All India Association Of Central Excise Gazetted Executive Officers Kerala Unit & Ors. vs Union Of India & Ors.

Mr. Justice K. Haripal, Judicial Member

Applicants are the All India Association of Central Excise Gazetted Executive Officers, Kerala unit and two of its members. They filed the OA seeking grant of Grade Pay of Rs.5400/- in PB-2 on non-functional basis after 4 years of service in the grade pay of Rs.4800/- in PB-2 either by way of ACP/MACP with all consequential benefits. By order dated 26.02.2019 the OA was allowed and the respondents were directed to grant grade pay of Rs.5400/- to the applicants after 4 years of service in the grade pay of Rs.4800/- with all consequential benefits. There was a direction to implement the same within a period of two months. Later, after extended periods of time, the said direction was complied with by the respondents. Now the applicants have approached the Tribunal with this MA for directing the respondents to give effect to the said order dated 26.02.2019 to all its members, irrespective of their date of joining the Association.

The facts of the case can be stated thus : Applicants 2 and 3 are Superintendents of Central Excise working in the Excise Gazetted Executive cadre. 1^st applicant is their association represented by the General Secretary. CCS(Revised Pay) Rules 2008 provides for grant of grade pay of Rs.5400/-on non-functional basis after four years of service in the grade pay of Rs.4800/- to those who were in the pre-revised scale of Rs.7500-Rs.12,000/-. By way of clarification dated 21.11.2008 in Annexure A-1 it was made clear that on completion of 4 years on 01.01.2006 or earlier, an officer in the scale of Rs.7500-Rs.12,000/- will be given non-functional upgradation with effect from 01.01.2006; if the officer completes 4 years after 01.01.2006, he will be given non-functional upgradation from such date on which he completes 4 years in the pay scale of Rs.7500-12,000/- (pre-revised). Later through Annexure A-2 clarification dated 11.02.2009, the Central Board of Excise and Customs altered the said position and insisted that non-functional upgradation to grade pay of Rs.5400/- in PB-2 can be given only on completion of 4 years of regular service in the grade pay of Rs.4800/- in PB-2 after regular promotion and not on account of functional upgradation due to ACP. In other words, it was clarified that grant of non-functional upgradation under ACP will not entitle for the benefit of further financial upgradation in the pre-revised scale. The effect of Annexure A-2 is that, in order to grant grade pay of Rs.5400/- one should be in regular employment for four years with grade pay of Rs.4800/-. Merely covering 4 years of service after grant of financial upgradation under the ACP is not sufficient to grant grade pay of Rs.5400/-.

Annexure A-2 was challenged by one S. Ashoka Narayanan through OA 151/2009 before this Tribunal. That OA was dismissed by the Tribunal. Against the decision, Ashoka Narayanan filed OP(CAT) No.276/2010; by Annexure A-3 judgement dated 08.12.2016, the Hon’ble High Court reversed that finding and quashed Annexure A-2 to the extent that denied grade pay of Rs.5400/- to the applicant therein. In the said decision, the High Court also relied on the decision of the Hon’ble Madras High Court in the case of one Subramaniam in WP(C) No.13225/2010. The decision of the Madras High Court was confirmed by the Hon’ble Supreme Court in SLP.

As mentioned earlier by order dated 26.02.2019 the OA was allowed and ultimately the benefit was granted to all the applicants and members of the Association.

Now the applicants contend that the Association is an entity that continues in perpetuity and the members in its roll changes periodically consequent to retirement and enrolment/admission of new members and superannuation of existing members. Basing on the judgements of the High Court and the Supreme Court, the new members approached the respondents for extending the benefit of the order of this Tribunal in MA-2. But the respondents have taken a stand that the earlier order and the judgements were not judgements in rem, that such benefits cannot be extended to non-members of the Association.

The applicants have also stated that by virtue of a resolution taken, the name of the Association stands changed as All India Association of Superintendents of Central Tax (AIASCT) and that it has been recognised by the respondents. Therefore, they contend that the members of the Association, who have since joined the same are also entitled to get the benefits.

The respondents have opposed the contention. According to them an Association as Applicant No.1 is not in existence; the matter was referred to the Department of Expenditure and the verdict in Subramaniam case cannot be extended to non-members of the Association.

The applicants filed a rejoinder. According to them the stand taken by the respondents tantamount to contempt of Court and therefore they prayed for initiating contempt of Court proceedings suo-motu. They have reiterated their contentions in the MA.

We have heard the learned counsel on both sides. Sri Shafik M. Abdulkhadir learned counsel submitted that the Association stands recognized by the respondents; it is a permanent entity and therefore, even if new members are enrolled, those who have joined on promotion as Superintendent of Central Excise are entitled to get the benefits of the verdict irrespective of the question whether, at the point of time when MA-2 order was rendered, they were members of the Association or not. According to the counsel the respondents are not entitled to bifurcate members, who were members and who have become members subsequent in point of time. On the other hand, learned Standing Counsel Sri V.A. Shaji, opposed the application. According to him, the benefit of MA-2 has already been granted to the members of the Association and there is no judgement in rem, so that, the claim of the applicants cannot be accepted.

