IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
O.A NO. ______ OF 2020
IN THE MATTER OF:
...APPLICANT
VERSUS
1.
Union
of India, through Secretary, Department Of Revenue, North Block, New Delhi
2.
The
Chairman,
Central Board of Indirect tax and Customs,
North Block, New Delhi
3.
The
Secretary,
Department of Personnel and Training,
North Block, New Delhi.
4.
The
Secretary,
Department of Expenditure,
North Block, New Delhi.
5.
The
Chief Commissioner of CGST/Central Excise & Customs, Meerut
Zone, Mangal Pandey Nagar,
Meerut
6. The Commissioner of CGST/Central Excise & Customs, Ghaziabad Commissionerate,
CGO Complex II, Kamla Nehru Nagar,
Ghaziabad …Respondents
ORIGINAL APPLICATION UNDER SECTION 19 OF THE
ADMINISTRATIVE TRIBUNAL ACTS, 1985
MOST RESPECTFULLY SHOWETH:
PARTICULARS OF ORDER AGAINST WHICH THIS APPLICATION
IS MADE:
(i)
The Order issued vide F.No.: II(24)65
/MACP/GOS/GZB/2018-19/1228 dated 23/25.06.20 o/o the Commissioner, Central
Goods and Service Tax, Ghaziabad denying the Grade Pay of Rs. 6600/- and 7600/-
as IInd and IIIrd MACP upgradation respectively.
(ii)
Office Memorandum issued vide Coord/Expdr/MACP
clarification/2020-21/429 dated 28.08.20 o/o the Principal Chief Controller of
Accounts, Central Board of Excise & Customs, AGCR Building, New Delhi
saying that the grant of Non-Functional Grade Pay of Rs. 5400/- in PB2 will be
counted as one financial upgradation for the purpose of MACP Scheme and to
follow the direction issued by the OM dated 20.06.20, O/o Central Board of
Excise and Customs (now Central Board of Indirect Tax and Customs), New Delhi
said to be issued in consultation of DOPT;
(iii) Pay Fixation Order dated 16.04.19 issued vide C.No. II(24)56/Pay
fix/Gp-A/2017/1741 dated 22.04.19 o/o the Commissioner, CGST, Ghaziabad
mentioning at S. No. 12 that the IInd MACP due on completion of 20 years of
service has been offset with the non functional upgradation (Time Scale)
granted;
(iv) Para 8.1 to the Annexure-I of the DOPT OM issued vide No.35034/3/2008-Estt.
(D) dated 19.05.09 saying that same grade pay of Rs. 5400 in PB-2 and Rs. 5400 in PB-3 shall
be treated as separate grade pays.
(v)
DOPT I.D. Note No. 1135911/2016/CR dated 02.05.16
saying that the grant of non-functional grade pay of Rs. 5400/- in PB2 needs to
be counted as one financial upgradation for the purpose of MACP scheme.
(vi)
FAQ No. 16 of DOPT on MACPS non-functional
scale would be viewed one financial upgradation for the purpose of MACPS in
terms of para 8.1 of Annexure-I of MACPS dated 19.05.09.
(vii)
Modified ACP Scheme issued vide DOPT OM issued vide No.35034/3/2008-Estt.
(D) dated 19.05.09 as it has been de-modified instead of being modified.
Anything is always modified for betterment but Modified ACP Scheme issued by
the Central Government has no betterment provisions. Rather the ACP Scheme has
been made worse by the so-called modification. It was impressed to the
applicants and other similarly placed officers alongwith all Group B officers
of Central Board of Indirect Tax and Customs (CBIC) that they would get better
prospects under the so-called Modified ACP Scheme but very shockingly, absolutely
adverse happened. They were impressed that they would get three upgradations
alongwith one additional four years NFS (non-functional scale)/time scale
within 30 years (as also being availed by the state government employees like
Uttar Pradesh within 26 years under the said scheme, the basic source of both
(MACP Schemes for Central govt. and state govt.) being the same, i.e., VIth central
pay commission) under this Modified ACP Scheme as compared to two in earlier
original ACP Scheme within 24 years. Unfortunately, the applicant and similarly
placed officers are still getting merely two upgradations (instead of four as
impressed, i.e. three MACP upgradations and one time scale/non-functional scale)
under the Modified ACP Scheme within 30 years which they were getting within 24
years under the earlier original ACP Scheme. This happened due to the offset of
time scale with one MACP upgradation and treating of single Grade Pay of Rs.
