Dear friends,
Namaste.
ADVANCE NOTICE OF MOTION
(ARISING OUT OF FINAL ORDER DATED 27-02-2019
IN O. A. NO. 2855/2013 A. K. GAUTAM AND ORS. V. UOI AND ORS, PASSED BY CENTRAL
ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI)
W. P. (CIVIL) NO. _____________ OF 2019
IN THE MATTER OF:
SH. A. K. GAUTAM
AND ANR. PETITIONERS
VERSUS
THE CHAIRMAN,
CBEC AND OTHERS RESPONDENTS
CENTRAL GOVT. STANDING COUNSEL,
DELHI HIGH COURT,
NEW DELHI
Find herewith 3 sets of paper book in the above noted case. The
matter is likely to come up for admission/ notice on _______ or thereafter.
Take notice of above accordingly.
DATE:
DELHI
JASVINDER
KAUR
ADVOCATE
573, NEW
LAWYERS' CHAMBERS BLOCK
PATIALA
HOUSE, TILAK MARG, NEW DELHI
+91 9312836524
IN THE HIGH COURT OF DELHI AT NEW DELHI
(ARISING OUT OF FINAL ORDER DATED 27-02-2019
IN O. A. NO. 2855/2013 A. K. GAUTAM AND ORS. V. UOI AND ORS, PASSED BY CENTRAL
ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI)
W. P. (CIVIL) NO. _____________ OF 2019
IN THE MATTER OF:
SH. A. K. GAUTAM
AND ANR. PETITIONERS
VERSUS
THE CHAIRMAN,
CBEC AND OTHERS RESPONDENTS
URGENT APPLICATION
KINDLY
LIST THE ACCIMPANYING WRIT PETITION ON ___________, ON THE GROUNDS OF URGENCY
URGED IN THE PETITION.
DATE:
PLACE:
DELHI
JASVINDER
KAUR
ADVOCATE
573, NEW
LAWYERS' CHAMBERS BLOCK
PATIALA
HOUSE, TILAK MARG, NEW DELHI
+91 9312836524
IN THE HIGH COURT OF DELHI AT NEW DELHI
(ARISING OUT OF FINAL ORDER DATED 27-02-2019
IN O. A. NO. 2855/2013 A. K. GAUTAM AND ORS. V. THE CHAIRMAN AND ORS, PASSED BY
CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI)
W. P. (CIVIL) NO. _____________ OF 2019
MEMO OF
PARTIES
1.
SH.A.K. GAUTAM
S/O LAE SH. M.L. GAUTAM
R/O B 1014/1, SHASTRI NAGAR, DELHI -52
2.
ALL INDIA ASSOCIATION OF CENRTRAL EXCISE
GAZETTED EXECUTIVE OFFICERS
REGISTERED OFFICE AT G-54, CENTRAL RENENUE
BUILDING,
I.P. ESTATE, NEW DELHI, THROUGH ITS SECRETARY
GENERAL, MR. RAVI MALIK
PETITIONERS
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
DATE:
PLACE:
DELHI
THROUGH:
JASVINDER
KAUR
ADVOCATE
573, NEW
LAWYERS' CHAMBERS BLOCK
PATIALA
HOUSE, TILAK MARG, NEW DELHI
+91 9312836524
LIST OF DATES AND EVENTS
That Petitioner No. 1 is working as
Superintendent/retired as Asstt.
Commissioner under the Delhi Zone of Central Excise presently posted in
Customs Wing. The Petitioner is/was
a member of Petitioner 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 Petitioner No. 1 was
initially recruited as Inspector in the pay scale of equivalent to present
Grade Pay of Rs. 4600 in Pay Band -2.
30-9-97
The Petitioner 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 VI 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/- .
Since the Petitioner 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 Petitioner 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).
21-9-12
That the Petitioner 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 .
It may be mentioned that the Union of India
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 years’ 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.
The Petitioners 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.
