Saturday, 2 May 2020

സാലറി ഫ്രീസുചെയ്യലും, മാറ്റിവെക്കലും, ഓർഡിനൻസും, ഭരണഘടനാവിരുദ്ധം ആണോ?


ആദ്യം കേരള സംസ്ഥാന സർക്കാർ, തുടർന്ന് യൂണിയൻ ഓഫ് ഇന്ത്യ, അവരുടെ ജീവനക്കാരുടെ ശമ്പളം COVID - 19 പകർച്ചവ്യാധിയുടെ പശ്ചാത്തലത്തിൽ കുറയ്ക്കാനോ മാറ്റിവെക്കാനോ ശ്രമം തുടങ്ങി. ധാർമികതയുടെ മുഖംമൂടി അണിഞ്ഞുകൊണ്ടാണ് ഇരുവരും ഇതിനൊരുങ്ങിയത്. എന്നാൽ ഇന്ത്യൻ ഭരണഘടനയുടെ അടിസ്ഥാന മൂല്യങ്ങളെ കാറ്റിൽ പറത്തിയാണ് ഇരുവരും ഇത് ചെയ്തത്. ഇപ്പോൾ ഇന്ത്യയിൽ രാജഭരണമല്ല മറിച്ചു ഭരണഘടനയിൽ അടിയുറപ്പിച്ച ജനകീയ ഭരണമാണ് എന്ന് ഓർക്കേണ്ടിയിരിക്കുന്നു. പണ്ട് തിരുവിതാംകൂർ മഹാരാജാവ് യുദ്ധഭീഷണിയിൽനിന്നു രക്ഷപ്പെടാനോ മറ്റോ ഖജനാവ് ശ്രീ പദ്മനാഭസ്വാമിക്ക് സമർപ്പിച്ചു എന്ന് കേട്ടിട്ടുണ്ട്. ഇതും ഏതാണ്ട് അതുപോലെതന്നെയായി. വിഷയത്തെപ്പറ്റി ഞാൻ 28-04-2020നു ഒരു ബ്ലോഗ് ഇംഗ്ലീഷിൽ എഴുതിയിരുന്നു -                      (https://www.centralemployeesnews.manjaly.net/2020/04/government-salary-freezing.html ). അതിനു ശേഷം കേന്ദ്ര സർക്കാർ ഫ്രീസ് ചെയ്യൽ പരിപാടി  മാറ്റി സംഭവനയാക്കി മാറ്റാനും സർക്കാർ ജീവനക്കാരിൽനിന്നും സമ്മതപത്രം വാങ്ങാനും തുടങ്ങി എന്നാണാണ് ചില പൊതുമാധ്യമങ്ങളിൽ നിന്നും അറിയാൻ കഴിഞ്ഞത്. എന്നാൽ കേരള സർക്കാർ വിട്ടു കൊടുക്കാൻ തയ്യാറല്ല. ഗവണ്മെന്റ് സർക്കുലർ ഹൈക്കോടതി സ്റ്റേ ചെയ്തപ്പോൾ അത് ഓർഡിനൻസ് എന്ന ഓമനപ്പേരിൽ  വീണ്ടും കൊണ്ടുവന്നു. എന്നാൽ ഇതും ശരിയാണോ തെറ്റാണോ എന്ന് ഒന്ന് നോക്കുന്നത് നല്ലതാണെന്നു തോന്നുന്നു.


പൊതുവായ സാഹചര്യത്തിൽ, സിവിൽ സർവീസ് നിയമപ്രകാരം ശമ്പളം തടഞ്ഞുവയ്ക്കുകയോ മരവിപ്പിക്കുകയോ ചെയ്യുന്നത് ഒരു ശിക്ഷാനടപടി ആയിട്ടാണ്.. അതിനായി നിയമങ്ങളും നിയന്ത്രണങ്ങളും ഉണ്ട്. അതിനു അതിന്റെതായ നിയമ വ്യവസ്ഥയുണ്ട്. അല്ലാതെ വെറും ഒരു സർക്കാർ സർക്കുലർ കൊണ്ടോ ഓർഡിനൻസ് കൊണ്ടോ ചെയ്യാവുന്നതല്ല.   നിയമങ്ങൾ പാലിക്കാതെ, ഒരു സർക്കാരിനും ശമ്പളം കുറയ്ക്കാൻ കഴിയില്ല. അല്ലെങ്കിൽ  ഇത് ഒരു സംഭാവനയായി അല്ലെങ്കിൽ ഒരു നിക്ഷേപമായി, ജീവനക്കാരന്റെ സമ്മതത്തോടെ ആയിരിക്കണം. അതിനാൽ, സർക്കാരിന്റെ നടപടികൾക്ക് നിയമപരമായ നിലപാടില്ല.

