Sushil Kumar v. Union of India

1. By way of the present petition under Article 226 of the Constitution of India, the petitioner, who is presently serving as an Inspector (Pharmacist) in the Indo-Tibetan Border Police (ITBP) has approached this Court seeking the following reliefs:- “i. Issue a Writ of Certiorari for quashing of the order dated 24.09.2021 and 18.09.2020 issued by the Respondents wherein the Petitioner has been denied the benefit of Non-functional Upgradation despite of being entitled and eligible for the same; and ii. Issue a Writ of Mandamus directing the Respondents to grant the benefit of Non-functional Upgradation in the Grade Pay Rs.5400 in Pay Band-3 w.e.f. the date of him being eligible for the same along with arrears, and all other consequential benefits; and iii. Pass any such orders as the Hon'ble Court may deem fit in the light of above mentioned facts and circumstances of the case.”

2. The petitioner, on 06.07.1995, joined the ITBP as a Sub-Inspector (Pharmacist), a Group-B Non-Gazetted, Non-Ministerial post. On 24.08.2014, he was promoted as an Inspector (Pharmacist) and was w.e.f. 06.07.2015 granted the benefit of MACP scheme with a grade pay of 4,800/. Consequently, he completed 4 years of service in a grade pay of Rs. 4,800/on 05.07.2019.

3. In the year 2008, the Department of Expenditure, Ministry of Finance, issued a resolution dated 29.08.2008, inter-alia modifying the resolutions of the 6th Central Pay Commission, which directions were to be followed by all the Ministries. As per this resolution, the holders of Group-B post in all Departments and Ministries of the Central Government were entitled to receive the Non-Functional grade pay of Rs. 5,400/- in Pay Band-3 (PB-3) after four years of service in the grade pay of Rs. 4,800/- in Pay Band-2 (PB- 2). In the light of this policy decision taken by the Ministry of Finance, officers of various services including Central Board of Direct Taxes (CBDT) and Central Board of Customs and Central Excise (CBCE) in the grade pay of Rs. 4,800/- were accorded the benefit of Non-Functional Upgradation (NFU) in the grade pay of Rs. 5,400/- on completion of four years of service in grade pay of Rs. 4,800/-. The said benefit was, however, denied to those officers who had been placed in the grade pay of Rs. 4,800/- by virtue of pay upgradation under the Assured Career Progression Scheme (ACP) but were not holding the substantive post, carrying the said grade pay of Rs. 4,800/-.

4. Being aggrieved, an Inspector working in the Central Excise who was drawing the grade pay of Rs. 4,800/- by way of ACP scheme, approached the learned Central Administrative Tribunal, Chennai (Tribunal) by way of OA no. 167/2009. As the learned Tribunal rejected his claim, he approached the High Court of Judicature at Madras, by way of W.P. 13225/2010, titled as M. Subramaniam vs. Union of India & Ors., which writ petition came to be allowed on 06.09.2010 by directing the Government to extend the benefit of financial upgradation in the Non-Functional grade pay of Rs. 5,400/- to even those Group-B officers who had rendered four years of service after being placed in the grade pay of Rs. 4,800/- by virtue of upgradation under the ACP scheme. This decision of the Madras High Court was assailed by the Union of India before the Apex Court by way of Civil Appeal NO. 8883/2011, which appeal came to be dismissed on 10.10.2017, whereafter, the Review Petition preferred by the Union of India was also rejected on 23.08.2018.

5. Pursuant to the dismissal of the Union of India’s appeal by the Apex Court, the benefit of the NFU in the grade pay of Rs. 5,400/- was accorded to the Group-B officers of the CBDT who had been holding the grade pay of Rs. 4,800/- by virtue of ACP scheme upgradation for four years. The aforesaid decision of the Madras High Court in M. Subramaniam (supra) was followed by the Punjab & Haryana High Court in CWP No. 3430/2017 (O&M).

6. It is the petitioner’s claim that after the dismissal of the appeal in M. Subramaniam (supra) by the Apex Court, the benefit of NFU in grade pay of Rs. 5,400/- in PB-3, as stipulated in resolution dated 29.08.2008, has been implemented by the Government across the board for Group-B cadres amongst all Central Government Ministries but is being denied to the Group-B cadre of the Central Armed Police Forces (CAPFs) on the same ground, which already stands rejected by the Madras High Court as also the Punjab & Haryana High Court. As the petitioner’s legal notice dated 21.06.2020, seeking the benefit of NFU was rejected by the respondents on 18.09.2020, the petitioner approached this Court by way of WP(C) 43321/2021, which was disposed of vide order dated 06.04.2021, by directing the respondents to treat the said writ petition as a representation and dispose of the same by passing a reasoned order. Pursuant to the said order, the respondents have vide their order dated 24.09.2021 once again rejected the petitioner’s claim, leading to the filing of the present petition.