5400/- as two, i.e., Rs. 5400/- in PB2 and Rs. 5400/- in PB3 without a difference
of even single paisa. By this, time scale/non-functional scale has been counted
as one MACP upgradation and single Grade pay of Rs. 5400/- has been counted as
two Grade Pays, i.e., two upgradations with single grade pay in befooling
manner. Thus, the Modified ACP Scheme has been proved to be de-modified and
worse for the applicant and similarly placed officers in comparison to the
earlier original ACP Scheme as they are getting now after 30 years what they
were getting after 24 years, i.e., Grade Pay of Rs. 5400/- or equivalent after
getting entry into government job in the Grade Pay of Rs. 4600/- or equivalent
as Inspector. Thus, the so called Modified ACP Scheme proved totally
illusionary for the applicants and similarly situated officers. All applicants
and similarly situated officers are aggrieved of counting of non-functional
scale/time scale as one MACP upgradation and treating of single Grade Pay of
Rs. 5400/- as two for the MACP upgradation. Upgradations under Modified ACP
Scheme are also being granted in the hierarchy of grade pays instead of
promotional hierarchy.
2.
JURISDICTION OF THE TRIBUNAL:
The Applicant declares that the
present case is within the jurisdiction of this Hon’ble Tribunal which is fully
competent to adjudicate on the subject matter.
3.
LIMITATION:
The Applicant further declares that the present
Original Application is within the limitation prescribed under Section 21 of
the Administrative Tribunal Act, 1985.
4.
FACTS OF THE CASE:
4.1 That the Applicant is presently working as Assistant
Commissioner under the CGST Commissionerate, Ghaziabad in Meerut Zone. The Applicant was
initially recruited as Inspector in the Pay Scale equivalent to the Grade Pay
of Rs. 4600/Level-7 on 28.04.1986 (F/N). Prior to it, he worked as Assistant in
the same pay scale for the period from 05.01.85 (F/N) to 28.04.1986 (F/N) in
Central Secretariat Service.
4.2 That the
Applicant was placed under the pay scale of the Superintendent w.e.f. 09.08.99
by grant of Ist ACP upgradation. The Applicant was promoted to the post of
Superintendent vide Order dated 23.09.2002 in the Pre-revised Pay Scale of Rs.
6500-10500/- which was revised to Rs. 7500-12000/- w.e.f. 21.4.2004.
4.3 After the VI CPC report, the pay scale of Superintendents of Central
Excise (now CGST) & Customs was revised from Rs. 7500-12000/- to
corresponding Pay Band & Grade Pay of Rs. 4800/- in PB-2 and to the Pay
Scale of Rs. 8000-13500/- after 4 years with corresponding Pay Band & Grade
Pay of Rs.5400/- in PB-2. A new scale for Group A Entry Grade with corresponding Grade Pay of Rs. 5400/- in
the PB-3 equivalent to Rs. 8000-275-13500/- was also introduced. The next
promotional post for the Superintendent is Assistant Commissioner, which
carries the Grade Pay of Rs. 5400/- in PB-3.
4.4
That since the Applicant completed 4 years of service as Superintendent
on 23.09.2006, he was
granted Grade Pay of Rs. 5400/- in PB-2 as time scale/non-functional scale.
4.5 The Applicant
had already completed 20 years of service on the date of implementation of the
Modified ACP Scheme, i.e., 01.09.2008 and was eligible to get second MACP
upgradation in the next higher Grade Pay of Rs. 6600/- but it was given w.e.f. 01.09.2008
in the same Grade Pay of Rs. 5400/- in Pay Band 3.
4.6 That the
above benefit of second MACP upgradation was withdrawn later vide
Establishment Order No. 146/2014 dated 14.07.2014 (vide Sl. No. 70) issued by
The Additional Commissioner, Office of the Chief Commissioner
Cadre Controlling Authority, Delhi Zone, C.R. Building, I.P. Estate, New
Delhi-110002. It is also worth to mention that
there exists no grade pay of Rs. 5400/- in PB2 in CBIC in the promotional
hierarchy of the Inspectors/Superintendents. The actual relevant grade pay in
the promotional hierarchy for the Inspectors/Superintendents is Rs. 5400/- in
PB3 instead of PB2.