എന്നാൽ ചെയ്യാൻ പറ്റില്ലേ എന്ന് ചോദിച്ചാൽ പറ്റും എന്ന് തന്നെയാണ് മറുപടി. പക്ഷെ അതിനു അതിന്റെതായ നടപടി ക്രമങ്ങൾ  ഉണ്ട്.  ഇന്ത്യൻ ഭരണഘടനയിൽ തന്നെ ഒരു വ്യവസ്ഥയുണ്ട്. അതായത്, ഇന്ത്യൻ ഭരണഘടനയുടെ ആർട്ടിക്കിൾ 360 ലെ വ്യവസ്ഥകൾ പ്രകാരം, സാമ്പത്തിക അടിയന്തരാവസ്ഥ പ്രഖ്യാപിക്കുമ്പോൾ, കേന്ദ്ര സർക്കാരിന് ശമ്പളം കുറയ്ക്കാനും   സാഹചര്യത്തിൽ സംസ്ഥാന സർക്കാരുകളെ ശമ്പളം കുറക്കാൻ  അധികാരപ്പെടുത്താനും കഴിയും. എന്നാൽ ഇപ്പോൾ സ്ഥിതി വ്യത്യസ്തമാണ്. ഇപ്പോൾ സാമ്പത്തിക അടിയന്തരാവസ്ഥ പ്രഖ്യാപിച്ചിട്ടില്ല. അതിനാൽ നിർബന്ധിത മരവിപ്പിക്കലിനോ ശമ്പളത്തിന്റെ ഒരു ഭാഗം തടഞ്ഞുവയ്ക്കുന്നതിനോ ഒരു സർക്കാരിനും അധികാരമില്ല.

എന്നാൽ ഇക്കാര്യം കേരള സർക്കാരിന് അറിയില്ല എന്ന് വിചാരിക്കാൻ കഴിയുമോ? ഇല്ല. പിന്നെ എന്തുകൊണ്ടാണ് സർക്കാർ അതിനു തുനിയാതെ സൂത്രം കൊണ്ട് ഓട്ട അടക്കാൻ ശ്രമിക്കുന്നത്? അതിനു തക്കതായ കാരണം കാണിക്കണം. കോവിഡ് കോവിഡ് എന്ന് മാത്രം പറഞ്ഞാൽ പോരാ. മൊത്തം കടബാധ്യതയുടെ കണക്കു കാണിക്കണം. അവിടെയാണ് പ്രശ്നം. അതായതു, കോവിഡ് വരുന്നതിന്റെ മുൻപുള്ള കടബാദ്യതയും പിന്നീടുള്ള കോവിഡ് കൂടാതെയുള്ള കടബാധ്യതയും അതിനുള്ള വിശ്വസിക്കാവുന്ന ന്യായീകരണവും കൂടി വേണം. അതിനു സർക്കാരിന് കഴിയില്ല എന്ന പൂർണ ബോധ്യം സർക്കാരിന് ഉള്ളതുകൊണ്ടായിരിക്കണം നേരാം വഴിക്കു പോകുന്നതിൽനിന്നും സർക്കാരിനെ പിന്തിരിപ്പിക്കുന്നത്.

My home page: manjaly.net

My published books:   1. A FRAUD IN THE INDIAN CONSTITION (E-book & Paperback)
                                    2. LTC RULES MADE EASY (E-book)

Tuesday, 28 April 2020

SALARY FREEZING AND WITHHOLDING BY GOVERNMENT IS UNCONSTITUTIONAL




First the Government of Kerala State, followed by the Union of India started reducing the salary of their respective Government employees in the background of COVID – 19 pandemic spread all over the world. I do not want to comment it from the point of morality etc. I am only expressing my thought with respect to the fact that whether the Central or State Government is legally and constitutionally authorized it or is it purely an illegal act being not a donation?

In general context, withholding or freezing the salary is an act of punishment under the civil service rules. For that there are rules and regulations. Without following these rules, no government can reduce the salary particularly when it is permanent in nature. It is also not deducted either as a donation or as a deposit, with the consent of the employee. Therefore, the action of the Government has no legal standing.

But there is a provision in the Constitution of India, that is, when there is a Financial Emergency is declared and is in force. Under the provisions of Article 360 of the Constitution of India, when there is a declaration of the Financial Emergency, the Central Government can reduce the salary that too following the procedures prescribed therein. In that situation it can also authorize the State Governments to do so. But now the situation is different. There is no Financial Emergency declared now.

In this circumstance, it is better for the Governments to go for voluntary donations instead of going for compulsory freezing or withholding part of the salary or to declare Financial Emergency if the conditions can be fulfilled.

M.P. JOSEPH. (My home page:- www.manjaly.net

My published books:   1. A FRAUD IN THE INDIAN CONSTITION (E-book & Paperback)
                                    2. LTC RULES MADE EASY (E-book)




