cat order 1051(2010)
TRANSCRIPT
IN THE CENTRAL ADMINISTRATIVE TRIBUNALHYDERABAD BENCH
HYDERABAD
0.A.No.1051 of 2010
Date of order : 3C -03-2012Between:
P.Vigneshwar Raju. sib P.V.R.N.Rajuocc:Inspector, r/o H.No.2-3-919, PiotNo.8, Road No.1, Arunodayanagar,Nagole, Hyderabad.
G VIjay Raghavan, sio G.Namdev Goud:occ:Inspector, rio 403, Raghavadendra RoyalFort Apts., Street No.II, Himayatnagar,Hyderabad.
G.Venkat Raghavan, sjo G.Namdev Goud,occ:inspector, r/o H.No.5-6-500. Pragathinagar,behind ;dotal Kapila, Nizamabad-503 003.
B.R.amakrisnna, slo Subba Rao,°co:Inspector, rio H.No.4-6-361,' Plot No.71,MIG Phase IV, Vanasthali Purarn,H yderabad-500 070.
M.Narayana Chary, sio MVN.Chary,occ:Supdt., r/o H.No.19-168/23. Road No.15,Dinakar Nagar, West Venkatapuram,Secunderabad.
V.Bhaskara Chary ; s/c Laxmikantha Rao,occ:Inspector, r/o H.No.1-1-362, RBI Colony,Mohan Nagar, Kothapet, Hyderabad
7 Chitta Sridev Kumar. sic C.Gokhale,occ:Inspector. rlo 201, Srinivasa Apts.Humayunnagar, Hyderabad-28.
3 C.Sridhara Murthy, s/c Bhanu Murthy,occ:inspector, r/o 104. Keerthi Apts.,Vinay Nagar Colony, Saidabad,Hyderabad-39.
9. Donthi Reddy Chenna Reddy, si`o Masthan Reddy,coo:inspector, r/o Plot No.605. Bhagat Singh Nagar,beside Vasanthnagar Colony, Kukatpally,Hyderabad-85.
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10.Rayudu Rama Mohana Rao, s/o Manikyam,occ:Supdt. Rio Plot No.71, Anand Nagar Colony,New Bovvenpally , Secunderabad.
11.C.S.Srinivas, sio C.Seetharamaiah,occ:Inspector, rib Flat No.307, L.V.Towers,Maruthinaaar, Dilsukhnagar, Hyderabad.
12.V.Vidya Sagar, sio V.R.S.Raju, occ:lnspector,r/o H.No.1-4-476, Old Aiwa!, Secunderabad-10.
13.S.Satyanarayana Sastry, s/o S. Rama Rao,occ:lnspector, r/o D.No.8-12-44/21, Nehru Nagar,8' Lane. Guntur.
14.Nookala Ramakrishna, s/o Venkata Ramana-Sastry, occ:Inspector, rio Flat No.203, C.R.Towers,Gandhi Puram-1, near 'Y' Junction, Rajahmundry-533 103.
AND
The Government of India, Mb° Finance,Dept. of Expenditure, North Block, New Delhi,rep., by its Secretary, Expenditure.
The Government of India, Mk) Finance;Dept. of Revenue, Central Board of Customs andCentral Excise, North Block, New Delhi, rep., byits Deputy Secretary/Under Secretary.
Central Board of Customs and Central Excise,North Block, New Delhi, rep., by its Chairman andSpl. Secretary.
Chief Commissioner of Customs, Central Excise &Service Tax, Hyderabad Zone, Kendriya ShulkBhavan, Basheerbagh, Hyderabad.
