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Judgment
By Justice Rajiv Joshi, Member (J.):-
Heard Shri Ashutosh Sharma, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents at the time of hearing of case.
The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:-
8 (i) This Hon’ble Tribunal may graciously be pleased to quash the order dated 28.12.2003 and 31.12.2013.
(i-a) This Hon’ble Tribunal may graciously be pleased to quashed the order dated 24/27.12.2014 passed by the respondents and to refund the amount to the applicant along with 18 % interest which has already recovered from the applicant.
(i-b) This Hon’ble Tribunal may graciously be pleased to quash the order dataed 05.12.2013 passed by the respondents.
(ii)This Hon’ble Tribunal may graciously be pleased to give the benefit of 2nd ACP w.e.f. 13.01.2008 in Grade Pay of Rs.4200/-whichever given by the respondent-3 vide order dated 28.07.2013.
(iii)This Hon’ble Tribunal may graciously be pleased to give arrears and interest w.e.f. 13.01.2008.
(iv)To pass any other which this Hon’ble Tribunal deems fit under the circumstances of the case.
During the pendency of the original application, the sole applicant died and was substituted by his legal heirs.
The facts leading to the filing of the present Original Application, as apparent from the record, are that the original applicant was appointed as a Durwan in a Group-D post under respondent -3 on 14.01.1984. On 14.01.1985, his trade was changed, and he was posted as a Labourer in the same pay grade. Subsequently, on 11.04.1987, he was posted to the post of Semi-Skilled Line Mistry. Thereafter, he was placed in the Skilled Category on 02.05.1990. On 19.04.2005, he was placed in the Highly Skilled category in the pay scale of Rs. 4000-100-6000/-. Following the implementation of the Sixth Central Pay Commission, his pay was revised to the pay band of Rs. 5200-20200/- with Grade Pay of Rs. 2400/-.
On 29.11.2010, the original applicant submitted a representation to the respondents seeking the benefit of the second financial upgradation under the Assured Career Progression (ACP) Scheme with effect from 13.01.2008. He also pointed out that similarly situated employees had been granted the benefit of the second ACP.
Subsequently, vide letter dated 22.01.2011, the Joint General Manager informed the original applicant that he had been granted the benefit of the second financial upgradation under the Modified Assured Career Progression (MACP) Scheme in the Grade Pay of Rs. 2800/- upon completion of 24 years of service. However, respondent No. 2 issued a letter stating that a clarification from the Department of Personnel and Training (DoPT) was awaited and that efforts were being made to resolve the matter at the earliest. In the meantime, it was clarified by the DoPT, vide its Office Memorandum dated 09.09.2010, that the benefit of the second ACP in the revised pay structure could be extended with effect from the date of completion of 24 years of service in cases where the entitlement to ACP fell due during the period from 01.01.2006 to 31.08.2008.
Meanwhile, the Under Secretary to the Government of India issued a letter dated 01.12.2010 stating that, while carrying out the restructuring in accordance with the Ministry of Defence letter of even number dated 14.06.2010, the financial upgradation in the pay scale of Rs. 5000-8000/- granted to Highly Skilled Workers in the pay scale of Rs. 4000-6000/- during the period from 01.01.2006 to 31.08.2008 under the ACP Scheme of August 1999 would not be withdrawn, as a one-time measure.
The original applicant again submitted a representation to respondent No. 2 on 11.07.2011, requesting the grant of the second ACP with effect from 13.01.2008. Subsequently, on 02.02.2012, the office of the Principal Controller of Accounts (Factories), Kolkata, issued a letter concerning the ACP Scheme. It was stated therein that, in terms of paragraph 2(ii) of the Ministry of Defence order dated 01.12.2010, the financial upgradation in the pay scale of Rs. 5000-8000/- granted to Highly Skilled Workers in the pay scale of Rs. 4000-6000/- during the period from 01.01.2006 to 31.08.2008 under the ACP Scheme of August 1999 would not be withdrawn as a one-time measure.
