Principal Bench, New Delhi.
OA-2124/2011
MA-1617/2011
Reserved on : 28.01.2013.
Pronounced on : 01.02.2013.
OA-2124/2011
MA-1617/2011
Reserved on : 28.01.2013.
Pronounced on : 01.02.2013.
Hon ble Mr. G. George Paracken, Member (J)
Hon ble Mr. Shekhar Agarwal, Member (A)
1. All India Postal Accounts Employees
Association represented by S. Santosh Kumar,
President, R/o 13-B, DDA Flats, Type-IV,
New Mahavir Nagar, New Delhi-18.
2. E. Kanagraj, Senior Accountant
in O/o General Manager, Postal Accounts &
Finance, Tamilnadu Circle, Chennai-8. . Applicants
(through Sh. B.K. Berera, Advocate)
Versus
1. Union of India through
The Secretary,
Department of Posts (Postal & Accounts Wing)
Ministry of Communication & Information
Technology, Dak Bhawan, Sansad Marg,
New Delhi-1.
2. The Secretary,
Department of Personnel & Training,
Ministry of Public Grievances & Pensions,
North Block, New Delhi-1. . Respondents
(through Sh. S.M. Zulfiqar Alam, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A)
The applicants have sought the following relief:-
(a) Direction from this Hon ble Tribunal to Respondents for grant of
stepping up pay of all Senior Accountants on par with Senior Accountants
who are junior to the former in the cadre of Sr. Accountant. (b)
Direction to the Respondents to pay compound interest on the arrears,
compounded every months, as the respondents caused serious prejudice to
the Applicants every months when the Applicants were not granted the
financial upgradations by stepping up their pay. (c) Direction from
Hon ble Tribunal to declare the CLAUSE 8 of the condition for grant of
BENEFIT UNDER THE ACP SCHEME being uptra vires beyond the statute which
provide The financial upgradation under the ACP Scheme shall be purely
personal to the employee and shall have no relevance to his seniority
position. As such, there, shall be no additional financial upgradation
for the senior employee on the ground that the junior employee in the
grade has got higher pay scale under the ACP Scheme. (d) Direction to
the respondents to pay cost of litigation to the Applicants as the Applicants have been dragged to the Tribunal by the respondents.
(e) Any other order as this Hon ble Tribunal may deem fit under the present facts and circumstances of the case.
2. Briefly undisputed facts of the case are that the applicants joined
the Department of Posts as LDCs and were promoted as Junior Accountant.
Subsequently, on restructuring of the Accounts Cadre, 80% of the
Accountants were designated as Senior Accountants and were placed in the
pay scale of Rs.1400-2600 (revised Pay Scale Rs.5500-9000) w.e.f.
01.04.1987. Government of India promulgated an Assured Career
Progression (ACP) Scheme for Central Government Civilian Employees vide
their O.M. No. 35034/1/97-Estt(D) dated 09.08.1999 which provided for
two financial upgradations to employees who had completed 12 and 24
years of service but had not found regular promotion in their
department. Financial upgradation under the Scheme was to be given to
the next higher grade in accordance with the existing hierarchy in a
cadre. Clause-8 of the Scheme by which the applicants are aggrieved
reads as follows:- The financial upgradation under the ACP Scheme shall
be purely personal to the employee and shall have no relevance to his seniority
position. As such, there shall be no additional financial upgradation
for the senior employee on the ground that the junior employee in the
grade has got higher pay-scale under the ACP Scheme.
3. The grievance of the applicants is that they have been denied
benefits under this Scheme on the grounds that they had joined as LDC
and had already found two promotions in their cadre, namely, to the post
of Junior Accountant and then as Senior Accountant whereas those who had joined the department as direct recruits to the post of Junior Accountant and had found only one promotion to the level of Senior Accountant
were given benefit of the ACP Scheme and placed in higher grade. The
applicants have contended that due to denial of benefit of ACP Scheme to
them many of the direct recruits who are junior to them in the cadre
have started drawing more salary than their seniors. The applicants have
further stated that all Senior Accountants regardless of the fact
whether they are promotees or direct recruits are placed in a single
gradation list and their seniority is determined on the basis of their
date of appointment as Senior Accountants. The applicants had
represented before the respondents but their representations had been
rejected. Aggrieved by this, they have approached this Tribunal. Their
main prayer is that Clause-8 of the ACP Scheme be declared ultra vires
beyond the statute and their pay be stepped up to bring it at par with
their juniors.
