Important Central Administrative Tribunal (CAT) Judgement

Important Central Administrative Tribunal (CAT) Judgement 

Central Administrative Tribunal
Principal Bench
New Delhi

OA No.571/2017

Order Reserved on: 13.02.2018
Pronounced on: 17.04.2018

Hon'ble Mr. K.N. Shrivastava, Member (A)
G.C. Yadav,
S/o late Kamal Singh Yadav,
(aged about 61 years)
(retired as Deputy Secretary)
R/o H.No.1627/3, Lane No.6,
Rajiv Nagar, Mata Road,
Gurugram-122001.

- Applicant

(By Advocate Shri L.R. Khatana)

-Versus-

1. Union of India
Through Secretary to the Govt. of India,
Ministry of Home Affairs,
North Block, New Delhi-110001.

2. Secretary to the Govt. of India,
Department of Pension & Pensioners' Welfare,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.

3. Secretary to the Govt. of India,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.

-Respondents

(By Advocate Shri N.D. Kaushik)
(OA No.571/2017)

O R D E R

The applicant retired from the post of Deputy Secretary in the Ministry of Home Affairs, Government of India with effect from the afternoon of 31.12.2015 on attaining the age of superannuation. His date of birth is 01.01.1956. He has been deprived of the benefits of 7th Central Pay Commission's recommendations, which came into effect w.e.f. 01.01.2016 on the ground that he retired prior to that date i.e. 31.12.2015.

2. The applicant submitted his representation dated 14.12.2015 (Annexure A-4 colly.) to the Secretary, Department of Personnel & Training (DoP&T) (respondent no.3) stating therein that he would cease to be a Government servant in the midnight of 31.12.2016 and thus acquired the status of a pensioner in the forenoon of 1st January, 2016. Hence, he is entitled to all the pensionary benefits viz. gratuity, fixation of pay/pension as per 7th Central Pay Commission’s recommendations. The representation dated 14.12.2015 of the applicant was forwarded by the Additional Secretary (S&V), DoPT to the Joint Secretary, Pension, Department of Pension and Pensioner's Welfare (DoP&PW) vide letter dated 29.02.2016. The relevant portion of  the said letter is extracted below:

"2. In his representation, Shri Yadav has contended that the pensionary benefits accrue to a person when he acquires the status of Pensioner. As per the judgment of the Hon'ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 2015 were in Government service upto midnight of 31st December, 2015 and acquired the status of pensioner only in the forenoon of 1st January, 2016. Applying the law laid down by the Hon'ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 1956 acquired the status of pensioner only in the forenoon of 1st January, 2016. The recommendations of the 7th Pay Commission are likely to be implemented with effect from 1st January, 2016."

3. Pursuant to the implementation of the 7th Central Pay Commission's recommendations, DoP&PW (respondent No.2) issued Annexure A-2 Om dated 04.08.2016 revising the pension of pre-2016 pensioners/family pensioners. The grievance of the applicant is that his retiral benefits have been fixed in terms of Annexure A-2 OM, treating him as a pre-2016 retiree whereas he should be treated as a retiree w.e.f. 1.1.2016 and thus the 7th Central Pay Commission's benefits should  accrue to him.

4. Respondent No.2 considered the representation dated 14.12.2015 of the applicant, which was duly forwarded by the DoPT vide aforementioned letter dated 29.02.2016 and vide impugned Annexure A-1 OM dated 03.01.2018 has declined the request of the applicant. The relevant portions of this OM are reproduced below:

"4. In the case of Shri Yadav, he actually retired on 31.12.2015 and was not in service on 1.1.16. Judgment of Hon'ble Supreme Court in the case of Shri S. Benerjee has no relevance in his case. In fact Rule 5 (2) of CCS (Pension) Rules, has already been amended and as per the amended rule date of voluntary retirement is treated as the last working day. Therefore, those who retired voluntarily on 1.1.2016 would be eligible for pay and pension benefits of 7th CPC as a post 1.1.2016 retiree.

5. Since Shri Yadav retired on superannuation on 31.12.2015, he is to be treated as a pre-2016 pensioner and is accordingly entitled to the benefit in revision of pension under the OM No.38/37/46-P&PW(A)(ii), dated 4.8.16."

