Sher Singh Duggal vs Union Of India & Ors.

Per: RAMESH SINGH THAKUR, MEMBER (J):

The present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, is directed against order dated 25.04.2018 (Annexure A-9) by which the representation of the applicant for grant of 3rd MACP on completion of 30 years of service w.e.f. 1.9.2008 in the grade pay of Rs. 6600/- has been rejected. The applicant has prayed for reliefs as under:

Facts of the case in brief are that the applicant was initially appointed as Clerk in the Beas Construction Board (BCB) on 01.09.1973 and was subsequently appointed as a Steno Typist on 03.08.1977. Upon completion of the project, he was declared surplus on 01.12.1984 and redeployed in the respondent department as Lower Division Clerk (LDC) on 08.02.1985. He was subsequently promoted as Superintendent w.e.f. 23.09.2002.

The applicant submits that, in the course of earlier litigation concerning his pay fixation and redeployment, this Tribunal, vide judgment dated 19.09.2013 in OA No. 159/PB/2011 (Annexure A-1), directed relief in his favour. The challenge to the said judgment was dismissed by the Hon’ble Punjab and Haryana High Court on 23.05.2017 (Annexure A-2). The respondents implemented the judgment of this Tribunal vide order dated 28.04.2014 (Annexure A-3), pursuant to which the pay of the applicant was fixed in Pay Band-3 with Grade Pay of Rs.5400/- (Annexure A-4). The applicant retired from service on 28.02.2015 on attaining the age of superannuation.

The applicant relies upon the Modified Assured Career Progression (MACP) Scheme introduced vide Government of India OM dated 19.05.2009, effective from 01.09.2008, providing for three financial upgradations on completion of 10, 20 and 30 years of service. He contends that having completed 30 years of service, he is entitled to the third financial upgradation w.e.f. 01.09.2008 in the Grade Pay of Rs.6600/-, particularly as he had earned only one regular promotion to the post of Superintendent.

The applicant submits that he repeatedly sought the benefit through representations dated 04.05.2010, 30.06.2010, 13.06.2014 and 14.07.2014, followed by a legal notice dated 11.08.2014. The applicant has asserted that the respondents kept his claim pending awaiting the outcome of the writ petition before the High Court, as reflected in their letter dated 06.03.2017 (Annexure A-6). He further contends that, following dismissal of the writ petition on 23.05.2017 (Annexure A-2), there was no justification for withholding the claimed benefit, particularly when respondent No. 1 had already conveyed approval on 21.04.2014 for implementation of the judgment of this Tribunal (Annexure A-7).

The applicant further states that, upon his approaching this Tribunal in OA No. 60/1497/2017, the same was disposed of on 18.12.2017 with a direction to the respondents to consider and decide his pending representation within two months of receipt of the certified copy of the order (Annexure A-8). The respondents thereafter rejected his representation vide impugned order dated 25.04.2018 (Annexure A-9).

The applicant has challenged the rejection order primarily on the ground that the respondents have erroneously treated the placement in the higher/senior scale of Rs.510–800 w.e.f. 01.01.1978 as a promotion or financial upgradation disentitling him to the claimed MACP benefit. He contends that the said placement was granted to a percentage of employees in the clerical cadre without any change in duties, responsibilities or selection process, and did not constitute promotion to a higher post. In support of his contention, the applicant relies upon the Punjab Government circular dated 29.04.1980 (Annexure A-11), instructions dated 04.05.1983 (Annexure A-12), and the judgment of the Hon’ble Punjab and Haryana High Court in Jaswant Singh v. Union of India, decided on 01.07.2014 (Annexure A-13). He also refers to a DoPT note dated 26.07.2011 (Annexure A-14), which is asserted to support the grant of financial upgradations to similarly placed employees redeployed from BCB.

The applicant additionally relies upon paragraph 5 of the MACP Scheme, contending that promotions or upgradations in the past to grades which, following merger or revision of pay scales on the recommendations of the Sixth Central Pay Commission, carry the same Grade Pay are to be ignored for the purpose of MACP, and that his case falls within the illustration accompanying the said provision. He accordingly maintains that the senior scale of Rs.510–800 cannot be counted as a financial upgradation disentitling him to the benefit claimed.

Per contra, the respondents submit that the parent department of the applicant i.e. BCB had granted him the selection grade of Rs.510–800 w.e.f. 01.01.1978, pursuant to the order of this Tribunal dated 06.12.2000, and that the said placement constitutes one financial upgradation for the purposes of the MACP Scheme. They further state that pursuant to the directions of this Tribunal dated 19.09.2013, the applicant was granted the first and second financial upgradations under the ACP Scheme w.e.f. 09.08.1999 conditionally. The respondents assert that the selection grade and the two ACP upgradations together account for three financial upgradations, thereby disentitling the applicant from the third financial upgradation under MACP.

Referring to the DoP&T OM dated 19.05.2009, the respondents contend that three financial upgradations are admissible under the MACP Scheme on completion of 10, 20 and 30 years of service, subject to the employee not having already received three financial upgradations. They rely upon Board’s dated 17.04.2018 in support of treating the selection grade granted to the applicant as a financial upgradation. On this basis, the respondents maintain that the applicant was not eligible for the benefit claimed and that his representation was rightly rejected vide speaking order dated 25.04.2018.