15-5-13
The Petitioners 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 under the Chairman of CBEC for not withdrawing the
Grade Pay of Rs. 5400/- and making
recovery.
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 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.
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 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 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.
6-3-13
It is stated that the Petitioners 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, I.P. Estate, New Delhi-110009.
13-08-13 Petitioners filed O. A. No.
2855/2013 (A K Gautam and Another vs Chairman CBEC & Ors). The Respondents
filed their counter reply in the matter before Tribunal.
27-02-19 The ld. Tribunal without even
considering the cause of action and the relief sought for, disposed of the O.
A. vide an order which is contrary to the settled law position.
July 2019 Hence present writ petition.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (CIVIL) NO. _____________ OF 2019
IN THE MATTER OF:
ARTICLE 226 OF
THE CONSTITUTION OF INDIA
AND IN THE MATTER
OF:
FINAL
ORDER DATED 27-02-2019 IN O. A. NO. 2855/2013 (A. K. GAUTAM AND ANR. V. THE
CHAIRMAN. CBEC AND ORS, PASSED BY CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL
BENCH, NEW DELHI)
AND
IN THE MATTER OF:
1.
SH.A.K. GAUTAM
S/O LAE SH. M.L. GAUTAM
R/O B 1014/1, SHASTRI NAGAR, DELHI -52
2.
ALL INDIA ASSOCIATION OF CENRTRAL EXCISE
GAZETTED EXECUTIVE OFFICERS
REGISTERED OFFICE AT G-54, CENTRAL RENENUE
BUILDING,
I.P. ESTATE, NEW DELHI, THROUGH ITS SECRETARY
GENERAL, MR. RAVI MALIK
PETITIONERS
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
WRIT UNDER ARTICLE 226 OF CONSTITUTION OF
INDIA ON BEHALF OF PETITIONERS AGAINST FINAL ORDER DATED 27-02-2019 IN O. A.
NO. 2855/2013 (MR. A. K. GAUTAM AND
ANOTHER VS. THE CHAIRMAN AND OTHERS) PASSED BY LD. CENTRAL ADMINISTRATIVE
TRIBUNAL, PRINCIPAL BENCH, NEW DELHI.
TO
HON’BLE CHIEF JUSTICE OF DELHI HIGH COURT
AND HIS COMPANION JUSTICES
RESPECTFULLY SUBMIT AS UNDER:
1. The abovenamed Petitioners seek leave of this
Hon’ble court to invoke writ jurisdiction against the Order dated 27/02/2019 in
O. A. No. 2855/2013 (A. K. Gautam & Another vs. The Chairman, CBEC &
Others) passed by learned Central Administrative Tribunal, Principal Bench, New
Delhi. True copy of order dated 27.02.2019 is annexed at Annexure P-1.
2. That the Petitioner No. 1 was lastly posted as
__________, and superannuated on ________ and Petitioner No. 2 is a duly
registered and recognized association of Central Excise Gazetted Executive
Officers of Respondent No. 1.
3. That the Petitioners herein were aggrieved by
the arbitrary and legally untenable act of the Respondents whereby the
Petitioners and all other similarly placed persons in CBIC (earlier CBEC) have
been denied MACP benefit to GP 6600/- and
7600/-under PB-3 and illegal recoveries have effected against them.
4. That the hierarchy of
posts in CBIC from Inspector onwards along with the pay scale and corresponding
pay band along with Grade Pay is explained in a chart which is at Annexure P-2.
5. That the VI CPC revised
the pay scale of Superintendents (Customs & Excise) from
Rs. 7500-12000 to corresponding Pay Band & Grade Pay of 4800 in PB-2 and after 4 years in the Pay Scale of Rs. 8000-13500 with corresponding Pay Band & Grade Pay of Rs. 5400 in PB- 2 was allowed. The VI CPC also introduced a new scale of Rs 8000-275-13500(Group Entry Grade) with corresponding Grade Pay of Rs. 5400 in the PB-3. The next promotional post for the Superintendents is Assistant Commissioner for the Superintendents is Assistant Commissioner which carries the Grade Pay of Rs. 5400 in PB-3.
