For The vs Madhava Rao & Ors. Paragraph 12 Of ...
2021 Latest Caselaw 4125 Cal

Dl.   August 9,
8      2021
and
                                  Through Video Conference
9.
                                      W.P.C.T. 3 of 2019
                                            With
                                      W.P.C.T. 4 of 2019

                              Mr. K. K. Maiti,
                                   ...for the petitioner in WPCT 3 of 2019.

                              Mr. Asit Kumar Manna,
                              Mr. Niladri Saha,
                                   ...for the respondent no. 1 to 15

in WPCT 3 of 2019 and for the petitioners in WPCT 4 of 2019.

Mr. Partha Ghosh, Mr. Anirban Mitra, ...for the Union of India.

Two separate writ petitions have arisen out of a

common order dated November 30, 2018 passed by the Central

Administrative Tribunal in Original Application No. 651 of 2015.

The applicants, who are fifteen (15) in numbers, have

challenged the withdrawal of Modified Assured Career Progression

Scheme introduced on May 19, 2009 as recovery proceedings were

initiated by their employer, Central Excise Department, on a plea

that the original applicants were not entitled to the Modified

Assured Career Progression benefits. The Central Administrative

Tribunal was approached in the year 2015 and the original

application was disposed of on November 30, 2018.

All the original applicants as on date have retired from

services. The basis of withdrawal of the Modified Assured Career

Progression benefits was by reason of Office Memorandum dated

October 20, 2014 read with corrigendum dated October 22, 2014,

which was issued by way of clarification to its earlier letter dated

March 11, 1988. The said letter dated October 20, 2014 states that

the placement of existing incumbents to the extent of upgradations

involved, in the upgraded post will also be treated as

promotion/upgradation and offset against entitlements under ACPS.

This was in precinct of the modified assured career progression

scheme claimed to be introduced on May 19, 2009.

Two issues arose before the tribunal for consideration,

firstly, the entitlement of the departmental letter dated October 20,

2014 read with corrigendum dated October 22, 2014 and secondly,

withdrawal of Modified Assured Career Progression benefits

granted to the applicants. The tribunal, in deciding the matter, has

relied upon the aforesaid circulars including the contentions of the

applicants with regard to their status in the establishment and the

letter dated August 6, 2004 issued by the Department of Revenue,

Government of India. What emerged from the pleadings and

documents before the tribunal are (i) the original applicants joined

the department of Central Excise as Lower Division Clerks between

1982-83. (ii) They were promoted to upper division clerks on

diverse dates in the year 1990. (iii) When one-third of upper

division clerk posts were upgraded to that of tax assistants pursuant

to fourth CPC recommendation, the original applicants were

placed/promoted/upgraded to the post of Tax Assistants between

1993-94 on diverse dates, to a higher scale of pay; at the material

point of time, the hierarchy was lower division clerk - upper

division clerk - Inspector - Deputy Office Superintendent (Level

II); the tax assistant was an intermediate scale created between

upper division clerk and inspector in the manner as LDC-UDC-TA-

Inspector-Dy. OS (Level II) and the tax assistants were also eligible

for pormotion to Inspectors and accordingly it formed a feeder

grade to that of Inspector. (iv) Even after they were promoted to the

post of Inspector, the original applicants were granted the Modified

Assured Career Progression benefits as Inspector in Pay Band 2

Grade Pay Rs.4,600/- and moved to Pay Band 2 Grade Pay Rs.

4,800/- with effect from September 1, 2008. The chart showing

upgradation from time to time and the financial upgradation

extended under the Modified Assured Career Progression scheme

were given in the order impugned. The Modified Assured Career

Progression order would show that the original applicants got three

promotions, namely, (i) as Upper Division Clerk on January 30,

1990 from Lower Division Clerk, (ii) as Tax Assistant on August

16, 1993 from Upper Division Clerk and (iii) as Inspector on

February 15, 1995 from Tax Assistant. However, they were

extended the benefit of modified assured career progression scheme

in Pay Band 2 Grade Pay Rs. 4,800/-, which they would not have

earned in normal course as only three modified assured career

progressions could be availed of by a government servant in the

entire service career and each promotion earned would offset one

such modified assured career progression. Their advancement in

career was taken thrice and as they were never stagnated in a scale

for more than ten years. The tribunal observed that the Modified

Assured Career Progression was granted erroneously to them. The

tribunal in paragraph 8 of its judgment illustrated the said facts.

