Judgment:
ORAL:
MS. SHYAMA DOGRA, MEMBER (J)
1. In the present O.A. the applicant has sought relief to quash and set aside the impugned orders dated 22.6.2010 (Annexure A-17 and A-18) and orders dated 21.7.2011 (Annexure A-3) and 28.6.2011 (Annexure A-32) with a prayer for issuance of directions to the respondents to grant him three financial up-gradations from the grade pay of Rs.4200 to Rs.4600/-; Rs.4600 to Rs.4800 and Rs.4800 to Rs.5400/-, from due dates, under the new MACP Scheme. The applicant has also prayed for fixing his pay in the grade pay of Rs.1400-2600 w.e.f. 1.1.1986 instead of from 14.6.1988 along with all the consequential benefits including the difference of arrears of salary till date.
2. The applicant has further prayed for not to effect recovery of Rs.1,42,561/- from his salary vide order dated 21.7.2011 (Annexure R-31).
3. The facts as projected by the applicant are that he was appointed as a Stenographer vide letter dated 10.12.1975 (Annexure A-4) in the pay scale of Rs.330-560. This scale was revised to Rs.1200-2040 w.e.f. 1.1.1986. The post of Stenographer in the pay scale of Rs.1200-2040 was upgraded to the scale of Rs.1400-2300 w.e.f. 14.6.1988 (Annexure A-5) and the pay of the applicant was fixed in upgraded pay scale vide order dated 2.12.1991. Vide order dated 14.6.2000 (Annexure A-8), the benefit of first financial up-gradation under ACP Scheme was extended to the applicant w.e.f. 9.8.1999, in the pay scale of Rs.5500-9000. He was granted second financial up-gradation w.e.f. 17.12.1999 in the pay scale of Rs.6500-10,500 w.e.f. 17.12.1999, when he completed 24 year’s service. The respondents issued a Modified Assured Career Progression Scheme (MACPS) vide office memo dated 19.5.2009, applicable w.e.f. 1.9.2008, under which three financial up-gradations were allowed on completion of 10, 20 and 30 years of service, subject to conditions mentioned therein. The applicant submits that as per the MACP Scheme, the promotion earned / up-gradations granted under the ACP Scheme in the past grades, which now carry same grade pay due to merger of scales/up-gradations of posts recommended by the 6th CPC, shall be ignored. The DPC had recommended financial aggradations to the applicant in the year 1999 in the scale of Rs.5500-9000 and Rs.6500-10500 (Annexure A-8). The scale of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10,500 are now in the same pay band with common grade pay.
4. The applicant submitted number of representations and legal notice (Annexure A-16) dated 22.5.2010 for grant of 3rd financial up-gradation under MACP Scheme. However, the respondents have now passed an order dated 22.6.2010 stating that the earlier benefits given to the applicant has been held to be irregular inasmuch it has been observed that once applicant’s pay was upgraded to Rs.1400-2300, he was entitled to only 2nd financial up gradation and he has been granted only 2nd and 3rd financial up-gradations in the grade pay of Rs.4600/- and Rs.4800/-. Copies of two orders, both dated 22.6.2010 are as at Annexure A-17 and Annexure A-18. The applicant submitted an appeal, Annexure A-19 which has been rejected vide order dated 30.6.2010 (Annexure A-20). The respondents have worked out a recovery of Rs.1,42,567/- vide order dated 21.7.2011 (Annexure A-31) which is based on impugned order dated 28.6.2011 (Annexure A-32). Thus, the applicant has prayed for quashing of these order and sought relief as detailed hereinabove.
5. The respondents have filed a reply. They submit that the applicant was entitled to only one up-gradation on completion of 24 years of service and not two, as he had already been given one up-gradation in 1988 in the pay scale of Rs.1400-2300 from the pay scale of Rs.1200-2040. His pay was to be fixed in the pay scale of Rs.5500-9000 as per OM dated 9.9.1999 and 18.7.2001 of DoPT. The up-gradation to pay scale of Rs.1400-2600 from Rs.1400-2300 (Rs.1200-2040) cannot be given w.e.f. 1.1.1986 as it was applicable for persons who were in the pay scale of Rs.1400-2300 w.e.f. 1.1.1986. They submit that as per MACP instructions three pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-0500 have been merged with grade pay of Rs.4200/-. After implementation of the MACP, the grade pay to be given to the applicant is Rs.4600 and Rs.4800/-. The financial up-gradation in promotion as per ACP clarification of DoPT and promotion to pay scale of Rs.6500-10500 is not applicable to subordinate Office Stenographers.