Rs. 7500-12000 to corresponding Pay Band & Grade Pay of 4800 in PB-2 and after 4 years in the Pay Scale of Rs. 8000-13500 with corresponding Pay Band & Grade Pay of Rs. 5400 in PB- 2 was allowed. The VI CPC also introduced a new scale of Rs 8000-275-13500(Group Entry Grade) with corresponding Grade Pay of Rs. 5400 in the PB-3. The next promotional post for the Superintendents is Assistant Commissioner for the Superintendents is Assistant Commissioner which carries the Grade Pay of Rs. 5400 in PB-3.
6. That since the Petitioner No. 1 was promoted
to the post of Superintendent on 30-09-97 in the pre-revised pay scale of Rs.
6500-10500 (revised to 7500-12000 w.e.f. 21-04-04) and completed 4 years of
service as Superintendent on 01-01-2006, he was allowed non-functional
selection grade (NFSG) in GP Rs. 5400 in PB-2. Petitioner No. 1 having
completed 24 years of service was given 2nd ACP in GP 5400/- in
PB-3. The Petitioner No. 1 completed 30 years of service on 21/09/2012 and in
pursuance of MACP Scheme his case was considered for grant of 3rd
MACP. Petitioner No. 1 was granted 3rd
MACP vide Order No. 53/2013 dated 6th
March 2013 to grade pay of 6600/- PB3.
7. However, vide the same Estt. Order
53/2013 dated 06-03-2013 Respondent
Board withdrew the Non Functional Upgradation to GP 5400 PB2 and directed the
concerned Controlling Officer to recover the benefits of Non Functional
Upgradation/ Scale, received under PB2+5400 w.e.f. 01-01-2006 or before receipt
of 2nd ACP under pre-revised scale of 8000-13500 (revised to PB3+5400)
subject to final decision awaited from the Ministry on treatment of Non
Functional Grade for the purpose of MACP Scheme.
8. That in these circumstances, the Petitioners
named herein above approached ld. Central Administrative Tribunal Principal
Bench at New Delhi vide O. A. No. 2855/2013 seeking following relief:
A. “Direct the Respondents to produce the Record
of the Scheme i.e. Resolution of Government of India, Ministry of Finance,
Department of Expenditure dated 29-8-08.
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
may deem fit and proper in the interest of justice.”
True
copy of the pleadings of O. A. No. 2855/2013 (A. K. Gautam & Another vs The
Chairman, CBEC & Others) is annexed herewith as Annexure P-3.
9. That by the time the above noted Original
application No. 2855/2013 came up for final arguments, a number of judgments
from various High Courts (including this Hon’ble High Court in W.P.(C) 9357/2016 Hari Ram
& Others versus Registrar, Delhi High Court & Others) had come that
settled the various issues that arose following retroactive implementation of
MACP inter-alia effect of grant of Non-
Functional Financial Upgradation on subsequent
financial Upgradation under MACP etc.
However, the ld. Tribunal without discussing
the merits and issues raised in the case, passed Order dated 27-02-2019. Hence
present writ petition.
10.
GROUNDS OF APPEAL
The Petitioners herein reiterate and reaffirm
the grounds urged in O. A. No. 2855/2013, the same are not repeated herein for
the sake of brevity.
ADDITIONAL GROUNDS OF APPEAL AGAINST THE ORDER
DATED 27-02-2019 in O. A. NO. 2855/2013.
i) The order dated 27-02-2013 is liable
to be quashed and set aside because the Hon’ble Supreme Court has affirmed the Division Bench judgment of the Madras High Court in UOI v. S. Balakrishnan
[W.P.(C) 11535/2014, decided on 16.10.2014]. The High Court
had then observed that:
"16. Since the MACP Scheme was framed in the
larger interest of employees, Court should give a liberal construction. The
primary attempt in such cases should be to achieve the purpose and object of
the policy and not to frustrate it.