4.7 That the Applicant was finally given second
MACP upgradation after completion of 30 years of service w.e.f. 05.01.15 and
granted Grade Pay of Rs. 5400/- in PB-3 in terms of Modified Assured Career
Progression Scheme (MACPS) instead of Grade Pay of Rs. 7600/- as IIIrd MACP
upgradation.
4.8 That
it may be relevant to mention at this juncture that the Union of India
introduced Assured Career Progression (ACP) Scheme w.e.f. 09.08.1999 which
envisaged two financial up-gradations; the first up-gradation after completing
12 years of service and the second after completion of 24 years of 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
31.08.2008. Further, from 01.09.2008, the Union of India replaced the ACP
Scheme with the Modified ACP Scheme as per DOPT OM dated 19.05.2009 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 has been clearly defined in para 2 of Annexure to the
OM dated 19.05.2009. Union of India also introduced the time
scale/non-functional scale to be granted after the completion of four years of
service as Superintendent w.e.f. 01.01.2006.
4.9 The applicant was eligible for 2nd
upgradation to the next higher grade pay of Rs.6600/- under MACP Scheme (MACPS)
after completion of 20 years of service. The applicant was, however, not
granted 2nd upgradation in the Grade Pay of 6600/- in PB3 (next
higher Grade Pay to the grade pay of Rs. 5400/-) after completion of 20 years
of service treating the grade pay of Rs.5400/- in PB-2 (granted on completion
of 4 years’ service in the grade pay of Rs.4800/- as Superintendent as part of
pay scale) as a financial upgradation under MACPS. Further, applicant should
also have been granted the Grade Pay of Rs. 7600/- as IIIrd MACP upgradation
after completion of 30 years of service.
4.10 That
the Applicant is also entitled to the time scale/non-functional scale with Grade Pay of Rs. 5400/-
w.e.f. 01.01.2006 as the High Court of Madras in WP No.13225/2010 in the case of Sh. M. Subramaniam has granted the benefit to an
Inspector of the Customs & Central Excise who has completed regular service of 4
years in the Pay Scale/Grade Pay of Superintendent on account of ACP
up-gradation. The SLP against this
order as well as the Review petition of the Govt. was dismissed in the Hon’ble
Supreme Court. The Applicant was, however,
ordered to be granted the said time scale vide Pay Fixation Order dated 16.04.19 issued vide C.No. II(24)56/Pay
fix/Gp-A/2017/1741 dated 22.04.19 o/o the Commissioner, CGST, Ghaziabad based on the order of this
Hon’ble Tribunal in OA No.---------but this
order is yet to be implemented.
4.11 That the Applicant submitted
the representations dated ------ and ------- to the Commissioner, CGST,
Ghaziabad for the grant of the Grade Pay of Rs. 6600/- as IInd MACP upgradation
and Rs. 7600/- as IIIrd MACP upgradation alongwith time scale w.e.f. 01.01.06.
The copies of the representations are annexed and marked as Annexure.
4.11 That the representation of the Applicant was
rejected on-------- treating the time scale as
one MACP upgradation
by relying on the letter dated 20.06.2016 of the CBIC and also treating single grade pay of Rs. 5400/-
as two, i.e., Rs. 5400/ in PB2 and Rs. 5400/- in PB3. It is also worth to submit that the
letter dated 20.06.2016 of the CBIC has already been quashed by the Hon’ble Jabalpur CAT and the appeal of
the Govt. against this order has also been dismissed by the Hon’ble Jabalpur
High Court. The applicant, actually, is entitled to get second up-gradation in
terms of ACP/MACP Scheme in Grade Pay of Rs 6600/- in PB3 and third financial
up-gradation in in Grade Pay of Rs. 7600/- in PB3. The time scale/non-functional
scale after 4 years of service in the pay scale of Superintendent is in fact on
the basis of revised pay scale and could not be offset/withdrawn/equated/treated
as a financial up-gradation under MACP Scheme. Also, there was no provision of
off-set in the notification issued for MACPS or
notification issued based on the report of the VIth central pay commission.
4.12 The VIth Central Pay Commission, on the
recommendations of which the MACP Scheme was introduced, very specifically said
under para ----- of its report that the grade pay of Rs. 5400/- in PB2 and PB3
is one and the same.
