Ambili B. vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member –

The applicant was appointed as Company Prosecutor Gr.III with effect from 01.08.1995, in the then pay scale of Rs.1,400-2,300/-. The said pay scale was replaced later by pay scale of Rs.5,500-9,000/- with effect from 01.01.1996. The next promotional post was Company Prosecutor Gr.II in the pay scale of Rs.6,500-10,500/-. With effect from 01.01.2006, the post of Company Prosecutor Gr.III in the pay scale of Rs.5,500-9,000/- and the posts of Company Prosecutor Gr.II in the pay scale of Rs.6,500-10,500/- were upgraded to the pay scale of Rs.7,450-11,500/- and merged with a common replacement Pay Band-2 with Grade Pay of Rs.4,600/-. The next promotional post of that was Assistant Registrar, in the pay scale of Rs.8,000-13,500/-.

The applicant was paid pay in the pay scale of Rs.7,450-11,500/-with GP Rs.4,600/- with effect from 01.01.2006. In the meanwhile, the ACP Scheme was introduced. The applicant was due for financial upgradation under ACP Scheme on 01.08.2007. However, she was not granted the same till the Central Civil Services (Revised Pay) Rules, 2008, came into force vide Office Memorandum dated 29.08.2008, following the recommendations of the VI^th Central Pay Commission. MACP Scheme was introduced with effect from 01.09.2008 and by virtue of the Office Memorandum, the ACP Scheme continued up to 31.08.2008. The applicant claimed that since Company Prosecutor was in the upgraded scale of Rs.7,450-11,500/- with effect from 01.01.2006, she was entitled for the 1^st ACP on completion of 12 years on 01.08.2007 in the pay scale of Rs.8,000-13,500/-, equivalent to PB-3 in GP Rs.5,400/-. Since no ACP was granted to her, she submitted Annexure A6 representation followed by Annexure A7 representation in May, 2011. By Annexure A8 dated 09.11.2012, she was granted the 1^st ACP in a lower pay scale of Rs.6,500-10,500/-. The applicant alleges that this was not only illegal but also contrary to the legal position and she was entitled for the next higher pay scale. Annexure A9, detailed representation was accordingly submitted, followed by Annexure A10 representation. Since it was not favourably considered, OA No.219 of 2013 was filed to declare that she was entitled to the 1^st ACP in the PB-3 with Grade Pay of Rs.5,400/- with effect from 01.08.2007. This Tribunal by Annexure A11 order set aside the order and directed the respondents to reconsider grant of ACP/MACP. This order was challenged by the applicant in OP (CAT) No.171 of 2015. The DoPT was impleaded as an additional respondent in the Original Petition. The Hon'ble High Court, by Annexure A12 judgment directed the DoPT to consider and pass appropriate orders. Thereupon, Annexure A1 order dated 07.09.2015 was passed by Ministry of Corporate Affairs granting the benefit of PB-2 with Grade Pay of Rs.4,800/- as 1^st MACP. It was followed by Annexure A2 order of the DoPT confirming Annexure A1 order passed by the Ministry of Corporate Affairs.

Challenging Annexures A1 & A2, the present O.A has been filed seeking essentially the following reliefs:

The respondents appeared and filed a detailed reply statement traversing the allegations and reiterating that the applicant has been correctly paid the entitlements due to her. Since the contention of the respondents is discernible from Annexures A1, A2 and reply statement, it is not separately dealt with. However, it will be discussed in the course of analysis of the facts and law involved.

