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Judgment
ORDER
By Hon’ble Mr. Justice Om Praksh VII, Member (J)
Shri S.K. Vishwakarma, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents, are present.
The instant original application has been filed seeking following relief:
“I. Hold and declare that the applicants are entitled to be placed and have their pay fixed in the non functional grade pay of Rs.5,400/- in PB-2 w.e.f. dated they completed four years of regular service in the grade pay of Rs.4,800/- with all consequential benefits.
II. Issue a suitable time bound order or direction to the respondents to release entire arrears of salary and other emoluments payable to the applicants in consequence of grade pay of Rs.5,400/- along with reasonable rate of interest.
III. The cost of OA may be allowed to the applicant.
IV. Any order as deem just and proper may be passed.”
The facts of the case, in brief, are that the applicants are working on the post of Inspector under the respondents. Prior to the implementation of the recommendations made by the Sixth CPC, and formulation of the Revised Pay Rules, 2008, the cadre of Inspectors in the Department of Customs and Central Excise as it was known earlier, was in the pre-revised pay scale of Rs. 6500-10500 and the cadre of Superintendents was in the pre-revised pay scale of Rs.7500-12000. Following the acceptance of the recommendations of the Sixth CPC by the Central Government and formulation of the Central Revised pay Rules, 2008, Inspectors were placed in Pay Band -II, carrying the scale of Rs. 9300-34800, with grade pay of Rs.4600/- and superintendents were placed in pay Band-II carrying the scale of Rs. 9300-34800 with grade pay of Rs.4800/-. All the applicants have been granted the benefits under the ACP/MACP Scheme after the completion of requisite length of services. The post of Inspector under the aforesaid department has been classified as Group ‘B’ (Non-Gazetted) post whereas the post of Superintendent has been classified as Group ‘B’ (Gazetted) post.
Ministry of Finance (Department of Expenditure) issued a resolution dated 29.8.2008 forming a part of the Central Revised Pay Rules, 2008 which provides as under:-
“Group B officers of Department of Posts, Revenue etc. will be granted Grade Pay of Rs. 5400/- in PB-2 on non-functional basis after 4 years of regular service in the Grade pay of Rs. 4800/-“
Ministry of Finance issued another letter dated 21.11.2008 whereby certain clarification has been issued. The letter dated 21.11.2008 runs as thus:-
“Department of Expenditure have now clarified that the 4 year period is to be counted w.e.f. the date on which an officer is placed in the pay scale of Rs. 7500-12000/-(pre-revised). Thus, if an officer has completed 4 years on 1.1.2006 or earlier, he will be given the non-functional up-gradation w.e.f. 1.1.2006. If the officer completed 4 years on a date after 1.1.2006, he will be given nonfunctional up-gradation from such date on which he completes 4 years in the pay scale of Rs. 7500-12000 (pre-revised).”
Another clarification has been issued on 11.2.2009 in consultation with the Department of Expenditure, which reads as under:-
“……Non-functional up-gradation to the grade pay of Rs. 5400/- in the pay band-2 can be given on completion of 4 years of regular service in the grade pay of Rs. 4800/- in PB-2 (pre-revised) scale of Rs. 7500-12000/- after regular promotion and not on account of financial up-gradation due to ACP.” “Thus it is clear that the officers who got the pre-revised pay scale of Rs. 7500-12000/- (corresponding to grade pay of Rs. 4800) by virtue of financial up-gradation under ACP will not be entitled to the benefit of further non-functional up-gradation to the prerevised pay scale of Rs. 8000-13500/- (corresponding to Grade pay of Rs. 5400) on completion of 4 years in the pre-revised pay scale of Rs. 7500-12000/-”
The aforesaid clarification was assailed before Madras Bench of this Tribunal by one Sri M. Subramaniam by filing O.A. No. 167 of 2009, which came to be dismissed vide judgment and order dated 19.4.2010. Thereafter, the applicant, therein, had assailed the said order before Hon’ble Madras High Court by filing Writ Petition No. 13225 of 2010, which came to be allowed vide judgment and order dated 6.9.2010 by quashing the order of the Tribunal dated 19.4.2010 with a direction to the respondents to extend the benefit of Grade Pay of Rs. 5400/- to the petitioner, therein, w.e.f. the date he had completed 4 years of regular service in the pre-revised pay scale of Rs. 4800/- as per the resolution dated 29.8.2008.
