Jit Mal vs Union Of India And Another

Mohd. Jamshed, Member (A)

The applicant is a retired Under Secretary (US) of Central Secretariat Service (CSS) and is aggrieved due to non grant of grade pay of Rs.7600/- under the Modified Assured Career Progression (MACP) Scheme by the respondents.

He was appointed as Assistant, CSS on 22.03.1974 and promoted as Section Officer (SO) on 17.05.1982. Thereafter, he was promoted as US (in situ) on 31.08.1999 and on regular basis on 01.07.2003. The applicant retired on superannuation on 30.04.2010. He is aggrieved by the fact that he was not granted 3rd financial upgradation under MACP Scheme in grade pay of Rs.7600/- w.e.f. 01.09.2008. His representation was rejected vide letter dated 12.02.2010. His subsequent representation dated 12.06.2014 was also rejected vide letter dated 26.0.2015. Aggrieved by inaction on part of the respondents, the applicant has filed the present O.A. seeking the following reliefs:-

“(a) Set aside the clarifications contained in OM Nos. 22/22/2009-CSI (CR) dt. 12.1.2010 and dt. 12.4.2010 issued by respondent No.2, being violative of the main MACPs.

(b) Set aside the decision (s) conveyed vide OM No. A-19013/17/2005-Ad.I dt. 2.2.2010 issued by Respondent No.1.

(c) Set aside the decision(s) taken in file No. A-12013/17/2005-Ad-I dt. 23.6.2014 conveyed vide letter no. A-50050/25/2005-Ad.I dt. 12.2.2015 and 26.2.20215 by respondent No.1, and consequently,

(d) Direct the respondents to grant IIIrd Financial benefit under MACP to the applicant in the grade pay of Rs. 7600 with effect from 1.9.2008 and grant all consequential benefits of pay and allowances etc., as well as revised pension and pensionary/retirements benefits with arrears thereof.

(e) Direct the respondents to pay interest @12 p.a. on (iv) above.

(f) Direct the respondents to pay cost of this O.A.”

From the above, it is obvious that the applicant is not satisfied by the response given by the respondents through their O.M. dated 12.02.2010. The other two OMs issued by Ministry of Personnel, Public Grievances and Pensions dated 12.04.2010 and 12.01.2010 have also been challenged by him. He is also seeking setting aside of the decision taken in the file notings No. A-12013/17/2005-Ad-I dated 23.06.2014. The applicant is thus not only seeking setting aside the replies of his representations but also the O.M. issued by the Ministry and setting aside of a file noting that he obtained through RTI and enclosed with the O.A.

The applicant contends that he joined service as Assistant in 1974 and promoted as SO in 1982. Despite his subsequent promotion as US and implementation of MACP Scheme that has come into effect from 01.09.2008, he was not granted 3rd financial upgradation despite being eligible in the grade pay of Rs.7600/-, which was immediate next higher grade pay to the grade pay being drawn by the applicant. The respondents have rejected his claim giving reference of the O.M. dated 12.02.2010 that only those DR Assistants/DR Grade “C” Stenographers, who got Non-Functional Grade (NFG) in the grade pay of Rs.5400/-would be entitled for 3rd financial upgradation. The applicant’s case has been rejected as he was already in the grade pay of Rs.6600/- prior to 01.09.2008. The applicant claims that he was never given the grade pay of Rs.5400/- and as such clarification contained in OM dated 12.02.2010 is not tenable and he is entitled for 3rd financial upgradation under MACP Scheme with grade pay of Rs.7600/-. He has also relied upon judgment of Hon’ble Supreme Court in the case of Director General of Posts and Ors. Vs. B. Ravindran and Anr., [(1997) 1 SCC 641], Hon’ble High Court of Delhi judgments in the cases of UOI Vs. Kesho Ram & Ors., 119(2005) Delhi Law Times 511 (DB), UOI Vs. Prakash Chand & Ors., 132 (2006) Delhi Law Times 525 (DB) and Central Administrative Tribunal, Ernakulam Bench judgment in the case N.K. Gopinathan Vs. UOI & Ors., (OA-870/2011) with connected OA dated 06.09.2012. He has also relied upon other judgments, which have been enclosed with the OA, such as, M.R. Gupta Vs. UOI & Ors., 1996 AIR 669, Rajiv Tandon Vs. Government of India & Ors., 2012(2)(CAT) 129, G.K. Goklani Vs. UOI & Anr. (OA-387/2009) decided on 14.12.2011 and various OMs issued by DoP&T.

The respondents have filed their counter-affidavit opposing the O.A. It is submitted that applicant’s request has been considered time and again for grant of 3rd financial upgradation under MACP Scheme in the light of existing rules and instructions and it is found that his case is not covered for the 3rd financial upgradation in the grade pay of Rs. 7600/- under MACP Scheme. It is submitted that the applicant after his initial appointment as Assistant was promoted as SO under first ACP and thereafter as SO (NFG) under second MACP and US as 3rd MACP. It is also clarified that the financial upgradation is admissible in the hierarchy of grade pay of Rs. 5400/- of Assistants and thus only those DR Assistants/DR Grade “C” Stenographers, who opted for Non-Functional Grade (NFG) in the grade pay of Rs.5400/- would be entitled for 3rd financial upgradation in the grade pay of Rs.6600/- whereas the applicant was already in the grade pay of Rs.6600/- on regular basis before 01.09.2008 and hence not eligible for further higher pay as claimed.

Heard Mr. Basab Sengupta, learned counsel for the applicant and Sh. S.K. Tripathi for Sh. Gyanendra Singh, learned counsel for the respondents.

