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Judgment
ORDER
Per: Sangam Narain Srivastava, Member (A)
The applicants have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
“8(a) Quash and set aside the impugned communication dated 29.07.2016 (Annx. Al) and thereby direct the respondents to grant 1st and 2nd financial upgradation under MACP scheme on completion of 10 and 20 years of regular service in terms of Rly. Board letter dated 10.06.2009 (Annx. A4) as stated in their representations along with all consequential financial benefits.
8(b) Declare and hold that the applicants are entitled to the benefits of MACP and the earlier promotion /upgradation given in the same Pay Band and same Grade Pay will not be a hindrance to the grant of such benefits.
8(c) Grant any other relief deemed fit and proper in the facts and circumstances of the case including costs”.
The facts, as narrated by the applicants, are that the applicants were appointed as Permanent Way Mistry (PWM) and are all working as Senior Section Engineer/PW in South East Central Railway, Nagpur Division. The applicants are aggrieved by the order dated 29th July, 2016 (Annexure A-1) passed by Respondent No.2 refusing to grant the benefit of MACP by ignoring the merger of cadres of Senior Permanent Way Supervisor
It is submitted that the applicants were initially appointed as PWM in the Pay Scale of Rs. 4500-7000 and were absorbed / upgraded as Senior Permanent Way Supervisor (SPWS) in Grade Pay Rs. 4200/- w.e.f. 22nd March, 2007. The applicants holding the post of SPWS were re-designated as JE/PW vide order dated 03rd July, 2013 (Annexure A-3). With the merger of the post of SPWS with that of JE/PW, the post of SPWS ceased to exist in the Railway Department.
It is submitted that the Government of India had initially introduced an Assured Career Progression (ACP) Scheme, under which two financial upgradations were made admissible in a span of 24 years. The said ACP was replaced by Modified Assured Career Progression (MACP) Scheme, whereby three financial upgradations are made available, counted from the direct entry grade on completion of 10, 20 & 30 years of service respectively. Financial upgradation under the Scheme is admissible whenever an employee has spent 10 years continuously in the same Grade Pay.
It is further submitted that as per MACP Scheme, the applicants were entitled to the grant of first financial upgradation on completion of 10 years of regular service and second financial upgradation on completion of 20 years of regular service. However, the respondents failed to grant 1st MACP to the applicants in Grade Pay Rs.4600/- on completion of 10 years of regular service. The applicants were, however, granted the 2nd MACP in Grade Pay Rs.4600/- w.e.f. 01st November, 2013 vide order dated 04th March, 2014 (Annexure A-5).
It is submitted that being, aggrieved by the non-consideration of their legitimate claim for proper financial upgradation under the MACP Scheme, the applicants made a detailed representation to Respondent No.2, stating that as per the Railway Board's own order issued under RBE No. 101/2009, promotion earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/ upgradation of posts shall be ignored for the purpose of granting financial up-gradation under the MACP Scheme. As a result of the merger of the post of SPWS with that of JE/PW, the direct entry grade became JE (P.Way). Therefore, the promotion of applicants from SPWS to JE (P. Way) ought to have been ignored for the purpose of granting the financial upgradation under MACP Scheme. The applicants have demonstrated that they are entitled to the 1st MACP in Grade Pay Rs. 4600/- and the 2nd MACP in Grade Pay Rs. 4800/- on completion of 10 years and 20 years of service, respectively.
It is contended that Respondent No.2, vide letter dated 23rd May, 2016 (Annexure A7) forwarded the legitimate claims of the applicants to the Chief Personnel Officer, Bilaspur.
It is further contended that the applicants are fully covered by paragraph 5 of the MACP Scheme circulated under the Railway Board’s letter dated 10th June, 2009 (Annexure A4) which reads as under:
"5.Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPs.
Illustration:
The pre-revised hierarchy (in ascending order) in a particular organization was as follows: Rs. 5000-8000, Rs. 5500-9000 & Rs. 6500-10500.
(a)A Railway servant who was recruited in the hierarchy in the pre-revised pay scale Rs. 5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006, he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre-revised scales of Rs. 5500-9000 and Rs. 6500-10500.