Paragraph 8 of the judgment of the tribunal reads as under :-

"8. It would be worthwhile to quote MACP

provisions, MACP scheme explicitly and

unambiguously illustrates the following :

28. Illustrations :

(A(i) if a Government servant (LDC) in PB-I in the Grade Pay of Rs. 1,900 gets his first regular promotion (UDC) in the PB-I in the Grade Pay of Rs. 2,400 on completion of 8 years of service and then continues in the same Grade Pay of further 10 years without any promotion, then he would be eligible for 2nd financial upgradation under the MACPS in the PB-I in the Grade Pay of Rs. 2,800 after completion of 18 years (8+10 years).

(ii) In case he does not get any promotion thereafter, then he would get 3rd financial upgradation in the PB-II in Grade Pay of Rs. 4,200 on completion of further 10 years of service, i.e., after 28 years (8+10+10).

(iii) However, if he gets 2nd promotion after 5 years of further service in the pay PB-II in the Grade Pay of Rs. 4,200 (Asstt. Grade/Grade 'C') i.e. on completion of 23 years (8+10+5 years), then he would get 3rd financial upgradation after completion of 30 years i.e. 10 years after the 2nd ACP in the PB-II in the Grade Pay of Rs. 4,600.

In the above scenario, the pay shall be raised by 3% of the total pay in the Pay Band and Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay or in the higher Grade Pay. Only the difference of grade pay would be admissible at the time of promotion.

(B) If a Government servant (LDC) in PB-I in the Grade Pay Rs. 1,900 is granted 1st financial upgradation under the MACPS on completion of 10 years of service in the PB-I in the Grade Pay of Rs. 2,000 and 5 years later he gets 1st regular promotion (UDC) in PB-I in the Grade Pay of Rs. 2,400, the 2nd financial upgradation under MACPS (in the next Grade Pay w.r.t. Grade Pay held by Government servant) will be granted on completion of 20 years of service in PB-I in the Grade Pay of Rs. 2,800. On completion of 30 years of service, he will get 3rd ACP in the Grade Pay of Rs. 4,200. However, if two promotions are earned before

completion of 20 years, only 3rd financial upgradation would be admissible on completion of 10 years of service in Grade Pay from the date 2nd promotion of at 30th year of service, whichever is earlier."

The learned advocate appearing on behalf of the

applicants has submitted that the post of tax assistant is not a

promotional post and in this regard he has relied upon paragraph 12

of a decision, rendered on June 6, 2001, of the division bench of

Andhra Pradesh High Court in the case of Central Board of Excise

& ors. vs. Madhava Rao & ors. Paragraph 12 of the said decision

reads thus :-

"It is now axiomatic that Rules framed in exercise of power under proviso to Article 309 of the Constitution of India cannot be supplanted by administrative orders. The vacuum in the Rules can be filled up by an administrative order if the same is not ultra vires the statutory Rules. When the statutory Rules provided for certain feeder categories, by an administrative order another feeder category cannot be created 'though for the purpose of removing stagnation and minimising discontent among the UDCs' it is always permissible for the appellants to create a non-cadre post of Tax Assistants within the cadre of UDCs. The distinction between "appointment to service" and "appointment to a post" cannot be lost sight of (see Dingra S. N. v. Union of India). All the Tax Assistants and UDCs are appointed to a service as UDCs, and all of them are entitled to count their service from the date of such appointment to the service. The mere circumstance of getting posted as Tax Assistants, may be after acquiring qualifications, cannot result in denying the entire service as UDC. Such denial of service as UDC for the purpose of reckoning seniority in the category of Tax Assistants would, in our opinion, violate the principles of equality enshrined in Articles 14 and 16 of the Constitution of India. The Tribunal, in our considered opinion, has come to a correct conclusion in rejecting the contention of the appellants herein."

