DISCRIMINATIONS IN MACP..!!

Recent clarification on grant of NFSG of grade pay of Rs. 5400/- during 01.01.2006 to 31.08.2008. The intention and mindset of the board is discriminatory and not at all changed since the issue of MACP becomes controversy, although many heads are changed in the board. The latest one is as under;

F. No. A-26017/58/2017-Ad.II.A

Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs

 New Delhi, 23'd November, 2017

To,                                                                            

The Chief Commissioner,

CGST Chandigarh Zone,

C R Building, Plot no 19, Sector 17-C,

Chandigarh — 160017.

Subject:  Clarification on grant of NFSG of grade pay of Rs. 5400/- during 01.01.2006 to 31.08.2008 - reg.

Sir,

I am directed to refer to your office letter C.NO.II-3(l)SEC/MACPS/2017/388

 dated 09.08.201 7 on the subject mentioned above.

2.              Board has vide circulars/clarifications, time and again clarified that NFG granted will be counted as one financial upgradation for the purpose of MACP Scheme. Board has issued circulars dated 07.12.2016 and 20.06.2016 in the matter whereby it was clarified that the grant of non-functional grade pays of Rs. 5400/- in PB-2 to the Superintendents needs to be counted as one financial upgradation for the purpose of MACP Scheme. MACP Scheme is effective from 01.09.2008. 

Hence, NFSG granted to Shri S.K. Jan (w.e.f. 01.01 .2006) wit I be counted as one financial upgradation for MACP Scheme. Since he had already got 3 financial upgradations-(i) promotion from UDC to Inspector, (ii) promotion to Superintendent and (iii) grant of NFSG, he is not eligible for 3" financial upgradation under MACP Scheme.

3.              As regards counting of NFG granted during 01.01.2006 to 31.08.2008 as one financial upgradation, it is clarified that for the purpose of giving upgradation under MACP Scheme, the NFG granted will be counted as one financial upgradation 

irrespective of the date of grant of NFG. Shri S.K. Jan is misinterpreting the Board’s

letter dated 06.05.2013, where the date 01.09.2008 was implying the date of effect of MACP Scheme. Financial upgradations shall be given under MACP Scheme with 

effect from 01.09.2008, and under MACP Scheme, NFG granted from 01.01.2006 is to be counted as one financial upgradation.

4.             You are requested to take necessary action in the matter and

 ensure that the guidelines of Board/DoP&T on MACP/ACP Scheme

 are adhered to strictly.

Yours faithfully,

(M.K. Gupta) 

Under Secretary to the Government of India

Tele: 011 — 23095528

                                              

        2.               On recommendation of VIth CPC, Central Civil Service (Revised Pay ) Rules, 2008 was notified giving effect from 01.01.2006. As per the said Revised Pay Rules, the Inspector who was promoted as Superintendent was placed in the Grade pay of Rs.5400 in PB-2 w.e.f. 01.01.2006, if he has put in 4 years of regular service as Superintendent or on the date as and when he completed 4 years, thereafter. The upgradation of pay scale after 4 years has been termed as Non Functional Selection Grade (NFSG). The trouble started with the Clarification issued by DOPT vide letter ref. Dy No. 257/62460/US(D)/2010 dated 21.07.2010 contemplating  the benefit of NFSG granted to the Superintendent (Group-“B”) officers after completion of 4 years would be treated / viewed as upgradation in terms of para 8.1 of OM dated 19.05.2009 and the same would be offset against Financial Up gradation under  MACPS.It is not out of place to mention here that CBEC had issued letter F. No. A.23011/29/2010-Ad.IIA dated 20.05.11 in consultation with Deptt. of Expenditure and DOPT, clarifying that the officers who were granted pre-revised scale of pay of Rs.8000-13500 as financial upgradation in the promotional hierarchy under ACPS on or before 31.08.2008 be granted grade pay of Rs.5400 in PB-3 as per 6th CPC replacement pay, and that there would be no effect on grant of ‘Non-functional scale’ in PB-2 with GP Rs.5400 during 1.01.06 to 31.08.08, as the same is not counted under ACPS and would not be offset against financial upgradation under the Scheme. Harmonious reading of CBEC clarification dated 20.05.2011 and 29.09.2009 r/w 02.02.2010, the Inspector who completed 30 years of service was entitled to the grade pay of Rs.6600/- in PB-3. Despite this factual position, the department has not allowed the Inspector the grade pay of Rs.6600/- in PB-3. Therefore, certain officers from time to time approached various judicial forum and got favourable orders. The Hon’ble Madras High Court in WP No. 19024/2014 in case of Shri R. Chandrasekaran, passed an interim order and directed the department to consider the case. Accordingly, the CBEC vide letter F. No.A.23011/25/2015-Ad.IIA dated 26.05.15, after getting opinion of  DOPT vide Dy. No.1078183CR15 dated 5.05.15 to the effect that since Shri R. Chandrasekaran got only one promotion and 2^nd ACP in the GP of Rs.5400 PB-3 in his career prior to implementation of MACP Scheme w.e.f. 1.09.08, he is entitled to the grant of 3^rd MACP in the GP of Rs. 6600 under MACP Scheme w.e.f.4.06.2012 on completion of 30 years of service, implemented the interim order and compliance was filed with the Hon’ble High Court. However, while passing final order in the said W.P., the Hon’bleHight Court remitted matterwith a direction to DoPT to considerthe issue in extenso in the light of the provisions of MACP Scheme and the benefits given to the employees like the petitioner to count the non-functional scale for the purpose of ACPS, within three months. The DoPT took u-turn and issued clarification which was circulated under CBEC letter dated 20.06.2016.

