CENTRAL
ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA NO.3441/2012
MA NO.2879/2012
Reserved on 20.01.2014
Pronounced on 31.01.2014
HONBLE MR. ASHOK KUMAR, MEMBER
(A)
HONBLE MR. RAJ VIR SHARMA, MEMBER
(J)
1. All India CGHS Employees Association
Through
its General Secretary Jaidev,
S/o
Late Sh. Kanwal Singh
R/o
House no.H-69, Saket Kunj,
Rohini,
New Delhi.
2. I.S. Chauhan,
S/o
Mega Singh
R/o
16/102 East End Appt.
Phase-I
Mayur Vihar Ext. Delhi-96.
3. Vikas Jain,
S/o
Sh. Janeshwar Dayal Jain
R/o
C-29, Gali No.5,
West
Jyoti Nagar Ext., Delhi-94.
4. Naresh Bhardwaj,
S/o
Sh. Har Narain Bhardwaj
R/o
889/31, Ashok Vihar,
New
Court Road, Sonipat, Haryana. Applicants
(By Advocate: Mr. Arun Bhardwaj)
VERSUS
1. Union of India
Through
the Secretary
Ministry
of Health & Family Welfare,
Govt.
of India,
Nirman
Bhawan, New Delhi.
2. AS & DG (CGHS)
Ministry
of Health & Family Welfare,
Govt.
of India,
Nirman
Bhawan, New Delhi.
3. Director (CGHS)
Director
General of Health Services,
CGHS-II
Section,
Nirman
Bhawan, New Delhi.
4. Director Admn. (CGHS)
Director
General of Health Services,
CGHS-II
Section,
Nirman
Bhawan, New Delhi.
5. Additional Director (HQ), CGHS,
Bikaner
House, New Delhi.
6. Secretary
Deptt.
of Personnel & Training (DOPT)
Ministry
of Personnel, Public Grievance
&
Pensions, North Block,
New
Delhi.
7. Secretary Finance
Ministry
of Finance
Govt.
of India
North
Block, New Delhi. Respondents
(By Advocate: Mr.Tanveer Ahmed)
:ORDER:
MR. ASHOK KUMAR, MEMBER (A):
This OA has been filed against
the order dated 11.11.2011 (Annexure-A/1) issued by Director General of Health
Services, CGHS revising the grant of financial upgradations under the MACP
scheme in lower grade pay scale. The
impugned order also directs recovery of excess payment.
2. Facts of the case are that DOP&T had issued an office
memorandum regarding clarifications on the subject Assured Career Progression
Scheme (ACP) dated 18.07.2001 (Annexure-A/3) inter alia to clarify on the issue
as to whether placement/appointment in the higher scales of pay based on the
recommendations of the pay commissions or committee set up to rationalize the cadres
be reckoned as promotion/upgradation or not. DoPT in this OM clarified that
where all the posts are placed in a higher scale of pay, with or without a
change in designation; without requirement of any new qualification for holding
the post in the higher grade, not specified in the Recruitment Rules for the
existing post, and without involving any change in responsibilities and duties
then placement of all the incumbents against such upgraded posts was not to be
treated as promotion/upgradation. Subsequently, when the 6th Pay Commission
Report was being approved, the government had referred the matter relating to
the demands made with respect to the pay scales of certain common category
posts including that of Pharmacists to a Fast Track Committee (FTC). One of the
items referred to the FTC related to the pay scales of common category posts of
Pharmacists. The Committee recommended that while entry grade of Pharmacists in
Central Government would remain at the grade pay scale of Rs.2,800/- in the pay
band of PB-I, they shall on completion of two years service in the entry grade
be granted non-functional upgradation to the next higher grade having grade pay
of Rs.4200/- in the Pay Band PB-II. The recommendations made by the FTC were
considered by the Central Government and the recommendations of the FTC were
accepted with respect to the pay scales of common category posts of Pharmacists and w.e.f. 01.01.2006 and the
following pay structure was approved:-
S.No. Designation Pre-revised
pay scale Pay structure approved on the
recommendation of Fast Track Committee Remarks
1. Pharmacists 4500-7000
Grade pay of 2800 in PB-1
2. Pharmacists Grade-II 5000-8000 4200 in PB-II Pharmacists-II & Pharmacists-I will be merged and redesignated as pharmacists
(non-functional grade).