(b)Another Railway servant in the same hierarchy in the pre-revised scale of Rs. 5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs. 5500-9000 & Rs. 6500-10500
In the case of both (a) and (b) above, the promotions / financial upgradations granted under ACP to the pre-revised scales of Rs. 5500-9000 and 6500-10500 prior to 1.1.2006 will be ignored because merger of the pre-revised scales of Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500-10500 recommended by the Sixth CPC. As per the RS(RP) Rules, both will be granted Grade Pay of Rs. 4200 in the Pay Band PB-2. After the implementation of MACPS, two financial up-gradations will be granted both in the case of (a) and (b) above to the next higher Grade Pays of Rs. 4600 and Rs. 4800 in the Pay Band PB-2."
It is submitted that the DOPT, in its clarification to the Frequently Asked Questions (FAQs) on the MACP Scheme, has declared that the cases of pre-revised pay scales merged w.e.f. 01st January, 2006 would be regulated in accordance with paragraph 5 of Annexure-1 to the MACP Scheme (Annexure A-8).
It is further submitted that Respondent No.2 vide the impugned order dated 29th July, 2016 (Annexure Al) rejected the legitimate claim of the applicants in contravention of the MACP Scheme circulated under the Railway Board’s letter dated 10th June, 2009. It is submitted that the applicants were initially appointed as PWM and were absorbed/upgraded as Senior Permanent Way Supervisor (SPWS) and were subsequently re-designated as JE/PW vide order dated 03rd July, 2013. With the merger of the post of SPWS with that of JE/PW, it is emphatically reiterated that the promotions earned/upgradations granted in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts are required to be ignored for the purpose of granting financial upgradations under the MACP scheme.
It is further submitted that the impugned order passed by Respondent no.2 also makes a reference to Rule 1313 (1) RII of the Railway Establishment Code. It is submitted that the said Rule has no bearing or applicability to the facts of the present case, as it deals with employees who were granted functional promotion on assuming higher responsibilities. The applicants are fully covered by the judgment relied upon. The impugned action of Respondent No.2 is in complete defiance of the directions issued by the Tribunal. Consequently, the impugned order passed by Respondent No.2 is wholly illegal and unsustainable in law. The order dated 11th April, 2012 passed by the Ernakulam Bench of this Tribunal is annexed at Annexure A9.
It is submitted that some of the applicants’ identically situated colleagues had filed an Original Application Nos.2128/2012, 336/2015, 2012/2015, 2219/2012, 2238/2012 & 544/2014 on the very same issue, which was allowed by this Tribunal on 13th June, 2017. The operative part of which is reproduced below:
"……..13. In view of the clear and unequivocal principles laid down in the judgment of the Ernakulam Bench of this Tribunal dated 22.02.2012 in OA No. 484/2011, we hold that the applicants in the present OAs are entitled to the benefits of MACP and the earlier promotions given in the same Pay Band and same Grade Pay will not be a hindrance to the grant of such benefits. Since the applicants got their promotions in different stages, the respondents need to determine their eligibility individually for financial upgradation under MACP following the above principle. They are directed to adopt the judgment of the Ernakulam Bench of this Tribunal dated 22.11.2012 in OA No. 484/2011 and grant the appropriate MACP benefits to the applicants by passing necessary orders within a period of twelve weeks from the date of receipt of this order."
It is submitted that the applicants are fully covered by the aforesaid judgment. Hence, this Original Application.
Respondents have filed their reply contending that all the applicants are presently working as Senior Section Engineers/PW(S) in the Nagpur Division of South East Central Railway (SECR). It is submitted that all the applicants, who were appointed as PWS/PWMs in the pay scale of Rs.4500-7000/- were absorbed as Senior PWS in the pay scale of Rs. 5000-8000/- with effect from 22nd March, 2007 in terms of Establishment Rule No. 157/2007.
It is further submitted that these Senior PWS in Grade Pay of Rs.4200/- were further upgraded as Junior Engineer (PW) in Grade Pay Rs. 4200/- with effect from 3rd July, 2013 in terms of Establishment Rule No. 106/2013. Consequently, the category of Senior PWS was abolished w.e.f. 3rd July, 2013 and all the applicants were promoted as JE/PW irrespective of any promotional benchmark, that is, without considering any promotional benchmark, not service records or Annual Performance Appraisal Reports (APARs).