4.13 In Subramaniam verdict given in WP (C)
No.------- by the Hon’ble Madaras High Court, two things have been established
and ascertained that (i) Time scale/NFS in the grade pay of Rs. 5400/- is to be
granted after completion of four years in the scale (equivalent grade pay of
Rs. 4800/-) of Superintendent got as a result of ACP/MACP upgradation and (ii)
Time scale/NFS can’t be counted as one MACP upgradation as it is to be granted
automatically after four years of getting the pay scale of the Superintendent
in ACP/MACP upgradation as the integral part of pay. The SLP and review
petition in the SLP of the Govt. against the order of the Hon’ble Madras High
Court have already been dismissed by the Hon’ble Supreme Court.
4.14 In the Balakrisnan verdict given in the WP (C)
No. 11535/2014 by the Hon’ble High Court of Madras, it has been
established and ascertained that (i) Time scale/NFS can’t be offset with MACP
upgradation and can’t be treated/counted as one MACP upgradation (ii) Grade Pay
of Rs. 5400/- in PB2 and PB3 is one and the same as grade pay of Rs. 5400/- in
PB3 is noway higher than grade pay of Rs. 5400 in PB2 (iii) Next grade pay
after Rs. 5400/- in PB2 is Rs. 6600/-. SLP of the Govt. in this case has
already been dismissed by the Hon’ble Supreme Court.
4.15 The Resolution of GOI
issued based on the recommendations of the VIth Central Pay Commission provides
that group B officers of Department of
Revenue (CBIC etc.) will be granted grade pay of Rs. 5400/- in PB-2 on non-functional basis after 4 years of
regular service in the grade pay of Rs. 4800/- in PB-2.
4.16 Resolution relating
to ‘Modified 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.
4.17
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 scale (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 by the Govt.
4.18 In the order
given by the Hon’ble High Court of Jabalpur in Misc. Petition No. 6500, 6502,
6503, 6504, 6530, 6531, 6535, 6561, 6564, 6578 and 6579/2019, following two
things have been ascertained-
(i) The non-functional scale can’t be
treated as promotion or financial upgradation for the purpose of Modified
Assured Career Progression Scheme (MACPS). It means that the time scale/NFS
can’t be offset with the MACP upgradation.
(ii) The Grade Pay of Rs. 5400/- in PB 2
and Rs. 5400/- in PB 3 is erroneously treated as separate grade pays for the
purpose of grant of upgradations under MACPS. It means that the Grade Pay of
Rs. 5400/- in PB2 and PB3 is one and same thing and officers should get the
Grade Pay of Rs. 6600/- after it as next MACP upgradation.
4.19 Hon’ble Madras
High Court, speaking through the division Bench, in Writ Petition Nos. 33946,
34602 and 27798 of 2014, titled UOI Vs. S Ranjit Samuel while
dealing with a similar issue has observed the following :
‘The purpose and spirit of the Career Progression Scheme is only for
the benefit of employees, who face stagnation in their career. That purpose and
spirit cannot be defeated, if the benefit under the new Scheme is causing
detrimental to the interest of the employees. The intention between the
Scheme would not be as such. In any event, as a
principle of purposive interpretation, it has to be seen that what is
more advantageous to the employees is what should be preferred, since the
Scheme being a beneficial one, cannot be allowed to result in loss to the
employees on its implementation.’
‘The well
intended benefit under ACP or MACP Scheme cannot be allowed to suffer loss of
proper fixation in the higher pay scale as such consequence would not further
the purpose and spirit of the Scheme’.
So, it is
clear that the ACP Scheme can’t be de-modified in the form of Modified ACP
Scheme to worsen the propects of the employee.
4.20 That the
UOI is unable to disclose the pecuniary difference between the Grade Pay of Rs.
5400/- in PB2 and PB3 despite of being asked under RTI.
4.21Hence being aggrieved by the denial of the benefit
of Grade Pay of Rs.6600/- as 2nd MACP upgradation and Rs. 7600/- as
IIIrd MACP upgradation, the applicants approach this Hon’ble Tribunal for the
justice.
5. GROUNDS:
The present Original Application is being filed on the following grounds amongst
others
A. Because
the impugned action on part of the respondents is illegal, arbitrary and
without any basis and is also violative of Articles 14 & 16 of Constitution
of India. It is, therefore, liable to
be quashed and set aside.
