Académique Documents
Professionnel Documents
Culture Documents
Sub:- O A No. 291/00521/2014 (CAT/JP) filed by Sh A K Katta & others V/s UOI & others.
Ref:-Sr SO Adm-3 note no. at NP-2 of file NWR/HQ/JP/A/cs/Adm-3/Court-Cases dated 08.10.2014.
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1. In reference to above, Sh A K Katta & others has filed O.A No. 291/00521/2014 (CAT/JP) V/s
UOI & others in MACPs policy matter and challenged order AHQ/S.O.O. No 19 dated
08.09.2014 regarding withdrawal of 3rd MACPs.
2. Vide CP-54 to 56, Railway Board has communicated brief remarks to be incorporated in the
proposed counter reply as a Preliminary Submission as well. The same have been incorporated in
the proposed reply.
3. In compliance of note under reference, parawise remarks of this section are as under:-
Para Administrative Reply
Details of Application
PARTICULARS OF ORDERS AGAINST
WHICH THE PRESENT APPLICATION IS
MADE:
1. This application is made against order dated (i). The applicants have to given 3rd financial
08/09/2014 issued by respondent No. 3 by upgradation only after the mandatory 10 years
which benefits of Modified Assured Career residency from the date of 2nd financial
Progression Scheme (MACPS) by way of upgradation allowed in higher grade pay of Rs 4600
Third Financial Upgradation allowed to the w.e.f. 01.09.2008 as per Railway Board’s letter no.
applicants in the year 2010- 2011 w.e.f. PC- V/2009/ACP/2 dated 29.12.2011 wherein it is
01/09/2008 or date of entitlement has been further clarified that para-1 of Annexure to Board’s
cancelled and also ordered for recovery on the letter dated 10-06-2009 (RBE No.101/2009), wherein
ground that applicants allowed benefits against it is mentioned that the MACP Scheme envisages
the provisions of the scheme and further orders three financial upgradations counted from the direct
issued by Railway Board time to time, inspite entry grade on completion of 10, 20 and 30 years of
of fact that applicants rightly allowed benefits regular service respectively. Financial upgradation
and further due fixation of pay & allowances. under the scheme is admissible wherever an
Beside this applicants granted third financial employee spent 10 years continuously in the same
upgradation, because they were stagnated for grade Pay. It is, thus, evident that 1st financial
10 years in same pay scale and further order of upgradtion would be admissible on completion of 10
recovery of excess payment also not justified as years of regular service from the date of actual
applicants allowed benefits as per orders of the joining of the post in the entry grade, 2nd financial
respondents and respondents cannot cancelled upgradation on completion 20 years service from the
the order without procedure, as date of initial appointment or 10 years from the date
applicants allowed benefits as per of 1st financial upgradation/promotion, whichever
recommendation of screening committee, is earlier and 3rd financial upgradation would be
which is against the procedure as well as admissible on completion of 30 years service from
original scheme and further after the date of initial appointment or 10 years from the
recommendations of sixth pay commission date of 2nd financial upgradation/promotion,
scale Rs. 5000- 8000 as well as Rs. 5500- 9000 whichever is earlier, if the employee has not earned
merged in same grade pay and applicants three promotions in thirty years span of regular
allowed post of Accounts Assistant by way of service. Hence, the applicants were not entitled for
upgradation in the year 1987 and the same is 3rd financial upgradation in Rs 4800 from 2010,
not countable towards benefits. Copy of order 2011, 2012 & 2013 respectively. The illustrations
dated 08/09/2014 is annexed herewith and given in para 28 are for the understanding of the
marked as ANNEXURE A/1. above stipulated position contained in Board's policy
instructions dated 10.6.2009 and demonstrates that
these are independent segments to be assessed
independently for the purpose of implementation of
the Scheme. A bare perusal of para 28(A) (ii)&(iii)
itself demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
(ii). As the applicants were not stagnated for 10
years in same pay scale w.e.f. 01.09.2008 and
erroneous implementation of 3rd MACP needs to be
rectified. Hence, further order of recovery of excess
payment needs to be issued.
(iii). Railway Administration has issued orders for
withdrawal of 3rd MACP by following due
procedure i.e. latest instructions were put up before
screening committee and screening committee has
recommended for withdrawal of benefits. This fact
has been endorsed in cancellation orders.
(iv). It is incorrectly mentioned by the applicants that
after recommendations of sixth pay commission scale
Rs. 5000- 8000 as well as Rs. 5500- 9000 merged in
same grade pay and applicants allowed post of
Accounts Assistant by way of upgradation in the
year 1987 and the same is not countable towards
benefits. Factual position is that the applicants
became Accounts Assistant by promotion in terms of
Para 171(5) of IREM Vol. I as per promotion orders
issued vide Annexures -------- (CP-74 to 83).
SUBJECT IN BRIEF:
Arbitrary, illegal and unjustified action of
respondents in connection with cancellation of To be replied by Railway Advocate.
benefits of third financial
upgradation under MACP Scheme and further
action also against the provisions of Article 14,
16 and 21 of the Constitution of India and
orders issued by Railway Board from time to
time.
2. JURISDICTION: - To be replied by Railway Advocate.
The applicants declare that the subject matter
of this Original Application is within the
jurisdiction of this Hon'ble Tribunal.
3. LIMITATION: -
The applicants declare that the applications of To be replied by Railway Advocate.
the humble applicants are within the limitation
period as prescribed in section 21 of the
Administrative Tribunals Act, 1985.
4. FACTS OF THE CASE: -
4.(ii) That after recommendations of sixth pay Instructions regarding MACP Scheme providing for
commission, Government of India promulgated financial upgradations have been issued vide Board's
Modified Assured Career Progression Scheme letter . PC-V/2009/ACP/2 dated 10.06.2009 (RBE
(MACPS) for the 101/2009), As per para 1 of the Annexure to Board's
Central Government Civilian Employees for letter dated 10.6.2009, the Scheme provides for three
Placement! in higher scale after completion of financial upgradations under the MACPS, counted
10, 20 & 30 years of service and respondent from the direct entry grade on completion of 10,20
department also adopted the same vide order and 30 years of service respectively. Financial up
dated 10/06/2009 and taking into consideration gradations under the Scheme will be admissible
of the scheme, respondents placed the whenever a person has spent 10 years continuously in
applicants in grade pay Rs. 4600 / 4800 the same Grade Pay. Evidently grant of 3rd financial
showing due date between 1987 to 1993 taking upgradations under the MACP Scheme
into consideration of ten years, in one scale is admissible either on completion of 30 years of
since 1987 / 1993 from the service from the date of joining of the
effective date of the scheme i.e. 01/09/2008 or post in direct entry grade OR 10 years continuous
from the due date in the year 2010, 2011 & regular service from the previous i.e.
2012 vide orders 21/12/2009, 07/01/2010, 2nd promotion/upgradations. Unless any of these two
20/01/2011, 09/04/2012, 01/01/2013 & conditions is fulfilled, the employee
22/11/2013. Copies of orders dated 10/06/2009, cannot be granted financial upgradation under the
21/12/2009, 07/01/2010, 20/01/2011, MACP Scheme. With this, the fact that any employee
09/04/2012, 01/01/2013 & 22/11/2013 are completing 20 years service on 01.09.2008 without
annexed herewith and marked as any prior promotion getting two upgradation on
ANNEXURE- A/2, A/3, A/4, A/5, A/6, A/7 & 01.09.2008 implies that there is inherent counting of
A/8 respectively. notional promotion at the end of 10 years prior to
01.09.2008. Accordingly, the applicants were
allowed Grade Pay Rs 4600/ 4800 taking into
consideration of ten years in one scale since
1987/1993 from the effective date of the scheme i.e.
01.09.2008 or from the due date in the years 2010,
2011 & 2012 from the date of first promotion.
4.(iii) That MACP Scheme provides that any The applicants have to given 3rd financial
employee remained in same grade pay for 10 upgradation only after the mandatory 10 years
years, he is entitle for upgradation for which residency from the date of 2nd financial
Railway Board also issued order dated upgradation allowed in higher grade pay of Rs 4600
29/12/2011 and in pursuance to that taking in to w.e.f. 01.09.2008 as per Railway Board’s letter no.
