Saturday, March 1, 2014

LETS DEMAND MACP DUE TO PROMOTEES - DELHI PRINCIPAL BENCH FAVOURS!

It was assured by the department at the time of acceptance of the MACP that the ANOMALIES on MACP will be resolved after its implementation and it should be accepted without any condition.  But the promise is not kept till date.  THIS IS HIGH TIME THAT WE SHOULD PURSUE THE MATTER TILL WE REACH LOGICAL END.  There is no point in pursuing the matter in various other courts. THIS BLATANT INJUSTICE SHOULD BE RESISTED TOOTH AND NAIL AS THE INJUSTICE IS DONE TO THE MAJOR SECTION. 

THE JUDGMENT:
Central Administrative Tribunal Principal Bench, New Delhi.
OA-2124/2011
MA-1617/2011
Reserved on : 28.01.2013. Pronounced on : 01.02.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. All India Postal Accounts Employees
 Association represented by S. Santosh Kumar,
 President, R/o 13-B, DDA Flats, Type-IV,
 New Mahavir Nagar, New Delhi-18.
2. E. Kanagraj, Senior Accountant
 in O/o General Manager, Postal Accounts &
 Finance, Tamilnadu Circle, Chennai-8. . Applicants
(through Sh. B.K. Berera, Advocate)
Versus
1. Union of India through
 The Secretary,
 Department of Posts (Postal & Accounts Wing)
 Ministry of Communication & Information
 Technology, Dak Bhawan, Sansad Marg,
 New Delhi-1.
2. The Secretary,
 Department of Personnel & Training,
 Ministry of Public Grievances & Pensions,
 North Block, New Delhi-1. . Respondents
(through Sh. S.M. Zulfiqar Alam, Advocate)

O R D E R

Mr. Shekhar Agarwal, Member (A)
The applicants have sought the following relief:-
(a) Direction from this Honble Tribunal to Respondents for grant of stepping up pay of all Senior
Accountants on par with Senior Accountants who are junior to the former in the cadre of Sr.
Accountant.
(b) Direction to the Respondents to pay compound interest on the arrears, compounded every
months, as the respondents caused serious prejudice to the Applicants every months when the
Applicants were not granted the financial upgradations by stepping up their pay.
(c) Direction from Honble Tribunal to declare the CLAUSE 8 of the condition for grant of BENEFIT
UNDER THE ACP SCHEME being uptra vires beyond the statute which provide The financial
upgradation under the ACP Scheme shall be purely personal to the employee and shall have no
relevance to his seniority position. As such, there, shall be no additional financial upgradation for the
senior employee on the ground that the junior employee in the grade has got higher pay scale under
the ACP Scheme.
(d) Direction to the respondents to pay cost of litigation to the Applicants as the Applicants have
been dragged to the Tribunal by the respondents.
(e) Any other order as this Honble Tribunal may deem fit under the present facts and
circumstances of the case.

2. Briefly undisputed facts of the case are that the applicants joined the Department of Posts as
LDCs and were promoted as Junior Accountant. Subsequently, on restructuring of the Accounts
Cadre, 80% of the Accountants were designated as Senior Accountants and were placed in the pay
scale of Rs.1400-2600 (revised Pay Scale Rs.5500-9000) w.e.f. 01.04.1987. Government of India
promulgated an Assured Career Progression (ACP) Scheme for Central Government Civilian Employees vide their O.M. No. 35034/1/97-Estt(D) dated 09.08.1999 which provided for two financial upgradations to employees who had completed 12 and 24 years of service but had not found regular promotion in their department. Financial upgradation under the Scheme was to be given to the next higher grade in accordance with the existing hierarchy in a cadre. Clause-8 of the Scheme by which the applicants are aggrieved reads as follows:-

The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall
have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme.

3. The grievance of the applicants is that they have been denied benefits under this Scheme on
the grounds that they had joined as LDC and had already found two promotions in their cadre,
namely, to the post of Junior Accountant and then as Senior Accountant whereas those who had
joined the department as direct recruits to the post of Junior Accountant and had found only one
promotion to the level of Senior Accountant were given benefit of the ACP Scheme and placed in
higher grade. The applicants have contended that due to denial of benefit of ACP Scheme to them
many of the direct recruits who are junior to them in the cadre have started drawing more salary than
their seniors. The applicants have further stated that all Senior Accountants regardless of the fact
whether  they are promotees or direct recruits are placed in a single gradation list and their seniority is determined on the basis of their date of appointment as Senior Accountants. The applicants had
represented before the respondents but their representations had been rejected. Aggrieved by this,
they have approached this Tribunal. Their main prayer is that Clause-8 of the ACP Scheme be declared ultra vires beyond the statute and their pay be stepped up to bring it at par with their juniors.