Learned counsel for the applicant states that the department of revenue challenged the above said judgement before the Hon’ble Supreme Court vide SLP C. No.23513/2015, 3189/2015 and 17576/2017 which were dismissed on merit under order dated 10.10.2017. Against the inaction of the department by not implementing the verdict of the Hon’ble Supreme Court, the Inspectors and Superintendents affected preferred Original Application Nos. 1318 of 2018 (Kaushal Kishor Bhaskar & Others Vs. UOI and Others), 1005 of 2018 (Pradeep Kumar & Others vs UOI & Others), 1331 of 2019 (Pradeep Kumar Dubey vs UOI & Others), 0513 of 2021 (Kulwant Singh Vs. UOI & Others) and 343 of 2024 (Shashank Saraswat & Others vs UOI & Others) before this Tribunal. All the above original applications have been decided in the favour of the applicants.
Learned counsel for the applicants submits that the applicants are entitled to get the benefit of Non Functional Grade (NFG) pay scale of Rs. 9300-34800 in pay band-II with grade pay of Rs. 5400/- with all consequential benefits from the dates when they completed four years of regular service with pay grade Rs. 4800/-. Learned counsel for the applicant has also submitted that no disciplinary proceedings have ever been started or pending against the applicants and there is no legal impediment in allowing the NFG to the applicants. Since the respondents failed to extend the said benefits to the applicants, they have approached this Tribunal through this O.A.
Per-contra, learned counsel for the respondents has not disputed that the controversy involved in the instant O.A. is similar to the earlier decisions rendered by this Tribunal in the catena of cases. However, he has submitted that the benefit of earlier judgments can be given to the applicants only if they are found eligible for the same.
We have heard the learned counsel for the parties at length and perused the pleadings available on record.
The short question involved in this case is that whether the applicants, who have completed four years service in the Grade Pay of Rs. 4800/- are entitled to get the Grade Pay of Rs. 5400/- or not?
Since the issue, in hand, has already attained finality up to the Hon’ble Supreme Court and as such there is no necessity to give time to the respondents to file their response/Counter Reply by keeping the O.A. pending for long. We may also observe that the judgment passed by Hon’ble Madras High Court in the case of M. Subramaniam, which has been affirmed by Hon’ble Supreme Court is not a judgment in ‘personam’ but a judgment ‘in rem’. We have also carefully perused the judgments as annexed by the learned counsel for the applicants in the O.A. As such, a prayer has been made that the instant O.A. be also disposed of in the light of the directions given by Hon’ble Madras High Court in the case of M. Subramaniam (supra), which has been upheld by Hon’ble Supreme Court.
It is absolutely evident from the facts on record that the applicants have got the benefit of financial upgradations after rendering 10 years of regular service so much so that they are absolutely eligible to be granted the benefit of Non Functional Grade (NFG) by placing them in the Grade Pay of Rs. 5400/- due to the fact that they have also completed four years of regular service in the grade pay Rs. 4800/- w.e.f. the following dates:- Applicant No.1 from 23.11.2023, Applicant No.2 from 17.11.2023, Applicant No.3 from 21.11.2023 and Applicant No.4 from 12.01.2018. Furthermore, in the instant case, all the applicants are in service and accordingly they are entitled to be granted the benefit of NFG.
In view of the discussions made hereinabove, O.A. deserves to be allowed and is, accordingly, allowed at the admission stage itself. The competent authority amongst the Respondents must ensure that the benefit of judgment passed by Hon’ble High Court of Madras in the case of M. Subramaniam, which has been upheld by Hon’ble Supreme Court, be also given to the applicants. Accordingly, they are directed to re-fix the pay of the applicants in the Non-Functional Grade (NFG) Pay Scale of Rs. 9300-34800 in Pay Band – II, with Grade Pay of Rs. 5400/- with effect from the dates that they had completed four years of regular service in the Grade Pay of Rs. 4800/-. All the eligible consequential benefits shall also accrue. The aforesaid exercise must be carried out by the respondents within a period of five months from the date of receipt of certified copy of this order.
All associated MAs stand disposed of. No costs.