consideration of due -. date of third financial PC- V/2009/ACP/2 dated 29.12.2011 wherein it is
upgradation as 2008 onwards allowed higher further clarified that para-1 of Annexure to Board’s
grade pay of Rs. 4600 w.e.f. 01/09/2008 and letter dated 10-06-2009 (RBE No.101/2009), wherein
thereafter Rs. 4800 from 2010, 2011, 2012 & it is mentioned that the MACP Scheme envisages
2013 and respondents allowed due fixation pay three financial upgradations counted from the direct
as per' options of the applicants. Copy of order entry grade on completion of 10, 20 and 30 years of
dated 29/12/2011 is annexed herewith and regular service respectively. Financial upgradation
marked as ANNEXURE- A/9. under the scheme is admissible wherever an
employee spent 10 years continuously in the same
grade Pay. It is, thus, evident that 1st financial
upgradtion would be admissible on completion of 10
years of regular service from the date of actual
joining of the post in the entry grade, 2nd financial
upgradation on completion 20 years service from the
date of initial appointment or 10 years from the date
of 1st financial upgradation/promotion, whichever
is earlier and 3rd financial upgradation would be
admissible on completion of 30 years service from
the date of initial appointment or 10 years from the
date of 2nd financial upgradation/promotion,
whichever is earlier, if the employee has not earned
three promotions in thirty years span of regular
service. Hence, the applicants were not entitled for
3rd financial upgradation in Rs 4800 from 2010,
2011, 2012 & 2013 respectively. The illustrations
given in para 28 are for the understanding of the
above stipulated position contained in Board's policy
instructions dated 10.6.2009 and demonstrates that
these are independent segments to be assessed
independently for the purpose of implementation of
the Scheme. A bare perusal of para 28(A) (ii)&(iii)
itself demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
4.(iv) That original scheme dated 10/06/2009 at The matter has further been examined in consultation
Annexure- A/2 in para 1 provides that: - with the DOP&T, the nodal department on MACPS,
vk’kksf/kr lqfuf’pr dSfj;j izksUu;u ;kstuk ds and it has been clarified by the nodal department also
vUrxZr rhu foRrh; vixzsMs’ku fn, tk;saxs] that 3 rd MACP is to be given based on either 10
ftudh x.kuk lh/ks ,aV/h xszM ds Lrj ls years from the 2nd MACP/promotion or 30 years of
dze’k% 10] 20 vkSj 30 o"kZ iwjs gksus ds the overall service. In this connection Railway
ckn dh tk,xhA ;fn fdlh O;fDr us ,d xzsM&is Board’s I.D. note no. PC-V/2009/ACP/2/Pt. 3 dated
esa 10 o"kkssZa dh fujarj lsok iwjh dj yh gS] 14.02.2013, DoPT’s I.D. note 35034/2013-Esst(D)
rks mls bl ;kstuk ds vUrxZr foRrh; dated 10.09.2013 are placed as Annexure -----------
vixzsMs’ku vuqes; gksxkA (CP-58) & Annexure ----------- (CP-59 to 60). With
In view of this position clarifications issued by the grant of 2nd financial upgradation/promotion, the
Railway Board vide orders dated 14/02/2013, Grade Pay available to the employee changes and
10/09/2013 and 16/12/2013 against the he/she is no more in the same Grade Pay and,
provisions of scheme. Copies of clarifications therefore, can be considered for grant of 3rd financial
dated 14/02/2013, 10/09/2013 and 16/12/2013 upgradation either on completion of 10 years
are annexed herewith and marked as regular continuous service after grant of 2nd
ANNEXURE- A/10, A/ll & A/12 respectively. financial up gradation/ promotion OR 30
years continuous regular service from the date of
joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier. This
position has already been explained
in Board's letter dated 29.12.2011. Further, MACP
Scheme has been introduced with effect from 1-9-
2008 and, therefore, claim of any individual that he is
eligible for the MACP benefit prior to that date is
illogical and unreasonable.
4.(v) That respondent No. 1 vide letter dated This office letter HQ/NWR/JP/A/cs/Adm /MACPS
17/01/2014 sought some clarifications from the dated 26.05.2014 Annexure ------ (CP-2) has been
respondent No. 2 in connection with benefits issued in compliance to Railway Board’s instruction
under MACP Scheme and respondent No. 2 issued vide letter PC-V/2009/ACP /6/NWR dated
vide letters dated 31/01/2014 and 04/02/2014 16.12.2013. In this connection further instruction was
clarified the position that third MACP benefits issued vide letter Railway Board’s letter no. PC-
is available after 30 years of service or 10 years V/2009/ACP/2 dated 27.06.2014 Annexures -----
service from second MACP / Promotion, which (CP-62). Hence, with the grant of 2nd financial
is against the provisions of the scheme as upgradation/promotion, the Grade Pay available to
reproduced in para 4.(iv) above. Copies of the employee changes and he/she is no more in the
letters dated 17/01/2014, 31/01/2014 & same Grade Pay and, therefore, can be
04/02/2014 are annexed herewith and marked as considered for grant of 3rd financial upgradation
ANNEXURE- A/13, A/14 & A/15 respectively. either on completion of 10 years
It is further submitted respondent No. 3 vide regular continuous service after grant of 2nd
letter dated 26/05/2014 directed the authorities financial up gradation/ promotion OR 30
to take action as per Railway Board letters / years continuous regular service from the date of
clarifications. Copy of letter dated 26/05/2014 is joining of a post in the direct entry grade
annexed herewith and marked as ANNEXURE- on direct recruitment basis, whichever is earlier. This
A/16. position has already been explained
in Board's letter dated 29.12.2011. Further, MACP
Scheme has been introduced with effect from 1-9-
2008 and, therefore, claim of any individual that he is
eligible for the MACP benefit prior to that date is
illogical and unreasonable.
4.(vi) That the applicants allowed fixation and to draw Actions have been taken in compliance of Railway
pay & allowances in the pay band Rs. 9300- Board’s instructions as mentioned in Para4.5 above.
34800 with grade pay Rs. 4800, but respondent
No. 3 without extending any chance of hearing
issued order dated 08/09/2014 by which benefits
allowed in the grade pay Rs. 4800 have been
cancelled / withdrawn in pursuance to Railway
Board order dated 29/12/2011 at Annexure- A/9
and by this action recovery is going to be
effected. Copy of order dated 08/09/2014 has
already been annexed as Annexure- A/1.
4.(vii) That the applicants after 1987 / 1993 not There are no instructions in Board's letter dated
allowed any promotion and remained in receipt 10.6.2009 providing for grant of 3rd financial
of pay & allowances in the same scale since upgradation on completion of 20 years service from
1987 / 1993 and thereafter respondents after the 1 st promotion overlooking the subsequent
implementation of MACP Scheme allowed development viz grant of 2nd financial
second financial upgradation in the grade pay upgradation/promotions. Thus the contention of the
Rs. 4600 w.e.f. 01/09/2008 on the basis of due applicants is not only misplaced but in contravention
date as 1997 / 2003 after ten years and further of the policy instructions. As per clarification from
applicants became due for third financial Railway Board vide letter no. PC-V/2009/ACP/2
upgradation in 2007 / 2013 and clarification of dated 29.12.2011 the applicants have not completed
Railway Board at Annexure- A/9 against the of 30 years service from the date of initial
scheme and also after allowing benefits and appointment or 10 years from the date of 2nd
cannot given effect retrospectively. So in view financial upgradation w.e.f. 01.09.2009 . Hence, the
of this position cancellation of benefits against applicants were not entitled for 3rd financial
scheme and applicants rightly allowed benefits upgradation in Rs 4800 from 2010, 2011, 2012 &
due to stagnation for 20 years. 2013 respectively.
4.(viii) That applicants appointed between 1984 to 1990 The applicants are not entitled for allowing 3rd as
and thereafter scale of Rs. 1400- 2600 as explained in para 4.1 to 4.4 above. Further, All the
Accounts Assistant upgradation and ACP applicants are substantive employee of Railway and
Scheme which provide two financial after 12 & appointed as Junior Accounts Assistant between
24 years of service came to into to in effect 1984 to 1990 and thereafter became Accounts
w.e.f. 09/08/1999, but applicants no where Assistant by promotion in terms of Para (5) of IREM
allowed benefits of ACP Scheme on the ground Vol. I as per promotion orders issued vide Annexure
that they not completed 24 years service and 1 to 8. They have never became Accounts Assistant
further MACP Scheme effective from in the scale Rs 1200-2040 under restructuring as
01/09/2008 provides three financial there were no instructions from Railway Board for
upgradations after completion of 10, 20 & 30 allowing restructure scale 1400-2600. Hence, the
years of service. In fact applicants allowed applicants have availed one promotion. Thereafter,
higher scale only in 1987 / 1993 and the applicants have not completed 24 years of service
respondents rightly allowed benefits of second so they are not entitled for benefits under ACP
MACP as well as third MACP due to stagnation scheme.
for 10 years from 1984 / 1990 to 2000 and
thereafter further upto 2004 / 2010 for which
scheme
at Annexure- A/2 also provide in para 1 as
reproduce in para 4.(iv) above. Beside this the
scale of Rs. 1400- 2600 allowed to the post of
Accounts Assistant between the year 1987 to
1993 on the basis of upgradation of posts and
further scale Rs. 5000- 8000 and Rs. 5500-9000
merged in the same grade pay Rs. 4200 w.e.f.
01/01/2006 as per recommendation of sixth pay
commission and as per orders passed by Hon'ble
CAT Madras Bench and upheld by Hon'ble
High Court Madras and thereafter Hon'ble
Supreme Court, applicants entitle for benefits of
ACP Scheme for which applicants taking
recourse to extend benefits of above said orders.
4.(x) That MACP Scheme promulgated with the This office letter HQ/NWR/JP/A/cs/Adm /MACPS
object that employees those facing stagnation be dated 26.05.2014 Annexure ------ (CP-2) has been
allowed benefits of the scheme and scheme is issued in compliance to Railway Board’s instruction
similar to ACP Scheme and for allowing issued vide letter PC-V/2009/ACP /6/NWR dated
upgradation 10, 20 & 30 years of service is 16.12.2013. In this connection further instruction was
required and respondents without any base issued vide letter Railway Board’s letter no. PC-
withdraw the benefits in the garb of clarification V/2009/ACP/2 dated 27.06.2014 Annexures -----
dated 29/12/2011 (Annexure- A/9) and the same (CP-62). Hence, with the grant of 2nd financial
is against the provision of scheme. Beside this upgradation/promotion, the Grade Pay available to
all employees granted upgradation w.e.f. the employee changes and he/she is no more in the
01/09/2008 i.e. effective date of MACP Scheme same Grade Pay and, therefore, can be
and as per respondents as clarified no employee considered for grant of 3rd financial upgradation
is entitle for further upgradation upto 10 years, either on completion of 10 years
taking into consideration of upgradation allowed regular continuous service after grant of 2nd
and in the case of applicants as per respondents, financial up gradation/ promotion OR 30
applicants wrongly allowed third financial years continuous regular service from the date of
upgradation without completing 30 years joining of a post in the direct entry grade
service, which is against the scheme, as MACP on direct recruitment basis, whichever is earlier. This
Scheme also provides upgradation on position has already been explained
stagnation. In view of this position applicants in Board's letter dated 29.12.2011. Further, MACP
rightly allowed benefits and the same cannot be Scheme has been introduced with effect from 1-9-
withdrawn. 2008 and, therefore, claim of any individual that he is
eligible for the MACP benefit prior to that date is
illogical and unreasonable.