The applicant was appointed as Assistant in CSS on 22.03.1974. He was subsequently promoted as SO on 17.05.1982 and was granted non-functional grade pay on notional basis of Rs.8000-13500/- w.e.f. 01.01.1996. He was subsequently promoted as US on 31.08.1999 on in situ basis. He was made Under Secretary on regular basis w.e.f. 01.07.2003. The applicant sought 3rd financial upgradation under MACP Scheme, which was introduced from 01.09.2008. His representations were rejected. He retired on superannuation on 30.04.2010 while working in the Ministry of Finance.

The applicant was granted non-functional pay on notional basis w.e.f. 01.01.1996. In terms of DoP&T O.M. dated 12.01.2010 grant of non-functional grade pay of Rs.5400/- in the pay scale of Rs. 8000-250-13500/- was to be counted as financial upgradation for granting the benefit of such upgradation under MACP Scheme. Subsequent to ACP Scheme, that envisaged two financial upgradations in the promotional hierarchy at the interval of 12/24 years of regular service, the MACP Scheme came into existence w.e.f. 01.09.2008 and allowed three financial upgradations in the hierarchy of grade pay on completion of 10/20/30 years of regular service. It is obvious that the grade pay at the time of financial upgradation under the MACP Scheme may not be in the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization. In terms of the Guidelines provided vide DoP&T O.M. dated 19.05.2009 in connection with MACP Scheme, it is clarified that grade pay of Rs.5400/- in PB-2 and grade pay of Rs.5400/- in PB-3 will also be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme. This could be seen as any upgradation, which could impact the grade pay and has to be treated against financial upgradation under the MACP Scheme. Therefore, non functional scales/grade which cannot be included in the promotional hierarchy are now countable for grant of MACP Scheme benefits. The applicant made representations and also sought information under the RTI. His representation for grant of 3rd financial upgradation benefit under MACP Scheme in the grade pay of Rs.7600/- was rejected on the basis of DoP&T O.M. dated 12.01.2010, which the applicant seeks setting aside of. The respondents have rejected the claim of the applicant in terms of this OM, which clarifies that DR Assistants/DR Grade”C” Stenographers, who have got non functional grade in the grade pay of Rs.5400/- would only be entitled for 3rd financial upgration in the immediate higher grade pay of Rs.6600/- on completion of 30 years of continuous service or on completion of 10 years stagnation in a single grade pay, whichever is earlier. Respondents have further clarified that non functional scale of Rs.8000-13500/- was introduced and granted to SOs/PSs of the CSS/CSSS cadre on completion of 04 years of approved service w.e.f. 01.01.1996 on notional basis and w.e.f. 03.10.2003 on actual basis and, therefore, those who have got non functional scale of Rs. 8000-13500/- would only be entitled to the grade pay of Rs. 6600/- as their 3rd financial benefit under MACP Scheme. This position has already been clarified to the applicant vide OM dated 12.02.2010, which is as under:-

“Subject:- Modified Assured Career Progression Scheme (MACPS) for the Central Government civilian employees – Regarding.

The undersigned is directed to refer to application dated 11.06.2009 received from Shri Jit Mal, Under Secretary (V&L) for grant of 3rd ACP under the Modified Assured Career Progression Scheme (MACPS) w.e.f. 1st September 2008.

Department of Personnel & Training vide their O.M. dated 12th January 2010 have clarified that DR Assistants/DR Grade “C” Stenographers who have got Non-Functional Grade (NFG) in the Grade Pay of Rs.5400/- would only be entitled for 3rd financial upgradation in the immediate higher grade pay of Rs.6600/- on completion of 30 years of continuous service. No further financial upgradation would be admissible to such officials. A copy of aforesaid OM of DOP&T is enclosed herewith for ready reference.

In view of above clarification of Department of Personnel & Training, Shri Jit Mal, Under Secretary cannot be granted 3rd ACP under MACPS as he has already been in the Grade Pay of Rs.6600/-(equivalent to prerevised pay scale of Rs.10000-325-15,200) on regular basis before 01.09.2008.”

This reply is based on the O.M. dated 12.02.2010, which have also been challenged by the applicant. The applicant has not only challenged these OMs and sought setting aside of the same but also sought setting aside of a file noting, which he has obtained through RTI dated 23.06.2014 and enclosed with the OA. The file noting is an internal communication and the same is not even marked to the applicant. Challenging the same is, therefore, not tenable. The applicant has relied upon judgments including the Hon’ble High Court of Delhi in WP(C)-9357/2016 (Hari Ram & Anr. Vs. Registrar General, Delhi High Court) dated 20.12.2017. However, we find that this case pertains to the grant of grade pay of Rs.5400/- and in the case of the applicant he was already granted grade pay of Rs.6600/- and was therefore ineligible for grant of 3rd financial upgradation under the MACP Scheme in terms of OM dated 12.01.2010 issued by DoP&T. OM dated 12.01.2010 of DoP&T is a clarification as to how such cases be decided. This is a policy matter arising out of the MACP Scheme. No intervention is warranted in the OM dated 19.05.2009. This position has already been clarified by the Hon’ble Supreme Court in UOI & Ors. Vs. M.V. Mohanan Nair (Civil Appeal No. 2016/2020) on 05.03.2020, in para-51 the following is held:-

“51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the government’s policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pal’s case. The impugned orders cannot be sustained and are liable to be set aside.

In view of the above, we do not find any infirmity or illegality in the impugned orders passed by the respondents. The claim of the applicant is not tenable. The O.A. is devoid of merit and the same is accordingly dismissed. No costs.