02/03/2016
(ii) One nominee of the Cabinet Secretary of AS / JS level : and
(iii) One representative of Cadre Controlling Authority, to be nominated by its Secretary.
Casual Labourers with temporary
status-clarification regarding contribution to GPF and Pension under the old
pension scheme
No.49014/2/2014-Estt (C)
Government of India
Ministry of Personnel, Public Grievances and PG
Department of Personnel and Training
Establishment Division
New Delhi, North Block,
February 26th , 2016
February 26th , 2016
OFFICE MEMORANDUM
Subject: Casual Labourers with temporary
status-clarification regarding contribution to GPF and Pension under the old
pension scheme
Undersigned is directed to refer to this
Department’s OM No. 51016/2/90-Estt (C) dated the 10th September, 1993 vide
which a scheme for grant of temporary status to the casual employees was
framed. The scheme applied to those casual labourers who were in employment on
the date of the issue of the OM and had rendered one year of continued service
in Central Government offices, which meant that they must have been engaged for
a period of at least 240 days (206 days in the case of offices observing 5 days
week). The scheme did not apply to Departments of Telecom & Posts and
Ministry of Railways.
2. As per the scheme, after rendering
three years’ continuous service after conferment of temporary status, the
casual labourers were to be treated at par with temporary Group ‘D’ employees
for the purpose of contribution to the General Provident Fund. Further, after
their regularisation, 50% of the service rendered under temporary status would
be counted for the purpose of retirement benefits.
3. As per para 8 of the scheme, two out
of every three vacancies in Group ‘D’ cadres in respective offices where the
casual labourers have been working would be filled up as per extant recruitment
rules and in accordance with the instructions issued by Department of Personnel
and Training from amongst casual workers with temporary status. However,
regular Group ‘D’ staff rendered surplus for any reason will have prior claim
for absorption against existing/future vacancies. In case of illiterate casual
labourers or those who fail to fulfill the minimum qualification prescribed for
post, regularisation will be considered only against those posts in respect of
which literacy or lack of minimum qualification will not be a requisite qualification.
They would be allowed age relaxation equivalent to the period for which they
have worked continuously as casual labourer.
4. Vide the O.M. No.49014/1/2004 -Estt
(C) dated the 26 thApril, 2004, the above scheme was reviewed in the light of
introduction of New Pension Scheme in respect of persons appointed to the
Central • Government service on or after 1.1.2004 as under:
(i) As the new pension scheme is based on
defined contributions, the length of qualifying service for the purpose of
retirement benefits has lost its relevance, no credit of casual service, as
specified in para 5 (v), shall be available to the casual labourers on their
regularisation against Group ‘D’ posts on or after 1.1.2004.
(ii) As there is no provision of General
Provident Fund in the new pension scheme, it will not serve any useful purpose
to continue deductions towards GPF from the existing casual employees, in terms
of para 5 (vi) of the scheme for grant of temporary status. It is, therefore,
requested that no further deduction towards General Provident Fund shall be
effected from the casual labourers w. e. f. 1.1.2004 onwards and the amount
lying in their General Provident Fund accounts, including deductions made after
1.1.2004, shall be paid to them.
2. The existing guidelines contained in
this Department’s OM No. 49014/2/86-Estt.(C) dated 7.6.88 may continue to be
followed in the matter of engagement of casual workers in the Central
Government Offices.
5. The OM dated 26th April, 2004 has been
quashed by various benches of CAT/High Courts who have decided that the scheme
could not be modified retrospectively. The SLPs filed in the Hon’ble Supreme
Court have been dismissed by the Apex Court in UOI & Ors v Rameshwar Singh,
CC 1829/2014, UOI & Ors v Ramsaran & Ors, SLP (C) No. 25360-25362 of
2008, SLP 17358/2008, SLP 25360-62/09, Union of India etc v Ajay Kumar &
Ors, SLP No.19673-19678/2009.
6. The position has been reviewed in the
light of the Court judgements in consultation with the Department of
Expenditure. It has now been decided that the casual labourers who had been
granted temporary status under the scheme, and have completed 3 years of
continuous service after that, are entitled to contribute to the General
Provident Fund.
7. 50% of the service rendered under
temporary status would be counted for the purpose of retirement benefits in
respect of those casual labourers who have been regularised in terms of para 8
of the OM dated 10.09. 1993.
