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CAT CASE ON MACP


IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

O.A NO. ______ OF 2013

 

IN THE MATTER OF :

 

1.     SH.A.K. GAUTAM

S/O LAE SH. M.L. GAUTAM

R/O

 

2.ALL INDIA ASSOCIATION  OF CENRTRAL EXCISE GAZETTED EXECUTIVE  OFFICERS OFFICE AT G-54, CENTRAL RENENUE BUILDING , I.P. ESTATE, NEW DELHI , THROUGH ITS SECRETARY GENERAL , RAVI MALIK, S/O LATE SH. MAHABIR SINGH R/O 638, SECTOR -9, R.K. PURAM, NEW DELHI WORKING  AS SUPERINTENDENT OF CENTRAL EXCISE  AT DIVISION VIII OF CENTRAL EXCISE  COMMISSIONERATE, DELHI –II AT SCOPE MINAR, LAXMI NAGAR DELHI

                                                                      APPLICANT

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

 

APPLICATION  UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL  ACTS

 

TO

THE HON’BLE CHAIRMAN AND HIS LORDSHIPS

COMPANION MEMBERS AT CENTRAL

ADMINISTRATIVE TRIBUNAL DELHI AT

NEW DELHI

 

1.     DETAILS  OF APPLICATION :

 

PARTICULARS OF ORDER AGAINST  WHICH THIS APPLICATION IS  MADE:

 

1.     The  present O.A. is preferred against  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 working under Govt. of India, Central Board  of Excise & Customs, Ministry of Finance, Department  of  Revenue vide which the applicants  have been  granted  Grade Pay of Rs. 6600/- in PB3 under MACP scheme (3rd Up-gradation ) but at the same time  withdrawn the Grade Pay of Rs. 5400/-in PB2 granted  on 1-1-06 corresponding to revised pay scale  recommended  by the VIth CPC and recovery made from the officers arbitrarily. A copy of the Estt.Order No. 53/2013 issued under C.No. II-34-(09)/CCU/MACP/20112/22358-383 dated 6-3-13 is Annexure A-1

 

 

 

2.     JURISDICTION  OF THE TRIBUNAL :

The Applicants declare  that the subject matter against which  redressal is sought is within the jurisdiction of the Tribunal  because the Respondent  is within the jurisdiction of this Tribunal.

 

3.     LIMITATION :

The Applicant  declare  that the  Application  is within the limitation prescribed  under Section 21 of the Administrative Tribunal Act.

 

4.     FACTS OF THE CASE:

 

A.     The fact and circumstances  giving rise to the present  Application  are mentioned in detail as under :

I.                That the  Applicant No. 1 is working  as Superintendent  under the Delhi Zone of Central Excise  presently posted in Customs  wing. The applicant is a member of Applicant 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 Applicant No. 1 was initially recruited  as Inspector in the pay scale of equivalent  to present  Grade Pay of Rs. 4600 in Pay Band -2.

II.             The Applicant 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 VIth 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/- . In other words Superintendents pay Scale after completion of 4 years as Superintendent is Rs.5400 in PB-2.The VIth CPC also introduced a new scale of Rs. 8000-275-13500 (Group A Entry) with corresponding  Grade Pay of Rs. 5400/- in the PB3. The next promotional post for the Superintendents is Assistant Commissioner which carries the Grade Pay of Rs. 5400/- in PB3.

III.          Since the Applicant 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 Applicant 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).

IV.          That the Applicant 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 .

V.             It may be mentioned that  the Union of India  had 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 year’s 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.

VI.          The Applicants  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.

VII.        The Applicants  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. Copies of the representations are annexed and marked as Annexure –A-2 (Colly).

VIII.     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 copy of letter dated 2-9-11 is annexed and marked as Annexure –A-3.

 

9.               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. The Copy of Representation dated 8-5-2012 is annexed and marked as Annexure –A-4.