Friday, 3 May 2019

TRUE STORY OF AN EX- OFFICER


THE BOOK, "A FRAUD IN THE INDIAN CONSTITUTION" IS A REAL TRUE STORY OF AN EX- OFFICER OF THE INDIAN AUDIT AND ACCOUNTS DEPARTMENT HEADED BY THE CAG OF INDIA. IT CONTAINS THE REBELLIOUS WORK OF THE AUTHOR AGAINST MANY MALPRACTICES PREVAILING IN THE DEPARTMENT. IT ALSO REVEALS THE REACTIONS FROM THE DEPARTMENT LIKE DISCIPLINARY ACTIONS ETC. AGAINST HIM AND HOW HE FOUGHT IT AND CONTINUED WITH THE REBELLION. THE BOOK IS MAINLY AIMED AT REVEALING THE TRUTH TO THE PUBLIC WHO TREAT CAG AS AN INCARNATION OF GOD, BUT IN REALITY IT IS NOT GOD BUT A FRAUD AS IS THE NAME OF THE BOOK INDICATES. IT IS ALSO AN ATTEMPT TO SHOW THAT WHAT IS SUBMITTED TO THE PARLIAMENT AND THE STATE LEGISLATURES BY THE NAME 'CAG AUDIT REPORT' IS FULL OF FAKE AND IMAGINARY AUDIT OBJECTIONS AND GENUINE OBJECTIONS ARE NOT REPORTED EXCEPT IN CIRCUMSTANCES DETAILED IN THE BOOK SUCH AS THE COALGATE SCAM, 2G SCAM ETC., WHICH CAME TO LIGHT ONLY AFTER DECADES OF ITS OCCURRENCES. PART I OF THE BOOK STARTS WITH THE HEADING 'CAG NOT EVEN AN ACCOUNTANT'. THEN AUTHOR IS UNFOLDING AN INTERESTING HISTORICAL INCIDENT FROM HIS OWN EXPERIENCE TO ESTABLISH THIS. FINALLY, CHAPTER 14 OF THE BOOK IS ENDING WITH, "IS IT NOT BOTH CAG AND THE MINISTRY IS FOOLING THE PARLIAMENT AND THUS THE PEOPLE OF INDIA? NOW IT IS FOR THE PUBLIC ACCOUNTS COMMITTEE (PAC) OF THE PARLIAMENT TO TELL THE PUBLIC WHAT THEY ARE DOING WITH THESE KINDS OF AUDIT OBJECTIONS AND REPLIES BROUGHT BEFORE THEM".

   [ Book "A FRAUD IN THE INDIAN CONSTITUTION" is available through AMAZON ]

Monday, 25 February 2019

MACP: UPDATE ON IMPLEMENTATION OF THE BOMBAY HIGH COURT JUDGEMENT

Many of my friends, personal as well as media, are asking me about the latest position of the Judgement of the Hon'ble Bombay High Court on the implementation of MACP scheme. Really speaking, I am not much interested in the issue because my monetary benefit is very nominal, since I was already promoted on 01-03-2006 and the effect is only for 2 months. I took up the issue, only because lakhs of employees are affected substantially by the wrong implementation of the 6th CPC and the order challenged is basically wrong. This is also not the first time I took such issues. I took such issues since the 4th Pay Commission onwards (See the newspaper cutting attached). In the present case, I had written a letter to the Respondents in the case as given below, which is self-explanatory.

        To know more about my published books, blogs on various subjects, see the box below:
  1. To read free part of my book  ‘A FRAUD IN THE INDIAN CONSTITUTION’ go to the below link and click “LOOK INSIDE” button: www.amazon.in/FRAUD-INDIAN-CONSTITUTION-M-P-JOSEPH-ebook/dp/B00SQKTADY/
  2. To read free part of my book LTC RULES MADE EASY, go to the following link:-https://www.amazon.in/LTC-RULES-MADE-EASY-date-ebook/dp/B01JO66SLK 
  3. My blogs on various subjects:
a.      www.facebook.com/manjaly.net/   
d.       www.cagreport.manjaly.net
g.       Home page: www.manjaly.net 


By Speed Post

From,                                                                           Date: 04-02-2019
Mr. M.P. JOSEPH
XXXX
XXXX
XXX Maharashtra.

To,
The Director General of Audit (Central)
Mumbai.
           
Subject:-          Writ Petition no. 1763/2013 before the BOMBAY HIGH COURT
Reference:-      My letter dated 21-10-2018 on the above subject.(Copy enclosed)
Sir,
Kindly refer to the above Writ Petition in which you are the 4th Respondent. This is to remind you that as per the order of the Hon’ble Bombay High Court, you have to pay the benefits as expeditiously as possible and in any case within a period of three months from 15-10-2018. That period expired on 14-01-2019. But so far, you have not paid it. By clearly knowing the lethargy and leisureliness of Government Departments in implementing the Court order, the Hon’ble Court also made an inbuilt automatic balancing mechanism in the following words: “If, such benefits/consequential benefits are not paid to the petitioner within three months from today, then the respondents will liable to pay interest thereon @6% p.a. from the date such payments became due and payable, till the date of actual payment.” Accordingly, now you have to pay the same with interest @ 6% p.a. from when it was due and payable, i.e., 01-01-2006.
Further I am also to inform you that, if the payment with interest is not paid within a reasonable time, I will also initiate Contempt of Court Proceedings against you.
You are, therefore, requested to do the needful at the earliest.
Yours faithfully,
Encl:- copy as above.                                                                          Sd/-
                                                                                                (M.P. JOSEPH)           
Copy of the letter addressed to the 4th Respondent is forwarded (without encl.) for information and necessary action to Respondents 1 & 2 in the above case, by speed post:-

  1. The Secretary, D.O.P.T., North Block, New Delhi – 110 001.

  1. The Secretary, Min. of Finance, Dept. of Expenditure, North Block, New Delhi – 110 001.


                                                                                            SD/-
(M.P. JOSEPH)


THE SUNDAY TIMES OF INDIA, MARCH 28,1993


Tuesday, 16 October 2018

BOMBAY HIGH COURT JUDGEMENT DATED 15-10-2018 ON MACPS


Please refer to my earlier Blogs related to the effective date of  MACPS and my pending Writ petition before the Hon'ble Bombay High Court. Finally, the Court delivered the judgement on 15-10-2018. The 4 respondents are:- 
  1. D.O.P.T.                                 
  2. Min. Fin., Dep. of Expt.         
  3. Cent.Adm.Tribunal, Mumbai Bench.             
  4. D.G.A.(Central), Mumbai.    
Though the Judgement is based on my Personal Writ Petition, hope DOPT will apply it to all covered under its jurisdiction.