B. Because
the arbitrary and impugned withdrawal of MACP upgradation by the respondents
has no legal basis and no reasons have been put forward by the respondents for
withdrawal of the benefit extended to the applicant. Thus, the impugned action on part of the
respondents is liable to be quashed and set aside.
C.
Because, as per well settled
principles of natural justice, any action which entails civil consequences has
to be provided by a show cause notice which is required to be issued to the
person who would be affected by such action.
In the facts of the present case, no such show cause notice was ever
issued to the applicant and thus, the impugned action is violative of
principles of natural justice, therefore, liable to be quashed and set
aside. It is submitted that the
opportunity to provide hearing before making any decision has been considered
to be a basic requirement in law and which principle has been applied also by
quasi judicial authorities and Tribunals.
The applicant in this regard wishes to rely upon the judgment passed in
the case of Mohinder Singh Gill & Anr. Vs. The Chief Election
Commissioner, New Delhi 1978, AIR 851.
D.
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 got on account of ACP upgradation.
Hence, the time scale should have been given to the applicant w.e.f. 01.01.2006
in place of 23.09.2006.
E.
Because, in the Balakrisnan verdict given in the WP (C) No. 11535/2014 by the
Hon’ble High Court of Madras, it has been established and ascertained that (i)
Time scale/NFS can’t be offset with MACP upgradation and can’t be treated/counted
as one MACP upgradation (ii) Grade Pay of Rs. 5400/- in PB2 and PB3 is one and
same as grade pay of Rs. 5400/- in PB3 is noway higher than grade pay of Rs.
5400 in PB2 (iii) Next grade pay after Rs. 5400/- in PB2 is Rs. 6600/-. SLP of
the Govt. in this case has already been dismissed by the Hon’ble Supreme Court. Thus, this
verdict has
undone para 8.1 of MACPS and also offset of time scale with MACP upgradation.
However, no relief is being given by the Government/CBIC to its officers
including the applicants on the issue despite the aforesaid orders/judgments
having attained finality after dismissal of the SLP of the UOI by
the Hon’ble Supreme Court.
F.
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 not been rendered in personam.
Thus, the entire class of the similarly situated employees including the applicant
is required to be given the benefit of the decision whether or not they were
parties to the original petition. 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.”
G. Because the fixation of pay in the Grade Pay
Rs. 5400 in PB-2 cannot, by any
interpretation, be termed as financial up-gradation under MACPS/ACPS in as much as the same is not an upgradation
but is pay Scale. Para 8.1 of the scheme provides that consequent upon implementation of Sixth CPC recommendations, grade pay of
Rs. 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 paisa 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. In this regard, the excerpts from the
sixth Pay Commission report under the heading ‘Promotion Policy’ are
extracted hereunder for ready reference:
iii) The
grade pay shall change at the time of financial upgradation under this
scheme. The grade pay given at the time
of financial upgradation under ACPS will be the immediate next higher grade pay
in the hierarchy of revised pay bands and grade pay being recommended.
It
has been specified nowhere which is higher of both and in fact, Rs. 5400 in PB3
is no way higher than Rs. 5400 in PB2. The single grade pay has only been
divided into two categories in an arbitrary and illegal manner.
H.
Because the UOI is unable to disclose the
pecuniary difference between the Grade Pay of Rs. 5400/- in PB2 and PB3 despite
of being asked under RTI.
I.
Because the revised pay scale for Superintendents of Customs
& Central Excise/CGST after 4 years of service was required to be fixed in
the revised pay scale of Rs. 8000-13500/- (Grade Pay Rs. 5400 in PB-2) only
and cannot be termed as financial upgradation in lieu of functional promotion
or ACP/MACP upgradation. Thus the Grade Pay of Rs.5400 in PB-2 granted to the
applicant w.e.f. 23.09.2006 was not by virtue of any promotion or ACPS or MACPS
but on the basis of the fact that the pay scale for Superintendents of Central
Excise with 4 years was such.
J.
Because, 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 MACPS implementing OM No.
35034/ 3/2008-Estt. (D) Dated 19-5-2009. Thus, the pay of all the
Superintendents with 4 years of service having been fixed in the revised pay
scale of Rs. 8000-13500/- (Corresponding to Grade Pay of Rs.5400 in PB-2) as
per the resolution of Govt. notified on 29.08.08 cannot be treated as Financial
Up-gradation for the purpose of MACP Scheme.