17. The Grade Pay in this case was initially
granted on non-functional basis. The Grade Pay of Rs. 5400/- in PB-2 being
non-functional scale, the same cannot be a functional Grade to Assistant
Director-II, who got promotion from the post of Enforcement Officer."
Further, this Hon’ble Court in W.P.(C)
9357/2016 Hari Ram &
Others versus Registrar, Delhi High Court & Others, decided a similar issue
amongst other vide a detail judgment dated 20-12-2017.
This
Hon’ble Court observed that:
“18. In the
present case, it is noticed that the petitioners' counterparts were granted the
third financial upgradation, although they, like them were given the GP of
₹5400/-; they perform similar, if not identical functions. FC Jain (supra) is
an authority that if such broadly identical functions are involved, both
categories ought to be treated alike in regard to interpretation of pay norms,
by the organization. Therefore, the principle of parity would result in
acceptance of the petitioner's claim. The second aspect which this court would
emphasize is that unlike "stagnation" or performance based
increments, or placement in higher scales, the grant of ₹5400/- is
automatic, after the happening of a certain event, i.e. completion of four
years' service. This is quite different from promotion or placement in the
selection grade, which is performance dependent or based on the availability of
a few slots or vacancies (usually confined to a portion of the entire cadre:
say 20%). The last reason is that both V.K. Sharma (supra) and Suresh Chand
Garg (supra), in somewhat similar circumstances, accepted that the grant of a
higher grade pay did not preclude the grant of the third financial
upgradation.”
ii) Because, the learned Tribunal did not
dwelled into the law laid down with regard to the grant of NFU and distinction
between the NFU and ACP/ MACP, thus reaching to an erroneous conclusion.
iii) The guidelines to operate MACP Scheme to Central Govt. employees were
issued vide DOPT OM No.35034/3/2008-Estt.(D) Dt. 19.05.09 and made effective
from 01.09.08. Resolution relating to ‘Assured Career Progression Scheme’
(called MACPS) mandates that the grade
pay shall change at the time of financial upgradation (FU) under the Scheme and
that the grade pay given at the time of FU under MACPS will be immediate next
higher grade pay in the hierarchy of revised pay bands and grade pays being
recommended.
iv) The modalities to operate MACP
Scheme as recommended by the CPC, modified and accepted by GOI as mentioned
above were overruled and ignored by DOPT/DoE in as much as the OM dated
19.05.09 deletes the expression ‘the
grade pay shall change’, then agrees to grant MACP upgradation in the
immediate next higher grade pay and also inserts Para 8.1 which states that ‘grade pay of Rs. 5400/- in PB-2 and Rs.
5400/- in PB-3 (mentioned at S. No. 16 and 17 in the hierarchy of
revised pay bands and grade pays) shall
be treated as separate grade pays for the purpose of MACPS.
v) This Para 8.1 was wholly arbitrary and contrary to the Resolution in view
of the facts that there was no change in the grade pay from one grade pay (Rs.
5400/-) to another (Rs. 5400/-) as mandated in the Resolution.
vi) MACP upgradation has not been
granted in the next immediate higher grade pay and that Para 8.1 was inserted
in utter disregard to the CPC recommendations as well as the modifications and
acceptance by the Govt.
vii) Unwarranted Para 8.1 implies that though the GP of Rs. 5400/- in PB-2
and PB-3 when granted as MACP pgradation would be counted separately but if
granted as revised pay on non-functional basis (NFS) after 4 years of regular
service in the GP of Rs. 4800/- in PB-2, the same would not be hit by Para 8.1.