3. The challenge in this petition to the judgment and order dated 16th April, 2013 made by the Central Administrative Tribunal (for short 'the CAT'), dismissing the Original Application No. 145 of 2013 instituted by the petitioner seeking benefit of Modified Assured Career Progression (MACP) with effect from 1st January, 2006 along with all other consequential benefits.

4. Mr. M. P. Joseph-the petitioner in person submits that the issue raised in the present petition is answered in favour of the petitioner by the Hon'ble Apex Court in the case of Union of India and others Vs. Balbir Singh Turn and another (2018) 11 SCC 99 and therefore the CAT's impugned judgment and order may be set aside and the relief prayed for by him in his Original Application No. 145 of 2013 be granted.

5. The learned Counsel for the respondents submit that the benefit under the MACP cannot be regarded as any part of the pay structure extended to the civilian employees and therefore the CAT was justified in denying relief to the petitioner. The learned Counsel submit that the recommendations of the pay commissions are not per-se binding upon the Government and the implementation, including the date from which such recommendations are to be implemented are matters in the discretion of the Government. Since, in the present case, implementation in respect of allowances was directed with effect from 1st September, 2008, the petitioner was not at all justified in seeking implementation with effect from 1st January, 2006. For these reasons the learned Counsel for the respondents submit that this petition may be dismissed.

6. The rival contentions now fall for our determination.

7. There is no dispute in the present case that the petitioner is eligible for receipt of benefits under the MACP. The only dispute is whether the petitioner is required to be granted the benefits under the MACP with effect from 1st January, 2006 as claimed by him in his Original Application No. 145 of 2013 or whether such benefits are due and payable to the petitioner with effect from 1st September, 2008 as contended by and on behalf of the respondents.

8. The sixth pay commission made recommendations with regard to Armed Forces Personnel. By a resolution dated 30th August, 2008, the Central Government resolved to accept such recommendations with regard to Personnel Below Officer Rank (PBOR) subject to certain modifications. Clause (i) of this resolution as relevant and the same reads as follows:-

“(i) Implementation of the revised pay structure of pay bands and grade pay, as well as pension, with effect from 1-1-2006 and revised rates of allowances (except dearness allowances/relief) with effect from 1-9-2008;”

9. As noted earlier, the only issue which arises in the present petition is whether the benefit under MACP is to be regarded as a part of the pay structure of pay bands and grade pay or whether such benefit is to be regarded as “allowances (except dearness allowance/relief)”. If the benefit under MACP is to be regarded as a part of the pay structure of pay bands and grade pay, then obviously the petitioner is right in contending that such benefit will have to be extended to him with effect from 1st January, 2006 in terms of Clause (i) of the aforesaid resolution dated 30th August, 2008. However, if, as held by the CAT in the present case, the benefit of MACP is to be regarded as “allowances (except dearness allowance/relief)”, then the respondents would be right in their contention that such benefit is payable only with effect from 1st September, 2008.

10. The aforesaid was the precise issue which arose for consideration in case of Balbir Singh Turn (supra). The Apex Court upon consideration of the Central Government Resolution dated 30th August, 2008 along with Part-A of Annexure-I thereto has clearly held that the benefit under MACP is a part of the pay structure and therefore such benefit was payable from 1st January, 2006 and not from 1st September, 2008.

11. The reasoning is contained in paragraphs 6, 7 and 8 ofMthe Apex Court ruling, which reads as follows :-
“6. The answer to this question will lie in the interpretation given to the Government Resolution, relevant portion of which has been quotedhereinabove. A bare perusal of Clause (i) of the Resolution clearly indicates that the Central Government decided to implement the revised pay structure of pay bands and grade pay, as well as pension with effect from 1-1-2006. The second part of the clause lays down that all allowances except the dearness allowance/relief will be effective from 1-9-2008. The AFT held, and in our opinion rightly so, that the benefit of MACP is part of the pay structure and will affect the grade pay of the employees and, therefore, it cannot be said that it is a part of allowances. The benefit of MACP if given to the respondents would affect their pension also.
7. We may also point out that along with this Resolution there is Annexure I. Part A of Annexure I deals with the pay structure, grade pay, pay bands, etc., and Item 10 reads as follows:
10
Assured Career Progression Scheme for PBORs. The Commission recommends that the time bound promotion scheme in case of PBORs shall allow two financial upgradations on completion of 10 and 20 years of service as at present. The financial upgradations under the scheme shall allow benefit of pay fixation equal to one increment along with the higher grade pay. As regards the other suggestions relating to residency period for promotion of PBORs Ministry of Defence may set up an Inter-Services Committee to consider the matter after the revised scheme of running bands is implemented (Para 2.3.34)
Three ACP upgradations after 8, 16 and 24 years of service has been approved. The upgradation will take place only in the hierarchy of grade pays, which need not necessarily be the hierarchy in that particular cadre.

