IN THE CENTRAL ADMINISTRATIVE TRIBUNALHYDERABAD BENCH

HYDERABAD

0.A.No.1051 of 2010

Date of order : 3C -03-2012Between:

P.Vigneshwar Raju. sib P.V.R.N.Rajuocc:Inspector, r/o H.No.2-3-919, PiotNo.8, Road No.1, Arunodayanagar,Nagole, Hyderabad.

G VIjay Raghavan, sio G.Namdev Goud:occ:Inspector, rio 403, Raghavadendra RoyalFort Apts., Street No.II, Himayatnagar,Hyderabad.

G.Venkat Raghavan, sjo G.Namdev Goud,occ:inspector, r/o H.No.5-6-500. Pragathinagar,behind ;dotal Kapila, Nizamabad-503 003.

B.R.amakrisnna, slo Subba Rao,°co:Inspector, rio H.No.4-6-361,' Plot No.71,MIG Phase IV, Vanasthali Purarn,H yderabad-500 070.

M.Narayana Chary, sio MVN.Chary,occ:Supdt., r/o H.No.19-168/23. Road No.15,Dinakar Nagar, West Venkatapuram,Secunderabad.

V.Bhaskara Chary ; s/c Laxmikantha Rao,occ:Inspector, r/o H.No.1-1-362, RBI Colony,Mohan Nagar, Kothapet, Hyderabad

7 Chitta Sridev Kumar. sic C.Gokhale,occ:Inspector. rlo 201, Srinivasa Apts.Humayunnagar, Hyderabad-28.

3 C.Sridhara Murthy, s/c Bhanu Murthy,occ:inspector, r/o 104. Keerthi Apts.,Vinay Nagar Colony, Saidabad,Hyderabad-39.

9. Donthi Reddy Chenna Reddy, si`o Masthan Reddy,coo:inspector, r/o Plot No.605. Bhagat Singh Nagar,beside Vasanthnagar Colony, Kukatpally,Hyderabad-85.

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10.Rayudu Rama Mohana Rao, s/o Manikyam,occ:Supdt. Rio Plot No.71, Anand Nagar Colony,New Bovvenpally , Secunderabad.

11.C.S.Srinivas, sio C.Seetharamaiah,occ:Inspector, rib Flat No.307, L.V.Towers,Maruthinaaar, Dilsukhnagar, Hyderabad.

12.V.Vidya Sagar, sio V.R.S.Raju, occ:lnspector,r/o H.No.1-4-476, Old Aiwa!, Secunderabad-10.

13.S.Satyanarayana Sastry, s/o S. Rama Rao,occ:lnspector, r/o D.No.8-12-44/21, Nehru Nagar,8' Lane. Guntur.

14.Nookala Ramakrishna, s/o Venkata Ramana-Sastry, occ:Inspector, rio Flat No.203, C.R.Towers,Gandhi Puram-1, near 'Y' Junction, Rajahmundry-533 103.

AND

The Government of India, Mb° Finance,Dept. of Expenditure, North Block, New Delhi,rep., by its Secretary, Expenditure.

The Government of India, Mk) Finance;Dept. of Revenue, Central Board of Customs andCentral Excise, North Block, New Delhi, rep., byits Deputy Secretary/Under Secretary.

Central Board of Customs and Central Excise,North Block, New Delhi, rep., by its Chairman andSpl. Secretary.

Chief Commissioner of Customs, Central Excise &Service Tax, Hyderabad Zone, Kendriya ShulkBhavan, Basheerbagh, Hyderabad.

