Dal Singh and Ors. v. Union of India and Ors.

7. Mr. Saxena submits that the learned Tribunal was clearly in error regarding the benefit of the upgradation to the grade pay of ₹ 5400/- to be conditional upon four years being spent in the grade pay of ₹ 4800/- in the grade of Superintendent. He submits that the resolution dated 29 August 2008 makes no reference to the post of W.P. (C) 13225/2010 in order dated 6 September 2010 Superintendent and merely requires the incumbent to had four years services in the grade pay of ₹ 4800/-, which his client satisfies.

8. This position, he submits, was recognised by the High Court of Madras in M. Subramanium, which was subsequently followed by the Division Bench of this Court in Sushil Kumar.

9. As against this, Ms. Manisha Agarwal Narain, learned CGSC for the respondents, submits that Clause X (e) in the resolution dated 29 August 2008 has to be read holistically in the right of the entire resolution and is meant to provide for amelioration of stagnation in the grade of Superintendent.

10. Once the petitioners had never served in the post of Superintendent and, as such, she submits that they would not be entitled to the benefit of that dispensation.

11. She relies on clarificatory circulars dated 11 February 2009 and 16 September 2009, issued by the erstwhile Central Board of Excise and Customs[4], which may be reproduced thus: Circular dated 11 February 2009 “F.No.A.26017/98/2008-Ad.II.A Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs New Delhi, the 11th February, 2009 “the CBEC”, hereinafter To All the Chief Commissioners/ Directors General under CBEC. All the Commissioners in-charge of Directorates under CBEC. Subject: Clarification regarding grant of non-functional upgradation to Group-B Officers. Sir/Madam, I am directed to mention that in Part-C, Section-II of the CCS (Revised Pay) Rules, 2008, under the Heading 'Ministry of Finance, Department of Revenue, at S. No. 9, it is indicated that Superintendents, Appraisers etc. (Customs & Central Excise) [who are in the pre-revised scale of Rs.7,500-12,000] shall be granted Grade Pay of Rs. 5,400 in PB-2 [corresponding to pre-revised scale of Rs. 8,000-13,500], after 4 years of Service. Further, in Clause (x)(e) of the RESOLUTION also, it is indicated that "Group-B Officers of the 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.4,800 in PB-2."

2. The pre-revised pay-scale of Rs. 7,500-12,000 could be granted to an officer EITHER on functional promotion to the post of Superintendent, Appraiser, etc. OR by way of financial upgradation under ACP. Thus, officers of the rank of Inspectors could also have this pay-scale due to financial upgradation under ACP. A question was raised as to whether the officers who had got the pre-revised pay-scale of Rs.7,500-12,000 by virtue of financial upgradation under ACP will, also be entitled to the benefit of further non-functional upgradation on completion of 4 years in the pre-revised pay scale of Rs.7,500-12,000, in terms of recommendations of 6th CPC accepted by the Government, as mentioned in Para-1 above.

3. The matter has been examined in consultation with Department of Expenditure, who have clarified the matter as follows: "....... Non-functional upgradation to the grade pay of Rs.5,400 in the pay band PB-2 can be given on completion of 4 years of regular service in the grade pay of Rs.4,800 in PB-2 (pre-revised scale of Rs.7,500-12,000) after regular promotion and not on account of financial upgradation due to ACP."

4. Thus, it is clear that the officers who got the pre-revised pay-scale of Rs.7,500-12,000 (corresponding to grade pay of Rs.4,800) by virtue of financial upgradation under ACP will not be entitled to the benefit of further non-functional upgradation to the pre-revised pay-scale of Rs.8,000-13,500 (corresponding to grade pay of Rs.5,400), on completion of 4 years in the pre-revised pay scale of Rs.7,500- 12,000.

5. This is for your kind information and necessary action. Yours faithfully, (Alok Agarwal) Under Secretary to the Govt. of India Tel: 011-2309-3476” Circular dated 16 September 2009 “F.No. A-26017/98/2008-Ad. II A Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs New Delhi, the 16th September, 2009 All Chief Commissioners/Commissioners of Central Excise/ Customs. All Directors General of Directorates in CBEC. Subject: Clarification on grant of Grade Pay of Rs. 5400 on functional basis to Group 'B' officers in Central Board of Excise & Customs Sir, Reference is invited to this Department's letter F.No. A- 26017/98/2008-Ad.ll A dated 21/11/2008 on the above subject.