It is an admitted fact that the applicant was working as Company Prosecutor Gr.III in the pay scale of Rs.5,500-9,000/-. Since she was not granted any promotion, she was entitled for financial upgradation under the ACP Scheme on completion of 12 years of service on 01.08.2007, in the next higher grade of Company Prosecutor Gr.II in the scale of Rs.6,500-10,500/-. Though the applicant was due for financial upgradation under the ACP Scheme on 01.08.2007, she was not granted it till the Central Civil Services (Revised Pay) Rules, 2008 came into force vide OM dated 29.08.2008. It is pertinent to note that by the same OM, the Company Prosecutor Gr.II and Gr.III were merged and given a new grade of Rs.7,450-11,500/- which was equivalent to PB-2 with grade pay of Rs.4,600/-. That scale was granted with effect from 01.01.2006 and consequently the applicant was placed in the replacement pay scale of PB-2 with grade pay of Rs.4,600/- with effect from 01.01.2006. The respondents issued order dated 09.11.2012 granting the applicant 1^st ACP with effect from 01.08.2007 in the pay scale of Rs.6,500-10,500/-. This was the objectionable part and the subject matter in issue in the earlier round of litigation.

The contention set up by the applicant before this Tribunal earlier was that pursuant to VI^th CPC recommendation, the pay scales of Rs.5,500-9,000/- and Rs.6,500-10,500/- were merged and upgraded to Rs.7,450-11,500/-. Hence, as on 01.08.2007, when ACP became payable, the scale of Rs.6,500-10,500/- was not in existence and hence the next higher grade as that of the Assistant Registrar should have been granted. However, this Tribunal took note of the fact that though ACP should have been granted when it was due on completion of 12 years on 01.08.2007, it was not granted and the order was issued much later when the entire pay structure has been revised following the recommendations of VI^th CPC. The Tribunal commented that the applicant seems to take advantage of this delay and obtain the benefit of revised pay structure granted under VI^th CPC on 29.08.2008, though with effect from 01.09.2006, for the purpose of ACP benefits. It was contended by the respondents that position should be considered in a manner by which it is to be seen, what benefit the applicant was entitled to, had the ACP been granted in due time and after which the revised pay structure came into force.

The Hon'ble High Court in Annexure A12 judgment dealt with this contention and commented that when the respondents contend that the applicant was trying to capitalize the delay in processing the ACP benefits and the consequence was to claim a better benefit, it was equally possible to contend that the respondents were trying to capitalize the delay in formulating and notifying the revised pay rules pursuant to the implementation of the recommendations of the VI^th CPC. It was observed that had the revised Rules been notified well on time, say, in 2006 itself, having decided to have brought into force from 01.01.2006, it goes without saying that the scale of pay of applicant could have been Rs.6,500-10,500/-, though there was a merger of scale held by the applicant at Rs.5,000-8,000/- and the next higher scale of Company Prosecutor Gr.II. Once this was done, since the applicant was still eligible to have the benefit of 1^st ACP on completion of 12 years, she would have been eligible for the said benefit on 01.08.2007. The Hon'ble High Court held that had that been the position, it could be the next higher grade of Assistant Registrar which was the case projected by the applicant.

After evaluating these two rival possibilities, the Hon'ble High Court left it open to be considered by the DoPT, which was impleaded as the 4^th respondent in the Original Petition with making it clear that no comment was made on the rival merits of the case advanced by both sides.

This Tribunal had observed that the applicant was trying to capitalize the delay in processing the ACP claims and its consequences so as to claim a better benefit. Equally, the other possibility of a contention that respondents were trying to capitalize the delay of formulating and notifying the revised pay rules pursuant to the implementation of the VI^th Pay Commission, was also considered by the Hon’ble High Court. Had the Revised Pay Rules notified well on time, it was observed that having decided to have brought into force VI^th Central Pay Commission with effect from 1.1.2006, it goes without saying that the scale of the applicant would have been Rs. 7,500-10,500/-. Though there was a merger of scale held by the applicant and the next higher scale once this was done. Since the applicant was eligible to have the benefit of 1^st ACP with effect from 1.8.2007, the next higher scale would have been that of the Assistant Registrar with Grade Pay of Rs. 5,400/-. Evidently, the observation of this Tribunal that the applicant was trying to capitalize the delay in implementation of the ACP benefit is no longer available. It was in that context, while confirming the conclusion of the Tribunal in setting aside the impugned order, the matter was relegated for fresh consideration by the DoP&T.