5. Chief Commissioner of Customs, Central Excise &Service Tax, Visakhapatnam Zone, Port Area,Visakhapatnam.

Applicants

Respondents

Counsel for the applicantsCounsel for the respondents

Mr. N.VijayMr. G.Jayaprakash Babu, r.CGSC

CORAM:THE HON'BLE MR. JUSTICE P. SWAROOP REDDY, MEMBER (JUDL)THE HON'BLE MR. R. SANTHANAM. MEMBER (ADMN)

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0 .3'17 D E :Hor, t)ie. Mr.Justice S\A'arcob Ready. Member

Tills OA is fed by the applicia-nts ouestioning the proceedings dated

der: by the res-,nnii.11- with the ar,provl of the first

:esonnaent nonci that non-functio,nal grade pav will not be granted_

ouP-2; Officers. Who have dot grade DaV Of R.s.4,800/- on upgradation

under The ACP Scheme, and to set aside the same, and to direct the

i'eSpOrldiltS to grant higher grade pay of .s.5.4001- with effect, from the

of corrioletion of regular service of four yea rs in the grade pay of

Re.7500-12000",

.4. The facts of the case are as follows.

Th -1- 1 4 4., 4 A as inspectors:1/4": 0 :.t.; C and 1.k.; C• working

n the Custc,%rns and Central Excise Department. A pOicants 5 and 10 Are

;womna Superintendents .tuvith effect, from 21.6.2007 and 28.12.2007

fesnectivelv. The Sixth Central Pa y Commission submitted its report on

24.3.2008 r6.-dating to the structure of emoluments allowances, etn of the

Centra; Governme-nt employees. As per Clause (1) of the Resolution of

c.,vernrrient cf india. the Pay Band-2 is Rs.9300-34800i-. Th e concept of

4grade through- ••••••. • ...rt.- .;

Sixth Central Pay Commission and

-;ne 1...,0• 1-0 dependent on :)' 2A1 band n Cause (l y) 'I

esolution, The calculation for fixatin..n of revised basic pay is provided. ,As

•2r1,--\ 57.1 •-on . etk-•,' 4.,,t7f!

t•A'i that /)=,' drawn{".

ay Commsson SCaeS snail be mp.ed by a factor of 1 .86 and then

eo Cr»

O1-=-••-•k,., ! C! ne wt 1UPAS.M,-" 1.) • and be1.0C On the revised

•

band The grade pay. as approved b y the Government in the

pre-revised pay scale, will be

3

;-pay day bandadded to fir,

U. 1-2

The total of pay in the pay band and grade pay will be the revised basic

pay as on 1.1.2006. Clause (x) of the Resolution deals with Group-B

cadres. The relevant Clause (x) (e) reads as follows:

"Group-B officers of DePartment of Posts, Revenue etc.

will be granted grade pay of Rs.5 : 400/- in PB-2 on non-

functional basis after 4 years of regular service in the

grade pay of Rs.4,8001- in PB-2."

As per the above clause, Group-B officers of Department of Posts,

Revenue etc., will be granted grade pay of Rs.5,400/- in PB-2 on non-

functional basis after 4 years of regular service in the grade pay of

Rs.4.800i- in PB-2. The revised scales of pay, as per the

recommendations of Sixth Central Pay Commission with the corresponding

grade pay, was specified in Annexure-I Part-A of the Resolution. At Serial

No.15, the grade pay of PB-2 pay band of Rs.9300-34800 is Rs.4800/-.

After acceptance of the Sixth Pay Commission report, vide Resolution

dated 29.8.2008, the Union of India ; in exercise of powers conferred by the

proviso to Article 309 and Clause (5) of Articles 148 of Constitution of

India. issued Central Civil Services (Revised Pay) Rules, 2008, which

were published as GSR 622 (E) in the Gazette dated 29.8.2008 and the

Rules were given retrospective effect from 1.1.2006. On account of the

above report of the Sixth Central Pay Commission and subsequent

instructions ; a Group-B officer in PB-2 with a grade pay of Rs.4,800/- is

entitled for grade pay of Rs.5,400/- on non-functional basis after 4 years of

regular service. The enhancement of grade pay is not dependent on the

post, but on regular service of 4 years in grade pay of Rs.4,800/- in PB-2.

A clarification was issued by the concerned stating that "the Department of

Expenditure have now clarified that the 4 years period is to be counted with

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•V ti z _ CV •-•1,-,

.-nr• .1-.e.