5. Chief Commissioner of Customs, Central Excise &Service Tax, Visakhapatnam Zone, Port Area,Visakhapatnam.
Applicants
Respondents
Counsel for the applicantsCounsel for the respondents
Mr. N.VijayMr. G.Jayaprakash Babu, r.CGSC
CORAM:THE HON'BLE MR. JUSTICE P. SWAROOP REDDY, MEMBER (JUDL)THE HON'BLE MR. R. SANTHANAM. MEMBER (ADMN)
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0 .3'17 D E :Hor, t)ie. Mr.Justice S\A'arcob Ready. Member
Tills OA is fed by the applicia-nts ouestioning the proceedings dated
der: by the res-,nnii.11- with the ar,provl of the first
:esonnaent nonci that non-functio,nal grade pav will not be granted_
ouP-2; Officers. Who have dot grade DaV Of R.s.4,800/- on upgradation
under The ACP Scheme, and to set aside the same, and to direct the
i'eSpOrldiltS to grant higher grade pay of .s.5.4001- with effect, from the
of corrioletion of regular service of four yea rs in the grade pay of
Re.7500-12000",
.4. The facts of the case are as follows.
Th -1- 1 4 4., 4 A as inspectors:1/4": 0 :.t.; C and 1.k.; C• working
n the Custc,%rns and Central Excise Department. A pOicants 5 and 10 Are
;womna Superintendents .tuvith effect, from 21.6.2007 and 28.12.2007
fesnectivelv. The Sixth Central Pa y Commission submitted its report on
24.3.2008 r6.-dating to the structure of emoluments allowances, etn of the
Centra; Governme-nt employees. As per Clause (1) of the Resolution of
c.,vernrrient cf india. the Pay Band-2 is Rs.9300-34800i-. Th e concept of
4grade through- ••••••. • ...rt.- .;
Sixth Central Pay Commission and
-;ne 1...,0• 1-0 dependent on :)' 2A1 band n Cause (l y) 'I
esolution, The calculation for fixatin..n of revised basic pay is provided. ,As
•2r1,--\ 57.1 •-on . etk-•,' 4.,,t7f!
t•A'i that /)=,' drawn{".
ay Commsson SCaeS snail be mp.ed by a factor of 1 .86 and then
eo Cr»
O1-=-••-•k,., ! C! ne wt 1UPAS.M,-" 1.) • and be1.0C On the revised
•
band The grade pay. as approved b y the Government in the
pre-revised pay scale, will be
3
;-pay day bandadded to fir,
U. 1-2
The total of pay in the pay band and grade pay will be the revised basic
pay as on 1.1.2006. Clause (x) of the Resolution deals with Group-B
cadres. The relevant Clause (x) (e) reads as follows:
"Group-B officers of DePartment of Posts, Revenue etc.
will be granted grade pay of Rs.5 : 400/- in PB-2 on non-
functional basis after 4 years of regular service in the
grade pay of Rs.4,8001- in PB-2."
As per the above clause, Group-B officers of Department of Posts,
Revenue etc., will be granted grade pay of Rs.5,400/- in PB-2 on non-
functional basis after 4 years of regular service in the grade pay of
Rs.4.800i- in PB-2. The revised scales of pay, as per the
recommendations of Sixth Central Pay Commission with the corresponding
grade pay, was specified in Annexure-I Part-A of the Resolution. At Serial
No.15, the grade pay of PB-2 pay band of Rs.9300-34800 is Rs.4800/-.
After acceptance of the Sixth Pay Commission report, vide Resolution
dated 29.8.2008, the Union of India ; in exercise of powers conferred by the
proviso to Article 309 and Clause (5) of Articles 148 of Constitution of
India. issued Central Civil Services (Revised Pay) Rules, 2008, which
were published as GSR 622 (E) in the Gazette dated 29.8.2008 and the
Rules were given retrospective effect from 1.1.2006. On account of the
above report of the Sixth Central Pay Commission and subsequent
instructions ; a Group-B officer in PB-2 with a grade pay of Rs.4,800/- is
entitled for grade pay of Rs.5,400/- on non-functional basis after 4 years of
regular service. The enhancement of grade pay is not dependent on the
post, but on regular service of 4 years in grade pay of Rs.4,800/- in PB-2.
A clarification was issued by the concerned stating that "the Department of
Expenditure have now clarified that the 4 years period is to be counted with
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•V ti z _ CV •-•1,-,
.-nr• .1-.e.
