Delhi High Court
Union Of India & Ors. vs Brahm Prakash on 16 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.2649/2017 & CM No.11499/2017
+ Date of Decision: 16th August, 2017
UNION OF INDIA & ORS. .... Petitioners
Through: Mr.Ashok Singh, Advocate
versus
BRAHM PRAKASH ....Respondents
Through: Mr.A.K. Trivedi, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present writ petition assails the order dated 9th August,
2016 passed by the Central Administrative Tribunal, Principal Bench,
New Delhi, in O.A. No.44/2016 whereby the Tribunal has allowed the
Original Application filed by the Respondent. While allowing the
Original Application, the Tribunal has directed the Petitioners herein
to carry out proforma fixation of the salary of the Respondent in the
scale of Senior Clerk from the date of his appointment as Clerk, with
actual salary from his date of joining as Senior Clerk and has further
directed the Respondents to grant benefits of third MACP to the
Respondent.
2. Before dwelling into the facts, it may be noticed that the
Petitioners' challenge in the present writ petition is only to the second
part of the order dated 9th August, 2016 which pertains to grant of
benefits of third MACP to the Respondent. The Petitioners have,
thus, raised no grievance regarding the direction given by the Tribunal
for proforma fixation of salary of the Respondent in the scale of
Senior Clerk from the date of his appointment as Clerk, but has only
challenged to grant third MACP to the Respondent.
3. The facts as noticed by the Tribunal are that the Respondent
herein was appointed as a Clerk in the Railway Department on 7th
February, 1981 in the scale of Rs.260-400, and was subsequently
promoted as a Senior Clerk on 18th July, 1982 in the scale of Rs.330-
560 (revised Grade Pay of Rs.2800/-). The Respondent was promoted
to the post of Head Clerk on 21st July, 1989 in the scale of Rs.1400-
2300 (Revised Rs.5000-8000/-), whereafter he was promoted to the
post of Office Superintendent on 31st December, 2004 in the scale of
pay of Rs.6500-10500. The scale of Head Clerk and Office
Superintendent were merged in revised Grade Pay of Rs.4200/-. The
Respondent was, thereafter, promoted as Chief Office Superintendent
on 22nd March, 2006 in the revised pay scale of Rs.4600/-.
4. The Petitioners issued a Circular dated 17th January, 1997
directing that all serving graduate clerks who had been appointed as
such after 1st October, 1980 and had subsequently been appointed as
Senior Clerk on their qualifying the limited departmental competitive
exam, would be eligible for proforma fixation of their pay in the scale
of the Senior Clerk, with effect from the date of their appointment as
Clerks, but would be granted actual benefit only from the date of their
joining the post.
5. It emerges from the record that the benefit of this proforma
fixation in the scale of Rs.330-560 which was the pay scale of Senior
Clerk, was not granted to the Respondent w.e.f. 7th February, 1981,
even though his case was covered by the Petitioner's Circular dated
17th January, 1997. The Respondent made representations claiming
benefit of the aforesaid upgradation to the pay scale of Senior Clerk
from the date of his initial appointment as a Clerk, but no action was
taken by the Petitioner.
6. Upon acceptance of the recommendations of the Sixth Central
Pay Commission, the Railway Board vide its Circular RBE
No.101/2009, introduced the Modified Assured Career Progression
Scheme (MACPS) in lieu of the ACP Scheme for all Railway
employees. The MACP Scheme specifically provided that the
promotions earned under the ACP Scheme in the past to those grades,
which now carry the same grade pay, due to merger of pay scale,
would be ignored for the purpose of granting upgradations under the
MACP. Para 5 of the MACP Scheme as introduced by R.B.E.
Circular No.101/2009 reads as under:-
5. Promotions earned/upgradations granted
under the ACP Scheme in the past to those grades
which now carry the same grade pay due to merger
of pay scales/upgradations of posts recommended by
the Sixth Pay Commission, shall be ignored for the
purpose of granting upgradations under Modified
ACPS.