It is further submitted in paragraph 3 of the reply of the respondents that the applicants were granted the benefit of fixation in terms of Establishment Rule No. 148/2013 and Rule 13(i) of Railway Services (Revised Pay) Rules, 2008. The pay fixation benefit granted on the merger/upgradation from the grade of Senior PWS to JE/PW has been treated as a promotion for the purpose of grant of benefits under the Modified Assured Career Progression Scheme (MACP). In this context, certain references have been relied upon, which are elucidated as under:
“(i)Annexure-8 to Establishment Rule No.138/2009 -Promotions earned in the post carrying the same Grade Pay in the promotional hierarchy as per the Recruitment Rules shall be counted for the purpose of MACPS. In the case of the applicants, Central Administrative TribunalPWS/PWM/Senior PWS are artisan category and JE/PW belongs to the Supervisory category from which the promotional channel up to ADEN/Sr. ADEN starts. These Senior PWS are entering in the promotional channel without any benchmark.
(ii)The Chief Personnel Officer, SECR, Bilaspur, vide letter No. P-HQ/RUL/150/9/1681 dated 20th October, 2017 (F/9) interpreting Annexures 5 and 8 of Estt. Rule No.138/2009, clarified that reading of Paragraphs 5 and 8 may give rise to an impression that they contradict each other. But that is not so for the below mentioned reasons:
(a)Paragraph 5 to those posts which had different scales of pay prior to 6th Central Pay Commission and formed an avenue of promotions from lower grade to another. For example, post of Junior Engineer Grade-II (in 5000–8000 pre-revised scale) and Junior Engineer Grade-I (in 5500–9000 pre-revised scale), which were in hierarchy of promotion are now merged into one grade, namely PB-2 + Grade Pay Rs.4200/-, with effect from 01st January, 2006. Therefore, after 01st January, 2006, there cannot be any promotion from JE-II to JE-I for simple reasons that post of JE-I does not exist after 01st January, 2026.
(b)On the other hand, Paragraph 8 provides that if the posts existed in the same Grade Pay and form a hierarchy of promotion, then the promotion earned in such hierarchy will continue to be reckoned as promotion for the purpose of Central Administrative Tribunalcounting three promotions under MACPS. For example, after 6th Pay Commission implementation, Station Masters in PB-2 with Grade Pay Rs. 4200/- have a hierarchy of promotion as Section Controller in the same PB and Grade Pay. A Station Master being promoted as Section Controller under this hierarchy is deemed to have earned a promotion though both the grades are same. In this case both the categories, i.e. Station Master in GP 4200 and Section Controller in GP 4200 continue to exist and their promotions are possible from one post to another post.
(c)It is wrong to presume that the word 'promotion' always carries with it a monitory advantage by way of placing in higher Grade Pay/post. This is not always so. A promotion can be to a post of same GP or to post not carrying higher duties and responsibilities, etc. A Station Master in GP 4200 has an option to further promotion to the post having GP 4600 in his own department or he can choose to volunteer for promotion to Section Con-troller in the same Grade Pay, namely 4200. It is a choice which has to be made by him.
(d)Therefore, a Station Master in the pre-revised scale of 5000-8000/ PB-2, GP 4200 getting selected as Station Controller in PB-2, Grade Pay is deemed to have secured one promotion. This promotion Central Administrative Tribunalcannot be ignored for the purpose of granting MACPS.
(iii)Estt. Rule No. 38/2013 at f/16 & Sr. DFM/NGP's letter dated 11-4-2014 clearly states that "where benefit of pay protection have been allowed at the time of unilateral transfer to other organization/unit and thus the employee had carried the financial benefit of promotions, the promotion earned in previous organization has to be reckoned for the purpose of MACP Scheme."
In view of the above, it can be safely assumed that the staff has already been allowed three financial up-gradation by means of conditions described vide Item No. 3,4 and 5 as such the benefit of MACPs allowed to the staff vide reference seems not applicable in the instant case and the bill for payment of arrears to the tune of Rs. 20,644/- is returned herewith.
(iv)The Chief Personnel Officer, SECR; Bilaspur's letter no. HQ/RUL/105/9/1158 interpreting Annexure 8 of Estt. Rule No. 138/2009 dated 29-11-2010 has clarified that since PWS have been upgraded to the category of Sr. PWS through Promotion through modified selection procedure and the benefit of pay fixation under Rule 1313(1) (a) (I), R-II has also been extended in such promotions, it will be reckoned for the purpose of granting the benefit of financial upgradation under MACPS.
Similarly, the category of JE-II falls in the normal channel of promotion of Sr. PWS and benefit of pay fixation under Rule 1313(1) (a) (I), R-II is also granted in such promotions, hence, as per para 8 of annexure to RBE No. 101/09 (Estt. Rule No. 138/09), it will be reckoned for the purpose of granting the benefit of financial upgradation.”