4. The respondents have in their reply stated that the ACP Scheme was enforced to deal with the
problem of stagnation in certain cadres. It provides for at least two financial upgradations in service
career of an employee even if he is not able to find regular promotions due to unavailability of
vacancies. According to them Clause-8 of the Scheme clearly states that the financial upgradation
under the Scheme is purely personal to the employee and shall have no relevance to his seniority
position and as such no additional financial upgradation will be given to a senior employee on the
ground that the junior employee has got higher pay scale under the ACP Scheme. The respondents
argued that there is no infirmity in the Clause-8 of the Scheme placing reliance on the decisions of
Honble Supreme Court in the case of UOI and Anr. Vs. V.R. Swaminathan, JT 1997(8) SC 61 and State of U.P. & Ors. Vs. J.P. Chaurasia and Ors., JT 1988 (4) SC 53.

5. We have heard the learned counsel for both sides and perused the material placed on record.

6. During the course of arguments, the respondents made available judgment of Bombay Bench
at Nagpur of CAT in OA-2117/2005 (A.N. Pant & Ors. Vs. UOI & Ors.) dated 01.08.2012 between the same parties. By the aforesaid judgment, the claim of the applicants for placement in higher pay scale on the ground that junior employee had got that grade on account of ACP Scheme was rejected.
However, learned counsel for the applicants pointed out that the prayer of the applicants in the
instant case was different. According to him, in the case decided by the Bombay Bench at Nagpur, the prayer of the applicants was for grant of higher pay scale whereas in the instant case the prayer is
only for stepping up of pay.

7. We have seen the judgment of the Honble Supreme Court on which reliance has been placed
by the respondents and we find that the facts and circumstances of the two cases are different. Thus,
in the case of V.R. Swaminathan (supra) senior employees were demanding stepping up of pay on
account of the fact that juniors had got the benefit of higher pay because they had officiated on
higher post based on local/circle seniority. Further, in the other case of J.P. Chaurasia (supra) two
scales had been created in the cadre of Bench Secretaries of Allahabad High Court that promotions
from lower to higher scale taking place based on seniority-cum-fitness. None of these two cases
appears to be relevant.

8. On the other hand, the applicants have placed reliance on the judgment of Chandigarh Bench
of this Tribunal dated 19.01.2010 in OA-156-JK-2009(Ashok Kumar Vs. UOI & Ors.). Relevant position of this judgments reads as under:-

9. The issue raised in this case as to whether a senior person, though having received two
promotions, is entitled to stepping up of his pay at par with his junior, who has been granted benefit
under ACP Scheme and by virtue of this, is receiving higher pay than his senior, stands clinched by
various decisions of this Tribunal including in O.A. No. 842-JK-2007 decided on 17.11.2009 titled
Madan Gopal Sharma & Others Vs. Union of India & Others. In that case reliance was placed on
decisions of Apex Court in the case of Ram Sarup Ganda (supra) and (Gurmail Singh). Reliance was
also placed on decision in the case of Harcharan Singh Sudan (supra). It was held that seniors are
entitled to step up their pay as a general rule as and when any junior gets fixed in a pay scale higher to them  on account of grant of ACP Scale. Para 14 of the decision in the case of Harcharan Singh Sudan(supra) in Para 14 is reproduced as under:-

14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government
was the appellant and the challenge was against the High Court judgment, which held that the higher
pay scale be given to the respondents at par with their juniors whose pay scale became higher on
account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and
it was declared that the respondents were entitled to stepping up of pay. In other words, there shall
only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would
remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage
to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay
parity would be compared annually and partly would be maintained in future
10. Finding that the facts of this case are covered by the decision in the case of Harcharan Singh
Sudans case as well as Madan Gopal Sharma and Others (supra), this Original Application is allowed to the extent that annexure A-2 relating to rejection of claim of applicant is quashed and set aside.
11. With this O.A. stands disposed of and the respondents are directed to step up the pay of the
applicant at par with his junior aforesaid and in terms of the directions contained in the case of
Harcharan Singh Sudan (supra). It is made clear that the applicant shall be given stepping up of pay
only and not the pay scale, as explained above. The pay may be fixed accordingly and arrears be also
paid to him within a period of three months from the date of receipt of a copy of this order. However,
in the given facts and circumstances of the case, applicant is not entitled to interest. Parties to bear
their own costs.
9. In our opinion, the case of the applicants is covered by the aforesaid order of the Tribunal,
hence they are also entitled to the same benefits. Accordingly, the present O.A. is allowed.
Respondents are directed that the pay of the applicants be stepped up in terms of Para-9 of the
aforesaid judgment. This shall be done within a period of three months from the date of receipt of a
copy of this order. There shall be no order as to costs.

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

/Vinita/


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