Illustration
The pre-revised hierarchy (in ascending order) in a
particular organization was as follows:
Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500.
(a) A Railway servant who was
recruited in the hierarchy in the pre-
revised pay scale Rs.5000-8000 and who
did not get a promotion even after 25
years of service prior to 1.1.2006, in his
case as on 1.1.2006, he would have got
two financial upgradations under ACP to
the next grades in the hierarchy of his
organization i.e., to the pre-revised scales
of Rs.5500-9000 and Rs.6500-10500.
(b) Another Railway servant recruited
in the same hierarchy in the pre-revised
scale of Rs.5000-8000 has also completed
about 25 years of service, but he got two
promotions to the next higher grades of
Rs.5500-9000 & Rs.6500-10500 during
this period.
In the case of both (a) and (b) above, the
promotions/financial upgradations granted under
ACP to the pre-revised scales of Rs.5500-9000 and
Rs.6500-10500 prior to 01.01.2006 will be ignored
on account of merger of the pre-revised scales of
Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500
recommended by the Sixth CPC. As per the RS
(RP) Rules, both of them will be granted Grade Pay
of Rs.4200 in the Pay Band PB-2. After the
implementation of MACPS; two financial
upgradations will be granted both in the case of (a)
and (b) above to the next higher Grade Pays of
Rs.4600 and Rs.4800 in the Pay Band PB-2."
7. After the issuance of the aforesaid Circular-introducing the
MACP Scheme for the Railway employees, the DoPT also issued a
clarification in 2012 to the same effect regarding granting of
promotions in scales which stood merged subsequently, and the same
reads as under:-
"Doubts Clarification
27 (iii) If a Government (iii) the pre-revised pay
servant recruited in the pre- scales Rs.5000-8000 and
revised pay scales of Rs.5500-9000 have been
Rs.5000-8000 has been merged and placed in PB-2
promoted in the with grade pay of Rs.4200/-
promotional hierarchy in the with effect from 1.1.2006.
pre revised pay scale of Hence the promotion would
Rs.5500-9000 prior to be ignored as he has
1.1.2006 and he has put in completed his 12 years of
12 years of regular service, regular service and the
then would there be any benefits of 1st ACP would
claim for financial accordingly be allowed in
upgradation under ACPS? the promotional hierarchy in
the grade pay of Rs.
(iv) If the above
Government servant has put (iv) As given above, the 1st
in 22 years as on 31.8.2008, ACP would be in PB-2 grade
then what would be the pay of Rs.4600/- after
entitlement in MACP? ignoring the previous
promotion. Thereafter, since
employee has completed
more than 20 years of regular
service on 1.9.2008, he
would be entitled for 2nd
financial upgradation under
the MACPS in the
immediate next higher grade
pay of Rs.4800/- in PB-2
subject to fulfillment of
conditions as stipulated in
Para 17 of Annexure-1 of
MACPS dated 19.5.2009.
"
8. Since the Respondent was neither granted the proforma pay
fixation in the grade of Senior Clerk which was Rs.330-560 w.e.f. 7th
February, 1981 nor granted benefit of third upgradation under the
MACP, he filed the aforesaid Original Application. In his Original
Application, the Respondent with reference to the pay scales of the
various posts from Clerk to Chief Office Superintendent, had
contended that as per para 5 of the MACP Scheme, after ignoring his
earlier promotions, from the pay scale of first Rs.260-400 to Rs.330-
560/- and from Rs.5000-8000 to Rs.5500-9000, he had been granted
only two promotions first being from the scale of Rs.330-560 (grade
pay of Rs.2800/-) to Grade Pay of Rs.4200/-, and the second being
from Grade Pay 4200/- to Grade Pay of Rs.4600/-. He, therefore,
contended that he was entitled to receive third financial upgradation
w.e.f. 7th February, 2011 when he had completed 30 years of service.