K.
Because, after the grant of time scale in Grade Pay of
5400/- in PB2, 2nd/next ACP/MACP upgradation in the Grade Pay of Rs.
5400/- in PB-3 cannot be treated as another financial up-gradation being
against the spirit of the MACPS 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/band pay.
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.
L.
Because time scale/NFS and MACP/ACP upgradation are
altogether two different things and there does not exist any
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.
M.
Because 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. Option for pay fixation under FR 22 is
also required to be given in the case of MACP upgradation but the same is not
at all required in the case of the grant of time scale/NFS.
N.
Because the Pay Band associated with any post
merely 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 to the applicants as MACP upgradation. The findings of the
High Court were upheld by the Supreme Court by dismissing the Appeal of Union
of India.
O.
Because offsetting of MACP upgradation with the
non-functional time scale and treating single Grade Pay as two 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 and also no
pay scale was treated as two under ACPS.
P.
Because neither the VIth CPC anywhere mentioned in
its recommendations nor the UOI anywhere mentioned in the resolution passed
based on the recommendations of the VIth CPC that time scale/NFS will be offset
with the MACP upgradation to count it one financial upgradation under the MACPS
and next MACP upgradation after Grade Pay of Rs. 5400/- in PB2 will be Grade
Pay of rs. 5400/- in P3.
Q.
Because the Modified Assured Career Progression
(MACP) Scheme was envisaged in supersession of the earlier ACP to provide more
benefits by reducing the time intervals prescribed earlier. The features of the
Scheme needs liberal interpretation to ensure that the benefits enshrined
therein to avoid employees being stagnated in one Grade Pay are really extended
with the financial benefit. While the Scheme makes it categorically clear that
at the time of grant of financial up-gradation under MACP Scheme, next higher
Grade Pay is to be extended, giving a narrow interpretation by granting
financial up-gradation to the very same Grade Pay on the ground that the next
Pay Band contain the same, it resulted in defeating the objective of the
scheme. Hence, the impugned instructions/orders/circulars are issued with no nexus with the objective to be
achieved in the real sense vitiating the objective, hence such stand/circulars
are not sustainable in the eye of law, as there are derogatory to the
objective, and are liable to be set-aside and quashed.
R.
Because para 8.1 clarifies that the Grade Pay
Rs.5400/- in PB-2 and in PB-3 will be treated as different grade pays but not
higher grade pay. Thus the stand of
the Respondents that the next MACP upgradation to be granted to the applicants
and similarly placed officers after Grade Pay of Rs. 5400/- in PB2 would be in
GP Rs.5400/- PB-3 is completely incorrect as that is not the next higher grade
of pay as envisaged under the MACP scheme. Thus on this count also the action
of the Respondents can be seen to be erroneous and hence ought to be interfered
with by this Hon’ble Tribunal.
S.
Because next higher grade Pay after Rs. 5400/- in
PB2 is Rs. 6600/- in PB3. As
per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules,
2008, the relevant corresponding scales are as follows:
|
V Pay
Grade |
Pay Scale |
Pay Band |
Pay Band
range |
Grade Pay |
|
S-14 |
7500-250-12000 |
PB-2 |
9300-34800 |
4800 |
|
S-15 |
8000-275-13500 |
PB-2 |
9300-34800 |
5400 |
|
New SCALE |
8000-275-13500 (Group A Entry) |
PB-3 |
15600-39100 |
5400 |
|
S-16 |
9000 |
PB-3 |
15600-39100 |
5400 |
|
S-17 |
9000-275-9550 |
PB-3 |
15600-39100 |
5400 |
|
S-18 |
10325-325-10975 |
PB-3 |
15600-39100 |
6600 |
|
S-19 |
10000-325-15200 |
PB-3 |
15600-39100 |
6600 |
|
S-20 |
10650-325-15850 |
PB-3 |
15600-39100 |
6600 |
|
S-21 |
12000-375-16500 |
PB-3 |
15600-39100 |
7600 |
|
S-22 |
12750-375-16500 |
PB-3 |
15600-39100 |
7600 |
|
S-23 |
12000-375-18000 |
PB-3 |
15600-39100 |
7600 |
T.