8. It is emphasised that the benefit of
temporary status is available only to those casual labourers who were in
employment on the date of the issue of the OM dated 10th September, 1993 and
were otherwise eligible for it. No grant of temporary status is permissible
after that date. The employees erroneously granted temporary status between
10.09.1993 and the date of Hon’ble Supreme Court judgement in Union Of India
And Anr vs Mohan Pal, 2002 (3) SCR 613, delivered on 29 April, 2002, will
however be deemed to have been covered under the scheme of 10.09.93.
9. Ministries/Departments are also
requested to identify cases where temporary status has been granted wrongly to
those not covered under the OM dated 10.09.1993 and fix responsibility for the
same.
sd-
(Mukesh Chaturvedi)
Director (E)
(Mukesh Chaturvedi)
Director (E)
Authority: www.persmin.gov.in
References/Representations/Court
Cases in various Ministries/Departments/ Organisations for grant of MACPS
benefits in the promotional hierarchy
No.22034/04/2013-Estt.(D)
Government of India
Ministry of Personnel Public Grievance & Pensions
Department of Personnel & Training
Government of India
Ministry of Personnel Public Grievance & Pensions
Department of Personnel & Training
North Block, New Delhi
Dated: 01.03.2016
Dated: 01.03.2016
Office Memorandum
Subject :-
References/Representations/Court Cases in various Ministries/Departments/
Organisations for grant of MACPS benefits in the promotional hierarchy -reg.
In continuation of DOPT’s earlier O.M. of even
no. dated 20.01.2016 on the above mentioned subject, the undersigned is
directed to forward a copy of the decision of Hon’ble CAT, Ahmedabad bench in
OA No. 120/000018/2015 filed by Shri Manubhai B. Rathore Vs. UOI &Ors
whereby the demand of the applicant for MACP in promotional Hierarchy has been
dismissed.
(G.Jayanthi)
Director (E-1)
Phone No. 23092479
Director (E-1)
Phone No. 23092479
ORDER (ORAL)
PER HON’BLE MR.M.NAGARAJAN, JUDICIAL MEMBER
PER HON’BLE MR.M.NAGARAJAN, JUDICIAL MEMBER
The grievance of the applicant in this O.A
relates to non granting of Grade pay of Rs.5400/- in Pay Band of Rs.15600-39100
(PB-3) on being extended the benefit of 2nd financial upgradation under the Modified
Assured Career Progression (MACP) Scheme. According to the applicant, on
granting 2nd financial upgradation under the MACP Scheme his pay shall be fixed
in the next Grade Pay of Rs.5400/- in pay Band of Rs.15600-39100 (PB-3)
2. The facts stated by the applicant in support
of his claim in brief are that he entered into service in the National Water
Development Agency as Supervisor on 24.03.1986 in the pay scale of Rs.1400-2300
as per the 4th Central Pay Commission. The applicant was thereafter promoted as
Assistant Engineer by order dated 30.04.1996 in the pre-revised scale of
Rs.6500-10500 which was subsequently revised to Rs.9300-34800 with Grade pay of
Rs.4600/- (as per 6th CPC). The applicant submits that as per the existing
promotional hierarchy in the department, his next promotional post is the
Assistant Executive Engineer in the Pay Band of Rs.15600-39100 (PB-3) with
Grade Pay of Rs.5400/-.
