Wednesday, October 17, 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:- 
 
                               D.O.P.T. Min. Fin., Dep. of Expt.   

  1. Cent.Adm.Tribunal, Mumbai Bench.             

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 andorder 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 paymen.

(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. )




Shri Pradipta Kumar Bisoi (IPoS-1985) is posted as Member (Personnel), Postal Services Board, Postal Directorate, New Delhi on promotion.

To view please Click Here

Transfer/postings in the Senior Administrative Grade (SAG) of Indian Postal Service, Group 'A'

To view please Click Here

Productivity Linked Bonus for the Accounting year 2017-18

To view please Click Here

Monday, October 8, 2018

Important Bonus Clarifications – 2018


1. Whether the employees in the following categories are eligible for the benefit of ad-hoc bonus for an accounting year

Subject to completion of minimum six months continuous service and being in service as on 31st March, 2018.

(a) Employees appointed on purely temporary ad-hoc basis.
Yes, if there is no break in service.

(b)Employees who resigned, retired from service or expired before 31st March, 2018.
As a special case only those persons who superannuated or retired on invalidation on medical grounds or died before 31st′ March, 2018 but after completing at least six months regular service during the year will be eligible for the ad-hoc bonus on pro rata basis in terms of nearest number of months of service.

(c)Employees on deputation/foreign service terms to state governments, U.T.Governments, Public Sector Undertakings, etc., on 31st March, 2018.
Such employees are not eligible for the ad-hoc bonus to be paid by the lending departments. In such cases the liability to pay ad-hoc bonus lies with the borrowing organization depending upon the ad-hoc bonus/PLB/ex-gratiafincentive payment scheme, if any, in force in the borrowing organization.

(d) Employees who reverted during accounting year from deputation on foreign service with the organizations indicated in ‘C’ above.
The total amount of bonusiex-gratia received for the accounting year from foreign employer and the ad-hoc bonus, if any, due from a central government office for the period after reversion will be restricted to the amount due under ad-hoc bonus as per these orders.

(e)Employees from state Government/U.T. Admn./Public Sector Undertakings on reverse deputation with the Central Government.
Yes, they are eligible for ad-hoc bonus to be paid by the borrowing departments in terms of these orders provided no additional incentive as part of terms of deputation, other than Deputation Allowance, is paid and the lending authorities have no objection.

(f) Superannuated employees who were re-employed.
Re-employment being fresh employment eligibility period is to be worked out separately for re-employment period; the total amount admissible, if any. for prior to superannuation and that for re-employment period being restricted to the maximum admissible under ad-hoc bonus under these orders.

(g)Employees on half-Pay leave/E.O.L/Leave not due/study leave at any time during the accounting year.

Except in the case of leave without pay the period of leave of other kinds will be included for the purpose of working out eligibility period. The period of E.O.L./dies non will be excluded from eligibility period but will not count as break in service for the purpose of ad-hoc bonus.

(h) Contract employees.
Yes. if the employees are eligible for benefits like dearness allowance and interim relief. Categories not eligible for these benefits would be considered at par with casual labor in terms of ad-hoc bonus orders.

(i) Employees under suspension at any time during the accounting year.
Subsistence allowance given to an employee under suspension for a period in the accounting year cannot be treated as emoluments, Such an employee becomes eligible for the benefit of ad-hoc bonus if and when reinstated with benefit of emoluments for the period of suspension, and in other cases such period will be excluded for the purpose of eligibility as in the case of employees on leave without pay.

(j) Employees transferred from one Ministry./Department/Office covered by ad-hoc bonus orders to another within the Government of India or a Union Territory Government covered by ad-hoc bonus orders and vice versa.
Employees who are transferred from any of the Ministry/Department/Office covered by ad-hoc bonus orders to another such office without break in service will be eligible on the basis of combined period of service in the different organizations. Those who are nominated on the basis of a limited departmental or open competitive exam from one organization to a different organization will also be eligible for the ad-hoc bonus. The payment will be made only by the organization where he was employed as on 31st March,2018 and no adjustments with the previous employer will be necessary.

(k) Employees who are transferred from a Government Department/Organization covered by ad-hoc bonus orders to a Government Department/Organisation covered by productivity — Linked Bonus scheme or vice versa.
They may be paid what would have been paid on the basis of emoluments in ad-hoc bonus covered department for the entire year less the amount due as productivity-linked bonus. The amount so calculated may be paid by Department where he was working on 31s’ March, 2018 and/or at the time of payment.

(I) Part-time employees engaged on nominal fixed payment
Not eligible.

2. Whether ad-hoc bonus is payable to casual labour for an accounting year in the following cases:-

(a) Those who have put in specified number of days of work in different offices during each of the three years ending with the said accounting year.
The eligibility is to be worked out for three years from the said accounting year backwards. The period of 240 days of work in each of these years may be arrived at by combining the number of days worked in more than one offices of the government of India, for which bonus. ex-gratia or incentive payment has not been earned and received.

(b) Casual labour who were not in work on 31st March, 2018 .
The condition of being in on 31st March, 2018 employment as laid down in these orders is applicable to regular Government Employees and not to casual labour.

(c) Those who have put in at least specified number of days of work in each of two years preceding the accounting year but are short of this limit due to regularization in employment in the said accounting year.

If a casual labour, who has been regularized in the accounting year does not fulfill the minimum continuous service of six months as on 31st March, 2018 and therefore, cannot be granted benefit as a regular employee, he may be allowed the benefit as for a casual labour provided the period of regular service in the said year if added to the period of work as casual labour works out to at least specified number of days in that accounting year.

Saturday, September 29, 2018

Grant of Entry Pay On Promotion & on 01.01.2006 on 6th CPC Pay Fixation - CCS (RP) Rules, 2008





   A big relief to inspector cadre for implementation of Rs 17140/- minimum scale w.e.f 01-01-2006...Thanks to all who are supported and assisted to get this historic order...