: •:;%. • 4 e)roTh:',, pre-revised
if an officer has completed 4 years on
31._:.006 or earlier. he wi be
ive • the non-functional upgradatior with
effec i• from CY .C1.2006. if the officer COrnnIPtes 4 years on the date after
-; frr'M such date
e completes 4 years .17
o 1.1! st,k., 0; r(S. t);.../U-12.00u lore-:
The post of inspector in the Central Excise & Customs,
;. ,• .4 Vinr-nry
pay scale of is Group-B rTh1 J
1. 4 4-: t . e•:', • order dated 11.5.9004, the
9;:z.,••••• •-• :•••4•. •i.••40of ndi unifoml- the pay scale of inpeotor of
;rnr- 5-f";../r)-COn.rV- "P' F5Cr-105n0i-, r' - ea:_ient••-•
, .the ! 1/!;;!•!,...7H in the Central Exc ise and
rr••••n •:•:•••••,: .c..3 to •uncle , V;r4c. S rs' 94g dated•1
5.4.2009 rsrst:
have been re-n lass i fietiAs
14 Vi posts car,...ying crade Pas!-•C
,.., Atv"1,,c ,
,z 9.01 i r °B; 44-. it ,c scale C; 1...)1 4
come under C3rouP-E. The post. of inspector even under the latest
::lassific;ation of posts comes and Group-B. applicants were
As inspectors a.nd in the scale of Rs.7500-•
I. <„:!!it=vct i( cidtec" ciiven in tne OA_ The date,s on 'which the.,
oplicants were placed in grade pay of Rs.4,K0/- as well as completion of
4 y€,,ars, as pre-scribed, is aiso furnished by the applicants. According to the
aopile.;ants, as per the Governm ent cf India Resolution and COS r. R fps
200a the applicants are entitled to non-f;nc„tional Grade pay of
Ps 5 : 00 upon completion of 4 years regular service in the grade pay of
Q.r.pf A have r. gownf "i of.
as DCr the Resolution Clause tiv) with effect from the dates mentioned in
the OA. The a pplicants have completed 4 years of regular service in the
grade pay of Rs.4 800/- and are due for non-functional grade pay of
Rs.5,400/- with effect from the dates shown in the OA. But, the 2nd
respondent issued the impugned proceedings dated 16.9.2009 with the
approval of the Department of Expenditure. As per Clause (iv), it is
observed that non-functional grade pay will not be aranted to such of those
Group-B Officers, who have dot grade pay of Rs.4,8001- on upgradation
under the ACP Scheme, as the same is contrary to the Government
Resolution and CCS (Revised Pay) Rules, 2008 and on account of that, the
app:icants are denied the enhanced grade pay of Rs.5 4001- with effect
from the dates shown in the OA. The applicants are claiming the same.
0. The respondents have filed a reply statement inter -alia contending
that the Department of Revenue in consultation with the Department of
Expenditure clarified vide Circular dated 16.09.2009, that the grant of
higher Grade pay of Rs.5400/- in PB-2 on non-functional basis is not linked
to vacancy and may be given retrospectively with effect from 1.1.2006
provided the officers concerned have completed four years of regular
service as on 1.1.2006 as Customs Appraiser; Superintendent of Central
Excise/Superintend ent of Customs (P) irrespective of the pay scale and in
case there is no vioilance proolem. That, it was also clarified that the non-
functiona l grade pay of Rs 5400/- in PB-2 will not be granted to such of
those Group-B officers, who have got the grade pay of Rs.4800/- on
upgradat:on under ACP Scheme That, the whole consultation with the
competent authority was for deciding the date of grant of non-functional
grade pay of Rs.5400/- to the posts of Customs Appraisers/Superintendent
of Central Excise/ Superintendent of Customs (P) in pursuance of CCS
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RuIes, 2008. That, with regard to The post of Inspector of Central
Excise, the Department of Pxpenditure a s Resolution dated 29.8.2008
st!oulates that ",,louo-B Officers of the Department of Posts.