5. GROUNDS OF APPLICATION:
This application of the humble applicants
preferred on the following amongst other
grounds: -
5. A Because the action of the respondents in The applicants can be considered for grant of 3rd
connection with cancellation of benefits under financial upgradation either on completion of 10
MACP Scheme is arbitrary, illegal and years regular continuous service after grant of 2nd
unjustified and such action of the respondents is financial up gradation/ promotion OR 30
liable to be quashed and set aside. years continuous regular service from the date of
joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier.
With the grant of 2nd financial upgradation/
promotion, 3rd financial upgradation under MACPs is
to be given only after the mandatory 10 years
residency from the 2nd MACP/Promotion. This
position has already been explained in Board's letter
dated 29.12.2011. Further, MACP Scheme has been
introduced with effect from 1-9-2008 and, therefore,
claim of any individual that he is eligible for the
MACP benefit prior to that date is illogical and
unreasonable.
5. D Because applicants allowed financial benefits of The applicants can be considered for grant of 3rd
upgradation as per scheme and as per orders financial upgradation either on completion of 10
passed by the respondents because applicants years regular continuous service after grant of 2nd
draw pay & allowances for more than 10 years financial up gradation/ promotion which is
in one grade and scheme also provide benefits. 01.09.2008 OR 30years continuous regular service
Thus action of the respondents cannot be said from the date of joining of a post in the direct entry
just & proper and the same is liable to be grade on direct recruitment basis, whichever is
quashed and set aside. earlier. With the grant of 2nd financial upgradation/
promotion, 3rd financial upgradation under MACPs is
to be given only after the mandatory 10 years
residency from the 2nd MACP/Promotion. This
position has already been explained in Board's letter
dated 29.12.2011. Further, MACP Scheme has been
introduced with effect from 1-9-2008 and, therefore,
claim of any individual that he is eligible for the
MACP benefit prior to that date is illogical and
unreasonable.
5. E Because respondents without any base put the The applicant relates to erroneous grant of 3rd MACP
applicants in financial loss and snatch the without becoming due for the same as explained
benefits of financial upgradation inspite of fact above needs to be rectified.
that applicants are entitle for the benefits. Thus
action of respondents is against facts &
circumstances and same is liable to be quashed
and set aside.
5. F Because the applicants nowhere miss- The applicants had erroneously allowed 3rd MACPS
represented while granting benefits and on completion of 20 years of service from the of 1st
cancellation also without extending any chance promotion which needs to be rectified as explained in
of hearing and the same is against the principles Para 4(i) to 4(iv) above.
of natural justice. So order passed for
cancellation with the recovery cannot be given
effect and such action of the respondent is liable
to be quashed and set aside.
5. G Because the respondents no where considered The applicants had erroneously allowed 3rd MACPS
matter of the applicants as per original scheme on completion of 20 years of service from the of 1st
and also no where extended any chance of promotion which needs to be rectified as explained in
hearing, which is not at all justified and against Para 4(i) to 4(iv) above.
the procedure. Thus such action of the
respondent is liable to be quashed and set aside.
5. H Because applicants allowed second MACP The applicants have to given 3rd financial
w.e.f. 01/09/2008 i.e. about after 23 / 24 years upgradation as explained in Para (1) above. The case
of service and provisions of the scheme of the applicant relates to erroneous grant of 3rd
provides upgradation after 10, 20 & 30 years MACP without becoming due and as such the same
and also on stagnation for 10 years and past needs to be rectified.
services are to be counted. So applicants rightly
allowed benefits being stagnated for more than
20 years within the service period. Thus action
of respondents against the aim & object of the
scheme and such action of respondents with the
clarifications is liable to be quashed and set
aside.
5. I Because the applicants allowed benefits after Railway Administration has issued orders for
due procedure and after recommendations of withdrawl of 3rd MACP by following due
screening committee and these procedure i.e. latest instructions were put up before
recommendations cannot be undone without screening committee and screening committee has
procedure and respondent No. 3 cannot recommended for withdrawal of benefits. This fact
cancelled the benefits being same authority and has been endorsed in cancellation orders.
also without reviewing the matters. Thus action
of respondent No. 3 is without competency and
against procedure and the same is liable to be
quashed and set aside with the Annexure- A/l.
5. J Because grade pay of Accounts Assistant All the applicants are substantive employee of
allowed at the relevant time by way of Railway and appointed as Junior Accounts Assistant
upgradation and the same cannot be counted between 1984 to 1990 and thereafter became Accounts
towards benefits of MACP treating as Assistant by promotion in terms of Para 171(5) of
promotion as per decision of Hon'ble CAT IREM Vol. I as per promotion orders issued vide
Bench Madras and upheld by Hon'ble High Annexures 1 to 8. The post in the grade of Account
Court Madras and thereafter Hon'ble Supreme Assistant in scale of Rs.1400-2600 is filled by
Court. Thus action of respondents is also not promotion of Junior Account Assistant in scale of
justified and the same is liable to be quashed Rs.1200-2040 after they have completed 3 years
and set aside. service in the grade and passed Appendix-II
examination. This is statutory position regarding
appointment to Account Assistant's grade which
categorically stipulates that this is not only promotion
but also laid down the eligibility criterion viz. 3 years
service in JAA grade for the said promotion. Further,
on appointment to AA grade from JAA grade the
employees are also allowed benefit of pay fixation
under FR 22 C as admissible in case of promotion to
the post having higher duties and responsibilities.
They have never became Accounts Assistant in the
scale Rs 1200-2040 as there were no instructions from
Railway Board for allowing restructure in scale 1400-
2600 to the applicants. Hence, the applicants have
availed one promotion.
7.A. That the applicants filing the present original To be replied by Railway Advocate.
application jointly against common cause in
connection with cancellation of benefits of
MACP Scheme and are working under
respondent No. 3 at Jaipur and they are drawing
the pay as per fixation allowed by the
respondents and benefits cannot be cancelled
without extending any chance of hearing, so
they having common cause of action. Thus joint
application may kindly be allowed.
8. RELIEFS SOUGHT: -
In view of the facts and grounds mentioned in
para 4 and 5, above the applicants pray for the
following relief: -
8. (i) That the respondents may be directed to hold The applicants are not entitled for allowing 3rd as
good benefits of financial upgradation allowed explained in para 4.1 to 4.4 above and as such the
vide orders dated 21/12/2009, 07/01/2010, same needs to be rectified.
20/01/2011, 09/04/2012, 01/01/2011 &
22/11/2013 (Annexure- A/3 to A/8) with the
other similar orders with due fixation by
quashing order dated 08/09/2014 (Annexure-
A/1)with the 'revised pay fixation with all
consequential benefits.
8. (ii) That order dated 29/12/2011 (Annexure- A/9) Vide Railway Board’s letter no. PC- V/2009/ACP/2
with the further clarifications be quashed and set dated 29.12.2011, it is further clarified that para-1 of
aside, as the same against the provisions as well Annexure to Board’s letter dated 10-06-2009 (RBE
as aim & object of the MACP Scheme at No.101/2009), wherein it is mentioned that the
Annexure- A/2 with all consequential benefits. MACP Scheme envisages three
financial upgradations counted from the direct entry
grade on completion of 10, 20 and 30 years of
regular service respectively. Financial upgradation
under the scheme is admissible wherever an
employee spent 10 years continuously in the same
grade Pay. It is, thus, evident that 1st financial
upgradtion would be admissible on completion of 10
years of regular service from the date of actual
joining of the post in the entry grade, 2nd financial
upgradation on completion 20 years service from the
date of initial appointment or 10 years from the date
of 1st financial upgradation/promotion, whichever
is earlier and 3rd financial upgradation would be
admissible on completion of 30 years service from
the date of initial appointment or 10 years from the
date of 2nd financial upgradation/promotion,
whichever is earlier, if the employee has not earned
three promotions in thirty years span of regular
service.
The illustrations given in para 28 are for the
understanding of the above stipulated position
contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are
independent segments to be assessed independently
for the purpose of implementation
of the Scheme. A bare perusal of para 28(A) (ii)&(iii)
itself demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
8. (iii) That the respondents be further not to recover The applicant have been granted 3rd MACP
any amount from the applicants in pursuance to erroneously without becoming due for the same
order dated 08/09/2014 (Annexure- All) and to which is needs to be rectified. Accordingly recovery
allow pay & allowances as drawn by the of excess amount paid, needs to be recovered.
applicants in the month of August 2014 with all
consequential benefits.
8. (iv) Any other order, direction or relief may be To be replied by Railway Advocate.
passed in favour of the applicants which may be
deemed fit, just and proper under the facts and
circumstances of the case.
8. (v) That the costs of this application may be To be replied by Railway Advocate.
awarded .
Submitted for perusal and approval please so that the same may be sent to Railway Advocate to
prepare draft reply for Railway Board’s approval please.