7. In support of the petition, learned counsel for the petitioner submits that the issue raised in the present petition is no longer res-integra as decision of the Madras High Court in M. Subramaniam (supra) has already attained finality. He submits that while the respondents do not deny that the resolution dated 29.08.2008 issued by the Ministry of Finance is equally applicable to Group-B officers of the CAPFs, they have rejected the petitioner’s claim for upgradation of his grade pay to Rs. 5,400/- after four years of service in the grade pay of Rs. 4,800/- only on the premise that he was holding the grade pay of Rs. 4,800/- not by way of any promotion but by way of upgradation under the MACP scheme, which ground already stands rejected in M. Subramaniam (supra).

8. He, therefore, prays that the impugned order be set aside and the writ petition be allowed by directing the respondents to grant NFU to the petitioner in the grade pay of Rs. 5,400/- in PB-3 w.e.f. 06.07.2019, the date on which he completed four years of service in the grade pay of Rs. 4,800/-.

9. On the other hand, learned counsel for the respondents seeks dismissal of the writ petition by urging that the intent of the resolution dated 29.08.2008 issued by the Ministry of Finance is to grant the benefit of NFU in the grade pay of Rs. 5,400/- only to those Group-B officers, who had been drawing grade pay of Rs. 4,800/- for four years by way of promotion and not to those, who were drawing that grade pay by virtue of MACP scheme. He, therefore, contends that once the petitioner was admittedly placed in the grade pay of Rs. 4,800/- only by way of MACP scheme, he was not entitled to the benefit of NFU under the resolution dated 29.08.2008. While not denying that the decision in M. Subramaniam (supra) has attained finality, he submits that the High Court of Judicature at Madras had failed to appreciate that the provision for NFU in the grade pay of Rs. 5,400/- as per resolution dated 29.08.2008 was not applicable to those officers, who were drawing the grade pay of Rs. 4,800/- by virtue of financial upgradation under the ACP scheme. He, therefore, prays that the writ petition be dismissed.

10. Having considered the submissions of the learned counsel for the parties and perused the record, we find that in M. Subramaniam (supra), the Madras High Court had rejected exactly the same plea as is being sought to be raised by the respondents by urging that the benefit of NFU in the grade pay of Rs. 5,400/- would not be applicable to those drawing grade pay of Rs. 4,800/- by way of financial upgradation and not by way of promotion. It would, therefore, be apposite to refer to the relevant extract of the decision of the Madras High Court in M. Subramaniam (supra): “6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of 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 year, he is entitled to the grade pay of Rs. 5400/0 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 prerevised pay-scale of 7500-12000 (corresponding to grade pay of Rs.

4800) by virtue of financial up gradation under ACP would not be entitled to the benefit of further non-financial up gradation the prerevised pay-scale 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..........

8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non-functional up gradation 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 up gradation from such date on which he completes 4- year in the pay scale of Rs. 7,500-12000 (prerevised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7,500-12,000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 5700-12000 as on 1.1.2008, he is entitled to grade pay of Rs. 5400/-. In fact, the Government of india, having accepted the recommendations of the 6th Pay Commission, issued a resolution dated 29.08.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on nonfunctional 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.”

11. Since it is an admitted position that not only the appeal assailing the decision of the Madras High Court in M. Subramaniam (supra) stands rejected but even the Review Petition (C) no. 2519 of 2018 also stands rejected by the Apex Court, it would be apposite to refer to the order dated 23.08.2018 whereby the review petition was dismissed by the Apex Court. The same reads as under:- “There is a delay of 357 days in filing Review Petition (C) No.2512 of 2018 and 264 days in filing Review Petition (C) No.2519 of 2018. The challenge to the clarification issued by the Ministry of Finance clarifying that non-functional Grade Pay of Rs.5,400/- would not be granted to such of those officers who had got the Grade pay of Rs.4,800/- on upgradation under ACP Scheme, was accepted by the High Court and the writ petition preferred by the respondent was allowed. While dismissing the special leave petitions filed at the instance of the present review petitioners this court did not find any ground to interfere. We have gone through the review petitions and do not find any error apparent on the face of record. These review petitions are, therefore, dismissed both on the ground of delay as well as merits.”

12. Even otherwise, having perused the resolution dated 29.08.2008 issued by the Ministry of Finance, we find that the provision for NFU in the grade pay of Rs. 5,400/- in PB-3 for Group-B officers with four years of service in grade pay of Rs. 4,800/- does not prescribe that those drawing the said grade pay by way of ACP or MACP schemes would not be eligible for the said benefit. In our considered view, when the resolution dated 29.08.2008 does not place any embargo on the entitlement of those Group-B officers, who are drawing the grade pay of Rs. 4,800/- by way of ACP/MACP schemes, the respondents could not have placed a condition that the grant of NFU would be restricted to those drawing grade pay of Rs.4,800/- by way of promotion.