Part B of Annexure I deals with allowances, concessions and benefits and conditions of service of defence forces personnel. It is apparent that the Government itself by placing MACP in Part A of Annexure I was considering it to be the part of the pay structure.
8. The MACP Scheme was initially notified vide Special Army Instructions dated 11-10-2008. The Scheme was called the Modified Assured Career Progression Scheme for Personnel Below Officer Rank in the Indian Army. After the Resolution was passed by the Central Government on 30-8-2008 Special Army Instructions were issued on 11-10-2008 dealing with revision of pay structure. As far as ACP is concerned Para 15 of the said letter reads as follows :
“15. Assured Career Progression. In pursuance with the Government Resolution of Assured Career Progression (ACP), a directly recruited PBOR as a Sepoy, Havildar or JCO will be entitled to minimum three financial upgradations after 8, 16 and 24 years of service. At the time of each financial upgradation under ACP, the PBOR would get an additional increment and next higher grade pay in hierarchy.”
Thereafter, another letter was issued by the Adjutant General Branch on 3-8-2009. Relevant portion of which reads as follows :
“... The new ACP (3 ACP at 8, 16, 24 years of service) should be applicable w.e.f. 1-1-2006, and the old provisions (operative w.e.f. the Vth Pay Commission) would be applicable till 31-12-2005. Regular service for the purpose of ACP shall commence from the date of joining of a post in direct entry grade.”
Finally, on 30-5-2011 another letter was issued by the Ministry of Defence, relevant portion of which reads as follows:
“5. The Scheme would be operational w.e.f. 1-9-2008. In other words, financial upgradations as per the provisions of the earlier ACP scheme (of August 2003) would be granted till 31-8-2008.”
Therefore, even as per the understanding of the Army and other authorities up till the issuance of the letter dated 30-5-2011 the benefit of MACP was available from 1-1-2006.”
[emphasis supplied]

12. The CAT, when it delivered the impugned judgment and order dated 16th April, 2013 did not have the benefit of the ruling of the Apex Court in Balbir Singh Turn(supra) which was decided only on 8th December, 2017. The view taken by the CAT in the impugned judgment and order is now in direct conflict with the view taken by the Apex Court in Balbir Singh Turn (supra). Obviously, therefore, the impugned judgment and order will have to be set aside and the petitioner will have to be held to be entitled to receive the benefits under MACP with effect from 1st January, 2006 together with all consequential benefits.

13. The contentions raised by and on behalf of the respondents cannot be accepted, particularly, in the light of the ruling of the Apex Court in Balbir Singh Turn (supra). The Apex Court, in clear terms and in the precise context of Central Government's resolution dated 30th August, 2008 held that the benefit of MACP is a part of the pay structure and not merely some allowance. The Apex Court has held that the benefit of MACP affects not only the pay but also the pension of an employee and therefore, the same, is not an allowance but part of the pay itself. In terms of Clause (i) of the Central Government's resolution, admittedly, the pay component became payable with effect from 1st January, 2006 unlike the allowance component which became payable from 1st September, 2008.

14. Besides, this is not a case where the petitioner was insisting upon preponement of the date for implementation of the recommendations of the pay commission. The Central Government, vide resolution dated 30th August, 2008 had already accepted the recommendations with regard to POBR, no doubt subject to certain modifications. The relief claimed by the petitioner was entirely consistent with Clause (i) of the resolution dated 30th August, 2008, which in fact required the Government to extend benefits of revised pay structure of pay bands and grade pay, as well as pension with effect from 1st January, 2006.

15. Accordingly, we dispose of this petition with the following order:-

O R D E R
(a) The impugned judgment and order dated 16th April, 2013 made by the CAT is hereby set aside.

(b) The petitioner is held entitled to receive the benefit of MACP with effect from 1st January, 2006 together with all consequential benefits.

(c) The respondents are directed to work out the benefits of MACP with effect from 1st January, 2006 together with consequential benefits and to pay the same to the petitioner as expeditiously as possible and in any case within a period of three months from today.

(d) If, such benefits/consequential benefits are not paid to the petitioner within three months from today, then the respondents will liable to pay interest thereon @ 6% p.a. from the date such payments became due and payable, till the date of actual payment.

(e) Rule is made absolute in the aforesaid terms. There shall however be no order as to costs.

