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
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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.
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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