viii) DOPT vide FAQ No. 16 issued on 01.04.11
clarified that the Non-functional Scale granted in GP Rs. 5400/- in PB-3
(or PB-2) would be viewed as one financial upgradation under MACPS in terms of
Para 8.1 itself. Neither Para 8.1 nor clarification attributed to Para 8.1 was
tenable as the Resolution of GOI relating to MACPS did not mandate any such
condition or stipulation.
ix) Para 8.1 in the DOPT guidelines
Dt. 19.05.09 to operate MACPS and FAQ 16
in OM Dt. 01.04.11 reversed the basic mandate given for the implementation of
MACPS in the Resolution of GOI. This resulted in the denial/withdrawal of
financial upgradations to the stagnated Central Excise executive officers
recruited in GP of Rs. 4600/- restricting them to GP of Rs. 5400/- throughout
the career.
x) The offsetting of time
scale/NFG/NFS was neither recommended by the CPC nor it was mandated in the
Govt. Resolution Dt. 29.08.08 or MACP guidelines/instructions Dt. 19.05.09.
xi) 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.
xii) 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.
xiii) 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.
xiv) 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.
xv) In Balkrishnan case (Writ Petition No. 11535/2014 with M.P. No. 1/2014) in r/o of
treating single Grade Pay of Rs. 5400/- in PB2 and PB3 as separate Grade Pays
under para 8.1 of MACP Scheme. The Hon’ble Madras High Court in this case gave the verdict on 16.10.14 by upholding that the Grade Pay of Rs. 5400/- in PB-2
(Level-9) & PB-3 (Level-10) is one and the same thing as there is no
difference between the Grade Pay of Rs. 5400/- in PB2 and PB3. The Hon’ble High
Court was pleased to say specifically that the Grade Pay of Rs. 5400 in PB3 is
no way higher than the Grade Pay of Rs. 5400/- in PB2 and next higher grade pay
after Rs. 5400/- is Rs. 6600/-. 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. Thus, it is also
worth to submit that the next Grade Pay after Rs. 5400/- is Rs. 6600/-
(Level-11).
xvi) Because, the Hon’ble Supreme Court has observed
in a very recent case Girish Mittal vs Parvathi V. Sundaram, and others (TC Case
No. 95/2015) that any person aggrieved
with the violation of general directions issued in a judgment can file contempt
petition. In the present case, the Tribunal did not pay any heed to the
arguments tendered by the Petitioners nor did it consider the latest legal
position in the matter, thus compelling the Petitioners to approach this
Hon’ble Court.
xvii) Because, NFSG in PB-2 with GP 5400 after completion of 4
years of service was/is a benefit granted suo moto to all superintendents even
promoted from ministerial side irrespective of number of promotions they have
got. The ACP Scheme did not envisage constitution of any screening committee
for the grant of NFSG from GP of Rs. 4800/- to GP of Rs. 5400/-. Also,
there exists no grade pay of Rs. 5400
in PB-2 in CBEC promotional hierarchy of Inspectors/Superintendents. The actual
relevant grade pay in the promotional hierarchy for Inspectors/Superintendents
is Rs. 5400 in PB3 and not PB2.
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xviii) Because, the Hon’ble High Court of Madras
in WP No.13225/2010 in the case of Sh. M. Subramaniam has granted the benefit
to an Inspector of Customs & Central Excise who has completed regular
service of 4 years in the pay scale/grade pay of Superintendent on account of ACP
upgradation. Hence second MACP should have been given w.e.f. 01.01.2006 in
place of 30.09.2006. It is submitted that the
CBEC vide letter No. A-23011/05/2009-AdIIA dated 08.11.2013 ordered to
implement the aforesaid order of the Madras High Court for Shri M. Subramaniam
only instead of granting the benefit to all of similarly placed officers
thereby acting contrary to service jurisprudence. In fact, the same decision
has been rendered by the same Hon’ble High Court in W.P. No. 11535/14 and M.P. No. 1/14 on
16.10.14 undoing para 8.1 of MACPS. However, Respondents have refused to extend
the benefit of the said judgement to its officers on the issue despite the
aforesaid orders/judgements having attained finality. In fact, the SLP of the
UOI against order in W. P. No. 11535/14 has also been dismissed by the
Hon’ble Supreme Court.