( M. S. SONAK, J. )                                                          ( A. S. OKA, J. )

N.B:-
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Tuesday, 9 October 2018

MACPS :BOMBAY HIGH COURT FINAL HEARING COMPLETED - JUDGEMENT RESERVED

Dear readers, while in service, I had instituted a case challenging the effective date of the MACP Scheme. On 08-10-2018, THE COURT FINALLY HEARD THE PETITION AND RESERVED THE JUDGEMENT. Hope the Judgement will come soon. For your information, I am giving the main points of the Writ Petition filed by me before the Hon'ble Bombay High Court at Mumbai regarding MACP Scheme EFFECTIVE DATE . with an oral in

IN THE HIGH COURT OF JUDICATURE AT MUMBAI
ORDINARY ORIGINAL CIVIL  JURISDICTION
WRIT PETITION NO.1763 OF 2013

                      Shri  M.P. JOSEPH                            Petitioner
                                V/s
                      Union of India & ors.                         Respondents
    
PARA 2 OF THE WRIT PEITION:
                                2.            …….Following are the brief facts of the case:
i)             The Government of India, Ministry of Finance, Department of Expenditure vide The Gazette Of India, Extraordinary Pt-I, Sec-I dated 29/08/2008 published the Government Resolution related to the 6th Pay Commission Report. Para 2 of the said resolution states, “The Commission’s recommendations and Government Decision thereon with regard to revised Scales of Pay and Dearness Allowance for civilian employees of the Central Government and personnel of All India Services as detailed in the Part-A of the Annex-I will be made effective from 1st day of January, 2006”.
ii)            The Assured Career Progression Scheme as modified is a part of Pay and its fixation on attaining particular period of service and is covered under Part-A item 4 of Annex-I which states as below:
____________________________________________________________
Sl.           Recommendations of the Sixth                                 Decision of the
No.         Pay Commission                                                              Government
___________________________________________________________
4.            The Commission has recommended                       Accepted with the
                That the existing scheme of Assured                      modification that
                Career Progression may be continued                   there will be three up-
                with two financial upgradations being                  gradations under the
                allowed as at present with the follow-                  ACP Scheme after 10,
                ing modifications: ……                                           20 and 30 years of
                                                                                                         service. …           
_________________________________________________________________
Hence, as already decided in the Government resolution dated 29/08/2008 cited above, the effective date of its implementation is w.e.f. 01/01/2006. There is also no delegation of power conferred on anybody to either to amend or modify or change the above decision of the Government on MACP, since it is very clear and complete in itself and there is no room for any doubt or interpretation.

iv.           … when the Government had already fixed the effective date, and did not delegate any power to anybody, changing the effective date by an Officer in the Ministry at the level of Dy. Secretary to the Government of India is without any legal validity and liable for disciplinary action for making such a colossal mistake and thereby making inconvenience and heavy financial loss to many of the employees not only in the Central Government but State Governments and Autonomous Bodies who adopt the Central Pay Commission.

v.            ….immediately after the issue of the said Office Memorandum dated 19/05/2009, various staff unions demanded the effective date from 01/01/2006 through the National Anomaly Committee (NAC). The demand was rejected as per Office Memorandum No.11/1/2010-JCA dated 06/10/2010.
vi.           ….. Petitioner, thereafter made a representation dated 26/11/2010 against the rejection. The staff unions also raised the same issue again before the NAC. However, the demand was finally rejected vide OM NO.11/2/2008-JCA dated 13/09/2012 annexed. Hence the Applicant had filed the Original Application no.145 of 2013 before the CAT in his personal capacity based on his representation.

vii.          …the Learned CAT dismissed the application, by  its order dated 16/04/2013, thereby approving such a Himalayan blunder committed by the ministry officials.
                                                              
PARA 3 IMPORTANT GROUNDS:
iv.           The Learned CAT Bombay Bench headed and dominated by the Administrative member was totally prejudiced against the Petitioner in pointing out such a devastating mistake committed by people from the same service and failed to consider the evidence on the face of the record.

ix.           The Learned CAT was totally wrong in holding that the MACP Scheme became operative not w.e.f.01/01/2006 but with effect from 01/09/2008. It is very clear that the date of the scheme is w..e.f. 01/01/2006 as explained in para 2 above. Hence there is no room for any doubt or interpretation in this regard. However, the Learned CAT held in the reverse only for the purpose to bail out the Officers in the DOPT under whom it functions, from the responsibility of making such Himalayan blunder thereby many employees not only in Central Government but State Governments and Autonomous Bodies who follow the Central Pay Commission.

x.            The Learned CAT was also wrong in assuming that there was a small concession was recommended for those government who retired between the period 01/01/2006 to 31/08/2008 on the consideration their number would be small and not everyone retiring during the interregnum would be a case of stagnated promotions and hence eligible for 3rd  promotion. This is purely a fictional story made by the Officers of the 1st Respondent, DOPT copied and pasted by the Learned CAT without applying its mind and neither substantiated by any facts nor  covered anywhere in the decision of the Government conveyed through the Government Resolution gazette notified by the Finance Ministry, the 2nd Respondent. The Government Decision is absolute and applicable to all employees in service as on 01/01/2006 as already explained in para 2 above.

xi.           ..the Learned CAT in para 6 of its judgment wrongly and with mala-fide intension stated that the ACP Scheme figures as Paragraph 4 of Column 3 of the Government Resolution. In reality, it is not a Pragraph but item no.4 of part- A of Annexure-I which is accepted by the Government with effect from 01/01/2006 in clear terms vide para 2 of the Government Resolution quoted by the Learned CAT in para 4 of its judgment itself. But in 6 it was misquoted with the sole intention of bailing out the Officers of the 1st Respondent from such a grave mistake committed by going against the decision of the principal employer i.e., the Government of India, for which they should be charge sheeted and thrown out of service.