Sr SO/Adm
AFA/Adm
A. Para-4:-
1) Para - 4.1 :- All the applicants are substantive employee of Railway and appointed as Junior
Accounts Assistant between 1984 to 1990 and thereafter became Accounts Assistant by
promotion in terms of Para 171(5) of IREM Vol. I as per promotion orders issued vide
filled by promotion of Junior Account Assistant in scale of Rs.1200-2040 after they have
completed 3 years service in the grade and passed Appendix-II examination. This is statutory
that this is not only promotion but also laid down the eligibility criterion viz. 3 years service
in JAA grade for the said promotion. Further, on appointment to AA grade from JAA grade
the employees are also allowed benefit of pay fixation under FR 22 C as admissible in case
of promotion to the post having higher duties and responsibilities. They have never became
Accounts Assistant in the scale Rs 1200-2040 as there were no instructions from Railway
Board for allowing restructure in scale 1400-2600 to the applicants. Hence, the applicants
2) Para - 4.2 :- Instructions regarding MACP Scheme providing for financial upgradations have
been issued vide Board's letter . PC-V/2009/ACP/2 dated 10.06.2009 (RBE 101/2009), As
per para 1 ofthe Annexure to Board's letter dated 10.6.2009, the Scheme provides for
three financial upgradations under the MACPS, counted from the direct entry grade on
completion of 10,20 and 30 years of service respectively. Financial up gradations under
the Scheme will be admissible whenever a person has spent 10 years continuously in the
same Grade Pay. Evidently grant of 3rd financial upgradations under the MACP Scheme
is admissible either on completion of 30 years of service from the date of joining of the
post in direct entry grade OR 10 years continuous regular service from the previous i.e.
2nd promotion/upgradations. Unless any of these two conditions is fulfilled, the employee
cannot be granted financial upgradation under the MACP Scheme. With this, the fact that any
employee completing 20 years service on 01.09.2008 without any prior promotion getting
two upgradation on 01.09.2008 implies that there is inherent counting of notional promotion
at the end of 10 years prior to 01.09.2008. Accordingly, the applicants were allowed Grade
Pay Rs 4600/ 4800 taking into consideration of ten years in one scale since 1987/1993 from
the effective date of the scheme i.e. 01.09.2008 or from the due date in the years 2010, 2011
& 2012 from the date of first promotion.
3) Para - 4.3 :- The applicants have to given 3rd financial upgradation only after the mandatory
10 years residency from the date of 2nd financial upgradation allowed in higher grade pay
of Rs 4600 w.e.f. 01.09.2008 as per Railway Board’s letter no. PC- V/2009/ACP/2 dated
29.12.2011 wherein it is further clarified that para-1 of Annexure to Board’s letter dated 10-
06-2009 (RBE No.101/2009), wherein it is mentioned that the MACP Scheme envisages
three financial upgradations counted from the direct entry grade on completion of 10, 20 and
30 years of regular service respectively. Financial upgradation under the scheme is
admissible wherever an employee spent 10 years continuously in the same grade Pay. It is,
thus, evident that 1st financial upgradtion would be admissible on completion of 10 years of
regular service from the date of actual joining of the post in the entry grade, 2nd financial
upgradation on completion 20 years service from the date of initial appointment or 10 years
from the date of 1st financial upgradation/promotion, whichever is earlier and 3rd financial
upgradation would be admissible on completion of 30 years service from the date of initial
appointment or 10 years from the date of 2nd financial upgradation/promotion, whichever is
earlier, if the employee has not earned three promotions in thirty years span of regular
service. Hence, the applicants were not entitled for 3rd financial upgradation in Rs 4800
from 2010, 2011, 2012 & 2013 respectively. The illustrations given in para 28 are for the
understanding of the above stipulated position contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are independent segments to be assessed
independently for the purpose of implementation of the Scheme. A bare perusal of para
28(A) (ii)&(iii) itself demonstrates that third financial upgradation is admissible either on
completion of further 10 years service from second financial up gradation/promotion or on
completion of 30 years of service from the date of joining of a post in direct recruitment
grade. Viewing this step by step demonstration in a cumulative manner and deciphering any
meaning which is in contravention of the instructions contained in Board's policy instructions
dated 10.6.2009 is erroneous and therefore, not tenable. The Board's instructions dated 16-
12-2013 is not a new instruction/clarification but merely reaffirmation of the instructions
already contained in para 28(A) (ii) & (iii) as already explained hereinabove and as such the
applicants' case is absolutely misplaced. In fact the case of the applicant relates to erroneous
grant of 3rd MACP without becoming due for the same and as such needs to be rectified.
4) Para - 4.4 :- That on demands of Federation the matter has further been examined in
consultation with the DOP&T, the nodal department on MACPS, and it has been clarified by
the nodal department also that 3 rd MACP is to be given based on either 10 years from the
2nd MACP/promotion or 30 years of the overall service. In this connection Railway Board’s
I.D. note no. PC-V/2009/ACP/2/Pt. 3 dated 14.02.2013, DoPT’s I.D. note 35034/2013-
Esst(D) dated 10.09.2013 are placed as Annexure -----------& Annexure -----------
5) Para - 4.5 :- . This office letter HQ/NWR/JP/A/cs/Adm/MACPS dated 26.05.2014 Annexure
------ has been issued in compliance to Railway Board’s instruction issued vide letter PC-
V/2009/ACP /6/NWR dated 16.12.2013. In this connection further instruction was issued
vide letter Railway Board’s letter no. PC-V/2009/ACP/2 dated 27.06.2014 Annexures -----.
Hence, with the grant of 2nd financial upgradation/promotion, the Grade Pay available to the
employee changes and he/she is no more in the same Grade Pay and, therefore, can be
considered for grant of 3rd financial upgradation either on completion of 10 years
regular continuous service after grant of 2nd financial up gradation/ promotion OR 30
years continuous regular service from the date of joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier. This position has already been explained
in Board's letter dated 29.12.2011. Further, MACP Scheme has been introduced with effect
from 1-9-2008 and, therefore, claim of any individual that he is eligible for the MACP
benefit prior to that date is illogical and unreasonable.
6) Para - 4.6 :- Actions have been taken in compliance of Railway Board’s instructions as
mentioned in Para4.5 above.
7) Para - 4.7 :- There are no instructions in Board's letter dated 10.6.2009 providing for grant of
3rd financial upgradation on completion of 20 years service from the 1 st promotion
overlooking the subsequent development viz grant of 2nd financial upgradation/promotions.
Thus the contention of the applicants is not only misplaced but in contravention of the policy
instructions. As per clarification from Railway Board vide letter no. PC-V/2009/ACP/2
dated 29.12.2011 the applicants have not completed of 30 years service from the date of
initial appointment or 10 years from the date of 2nd financial upgradation w.e.f. 01.09.2009
. Hence, the applicants were not entitled for 3rd financial upgradation in Rs 4800 from 2010,
2011, 2012 & 2013 respectively.
8) Para - 4.8 :- The applicants are not entitled for allowing 3rd as explained in para 4.1 to 4.4
above. Further, All the applicants are substantive employee of Railway and appointed as
Junior Accounts Assistant between 1984 to 1990 and thereafter became Accounts Assistant
by promotion in terms of Para (5) of IREM Vol. I as per promotion orders issued vide
Annexure 1 to 8. They have never became Accounts Assistant in the scale Rs 1200-2040
under restructuring as there were no instructions from Railway Board for allowing restructure
scale 1400-2600. Hence, the applicants have availed one promotion. Thereafter, the
applicants have not completed 24 years of service so they are not entitled for benefits under
ACP scheme.
9) Para - 4.9 :-Matter of record.
10) Part reply of Para - 4.10 :- Matter of record.
Sr SO/Adm-I
NORTH WESTERN RAILWAY
FA&CAO’s Office,
HQ-NWR-Jaipur
No. NWR/HQ/JP/A/cs/Adm-3/Court Case Date: - 30.10.2014.
Sh V C Gupta, AFA/Adm,
HQ-NWR, Jaipur.
Sub:- O A No. 291/00521/2014 (CAT/JP) filed by Sh A K Katta & others V/s UOI & others.
***
Vide letter E(P&A)II/2012/Misc-6/Court Cases dated 22.05.2014, Railway Board has
instructed to closely monitor court cases involving policy issues.
Sh A K Katta & others has filed O.A No. 291/00521/2014 (CAT/JP) V/s UOI & others in
MACPs policy matter and challenged order AHQ/S.O.O. NO 19 dated 08.09.2014 regarding
withdrawal of 3rd MACPs.
Sr. AFA/Adm or the officer looking after the work of Sr AFA/Adm (Presently Sh V C
Gupta, AFA/Gen) to monitor the case has been nominated to monitor the case as per Board’s
directives.
This has the approval of FA&CAO.
(V C Gupta)
AFA (Adm.)
North Western Railway
FA&CAO’s Office
N.W.Railway-Jaipur
No. NWR/HQ/JP/A/cs/Adm-3/Court-Cases Date: 29.10.2014
Sub:- O A No. 291/00521/2014 (CAT/JP) filed by Sh A K Katta & others V/s UOI &
others (Copy enclosed).
***
Sh A K Katta & others has filed O.A No. 291/00521/2014 (CAT/JP) V/s UOI & others
(copy enclosed) in MACPs policy matter and challenged order AHQ/S.O.O. No 19 dated
08.09.2014 regarding withdrawal of 3rd MACPs.
A copy of above O.A. is sent herewith for providing necessary remarks as Policy letters
have been challenged in Hon’ble CAT/JP so that the same may be incorporated in reply which
will be submitted in CAT/JP.
This has the approval of FA&CAO.
(Manoj Kumar Jain)
Enclosed:- As above Dy.CAO/G
Sub:- O A No. 291/00521/2014 (CAT/JP) filed by Sh A K Katta & others V/s UOI & others.