4. The respondents have in their reply stated that the ACP Scheme was
enforced to deal with the problem of stagnation in certain cadres. It
provides for at least two financial upgradations in service career of an
employee even if he is not able to find regular promotions due to
unavailability of vacancies. According to them Clause-8 of the Scheme
clearly states that the financial upgradation under the Scheme is purely
personal to the employee and shall have no relevance to his seniority
position and as such no additional financial upgradation will be given
to a senior employee on the ground that the junior employee has got
higher pay scale under the ACP Scheme. The respondents argued that there
is no infirmity in the Clause-8 of the Scheme placing reliance on the
decisions of Hon ble Supreme Court in the case of UOI and Anr. Vs. V.R.
Swaminathan, JT 1997(8) SC 61 and State of U.P. & Ors. Vs. J.P.
Chaurasia and Ors., JT 1988 (4) SC 53.
5. We have heard the learned counsel for both sides and perused the material placed on record.
6. During the course of arguments, the respondents made available
judgment of Bombay Bench at Nagpur of CAT in OA-2117/2005 (A.N. Pant
& Ors. Vs. UOI & Ors.) dated 01.08.2012 between the same
parties. By the aforesaid judgment, the claim of the applicants for
placement in higher pay scale on the ground that junior employee had got
that grade on account of ACP Scheme was rejected. However, learned
counsel for the applicants pointed out that the prayer of the applicants
in the instant case was different. According to him, in the case
decided by the Bombay Bench at Nagpur, the prayer of the applicants was
for grant of higher pay scale whereas in the instant case the prayer is
only for stepping up of pay.
7. We have seen the judgment of the Hon ble Supreme Court on which
reliance has been placed by the respondents and we find that the facts
and circumstances of the two cases are different. Thus, in the case of
V.R. Swaminathan (supra) senior employees were demanding stepping up of
pay on account of the fact that juniors had got the benefit of higher
pay because they had officiated on higher post based on local/circle
seniority. Further, in the other case of J.P. Chaurasia (supra) two
scales had been created in the cadre of Bench Secretaries of Allahabad
High Court that promotions from lower to higher scale taking place based
on seniority-cum-fitness. None of these two cases appears to be
relevant.
8. On the other hand, the applicants have placed reliance on the
judgment of Chandigarh Bench of this Tribunal dated 19.01.2010 in
OA-156-JK-2009(Ashok Kumar Vs. UOI & Ors.). Relevant porition of
this judgments reads as under:-
9. The issue raised in this case as to whether a senior person, though having received two promotions, is entitled to stepping up of his pay at par with his junior, who has been granted benefit under ACP Scheme and by virtue of this, is receiving higher pay than his senior, stands clinched by various decisions of this Tribunal including in O.A. No. 842-JK-2007 decided on 17.11.2009 titled Madan Gopal Sharma & Others Vs. Union of India & Others. In that case reliance was placed on decisions of Apex Court in the case of Ram Sarup Ganda (supra) and (Gurmail Singh). Reliance was also placed on decision in the case of Harcharan Singh Sudan (supra). It was held that seniors are entitled to step up their pay as a general rule as and when any junior gets fixed in a pay scale higher to them on account of grant of ACP Scale. Para 14 of the decision in the case of Harcharan Singh Sudan (supra) in Para 14 is reproduced as under:- 14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government was the appellant and the challenge was against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay parity would be compared annually and partly would be maintained in future
10. Finding that the facts of this case are covered by the decision in the case of Harcharan Singh Sudan s case as well as Madan Gopal Sharma and Others (supra), this Original Application is allowed to the extent that annexure A-2 relating to rejection of claim of applicant is quashed and set aside.
11. With this O.A. stands disposed of and the respondents are directed to step up the pay of the applicant at par with his junior aforesaid and in terms of the directions contained in the case of Harcharan Singh Sudan (supra). It is made clear that the applicant shall be given stepping up of pay only and not the pay scale, as explained above. The pay may be fixed accordingly and arrears be also paid to him within a period of three months from the date of receipt of a copy of this order. However, in the given facts and circumstances of the case, applicant is not entitled to interest. Parties to bear their own costs.
9. In our opinion, the case of the applicants is covered by the
aforesaid order of the Tribunal, hence they are also entitled to the
same benefits. Accordingly, the present O.A. is allowed. Respondents are
directed that the pay of the applicants be stepped up in terms of
Para-9 of the aforesaid judgment. This shall be done within a period of
three months from the date of receipt of a copy of this order. There
shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Source: http://indiankanoon.in/doc/119664509/
