Dear
readers, as you are already aware from my earlier blog on the subject, while in
service, I had instituted a Writ Petition before the Hon’ble Bombay High Court
challenging the decision of Central Administrative Tribunal in respect of the
effective date of the MACP Scheme of 6th Pay Commission. Several similar appeal
cases against the Armed Forces Tribunal decision were also pending before the
Hon’ble Supreme Court in respect of 6th Pay Commission. The issues
were the same in both the cases. Now the SC decided the 6th CPC case
rejecting the Government Appeal and in favour of the Employees. So the same
decision is equally applicable for my case. So I am going to move the Hon’ble
Bombay High Court for an expedite hearing of my case after the May vacation. I
think even otherwise, Government has to act upon the Supreme Court decision
though it was related to the Armed Forces Case. For your information, I am
giving below the main points of the Writ Petition filed by me before the
Hon'ble Bombay High Court at Mumbai regarding MACP Scheme EFFECTIVE DATE. Below
that, I am also giving the decision of the Supreme Court in this regard.
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{Also
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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.
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.
(Note:
the Petition was admitted Bombay High Court on 09/07/2014 by issue of Rule.
Reply was filed by the Respondents thereafter. Now the writ petition is pending
for final hearing)
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Now
read what the Supreme Court decided on the issue in civil appeal DIARY NO. 3744 OF 2016:-
“11.
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.
12.
Col. R. Balasubramanian, learned counsel for the UOI relied upon the following
three judgments viz. P.K. Gopinathan Nair & Ors. v. Union of India and
Ors.1, passed by the High Court of Kerala on 22.03.2017, Delhi Urban Shelter
Improvement Board v. Shashi Malik & Ors.2, passed by the High Court of
Delhi on 01.09.2016, K.K. Anandan & Ors. v. The Principal Accountant
General Kerala (Audit) & Ors3 passed by the Central Administrative Tribunal,
Ernakulam Bench, Kerala on 08.02.2013.
In our view, none of these judgments is applicable because the issue whether
the MACP is part of the pay structure or allowances were not considered in any
of these cases.
13.
In this view of the matter we find no merit in the appeals, which are
accordingly disposed of. All pending
applications are also disposed of.
J.
(Madan B. Lokur) J. (Deepak
Gupta)
New
Delhi December 08, 2017
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