Ref:-Sr SO Adm-3 note no. at NP-2 of file NWR/HQ/JP/A/cs/Adm-3/Court-Cases dated
08.10.2014.
***
Vide under reference, case file of O.A No. 291/00521/2014 (CAT/JP) filed by Sh
A K Katta & others V/s UOI & others has been received for:-
a. To obtain remarks from Railway Board upon issues pertaining to Railway Board.
b. Provide necessary approved remarks incorporating Railway Board’s remarks.
c. For nomination of a responsible officer to monitor court cases involving policy matters not
below the rank SS/JAG, well- conversant with the case and law. Beside above, This case
has involvement of policy matter of granting MACPs which affect Personnel Department
also, therefore, Personnel Department may also be requested to nominate an officer.
Submitted please.
Sr SO/Adm
AFA/Adm
NORTH WESTERN RAILWAY
FA&CAO’s Office,
HQ-NWR-Jaipur
No. NWR/HQ/JP/A/cs/Adm-3/Court Case Date: - 29.10.2014.
Sub:- O A No. 291/00521/2014 (CAT/JP) filed by Sh A K Katta & others V/s UOI & others.
***
Vide letter E(P&A)II/2012/Misc-6/Court Cases dated 22.05.2014, Railway Board has
instructed to closely monitor court cases involving policy issues.
Sh A K Katta & others has filed O.A No. 291/00521/2014 (CAT/JP) V/s UOI & others
(copy enclosed) in MACPs policy matter and challenged order AHQ/S.O.O. NO 19 dated
08.09.2014 regarding withdrawal of 3rd MACPs which was issued in compliance of Railway
Board’s instructions vide letters no (1) PC-V/2009/ACP/2 dated 29.11.2011, (2) PC-
V/2009/ACP/6/NWR dated 16.12.2013, (3) PC-V/2009/ACP/6/NWR dated 31.01.2014 and
clarification issued to General Secretary, AIRF vide letter PC-V/2011/M/3/AIRF dated
04.02.2014.
From Accounts side, Sr. AFA/Adm has been nominated to monitor the case as per
Board’s directives. As the issue affects Personnel department also, hence, it is requested to
nominate one officer from Personnel side as well in line with Railway Board’s directive for
monitoring.
This has the approval of FA&CAO.
(V C Gupta)
AFA (Adm.)
Note
Sub:- O A No. 291/00391/2015 (CAT/JP) filed by Sh.Shiv Charan Lal MeenaV/s UOI & others.
Ref:-Sr SO Adm-3 note no. at NP-2 of file NWR/HQ/JP/A/cs/Adm-3/Court-Cases dated 17.07.2015.
***
1. In reference to above, Sh Shiv Charan Lal MeenaV has filed O.A No. 291/00391/2015 (CAT/JP) V/s
UOI & others in MACPs policy matter and challenged order AHQ/S.O.O. No 06 dated 09.06.2015
regarding withdrawal of 3rd MACPs.
2. In compliance of note under reference, parawise remarks of this section are as under:-
Para Administrative Reply
Details of Application
PARTICULARS OF ORDERS AGAINST
WHICH THE PRESENT APPLICATION IS
MADE:
1. This application is made against order dated (i). The applicant have to given 3rd financial
09/06/2015 issued by respondent No. 3 by upgradation only after the mandatory 10 years
which benefits of Modified Assured Career residency from the date of 2nd financial
Progression Scheme (MACPS) by way of upgradation allowed in higher grade pay of Rs 4600
Second & Third Financial Upgradation allowed w.e.f. 01.09.2008 as per Railway Board’s letter no.
to the applicants in grade pay Rs.4600 & 4800 PC- V/2009/ACP/2 dated 29.12.2011 wherein it is
w.e.f. 01/09/2008 & 10/07/2010 have been further clarified that para-1 of Annexure to Board’s
withdrawn and applicant allowed third letter dated 10-06-2009 (RBE No.101/2009), wherein
Financial Up gradation in pay band Rs.4600 it is mentioned that the MACP Scheme envisages
w.e.f. 05/12/2010without assigning any three financial upgradations counted from the direct
reasons. However,it has been come to notice entry grade on completion of 10, 20 and 30 years of
that respondents counting promotion to the post regular service respectively. Financial up gradation
of Stock Verifier in the same scale allowed to under the scheme is admissible wherever an
the applicant in the year 2000 as per employee spent 10 years continuously in the same
clarifications issued by respond No.2 inspite of grade Pay. It is, thus, evident that 1st financial
facts that applicant rightly allowed benefits of upgradtion would be admissible on completion of 10
second & third financial upgradation with due years of regular service from the date of actual
fixtion of pay & allowances. beside this joining of the post in the entry grade, 2nd financial
applicant granted second 7 third financial upgradation on completion 20 years service from the
upgradation, because he was stagnated for 20 date of initial appointment or 10 years from the date
years in same pay scale and further order of of 1st financial upgradation/promotion, whichever
recovery of excess payment also not justified as is earlier and 3rd financial upgradation would be
applicant allowed benefits as per orders of the admissible on completion of 30 years service from
Respondents.as regards recovery the same the date of initial appointment or 10 years from the
cannot be affected from the applicant as held date of 2nd financial upgradation/promotion,
by the Hon’ble Supreme Court in the case of whichever is earlier, if the employee has not earned
State of Punjab and others etc.V/S Rafiq Masih three promotions in thirty years span of regular
(White Washer) etc. decided on18/12/2014 service. Hence, the applicant was not entitled for 3rd
Copy of order dated 09/06/2015 is annexed financial upgradation in Rs 4800 from 2010
herewith and marked as ANNEXURE A/1. respectively. The illustrations given in para 28 are for
the understanding of the above stipulated position
contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are
independent segments to be assessed independently
for the purpose of implementation of the Scheme. A
bare perusal of para 28(A) (ii)&(iii) itself
demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
(ii). As the applicants were not stagnated for 10
years in same pay scale w.e.f. 01.09.2008 and
erroneous implementation of 3rd MACP needs to be
rectified. Hence, further order of recovery of excess
payment needs to be issued.
(iii). Railway Administration has issued orders for
withdrawal of 3rd MACP by following due
procedure i.e. latest instructions were put up before
screening committee and screening committee has
recommended for withdrawal of benefits. This fact
has been endorsed in cancellation orders.
(iv). It is incorrectly mentioned by the applicants that
after recommendations of sixth pay commission scale
Rs. 5000- 8000 as well as Rs. 5500- 9000 merged in
same grade pay and applicants allowed post of
Accounts Assistant by way of upgradation in the
year 1987 and the same is not countable towards
benefits. Factual position is that the applicants
became Accounts Assistant by promotion in terms of
Para 171(5) of IREM Vol. I as per promotion orders
issued vide Annexures -------- (CP-43 to 51).
SUBJECT IN BRIEF:
Arbitrary, illegal and unjustified action of
respondents in connection with cancellation of To be replied by Railway Advocate.
benefits of Second & third financial
upgradation under MACP Scheme and further
action also against the provisions of Article 14,
16 and 21 of the Constitution of India and
orders issued by Railway Board from time to
time.
2. JURISDICTION: - To be replied by Railway Advocate.
The applicants declare that the subject matter
of this Original Application is within the
jurisdiction of this Hon'ble Tribunal.
3. LIMITATION: -
The applicants declare that the applications of To be replied by Railway Advocate.
the humble applicants are within the limitation
period as prescribed in section 21 of the
Administrative Tribunals Act, 1985.
4. FACTS OF THE CASE: -
The original application of humble applicants is
most respectfully showeth as under: -
4.(ii) That after recommendations of sixth pay Instructions regarding MACP Scheme providing for
commission, Government of India promulgated financial upgradations have been issued vide Board's
Modified Assured Career Progression Scheme letter . PC-V/2009/ACP/2 dated 10.06.2009 (RBE
(MACPS) for the 101/2009), As per para 1 of the Annexure to Board's
Central Government Civilian Employees for letter dated 10.6.2009, the Scheme provides for three
Placement in higher scale after completion of financial upgradations under the MACPS, counted
10, 20 & 30 years of service and respondent from the direct entry grade on completion of 10,20
department also adopted the same vide order and 30 years of service respectively. Financial up
dated 10/06/2009 and taking into consideration gradations under the Scheme will be admissible
of the scheme, respondents placed the whenever a person has spent 10 years continuously in
applicants in grade pay Rs. 4600 showing the same Grade Pay. Evidently grant of 3rd financial
Second financial upgradation taking into upgradations under the MACP Scheme
consideration of ten years in one scale since is admissible either on completion of 30 years of
from 1990 to 2000, from the effective date of service from the date of joining of the
the scheme i.e. 01/09/2008 vide order date post in direct entry grade OR 10 years continuous
25/03/2010 in which name of the applicant find regular service from the previous i.e.
place at S.No.4 in which also provision has 2nd promotion/upgradations. Unless any of these two
been made for fixation of pay from the date of conditions is fulfilled, the employee
upgradation or from the date of next increment cannot be granted financial upgradation under the
for which respondents no where allowed MACP Scheme. With this, the fact that the employee
benefits. Copies of orders dated 10/06/2009 & completing 20 years service on 01.09.2008 without
25/03/2010 are annexed herewith and marked any prior promotion getting two upgradation on
as ANNEXURE- A/5, A/6 respectively. It is 01.09.2008 implies that there is inherent counting of
submitted that respondent No.2 further clarified notional promotion at the end of 10 years prior to
vide letter dated 21/02/2011 that promotions 01.09.2008. Accordingly, the applicant were allowed
earned in the post carrying same Grade pay in Grade Pay Rs 4600/ 4800 taking into consideration
the promotional hieraechy as per Recruitment of ten years in one scale since 10/07/1987 from the
Rules shall be counted for the purpose of effective date of the scheme i.e. 01.09.2008 or from
MACPS.Copy of letter dated 21/02/2011 is are the due date in the years 2010 from the date of first
annexed herewith and marked as promotion.
