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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to grant of financial upgradation under the extant schemes, the applicant has sought following reliefs:
“1.To quash the impugned order dated 28.11.2016 (communicated along with order dated 30.11.2016) and order dated 04.03.2016 (contained as Annexure No. A-1 and A-2 to this OA) with all consequential benefits.
2.To grant the applicant 2nd ACP with effect from 14.12.2007 in pay scale Rs.4000-100-6000 and thereafter, extend the benefits of 2nd MACP with effect from 01.09.2008 in view of 6th CPC.
3.To grant benefits of 3rd MACP in Grade Pay Rs. 2800/- in PB-I Rs. 5200-20200 with effect from 13.12.2013 and revise the pay and release the arrears of difference of salary on account of aforesaid exercise from the date of due till the actual date of payment.
4.Any other relief, which this Hon‟ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
5.Cost of the present case.”
The facts of the case are that the applicant was initially appointed on the post of Beldar with effect from 13.12.1983. He was granted 1st financial upgradation under the Assured Career Progression (ACP) scheme with effect from 09.08.1999. Subsequently, he was promoted to the post of Mason on 11.01.2001 in the same pay scale. He got 2nd financial upgradation under the Modified Assured Career Progression (MACP) scheme in Pay Band – I Rs. 5,200 – 20,200 with Grade Pay of Rs. 2,000 with effect from 01.09.2008. He was also granted Grade Pay of Rs. 2,400 (Selection Grade) with effect from 11.10.2009. The applicant represented on 08.10.2014 for grant of 3rd MACP after 30 years of service. Through another representation dated 17.02.2016, he requested for grant of 2nd ACP after 24 years of service from 14.12.2007 and 3rd MACP after completion of 30 years of service on 13.12.2013. His representation was rejected by the respondents vide the impugned order dated 28.11.2016. Aggrieved, the applicant has preferred this OA.
The applicants first contention is that though the respondents have rejected his representation on the ground that he did not pass Trade Test which is required for grant of 2nd ACP in terms of instructions dated 16.04.2007, he was never called to face the Trade Test by the respondents. His second contention is similarly situated employees in Electrical Wing (Umapati Mishra, Paltu Ram and Vishnu Kumar) 3rd MACP on completion of 30 years of service while he has been denied the same benefit.
The respondents state that the applicant had been granted 1st ACP irregularly as he had not passed the Trade Test by that time; however, he passed the Trade Test for Mason later and was promoted to the post of Mason on 11.10.2001. The Grade Pay was introduced as per recommendation of the 6th Central Pay Commission (CPC) and the applicant was granted Grade Pay of Rs. 1,900 (PB-I Rs. 5,200 – 20,200) with effect from 01.01.2006, accordingly. The respondents contend that the applicant is ineligible for grant of 2nd ACP with effect from 14.12.2007 as he did not pass the Trade Test for Work Assistant in terms of instructions dated 20.02.2007. They also contend that the applicant’s name was forwarded to the Departmental Test Taking Authority vide letter dated 17.09.2012 and intimation was also given to the applicant vide letter dated 09.10.2012, but the applicant did not participate in the Trade Test.
In regard to grant of 3rd MACP on completion of 30 years of service, the respondents state that the applicant was granted Grade Pay of 2,400 (Selection Grade) with effect from 11.10.2009, i.e., after 8 years of service in skilled cadre reckoned from his promotion as Mason and contend that that as the grant of Selection Grade to the applicant is considered as promotion in terms of the office memorandum (OM) dated 09.06.2011, 3rd MACP is not admissible. In respect of the cases cited by the applicant, the respondents contend that wrong application of principles by another unit of CPWD cannot be a basis for entertaining wrongful claims.
We have heard both the parties.
It is not in dispute that the applicant was granted 1st ACP with effect from 09.08.1999 and that he was promoted to the post of Mason on 11.10.2001.
The first dispute is whether the applicant entitled to 2nd ACP with effect from 14.12.2007, i.e., on completion of 24 years of service.