xix) 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 gave the verdict,
“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.
xx) Because,
as per service jurisprudence, similarly situated persons should be treated
similarly and only because one person has approached the Court, it does not
mean that persons similarly situated should be treated differently especially
when the decision has been rendered in rem
and not in personem. Thus, the entire
class of the similarly situated employees is required to be given the benefit
of the decision whether or not they were parties to the original writ. This
principle has also been upheld by the Supreme Court in numerous judgments. 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 & Others has 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.”
11.
That the parties to the petition are working for gains in Delhi and
as such this Hon’ble Court has jurisdiction to adjudicate upon this petition.
12.
That Petitioners have not filed any
other appeal or SLP against the final order of the ld. Tribunal before any
other court or Supreme Court seeking similar relief.
PRAYER
In
view of the facts and circumstances mentioned above, the Petitioner prays for
the following among other reliefs.
1.
May allow the present writ petition with cost in favour of the
Petitioner;
2. May quash and set aside the
impugned Final Order dated 27-02-2019 in O. A. No. 2855/2013 passed by ld.
Central Administrative Tribunal, Principal Bench;
3. May
direct the Respondents to restore
the Non Functional Upgradation under Grade
Pay of Rs. 5400/- w.e.f. 01/01/2006 to all the Petitioner No. 1 in
particular and to the other members of Petitioner No. 2 Association upon
completing 4 years of regular service in PB2+4800/- without counting it against
MACP;
4.
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.
5.
Grant a grade pay of Rs. 6600/- as next MACP upgradation after time scale in
grade pay of Rs. 5400/- to the officers after joining as Central Excise/CGST
Inspector.
6.
Grant grade pay of Rs. 7600/- as next MACP upgradation after upgradation in the
grade pay of Rs. 6600/- to the officers after joining as Central Excise/CGST
Inspector.
7. May be pleased to pass such other order as this Hon’ble Court may
deem fit and proper in the interest of justice. “
Date:
Place:
PETITIONER
Through
JASVINDER KAUR
ADVOCATE
CHAMBER NO. 573, NEW LAWYERS CHAMBER BLOCK
PATIALA HOUSE, NEW DELHI
Contact
No.: +91 9312836524
IN THE HIGH COURT OF DELHI AT NEW
DELHI
W. P. (CIVIL) NO. _____________ OF 2019
IN THE MATTER OF:
SH. A. K. GAUTAM
AND ANR. PETITIONERS
VERSUS
THE CHAIRMAN,
CBEC AND OTHERS RESPONDENTS
AFFIDAVIT
I, A. K. GAUTAM, S/O LATE SH. M.L. GAUTAM, R/O
B 1014/1, SHASTRI NAGAR, DELHI -52, AGED ABOUT ______ YEARS, DO HEREBY SOLEMNLY
AFFIRM AND STATE THAT:
1. That
I am the Petitioner in the accompanying writ petition and as such fully
conversant with the facts and circumstances of the case and in a position to
depose this affidavit in the court of law;
2. That
the accompanying writ petition under Article 226 of Constitution against the
orders of Ld. Central Administrative Tribunal, PB, New Delhi, has been drafted
and filed under my instructions;
3. That
I have done whatsoever inquiry/investigation, which was in my power to do, to
collect all data/material which was available and which was relevant for the
court to entertain the present petition. I further confirm that I have not
concealed in the present petition any Data /material /information which may
have enabled this court to form an opinion whether to entertain the petition or
not and/or whether to grant any relief or not.
4. That the annexure appended to the
accompanying petition are true and correct copies of the original.
DEPONENT
VERIFICATION
Verified on this ________ at Delhi, that the
contents of the above affidavit are true and correct and that nothing material
has been concealed there from.
DEPONENT