5. Aggrieved by the impugned Annexure A-1 OM dated 03.01.2017, the applicant has filed the instant OA praying for the following relief:

"B) That this Hon'ble Tribunal may be pleased to hold and declare that the impugned orders/action of the respondents is illegal, arbitrary, discriminatory, unconstitutional and violative of Articles 14 and 16 of the Constitution of India and quash and set aside the same and be pleased to further hold that since the Applicant superannuated with effect from the afternoon of 31.12.2015 and relinquished the charge of the post of Deputy Secretary in the afternoon of that date, he, as per law, is deemed to have effectively retired on or with effect from 1.1.2016 and therefore, cannot be treated as pre-2016 pensioner and direct the respondents to grant the retiral benefits such as fixation of pension, DCRG, commutation of pension, leave encashment etc. accordingly and pay the arrears thereof  with 12% interest within a specified time-frame."

6. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which they have broadly made the following important averments:
6.1 The applicant retired from Government service on 31.12.2015 and accordingly he has been treated as a pre-2016 pensioner and his pensionary benefits have been fixed in terms of the OM dated 4.8.2016 (Annexure A-2) of the DoP&PW.

6.2 As per the provisions of FR 56(a), a Government servant whose date of birth is first of a month shall retire from service in the afternoon of the last day of the preceding month on attaining the age of 60 years. Hence, the applicant, whose date of birth is 1.1.1956 is deemed to have been retired in the afternoon of 31.12.2015.

6.3 The judgment of Hon'ble Supreme Court in S. Banerjee v.Union of India, [AIR 1990 SC 295], relied upon by the applicant in para 4 (d) of the OA, is not relevant in the instant case. It is stated that Shri S. Banerjee had retired voluntarily and his date of retirement was 1.1.1986 whereas in the instant case the applicant retired on attaining the age of superannuation in the afternoon of 31.12.2015 and as such was not in service on 1.1.2016.

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Fixation of Pay of Group D officials promoted to Postal Assistant

Fixation of Pay of Group D officials promoted to Postal Assistant - Equal to Direct Entry Pay on Promotion - CAT Judgement

Ministry of Communication, Department of Posts has issued letter dated 13 th April 2018 regarding fixation of pay of Group D officials promoted to Postal Assistants

Court case / Priority
F. No. 2-15/2016.PAP
Government of India
Ministry of Communication
Department of Posts
(Establishment Division/P.A.P Section)

Dak Bhawan, Sansad Marg

New Delhi - 110 001
Dated: 13 Apr, 2018

To
All Heads of Circles,

Sub: Fixation of Pay of Group D officials promoted to Postal Assistant - reg.

This is regarding fixation of pay of Group D officials promoted to Postal Assistant at per with the directly recruited Postal Assistants who were appointed on or after 01.01.2006. In the subject case the applicant was promoted as Postal Assistant on 27.07.2015 and his pay was fixed as Rs.9770/- with DNI as on 01.07.2016. Whereas the pay of the directly recruited Postal Assistants have been fixed as Rs.9910/- in the scale of Rs.5200-20200 + Rs2400/- as grade pay. Aggrieved of this, the applicant filed an OA No. 170/00801/2016 in the Hon'ble CAT Bengaluru Bench. The Hon'ble CAT in its order dated 12.06.2017 ordered that “when a person gets promotion to a higher post, he should be entitled to the same minimum pay for the post which is allowed to person who joined the posts afresh as enunciated by the Hon'ble Apex Court in several cases."

It is requested to inform the details of similar cases at your circle and financial implication involved upon implementation of this order in such cases may be furnished to this Directorate at the earliest for taking further decision in this case.

(K. V. Vijayakumar)
Assistant Director General (Estt.)

Source: Confederation

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Amendment in Administrative Tribunals Act – Jurisdiction of Benches of Central Administrative Tribunal

Notification under sub-section (1) of section 18 of the Administrative Tribunals Act, 1985 specifying jurisdiction of Benches of Central Administrative Tribunal.