For the sake of convenience, the details of promotions earned by the
Respondent are being reproduced hereinbelow in tabular form:-
Sl.No. Date Event Grade Revised
Pay Scale
1 07.02.1981 Appointed as 260-400 1900
Clerk
2 18.07.1982 Promoted as Sr. 330-560 2800
Clerk
3 21.07.1989 Promoted as Hd. 1400-2300 4200
Clerk Revised
5000-8000
(Merged
Scale)
4 31.12.2004 Promoted as OS-II 5500-9000 4200
(Merged
Scale)
5 22.03.2006 Promoted as Ch. 6500-10500 4600
OS
9. The Tribunal, after considering the submissions of the parties and
the provisions of Circular dated 17th January, 1997 as well as the
MACP Scheme, allowed the Original Application by holding that the
Respondent having been appointed after 1st October, 1980, he was
entitled to proforma fixation of his pay in the scale of senior Clerk
w.e.f. 7th February, 1981 itself i.e. when he had been appointed as a
Clerk. The Tribunal further came to the conclusion that the
Respondent's earlier two promotions from Clerk to Senior Clerk as
well as from the Senior Clerk to Office Superintendent, had to be
ignored, and, therefore, directed the Petitioners to grant third financial
upgradation in the grade pay of Rs.4800/- w.e.f. 7th February, 2011
along with all consequential benefits.
10. Aggrieved by the aforesaid order passed by the Tribunal, the
Petitioner-Railways, has filed the present petition. As noticed
hereinabove, the Petitioners are not aggrieved by the first direction
given by the Tribunal in the order, and thus, there is no grievance
raised by the Petitioners that the Respondent was entitled to proforma
fixation in the pay scale of Senior Clerk w.e.f. 7th February, 1981
itself. The only issue, therefore, which was raised before us during
arguments was that the promotion of the Respondent from the post of
Clerk to that of Senior Clerk on 18th July, 1982, cannot be ignored as
the said promotion was a consequence of the Respondent having
qualified the limited departmental competitive examination. It was,
therefore, contended that the Respondent had already earned three
promotions and he was, thus, not entitled to the third financial
upgradation under the MACP Scheme.
11. We have considered the submissions made by counsel for the
parties and have perused the record. It becomes apparent from the
Circular dated 17th January, 1997 issued by the Petitioners that all the
Clerks appointed after 1st October, 1980 have been granted the
proforma fixation in the scale of Senior Clerk with effect from the
date of their appointment as Clerk itself and, thus, the pay scales of
the Clerk and Senior Clerk stood merged pursuant to the order dated
17th January, 1997 of the Petitioners themselves. The Petitioners
having issued a circular, that all serving graduate Clerks would be
entitled to the pay scale of the Senior Clerk from the date of their
appointment as a Clerk itself, cannot in the light of para 5 of MACP
Scheme as well as the Clarification No.27 (iii) of DoPT in 2012,
contend that even though the pay scale of Clerk and Senior Clerk
stood merged, the said promotion which admittedly was much prior to
1st January, 2006, should not be ignored for the purpose of MACP.
We are, thus, of the view that there is no merit in the submission of
counsel for the Petitioners that the upgradation of the Respondent's
pay scale from that of Clerk to that of pay scale of Senior Clerk,
should not be ignored or that it should be considered as a promotion.
Once the promotion from Clerk to Senior Clerk is ignored, the
inevitable conclusion is that the Respondent has earned only two
promotions and, therefore, the direction of the Tribunal to grant him
the benefit of third financial upgradation, is in our view, just and
proper. We find no infirmity in the order of the Tribunal.
This petition is dismissed being devoid of merits.
CM No.11499/2017
12. In view of the writ petition having been dismissed, this
application does not survive for adjudication and is dismissed as such.
(REKHA PALLI)
JUDGE
(VIPIN SANGHI)
JUDGE
AUGUST 16, 2017/aa-
