Dear friends,
As you know, the
Association went to the CAT seeking a GP of 6600/- after time scale in GP of
5400/- and next upgradation in GP of 7600/- after 6600/-. The CAT was pleased
to allow the OA of the Association but without giving any relief limiting the
issue to the recovery of the individual applicant. As a result, Association
went to the High Court but High Court said that the matter pertains to the
individuals instead of the Association. Finally, we went to the Supreme Court
but they didn't interfere with the impugned order and gave liberty to the
individual applicants to go to the CAT as per the judgement placed above. We
went to the Supreme Court raising the following questions of law-
(i) Whether the MACP
Scheme effective w.e.f. 01.09.2008 is unjustified as the officers would get
grade pay of Rs. 5400/- now in 30 years and even later under MACPS while they were able to get it within 24
years under ACPS?
(ii) Whether offsetting of MACP upgradation with
the non-functional time scale amounts to discrimination and violation of
Articles 14 and 16 of the Constitution of India, as the ACP upgradation was
never offset with the time scale or even otherwise?
(iii) Whether the Grade Pay of Rs. 5400/- in PB2
and PB3 without difference of even a single rupee is one and the same?
(iv) Whether the Association representing thousands of
officers throughout India is a legal person? Whether Association being a group
of individuals having common interest can file a writ in the Hon’ble Court?
Whether thousands of officers having common interest should file writs in the
Hon’ble Court for the same cause?
Now, no need to say that the said judgement of the Supreme Court doesn't
seem good in justice for us. It is implied from the judgement that all of
thousands of officers should approach the courts. So, as per the legal advice
also, we all have to file the petitions in the various CATs challenging the
MACPS on the following lines alongwith others as it involves two issues, one is para 8.1 and
another is offsetting of time scale with the MACP upgradation-
In Para 4 of Part–A of
the Resolution relating to ‘Assured Career Progression Scheme’ (called MACPS),
the recommendation of the 6th Pay Commission and decision of the
Govt. thereon have been communicated.
In Para 1 of Part–A (Annexure-I)
of the Resolution, the recommendation of 6th CPC on the pay
structures of the civilian employees and Government decision thereon have been
communicated, which were notified under CCS (Revised Pay) Rules, 2008 on
29.08.08 (effective from 01.01.06). According to the statement, same grade pays
are found on multiple times in the hierarchy of pay bands and grade pays.
Clause(x)(a)/(b)/(e) of Para 1 of
the Resolution as modified and accepted by GOI provides that group B officers of Department of Revenue
(CBIC etc.) will be granted grade pay of Rs. 5400/- in PB-2 (S. No. 16 in the
hierarchy) on non-functional basis after 4 years of regular service in the
grade pay of Rs. 4800/- in PB-2, whereas their counter parts in CSS, CSSS,
DANICS/DANIPS etc. will be given same grade pay of Rs. 5400/- in PB-3 (S.No.17
in the hierarchy) after 4 years of regular service in GP of Rs. 4800/-. The
same was notified under CCS (Revised Pay) Rules, 2008 on 29.08.08.
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. However, the
modalities to operate MACP Scheme as recommended by the CPC, modified and
accepted by GOI as mentioned above were 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.
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. Secondly, grade
pay of Rs. 4200/- occurs at S. No. 10 to 13 (4 times in the hierarchy of PB
& GP), Rs. 5400/- at S. No. 16 to 19 (4 times in the hierarchy of PB &
GP), Rs. 6600/- at S. No. 20 to 22 (3 times in the hierarchy of PB & GP),
Rs. 7600/- at S. No. 23 to 25 (3 times in hierarchy of PB & GP) etc.
without any change or increase. This demonstrates that MACPS did not envisage
financial upgradation in the next immediate grade pay in the hierarchy of PB
and GP but 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.
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. However, 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.
Therefore, 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.
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. As stated above, their counterparts in CSS/CSSS/DANICS/DANIPS etc.
were given NFS in GP of Rs. 5400/- in PB-3 mentioned at S. No. 17 and then MACP
upgradation in the immediate next higher GP of Rs. 6600 at S. No.20 (not
S.No.18) as Para 8.1 was not applicable
to them. They are further entitled to adequate promotional avenues to reach GP
of Rs. 8700/- easily. But those stagnated ones are not allowed immediate next
higher grade pay of Rs. 6600/- after time scale/NFS/NFG of Rs. 5400/- by virtue
of unlawful and arbitrary insertion of Para 8.1 in the MACP guidelines and
clarification FAQ No. 16. It is reiterated that 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.
Further, 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.
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.
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.
Again, the verdict given 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).
The letter F. No. A-23011/25/2015-AD.IIA Dt. 20.06.16 on Offsetting of time scale with MACP upgradation and FAQ No. 16 has already been quashed by the Jabalpur CAT in the order given in r/o OA No. 00773/2016, 849/2016, 872/2016, 961/2016, 1007/2016 and 111/2017.
The verdict given by the Hon’ble High Court of Chandigarh in CWP No.
19387/2011 confirming the order Dt. 31.05.11 of Chandigarh CAT for grant
of MACP upgradation in the promotional hierarchy. The Hon’ble Supreme Court of
India has also dismissed the SLP
No. 7467/2013 filed by the Government against the above judgement settling
the issue as the law of land.The Grade Pay of Rs. 5400/- in PB2 (Level-9) being
a new pay slab and not being existed in the promotional hierarchy, the para 8.1
of the MACP instructions is also automatically amounts to be scrapped based on
the said verdict of the Apex Court.
In view of the above, it is prayed to allow legitimate financial upgradations under MACPS in the next
higher grade pay as mandated in the Resolution without making any
recovery or withdrawal of MACP upgradation.
It is prayed-
i)
to quash para 8.1 from the MACP guidelines Dt. 19.05.09 and FAQ No. 16 Dt.
01.04.11.
ii)
to merge the Level-9 with Level-10 of pay matrix.
iii) to grant MACP upgradation to the
Grade Pay of Rs. 6600/- (Level-11) after the Grade Pay of Rs. 5400/ (whether in
PB2 or PB3) granted as time scale/NFG/NFS and GP of 7600/- as next upgradation after 6600/-.
iv) to quash the offsetting of the time scale/NFG/NFS with the
MACP upgradation.