Thereafter, vide letter dated 07.05.2012, the Principal Controller of Accounts (Factories), Kolkata, clarified that all affected Highly Skilled Workers in the pay scale of Rs. 4000-6000/- who had been granted non-functional financial upgradation in the pay scale of Rs. 5000-8000/-during the period from 01.01.2006 to 31.08.2008 should be allowed to draw pay in Pay Band-2 with Grade Pay of Rs. 4200/-, and their pay should be calculated by taking Rs. 5000/- as the minimum of the corresponding pre-revised pay scale. It was, however, clarified that this benefit was exceptional in nature and could not be extended as a general precedent in subsequent cases.
In view of the aforesaid clarification, the original applicant submitted a representation to respondent No. 3 seeking the benefit of the second ACP with effect from 13.01.2008 in the Grade Pay of Rs. 4200/-. Accordingly, respondent No. 3, vide order dated 28.07.2012, granted the original applicant the benefit of the second ACP in the Grade Pay of Rs. 4200/-. Subsequently, vide letter dated 24.09.2012, respondent No. 3 sought the option of the original applicant regarding pay fixation. The original applicant exercised the requisite option, and, vide order dated 17.11.2012, his pay was fixed in the Grade Pay of Rs. 4200/-.
As the arrears arising out of the aforesaid pay fixation were not paid to the original applicant, he submitted a representation to the respondents on 28.12.2013, requesting payment of arrears with effect from 13.01.2008. However, vide order dated 05.12.2013, the respondents informed the General Manager, Ordnance Equipment Factory, Hazratpur, that, in cases where employees had completed 12 or 24 years of service during the period from 01.01.2006 to 31.08.2008, the first ACP would be admissible in the Grade Pay of Rs. 2400/- and the second ACP in the Grade Pay of Rs. 2800/-.
In view of the aforesaid clarification, respondent No. 3, vide order dated 28.12.2013, cancelled and withdrew the benefit of the second ACP in the Grade Pay of Rs. 4200/- that had earlier been granted to the original applicant vide order dated 28.07.2012. Thereafter, vide order dated 31.12.2013, respondent No. 3 granted the original applicant the benefit of the second ACP in the Grade Pay of Rs. 2800/- with effect from 13.01.2008 under the ACP Scheme.
Subsequently, vide letter dated 24/27.12.2014, the respondents ordered the recovery of an excess amount of Rs. 21,137/-paid to the original applicant on account of the second ACP in the Grade Pay of Rs. 4200/-. The said amount was recovered in five monthly instalments from December 2014 to April 2015.
Aggrieved by the orders dated 28.12.2013, 31.12.2013, 05.12.2013 and 24/27.12.2014, the original applicant approached this Tribunal by filing the present Original Application.
On the other hand, counter affidavit has been filed from the side of the respondents on 16.07.2014, wherein it has been stated that the original applicant was promoted from the post of Labourer (Unskilled) to the post of Line Mistry (Semi-Skilled) and, accordingly, he was not granted the benefit of the first ACP on 09.08.1999. Under the ACP Scheme, 1999, the placement of the original applicant from Line Mistry (Semi-Skilled) to Line Mistry (Skilled) was treated as a placement and not as a promotion. Thereafter, the original applicant was promoted to the post of Line Mistry (Highly Skilled) on 19.04.2005. Thus, upon completion of 24 years of service, the original applicant had already earned two promotions, namely, one from Labourer (Unskilled) to Line Mistry (Semi-Skilled) and the other from Line Mistry (Skilled) to Line Mistry (Highly Skilled). Consequently, he was not granted the second ACP in the pre-revised pay scale of Rs. 5000-150-8000/- in accordance with the ACP Guidelines of August 1999.
It has further been stated that the original applicant is claiming the benefit of the second ACP in the Grade Pay of Rs. 4200/- on the basis of the letter dated 22.09.2011 issued by the Ordnance Factory Board, wherein the movement from the Unskilled to the Semi-Skilled category was allegedly ignored for the purpose of granting the benefit of ACP, as reflected in the letter dated 07.02.2012. The Ordnance Factory Board, Kolkata, vide letter dated 05.12.2013, clarified that, following the restructuring of the cadre of Industrial Employees with effect from 14.06.2010, the promotional hierarchy for Industrial Employees was as follows:
Semi-Skilled — Grade Pay of Rs. 1900/-;
Highly Skilled-II — Grade Pay of Rs. 2400/-;
Highly Skilled-I — Grade Pay of Rs. 2800/-; and
Master Craftsman (MCM) — Grade Pay of Rs. 4200/-.