: •:;%. • 4 e)roTh:',, pre-revised

if an officer has completed 4 years on

31._:.006 or earlier. he wi be

ive • the non-functional upgradatior with

effec i• from CY .C1.2006. if the officer COrnnIPtes 4 years on the date after

-; frr'M such date

e completes 4 years .17

o 1.1! st,k., 0; r(S. t);.../U-12.00u lore-:

The post of inspector in the Central Excise & Customs,

;. ,• .4 Vinr-nry

pay scale of is Group-B rTh1 J

1. 4 4-: t . e•:', • order dated 11.5.9004, the

9;:z.,••••• •-• :•••4•. •i.••40of ndi unifoml- the pay scale of inpeotor of

;rnr- 5-f";../r)-COn.rV- "P' F5Cr-105n0i-, r' - ea:_ient••-•

, .the ! 1/!;;!•!,...7H in the Central Exc ise and

rr••••n •:•:•••••,: .c..3 to •uncle , V;r4c. S rs' 94g dated•1

5.4.2009 rsrst:

have been re-n lass i fietiAs

14 Vi posts car,...ying crade Pas!-•C

,.., Atv"1,,c ,

,z 9.01 i r °B; 44-. it ,c scale C; 1...)1 4

come under C3rouP-E. The post. of inspector even under the latest

::lassific;ation of posts comes and Group-B. applicants were

As inspectors a.nd in the scale of Rs.7500-•

I. <„:!!it=vct i( cidtec" ciiven in tne OA_ The date,s on 'which the.,

oplicants were placed in grade pay of Rs.4,K0/- as well as completion of

4 y€,,ars, as pre-scribed, is aiso furnished by the applicants. According to the

aopile.;ants, as per the Governm ent cf India Resolution and COS r. R fps

200a the applicants are entitled to non-f;nc„tional Grade pay of

Ps 5 : 00 upon completion of 4 years regular service in the grade pay of

Q.r.pf A have r. gownf "i of.

as DCr the Resolution Clause tiv) with effect from the dates mentioned in

the OA. The a pplicants have completed 4 years of regular service in the

grade pay of Rs.4 800/- and are due for non-functional grade pay of

Rs.5,400/- with effect from the dates shown in the OA. But, the 2nd

respondent issued the impugned proceedings dated 16.9.2009 with the

approval of the Department of Expenditure. As per Clause (iv), it is

observed that non-functional grade pay will not be aranted to such of those

Group-B Officers, who have dot grade pay of Rs.4,8001- on upgradation

under the ACP Scheme, as the same is contrary to the Government

Resolution and CCS (Revised Pay) Rules, 2008 and on account of that, the

app:icants are denied the enhanced grade pay of Rs.5 4001- with effect

from the dates shown in the OA. The applicants are claiming the same.

0. The respondents have filed a reply statement inter -alia contending

that the Department of Revenue in consultation with the Department of

Expenditure clarified vide Circular dated 16.09.2009, that the grant of

higher Grade pay of Rs.5400/- in PB-2 on non-functional basis is not linked

to vacancy and may be given retrospectively with effect from 1.1.2006

provided the officers concerned have completed four years of regular

service as on 1.1.2006 as Customs Appraiser; Superintendent of Central

Excise/Superintend ent of Customs (P) irrespective of the pay scale and in

case there is no vioilance proolem. That, it was also clarified that the non-

functiona l grade pay of Rs 5400/- in PB-2 will not be granted to such of

those Group-B officers, who have got the grade pay of Rs.4800/- on

upgradat:on under ACP Scheme That, the whole consultation with the

competent authority was for deciding the date of grant of non-functional

grade pay of Rs.5400/- to the posts of Customs Appraisers/Superintendent

of Central Excise/ Superintendent of Customs (P) in pursuance of CCS

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RuIes, 2008. That, with regard to The post of Inspector of Central

Excise, the Department of Pxpenditure a s Resolution dated 29.8.2008

st!oulates that ",,louo-B Officers of the Department of Posts.