3. On the basis of the 6th Central Pay
Commission, the Government revised the ACP Scheme and introduced a new Scheme
called, Modified Assured Career Progression Scheme (MACP Scheme) for the
Central Government Civilian employees by issuing Office Memorandum
No.35034/3/2008-Estt.(D) dated 19.05.2009, effective from 01.09.2008. The said
MACP provides for grant of three financial upgradations at intervals of 10,20
and 30 years of continuous regular service. Pursuant to the MACP Scheme, the
applicant was given 2nd financial upgradation with effect from 01.09.2008 in
Pay Band of Rs.9300-34800 (PB-2) with Grade Pay of Rs.4800/-. The next
promotional post of Assistant Executive Engineer carries the Grade Pay of
Rs.5400/- in Pay Band of Rs.15600-39100 (PB-3) According to the applicant, on
granting the benefit of 2nd financial upgradation under the MACP Scheme by order
dated 10.06.2013 vide Annexure A-4, his Grade Pay should have been fixed at
Rs.5400/- instead of Grade Pay of Rs.4800/-
4. The applicant submits that the issue as to
whether the Grade Pay should be given on the next promotional post in the
hierarchy/cadre or not while granting finance upgradation under MACP Scheme,
was the subject matter before the Chandigarh Bench and the Principal bench of
this Tribunal wherein it was held that financial upgradation should be given in
the next promotional post.By placing reliance upon the orders of the Chandigarh
Bench of the. Tribunal dated 31.05.2011 in O.A.No.1038/CH/2010 (Raj Pal
vs.Union of India & Others) and the Principal Bench of the Tribunal dated
26.11.2012 in O.A.No.904/2012 (Sanjay Kumar and Others vs. The Secretary
Ministry of Defence, New Delhi and others), the applicant submitted a
representation dated 17.04.2014 vide Annexure A-6 to the Director General,
National Water Development Agency, New Delhi, requesting to extend similar
treatment and to revise his Grade Pay consequent upon granting the benefit of
2nd financial upgradation under the MACP Scheme, which came to be rejected by
order dated 19th August 2014 vide Annexure A-1. Being aggrieved by the action
on the part of the respondents in not giving him the Grade Pay of Rs.5400/- on
extending the benefit of 2nd financial upgradation. the applicant presented the
instant O.A seeking a declaration that the applicant is entitled to get the
Grade Pay of Rs.5400/- in Pay Band Rs.15600-39100 (PB-3) on being granted the
2nd financial upgradation under the MACP Scheme vide order dated 10.06.2013
vide Annexure A-S and for a direction to the respondents to grant the Grade Pay
of Rs.5400/- in pay Band Rs.15600-39100 (PB-3) on being granted the Grade Pay
of Rs.5400/- in pay Band Rs.15600-39100 (PB-3) on being granted the 2nd
financial upgradation under the MACP Scheme. He further prayed for a direction
to fix his pay as requested above and grant the arrears of difference of pay.
5. Pursuant to the notice of the O.A. the respondents
entered appearance Today, though the matter stands posted for reply of the
respondents, the learned counset for the respondents, Mr.B. Mishra, Submits
that in view of the recent judgement of the Hon’ble High Court of Delhi on the
present issue and by applying the same, the O.A.can be disposed of on the same
lines.
6. By placing reliance upon the judgements of the
Hon’ble High Court of Delhi dated 04.04.2011 in W.P.(C) No.3420/2010 in the
case of R.S.Sengor & Other V.Union of India and Others and dated 17.03.2015
in W.P.(C) No.5082/2013 in the case of Swaran Pal Singh and Others vs.Union of
India and Others, Shri B.Mishra submits that the applicant is not entitled for
any relief as prayed for in the O.A.and the O.A.deserves to be dismissed.
7.Shri B.A.Vaishnav, learned counsel for the
applicant is not a position to dispute the fact that the issue involved in this
O.A. has been considered by the Hon’ble High court of Delhi in the two cases
relied upon by Shri B.Mishra.
8. Perused the pleadings and the documents
annexed thereto Shri B.A.Vaishnav, learned counsel for the applicant argues
that on extension of the benefit of 2nd financial upgradation under the MACP
Scheme vide order dated 10.06.2013 (Annexure-A-4), the respondents have fixed
the Grade Pay of the applicant at Rs.4800/- instead of Rs.5400/- Shri
B.A.Vaishnav points out that the next promotional post of Assistant Executive
Engineer carries the Grade Pay of Rs.5400/- in Pay Band Rs.15600-39100 (PB-3)
as such on granting the 2nd financial upgradation under the MACP Scheme, the
Grade Pay shall be fixed at Rs.5400/- and not at Rs.4800/-. The respondents in
their order dated 19.08.2014 rejected his claim be referring to the provisions
of the MACP Scheme contained in Office Memorandum No.35034/3/2008-Estt.(D)
dated 19.05.2009. Shri B.A.Vaishnav by placing reliance upon the order of
Chandigarh Bench of the Tribunal dated 31.05.2011 in O.A.No.1038/CH/2010 (Raj
Pal vs.Union of India & Others) and the orders of the Principal Bench of
the Tribunal dated 26.11.2012 in O.A.No.904/2012 (Sanjay Kumar and Others
vs.The Secretary Ministry of Defence, New Delhi and Others), dated 08.09.2015
in O.A.No.1586/2014 (vinai kumar Srivastav and Another v.East Delhi Municipal
Corporation, Delhi and Others) and dated 11.09.2015 in O.A.No.101/2015 (Vikas
Bhutani and others v.Union of India and Others) argues that the stand of the
respondents for rejecting the claim of the applicant has been negatived in the
said orders and as such the applicant is entitled for the reliefs as sought for
in this O.A.