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS
(Department of Personnel and Training)

NOTIFICATION

New Delhi, the 23rd September, 2014

G.S.R. 683(E). – In exercise of the powers conferred by sub-section (I) of Section 18 of the Administrative Tribunals Act, 1985 (13 of 1985), the Central Government hereby makes the following further amendment in the Notification of the Government of India in the erstwhile Ministry of Persormel and Training, Administrative Reforms and Public Grievances and Pensions vide No. G.S.R. 610(E) elated the 26th July, 1985, namely :-

2. In the said Notification, for the Table, the following Table shall be substituted, namely :-

 TABLE

S. No.	Bench	Jurisdiction of the Bench
(1)	(2)	(3)
1.	Principal Bench (New Delhi)	National Capital Territory of Delhi
2.	Ahmedabad Bench	State of Gujarat
3.	Allahabad Bench	(i) State of Uttar Pradesh excluding the Districts mentioned against serial number 4 under the jurisdiction of Lucknow Bench.(ii) State of Uttaranchal
4.	Lucknow Bench	Districts of Lucnow, Hardoi, Kheri, Rai-Bareli, Sitapur, Unnao, Faizabad,Ambedkar Nagar, Baharaich,Shravasti, Barabanki, Gonda, Balrampur, Pratapgarh, Sultanpur in the State of Uttar Pradesh.
5.	Bangaluru Bench	State of Karnataka
6.	Kolkata Bench	(i) State of Sikkim.(ii) State of West Bengal.(iii) Union Territory of Andaman and Nicobar Islands.
7.	Chandigarh Bench	(i) State of Jammu and Kashmir.(ii) State of Haryana.(iii) State of Himachal Pradesh. (iv) State of Punjab. (v) Union Territory of Chandigarh.
8.	Cuttack Bench	State of Odisha
9.	Ernakulam Bench	(i) State of Kerala.(ii) Union Territory of Lakshadweep.
10.	Guwahati Bench	(i) State of Assam.(ii) State of Manipur.(iii) State of Meghalaya. (iv) State of Nagaland. (v) State of Tripura. (vi) State of Arunachal Pradesh. (vii) State of Mizoram.
11.	Hyderabad Bench	(i) State of Andhra Pradesh.(ii) State of Telangana.
12.	Jabalpur Bench	(i) State of Madhya Pradesh(ii) State of Chhattisgarh.
13.	Jodhpur Bench	State of Rajasthan excluding the Districts mentioned against serial number14 under the jurisdiction of Jaipur Bench
14.	Jaipur Bench	Districts of Ajmer, Alwar, Baran, Bharatpur, Bundi, Dausa, Dholpur, Jaipur, Jhallawar, Jhunjhunu,Kota, Sawai Madhopur, Sikar, Tonk and Karauli in the State of Rajasthan.
15.	Chennai Bench	(i) State of Tamil Nadu(ii) Union Territory of Puducherry.
16.	Mumbai Bench	(i) State of Maharashtra(ii) State of Goa(iii) Union Territory of Dadra and Nagar Haveli. (iv) Union Territory of Daman and Diu.
17.	Patna Bench	(i) State of Bihar.(ii) State of Jharkhand.

[F.No.A-11019/5/2014-AT]
MAMTA KUNDRA, Jt. Secy.

Source: www.persmin.gov.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02adm/A-11019_5_2014-AT-23092014.pdf]

#Amendment Orders, #CAT, #Central Administrative Tribunal, #DOPT, #DOPT Circulars

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GRANT MACP ON PROMOTIONAL HIERARCHY – CAT PRINCIPLE BENCH, NEW DELHI

GRANT MACP ON PROMOTIONAL HIERARCHY – CAT PRINCIPLE BENCH, NEW DELHI

CAT PRINCIPLE BENCH, NEW DELHI DIRECTS UNION OF INDIA TO GRANT MACP ON PROMOTIONAL HIERARCHY TO PPOs OF DIRECTORATE OF PLANT PROTECTION GRANT OF MACP ON PROMOTIONAL HIERARCHY:

CAT PRINCIPLE BENCH, NEW DELHI DIRECTS UNION OF INDIA TO GRANT MACP ON PROMOTIONAL HIERARCHY TO PPOs OF DIRECTORATE OF PLANT PROTECTION, DEPARTMENT OF AGRICULTURE AND COOPERATION, FARIDABAD.  THE CASE WAS FILED BY SHRI K S SHARMA, PPO (E)& Ors VIDE OA NO. 2548/2014, MA No. 2167/2014.

Text of judgement reproduced below:-

Central Administrative Tribunal
Principal Bench, New Delhi

OA No.2548/2014
MA No.2167/2014
New Delhi, this the 31st day of  July, 2014

ORDER (ORAL)

Mr. G. George Paracken, Member (J) :-

The applicant has filed this OA seeking the following reliefs :-

(a) to declare the action of the respondents in not granting the scale of Rs.15600-39100 (PB-3) with Grade Pay of Rs.5400 & 6600 as illegal and arbitrary.