It is submitted that all the applicants were promoted as Junior Engineer w.e.f. 1st November, 2003 in Grade Pay Rs.4200/-. On completion of ten years from that date, they were granted MACP in Grade Pay Rs.4600/- vide letter dated 4th March, 2014 (Annexure-A5). However, they were subsequently promoted as SSE(PW) in Grade Pay Rs.4600/-, albeit office order in that regard were issued at a later date, giving effect to the promotion from 03rd July, 2013 consequent upon the merger of the posts of Senior PWS and JE(PW).
It is submitted that the representations made individually by the applicants (Annexure A-6) and the forwarding of their claims to the Chief Personnel Officer, SECR, Bilaspur (Annexure A-7) being matters of record, are not disputed. It is, however, denied that the applicants have demonstrated that they are entitled to the 1st MACP in Grade Pay Rs. 4600/- and the 2nd MACP in Grade Pay Rs.4800/- on completion of 10 years and 20 years of service, respectively. It is submitted that, after due consultation with and upon obtaining instructions from the Chief Personnel Officer, SECR, Bilaspur, a consolidated reply to all the representations was communicated to the applicants vide letter dated 29th July, 2016.
It is submitted that Paragraph 5 of the MACP Scheme along with the illustration appended thereto, are matters of record. However, it is denied that the applicants are fully covered by
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paragraph 5 of the MACP Scheme circulated under the Railway Board's letter dated 10th June, 2009.
It is denied that the case of the applicants is governed by paragraph 5 of Annexure-I to the MACP Scheme. It is submitted that the case of the applicants is covered by Points Nos. 8 and 24 of the said Annexure. It is further denied that Point No.15 has any relevance to the present issue.
It is submitted that Respondent No.2 has rightly rejected the claim of the applicants. It is specifically denied that promotions earned/upgradations granted in the past to those grades which now carry the same Grade Pay due to the merger of pay scales/upgradation of posts are required to be ignored while granting financial upgradations under the MACP Scheme.
It is submitted that Respondent No.2 has rightly invoked and applied Rule 1313(1), R-II of the Railway
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Establishment Code. Respondents denied that the impugned order passed by Respondent No.2 is wholly illegal or unsustainable. It is further denied that the order dated 11th April, 2012 passed by the Ernakulam Bench of this Tribunal (Annexure A-9) and the order dated 13th July, 2017 passed by this Tribunal (Annexure A-10) are applicable to the case of the applicants. It is submitted that the case of the applicants cannot be equated with that of the Loco Pilots, inasmuch as, in the present case, the applicants moved from the artisan cadre to the supervisory cadre, thereby opening a promotional avenue to the officers' cadre, and they were also granted the benefit of pay fixation.
We have heard the learned counsel for the applicants and the learned counsel for the respondents and have perused the pleadings and material placed on record.
Undisputed facts are that the applicants were appointed as Permanent Way Mistry (PWM) in the Pay Scale of 4500-7000. They were absorbed/upgraded as Senior Permanent
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Way Supervisor (SPWS) in the Grade Pay of Rs.4200/-. Vide Ministry of Railways letter dated 3rd July, 2013, it was decided that all regular posts of Senior Permanent Way Supervisors in the Grade Pay of Rs.4200/- would be merged en bloc with the cadre of Junior Engineer (P. Way).
It is the contention of the applicants that the respondents failed to grant them the first MACP in the Grade Pay of Rs.4600/- on completion of 10 years of regular service. It is also submitted that the respondents granted them the second MACP in the Grade Pay of Rs.4600/- with effect from 1st November, 2013. Relying upon Clause 5 of the MACP Scheme, it is contended by the applicants that the promotion earned/upgradation granted under the ACP Scheme in the past to those grades which, on account of merger of pay scales/upgradation of posts, now carry the same Grade Pay, is to be ignored for the purpose of granting financial upgradation under the MACP Scheme. It is argued that after the merger of SPWS with Junior Engineer (P. Way), the direct-entry grade for the applicants is Junior Engineer (P. Way), and therefore,
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their promotion from SPWS to Junior Engineer (P.Way) ought to be ignored for the purpose of granting financial upgradation under the MACP Scheme. Accordingly, it is argued that the applicants are entitled to the first MACP in the Grade Pay of Rs. 4600/- and second MACP in the Grade Pay of Rs. 4800/- on completion of 10 years and 20 years of service respectively. The applicants have also submitted that the DoPT, in its clarification on the MACPS, has declared that cases involving pre-revised Pay Scales merged with effect from 1st January, 2006, would be regulated in accordance with paragraph 5 of the MACP Scheme.