In view of the aforesaid restructuring, it was clarified that, in cases where employees completed 12 or 24 years of service during the period from 01.01.2006 to 31.08.2008, the first ACP would be admissible in the Grade Pay of Rs. 2400/- and the second ACP in the Grade Pay of Rs. 2800/-. Accordingly, the original applicant was granted the benefit of the second ACP in the Grade Pay of Rs. 2800/-.
The respondents have further stated in the counter affidavit that, although the original applicant has relied upon the Ministry of Defence letter dated 01.12.2010 to claim the benefit of the second ACP in the Grade Pay of Rs. 4200/- as a one-time measure, the same letter also stipulated that promotion from Highly Skilled-II (Grade Pay of Rs. 2400/-) to Highly Skilled-I (Grade Pay of Rs. 2800/-) would be treated as a promotion for the purpose of the ACP Scheme. The one-time relaxation was applicable only to those employees who had already been granted financial upgradation under the ACP Scheme in the pay scale of Rs. 5000-150-8000/- prior to the cadre restructuring dated 14.06.2010. Accordingly, the respondents have contended that the original applicant was not entitled to the benefit claimed by him and that the Original Application is liable to be dismissed.
Rejoinder affidavit has been filed from the side of the applicant on 11.09.2026, wherein the applicant reiterated the same averment as has been made in Original Application.
Learned counsel for the applicant submitted that the original applicant was entitled to the benefit of the second ACP in the Grade Pay of Rs. 4200/- with effect from 13.01.2008, in view of the relevant clarifications issued by the Ministry of Defence and the Ordnance Factory Board. The respondents had initially granted the said benefit vide order dated 28.07.2012 but subsequently withdrew the same and granted the second ACP in the Grade Pay of Rs. 2800/- vide orders dated 28.12.2013 and 31.12.2013, which is illegal and arbitrary.
Learned counsel for the applicant further submitted that the respondents had ordered recovery of Rs. 21,137/- from the original applicant without affording him any opportunity of hearing. The original applicant belonged to Group-D and that the recovery of the alleged excess payment, made pursuant to the orders of the respondents themselves, was impermissible in law. Accordingly, learned counsel prayed that the impugned orders be set aside and the amount recovered be refunded to the legal heirs of the deceased applicant..
Per contra, learned counsel for the respondents submitted that in terms of the applicable ACP Guidelines and the clarification issued by the Ordnance Factory Board vide letter dated 05.12.2013, the original applicant was entitled to the second ACP only in the Grade Pay of Rs. 2800/-. Accordingly, the earlier benefit granted in the Grade Pay of Rs. 4200/- was withdrawn, and the excess amount of Rs. 21,137/- paid to him was recovered. The respondents, therefore, contended that the impugned orders were passed in accordance with the applicable rules and guidelines and that the Original Application is liable to be dismissed.
W have considered the submissions so raised by the learned counsel for the parties and perused the records.
From the records, it appears that the following issues arise for consideration
Whether the original applicant was entitled to the benefit of the second ACP in the Grade Pay of Rs. 4200/- with effect from 13.01.2008, or whether the respondents were justified in restricting the said benefit to the Grade Pay of Rs. 2800/-?
Whether the respondents were justified in withdrawing the benefit of the second ACP in the Grade Pay of Rs. 4200/- and recovering the excess amount of Rs. 21,137/- paid to the original applicant?
So far as the first issue is concerned, we have carefully considered the rival submissions advanced by learned counsel for the parties and perused the material available on record. The principal contention of the applicants is that the original applicant was entitled to the benefit of the second ACP in the Grade Pay of Rs. 4200/- with effect from 13.01.2008, particularly in view of the clarifications issued by the Ministry of Defence and the Ordnance Factory Board. On the other hand, the respondents have contended that the original applicant had already earned two promotions during his service and, in terms of the applicable ACP Scheme and the subsequent clarification issued by the competent authority, he was entitled to the second ACP only in the Grade Pay of Rs. 2800/-.