6. The applicant has not filed a replication.
7. We have heard learned counsel for the parties and perused the material on the file.
8. The first point to be considered is as to whether the applicant is entitled to up-gradation in the pay scale of Rs.1400-2300 (as upgraded to Rs.1400-2600) w.e.f. 1988 or w.e.f 1.1.1986 itself. The stand of the respondents is that the pay scale of Rs.1400-2300 was up-graded to scale of Rs.1400-2600 in 1986 but since the applicant was placed in the pay scale of Rs.1400-2300 from pay scale of Rs.1200-2040 w.e.f. 1988 itself, thus, he cannot be granted benefit of pay scale of Rs.1400-2600 w.e.f. 1986. We find merit in the plea of the applicant in this regard as once the pay scale of Rs.1400-2600 is upgraded scale of Rs.1400-2300, it would be applicable to a person from a date from which he was in the pay scale of Rs.1400-2300. Since in this case the pay scale of Rs.1400-2300 was given to the applicant in 1988, he has rightly been placed in upgraded pay scale from 1988. Thus, the claim of the applicant on this count is rejected.
9. Another ground to reject the plea of the applicant to grant him this benefit from 1.1.1986 is that the pay-scale of Rs.1400-2300 was granted to him by virtue of up-gradation of 7 posts of those Stenographers who were attached to the posts of Officers drawing pay in the scale of Rs.3700-5000. The said order dated 7.9.1989 (A-6) was made applicable from prospective effect. Moreover, the applicant’s pay-scale was revised from Rs.1400-2300 to Rs.1400-2600 w.e.f.1.1.1986 as is evident from Annexure R-2/C dated 14.10.1991 placed on record by the respondents.
10. The second point for consideration is whether the applicant’s placement in the pay-scale of Rs.1400-2300 (revised to Rs.1400-2600) from the pay-scale of Rs.1200-2040 in 1988 is to be taken as promotion to deny him the benefit of first financial up-gradation under ACP Scheme or not. As is seen from the order dated 7.9.1989 (A-6) the up-gradation of pay-scale of seven posts of Stenographers in the pay-scale of Rs.1400-2300 took place prospectively and by virtue of up-gradation of 7 posts of Stenographers who were attached with those officers who were drawing pay in the scale of Rs.3700-5000. Though in R-6 it is stipulated that the posting of incumbents would be in accordance with the normal Recruitment Rules / procedure for promotion yet taking into consideration that the respondents have not placed on record any document to show that the applicant was placed in the pay scale of Rs.1400-2300, through the normal rules or procedure of promotion, therefore, it cannot be said that the applicant was given up gradation or promotion through the process of selection provided under the rules. Moreover, once three pay scales were put in the same pay band it has to be taken that applicant did not get any promotion.
11. The aforesaid fact is further clear from clause 35 of the clarification dated 18.7.2001 of erstwhile ACP Scheme, which reads as follows:-
“Where all the posts are placed in a higher scale of pay, with or without change in the 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 is not be treated as promotion / up-gradation. Where, however, rationalization / restructuring involves creation of a number of new hierarchical grades in the rationalized set up and some of the incumbents in the pre-rationalized set up are placed in the hierarchy of the 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 / up gradation Where placement in a higher grade involves assumption of higher responsibilities and duties, then such up-gradation will be viewed as promotion / up-gradation.”
12. The aforesaid clause is self-explanatory. The applicant was merely placed in the pay-scale of Rs.1400-2300 (revised to Rs.1400-2600) without involving any change in his responsibilities and duties, without a change in the designation and without a change in the designation and without requirement of any new qualification. Therefore, by virtue of up-gradation of post, placing the applicant in a particular pay scale can not be treated as promotion, denying him the benefit of MACP Scheme keeping in view that the pay-scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10,500 have now been merged in one pay-band and after merger, the pay of the applicant was fixed in the grade pay of Rs.4200/- in the combined pay band of three pay-scales. The next grade pay are Rs.4600, Rs.4800 and Rs.5400, therefore, keeping in view that in 1988, the up-gradation of pay-scale of the applicant is Rs.1400-2300 was promotion, claim of the applicant for grant o benefits under MACP Scheme is justified.
13. Therefore, for the foregoing reasons, action of the respondents in making recovery of any amount from the salary of the applicant is not sustainable in the eyes of law. Consequently, impugned orders dated 22.6.2010 (A-17 and A-18) and orders dated 28.6.2011 (A-32) and dated 21.7.2011 (A-31) are hereby quashed and set aside while holding the applicant entitled for refund of recovery of amount deducted from his salary for the months of august, September and October, 2011.
14. In view of discussion made hereinabove, the applicant is held to be entitled for grant of three MACP benefits after completion of 10, 20 and 30 years of regular service as per provisions of the said Scheme with regard to merger of three pay-scales in one pay-band read with clarification dated 18.7.2001, as ACP and clarifications issued there under have been merged under new MACP Scheme.
15. Resultantly, the concerned respondents are directed to pass appropriate orders of refund of amount for the aforesaid period and grant of benefits under MACP Scheme to the applicant within a period of three months from the date of receipt of copy of this order.
16. In view of these observations and directions as above, this O.A. stands disposed of accordingly with no costs.