To direct the respondents to grant scale of Rs.15600-39100 with Grade Pay of Rs.5400 & 6600 attached to the promotional posts, as 2nd & 3rd financial upgradation to the applicants under MACP from due date with all arrears of pay.

To declare the OM/MACP dated 19.05.2009 as unconstitutional to the extent the same deny the next  promotional scale attached to the promotional post as 1st, 2nd & 3rd financial upgradation as illegal, arbitrary and unjustified and issue appropriate consequential directions.

To allow the O.A. with costs.

Pass such other direction or directions order or orders as this Hon ble Tribunal may deem fit and proper to meet the ends of justice.

2. According to the learned counsel for applicants, this case is squarely covered by an order of this Tribunal  dated 26.11.2012 in OA No.904/2012 Sanjay Kumar Vs. Secretary, Ministry of Defence and Ors.  The operative part of the said order reads as under :-

4. We have heard the learned counsel for the parties.  The issue raised in the OA has already been considered by the Chandigarh Bench of this Tribunal in OA No.1038/CH/2010- Rajpal son of Shri Tilak Ram Versus Union of India and others.

5. In the aforesaid OA, the applicant was working as Photocopier and he was already given 1st Financial Upgradation under the ACP Scheme. According to the applicant, his pay had been wrongly fixed in pay band-1 with grade pay of Rs.2400/- on grant of 2nd Financial Upgradation under the MACP Scheme.  This Tribunal held that the applicant therein was entitled for the 2nd Financial Upgradation in the next hierarchy of posts and not in the next grade pay. The posts of Photocopier and that of LDC/Hindi Typist being isolated posts, not having any promotional avenues, the Chandigarh Bench of the Tribunal made the following observations:-

1.1. We have heard the learned counsel for the parties and considered the documents on record.

1.2. There is no dispute that the applicant is holding the post of Photocopier, which is an isolated post, having no  avenues for promotion.  It is also not disputed that the post held by the applicant had been declared equivalent to the post of LDC/Hindi Typist etc. by the Tribunal as well as the High Court by judicial pronouncements in matters of grant of ACP, which have attained finality and stands implemented also.     Accordingly, applicant was granted Ist ACP (under the old ACP) w.e.f. 9.8.99 in the pay scale of Rs. 4000-6000.

1.3. It has also been settled that the ACP would be  granted on completion of the required years of service in the hierarchy of posts for the posts of LDC/Hindi Typists, and not in the next higher scale in the recommended scales.   The same principle would have to be applicable  in regard to grant of MACP to the applicant.   The only difference is that while  in case of ACP two financial upgradations were granted  on completion of 12 and 24 years of service, in case of MACP, three upgradations on intervals of 10, 20 and 30 years of service.

1.4.         The respondents have placed reliance on para 13 of the MACPS, which reads as under:

13. Existing time-bound promotion scheme, including insitu promotion scheme, Staff Car Driver Scheme or any other kind of promotion scheme existing for a particular category of employees in a Ministry/Department or its offices, may continue to be operational for the concerned category of employees if it is decided by the concerned administrative authorities to retain such Schemes, after necessary consultations or they may switch-over to the MACPS.  However, these Schemes shall not run concurrently with the MACPS.

Reliance has further been placed on  decision  taken  in the second meeting of the Joint Committee on MACPS held under the Chairmanship of the joint Secretary  DoPT was circulated.   Item No.3 of the Agenda for the said meeting reads as under:

The MACP Scheme provides for placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay after 10,20 and 30 years of service.  On the other hand the earlier ACP Scheme provided for placement to higher pay scale of the next promotion post in the hierarchy of the pay scale after 12 and 24 years of service taken from date of induction in service.

1.5. Be that as it may, the principle enunciated and settled by the Tribunal/High Court for grant of ACP   cannot be changed and  the same principle would apply for grant of MACP to him. The only difference  is of number of years required to be completed.  We find no justification to take a different view in the matter

1.6.   For the foregoing reasons, the impugned order dated 9.8.2010, (Annexure A-1)qua the applicant, fixing his pay in PB-1 with grade pay of FR 2400/- under the second MACP,  and the order dated  10.8.2010 (Annexure A-2 ) are hereby quashed and set aside.  Consequently,  the respondents are directed to grant second financial   upgradation to the applicant   under the  MACPS   from  due date fixing  his pay  in the hierarchy of posts decided in his case earlier and to pay the resultant arrears without interest, within a period of 2 months from the date of receipt of a copy of this order.