10.           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 contents of the letter are as below:-

 

“ In the context, as intimated earlier also vide this office letter of even number dated 2-9-2011  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 has been taken up with the Board for the want of direction on the issue and the same is being vigorously followed as well for speedy decision/reply, as this office has recently addressed a Reminder –IV dated 10-5-2012 (enclosed) to the Board and onward appropriate actions shall be initiated only after receipt of the clarification / direction from the Board “.  The copy of Letter dated 30-5-12 is annexed and marked as Annexure –A-5.

 

11.           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 submitted that there is not a difference of even single rupee 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. It has been specified nowhere which is higher of both and Rs. 5400/- in PB3 is noway higher than Rs. 5400/- in PB2. The single grade pay has only been divided into two categories in arbitrary manner.  It appears that it is on the basis of this para 8.1 the respondent No. 6 has withdrawn the revised pay scale.

12.           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. A copy of Estt. Order No. 189/2010 is annexed and marked as Annexure A-6.

13.           It is stated that the Applicants 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.

 

5. GROUNDS FOR RELIEF WITH LEGAL PROVISIONS:

 

GROUNDS:

 

A.     For that the fixation  of pay in the Grade  Pay  Rs. 5400/-  in PB-2  can by no interpretation be termed as financial  up-gradation under MACPS/ACPS  in as much as the same is not an upgradation but is pay Scale

B.     For that a revised pay scale for Superintendents of Customs & Central Excise after 4 years of service was required to be fixed in this revised pay scale of Rs. 8000 – 13500 (Grade Pay Rs. 5400+ PB-2) only and cannot be termed as financial upgradation in lieu of functional promotion.

Understood thus the Grade Pay of Rs. 5400/- in PB-2 from 1-1-06 revised to the Applicant No.1 was not by virtue of any promotion or ACPS or MACPS but on the basis of fact that the pay scale for Superintendents of Central Excise with 4 years was such. 

 

C.     For that it is submitted that the scheme of MACP was implemented only from 1-9-08 much after 1-1-06. 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 MACP implementing OM No. 35034/ 3/2008-Estt. (D) Dated 19-5-2009. Thus pay of all the Superintendents with 4 years of service having been fixed in the revised pay scale of Rs.  8000 – 13500 (Corresponding GP Rs.  5400 + PB-2) as per the resolution of govt. notified on 29.08.08, it can not be treated as Financial Up-gradation for the purpose of MACP.

 

D. It is submitted that the Ernakulam Bench of Ld. Tribunal in the case of Sh. N.K. Gopinatham Vs.  Union of India granted G.P. of Rs. 7600/- to Assistant who had been granted promotion in the pay scale of Rs.  6500-10500 followed by a non-functional scale of Rs.  8000- 13500(notional from 1.1.96 and actual from 2003) and another promotion in the pay scale of Rs. 10000-15200. In this case, the Ld. Tribunal did not consider the non-functional scale as a financial up-gradation.

E. It is submitted that even if such fixation of pay in  Grade Pay of Rs.  5400 in PB-2 is considered as a financial up-gradation, then also grant of 2nd /next ACP/MACP upgradation in the Grade Pay of Rs. 5400 in PB-3 can not be treated as another financial up-gradation being against the spirit of the MACP 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. 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.

F. It  will not be out of place to mention that Pay Band  associated with any post 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 of Rs. 6600/-. The findings of the High Court were upheld by the Hon’ble Supreme Court by dismissing the Appeal of Union of India.

G. It is also submitted that the same scheme provides that all the promotions earned / up-gradations granted under the ACP scheme in the past to those grades which now carry the same grade pay due to merger of pay scales / up-gradations of posts recommended by VIth CPC shall be ignored for the purpose of granting up-gradations under MACPS. Thus under the same scheme if earlier up-gradations now carry same grade pay, it shall be ignored and the employees will get three more up-gradations under MACP then the same grade pay of Rs. 5400/- in two different pay bands can not be treated as separate grade pays for the purpose of determining number of up-gradations under the same scheme of MACP.