3. Accordingly, office memorandum dated 18.11.2009
(Annexure-A/5) on the subject of implementation of recommendations of FTC with
the aforenoted pay structure of Pharmacists cadre (common category) was issued.
Since the OM had used the word promotion from the Pharmacists (Entry Grade) to
the next higher grade of Pharmacists (NFG), the error was rectified vide OM
dated 02.06.2010 by the Department of Expenditure clarifying that the word
promotion be read as placement(Annexure-A/6). The applicants contention in the
OA is that the grant of grade pay of Rs.4200 after two years of service in the
grade pay of Rs.2800 was not linked to promotion and hence could not be treated
as promotion. Later, vide order dated 16.07.2010, the decision was communicated
that the impugned order dated 18.11.2009 were to be effective from
01.01.2006.
4. One of the applicants made a representation
(Anneuxre-A-8) drawing attention to the subsequent letter dated 11.11.2011
issued by the respondent-Directorate proposing to revise the grant of first,
second and third financial upgradations under the MACP from Rs.4600, Rs.4800
and Rs.5400 respectively to a lower grade pay of Rs.4200, Rs.4600 and Rs.4800
respectively. The representation stated that since it had been clarified that
the recommendations of the FTC were a part of Sixth Central Pay Commission,
hence such placement after two years of service could not be considered as
promotion or financial upgradation under MACP.
5. The impugned order dated 11.11.2011 (Annexure-A/1) was
issued, revising the grant of financial upgradation made vide letter dated
16.07.2010 as also recovery of excess payment. Applicants have cited a series
of judgments of the Honble Supreme Court & others in which recovery orders
have been held to be unjustified. These judgments are cited in para 4.27 of the
OA.
6. The following reliefs have been sought in this OA:-
i) The impugned order dated 11.11.2011 issued by Director General of
Health Services, CGHS revising the grant of financial upgradations under the
MACP scheme in lower grade pays and directing recovery of excess payment made
may kindly be quashed and set aside being illegal.
ii) The impugned order dated 19.09.2012 issued by Director
CGHS revising the grant of financial upgradation under ACP/MACP scheme in lower
grade pays as per letter dated 11.11.2011 and directing recovery of excess
payment in installments may kindly be quashed and set aside being illegal.
iii) All consequential benefits may be granted to the
Applicants.
iv) Any other relief, which this Honble Tribunal may deem fit
and proper in the circumstances of the case, may also be passed in favour of
the Applicants.
v) Cost of the proceedings be awarded in favour of the
Applicants and against the Respondents.
7. Counter affidavit has been filed by the respondents. In
para 4.1, respondents have stated as under:-
4.1 In reply to Para 4.1 of the O.A. it is submitted that the
clarification under para 35 of the DoPTs O.M. dated 18.07.2011 is relevant for
grant of financial upgradation under ACP Scheme. Whereas the present O.A. has
been filed against the orders dated 11.11.2011 issued by the Directorate which
is regarding the grant of financial upgradation under MACP Scheme. The grant of
Grade Pay of Rs.4200/- only on completion of two years of service has been
delinked from vacancies. Therefore, it cannot be said that all posts are placed
on a higher scale. Further, as per DoPTs O.M. dated 18.07.2001, the
rationalization/restructuring in favour of the creation of a number of new
hierarchical grades in the rationalized set up and some of the incumbents with
pre-rationalized set up are placed in the hierarchy of restructured set up in a
grade higher than the normal corresponding level taking into consideration
their length of service in existing pre-structured/pre-rationalized grade, then
this will be taken as promotion/upgradation. Therefore, the contention put
forth by the applicants is not valid.