The respondents have clarified that the representations made by the applicant could not be disposed of while the matter remained pending before the Hon’ble High Court, and that the applicant was informed of the position vide letter dated 06.03.2017. The respondents further rely upon Ministry’s letter dated 05.09.2007, which is asserted to have required departmental clearance before implementation of court orders adverse to the interests of the Department/Government. The respondents state that in compliance with order dated 18.12.2017 in OA No. 60/1497/2017, the representation of the applicant was considered and speaking order dated 25.04.2018 was passed. The respondents accordingly submit that the applicant has no legally sustainable claim for the third financial upgradation in Grade Pay Rs.6,600/- w.e.f. 01.09.2008, or for consequential refixation of pay, pension and retiral benefits, arrears and interest.

We have heard arguments addressed by learned counsel for both sides and perused the material on record.

The undisputed facts emerging from the pleadings are that the applicant initially joined the Beas Construction Board (BCB) as a Clerk on 01.09.1973 and was subsequently redeployed in the respondent department as LDC on 08.02.1985. The applicant was promoted as Superintendent w.e.f. 23.09.2002 and was granted non-functional Grade Pay of Rs.5,400/- w.e.f. 23.09.2006. The applicant retired from service on 28.02.2015.

It is not in dispute that the applicant was granted the selection grade of Rs.510–800 w.e.f. 01.01.1978 by his parent department pursuant to orders passed by this Tribunal in OA 943/CH/1991, and that he was subsequently granted the first and second financial upgradations under the ACP Scheme w.e.f. 09.08.1999 pursuant to the directions of this Tribunal dated 19.09.2013 in OA No. 159/PB/2011. The claim for the third financial upgradation under MACP w.e.f. 01.09.2008 was rejected by the respondents vide speaking order dated 25.04.2018 (Annexure A-9), primarily on the ground that the aforesaid selection grade was liable to be counted as one financial upgradation, thereby exhausting his entitlement to three financial upgradations.

The short question requiring consideration is whether the selection grade of Rs.510–800 granted to the applicant w.e.f. 01.01.1978 can be treated as a financial upgradation for the purpose of determining his eligibility for the third financial upgradation under the MACP Scheme. The applicant has consistently contended that the selection grade was granted as part of the restructuring of the clerical cadre, without any change in duties and responsibilities or any process of selection, and, therefore, cannot be treated as a promotion or financial upgradation for the purpose of MACP. In support, he relies upon the judgment of the Hon’ble Punjab and Haryana High Court in Jaswant Singh v. Union of India (supra).

In Jaswant Singh (supra), the Hon’ble High Court, relying upon the principles laid down by the Hon’ble Supreme Court in Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy, 2011 (9) SCC 510, held that placement in a higher pay scale without change of post, duties or responsibilities, and without any process of selection or consideration of comparative merit or suitability, constitutes an upgradation simpliciter and cannot be categorised as a promotion. The Court specifically held that restructuring of a cadre by placing certain posts in a higher pay scale, without any change in responsibilities or selection process, does not amount to promotion.

This Tribunal, in its judgment dated 19.09.2013 in OA No. 159/PB/2011, while allowing the claim of the applicant for second upgradation, held:

Applying the aforesaid principle to the present case, the respondents have relied upon the grant of the selection grade of Rs.510–800 w.e.f. 01.01.1978 to count it as one financial upgradation under MACP. However, the mere designation of the benefit as a selection grade would not, by itself, establish that it involved a promotion or a financial upgradation liable to be counted under the MACP Scheme. The applicant has specifically pleaded that the said scale was extended to a percentage of employees in the clerical cadre without any change in duties, responsibilities or selection process, relying upon the Punjab Government circular dated 29.04.1980 (Annexure A-11) and instructions dated 04.05.1983 (Annexure A-12). The respondents, on the other hand, have not specifically controverted these material aspects but have principally relied upon the fact of grant of the selection grade and the Board’s letter dated 17.04.2018.

From the material before us, and in view of the ratio laid down in Jaswant Singh (supra), the selection grade granted to the applicant w.e.f. 01.01.1978 cannot be counted as a financial upgradation for the purpose of MACP. Consequently, the principal ground of the respondents for denying the applicant the third financial upgradation under MACP is not sustainable. The impugned order dated 25.04.2018 (Annexure A-9), insofar as it rejects the claim of the applicant on this basis, therefore, cannot be sustained.

In view of the foregoing discussion, the Original Application is allowed. The impugned order dated 25.04.2018 (Annexure A-9) is quashed. The respondents are directed to grant the applicant the third financial upgradation under the MACP Scheme w.e.f. 01.09.2008, with consequential refixation of pay, pension and other retiral benefits and payment of admissible arrears. The consequential benefits shall be calculated and released within a period of three months from the date of receipt of a certified copy of this order.

The Original Application stands disposed of in the above terms. Pending Miscellaneous Applications, if any, shall stand disposed of accordingly. There shall be no order as to costs.