9. The grievance made by the applicant in this
0.A.is that he is entitled to the Grade Pay of Rs.5400/- and highlighted the
basis of hit claim that his next promotional hierarchy of post is the Assistant
Exebutive Engineer in. the Pay Band of Rs.15600-39100 with Grade Pay of
Rs.54001/-
10.Shri B.Mishra, learned counsel fir the
respondentt submits that the
respondents have correctly granted the MACP benefit by upgrading the Grade Pay of Rs.4600/- to Rs.4800/-.
respondents have correctly granted the MACP benefit by upgrading the Grade Pay of Rs.4600/- to Rs.4800/-.
11. In view of the rival submissions of the
learned counsel for the parties, the question that arises for our consideration
is as under:
“Whether the hierarchy contemplated by the MACP
Scheme is in the immediately next higher Grade Pay or is it in the Grade Pay of
the next above pay Band”.
12. Shri B.Mishra Learned counsel for the
respondents points out that an identical question has been articulated by the
Hon’ble High court of Delhi in W.P.(C) No.3420/2010, R.S.Sengor & Others v.
Union of India and Others, decided on 04.04.2011. We have carefully gone
through the said judgement. We notice that the Hon’ble High Court of Delhi in
R.S.Sengor & Others v. Union of India and Others articulated identical
issue and the same is at para 10 of the judgement it reads as
10. The question would be whether the hierarchy
contemplated by the MACPS is in the immediately next higher Grade Pay or is it
the Grade Pay of the next above Pay Band.”
The above question is answered by the Hon’ble
High court of Delhi at Para 11 of the said judgement, which reads as under.
11. “Whatever may be the dispute which may be
raised with reference to the language of paragraph 2 of the MACPS the
illustration as per para 4 of Annexure I to the OM, contents whereof have been
extracted hereinabove, make it clear that it is the next higher Grade Pay which
has to be given and not the Grade Pay in the next hierarchical post and thus we
agree with the respondents that Inspectors have to be given the Grade Pay after
10 Years in Sum of Rs.4,800/- and not Rs.5,400/- which is the Grade Pay of the
next Pay Band and relatable to the next hierarchical post. To put in pithily,
the MACPS Scheme requires the hierarchy of the Grade Pays to be adhered to and
not the Grade Pay in the hierarchy of Posts”.
13.Shri B.Mishra further drew out attention to
Para 11 of a recent judgement dated 17.03.2015 in W.P.(C)
No.5082/2013,Swaranpal Singh and Others v. Union of India and Other on the file
of the Hon’ble Delhi High court by which the view in R.S.Sengor (Supra) was
reiterated. It reads as under (O.A.No.18 of 2015 – Ahmedabad Bench)
“11. Questions that would essentially arise for
determination in this case are whether the benefit under MACPS can be claimed
to the pay band applicable to the next promotional post in the hierarchy on the
groung of seniors getting lesser pay than their juniors who have availed such
scale of the promotional post under the ACP Scheme whether section-II Part-A of
the 1st Schedule to the Railways Services (Revised Pay) Rules, 2008 prescribe
minimum pay and the petitioners by application thereof become entitled to
stepping up of their pay in case their pay scales/pay band fixed in terms of
Rule 7 is less than the minimum pay so prescribed.”
On a careful reading of the judgement of the
Hon’ble High Court of Delhi Swaranpal Singh and Others v.Union of India and
Others, we find that the Hon’ble High Court answered the above question at para
19 of the said judgement, which reads as
19. The grievance of the petitioners as made, is
-however, contrary to the fundamental concept on which MACPS introduced through
the 6th Central Pay Commission Operates. A bare reading of paragraph 2 of the
MACPS would.pake it clear that it Is the next higher Grade, Pay which has to be
given and not the Grade Pay in the next hierarchical post, as was available
under tfie ACP Scheme with reference to , the pay scale of the .next above
hierarchical post. It is not in dispute that MACPS supersedes ACP Scheme which
was in force till August 31,2008. Therefore, after August 31,2008 any financial
upgradation would be confined to placement in the immediate next higher grade
pay in the hierarchy of the recommended revised Pay Band. The use of word
‘merely’ in para 2 of the Scheme supports this interpretation. Paragraph 2
further clarifies that the higher Gfade Pay attached to the next promotional
post in the hierarchy of the concerned cadre/organilation will be given
only at the time .of regular promotion. Therefore; the claim. that the
petitioners shoCild also be placed in the replacement Pay Band applicable to
the next prbmotional post in the hierarchy as was available under the ACP
Scheme is misplaced.”