Because,
as seen from the above, the Grade Pay of Rs.5400/- is repeated four times. If
the proposition evolved by the respondents is accepted, all the financial
upgradations would be to GP Rs.5400/- only with zero benefit and with no change
in GP, while the MACP Scheme envisages that financial upgradation should be to
the next
higher grade pay. On this count also, the denial of benefit of Grade Pay of Rs.
6600/- as next MACP upgradation after the Grade Pay of Rs. 5400/- in PB2 is
arbitrary and illegal.
U.
Because
the Respondents have completely ignored and turned a blind eye to the various
pronouncements of various Judicial Forums including the Hon’ble Supreme Court
that judicial decision in relation to pay-scales and grant of pay related
benefits have to be construed as being “in-rem” and not “in-personam” since in
such legal disputes it is essentially the policy of the Government that is
challenged and if any action on the basis of such policy or the policy itself
is overturned and negated then the benefit has to be granted to all employees
similarly situated across the board and that the Government Departments ought
not to force individual employees to approach judicial forums to agitate
settled legal issues which directly leads to multiplicity of litigations on the
same identical cause which ultimately are governed by a binding decision of a
higher judicial forum.
V. The Hon’ble Apex Court in the judgment dated
17.10.2014 passed in the Civil Appeal No. 9849 of 2014, in the matter of State
of Uttar Pradesh & Ors Vs. Arvind Kumar Srivastava & Ors, held that
-
“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.”
“2. However, in spite of various such
decisions delivered by Apex Court, the benefit of a judgment pronouncement by
none other than Apex Court is not being extended to all other identically
situated persons/employees by the Government Departments and Ministries. If any
matter on service issue/policy attains finality from the High Courts or Supreme
Court, the DOPT and Department of Expenditure have made an uniform policy to
implement the said decision to specific case only and not to all identically
situated employees. It has become a decided matter by both of these departments
to instruct the administrative departments/Ministries to implement the decision
of High Court or Supreme Court in specific case only. Consequently, it may lead
to wasting of time, resources, money etc. of identically situated employees and
of course for Courts also. It may also be termed as contempt of Court's
decision.”
W.
Because, in the case of Government of NCT Delhi
& Others V/s. Somvir Rana (TGT ENG) & Others in SLP(C) No. 23742 of
2017, the Hon’ble Supreme Court observed that;
“We find that there are several matters in which the
aggrieved employees have been going to the Tribunal, then to the High court and
thereafter those matters are brought before this court at the instance of Union
of India/NCT of Delhi.
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 time of the Courts and the Administrative
Departments apart from avoiding unnecessary and avoidable expenditure.
The present
situation is that the stepping up is available only to those who have
approached the Court. But since the issue has otherwise become final, we direct
the Government of India to immediately look into the matter and issue
appropriate orders for granting the pay-scale so that people need not unnecessarily
travel either to the Tribunal or the High Court or this Court”.
X. Because the action
of the respondents in counting Non-Functional Grade Pay of Rs.5400/- in Pay
Band-2 extended to the applicants as one financial upgradation for the purpose
of MACP scheme by referring to Para 8.1 of Annexure of OM dated 19.05.2009 r/w
FAQ No.16 culminating in the Applicants being deprived of 2nd
financial upgradation to GP Rs.6600/- with the consequential benefit of 3rd
financial upgradation in GP of Rs. 7600/- accordingly on completion of 20 and
30 years of service, is illegal, arbitrary, unjust and smacks malice in law as
the same is contrary to the principles laid down in the judgments rendered by
the Hon'ble Madras High Court in W.P. No. 1153 of 2014 in the order dated
16.10.2014 in the Balakrishnan case and also the judgment rendered by the
Hon'ble Delhi High Court dated 20.12.2017 in W.P(C). No. 9357 of 2016 in the
Hari Ram case.
