefit of the MACP is also granted in lieu of the functional promotion where the promotion opportunities are not available.
d. 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 DOPT to PAO office. The time scale can noway be linked with the MACP or ACP upgradation.
f. Time scale and MACP/ACP upgradation also have different mechanism. Different procedure is followed for each of them to be implemented.
g. 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.
h. It was also nowhere mentioned either in the above referred Notification of the Govt. dt. 29.08.08 or MACPS notification dt. that the benefit of MACP upgradation would be offset by the time scale.
i. The officers can't be given different grade pays after performing same nature of duties for the same length of service. It is violation of the doctrine of 'equal pay for equal work' and Articles 14 & 16 of Constitution.
j. In terms of the OM issued by the DOPT vide their letter No. 35034/3/2008-Estt. (D) dated 09.09.2010, it has been clarified against point No. 3 that IIIrd financial upgradation under MACPS would be due in the immediate next higher grade pay in the hierarchy of recommended revised pay band and grade pay of Rs. 7600/- to the officers so entitled. As per the clarification ‘B’ given under ‘point of doubt’ at serial no. 3, of the said O.M., an officer joining the Department in the pre-revised scale of pay of Rs. 5,500-9,000/- in 1982 is eligible to get his Ist financial upgradation under ACP Scheme in 1999 and the scale of pay eligible would be Rs. 6,500-10,500/-. The officer would, as per the illustration, be eligible to IInd financial upgradation in 2006 in the scale of pay of Rs. 10,000-15,200/- (as per the existing hierarchy) and so his grade pay in the revised pay would be Rs. 6,600/-. The O.M. clarifies that he would be eligible to get grade pay of Rs. 7,600/- on IIIrd financial upgradation under MACPS. The case of Central Excise executive officers is similar to the illustration given in DOP&T’s O.M. ibid above and is equally applicable to them. The pay scale of Inspectors of Central Excise was later revised to Rs. 6,500-10,500/- from Rs. 5,500-9,000/-. Therefore, the Central Excise Executive Officers should also be allowed IIIrd financial upgradation under the MACPS in the grade pay of Rs. 7,600/- w.e.f. 01.09.08. Needless to submit that the treatment of financial equality should be given to the officers belonging to analogous posts.
k. The time scale is the part of the pay scale of the concerned officer (notification dt 29.08.08) while ACP/MACP upgradation is not the part of the pay scale.
l. Even otherwise the impugned action of the Respondents depriving the Applicants from 2nd ACP/MACP in the scale of PB-3+5400 is violative of Article 14 and 16 being arbitrary and discriminatory thus is liable to be quashed.
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 field 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, Ministry of Finance, Department of Expenditure dt. 29.08.2008
B. Quash 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 respectively and para-9 of DOP&T letter dt. 19.05.2009 issued under No 35034/3/2008-Estt.(D) Order dated 16/26-5-11.
C. Issue Directions to the respondents to quash the offsetting of MACP upgradation with the time scale.
D. To stay any permanent/provisional recovery in relation of offsetting of MACP upgradation with the time scale vide any order throughout India including the Estt. Order No. No. 53/2013 dated 06-03-13 has been 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 may deem fit and proper in the interest of justice.
9. GROUNDS FOR INTERIM RELIEF:
10. INTERIM ORDER IF ANY PRAYED FOR PENDING DECISION OF THE TRIBUNAL:
i.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.
ii. Grant ex-parte stay against any permanent/provisional recovery in relation of offsetting of MACP upgradation with the time scale vide any order throughout India including the Estt. Order No. No. 53/2013 dated 06-03-13 has been 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.
iii. Pass any such other order or 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 January 2013 at Delhi
APPLICANT
DATE: FILED BY
YATENDRA SHARMA
660 , AGGARWAL CHAMBER III,
VIKAS MARG SHAKARPUR ,