8. Respondents have further stated that the grade pay of
Rs.4200/- from Rs.2800/- having been granted on completion of two years of
service in respect of Pharmacists as per recommendations of FTC would be
treated as 1st Financial upgradation under MACP Scheme and, therefore, 2nd and
3rd MACP should be granted in the grade pay of Rs.4600/- and Rs.4800/-
respectively. This is because every financial upgradation granted consequent to
recommendations of whichever committee will be offset against one financial upgradation
under MACP Scheme. Accordingly, when the grant of grade pay of Rs.4200/- is
made on expiry of two years and the entry grade for Pharmacists would be
treated as a financial upgradation for the purpose of MACP. It has also been
contended that not to treat the financial upgradation on the basis of the FTC
recommendation as MACP would be a misplaced view, specially when DOP&T has
clarified that every upgradation of grade pay will be offset against one
financial upgradation under MACP Scheme. Hence, although the upgradation from
Rs.2800/- to Rs.4200/- may not be treated as promotion, yet, however, it would
be treated as financial upgradation under the MACP Scheme.
9. Rejoinder has been filed on behalf of applicants.
Applicants have reiterated their contentions in the OA, highlighting that the
word Upgradation has to be replaced by the word Placement. It has been stated
that respondents are wrongly using the word upgradation/promotion, which is not
applicable in the present case of applicants who have only been given placement
in the higher pay scale after two years of service.
10. We have heard learned counsel for both parties and have
also perused the documents and pleadings on record.
11. Written submissions have also been filed on behalf of
applicants, which are on record.
12. We have perused the OM at Annexure-A/28 to the written
submissions. The subject in the OM reads as under:-
Subject: Revised pay structure of the common category posts of Pharmacists
Cadre implementation of Fast Track Committees recommendation regarding.
13. It is stated in the OM that the recommendations of the FTC
have been considered by the government and it has been decided to accept the
same and further the revised pay structure is approved for the common category
posts of Pharmacists cadre w.e.f. 01.01.2006. Paras 3 and 4 of the OM are
reproduced below:-
3. Consequently upon the implementation of the above pay
structure, promotion from Pharmacist (Entry Grade) to the next higher grade of
Pharmacist (Non-Functional Grade) having grade pay of Rs.4200/- will be
delinked from vacancies and will become non-functional and time-bound. In the
case of Organizations like the Ordnance Factory Board, where all the
Pharmacists posts are presently in the grade pay of Rs.2800 in the pay band PB-I,
the implementation of the above pay structure will result in the introduction
of the new Non-Functional Grade having grade pay of Rs.4200 in the pay band
PB-2.
4. All administrative ministries may initiate action to
implement the above revised pay structure in respect of the common category
post of Pharmacist Cadre.
14. It is also seen that vide OM dated 02.06.2010
(Annexure-A/6) a clarification was issued to the earlier OM dated 18.11.2009 to
the effect that the word promotion in the second sentence of para 3 of the OM
may be read as placement. Relevant portion of the said OM reads as follows:-
3. Consequently upon the implementation of
the above pay structure, promotion from Pharmacist (Entry Grade) to the next
higher grade of Pharmacist (Non-Functional Grade) having grade pay of Rs.4200/-
will be delinked from vacancies and will become non-functional and time-bound.
In the case of Organizations like the Ordnance Factory Board, where all the
Pharmacists posts are presently in the grade pay of Rs.2800 in the pay band
PB-I, the implementation of the above pay structure will result in the
introduction of the new Non-Functional Grade having grade pay of Rs.4200 in the
pay band PB-2.
15. It is thus noticed that according to the governments
decision communicated vide OM dated 18.11.2009, the revised pay structure to be
applied may read as Placement in place of Promotion.
