FROM MY AFFIDAVIT FILED IN BOMBAY HIGH COURT ON 23-8-2018 IN SUPPORT OF NOTICE OF MOTION FOR EARLY HEARING OF THE PENDING WRIT PETITION:
- I have filed the present Writ Petition on 05/07/2013 with the main relief of setting aside of the Judgement and Order NO. O.A.145 of 2013 dated 16/04/2013 of the Learned Central Administrative Tribunal, (CAT) Mumbai Bench at Mumbai, as it is not based on facts and law. It was admitted on 09-07-2014, and since then it is kept under ‘Unready” without any further date.
- Though the relief is sought by me as an individual, as a common issue, it is concerned with all Central and State Government employees who are covered by the Central Pay Commission Report as stated below:-
i. The reliefs sought from the CAT are as follows:
“In view of the facts mentioned in para 6 above the Applicant prays for the following reliefs:-
a). Expunge and or nullify Para 9 of the Office Memorandum no.35034/3/2008- Estt.(D) dated 19/05/2009 issued by DOPT and declare the effective date of MACPS as 01/01/2006 as fixed by the Government Resolution mentioned herein above and various other legal provisions mentioned in para 6 (i) to (vii).
b). Direct Respondent no. 2 to act upon the demand of the Applicant to grant him MACP w.e.f. 01/01/2006 within 1 month from the date of the final order
c). Being a common issue, direct the 1st Respondent to issue necessary order intimating the order to various Ministries and to act upon it.
d). Cost of this Application.”
3. The CAT dismissed the Application with the following words:-
“16. We have already said that the MACP Scheme is not a part of pay but the same is definitely a financial benefit extended to the civilian employees of the Government of India.
17. Having regard to the discussions made above, the OA is dismissed. No costs.”
4. I further state that, the Supreme Court took an opposite view that the MACP Scheme is a part and parcel of the Pay in a recent appeal case filed by the Union of India against the decision of the Armed Forces Tribunal (AFT), [(2018) 11 SCC 99 Union Of India vs Balbir Singh Turn & Another], where also similar MACP Scheme is prevailing. The Court said (para 10), “We are only concerned with the interpretation of the Resolution of the Government which clearly states that the recommendations of 6th CPC as modified and accepted by the Central Government in so far as they relate to pay structure, pay scales, grade pay etc. will apply from 01.01.2006. There may be some gainers and some losers but the intention of the Government was clear that this Scheme which is part of the pay structure would apply from 01.01.2006. We may also point out that the Resolution dated 30.08.2008 whereby the recommendation of the Pay Commission has been accepted with modifications and recommendations with regard to pay structure, pay scales, grade pay etc. have been made applicable from 01.01.2006. This is a decision of the Cabinet. This decision could not have been modified by issuing executive instruction. The letter dated 30.05.2011 flies in the face of the Cabinet decision reflected in the Resolution dated 30.08.2008. Thus, administrative instruction dated 30.05.2011 is totally ultra vires the Resolution of the Government”. The only difference in this Supreme Court case and that of the Petitioner’s case is that of the date by which the Office Memorandum / Letter issued by D.O.P.T. for civil side and by Defence Ministry for Armed Forces i.e., 19-05-2009 & 30-05-2011 respectively. But in both these cases, modified implementation date of MACPS was the same 01/09/202008. This date was the subject matter under challenge before the CAT and now before this Hon’ble Court in the Writ Petition under consideration.
5. I also state that when the Union of India subsequently filed 2 more appeals on the same issue, the Supreme Court termed those cases as frivolous or infructuous cases and dismissed both of them by imposing heavy cost of Rs.1,00,000/-on the Appellants [Union of India & Ors. V. Pirthwi Singh & Ors. JT 2018 (4) SC 404], thereby fortifying its stand on the issue as decided in the first case that the MACP Scheme is a part and parcel of pay.
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