14. At para 20 of the said judgement their
Lordships were pleased to note that the very same issue had come up for
consideration before this court in W.P.(C) No.3420/2010 in the case of
R.S.Sengor & Others v. Union of India and Others, decided on 04.04.2011
their lordships quoted
20. This very issue had come up for consideration
before this court in W.P.(C) No.3420/2010 R.S.Sengor & Ors Vs. Union of
India & Qrs decided on April 04, 2011 in said case the petitioners were in
pay band-1 and had a corresponding grade pay of Rs.1900/- The next hierarchical
post was also in pay Band -1 but had a grade pay of Rs.2400/- The petitioners
therein claimed that since the next hierarchical post had a pay band of
Rs.2400/-, they should, on financial upgradation, under the MACPS, be granted
the grade pay of Rs.2400/- however, what the respondents in that case had done
was to grant the petitioner therein the grade pay of Rs.2000/- which was the
next higher grade pay though, not the grade pay corresponding to the next
hierarchical post. Dismissing the writ petition the Division Bench held as
under:-
“10.The question would be whether the hierarchy
contemplated by the MACPS is in the immediately next higher Grade Pay or is it
the Grade Pay of the next above Pay Band.
11. Whatever may be the dispute which may be
raised with reference to the language of paragraph 2 of the MACPS the
illustration as per para 4 of Annexure-I to the OM, contents whereof have been
extracted hereinabove, make it clear that it is the next higher Grade Pay which
has to be given and not the Grade Pay in the next hierarchical post and thus we
agree with the Respondents that inspectors have to be given the Grade Pay after
10 Years in sum of Rs.4800/- and not Rs.5400/- which is the Grade Pay of the
next pay Band and relatable to the next hierarchical post. To Put in pithily,
the MACPS Scheme requires the hierarchy of the Grade pay to be adhered to and
not the Grade pay in the hierarchy of posts.
15. By referring to the fact that the view in
R.S.Sengor was followed by another Division Bench of this court in the decision
reported as 193 (2012) DLT 577, Union of India Vs.Delhi Nurses Union (Regd.)
and Anr at para 22 of the said judgement, it was held as under:
“22.Therefore, merely because others who have
been granted financial upgradation in the pay scale of the promotional
post in the hierarchy under the ACP Scheme and ti operation of para 6 of MACPS,
their pay is fixed with reference to the ay scale granted to therp under the
ACP Scheme, the petitioners would n t get any right to be placed in such
scales, since the language of the scheme makes it clear that the financial
upgradation under ACP/MACPS are different than regular promotions in the
grade.”
The claim of the petitioners before the Honible
High Court of Delhi in R.S. Sengor and others.,(supra) and Swarah Pal Singh and
Others (supra) is identical to that of the claim of the applicant in this 0.A ,
as such in view of the findings of the Hon’ble High Court of Delhi on the issue
at hand, one has to agree with the argument of Shri.B.Mishra, learned counsel
for the respondents.
16.Before agreeing with the argument of Shri
Mishra, learned counsel for
the respondents, it is necessary for us to deal with the argument of Shri B.A.VaishnaV, learned counsel for the applicant. As already observed, in support of the claim of the applicant, he places reliance upon the following orders.:
the respondents, it is necessary for us to deal with the argument of Shri B.A.VaishnaV, learned counsel for the applicant. As already observed, in support of the claim of the applicant, he places reliance upon the following orders.:
(i) Order dated 31.05.2011 in 0.A.No.1038/CH/2010
in the case of Raj Pal Vs. Union of India and Others on the file of
Chandi&rh Bench of the TribUnal;
(ii) Order dated 26.11.2012 in O.A. No 904/2012
in the case -of Sanjay Kumar vs. Union of India and Others on the file of
Principal Bench of CAT, New Delhi;
(iii) Order dated 11.09.2015 in O.A. No.-
101/2015 in the case of Vikas Bhutani and Others v.Union of India and Others on
the file of Principal Bench of CAT, New Delhi;
(iv) Order dated 08.09.2015 in 0.A. No. 1586/2014
in the case . of Vinai Kumar Srivastav – v.East Delhi Municipal Corporation and
Others on the file of Principal Bench of CAT, New Delhi.