The applicants have relied on the decision of the Ernakulam Bench of this Tribunal in OA No. 484 of 2011 dated 22nd February, 2012, as also the decision of the Jabalpur Bench of this Tribunal (sitting at Bilaspur) in OA 428 of 2015. It was submitted that the decision in OA 428/2015 of the Jabalpur Bench has been implemented by the respondents, i.e., the Railway authorities. Reliance has been placed on the decision of the Mumbai Bench of this Tribunal, Camp at Nagpur, in OA 2182/2012.
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The respondents, on the other hand, have argued that Junior Engineer (P. Way) was the promotional post for SPWS and the benefit of pay fixation was granted to the applicants on merger/upgradation from SPWS to Junior Engineer (P. Way), and, therefore, the said merger is required to be treated as a promotion. It was argued that the applicants would not be covered by clause 5 of the MACP Scheme but by paragraph 8 of the MACP Scheme, which provides that promotion to a post carrying the same Grade Pay is to be counted for the purpose of MACPS. It was, therefore, submitted that the applicants are not eligible for grant of the first MACP. It was further submitted that the respondents have granted the 2nd MACPS to the applicants in the Grade Pay of Rs.4600/- vide order dated 4th March, 2014, with effect from 1st November, 2013. It was also submitted that the applicants are not similarly situated as the applicants in the OAs relied upon by them.
We have given thoughtful consideration to the submissions made by the learned counsel for the applicants and learned counsel for the respondents and have perused the
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pleadings on record.
Since the applicants have relied upon Clause 5 of the MACP Scheme to advance their claim of 1st MACP and the respondents have relied on Clause 8 to deny the claim, it would be pertinent to reproduce these 2 clauses:
"(5). Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
Illustration The pre-revised hierarchy (in ascending order) in a particular organization was as follows:
Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500.
A Railway servant who was recruited in the hierarchy in the pre-revised pay scale Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006, he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre-revised scales of
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Rs.5500-9000 and Rs.6500-10500.
Another Railway servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 & Rs.6500-10500 during this period.
In the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 recommended by the Sixth CPC. As per the RS(RP) Rules, both of them will be granted Grade Pay of Rs.4200 in the pay band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs. 4600 and Rs.4800 in the Pay Band PB-2.
xxx xxx xxx (8) Promotions earned in the post carrying same Grade Pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS".
From a bare reading of Clause 5, on which the applicants rely, it is clear that the said provision operates only when
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the merger of pay scales/upgradation of posts to which promotions were earned/upgradations granted under ACPs is recommended by the 6th Pay Commission. In the present case, as can be observed, the merger of SPWS with Junior Engineer (P. Way) was not on account of the recommendations of the 6th Pay Commission, but was a decision of the Ministry of Railways, i.e., it was on account of restructuring. Therefore, in our opinion, Clause 5 has no application to the facts of the case before us.
It has been submitted by the respondents that on merger of the posts of SPWS and Junior Engineer (P. Way), the applicants were granted the benefit of pay fixation. This has not been denied by the applicants. The said merger was granted with effect from 01st November, 2003, i.e., prior to the 6th CPC. Since the benefit of pay fixation was granted and the post of Junior Engineer (P. Way) was the next promotional post to SPWS, it is required to be counted as a promotion as the upgradation/merger was not recommended by the 6th CPC. The applicants were thereafter granted the 2nd MACP after 10 years from 01st November, 2003, i.e., on 01st November, 2013. No fault can, therefore, be found with the action of the respondents and no interference is called for.
Learned counsel for the applicants has also relied upon the decision of the Principal Bench of this Tribunal in OA No.2815 of 2015, Ernakulam Bench of this Tribunal in OA No.484 of 2011, etc. In all the decisions relied upon by the applicants, the merger of pay scales had been recommended by the 6th Central Pay Commission, which is not the position in the case of the applicants. The merger/upgradation to the post of Junior Engineer (P. Way) was by way of a restructuring prior to the 6th CPC. The applicants therefore, stand on a different footing from the applicants in the OAs relied upon by them. The said decisions in those OAs are, therefore, not applicable to the facts of the present case.
In view of the foregoing discussion, the Original Application, being devoid of merit, is dismissed. Pending MAs, if any, stand closed. No costs.