Revenue etc.. be granted grade pay of Rs 5400/- FB-2 on functional
basis after four years of reader service in the grade pay of Rs.48001- in
and as such, the following provisions were notified under Part 'C' of
; N LIM . •.„ • ,
.„partrnent of Revenue:
Income Tax Officers 7500- 7500-12000 !PB-2 ;4800
Superintendent. 1loop. • S'000-13500 • PB--: )31,0
7.15.17
.‘ppraisers etc- (after 4 years
(Customs & Central
••
excise,
That the pre-revised pay scale of the post of Inspectors of Central Excise
as on .2006 was Rs.6500-200-10500/- corresponding to the grade pay
oe
They were granted the pay scale of Rs.7500-12000
corresponding to Rs.48001- under AOP Scheme. As they have not been
promoted to the posts of Customs Appra i ser/Superintendent of Central
xcse/Superintendent of Customs (P), they have not rendered any regular
service in the pay scale of Rs.7500-12300/- corresponding to grade pay of
Tnerefore. the provisions contained in Department
Expenditure's Resolution and COS (RP) Rules are not applicable to the
post of Inspector of Central Excise and the benefit of non-functional grade
pay of Rs.5400/- after four years of regular service in the grade pay of
Rs. 4800/'- cannot be extended to them. As the grade pay of Rs.48001-
under ACP Scheme is granted to the posts of Inspectors on non-functional
basis, there is no scope for granting another non-functional grade pay of
Rs.5400/- to the Inspectors of Central Excise.
4. Now, the contention of the applicants is that they are entitled for the
relief claimed, particularly, in view of the decision of the Division Bench of
the Hon'ble Madras High Court in W.P .No.13225/2010, which has become
final and is in force as the Hon'ble Supreme Court in SLP t C ) appealNo.15627/2011, did not grant stay of the judgment of Madras High Court in
W. P. No.13225/2010.
Thus, there is no dispute that the judgment of the Hon'ble Madras
High Court in W.P. No.13225/2010, dated 6.9.2010, is in force, though a
Civil Appeal is pending against the same before Hon'ble Supreme Court.
The case of the petitioner in W.P.No.13225/2010 of Madras High
Court was that he joined service as Inspector of Central Excise in 1992 and
he was in the pre-revised pay scale of Rs. 6500-10500/-, whereas the
Superintendent of Central Excise scale of pay was Rs.7500-12000/-. That,
on implementation of the Sixth Central Pay Commission report, the
Inspectors of Central Excise have been placed in the Pay Band-2 with a
grade pay of Rs.4200/- and the Superintendents of Central Excise have
been placed in Pay Band-2 with a grade pay of Rs.4800/- and a grade
pay of Rs.5400/- after a period of four years in the grade pay of Rs.4800/-.
That. though the posts of Inspectors of Central Excise, Preventive Officers
and Examiners under the Customs carry the same scale and more or less
the same level of responsibilities, the person in the post of Inspector of
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Cents a' Excise. who is a direct recruit, gets his first promotion after long
period of 16 to 20 years of service, whereas the persons in the cadre
of Preventive Officers and Examiners under the Customs Department, get
promotion within six to ten years of service in their respective cadres. That,
as per the ACP Scheme introduced through Fifth Central Pay Commission,
financial upgradation have to be gr6nted after 12 and 24 years of service.
On the basis of the above Scheme, the 23d respondent, in the above Writ
Petition before the Honble Hiah Court of Madras, issued instructions dated
9.9.2003 and issued an order No.116/2003 granting first financial
upgradation to the petitioner, who was granted pay scale of the
Superintendent of Central Excise with effect from 1.1.2004 in the pay scale
of Rs.7500-250-12000, vide order dated 11.8.2004 of the Assistant
Commissioner of Central Excise, Salem.
in the above Writ Petition, the case of the petitioner was further that
he \-!,,te drawina the pay scale of Rs.7500-250-12000/-, which is the scale
of pay of Superintendent of Central Excise, a Group-B post under the
Department of Revenue with effect from 1.1.2004. As such, he is entitled to
the benefit of upgradation of grade pay of Rs.5400/- with effect from
1.1.2008 as per the Resolution of the Ministry of Finance dated 29.8.2008.