However, it seems that the order was passed not by the DoP&T, but by the Ministry of Corporate Affairs as is evident from Annexure A1. However, there is a reference in the last paragraph of the said order that it is issued in consultation with DoP&T and in compliance of the order of the Hon’ble High Court. In Annexure A2 also there is a reference that the said order was passed by the Ministry of Corporate Affairs in consultation with the Department of Personnel & Training and had issued the said order. Accordingly, the entire issue regarding the correctness of Annexure A1 is at large before this Tribunal.

To analyse whether Annexure A1 and the consequential order of Annexure A2 are legally sustainable, it is essential to refer to the reasoning given by the competent authority to reject the claim of the applicant. The relevant portion of the discussions and the final outcome in Annexure A1 is as follows:

Evidently, the crux of the conclusion of the authority was that by DoP&T order dated 13.9.2012, only the scale of pay of the posts were merged with effect from 1.1.2006. It was hence held in Annexure A1 that the promotional post of CP-III and CP-II were in existence till 29.9.2008 and hence could not be stated to have become non-existent with effect from 1.1.2006. It was also held that the claim of the applicant that the merger of posts of Company Prosecutor Grade-II and Grade-III was on 1.1.2006, was an incorrect assumption. Necessarily the crucial question that arises is the date when the merger came into effect.

To arrive at the conclusion in clause 11(iii) of Annexure A1 that only the scale of posts alone were merged with effect from 1.1.2006, the authority relied on Annexure V referred to therein, which was the OM dated 13.9.2012. A copy of the said OM was produced by the respondents in the OA as Annexure R1. It refers to the seniority of officers holding the posts/grades merged in pursuance to recommendations of the VI^th Central Pay Commission. It was stated therein that the recommendation of the VI^th Central Pay Commission was accepted on 29.8.2008 and the merger of pay scales of the posts was made effective from 1.1.2006. Having regard to the various disputes regarding the seniority of officers who were holding the posts/grades in the merged posts, it was directed that their pay will be protected and only the scales of posts would be merged, as stated in Annexure A1. However, a perusal of Annexure R1 clearly shows that it only deals with seniority of officer notwithstanding the merger of posts and does not speak of anything regarding whether the posts were merged or not and whether the posts continued to be in existence till 29.8.2008 and only the scale of posts were merged on 1.1.2006.

Evidently Annexure R1 deals with the issue of seniority of officers in the merged cadre who have been promoted between 1.1.2006 and 29.8.2008. There is no reference in above OM that pay scale alone were merged with effect from 1.1.2006. There is considerable force in the contention of the learned counsel for the applicant that Annexure R1 has nothing to do with merger of pay scale or posts but it deals with only the seniority of persons who had been promoted during the intervening period.

In the above circumstances it is essential to refer to CCS (Revision of Pay) Rules, 2008 which was also heavily relied on by the learned counsel for the applicant. The learned counsel invited our attention to clause 1(2) of the said Rules, a copy of which was produced as Annexure A3. It stated that the Rules would come into force on 1.1.2006. Part-C of Annexure A3 refers to revised pay structure for certain posts in Ministries, Departments and Union Territories. Section1(ii) refers to the merger of pre-revised scales. It states as follows:

Section II of Part-C deals with the revised pay structure mentioned in column (5) and (6) of this part of the notification for the posts mentioned in column (2) approved by the Government. Ministry of Corporate Affairs is also included therein. It states that Company Prosecutor Grade II and Grade III respectively are in the pay scale of Rs. 6,500-10,500 and Rs. 5,500-9,000/- would now be in PB-2 revised pay scale being Rs. 7,450-11,500/- with Grade Pay of Rs. 4,600/-.

