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Judgment
ORDER
(Delivered by Hon’ble Mr. Justice Om Prakash VII, Member (J)
Shri Jaswant Singh, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents, are present at the time of hearing on admission.
The instant original application has been filed seeking following relief:
“a)That this Hon’ble Tribunal be pleased to hold and declare that the applicant is entitled to be placed and have his pay fixed in the Non-Functional Grade (NFG) Pay Scale of Rs. 9300-34800 in Pay Band – II, with Grade Pay of Rs. 5400/- with all consequential benefits, with effect from the dates that he had completed four years of regular service in the Grade Pay of Rs. 4800/-(or equivalent pay scale)
b)That this Hon’ble Tribunal be pleased to issue a suitable time-bound order or direction to the respondents to release the entire arrears of salary and other emoluments payable to the applicant as a consequence of the aforesaid grant of the Grade Pay of Rs. 5400/- to him from the due date, along with interest at such rates as might be found just and reasonable in the facts and circumstances of the case.
c)That this Hon’ble Tribunal be pleased to grant such other relief, as the applicant might be found entitled to in the facts and circumstances of the case.
d)That this Hon’ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout.”
The facts of the case, in brief, are that the applicant is working on the post of Inspector under the respondents.
Pursuant to recommendations of 5th CPC, Assured Career Progression Scheme (ACP) was introduced by the Government of India vide DoP&T O.M. dated 9.8.1999 to alleviate the grievances of the employees, who were stagnating in service without promotion and under the said ACP Scheme, the employees were entitled to get two financial up-gradations at the intervals of 12 years and 24 years of services. The said ACP scheme came to be replaced by Modified Assured Career Progression Scheme (MACP) wherein the employees were made entitled to get three financial up-gradations at the intervals of 10, 20 and 30 years of satisfactory service with a rider that in the meanwhile the employee could not get any promotion.
It is averred in the O.A. that the applicant while working as Inspector was granted financial up-gradation under MACP scheme after 10 years of regular service with by placing him in the pre-revised pay scale of Grade Pay of Rs. 4800/- meant for the cadre of Superintendent on non-functional basis. Precisely, the Applicant i.e. Sushil Kumar Srivastava was initially appointed as Inspector on 04.12.2007 and got his first financial up-gradation under MACP after 10 years of regular service on 04.12.2017 with G.P. 4800/- and after completing four years in G.P. 4800/- on 04.12.2021, he is entitled for Non Functional Grade of Rs. 5400/-. Learned counsel for the applicant submits that the applicant while working on the post of Inspector was granted the benefits of financial upgradations under the ACP Schemes that had the effect of placing him in the pre-revised pay scale of Rs. 6500-10500/7500-12000, or granting him in the Grade Pay of Rs. 4800/- (meant for the cadre of Superintendents), on Non-Functional Basis w.e.f. the due date that was different for different applicants. Learned counsel also submits that 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/-”
It is pleaded in the O.A. that 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.
Being dissatisfied, the respondents went to Hon’ble Supreme Court for judicial scrutiny by filing Civil Appeal No. 8883 of 2011, which came to be dismissed vide judgment and order dated 10.10.2017. Thereafter, Union of India had filed Review Petition, which too came to be dismissed vide judgment and order dated 23.8.2018 and now the matter attains finality.
Learned counsel for the applicant has placed reliance the decision rendered by Lucknow Bench of this Tribunal in O.A. No. 545 of 2018 decided on 18.12.2018 in support of his claim. He has also relied upon the judgment rendered by Allahabad Bench of this Tribunal in O.A. Nos. 753 of 2022 decided on 18th May, 2023, 832 of 2023 decided on 06th October, 2023, 293 of 2023 decided on 24th August, 2023, 629 of 2023 decided on 22nd August, 2023, etc. and prays that the instant O.A. be also decided in the light of the observations made in the cited O.As.
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 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 applicant, who has completed four years service in the Grade Pay of Rs. 4800/- is 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 applicant 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 applicant has got the benefit of financial upgradations after rendering 10 years of regular service so much so that he is absolutely eligible to be granted the benefit of Non Functional Grade (NFG) by placing him in the Grade Pay of Rs. 5400/- due to the fact that he has also completed four years of regular service in the grade pay Rs. 4800/-w.e.f. from the dates as have been already recorded in paragraph 3.2. of this judgment. Furthermore, in the instant case, the applicant is in service and accordingly he is entitled to be granted the benefit of NFG.
However, as is evident from the perusal of records, the applicant is entitled in the year 2021 and the instant OA has been filed in the year 2024 which implies that they stood idle for years before the instant original application was actually filed. This further implies that there has been a considerable delay since the cause of action arose and the original application was preferred. And since a specific prayer for grant of arrears that shall accrue consequent to the issuance of non-functional grade has also been made on the part of the applicant, it would be in the fitness of things to meticulously examine the delay and latches prevailing herein before pondering over the decision as to how much arrear payment is liable to be made in favour of the applicant. For the said purpose, it would be significant to straightway rely upon the law laid down by the Apex Court in its judgment dated 13.08.2008 passed in Civil Appeal No. 5151-5152 of 2008 titled Union of India & Ors vs. Tarsem Singh wherein the Hon’ble Court has dealt with the issue of delay and latches / limitation while conferring the relief sought by the aggrieved party. For the sake of clarity, the operative portion of the aforementioned judgment is quoted herein below:
“5.To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
6.In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.
7.In view of the above, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it fell due, is set aside. As a consequence, the order of the learned Single Judge is restored.”
Thus, this Tribunal is of the considered opinion that the issue of delay and latches / limitation and continuous wrong as defined by the Apex Court in the aforementioned judgment passed in the case of Tarsem Singh (supra) case also finds a place in the instant original application and accordingly, arrear payment of only three years preceding to the date on which the instant original application was filed is liable to be granted in favour of the applicant. In view of the discussions made hereinabove, O.A. deserves to be allowed and is accordingly, allowed at the admission stage itself. However, arrear payment of only three years preceding to the date of filing of this original application shall be made to the applicant @ 6% simple interest per annum. 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 applicant, if he is found to be fit otherwise. 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 all consequential benefits, with effect from the dates that they had completed four years of regular service in the Grade Pay of Rs. 4800/-. All the 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. No costs.
All associated MAs stand disposed of.