It was contended by the learned learned counsel for the petitioner
before the Hon'ble Madras High Court that in the resolution of Ministry of
Finance, Department of Expenditure, dated 29.8.2008, the Government
agreed to grant pay of Rs.5400/- in Pay Band-2 to Group-B Officers of the
Department of Posts, Revenue, after four years of regular service in grade
pay of Rs.4800/- and clarification was issued by the Central Board of
Excise and Customs dated 21.11.2008 that the four years period is to be
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counted with effect from the date on which an officer is placed in the pay
scale of Rs.7500-12000,'-. That, the Madras High Court held that the
clarification dated 29.8.2008 of the Government of India, would not equate
the petitioner therein to the posts viz., Income Tax Officer/Superintendents,
Appraisers, etc. though he may be drawing the pay scale attached to the
said posts by virtue of grant of ACP and that he would not be entitled for
grade pay of Rs.5400/- on the basis that he had completed four years of
regular service in the pay scale of Rs.7500-12000/-, and that the same
cannot be granted unless the petitioner is promoted and not merely on
account of his getting ACP Scheme. In paragraphs 7 and 8 of the order,
the Madras High Court observed as follows:
"7. We are unable to agree with this clarification
given by the Under Secretary to Government of India,
since in an earlier clarification, dated 21.11.2004 of the
Deputy Secretary to Government of India, it was clarified
as to how the 4 year period is to be counted for the
purpose of granting non-functional upgradation to Group-B
Officer, i.e. whether the 4 year period is to be counted with
effect from the date on which an officer is placed in the pay
scale of Rs.7500-12000 (pre-revised) or with effect from
1.1.2006, i.e. the date on which the recommendation of the
6th CPC came into force. It was clarified that the 4 year
period is to be counted with effect from the date on which
an officer is placed in the pay scale of Rs.7500-12000
(pre-revised).
8. Thus, if an officer has completed 4 years on
1.1.2006 or earlier, he will be given the non-functional
upg radation with effect from 1.1.2006 and if the officer
completes 4 year on a date after 1.1.2006, he will be given
non-functional upgradation from such date on which he
completes 4 year in the pay scale of Rs.7,500-12,000 (pre-
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revised), since the petitioner admittedly completed 4 year
period in the pay scale of Rs.7500-12000 as on 1.1 2008,
he is entitled to grade pay of Rs.54001-. In fact ;theGovernment of India ;having accepted therecommendations of the 6th Pay Commission, issued a
resolution dated 29.8.2008 granting grade pay of
Rs.54001- to the Group-B Officers in Pay Band-2 on non-
functional basis after four years of regular service in the
grade pay of Rs. 78001- in Pay Band-2. Therefore, denial of
the same benefit to the petitioner based on the clarification
issued by the Under Secretary to the Government was
contrary to the above said clarification and without
amending the rules of the revised pay scale ; such decision
cannot be taken. Therefore, we are inclined to interfere
with the order of the Tribunal."
Ultimately, the Madras High Court held that the petitioner therein is entitled
for grade pay of Rs.54100/- with effect from 1.1.2008 i.e., as per the
resolution dated 29.8.2010.
a. The above decision of the Madras High Court is applicable to the
facts of the present case with all force, as here also, the applicants herein
have been placed in grade pay of Rs.4300/- and have completed four
years in that scale, may be, on account of granting only ACP and not on
account of promotion. As such, the OA is liable to he allowed and the
applicants shall be granted higher pay scale of Rs.5400/- with effect from
their respective dates of completion of regular service of four years in the
grade pay of Rs.4800 • - (pre-revised scale of Rs.7500-12000/-). As the
matter is pending before the Hon'bie Supreme Court, we make it clear that
the relief the applicants are getting in this CA shall be automatically subject
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to the decision of the Hon'ble Supreme Court in SLP ( C ) No.15627/2011,
even without the present respondent-department not filing any proceedings
in the Hon'ble High Court or Supreme Court.
10. The OA is accordingly allowed. No costs.
.",
01( (ILL.-
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