Y. Because the letter
F. No. A-23011/25/2015-Ad.IIA dated 20.06.2016 is contrary to law and has
already been quashed by the Hon’ble Jabalpur CAT in its order…….against which
the appeal of the UOI has also been dismissed by the Hon’ble Jabalpur High
Court very specifically observing that time scale/NFG can’t be treated as MACP
upgradation and also the Grade Pay of Rs. 5400/- in PB3 can’t be treated as
next grade Pay to Rs. 5400/- in PB2 for the purpose of upgradation under MACP
Scheme. Thereby the action of the respondents in depriving the Applicants of
their legitimate benefit of 2nd financial upgradation to Grade Pay
Rs.6600/- and 3rd financial upgradation to Grade Pay Rs.7600/- and the
further deprival of resultant benefits is offending the rights of the
Applicants and is in violation of Articles 14 and 16 of the Constitution. Thus the applicants humbly approach this Hon’ble Tribunal for
the grant of justice.
6.
DETAILS OF REMEDIES EXHAUSTED :
The Applicant declares that he
has exhausted all the remedies available to him under the relevant rules.
7.
MATTER NEITHER FILED NOR PENDING BEFORE ANY OTHER
COURT:
The Applicant declares that he has not previously
filed any other Application, Writ, or Suit regarding the matter in respect of
which the present OA is filed before any Tribunal or in any Court, nor any such
application is pending before any Tribunal or any Court challenging the same
action of the Respondents and the impugned order of penalty except for the
present OA.
8. RELIEF(s) SOUGHT:
In view of the facts and
circumstances mentioned above, the Applicants pray for the following among
other reliefs. That this Hon’ble Tribunal be pleased:
(a)
To grant the second MACP upgradation in Grade
Pay of Rs. 6600 in PB-3,
(b)
To grant benefit of third MACP upgradation in
grade pay of Rs. 7600/- instead of grade pay of Rs. 5400/- in Pay Band 3.
(c)
To grant NFG w.e.f. 01.01.2006 in place of 23.09.2006
as per Madras High Court orders,
(d) To quash the
para 8.1 of MACP scheme and FAQ No. 16 issued by the DOPT.
(g) To quash the Order issued vide
F.No.: II(24)65 /MACP/GOS/GZB/2018-19/1228 dated 23/25.06.20 o/o the
Commissioner, Central Goods and Service Tax, Ghaziabad denying the Grade Pay of
Rs. 6600/- and 7600/- as IInd and IIIrd MACP upgradation respectively
(h). To quash the offsetting of MACP up-gradation with the time scale.
(i) To grant a grade pay of Rs. 6600 & Rs. 7600
respectively on 2nd & 3rd MACP upgradation to the similarly placed officers
including Central Excise/CGST Superintendents and promotee Asstt./Deputy
Commissioners after completion of 20 & 30 years of service after joining as
Inspector.
(j). To quash the Office Memorandum
issued vide Coord/Expdr/MACP clarification/2020-21/429 dated 28.08.20 o/o the
Principal Chief Controller of Accounts, Central Board of Excise & Customs,
AGCR Building, New Delhi saying that the grant of Non-Functional Grade Pay of
Rs. 5400/- in PB2 will be counted as one financial upgradation for the purpose
of MACP Scheme and to follow the direction issued by the OM dated 20.06.20 as
it is contemptuous in itself because of the OM dated 20.06.20 being already
quashed by the Hon’ble Jabalpur CAT.
(k) To quash the S. No. 12 of Pay
Fixation Order dated 16.04.19 issued vide C.No. II(24)56/Pay fix/Gp-A/2017/1741
dated 22.04.19 o/o the Commissioner, CGST, Ghaziabad mentioning that the IInd
MACP due on completion of 20 years of service has been offset with the non
functional upgradation (Time Scale) granted
(l) To quash the DOPT I.D.
Note No. 1135911/2016/CR dated 02.05.16 saying that the grant of non-functional
grade pay of Rs. 5400/- in PB2 needs to be counted as one financial upgradation
for the purpose of MACP scheme.
(m). 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:
11. 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
NEW DELHI
DATE:
FILED BY
VERIFICATION:
I, , presently at --------- do hereby
verify on this day of _________ at Delhi that the contents of the above OA are
true and correct to best of my
knowledge.
APPLICANT
Namaste friends.
Above is the raw draft on MACP OA seeking Grade Pay of Rs. 6600/- and 7600/-. All are requested to kindly suggest any other point or amendment. For direct Inspectors, it may be Rs. 7600/- and for the Inspectors, who joined one rank below, it may be 6600/-. The same may kindly be mailed to aiacegeo2019@gmail.com.
Regards,
HARPAL SINGH, Secretary General, AIACEGEO.