The respondents have stated that passing of the Trade Test for Work Assistant is essential for grant of 2nd ACP in terms of the instructions dated 20.02.2007 (Annexure No. CR-5 to the counter affidavit). Perusal of these instructions reveals that passing of Trade Test for Work Assistant is pre-requisite for grant of 2nd ACP; in fact, it has also been clarified therein that if 2nd ACP has been granted earlier without passing of the Trade Test, such benefit should be withdrawn. The instructions dated 20.02.2007 are not under challenge. Therefore, the criteria for passing of the Trade Test for Work Assistant for grant of 2nd ACP would apply in the applicant’s case.
The applicant states that he was never called upon to appear in the Trade Test. The respondents refute his assertion by relying on their letter dated 09.10.2012 (Annexure No. CR-8 to the counter affidavit). Perusal of this letter shows that it is addressed to the Assistant Engineer, Sub-Division II, III & IV, CPWD, Lucknow and a copy is endorsed to the applicant for his information and necessary action; this letter informed that Trade Test was scheduled to be held on 06.11.2012 at New Delhi and instructed the Assistant Engineer to direct the employees mentioned who were working under him to attend the Trade Test and also stated that if the employee fails to participate in the Trade Test despite direction, he shall bear responsibility for the same.
The respondents were directed to submit call letter issued to the applicant and result of the Trade Test, but they have failed to submit the documents.
In respect of the applicant’s averment that he was not called to face the Trade Test, it is noted that there is no letter on record from the Assistant Engineer directing the applicant to appear in the Trade Test; however, the letter dated 09.10.2012 intimating the applicant about the Trade Test scheduled on 06.11.2012 is on record. Even if it is assumed that the applicant was not given direction by the Assistant Engineer to appear in the Trade Test and that he did not even receive the letter dated 09.10.2012 endorsed to him, the applicant could not have been unaware of the requirement of passing the Trade Test for Work Assistant for grant of 2nd ACP in terms of the instructions dated 20.02.2007. However, notably, there is no material on record to demonstrate that the applicant ever represented for being allowed to appear in the Trade Test. It is observed that the applicant failed to exercise his right to represent for appearing in the Trade Test in terms of instructions dated 20.02.2007 and it was only in the year 2016 that he, belatedly, represented for grant of 2nd ACP to him.
The net result is that the applicant is not entitled to 2nd ACP, in our view.
The second dispute is whether the applicant entitled to 3rd MACP on completion of 30 years of service on 13.12.2013.
It is evident from the record that the applicant got 1st ACP on 09.08.1999, promotion to the post of Mason on 11.10.2001 and 2nd MACP on 01.09.2008. Further, he was granted Selection Grade on 11.10.2009 in terms of OM dated 09.06.2011. Perusal of this OM shows that it is titled „Grant of Selection Grade after completion of 8 years of service to the skilled categories of work charged staff of CPWD - CM Application No. 99/2001 in Court Case No. 295/1993 in WP(C) No. 2792/1988 filed by All India CPWD Employees Union reg.‟ and it grants Selection Grade after completion of 8 years of regular service in skilled category to specified left over skilled categories, including, Mason. There is no indication in the OM dated 09.06.2011 whether the grant of Selection Grade is financial upgradation or promotion. However, whichever way the grant of Selection Grade to the applicant on 11.10.2009 is viewed, it appears to us that the applicant would not be entitled to 3rd MACP for having earned Selection Grade after grant of 2nd MACP.
Though the applicant has cited certain cases where 3rd MACP has been granted to employees in Electrical Wing, we are in agreement with the respondents that the benefits granted erroneously to some employees cannot form a basis for claim for similar dispensation by the applicant for the reason that Article 14 of the Constitution does not envisage negative equality [State of Orissa & Anr vs Mamata Mohanty (2011) 3 SCC 436].
In conclusion, the applicant has failed to make out a case for grant of the reliefs prayed for.
In view of the foregoing, this OA is dismissed for being devoid of merit.
Associated MAs also stand disposed of.
Parties shall bear their own costs.