xii.          ..the Learned CAT again went wrong deliberately and with malafide and malicious intentions in stating in para 7 of its judgement, “In our view, the MACP is not part of either pay or Dearness Allowance. Paragraph 3 set out herein above says that the revised allowance other than
Dearness Allowance will be effective from 01/09/2008. Obviously, the same is included in Part-A of Annexure – I”. Actually, other allowances whose effective date is fixed by the Government w.e.f. 01/09/2008 is covered by para 3 of the Resolution and Part B of Annexure-I and not Part A as observed by the Learned CAT, though it is patently clear on the face of the record. On the other hand, MACP is very clearly and beyond any doubt appearing in Para 2, Part A of Annexure – I for which effective date is already fixed by the Government w.e.f.01/01/2006. Therefore, it is very much clear that, this wrong observation is made by the Learned CAT due to an over enthusiasm to bail out the DOPT Officers from the responsibility for taking action against the decision of the Government with the full knowledge that it is wrong rather than upholding the law and truth. This is never expected from a judicial authority.

 xiii.       …the Learned CAT, in para 8 of its judgment is making a bundle of lies without any basis. Firstly, it stated that the guidelines are flowing from the fountain-head of DOPT. It is totally untrue. There is no authority pointed out by the Learned CAT. It is based on presumptions and assumptions. In fact, even the Government Resolution, which is the source of financial effect was issued through the Finance Ministry and not through the said DOPT. Second untruth is that, all the Government employees including the applicant received the financial benefit under MACP Scheme in pursuance of the said OM dated 19.05.2009, whereby the Scheme of MACP was made effective from 01.09.2008. Third untruth is that, financial up gradation as per the provisions of earlier ACP Scheme was granted till 31.08.2008. The so called Scheme itself is a fraudulent/fictional story created by the said DOPT with ulterior motives, and copied and pasted by the Learned CAT in its judgment. The truth is already stated in para 2 herein above and no need to repeat it. In accordance with item 4 of part A of Annexure-I, read with para 2 of the Government Resolution issued through the 2nd Respondent, Government of India in its Constitutional  power under Article 309, decided the Scheme modifying the Recommendation of the 6th CPC  and fixing the effective date as 01.01.2006. The said DOPT,1st Respondent, without any authority or delegation of power changed this decision of the Government of India to 01/09/2008 in the disguise of the said Scheme probably to benefit some powerful Officers of the DOPT who may not be eligible if the MACP was implement as decided by the Government from 01/01/2006. Otherwise, there is no visible reason behind this amendment of the Government decision by some Officers in the DOPT and the Learned CAT going after this fiction created by the DOPT rather than the facts and law supported by records annexed with the Application by the Petitioner.

xiv.         …what Is stated by the Learned CAT in para 9 is out of context since the issue is the competence of the DOPT Officers to change the Government Decision taken under Art.309 of the Constitution of India without any delegation of power from a competent authority. The entire theory of benefit to certain employees due to the illegal amendment of the effective date from 01/01/2006 as fixed by the Government to 01/09/2008 by the said O.M. issued by the DOPT, is a fiction not supported by any facts or law. Probably some powerful Officers may be the beneficiaries for whom the entire system was misused and forced the staff side to agree with them, though it is altogether illegal and unconstitutional. That may be the reason why the Learned CAT also reached a wrong conclusion that the Government Resolution made under the Constitutional Powers and Gazette notified by the Finance Ministry can be amended to a different date by the Officers of DOPT which is in another Ministry, that too without any delegation of power to change the effective date of MACPS. It is also a perverted and wrong decision and says that an unconstitutional action can be made constitutional and legal by mere consent of parties who have no power to do so. If this perverted view of the Learned CAT is accepted, it would make a catastrophic effect in the legal system that by consent of two parties, the Indian Constitution could also be amended by these Officers for their personal benefit citing this Judgment of the Learned CAT as precedent. Therefore, this illegal amendment is made by the DOPT, i.e., the 1st Respondent, without any authority of law, and support of facts. It is merely a fictional statement that some otherwise ineligible employees may be adversely affected by the reversal against the loss of many eligible employees, had the Government decision is implemented. Therefore, acceptance of the said invalid and unreasonable argument by the Learned CAT is perverted, discriminatory, with ulterior motives, unreasonable, beyond commonsense and thus violative of Art. 14 and 16 of the Constitution of India. It is also against the basic principles of Administrative Law.

xv.          …in para 11 of the judgement, the Learned CAT, again with malicious, and mala-fide intentions, suo motto, argue for the 1st Respondent as if their advocates, that though the Petitioner had challenged the competence of DOPT to issue the OM declaring date of effect of M.A.C.P benefit, neither the staff side nor the Union ever raised this question before subjecting themselves to the Joint Meeting that DOPT did not have any authority to declare the date of effect of MACP Scheme. This has no relation with the case before the Learned CAT filed by the Petitioner who had challenged the competence of DOPT as admitted by the Learned CAT. It is also a fact that the Staff side/Union had demanded the effective date from 01/01/2006. After all, they were attending a joint meeting of officials and not arguing before the High Court or Supreme Court engaging constitutional experts.  Therefore, it was not a material connected with the Petitioner’s personal Application before the Learned CAT. It cannot be worth enough to be considered as a childish argument, but a totally perverted, unrelated and unreasonable argument with ulterior motives similar to saying, before Newton’s Theory of Gravity, not only apple, but other fruits and even coconuts were falling down, but nobody had ever raised this point and hence cannot be accepted.

