Mahendra Kumar Dubey S/o Sh. R.D. Dubey Vs Union of India through the Secretary, Ministry of Information and Broadcasting

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

OA No.1798 of 2014

New Delhi, this the 22nd day of May, 2014

HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J)

HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A)

Mahendra Kumar Dubey, aged 58 years,

S/o Sh. R.D. Dubey,

Working as Programme Executive,

In Doordarsan Kendra, Delhi

r/o 7.94, Lodhi Colony,

New Delhi.

.Applicant

(By Advocate : Shri  Yogesh Sharma)

versus

1.            Union of India through the Secretary,

                Ministry of Information and Broadcasting,

                Shastri Bhawan, New Delhi.

2.            The Chief Executive Officer,

                Prasar Bharti, PTI Building, Parliament Street,

                New Delhi-110001.

3.            The Director General,

                All India Radio, Akashvani Bhawan,

                New Delhi-110001.

4.            The Director General,

                Directorate General of Doordarsan,

                New Delhi-110001.

5.            The Director, Doordarsan Kendra,

                Prasar Bharti, Doordarsan Kendra,

                Doordarsan Bhawan, Coppernicus Marg,

                New Delhi-110001.

.Respondents

ORDER (ORAL)

SHRI G. GEORGE PARACKEN, MEMBER (J) :

                The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

(i)            That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 26.11.2013 and order dated 12.7.2010 (Annex.A/1 & A/2), declaring to the effect that the whole action of the respondents not granting financial upgradation under ACP/MACP scheme to the applicants in the hierarchical pay scale/grade pay of the post, is illegal, arbitrary and discriminatory and consequentially pass an order directing the respondents to consider and to grant the benefits of first financial upgradation under AC scheme w.e.f. 11.8.2003 in the scale of Rs.8000-13500 and second financial upgrdation MACP scheme w.e.f. 11.8.2011 to the applicant in the scale of PB-III + GP 6600 as per hierarchical grade pay, in the light Honble Tribunal judgment date 31.05.2011 passed by the Honble Chandigarh Bench in OA No.1038/CH/2010 in the case of Rajpal Vs. Union of India, upheld by the Honble High Court vide judgment dated 29.10.2011 and benefit of judgment in the case of Sanjay Kumar & Ors. Versus Union of India, in OA No.904/2012 decided by the CAT Principal Bench New Delhi vide judgment dt. 26.11.2012, with all consequential benefits including the arrears of difference of pay and allowances with interest.

That the Honble Tribunal may graciously be pleased to pass an order, declare the OM/MACP scheme dated 19.05.2009 as unconstitutional only to the extent the same deny the next promotional scale attached to the promotion post as 1st, 2nd & 3rd financial upgradation, and also granting financial upgradation in the same Grade Pay, as illegal, arbitrary and unjustified.

Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.

2.            According to the applicants counsel, this case is squarely covered by the Order of this Tribunal in OA No.988 of 2014  Pradeep Kumar and others vs. Secretary, Ministry of Information and Broadcasting and others dated 21.3.2014. The relevant part of the said Order reads as under:-

3.            According to the Applicants, the case is squarely covered by an Order of the Chandigarh Bench of this Tribunal in O.A. No.1038/CH/2010 Rajpal son of Shri Tilak Ram v. Union of India & others where it was held as under:-

11. We have heard the learned counsel for the parties and considered the documents on record.

12. There is no dispute that the applicant is holding the post of Photocopier, which is an isolated post, having no avenues for promotion.  It is also not disputed that the post held by the applicant had been declared equivalent to the post of LDC/Hindi Typist etc. by the Tribunal as well as the High Court by judicial pronouncements in matters of grant of ACP, which have attained finality and stands implemented also.     Accordingly, applicant was granted Ist ACP (under the old ACP) w.e.f. 9.8.99 in the pay scale of Rs. 4000-6000. 

13. It has also been settled that the ACP would be granted on completion of the required years of service in the hierarchy of posts for the posts of LDC/Hindi Typists, and not in the next higher scale in the recommended scales.   The same principle would have to be applicable in regard to grant of MACP to the applicant.   The only difference is that while  in case of ACP two financial upgradations were granted  on completion of 12 and 24 years of service, in case of MACP, three upgradations on intervals of 10, 20 and 30 years of service. 