3.               Some of the relevant judicial decisions are as under:

                The Hon’ble Madras Bench of Central Administrative Tribunal  decision in the case of S.Balkrishnan&Ors in OA No. 280/2012 The said order of Hon’ble Central Administrative Tribunal, Madras Bench was challenged by the Department before Hon’ble Madras High Court in Writ Petition no. 11535/2014 with M.P No. 1/2014 which was decided by Hon’ble Madras High Court on 16.10.2014 by  upholding the order of Hon’ble Central Administrative Tribunal and dismissed the petition filed by the Department. The said judgment of Hon’ble High Court of Madras challenged by the department before the Hon’ble Apex Court vide Special Leave to Appeal (C ) 15396 OF 2015 wherein the Hon’ble Apex Court has condoned the delay in filing of SLP by Department and dismissed the same. Thus the order of Tribunal at Madras and Judgment of Madras High Court has merged with the order of Hon’ble Apex Court and thereby the order of Hon’ble Tribunal at Madras attained finality and became a judicial precedent which is binding on all the Courts of Law  

          The Hon’ble CAT Mumbai in OA No. 633/2015 by ShriPrakashVasantRatnapati& 9 other retirees Vs. UOI/Secy (Revenue)/CBEC/Pr. CCA. The CAT Mumbai in its order dated 21.06.17 directed the respondents to grant 3^rd Financial Upgration in GP 6600 w.e.f the date of completion of 30 years of service to applicants who are similarly placed and circumstanced as Shri R. Chandrasekaran.

4.               TheCBEC letter dated 20.06.2016 based on the latest advice of DoPT refers provision contained in para 8.1 of  Annexure-I of OM dated 19^th May 2009 and FAQ No.16 which indicates that the non-functional scale in the grade pay of Rs.5400/- in PB-2 is to be treated as a financial upgradation under MACP Scheme.  Thus, the whole issue revolves around interpretation of aforesaid para 8.1 which does not specifically say to offset the grade pay of Rs.5400/- in PB-2 before grant of grade of Rs.5400/- in PB-3. The interpretation of DoPT is not founded on sound footing and legally not sustainable. The Hon’ble High Court of Madras in W.P. No.11535 of 2014 in the case of Shri S. Balakrishan has allowed GP of Rs.6600/- in PB-3 on 3rd MACPS. Para-18 of the judgment reads as under:

“18. The Central Administrative Tribunal correctly interpreted clauses 8 and 8(1) of the MACPS and quashed the impugned orders and restored the earlier orders granting benefit to respondents 1 to 3. Similar view was taken by the Central Administrative Tribunal, Chandigarh Bench in O.A.No.1038 of 2010 and it was upheld by the High Court of Punjab and Haryana by judgment dated 19 October 2011 in CWP No.19387 of 2011. We are therefore of the considered view that the impugned order does not call for interference by exercising the power of judicial review.”

Thus, the clarification issued by CBEC in consultation with DoPT is not proper & correct.

5.               Inthe CBEC letter dated 20.06.2016, a reference of FAQ No.16 is made. A plain reading of said FAQ NO.16 reveals that it speaks about viewing of grant of ‘non-functional scale of Rs.8000-13500 (revised to grade pay of Rs.5400 in PB-3)  towards one financial upgradation under MACP Scheme. It does not speak about grant of upgradation of time scale of pay of Rs.8000-13500 (revised to grade pay of Rs.5400 in PB-2. This is because of the fact that what is given by Revised Pay Rules, 2008 cannot be taken away by mere clarification issued by DoPT.

6.               This upgradation of time scale from Rs.7500 (pre-revised) to Rs.8000 (pre-revised) effective from 01.01.2006 and thereafter in terms of CCS(Revised) Pay Rules, 2008 has nothing to do with grant of NFSG since NFSG requires :

(i)                      screening Committee;

(ii)                     evaluation of  ACR of last 5 years;

(iii)                   cap on number of officials to be given NFSG i.e. not more than 30% of the sanctioned post;

(iv)                  finding a place in the recruitment rules i.e. it  should form part of    recruitment rules of the post etc..,

(v)                 a specific order allowing or not allowing grant of the benefit of NFSC.

7.               There is one cadre (Joint Commissioner) of Group A officer in the CBEC is entitled to NFSG (as Additional Commissioner) as can be seen from the Indian Revenue Service (Customs & Central Excise), Recruitment Rules, 2012 as amended/superseded.  No such NFSG has been prescribed for any other cadre in the CBEC.

8.               It is needless to mention here that there is no express provision in the MACPS to count NFSG towards one MACP. The recent clarification of DOPT is based on the para 8.1 of Annexure to MACP Scheme which stipulate GP of Rs.5400 in PB-2 and Rs.5400 in PB-3 as different grade for the purpose of MACP Scheme. The clarification based on this clause is not proper and legal. Therefore, it can be concluded that the legitimate benefit is denied with improper and incorrect clarification. Government one side is issuing instructions after instructions not to indulge into litigations and resolve the issue amicably in the spirit of the instructions, circular, policy and norms, but it is unfortunate when it comes to our cadre, we are constantly deprived, not only functional promotions but also financial up gradation as envisaged in MACP scheme. On being aggrieved Individuals from all the corner are approaching CAT and receiving order in their favor, however the board in or one other pretext denying the rights by issuing clarifications. We hope sooner or Later the para 8.1 of MAPC scheme needs amendment so the said issue will be settled forever.