Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.2649/2017 & CM No.11499/2017 + Date of Decision:
16. h August, 2017 ....... Petitioner
s Through: Mr.Ashok Singh, Advocate UNION OF INDIA & ORS. 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... Petitioner
s 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 WP(C) No.2649/2017 Page 1 of 10 directed the... RESPONDENTS
to grant benefits of third MACP to the Respondent.
2. Before dwelling into the facts, it may be noticed that the... Petitioner
s’ 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... Petitioner
s 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 WP(C) No.2649/2017 Page 2 of 10 Respondent was, thereafter, promoted as Chief Office Superintendent on 22nd March, 2006 in the revised pay scale of Rs.4600/-.
4. The... Petitioner
s 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 WP(C) No.2649/2017 Page 3 of 10 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:-
"Promotions earned/upgradations 5. 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. WP(C) No.2649/2017 Page 4 of 10 (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 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.” of MACPS; two 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 servant recruited in the pre- of revised pay Rs.5000-8000 been scales has the pre-revised pay (iii) and scales Rs.5000-8000 Rs.5500-9000 have been merged and placed in PB-2 WP(C) No.2649/2017 Page 5 of 10 in prior promoted the promotional hierarchy in the pre revised pay scale of Rs.5500-9000 to 1.1.2006 and he has put in 12 years of regular service, then would there be any claim financial upgradation under ACPS?. (iv) the above Government servant has put in 22 years as on 31.8.2008, then what would be the entitlement in MACP?. for If and service ignored of Rs.4600/- with grade pay of Rs.4200/- with effect from 1.1.2006. Hence the promotion would be as he has completed his 12 years of regular the benefits of 1st ACP would accordingly be allowed in the promotional hierarchy in the grade pay of Rs. (iv) As given above, the 1st ACP would be in PB-2 grade after pay ignoring 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 the immediate next higher grade pay of Rs.4800/- in PB-2 subject fulfillment of conditions as stipulated in Para 17 of Annexure-1 of MACPS dated 19.5.2009. the in to ” 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 WP(C) No.2649/2017 Page 6 of 10 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 1900 1 2 3 4 5 07.02.1981 Appointed as 260-400 Clerk 18.07.1982 Promoted as Sr. 330-560 2800 Clerk 21.07.1989 Promoted as Hd. Clerk 4200 1400-2300 Revised 5000-8000 (Merged Scale) 31.12.2004 Promoted as OS-II55009000 4200 22.03.2006 Promoted as Ch. OS (Merged Scale) 6500-10500 4600 WP(C) No.2649/2017 Page 7 of 10 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... Petitioner
s 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... Petitioner
s are not aggrieved by the first direction given by the Tribunal in the order, and thus, there is no grievance raised by the... Petitioner
s 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 WP(C) No.2649/2017 Page 8 of 10 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... Petitioner
s 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... Petitioner
s themselves. The... Petitioner
s 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 WP(C) No.2649/2017 Page 9 of 10 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... Petitioner
s 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. AUGUST16 2017/aa- (REKHA PALLI) JUDGE (VIPIN SANGHI) JUDGE WP(C) No.2649/2017 Page 10 of 10