H.   That from para-2 of DOP&T OM No.35034/9/2010-Estt.(D) dt.10.02.2011 it is clear that MACP, like ACP, is also provided where promotions are not taking place due to  non availability of posts. “Para-2 the issue of providing an option to organisations/cadres to have a choice for the benefits under the earlier ACPS or the MACPS was also discussed in the meeting of the joint Committee. While the issue would require further deliberations, it is reiterated that MACPS is a fall back option in the event of promotions not taking place” (Annexure-  ). It is reiterated that the non-functional grade of Rs. 5400/- in PB2 after 4 years of service is not granted in lieu of ACP/MACP upgradation or functional promotion but it is the pay scale for the post of Superintendent while ACP/MACP upgradation is not the part of the pay scale.

I.      That offsetting of MACP upgradation with the non-functional time scale  amounts to discrimination and violation of Articales 14 and 16 of the Constitution of India , as the ACP upgradation was never offset with the time scale.

J.     Time scale and MACP/ACP upgradation are altogether two different things. There exist no statutory provisions to offset MACP benefit by time scale as wrongly clarified by Respondents. The time scale can noway be linked with the MACP or ACP upgradation.

K.   Time scale and MACP/ACP upgradation also have different mechanisms. Different procedures are followed for each of them to be implemented.

L.    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.

M.  It was also nowhere mentioned either in the above referred Notification of the Govt. dt. 29.08.08 or MACPS notification dt. 19-5-09 that the benefit of MACP upgradation would be offset by the time scale.

N.   Even in para 8.1, nothing has been said like offsetting of MACP upgradation with the non functional grade/time scale. This para has merely divided the single grade pay of Rs. 5400/- into two categories in arbitrary, illegal and discriminatory manner.

O.   Even otherwise the impugned action of the Respondents depriving the Applicants from next MACP upgradation in the next higher Grade Pay is violative of Article 14 and 16 being arbitrary, illegal and discriminatory thus is liable to be quashed.

 

P. For that the orders of provisional recovery in the impugned order is bad in law in as much as the Respondents cannot recover any amount in anticipation or on the ground of uncertainty.

Q. For that the Respondents have discriminated the applicants and thus violated the scheme of Art 14 and 16 of the Constitution of India.

R. For that even otherwise the impugned action of the Respondents is bad both on law and facts.

 

6.  DETAILS  OF REMEDIES  EXHAUSTED :

 

That there is no remedy, which the applicant can avail, the applicant is likely to suffer irreparable harm and injury if urgent interim orders are not passed in the matter.

 

7.  MATTERS PREVIOUSLY WITH ANY OTHER COURT:

 

 The Applicant has not filed any other Petition in any Tribunal or in the High Court or in the Supreme Court challenging the same action of the Respondents and the impugned order of penalty.

 

8. RELIEF SOUGHT:

 

The Applicant therefore prays that this Hon’ble Court may be pleased to:

 

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.

9. GROUNDS FOR INTERIM RELIEF:

 

10. INTERIM ORDR IF ANY PRAYED FOR PENDING DECISION OF THE TRIBUNAL :

 

i.                Grant ex-parte stay against any permanent / provisional recovery in relation of offsetting of MACP up-gradation with the 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. Building, New Delhi -110009.

ii.              Grant ex-parte stay on the objection of Pay & Accounts Office mentioned in the letter dated 02.09.2011 & 30.05.2012 of Administrative Officer & Additional Commissioner, Cadre Control Unit, Office of the Commissioner of Central Excise, Delhi-I, C. R. Building, I. P. Estate, New Delhi-110002

iii.            Pass any such other order of orders, as may be deemed fit and proper.

11. In the event of application being sent by registered post.

Not applicable.

Particulars of the Postal Order filed in respect of the application fee.

Postal Order No. :

Value of the Postal Order:

Date of Issue:

Payable at:

Issue by Post Office:

 

12. List of Enclosures:

As per Index.

                                                                   APPLICANT

VERIFICATION:

I, Ravi Malik, presently at New Delhi do hereby verify on this  day of July 2013 at Delhi  that the contents  of the above OA are true  and correct to best  of  my knowledge.

 

 

                                                             APPLICANT

NEW DELHI

DATE:                                            FILED BY

 

                                YATENDRA SHARMA

                                660, AGGARWAL CHAMBER III,

                               VIKAS MARG, SHAKARPUR,

                                 DELHI-92.