Revenue etc.. be granted grade pay of Rs 5400/- FB-2 on functional

basis after four years of reader service in the grade pay of Rs.48001- in

and as such, the following provisions were notified under Part 'C' of

; N LIM . •.„ • ,

.„partrnent of Revenue:

Income Tax Officers 7500- 7500-12000 !PB-2 ;4800

Superintendent. 1loop. • S'000-13500 • PB--: )31,0

7.15.17

.‘ppraisers etc- (after 4 years

(Customs & Central

••

excise,

That the pre-revised pay scale of the post of Inspectors of Central Excise

as on .2006 was Rs.6500-200-10500/- corresponding to the grade pay

oe

They were granted the pay scale of Rs.7500-12000

corresponding to Rs.48001- under AOP Scheme. As they have not been

promoted to the posts of Customs Appra i ser/Superintendent of Central

xcse/Superintendent of Customs (P), they have not rendered any regular

service in the pay scale of Rs.7500-12300/- corresponding to grade pay of

Tnerefore. the provisions contained in Department

Expenditure's Resolution and COS (RP) Rules are not applicable to the

post of Inspector of Central Excise and the benefit of non-functional grade

pay of Rs.5400/- after four years of regular service in the grade pay of

Rs. 4800/'- cannot be extended to them. As the grade pay of Rs.48001-

under ACP Scheme is granted to the posts of Inspectors on non-functional

basis, there is no scope for granting another non-functional grade pay of

Rs.5400/- to the Inspectors of Central Excise.

4. Now, the contention of the applicants is that they are entitled for the

relief claimed, particularly, in view of the decision of the Division Bench of

the Hon'ble Madras High Court in W.P .No.13225/2010, which has become

final and is in force as the Hon'ble Supreme Court in SLP t C ) appealNo.15627/2011, did not grant stay of the judgment of Madras High Court in

W. P. No.13225/2010.

Thus, there is no dispute that the judgment of the Hon'ble Madras

High Court in W.P. No.13225/2010, dated 6.9.2010, is in force, though a

Civil Appeal is pending against the same before Hon'ble Supreme Court.

The case of the petitioner in W.P.No.13225/2010 of Madras High

Court was that he joined service as Inspector of Central Excise in 1992 and

he was in the pre-revised pay scale of Rs. 6500-10500/-, whereas the

Superintendent of Central Excise scale of pay was Rs.7500-12000/-. That,

on implementation of the Sixth Central Pay Commission report, the

Inspectors of Central Excise have been placed in the Pay Band-2 with a

grade pay of Rs.4200/- and the Superintendents of Central Excise have

been placed in Pay Band-2 with a grade pay of Rs.4800/- and a grade

pay of Rs.5400/- after a period of four years in the grade pay of Rs.4800/-.

That. though the posts of Inspectors of Central Excise, Preventive Officers

and Examiners under the Customs carry the same scale and more or less

the same level of responsibilities, the person in the post of Inspector of

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Cents a' Excise. who is a direct recruit, gets his first promotion after long

period of 16 to 20 years of service, whereas the persons in the cadre

of Preventive Officers and Examiners under the Customs Department, get

promotion within six to ten years of service in their respective cadres. That,

as per the ACP Scheme introduced through Fifth Central Pay Commission,

financial upgradation have to be gr6nted after 12 and 24 years of service.

On the basis of the above Scheme, the 23d respondent, in the above Writ

Petition before the Honble Hiah Court of Madras, issued instructions dated

9.9.2003 and issued an order No.116/2003 granting first financial

upgradation to the petitioner, who was granted pay scale of the

Superintendent of Central Excise with effect from 1.1.2004 in the pay scale

of Rs.7500-250-12000, vide order dated 11.8.2004 of the Assistant

Commissioner of Central Excise, Salem.

in the above Writ Petition, the case of the petitioner was further that

he \-!,,te drawina the pay scale of Rs.7500-250-12000/-, which is the scale

of pay of Superintendent of Central Excise, a Group-B post under the

Department of Revenue with effect from 1.1.2004. As such, he is entitled to

the benefit of upgradation of grade pay of Rs.5400/- with effect from

1.1.2008 as per the Resolution of the Ministry of Finance dated 29.8.2008.