Shri B.A.Vaishnav also points out that the order
of the Chandigarh Bench of this Tribunal in O.A.No.1038/CH/2010 was subject matter
before the Hon’ble Punjab and Haryana High Court in CWP No 19387/2011 and the
Hon’ble High Court of punjab and Haryana confirmed the order passed in Raj
Pal’s case. He further points out that the SLP [(CC) 7467/20131 preferred
againSt the order of Hon’ble high court of Punjab and Haryana was dismissed by
the Hon’ble Supreme Court by judagement dated 15.04.2013 and the matter has
attained finality. He argues that in view of the fact that the judgement
of the Hon’ble High Court of Punjab and Haryana was subject matter before the
Hon’ble Suprerne Court in the said SLP, which came to be decided bi’the HOn’ble
Supreme Court by judgement dated 15.04.2013, the submission of Shri B Mishra.
cannot be entertained. The thrust of Shri B.A. Mishra cannot be entertained the
thrust of Shri B.A. Vaishnav is that the judgement of the Hon’ble High court of
Delhi in view of dismissal of SLP. At this juncture, shir B.Mishra brings to
out notice that the order of Honble Supreme Court in SLP [(CC) 7467/2013] is
not on merits but on the groung of delay and laches. In this regard, we may
also mention that an identical matter to that of Raj Pal (supra) was the
subject matter before the Ernakulam Bench of the Tribunal in O.A.No.816/2012
and the Hon’ble Tribunal allowed the same vide order dated 29.01.2013 by
following the order of the Chandigarh Bench dated 31.05.2011 in
O.A.No.1038/CH/2010, affirmed by the Punjab and Haryana High Court in its
judgement dated 19.10.2011 in CWP No.19387/2011. The said order of the
Ernakulam Bench in O.A.No.816/2012 was challenged before the Hon’ble high court
of Kerala in OP (CAT) No.2000 of 2013 which came to be confirmed vide its
judgement dated 24.06.2013 The judgement of the Hon’ble high court of kerala in
O.P.No.2000/2013 was challenged by the Union of India before the Hon’ble
Supreme Court in S.L.P. (C) No.21813/2014 [ CC No.10791 of 2014] and the Hontle
Supreme Cou by the order- dated 08.08.2014 was pleased to stay the judgement of
Hon’ble High Court of Kerala and the matter is still pending consideration of
the HOn’ble Supreme Court. By referring to this fact Shri B.Mishra argues that
it c nnot be said that the Hon’ble Supreme Court Jaid down any law While
dismissing he said SLP (CC)7467/2013 by the judgement dated 15.04.2013 In other
words, the order of the Hon’ble Supreme Court in SLP [(CC) 7467/2013] is not on
th merits of the matter but is only on the ground of delay and laches. Hence
what can be argued-is that the judgement of the Hon’ble Supreme Court in Raj
Pal’s case binds only to the parties to the same. It cannot be regarded/treated
as a precedent. We are in agreement with the argument of Shri B.Mishra
Particularly in view of the fact that the Hon’ble Supreme Court was pleased to
stay the judgement of the Kerala High court in O.P.No.2000/2013 and the matter
is still pending.
17. Now the next, question before us is that in
view of the conflicting view of the Honible High Court of Delhi and the Hon’ble
High of Punjab and Haryana we.are in dilemma as to which of the judgements are
to be preferred to that of another. Neither of the learned counsel is placing
reliance upon any of the judgement of Hon’ble. Gujarat High Court in support of
their respective Clairris. To answer this problem we may usefully refer to the
Full Bench judgement of thiS Tribiinal in 0.A No.555/2004 Dr.A.K. Dawar
v.Union of India.and Others, on the file of the Principal. Bench of this
Tribunal.In Dr.A.K. Dawar, the Principal Bench was considering the situation
arising out of conflicting decisions of Horeble High Court. It referred to the
decisions in M/s- East India Commercial C.o. Ltd, Calcutta and Another
v.Collector. of Customs, Caloutta, AIR 1962 SC 1693, Bhagaban Sarangi (supra)
IPCL and Another v. Shramik Sena (2001) 7 SCC 469 and Director General
(I&R) v. Holy Angels Schools, 1998 CTJ 129 (MRTPC). It held
“17 Consequently,we hald:-
1.that if there, is a judgement Of the High.
Court on the point having territorial juriSdiction over thiS Tribunal, it
would, be binding :
2.that if there is no decision of ihe High Court having
territorial: jurisdiction on the Point involved but there is a decision of the
High Court anywhere in India, this Tribunal Would be bound by the.deciSiorr of
that High Court;
3. that if there are conflicting decisions of the
High Courts including the High Court having the territorial jurisdiction, the
cleciion of the Larger Bench would be binding,
and
4. that if there are conflicting decisions of the
High Courts including the one having territorial jurisdiction then following
the ratio of the judgement in the case of Indian petrochemicals Corporation
Limited (supra),this Tribunal would be free to take its own view to accept the
nil keg of either of the High Courts rather than expressing third point
of view.”
of view.”