There is no quarrel with the proposition that an

administrative order cannot alter the statutory rules. The incumbent

joins his service and his service conditions are governed by

statutory rules and it cannot be altered by issuance of an

administrative order. The creation of a feeder post as Tax Assistant

is not in violation of certain rules but facilitates another avenue for

progression to the post of Inspector so as to avoid any stagnation.

Accordingly, we are of the view that paragraph 12 of the cited

judgment has no manner of application in the instant case.

However, the fact remains whether the posts of Upper

Division Clerk and Inspector are all upgraded posts or promotional

posts. The clarification was made only on October 20, 2014 when in

relation to the department's letter dated March 11, 1988 a

clarification was issued on October 20, 2014 with a corrigendum

dated October 22, 2014. In between there is a circular dated August

6, 2004, which clearly states that the Tax Assistants retain their

basic seniority in the grade of Upper Division Clerk and the grade

of Tax Assistant cannot be treated as promotion grade in the normal

hierarchy of Upper Division Clerk. Hence, under ACP Scheme

Upper Division Clerk including the Tax Assistants are to be allowed

financial upgradation in the normal hierarchical grade, namely,

DOSL-II, DOSL-I. Accordingly, Upper Division Clerk and Tax

Assistant are eligible for financial upgradation under ACP Scheme

in the scale of DOSL-II and DOSL-I. Thus, the contention that tax

assistant was not a promotional post is not tenable. Even the letter

dated October 20, 2014 shows that tax assistant was a promotional

post.

However, the fact remains that only after the

clarification was issued on October 20, 2014, the department

proceeded on the basis that the original applicants may continue to

avail entitlements under the ACP in complete remise of the 2009

MACP circular. Financial benefits were extended to the original

applicants erroneously. There is nothing on record to show that the

original applicants have manipulated any record or had played any

role in receiving such financial benefits. After receiving such

financial benefits for almost five years, the department noticed the

anomaly and the mistake committed and, as such, tried to recover

the amount from the original applicants. The innocence of the

original applicants are not being disputed. However, the fact

remains whether they would be allowed to retain the said amount or

the Government would be entitled to recover the amount paid in

excess. The Government stopped paying such excess amount soon

after discovery order issued on February 26, 2015 and initiated a

recovery proceeding. The tribunal in its judgment relied upon a

decision of the Supreme Court in the case of State of Punjab & ors.

vs. Rafiq Masih (White Washer) & ors. reported in (2015) 2 S.C.C.

(L& S) 33 and taking note of DOPT office memorandum dated

March 2, 2016 directed the authorities to consider stoppage of

further recovery and refund of recovered amount in terms of the

said decision and office memorandum within a period of four

weeks.

We feel that the tribunal was justified in disposing of

the original application with the aforesaid direction having dealing

with the facts and materials available before it. The discretion in

favour of the original applicants having regard to the facts stated in

the judgment of the tribunal, we do not find any reason to interfere

with the same. However, no recovery should be made till the parties

concerned take a decision in this regard including refund of the

recovered amount. In addition to the aforesaid decision of Rafiq

Masih (supra) and the office memorandum dated March 2, 2016 the

respondent authorities shall also take into consideration the division

bench judgment in MAT 320 of 2018 (The Director of Pension,

Provident Fund & Group Insurance, Government of West Bengal

vs. Basudev Jana & ors.) and the decision of this court in WPCT 18

of 2020 (Union of India vs. Sunhas Hansda rendered on July 6,

2021.

The entire exercise shall be completed within a period

of eight weeks from date.

The writ petitions are, thus, disposed of without,

however, any order as to costs.

Photostat certified copy of this order, if applied for, will

be made available to the applicant within a week from the date of

putting in the requisites.

( Soumen Sen, J. )

dns ( Hiranmay Bhattacharyya, J. )