ANNEXURE- A/7.
4.(iii) That MACP Scheme provides that any The applicant has to given 3rd financial upgradation
employee remained in same grade pay for 10 only after the mandatory 10 years residency from the
years, he is entitle for upgradation as date of 2nd financial upgradation allowed in higher
mentioned in para 1 of the scheme at grade pay of Rs 4600 w.e.f. 01.09.2008 as per
ANNEXURE- A/5 which read as follow- Railway Board’s letter no. PC- V/2009/ACP/2 dated
There shall be three financial upgradation 29.12.2011 wherein it is further clarified that para-1
under the MACPS, counted from the direct of Annexure to Board’s letter dated 10-06-2009
entry grade on completion of 10,20,and 30 (RBE No.101/2009), wherein it is mentioned that the
years of service respectively.Financial MACP Scheme envisages three
upgradation under the Scheme will be financial upgradations counted from the direct entry
admissible whenever a person has spent grade on completion of 10, 20 and 30 years of
10years continuously in the same Grade pay. regular service respectively. Financial upgradation
under the scheme is admissible wherever an
For which Railway Board also issued order employee spent 10 years continuously in the same
dated 29/12/2011 and in pursuance to that grade Pay. It is, thus, evident that 1st financial
taking in to consideration of due date of third upgradtion would be admissible on completion of 10
financial upgradation as 2010, applicant years of regular service from the date of actual
allowed third financial upgradation in the grade joining of the post in the entry grade, 2nd financial
pay Rs. 4800 w.e.f. 10/07/2010with due upgradation on completion 20 years service from the
fixation of pay vide order dated 21/03/2011. date of initial appointment or 10 years from the date
Copy of order dated 29/12/2011 and of 1st financial upgradation/promotion, whichever
21/03/2011 are annexed herewith and marked is earlier and 3rd financial upgradation would be
as ANNEXURE- A/8 & A/9 respectivly. admissible on completion of 30 years service from
the date of initial appointment or 10 years from the
date of 2nd financial upgradation/promotion,
whichever is earlier, if the employee has not earned
three promotions in thirty years span of regular
service. Hence, the applicant was not entitled for 3rd
financial upgradation in Rs 4800 from 10.07.2010
respectively. The illustrations given in para 28 are for
the understanding of the above stipulated position
contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are
independent segments to be assessed independently
for the purpose of implementation of the Scheme. A
bare perusal of para 28(A) (ii)&(iii) itself
demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
4.(iv) That respondent No.3 vide letter dated The matter has further been examined in consultation
14/07/2014 directed the authorities to take with the DOP&T, the nodal department on MACPS,
action as per Railway Board clarification dated and it has been clarified by the nodal department also
21/02/2011 at annexure-A/7.Copy of letter that 3 rd MACP is to be given based on either 10
dated 14/07/2014 is annexed herewith and years from the 2nd MACP/promotion or 30 years of
marked as ANNEXURE- A/10. the overall service. In this connection Railway
Board’s I.D. note no. PC-V/2009/ACP/2/Pt. 3 dated
14.02.2013, DoPT’s I.D. note 35034/2013-Esst(D)
dated 10.09.2013 are placed as Annexure -----------
(CP-) & Annexure ----------- (CP- to ). With the
grant of 2nd financial upgradation/promotion, the
Grade Pay available to the employee changes and
he/she is no more in the same Grade Pay and,
therefore, can be considered for grant of 3rd financial
upgradation either on completion of 10 years
regular continuous service after grant of 2nd
financial up gradation/ promotion OR 30
years continuous regular service from the date of
joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier. This
positio7 has already been explained in Board's
letter dated 29.12.2011. Further, MACP Scheme has
been introduced with effect from 1-9-2008 and,
therefore, claim of any individual that he is eligible
for the MACP benefit prior to that date is illogical
and unreasonable.
4.(v) That the applicant allowed fixation and to draw This office letter HQ/NWR/JP/A/cs/Adm /MACPS
pay & allowances in the pay band Rs.9300- dated 14.05.2014 Annexure ------ (CP-2) has been
34800 with grade pay Rs.4600 & 4800,but issued in compliance to Railway Board’s instruction
respondents No.3 without extending any change issued vide letter PC-V/2009/ACP /6/NWR dated
of hearing issued order dated09/06/2015 by 16.12.2013. In this connection further instruction was
which benefits allowed in the grade pay issued vide letter Railway Board’s letter no. PC-
Rs.4600 & 4800 have been cancelled/withdrawn V/2009/ACP/2 dated 27.06.2014 Annexures -----
w.e.f. 01/09/2008 and 10/07/2010 and applicant (CP-53). Hence, with the grant of 2nd financial
only allowed grade pay Rs.4600 w.e.f. upgradation/promotion, the Grade Pay available to
05/12/2010 being third financial upgradation in the employee changes and he/she is no more in the
pursuances to Railway Board dated 21/02/2011 same Grade Pay and, therefore, can be
atAnnexure-A/7 and by this action recovery is considered for grant of 3rd financial upgradation
going to be effected .Copy of order dated either on completion of 10 years
09/06/2015 has already been annexed as regular continuous service after grant of 2nd
Annexure-A/1. financial up gradation/ promotion OR 30
years continuous regular service from the date of
joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier. This
position has already been explained in Board's
letter dated 29.12.2011. Further, MACP Scheme has
been introduced with effect from 1-9-2008 and,
therefore, claim of any individual that he is eligible
for the MACP benefit prior to that date is illogical
and unreasonable.
4.(vi) That the applicant after 1990 not allowed any Actions have been taken in compliance of Railway
promotion and allowed post of Stock Verifier as Board’s instructions as mentioned in Para4.5 above.
alternate promotion on option in the same scale
which is not countable towards the benefits of
the scheme and applicant rightly allowed grade
pay Rs.4600 on the basis of due date in the year
2000 and thereafter in 2010 and clarifications of
Railway Board against the scheme and in facts
cannot given effect respectively.So in view of
this position cancellation of benefits against
scheme and applicant rightly allowed benefits
due to stagnation for 20 years.
4.(vii) That similar controversy is pending before this There are no instructions in Board's letter dated
Hon’ble Tribunal in O.A. No.291/00521/2014 10.6.2009 providing for grant of 3rd financial
(Ashok Kumar Katta & others V/S Union of upgradation on completion of 20 years service from
India and others) in which this Hon’ble Tribunal the 1 st promotion overlooking the subsequent
stayed the recovery vide order dated 24/09/2014 development viz grant of 2nd financial
Copy of letter dated 24/09/2014 is annexed upgradation/promotions. Thus the contention of the
herewith and marked as ANNEXURE- A/11. applicant is not only misplaced but in contravention
of the policy instructions. As per clarification from
Railway Board vide letter no. PC-V/2009/ACP/2
dated 29.12.2011 the applicant have not completed of
30 years service from the date of initial appointment
or 10 years from the date of 2nd financial
upgradation w.e.f. 01.09.2009 . Hence, the applicant
was not entitled for 3rd financial upgradation in Rs
4800 from 2010, 2011, 2012 & 2013 respectively.
4.(viii) That MACP Scheme promulgated with the The applicant is not entitled for allowing 3rd as
object that employees those facing stagnation be explained in para 4.1 to 4.4 above. Further, All the
allowed benefits of the scheme and scheme is applicants are substantive employee of Railway and
similar to ACP Scheme and for allowing appointed as Junior Accounts Assistant 10/07/1987
upgradation 10,20 & 30 years of service is and thereafter became Accounts Assistant by
required and respondents without any base promotion in terms of Para (5) of IREM Vol. I as per
withdraw the benefits in the garb of clarification promotion orders issued vide Annexure 1 to 8. the
dated 21/02/2011 and 29/12/2011(Annexure-A7 applicant have never became Accounts Assistant in
& A/8) and the same is against the provision of the scale Rs 1200-2040 under restructuring as there
scheme .Beside this all employees granted were no instructions from Railway Board for
upgradation w.e.f.01/09/2008 i.e. effective date allowing restructure scale 1400-2600. Hence, the
of MACP Scheme and as per respondents as applicant have availed one promotion. Thereafter, the
clarified no employee is entitle for further applicant has not completed 24 years of service so
upgradation upto 10 years, taking into they are not entitled for benefits under ACP scheme.
consideration of upgradation allowed . In view
of this position applicant rightly allowed
benefits and the same cannot be withdrawn.
5. A Because the action of the respondents in The applicant can be considered for grant of 3rd
connection with cancellation of benefits under financial upgradation either on completion of 10
MACP Scheme is arbitrary, illegal and years regular continuous service after grant of 2nd
unjustified and such action of the respondents is financial up gradation/ promotion OR 30
liable to be quashed and set aside. years continuous regular service from the date of
joining of a post in the direct entry grade
on direct recruitment basis, whichever is earlier.
With the grant of 2nd financial upgradation/
promotion, 3rd financial upgradation under MACPs is
to be given only after the mandatory 10 years
residency from the 2nd MACP/Promotion. This
position has already been explained in Board's letter
dated 29.12.2011. Further, MACP Scheme has been
introduced with effect from 1-9-2008 and, therefore,
claim of any individual that he is eligible for the
MACP benefit prior to that date is illogical and
unreasonable.