Thus, in view of the decision of the .Full Bench
in Dr. A.K. Dawar (supra), by following the judgemern in Indian Petrochemicals
Corporation Limited (supra) we are free to take our -own view to accept the
rulings of either the Hon’ble High COurt of Delhi and Hon’ble’l h Court of
Punjab and Haryana. At this juncture, we may also observe that among the
rulings, relied upon by the parties, the judgement of Hon’ble High Court of
Dlielhi in W.P.(C) No 3420/2010 in the case of R.S. Sengor & Others vs.
Union of 4idia and Others is the oldest one, i.e. dated 04.04.2011.
The order of the Chand garh.Bench of the Tribunal in the case of Raj Pal vs. Union of India and Others in O.A No 1038/CH/2010 was decided later. In other words, as on the date of “deci ‘on of the Chandigarh Bench of the Tribunal in Raj Pal, the judgement of Honble high Court of Delhi was very, much available and if it refers to the issue involved in this 0.A, then’ the judgethent in Raj Pal is per incuriam. Hon’ble High Court of Punjab and Haryana did not refer to the jOdgement of Hon’ble High Court of. Delhi in the case of R.S SengOr while dealing with the CWP No .19387/2011 (supra). In view of this position and also in view of the guidelines of the Full Bench of the TribOnal (Principal Bench) in Dr. A.K. Dawar (supra), we accept the ruling of the Horiible High court of Delhi in R.S. Sengor (supra) which was consistently. followed y it in Swaran Pal Singh (supra) and also in Union of India vs. Delhi Nurses Union (Regd) and Another reported at 193 (2012) DLT – 577. We may also observe thai the Hon’ble Supreme Court in the case of Government of Tamil Nadu vs.S.ArUmugham & Ors. held that the Courts cannot substitute their own views for the vies of the Government Or :direct a new policy based on the Court’s view Further, Honble Supreme court in the case of Secretay, govt. (NCT of Delhi) & Others v.Grade-I DASS Officers Association & Others, 2014 (13) SCC 296, While considering ACP Scheme held that the scheme being a policy decision of the Government, the Court will not interfere with the same.
The order of the Chand garh.Bench of the Tribunal in the case of Raj Pal vs. Union of India and Others in O.A No 1038/CH/2010 was decided later. In other words, as on the date of “deci ‘on of the Chandigarh Bench of the Tribunal in Raj Pal, the judgement of Honble high Court of Delhi was very, much available and if it refers to the issue involved in this 0.A, then’ the judgethent in Raj Pal is per incuriam. Hon’ble High Court of Punjab and Haryana did not refer to the jOdgement of Hon’ble High Court of. Delhi in the case of R.S SengOr while dealing with the CWP No .19387/2011 (supra). In view of this position and also in view of the guidelines of the Full Bench of the TribOnal (Principal Bench) in Dr. A.K. Dawar (supra), we accept the ruling of the Horiible High court of Delhi in R.S. Sengor (supra) which was consistently. followed y it in Swaran Pal Singh (supra) and also in Union of India vs. Delhi Nurses Union (Regd) and Another reported at 193 (2012) DLT – 577. We may also observe thai the Hon’ble Supreme Court in the case of Government of Tamil Nadu vs.S.ArUmugham & Ors. held that the Courts cannot substitute their own views for the vies of the Government Or :direct a new policy based on the Court’s view Further, Honble Supreme court in the case of Secretay, govt. (NCT of Delhi) & Others v.Grade-I DASS Officers Association & Others, 2014 (13) SCC 296, While considering ACP Scheme held that the scheme being a policy decision of the Government, the Court will not interfere with the same.
18.We have also carefully peruSed the
Office-Memorandum dated 19.05.2009 by which the Government has introduced the
MACP Scheme. Pares 2, 8 and 8.1 of the MACP Scheme are relevant and they are
noted as under
“2. The MACPS envisages merely placement in the
immediate next higher grade pay in the hierarchy of the recommended revised pay
bands and grade pay as given in Section 1, Part-A of the-first schedule of
the-CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial
upgradation under the MACPS can, in certain cases where regular promotion is
not between two successive grades, be different than what is available at
the time of regular prornotion. In such cases, the highergrade Pay attached to
the next promotion . post in the hierarchy , of the concerned
cadre/organization will be given only at the time of regular Prornotion.