14. The respondents have placed reliance on para 13 of the MACPS, which reads as under:

13. Existing time-bound promotion scheme, including insitu promotion scheme, Staff Car Driver Scheme or any other kind of promotion scheme existing for a particular category of employees in a Ministry/Department or its offices, may continue to be operational for the concerned category of employees if it is decided by the concerned administrative authorities to retain such Schemes, after necessary consultations or they may switch-over to the MACPS.  However, these Schemes shall not run concurrently with the MACPS.

Reliance has further been placed on  decision  taken  in the second meeting of the Joint Committee on MACPS held under the Chairmanship of the joint Secretary  DoPT was circulated.   Item No.3 of the Agenda for the said meeting reads as under:

The MACP Scheme provides for placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay after 10,20 and 30 years of service.  On the other hand the earlier ACP Scheme provided for placement to higher pay scale of the next promotion post in the hierarchy of the pay scale after 12 and 24 years of service taken from date of induction in service.

15. Be that as it may, the principle enunciated and settled by the Tribunal/High Court for grant of ACP   cannot be changed and the same principle would apply for grant of MACP to him. The only difference is of number of years required to be completed.  We find no justification to take a different view in the matter.

16.   For the foregoing reasons, the impugned order dated 9.8.2010, (Annexure A-1)qua the applicant, fixing his pay in PB-1 with grade pay of FR 2400/- under the second MACP,  and the order dated  10.8.2010 (Annexure A-2 ) are hereby quashed and set aside.  Consequently,  the respondents are directed to grant second financial   upgradation to the applicant   under the  MACPS   from  due date fixing  his pay  in the hierarchy of posts decided in his case earlier and to pay the resultant arrears without interest, within a period of 2 months from the date of receipt of a copy of this order.

 17. The OA stands disposed of in the above terms.  No costs.

4.            The respondents have challenged the aforesaid order before the Honble High Court of Punjab and Haryana at Chandigarh in CWP NO.19387/2011 decided on 19.10.2011. The Honble High Court of Punjab and Haryana at Chandigarh held that there was no infirmity in the aforesaid order passed by the Chandigarh Bench of this Tribunal. The relevant observations of the said order are extracted hereunder:

Upon implementation of the 6th Central Pay Commission, the scale of Rs.3050-4590/- was kept in pay band-I, Rs.5,200-20,200/- with grade  pay of Rs.1,900/-, the scale of Rs.4,000-6,000/- was also kept in pay band-I with grade pay of Rs.2,400/- and the scale of Rs.5,500/-9,000/- was kept in pay band-II in pay scale of Rs.9,300-34,800/- with grace pay of Rs.4,200/- increased to Rs.4,600/-. In terms of MACP Scheme, respondent no.1 was granted the lower scale by keeping in pay band-I of Rs.5,200-20,200/- with grade pay of Rs.2,400/-.  This was done in terms of order dated 09.08.2010.  Accordingly, respondent No.1 approached the CAT contending that he is entitled to be granted the scale of Rs.5,500-9000/- towards the 2nd Financial Upgradation at par with the post of Hind Typist and LDC.  Such claim of respondent No.1 has been upheld by the CAT in the impugned order dated 31.05.2011.

5.            Later on the Honble Supreme Court has also dismissed the petition(s) for Special Leave to Appeal (Civil) (CC No.7467/2013) filed by the Government and upheld the judgment of the Punjab & Haryana High Court in CWP No.19387/2011 (supra).

6.            The learned counsel for Applicants has also submitted that this Bench allowed O.A. No.904/2012 - Sanjay Kumar, UDC & others v. Union of India & others vide order dated 26.11.2012 following the directions given by the Chandigarh Bench. The relevant part of the said Order reads as under:-

7.            In our considered view, the present OA is squarely covered by the aforesaid judgment of Chandigarh Bench, as upheld by the Honble High Court of Punjab and Haryana at Chandigarh.