16. Applicants have produced the decision of the Tribunal in OA
No.518/2005 (Annexure-A/31 of written submissions) on the reference whether
placement of Tracers, working in Ordnance Factories under DGOF, in the pay
scale of Rs.4000-6000 after completion of 7 yearsservice in the pay scale of
Rs.3200-4000 is to be treated as promotion while determining the eligibility
for financial upgradation under ACP Scheme. After discussing various judgments,
the decision of the Honble High Court of Bombay dated 11.12.2006 dismissing the
Writ filed by the Union of India was noted. The view held by the Honble High
Court in that case was that the placement of pay revised in the case of
applicants in that case could not be treated as regular promotion and the ACP
benefits rightly granted to the applicants could not be withdrawn. The
operative portion of the order is reproduced below:-
It appears that by the impugned
order dated 9/8/2003 before the Tribunal, the benefits granted under the ACP
Scheme were sought to be withdrawn, contending that the upgradations in the pay
scale of Draughtsmen, were already granted to the applicants by the order dated
15/9/1998 or the earlier notification dated 9/10/1994 and the said was, in
fact, a promotion. The Tribunal held that by placement in higher scale and
redesignation under O.M. dated 15/9/1990, the pay was fixed in terms of pay 97
of OM & FR 22(1)(a)(2) and the said did not amount to promotions in as much
as there were no higher responsibilities or duties of greater importance
assigned. In addition, there was absence of the promotion process either on the
basis of seniority-cum-merit or merit-cum-seniority in the said upgradation by
OM dated 15/9/1998. The Tribunal concluded, thus the placement of the pay
revision granted in pursuance to CPWD Arbitrat on award cannot be treated as
regular promotion and ACP benefit rightly granted to the applicant cannot be
withdrawn.
17. This view of the Honble High Court was challenged in SLP by
the Union of India, which was rejected.
18. The Government of India in the Ministry of Finance had
issued a clarification on 6th CPC replacement pay to the pre-revised scale of
pay of Rs.8000-275-13,500 granted on account of financial upgradation under the
ACP Scheme vide its letter dated 20.05.2011 (Annexure-A/34) of the written
submission. It was clarified in para 4 as follows:-
4. Further, the benefits of ACPS of August 1999 had been
allowed till 31.8.2008 and only functional promotion(s) is/are counted for the
purpose of Scheme. Besides, there is no provision for counting Non-functional
scalefor the purpose of ACP Scheme.
19. The above clarification categorically provides that
non-functional scale cannot be counted for the purpose of the ACP Scheme. The
above clarification of the Ministry of Finance, therefore, has to be read with
para 3 of the OM dated 18.11.2009 wherein it was clarified that Pharmacists
(Entry Grade) on promotion to the next higher grade of Pharmacist
(Non-Functional Grade) having grade pay of Rs.4200/- will be delinked from
vacancies and will become non-functional and time bound.
20. The Ernakulam Bench of the Tribunal in OA No.268/2007 has
held that when posts are placed in higher scale without a change in
responsibilities and duties, then such placement should not be treated as
promotion/ Upgradation (Annexure-A/32 of the written submissions).
21. In view of the aforesaid, we do not agree with the
contention of the respondents in their counter reply to the effect that the
implementation of the recommendations of the FTC for Pharmacists for
upgradation of grade pay of Rs.4200/- from Rs.2800/- on completion of two years
of service should be treated as 1st financial upgradation under MACP Scheme.
When it has been specifically clarified that word promotion is replaced by the
word placement, it can not be held that the grant of grade pay of Rs.4200/- on
non-functional and time-bound basis be treated as a financial upgradation under
MACP.
22. Based on the above, we are of the view that the impugned
order dated 11.11.2011 (Annexure-A/1) cannot be legally sustained and has to be
quashed and set aside. We accordingly do so. With the quashing of the impugned
order dated 11.11.2011, the question of any recovery to be made from the
applicants would automatically not arise. Respondents are directed to forthwith
implement the financial upgradation granted vide Directorate General of Health
Services letter dated 16.07.2010 communicating grant of 1st, 2nd and 3rd MACP
in the grade of Rs.4600/-, Rs.4800/- and Rs.5400/- respectively. Consequential
action shall be taken by the respondents accordingly within a period of 12
weeks from the date of receipt of a copy of this order.
23. OA is allowed with the aforenoted directions. Parties shall
bear their own costs.
(Raj Vir Sharma) (Ashok
Kumar)
Member (J) Member (A)
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