8. Promotions earned in the: post carrying same
grade pay: in the promotional hierarchy as per RecrultmentRules shall be
counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth
CPC’s retommendations, grade Pay of Rs. 5,400/- is now in. two pay bands viz.,
PB-2 and 1513-3. The grade Pay. of Rs.5,400/- in PB-2 and Rs. 5400/- in PB-3
shall be treated as separate grade pays for the purpose of grant of upgradations
under MACP-Sthenie.”
19. Annexure I to the DOPT OM dated 19.5.2009,
vide illustration 4 clarifies as under:-
“In case a Govt. Servant joins as a direct
recruits in the Grade Pay of Rs.1,900/- in Pay Band-I Rs.5,200 – 20,200/- and
he gets no promotion till completion of 10 years of service, he will be granted
financial upgradtaion under MACP scheme in the next higher Grade Pay of RS.
2,000/- and his . paY will be fixed by granting him one increment + difference
of grade . pay (i.e. Rs.100/-). After availing financial upgradation under
MACP scheme, if the Govt. servant gets his regular promotion in the hierarchy
of his cadre, which is to the. Grade of Rs. 2,400/-, on regular promotion, be
will only be granted the differ:ence of Grade Pay of betWeen Rs.2,000/- and Rs.
2400/-. No additional increment will be granted at this stage.”
A combined reading of the above stipulations in the MACP Scheme would lead
to a irresistible conclusion that it is the next higher Grade pay which has to
be given and not the Grade Pay in the hierarchical post and thus we agree with
the respondents that the applicant has to be given the Grade Pay in a Sum of
Rs.4800/- and not Rs.5400/- which is the Grade Pay of the next pay Band and
relatable to the next hierarchical post.
20. In view of the foregoing, we do not find
fault with the action on the part of the respondents in granting the Grade pay
of Rs.4800/- while extending the benefit of 2nd financial upgradation under the
MACP scheme and consequently, the question of any direction as sought by the
applicant does not arise. The O.A.deserves to be dismissed accordingly the same
is dismissed with no order as to costs.
Sd/-
(K.N.Shrivastava)
Administrative Member
(K.N.Shrivastava)
Administrative Member
Sd/-
(M.Nagarajan)
Judicial Member
(M.Nagarajan)
Judicial Member
strengthening of
administration — Periodical Review under FR 56 (j) and Rule 48 of CCS (Pension)
Rules, 1972 : Composition of Representation Committee
No.25013/01/2013-Estt.A-IV
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
Establishment A-IV Desk
*********
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
Establishment A-IV Desk
*********
North Block, New Delhi
Dated 1st March, 2016
OFFICE MEMORANDUM
Subject :- Strengthening of administration —
Periodical Review under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972 :
Composition of Representation Committee.
The undersigned is directed to refer to para 12
of DoP&T’s O.M. of even number dated 11.09.2015 on the above mentioned
subject and to say that the Representation Committee for officers below
Secretary level in Ministries / Departments of Government of India will be as
follows:-
(i) A Secretary to be nominated by the Cabinet Secretary;(ii) One nominee of the Cabinet Secretary of AS / JS level : and
(iii) One representative of Cadre Controlling Authority, to be nominated by its Secretary.
2. A request to constitute the Committee may be
sent to Cabinet Secretariat in case of receipt of representation from any
Government servant whom the Appointing Authority has decided to retire under FR
56 (j) and Rule 48 of CCS (Pension) Rules, 1972.
(Mukesh Chaturvedi)
Director (Establishment)
Tel. 23093176
Director (Establishment)
Tel. 23093176
Special casual leave to
Central Government employees who participate in programme conducted by Central
Civil Services Cultural and Sports Board (CCSCSB)
No.6/3/2015-Estt(Pay-I)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
New Delhi: 29th February, 2016
OFFICE MEMORANDUM
Subject: Participation by Central
Government servants in sporting events and tournament of National or
International importance.
The undersigned is directed to refer to this
Department’s OM No.6/1/85-Estt(PaY-1) dated 16th July, 1985 wherein
special casual leave is granted to Central Government employees for a period
not exceeding 30 days in any one calendar year for participating in the
sporting events as mentioned under para 1 of the OM ibid. In order to promote
adventure sports and similar activities amongst Central Government employees,
it has been decided to .
(A.K.gain)
Deputy Secretary(Pay)
Deputy Secretary(Pay)