8.            In fact, the respondents have wrongly interpreted the terms and conditions mentioned in the MACP Scheme, issued by the Deptt. of Personnel & Training, in the case of the applicants. By the said Scheme, the eligible government servants are to be placed in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay and not merely in the next higher scale of pay as per the recommendations of the 6th Pay Commission.  In the hierarchy after the scale of UDC, the next scale is that of Assistant. Therefore, the respondents should have given the next higher grade pay and pay band attached to the next promotional post  in the hierarchy, namely, the Assistants carrying the pay scale of Rs.9300-34800 and the grade of Rs.4200/-. 

9.            In view of the above position, this OA is allowed. The respondents are directed to grant scale of pay of Rs.9300-34,800/- with grade pay of Rs.4200/- attached to the said promotional post of Assistant/OS from the due date to the applicants.

10.          The aforesaid directions shall be complied with within the period of two months from the date of receipt of a copy of this order, subject to the other conditions mentioned in the MACP Scheme.

7.            In another O.A. No.864/2014 - Shri Om Prakash & others v. Secretary (NCERT) decided by this Tribunal, the following directions were issued:-

3.            In our considered view, once an order has been passed by this Tribunal and it has also been upheld at the level of the Supreme Court, there is no question of waiting for an approval from any Govt. department for implementation of the same. The respondents, therefore, should have considered the representations of the applicants on merits.

4.            In view of the above position, we dispose of this OA at the admission stage itself with the direction to the respondents to consider the representations of the applicants in the light of the judgment of Punjab and Haryana High Court in CWP No.19387/2011 (supra) as upheld by the Apex Court in SLP (CC) No.7467/2013 (supra) and decide their cases under intimation to them. The aforesaid exercise shall be completed within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.

8.            In view of the above position, we dispose of this Original Application with the same directions as given by us in O.A. No.864/2014 (supra). There shall be no order as to costs.

4.            He has also submitted that on the basis of the aforesaid Order, this Tribunal again disposed of OA No.864/2014  Shri Om Prakash and others vs. Secretary (NCERT) and others decided on 12.3.2014. the relevant part of the said order is also reproduced as under:-

2.            The applicants have, therefore, filed this OA seeking the following reliefs:-

(a)          To declare the action of the respondents in not granting the scale of Rs.9300-34800 (PB-2) with Grade Pay of Rs.5400 as given to similarly placed persons to the applicants as illegal and arbitrary.

(b)          To direct the respondents to grant scale of Rs.9300-34800 with Grade Pay of Rs.5400 as 1st financial upgradation to the applicants under MaCP from due date with all arrears of pay.

(c)           To declare the OM/MACP dated 19.05.2009 as unconstitutional to the extent the same deny the next promotional scale attached to the promotion post as 1st, 2nd & 3rd financial upgradation as illegal, arbitrary and unjustified.

3.            In our considered view, once an order has been passed by this Tribunal and it has also been upheld at the level of the Supreme Court, there is no question of waiting for an approval from any Govt. department for implementation of the same. The respondents, therefore, should have considered the representations of the applicants on merits.

4.            In view of the above position, we dispose of this OA at the admission stage itself with the direction to the respondents to consider the representations of the applicants in the light of the judgment of Punjab and Haryana High Court in CWP No.19387/2011 (supra) as upheld by the Apex Court in SLP (CC) No.7467/2013(supra) and decide their cases under intimation to them. The aforesaid exercise shall be completed within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.

5.            In view of the above position, we dispose of this OA at the admission stage itself with the direction to the respondents to consider the representations of the applicant in the light of the aforesaid judgment of Punjab and Haryana High Court in CWP No.19387/2011 (supra) as upheld by the Apex Court in SLP (CC) No.7467/2013 (supra) and decide his case under intimation to him. The aforesaid exercise shall be completed within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.

6.            Along with the copies of this OA, the Registry shall also send copies of the OA to the respondents for their consideration.

(SHEKHAR AGARWAL)                                             (G. GEORGE PARACKEN)

       MEMBER (A)                                                                     MEMBER (J)

/ravi/