2. In pursuance of Government of India, Department of Expenditure Resolution No. 1/1/2008-JC dated 29th August, 2008 notifying acceptance of recommendations of 6th Central Pay Commission, it was decided to grant grade Pay of Rs. 5400 in PB-2 on non-functional basis to Group B officers of Central Board of Excise & Customs (i.e. Customs Appraiser / Superintendent of Central Excise / Superintendent of Customs (P)) after 4 years of regular service in the grade pay of Rs. 4800 in PB-2.

3. It is now clarified that the grant of the higher grade pay of Rs. 5400 in PB-2 on non functional basis is not linked to vacancy and may be given retrospectively w.e.f. 1/1/2006 provided the officer concerned has,

(i) completed minimum 4 years of regular service as on

1/1/2006 as Customs Appraiser / Superintendent of Central Excise / Superintendent of Customs (P) irrespective of the pay scale attached to the post, and

(ii) is clear from vigilance angle.

and provided further that, Officers who have not completed 4 years of regular service as Customs Appraiser/Superintendent of Central Excise/Superintendent of Customs (P) shall be given this pay scale immediately on completion of 4 years of regular service in the respective post provided they are clear from vigilance angle.

4. It is further clarified that the non functional 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 upgradation under the Assured Career Progression Scheme.

5. This issues with the approval of Department of Expenditure, Implementation Cell vide their IC U.O. NO. 10/1/2009-IC dated 15.09.2009 Yours faithfully, (L.R. Aggarwal) Deputy Secretary to the Government of India Tele: 23093102”

12. We find it difficult to understand how, by executive directions in the form of the afore-noted circulars, the Department of the Expenditure or the CBEC, could whittle down the scope of the beneficial Clause X (e) of the gazetted Resolution dated 29 August

2008. Besides, Mr. Saxena correctly submits that these circulars have also been addressed by the High Court of Madras in M. Subramanium, in paras 6 to 8, which read thus: “6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Rs.5400/- in the Pay Band 2 on non-functional basis to the Group B Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/-in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs. 7500- 250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four years, he is entitled to the grade pay of Rs. 5400/- with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008-AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised pay-scale of 7500-12000 (corresponding to grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non-financial upgradation to the pre-revised payscale of Rs. 8,000-13,500 (Corresponding to grade pay of Rs.

5400) on completion of 4 years in the Pre-revised pay scale of Rs. 7500-12000.

7. We are unable to agree with this clarification given by the under Secretary to Government on 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. 7,500-12000 (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. 7,500-12000 (pre-revised).

8. Thus, if an officer has completed 4-years on 1.1.2006 or earlier, he will be given the non-functional upgradation 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- 12000 (pre-revised), since the petitioner admittedly completed 4year period in the pay scale of Rs. 7500-12000 as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government of India, having accepted the recommendations of the 6th pay commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on nonfinancial basis after four years of regular service in the grade pay of Rs. 4800/- 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.”

13. Ms. Narain submits that the High Court of Madras has erred in observing, in para 8 of its decision in M. Subramanium, that the clarification contained in the circulars dated 11 February 2009 and 16 September 2009 of the CBEC would not suffice and that an amendment to the policy was required. She submits that there was no need for an amendment as the circulars only clarified the intent of the policy contained in Clause X (e) of the resolution dated 29 August

2008.

14. We are unable to agree. We find ourselves in agreement with the observation of the High Court of Madras that the Circulars in effect amended the policy which was not permissible. We agree with the High Court that the expansive sweep of the policy could not have been reduced by clarificatory circulars issued by the Directorate of Expenditure or the CBEC.

15. In view thereof, we are also unable to agree with the view expressed by the learned Tribunal in the impugned judgment that the petitioners would not be entitled to the benefit of the grade pay of ₹ 5400/- as they had been provided the grade pay of ₹ 4800/- by way of financial upgradation under the ACP Scheme. Clause X (e) of the circular dated 29 August 2008 does not carve out any such distinction.

16. The issue is squarely covered by the judgment of the Division Bench of this Court in Sushil Kumar. Accordingly, we set aside the impugned judgment dated 4 October 2019 passed by the learned Tribunal and hold the petitioners to be entitled to the grade pay of ₹ 5400/- on completion of four years in the grade pay of ₹ 4800/-.

17. The OA filed by the petitioners before the learned Tribunal as well as the present writ petition stand allowed to the aforesaid extent.

C.HARI SHANKAR, J. DR.