1.7. The OA stands disposed of in the above terms.  No costs.

6. The respondents have challenged the aforesaid order before the Hon ble High Court of Punjab and Haryana at Chandigarh in CWP NO.19387/2011 decided on 19.10.2011. The Hon ble High Court of Punjab and Haryana at Chandigarh held that there was no infirmity in the aforesaid order passed by the Chandigarh Bench of this Tribunal. The relevant observations of the said order are extracted hereunder:

Upon implementation of the 6th Central Pay Commission, the scale of Rs.3050-4590/- was kept in pay band-I, Rs.5,200-20,200/- with grade  pay of Rs.1,900/-, the scale of Rs.4,000-6,000/- was also kept in pay band-I with grade pay of Rs.2,400/- and the scale of Rs.5,500/-9,000/- was kept in pay band-II in pay scale of Rs.9,300-34,800/- with grace pay of Rs.4,200/- increased to Rs.4,600/-. In terms of MACP Scheme, respondent no.1 was granted the lower scale by keeping in pay band -I of Rs.5,200-20,200/- with grade pay of Rs.2,400/-.  This was done in terms of order dated 09.08.2010.  Accordingly, respondent No.1 approached the CAT contending that he is entitled to be granted the scale of Rs.5,500-9000/- towards the 2nd Financial Upgradation at par with the post of Hind Typist and LDC.  Such claim of respondent No.1 has been upheld by the CAT in the impugned order dated 31.05.2011.

7. In our considered view, the present OA is squarely covered by the aforesaid judgment of Chandigarh Bench, as upheld by the Hon ble High Court of Punjab and Haryana at Chandigarh.

8. In fact, the respondents have wrongly interpreted the terms and conditions mentioned in the MACP Scheme, issued by the Deptt. of Personnel & Training, in the case of the applicants. By the said Scheme, the eligible government servants are to be placed in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay and not merely in the next higher scale of pay as per the recommendations of the 6th Pay Commission.  In the hierarchy after the scale of UDC, the next scale is that of Assistant. Therefore, the respondents should have given the next higher grade pay and pay band attached to the next promotional post  in the hierarchy, namely, the Assistants carrying the pay scale of Rs.9300-34800 and the grade of Rs.4200/-.

9. In view of the above position, this OA is allowed. The respondents are directed to grant scale of pay of Rs.9300-34,800/- with grade pay of Rs.4200/- attached to the said promotional post of Assistant/OS from the due date to the applicants. 10. The aforesaid directions shall be complied with within the period of two months from the date of receipt of a copy of this order, subject to the other conditions mentioned in the MACP Scheme.

There shall be no order as to costs.

3.    He has also submitted that following the aforesaid order,  this Tribunal has passed similar orders in OA No.1493/2014 Indian Ordnance Factories Gazetted Officers Association through its President Shri Brajesh Kumar Singh & others Vs. UOI & Ors, OA No.988/2014 Shri Pradeep Kumar & Ors. Vs. Secretary, Ministry of Information & Broadcasting & Ors,, OA No.864/2014 Shri Om Prakash & Ors. Vs. Secretary (NCERT) & Ors., and OA No.203/2014 Narener Kumar, JE(Civil) Vs. Govt. of NCT of Delhi & Ors. He has further stated that the OA No.864/2014 (supra) has been challenged by the respondents therein before the Hon ble High Court of Delhi vide WP(C) No.3608/2014 but the same was dismissed vide order dated 14.07.2014.

4.  In view of the above position, we dispose of this OA at the admission stage itself with the direction to the respondents  to consider the case of the applicants in the light of the aforesaid orders. If their case is covered by them, they shall also be extended the same benefits under intimation to the applicants.  The aforesaid direction shall be complied with, within a period of two months from the date of receipt of a certified copy of this order.

5. For the sake of convenience of the Respondents, Registry is also directed to send a copy of this OA to them.

( Shekhar Agarwal )                              (G. George Paracken) Member (A)                                             Member (J)

#MACP, #Promotional Hierarchy, #CAT, #Grant MACP, #grant scale, #Grade Pay, #arrears

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