5. D Because applicants allowed financial benefits of The applicant can be considered for grant of 3rd
upgradation as per scheme and as per orders financial upgradation either on completion of 10
passed by the respondents because applicants years regular continuous service after grant of 2nd
draw pay & allowances for more than 10 years financial up gradation/ promotion which is
in one grade and scheme also provide benefits. 01.09.2008 OR 30 years continuous regular service
Thus action of the respondents cannot be said from the date of joining of a post in the direct entry
just & proper and the same is liable to be grade on direct recruitment basis, whichever is
quashed and set aside. earlier. With the grant of 2nd financial upgradation/
promotion, 3rd financial upgradation under MACPs is
to be given only after the mandatory 10 years
residency from the 2nd MACP/Promotion. This
position has already been explained in Board's letter
dated 29.12.2011. Further, MACP Scheme has been
introduced with effect from 1-9-2008 and, therefore,
claim of any individual that he is eligible for the
MACP benefit prior to that date is illogical and
unreasonable.
5. E Because respondents without any base put the The applicant relates to erroneous grant of 3rd MACP
applicants in financial loss and snatch the without becoming due for the same as explained
benefits of financial upgradation inspite of fact above needs to be rectified.
that applicants is entitle for the benefits. Thus
action of respondents is against facts &
circumstances and same is liable to be quashed
and set aside.
5. F Because the applicant nowhere miss-represented The applicant had erroneously allowed 3rd MACPS
while granting benefits and cancellation also on completion of 20 years of service from the of 1st
without extending any chance of hearing and the promotion which needs to be rectified as explained in
same is against the principles of natural justice. Para 4(i) to 4(iv) above.
So order passed for cancellation with the
recovery cannot be given effect as held by
Hon’ble Supreme Court in the case of state of
Punjab and others etc. V/S Rafic Masih (White
Washer)etc. decided on 18/12/2014.Thus such
action of the respondent is liable to be quashed
and set aside.
5. G Because the respondents nowhere considered The applicant had erroneously allowed 3rd MACPS
matter of the applicant as per original scheme on completion of 20 years of service from the of 1st
and also no where extended any chance of promotion which needs to be rectified as explained in
hearing, which is not at all justified and against Para 4(i) to 4(iv) above.
the procedure. Thus such action of the
respondent is liable to be quashed and set aside.
5. H Because applicant allowed second MACP w.e.f. The applicant have to given 3rd financial upgradation
01/09/2008 i.e. about after 18 years of service as explained in Para (1) above. The case of the
and provisions of the scheme provides applicant relates to erroneous grant of 3rd MACP
upgradation after 10, 20 & 30 years and also on without becoming due and as such the same needs to
stagnation for 10 years and past services are to be rectified.
be counted. So applicant rightly allowed
benefits being stagnated for more than 20 years
within the service period. Thus action of
respondents against the aim & object of the
scheme and such action of respondents with the
clarifications is liable to be quashed and set
aside.
5. I Because the applicant allowed benefits after due Railway Administration has issued orders for
procedure and after recommendations of withdrawl of 3rd MACP by following due
screening committee and these procedure i.e. latest instructions was put up before
recommendations cannot be undone without screening committee and screening committee has
procedure and respondent No. 3 cannot recommended for withdrawal of benefits. This fact
cancelled the benefits being same authority and has been endorsed in cancellation orders.
also without reviewing the matters. Thus action
of respondent No. 3 is without competency and
against procedure and the same is liable to be
quashed and set aside with the Annexure- A/l.
5. J Because on the post of Stock Verifier being The applicant is substantive employee of Railway and
alternate promotion on option and the same appointed as Junior Accounts Assistant 10/07/1987
scale in which no benefits extended and the and thereafter became Accounts Assistant by
same cannot be counted as promotion. Thus promotion in terms of Para 171(5) of IREM Vol. I as
action of promotion against the facts & per promotion orders issued vide Annexures 1 to 8.
circumstances and also not justified and the The post in the grade of Account Assistant in scale of
same is liable to be quashed and set aside. Rs.1400-2600 is filled by promotion of Junior
Account Assistant in scale of Rs.1200-2040 after they
have completed 3 years service in the grade and
passed Appendix-II examination. This is statutory
position regarding appointment to Account Assistant's
grade which categorically stipulates that this is not
only promotion but also laid down the eligibility
criterion viz. 3 years service in JAA grade for the said
promotion. Further, on appointment to AA grade from
JAA grade the employees are also allowed benefit of
pay fixation under FR 22 C as admissible in case of
promotion to the post having higher duties and
responsibilities. They have never became Accounts
Assistant in the scale Rs 1200-2040 as there were no
instructions from Railway Board for allowing
restructure in scale 1400-2600 to the applicants.
Hence, the applicants have availed one promotion.
8. RELIEFS SOUGHT: -
In view of the facts and grounds mentioned in
para 4 and 5, above the applicants pray for the
following relief: -
8. (i) That the respondents may be directed to hold The applicant is not entitled for allowing 3rd as
good benefits of financial upgradation allowed explained in para 4.1 to 4.4 above and as such the
vide orders dated 25/03/2010, 21/03/2011 same needs to be rectified.
(Annexure- A/6 to A/9) by quashing order dated
09/06/2015 (Annexure- A/1) with the revised
pay fixation with all consequential benefits.
8. (ii) That para-8 of the scheme dated 10/06/2009 Vide Railway Board’s letter no. PC- V/2009/ACP/2
(Annexure- A/5) be declared ultra-virus against dated 29.12.2011, it is further clarified that para-1 of
the provisions treating promotion in the same Annexure to Board’s letter dated 10-06-2009 (RBE
grade pay with the clarification be quashed and No.101/2009), wherein it is mentioned that the
set aside, as the same against the provisions as MACP Scheme envisages three financial
well as aim & object of the MACP Scheme at upgradations counted from the direct entry grade on
Annexure- A/5 with all consequential benefits. completion of 10, 20 and 30 years of regular service
respectively. Financial upgradation under the scheme
is admissible wherever an employee spent 10 years
continuously in the same grade Pay. It is, thus,
evident that 1st financial upgradtion would be
admissible on completion of 10 years of regular
service from the date of actual joining of the post in
the entry grade, 2nd financial upgradation on
completion 20 years service from the date of initial
appointment or 10 years from the date of 1st
financial upgradation/promotion, whichever is earlier
and 3rd financial upgradation would be admissible
on completion of 30 years service from the date of
initial appointment or 10 years from the date of 2nd
financial upgradation/promotion, whichever is
earlier, if the employee has not earned three
promotions in thirty years span of regular service.
The illustrations given in para 28 are for the
understanding of the above stipulated position
contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are
independent segments to be assessed independently
for the purpose of implementation
of the Scheme. A bare perusal of para 28(A) (ii)&(iii)
itself demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
8. (iii) That the respondents be further not to recover The applicant has been granted 3rd MACP
any amount from the applicants in pursuance to erroneously without becoming due for the same
order dated 09/06/2015 (Annexure- A/1) and to which is needs to be rectified. Accordingly recovery
allow pay & allowances as drawn by the of excess amount paid, needs to be recovered.
applicants in the month of May 2015 with all
consequential benefits.
8. (iv) Any other order, direction or relief may be To be replied by Railway Advocate.
passed in favour of the applicants, which may
be deemed fit, just and proper under the facts
and circumstances of the case.
8. (v) That the costs of this application may be To be replied by Railway Advocate.
awarded .
Submitted for perusal and approval please so that the same may be sent to Railway Advocate to
prepare draft reply for Railway Board’s approval please.
Sr SO/Adm
AFA/Adm
Note
Sub:- O A No. 291/00391/2015 (CAT/JP) filed by Sh.Shiv Charan Lal MeenaV/s UOI & others.
Ref:-Sr SO Adm-3 note no. at NP-2 of file NWR/HQ/JP/A/cs/Adm-3/Court-Cases dated 17.07.2015.
***
1. In reference to above, Shri- Shiv Charan Lal Meena has filed O.A No. 291/00391/2015 (CAT/JP) V/s
UOI & others in MACPs policy matter and challenged order AHQ/S.O.O. No 06 dated 09.06.2015
regarding withdrawal of 3rd MACPs.