After hearing both the sides, we are of the view that the direction, as prayed for, cannot be denied. Firstly, we cannot forget the fact that Annexure A-1 order still holds the field. In Annexure A-3 judgement dated 08.12.2016, the Annexure A-2, to the extent it affects the applicant therein stands quashed. Basing on the decision in Subramaniam rendered by the Madras High Court, High Court of Kerala held that Annexure A-2 cannot hold good. Subramaniam judgement stands upheld by the Hon’ble Supreme Court in SLP. Different Benches of this Tribunal have also taken the view that Annexure A-2 cannot stand. In other words, the clarification given in Annexure A-1 to the effect that if an officer has completed 4 years on 01.01.2006 or earlier period on pre-revised scale of Rs.7500/-12,000/- is entitled to get non-functional upgradation with effect from 01.01.2006, or on such dates, as the case may be and thus entitled to get grade pay of Rs.5400/-. Annexure A-3 judgement has already been implemented. Similarly, the order in MA-2 of this Tribunal dated 26.02.2019 also has been given effect to. Different Benches of the Tribunal including the Principal Bench have taken consistent stand on this aspect and all such orders have been implemented. Therefore, there is no point in saying that the decision in Subramaniam is not a judgement in rem.

Secondly and more importantly, Annexure A-1 order is not person specific. It does not limit to individual beneficiaries. Paragraph 3 reads thus:-

In other words, Annexure A-1 does not limit the benefits to any particular employee or group of employees. It states about those who have completed 4 years of service in the scale are entitled to get grade pay of Rs.5400/-. That means the respondents are not entitled to vivisect members of the Association and non-members.

Here the respondents have taken the stand that the 1^st applicant in the OA i.e. All India Association of Central Excise Gazetted Executive Officers Kerala unit is no more in existence. But through MA-1 / MA-7 dated 22.04.2022 it has become clear that a new Association by name All India Association of Superintendents of Central Tax (AIASCT) has come into existence in the place of the old organization and that it has been recognised by the respondents. Such a transformation took place on the basis of the Annexure MA 6(5) resolution.

Whatever it may be, we are not concerned about the membership in the Association or non-members. The Courts have accepted in principle that those who have completed 4 years of service in that scale are entitled to get higher grade pay of Rs.5400/-. Such an order has become final and there is no material to show that Annexure A-1 has been revoked or cancelled by any subsequent decision.

As mentioned earlier, the Annexure A-1 is not person specific. It states about a group of employees. After cancelling Annexure A-2, Annexure A-1 remains undisturbed. It has not been revoked or cancelled. Therefore, irrespective of the question whether a particular employee is a member of the organisation or not, since the law has been laid down by Courts which stands approved by the Apex Court, respondents are not heard to say that such a verdict is to be confined to employees of the then organisation. That organisation might have become defunct but in its place another organisation has come in place and the respondents have recognised the new entity. Irrespective of that question, as we have held earlier, the law laid down by the Courts is applicable to the applicants.

It is the accepted principle of law that when the stamp of approval is given to a proposition by the Courts, the benefits should flow to the non-applicants as well; it is extendable to similarly placed employees. The policy of the State is not to multiply litigations and to drive non-applicants to the Courts or Tribunals with applications separately. Here the following observations of the Hon'ble Supreme Court in State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others {(2015) 1 SCC 347}is quite apposite:

From the stands taken by the Courts it is very obvious that the intention was to extend the benefit to all similarly placed employees. In our considered view, all Superintendents of Central Excise, who have on completion of 4 years of service in the said scale of pay are entitled to get grade pay of Rs.5400/-. Therefore, the respondents are bound to extend the benefits to all similarly placed employees. With this direction the MA is disposed of. No costs.

Annexure MA1: True copy of the order F.No.12017/02/2021-Ad IV A dated 22.04.2022 issued by the Central Board of Indirect Tax and Customs

Annexure MA2: True copy of the order dated 26.02.2019 of this Tribunal in OA No.180/862/2018

Annexure MA3: True copy of the Minutes issued as per GEXCOM II/(39)/33/2021 Estt. dated 06.01.2022 of the 4^th Respondent

Annexure MA4: True copy of the order dated 06.01.2022 of the Principal Bench of this Hon’ble Tribunal in OA No.3768/2018

Annexure MA5: True copy of the letter F.No.12017/07/2017-Ad.IV-A dated 3.12.2020 issued by the Under Secretary, Department of Revenue

Annexure MA6: True copy of the letter No.55/CBIC.2022 dated 4.12.2020 of the Secretary General of the Association.

Annexure MA7: True copy of the Letter F.No.E-12017/02/2021-Ad IV A dated 22.04.2022 issued by the Deputy Secretary, Department of Revenue

Annexure MA R1: True copy of the communication issued by the 1^st respondent to the 3^rd respondent dated 10.01.2023.