From the facts available on record, it is evident that the original applicant was initially appointed as a Durwan in a Group-D post on 14.01.1984. Subsequently, he was posted as a Labourer (Unskilled), followed by his placement as Line Mistry (Semi-Skilled) and thereafter in the Skilled Category. He was subsequently placed in the Highly Skilled category on 19.04.2005. The respondents have specifically contended that the movement of the original applicant from Labourer (Unskilled) to Line Mistry (Semi-Skilled) and his subsequent progression to the Highly Skilled category had to be considered in determining his entitlement under the ACP Scheme, 1999. Therefore, the applicant's entitlement to financial upgradation was required to be assessed in the light of his service progression and the applicable scheme, rather than merely on the basis of the number of years of service rendered by him.
It is further evident that, pursuant to the cadre restructuring of Industrial Employees with effect from 14.06.2010, the promotional hierarchy was prescribed as Semi-Skilled (Grade Pay of Rs. 1900/-), Highly Skilled-II (Grade Pay of Rs. 2400/-), Highly Skilled-I (Grade Pay of Rs. 2800/-) and Master Craftsman (Grade Pay of Rs. 4200/-). The respondents, relying upon the clarification issued by the Ordnance Factory Board vide letter dated 05.12.2013, have maintained that, in cases where employees completed 12 or 24 years of service during the relevant period, the first and second financial upgradations under the ACP Scheme were admissible in the Grade Pays of Rs. 2400/- and Rs. 2800/-, respectively. Accordingly, the original applicant was granted the second ACP in the Grade Pay of Rs. 2800/- with effect from 13.01.2008.
It is true that the respondents had initially granted the original applicant the benefit of the second ACP in the Grade Pay of Rs. 4200/-vide order dated 28.07.2012 and subsequently fixed his pay accordingly. However, the mere fact that such a benefit was initially extended by the respondents does not, by itself, create an indefeasible right in favour of the original applicant to continue receiving the same, if, upon subsequent examination, it is found to be contrary to the applicable scheme and the clarifications issued by the competent authority. The subsequent withdrawal of the earlier benefit was based on the clarification dated 05.12.2013, whereunder the respondents reconsidered the applicant's entitlement and restricted the second ACP to the Grade Pay of Rs. 2800/-.
We are, therefore, of the considered view that the grant of financial upgradation under the ACP Scheme is governed by the conditions prescribed under the scheme and cannot be claimed solely on the basis of an earlier erroneous fixation. The applicants have not been able to demonstrate, by reference to any specific provision of the ACP Scheme or any binding clarification applicable to the original applicant, that he was entitled to the second ACP in the Grade Pay of Rs. 4200/- with effect from 13.01.2008. Nor has any material been brought on record to establish that the respondents' subsequent decision to restrict the benefit to the Grade Pay of Rs. 2800/- was contrary to the applicable rules. In these circumstances, we find no sufficient ground to interfere with the respondents' decision in this regard. Accordingly, the first issue is answered against the original applicants.
As regards the second issue, the record reveals that the benefit of the second ACP in the Grade Pay of Rs. 4200/- was mistakenly granted by the respondents and that the original applicant received the benefit of the higher Grade Pay for only a short period of approximately three to four months. Upon detection of the mistake, the respondents corrected the pay fixation and ordered recovery of the excess amount of Rs. 21,137/-. The original applicant was in service when the erroneous benefit was granted and the subsequent correction and recovery were undertaken during the service period itself. We have also considered the contention that the original applicant belonged to Group-D and that the recovery was ordered without affording him an opportunity of hearing. However, the mere absence of a separate opportunity of hearing would not, in every case, automatically invalidate a correction of pay fixation, particularly where the issue concerns the implementation of the applicable ACP Scheme.
In view of the above discussions, no interference is warranted in this original application as there is no illegality or infirmity in the impugned orders. Accordingly, instant original application stands dismissed.
No order as to costs.
All MAs pending in this O.A. also stand disposed off.