xvi.         ….in 12th Para of the judgment, whatever stated by the Learned CAT is totally untrue. First of all there is no complexity in the Government decision. It is very clear and unambiguous to read para 2 of the Government resolution as stated herein above. All the mess was artificially created by the DOPT Officers with ulterior motives to change the effective date from 01/01/2006 as decided by the Government in its Resolution to 01/09/2008. Otherwise, there was no need for any meeting or any agenda or anything. This is also irrelevant to the issue, since the very validity of the said O.M. and the competence of the DOPT Officers to change the effective date without any authority of law, is under challenge. All these unrelated things are stated herein the judgment is also with an intention to fish in the troubled water i.e., to bail out the DOPT Officers, by hook or by crook, from their penal responsibility for going against their employer’s decision of fixing the effective date on 01/01/2006 by changing it to 01/09/2008 without any authority, whatsoever nature.

xvii.       That, the statement of the Learned CAT in para 13 of the Judgment that, the MACP benefits have already been implemented – with effect from 01/09/2008 vide O. M. of DOPT dated 19/05/2009 is totally false and untruth. In reality it was implemented by the Government Resolution, GOI., MIN. OF FIN. NO. 1/1/2008-1 C dated the 29th August, 2008 annexed as Ex.C. It is also untrue and false that MACP is coming under any other allowances. MACP is coming specifically under item no. 4 of part A of annexure I read with para 2 of the Government Resolution which were made effective from 01/01/2006. Whereas allowances other than dearness allowance, would be effective from 01/09/2008 in accordance with para 3 of the Government Resolution and covered under Part B of Annexure – I.  The role of DOPT is only a consultancy for those items not covered in the Resolution, vide para 7 of the Government Resolution. Since the MACP is specifically mentioned in item no.4 of part A of Annexure – I, of the Government Resolution, DOPT do not have even the consultancy power. Then there is no question of power for changing the date already fixed by the Government in the Resolution. However, the Learned CAT is mixing part A of Annexure – I mentioned in Para 2 and Part B of Annexure – I of para 3 of the Government Resolution with a view to make a room for interpretation and thus to bail out the DOPT Officers from their culpable responsibility of changing the effective date fixed by the Government to suit their interests. Therefore, this is a cold blooded MURDER OF JUSTICE by the GUARDIAN OF JUSTICE i.e., the Learned CAT which should be treated as misuse of judicial process and to be treated as Contempt of Court and action should be initiated to stop such malpractices.

xviii.      That, by going out of the way in manipulating the facts as stated above, the Learned CAT is now trying to fit in para 14 of the judgment a Supreme Court judgment in the following words, “It has further been held in the case of Chandrashekar A.K. Vs. State of Kerala ( AIR 2009 SC 643 ) that revision of pay scale is essentially a policy decision, Recommendations relating to revision of pay scale requires its acceptance by the employer or the State which has ultimately to bear the financial burden.” This case is totally fitting to the Petitioner’s case in favour and not against. The recommendations relating to the MACP was already accepted by the Government of India i.e., the Employer, with certain modifications with effect from 01/01/2006 vide para 2 of the Government Resolution dated 29/08/2008. The Petitioner is not at all objecting to the Government resolution, but to the O.M. DATED 19/05/2009 issued by one of the many departments i.e., DOPT of the employer and going against the decision of the employer. Therefore, the above case is very well supporting the case of the Petitioner and not against it. However, importing an alien and unknown reason, and contradictory to the Prayers of the Petitioner quoted in para 1 of its own judgment annexed as Ex.A, the Learned CAT wrongly held that it is not the case of the Petitioner.

……Petitioner prays before this Hon’ble Court for the following:

i.             Set aside the Judgment and Order dated 16/04/2013 on ORIGINAL APPLICATION NO.145 of 2013 by the Learned Central Administrative Tribunal, Bombay Bench at Mumbai, annexed as Ex.A, as it is not based on facts and law.

ii.            Declare partially Para 9  or entire Office Memorandum No. 35034/3/2008 – Estt.(D)  dated 19.05.2009 issued by DOPT annexed as Ex.B1, changing the effective date from 01/01/2006 to 01/09/2008 as null and void since it is issued without any authority of law.

iii.           Declare the effective date of MACPs as 01/01/2006 as already fixed by the Government of India i.e., the Employer, in its Government Resolution dated 29/08/2008 annexed as Ex.C and referred herein above.

iv.           Issue a Writ of Mandamus or any other order to the Respondents  to give effect to the above directions within 1 month of the date of decision.

v.            Cost of this Petition with a direction to debit it from the 3rd Respondent’s Budget, since this petition is thrust upon the Petitioner unnecessarily on reasons mentioned above.

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