The said merger and revised pay was pursuant to the recommendation of the VI^th Central Pay Commission No. 7.8.5. The relevant page of the Pay Commission report was placed before us. In paragraph 3.1 of the recommendation No. 7.8.5, the merger of posts was recommended. It states as follows:

In the light of the above discussion of facts it is evident that the specific consequence at clauses (3), (4), (6) and (12) of Annexure A1 that the merger of posts took place only on 29.8.2008 and there was only a merger of scale with effect from 1.1.2006 and the posts continued to exist till 29.8.2008 is absolutely unsustainable and is liable to be rejected. The upshot of the above discussion leads to the conclusion that Annexure A1 is based on wrong evaluation of the OMs and wrong interpretation of CCS (Revised Pay) Rules, 2008. Consequently, it is to be held that the applicant was placed in the revised pay scale of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,600/-. Necessarily on her entitlement for ACP with effect from 1.8.2007 the pay scale should have been on the next higher pay scale of PB-3 with Grade Pay of Rs. 5,400/-. Consequently, it is declared that the applicant is entitled to 1^st financial upgradation in PB-3 with Grade Pay of Rs. 5,400/- with effect from 1.8.2007. Annexures A1 and A2 are accordingly set aside. The respondents are directed to pass appropriate orders as above granting the benefit of ACP in PB-3 with Grade Pay of Rs. 5,400/- with effect from 1.8.2007 with all consequential arrears of pay and allowances emanating therefrom. Appropriate orders shall be passed and the entire amounts due to the applicant shall be paid by the respondents within a period of three months from the date of receipt of a copy of this order.

The Original Application is allowed as above. No order as to costs.

Annexure A1 – True copy of order bearing No. A-42011/126/2015-Ad.II dated 25.1.2017 issued from the office of the 1^st respondent along with the annexures.

Annexure A2 – True copy of order bearing No. 43019/5/2017-Estt.(D) dated 15.2.2017, issued from the office of the 4^th respondent.

Annexure A3 – True copy of the relevant extract of portion of Part-C of the I Schedule to the Central Civil Services Pay Rules, 2008.

Annexure A4 – True copy of Government of India, Department of Personnel & Training under Office Memorandum bearing No. 35034/1/97-Estt(D) dated 9.8.99.

Annexure A5 – True copy of Government of India, Department of Personnel & Training Office Memorandum bearing No. 35034/3/2008-Estt(D) dated 19.5.2009.

Annexure A6 – True copy of representation dated 1.11.2010 addressed to the 2^nd respondent.

Annexure A7 – True copy of representation dated nil May, 2011 addressed to the 1^st respondent.

Annexure A8 – True copy of Office Memorandum bearing No. A-32011/9/2011-Ad.II dated 9.11.2012, issued from the office of the 1^st respondent.

Annexure A9 – True copy of detailed representation dated 15.11.2012 addressed to the 1^st respondent.

Annexure A10 – True copy of representation dated 7.1.2013 submitted to the 1^st respondent.

Annexure A11 – True copy of order in OA No. 219 of 2013 dated 27^th march, 2015 rendered by this Hon’ble Tribunal.

Annexure A12 – True copy of judgment dated 6^th September, 2016 in OP (CAT) No. 171 of 2015 rendered by the Hon’ble High Court of Kerala.

Annexure A13 – True copy of lawyer notice dated 7^th January, 2017 issued to the 4^th respondent.

Annexure A14 – True copy of Department of Personnel & Training Office Memorandum No. 35034/1/979Estt(D) dated 4^th October, 2012.

Annexure R1 – True copy of the DOPT Om dated 13.9.2012 along with DOPT clarification.

Annexure R2 – True copy of the CAT order dated 27.3.2015.

Annexure R3 – True copy of the MCA office order dated 7.9.2015.

Annexure R4 – True copy of the speaking order of MCA dated 25.1.2017.

Annexure R5 – True copy of the DOPT order dated 15.2.2017.