It was contended by the learned learned counsel for the petitioner

before the Hon'ble Madras High Court that in the resolution of Ministry of

Finance, Department of Expenditure, dated 29.8.2008, the Government

agreed to grant pay of Rs.5400/- in Pay Band-2 to Group-B Officers of the

Department of Posts, Revenue, after four years of regular service in grade

pay of Rs.4800/- and clarification was issued by the Central Board of

Excise and Customs dated 21.11.2008 that the four years period is to be

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counted with effect from the date on which an officer is placed in the pay

scale of Rs.7500-12000,'-. That, the Madras High Court held that the

clarification dated 29.8.2008 of the Government of India, would not equate

the petitioner therein to the posts viz., Income Tax Officer/Superintendents,

Appraisers, etc. though he may be drawing the pay scale attached to the

said posts by virtue of grant of ACP and that he would not be entitled for

grade pay of Rs.5400/- on the basis that he had completed four years of

regular service in the pay scale of Rs.7500-12000/-, and that the same

cannot be granted unless the petitioner is promoted and not merely on

account of his getting ACP Scheme. In paragraphs 7 and 8 of the order,

the Madras High Court observed as follows:

"7. We are unable to agree with this clarification

given by the Under Secretary to Government of India,

since in an earlier clarification, dated 21.11.2004 of the

Deputy Secretary to Government of India, it was clarified

as to how the 4 year period is to be counted for the

purpose of granting non-functional upgradation to Group-B

Officer, i.e. whether the 4 year period is to be counted with

effect from the date on which an officer is placed in the pay

scale of Rs.7500-12000 (pre-revised) or with effect from

1.1.2006, i.e. the date on which the recommendation of the

6th CPC came into force. It was clarified that the 4 year

period is to be counted with effect from the date on which

an officer is placed in the pay scale of Rs.7500-12000

(pre-revised).

8. Thus, if an officer has completed 4 years on

1.1.2006 or earlier, he will be given the non-functional

upg radation 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 upgradation from such date on which he

completes 4 year in the pay scale of Rs.7,500-12,000 (pre-

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revised), since the petitioner admittedly completed 4 year

period in the pay scale of Rs.7500-12000 as on 1.1 2008,

he is entitled to grade pay of Rs.54001-. In fact ;theGovernment of India ;having accepted therecommendations of the 6th Pay Commission, issued a

resolution dated 29.8.2008 granting grade pay of

Rs.54001- to the Group-B Officers in Pay Band-2 on non-

functional basis after four years of regular service in the

grade pay of Rs. 78001- 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."

Ultimately, the Madras High Court held that the petitioner therein is entitled

for grade pay of Rs.54100/- with effect from 1.1.2008 i.e., as per the

resolution dated 29.8.2010.

a. The above decision of the Madras High Court is applicable to the

facts of the present case with all force, as here also, the applicants herein

have been placed in grade pay of Rs.4300/- and have completed four

years in that scale, may be, on account of granting only ACP and not on

account of promotion. As such, the OA is liable to he allowed and the

applicants shall be granted higher pay scale of Rs.5400/- with effect from

their respective dates of completion of regular service of four years in the

grade pay of Rs.4800 • - (pre-revised scale of Rs.7500-12000/-). As the

matter is pending before the Hon'bie Supreme Court, we make it clear that

the relief the applicants are getting in this CA shall be automatically subject

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to the decision of the Hon'ble Supreme Court in SLP ( C ) No.15627/2011,

even without the present respondent-department not filing any proceedings

in the Hon'ble High Court or Supreme Court.

10. The OA is accordingly allowed. No costs.

.",

01( (ILL.-

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