2. In compliance of note under reference, parawise remarks of this section are as under:-
Para Administrative Reply
Details of Application
PARTICULARS OF ORDERS AGAINST
WHICH THE PRESENT APPLICATION IS
MADE:
1. This application is made against order dated (i). The NW Railway’s order dated 09.06.2015
09/06/2015 issued by respondent No. 3 by (Annexure A/1) was issued in light of Railway
which benefits of Modified Assured Career Board’s clarification provided to NWR in terms of
Progression Scheme (MACPS) by way of Railway Board’s letter no. PC-V/2009/ACP/6 /NWR
Second & Third Financial Upgradation allowed dated 16.12.2013 (Annexure- ) in which Railway
to the applicants in grade pay Rs.4600 & 4800 Board has explained the correct interpretation of
w.e.f. 01/09/2008 & 10/07/2010 have been MACP scheme provisions regarding provision of 3rd
withdrawn and applicant allowed third financial upgradation. RB in its letter dated
Financial Up gradation in pay band Rs.4600 16.12.2013 (Annexure- ) advised that the NWR has
w.e.f. 05/12/2010without assigning any incorrectly allowed 3rd financial upgradation on
reasons. However,it has been come to notice completion of 20 years of service from first
that respondents counting promotion to the post promotion of the employees . In this context, RB
of Stock Verifier in the same scale allowed to further advised that 3rd financial upgradation under
the applicant in the year 2000 as per MACP scheme has been implemented w.e.f.
clarifications issued by respond No.2 inspite of 01.09.2008, it is absolutely erroneous to construe that
facts that applicant rightly allowed benefits of any employee is eligible for MACPS benefits prior to
second & third financial upgradation with due that date. In the light of RB’s instructions, the case
fixtion of pay & allowances. beside this was reviewed and 3rd financial upgradation extended
applicant granted second 7 third financial to applicants was cancelled.
upgradation, because he was stagnated for 20
years in same pay scale and further order of In this connection, it is submitted that MACPS was
recovery of excess payment also not justified as implemented by RB vide RB’s letter no. RBE
applicant allowed benefits as per orders of the 101/2009 dated 10.06.2009 (Annexure A/5). As per
Respondents.as regards recovery the same para 1of the annexure to this letter dated 10.06.2009,
cannot be affected from the applicant as held the scheme provides for three financial upgradation
by the Hon’ble Supreme Court in the case of under the MACPS counted from the direct entry
State of Punjab and others etc.V/S Rafiq Masih grade on the completion of 10, 20 and 30 years of
(White Washer) etc. decided on18/12/2014 service respectively. Financial upgradation under the
Copy of order dated 09/06/2015 is annexed Scheme will be admissible whenever a person has
herewith and marked as ANNEXURE A/1. spent 10 years continuously in same grade pay.
Evidently grant of 3rd financial upgradation under the
MACPS is admissible either on completion of 30
years of service from the date of joining of the post
in direct entry grade OR 10 years continuous regular
service from the previous i.e. second promotion/
upgradation . Unless any of these two conditions is
fulfilled, the employee cannot be granted financial
upgradation under MACP scheme.
SUBJECT IN BRIEF:
Arbitrary, illegal and unjustified action of
respondents in connection with cancellation of To be replied by Railway Advocate.
benefits of Second & third financial
upgradation under MACP Scheme and further
action also against the provisions of Article 14,
16 and 21 of the Constitution of India and
orders issued by Railway Board from time to
time.
2. JURISDICTION: - To be replied by Railway Advocate.
The applicants declare that the subject matter
of this Original Application is within the
jurisdiction of this Hon'ble Tribunal.
3. LIMITATION: -
The applicants declare that the applications of To be replied by Railway Advocate.
the humble applicants are within the limitation
period as prescribed in section 21 of the
Administrative Tribunals Act, 1985.
4. FACTS OF THE CASE: -
4.(i) That so for relevant to this application, the The applicant is substantive employee of Railway and
applicant is substantive employee of the appointed as Junior Accounts Assistant on 10/07/1987
respondent Railway and appointed as Junior and there after became Accounts Assistant by
Accounts Assistant on 10/07/1987 and promotion in terms of Para 171(5) of IREM Vol. I as
thereafter became Accounts Assistant in the (Annexure ---------- 0(placed at CP-14 to 15).as per
scale Rs. 1200- 2040 and on restructuring promotion orders issued vide Annexures 2 to 3. The
allowed scale Rs. 1400- 2600 and further post in the grade of Account Assistant in scale of
applicant allowed post of Stock verifier (SV) Rs.1400-2600 is filled by promotion of Junior
by way of alternate promotion on option in the Account Assistant in scale of Rs.1200-2040 after he
same scale Rs.5000-8000 by placing him on has completed 3 years service in the grade and passed
panel vide orders dated 07/11/2000,27/11/200 Appendix-II examination. This is statutory position
and 05/12/2000 and since than applicant regarding appointment to Account Assistant's grade
working on the post of Stock Verifier (SV) which categorically stipulates that this is not only
without any further promotion. So the promotion but also laid down the eligibility criterion
applicants remained in one pay scale since viz. 3 years service in JAA grade for the said
more than twenty years. Copies of orders dated promotion. Further, on appointment to AA grade from
07/11/2000, 27/11/2000 & 05/12/2000 are JAA grade, the employee is also allowed benefit of
annexed herewith and marked annexed as pay fixation under FR 22 C as admissible in case of
ANNEXURE-A/2,A/3 & A/4 respectively. It promotion to the post having higher duties and
is further submitted that in order dated responsibilities. He has never became Accounts
27/11/2000 at Annexure-A/3 it has been Assistant in the scale Rs 1200-2040 but became
mentioned that pay may be fixed as per extent Accounts Assistant in scale 1400-2600 on promotion
rules and the option may be obtained for as per promotion order issued vide Annexure ……..
fixation of pay, but respondents no. where Hence, the applicant has availed one promotion at the
obtained option and fix the pay of the applicant time of becoming Accounts Assistant from junior
in the same scale without any benefits by Accounts Assistant.
allowing due increments. So in view of this
position, applicants allowed to the post of Recently, Hon’ble CAT/Mdras Bench, Madras in its
Stock Verifier without any benefits and further order dated 11.03.2015 in case of OA No. 383/2013 &
pay of the applicant fixed in the pay band 384/2013 and Hon’ble CAT/Chandigarh in its order
Rs.9300-34800 with grade pay dated 13011.2014 in case of OA No. 1673/PB/2013
Rs.4200w.e.f.01/01/2006on the has decided cases similar to present OA. Both the
recommendations of sixth pay commission. Hon’ble CAT’s in their decisions have concluded that
there is no merit in respective OAs of the applicants
and the same was rejected.
4.(ii) That after recommendations of sixth pay Instructions regarding MACP scheme providing
commission, Government of India promulgated from financial upgradation has been issued vide
Modified Assured Career Progression Scheme Board’s letter no. PC-V/2009/ACP/2 dated
(MACPS) for the 10.06.2009 (RBE 101/2009). As per para ! of
Central Government Civilian Employees for Annexure to Board’s letter dated 10.06.2009, the
Placement in higher scale after completion of Scheme provides from three financial upgradations
10, 20 & 30 years of service and respondent under the MACPS, counted from the direct entry
department also adopted the same vide order grade on completion of 10, 20 and 30 years of
dated 10/06/2009 and taking into consideration service respectively. Financial up gradations under
of the scheme, respondents placed the the scheme will be admissible whenever a person has
applicants in grade pay Rs. 4600 showing spent 10 years continuously in the same Grade pay.
Second financial upgradation taking into Evidently grant of 3rd financial upgradation under the
consideration of ten years in one scale since MACP Scheme is admissible either on completion of
from 1990 to 2000, from the effective date of 30 years of service from the date of joining of the
the scheme i.e. 01/09/2008 vide order date post in direct entry grade OR 10 years continuous
25/03/2010 in which name of the applicant find regular service from the previous i.e. 2nd
place at S.No.4 in which also provision has promotion/upgradation. Unless any of these two
been made for fixation of pay from the date of conditions is fulfilled, the employee cannot be
upgradation or from the date of next increment granted financial upgradation under the MACP
for which respondents no where allowed Scheme. The 3rd MACP was erroneously granted by
benefits. Copies of orders dated 10/06/2009 & assuming notional second financial upgradation after
25/03/2010 are annexed herewith and marked first promotion which effectively lead to grant of
as ANNEXURE- A/5, A/6 respectively. It is second financial upgradation ever before the date of
submitted that respondent No.2 further clarified implementation of MACP Scheme i.e. before
vide letter dated 21/02/2011 that promotions 01.09.2008. This anomaly has been indicated in
earned in the post carrying same Grade pay in clarification given by RB in terms of RB’s letter
the promotional hieraechy as per Recruitment dated 16.12.2013 (Annexure A/ ) and hence,
Rules shall be counted for the purpose of thereafter, it was rectified by following proper
MACPS.Copy of letter dated 21/02/2011 is are procedure.
annexed herewith and marked as
ANNEXURE- A/7.
4.(iii) That MACP Scheme provides that any As per para 1 of the ennexure to this letter dated
employee remained in same grade pay for 10 10.06.2009 (Annexure R/1), the scheme provides for
years, he is entitle for upgradation as three financial upgradation under the MACPS,
mentioned in para 1 of the scheme at counted from the direct entry grade on the
ANNEXURE- A/5 which read as follow- completion of 10, 20 and 30 years of service
There shall be three financial upgradation respectively. Financial upgradation under the scheme
under the MACPS, counted from the direct will be admissible whenever a person has spent 10
entry grade on completion of 10,20,and 30 years continuously in the same grade pay. Evidently
years of service respectively.Financial grant of third financial upgradation under the MACP
upgradation under the Scheme will be scheme is admissible either on completion of 30
admissible whenever a person has spent years of service from the date of joining of the post
10years continuously in the same Grade pay. in direct entry grade OR 10 years continuous regular
service from the previous i. e. second
For which Railway Board also issued order promotion/upgradation. Unless any of these two
dated 29/12/2011 and in pursuance to that conditions is fulfilled, the employee cannot be
taking in to consideration of due date of third granted financial upgradation under the MACP
financial upgradation as 2010, applicant scheme.
allowed third financial upgradation in the grade
pay Rs. 4800 w.e.f. 10/07/2010with due The illustrations given in para 28 are for the
fixation of pay vide order dated 21/03/2011. understanding of the above stipulated position
Copy of order dated 29/12/2011 and contained in Board’s policy instructions dated
21/03/2011 are annexed herewith and marked 10.06.2009 and demonstrates that these are
as ANNEXURE- A/8 & A/9 respectivly. independent segments to be assessed independently
for the purpose of implementation of the Scheme. A
bare perusal of para 28(A) (ii) & (iii) itself
demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial upgradation/promotion
or on completion of 30 years of service from the date
of joining of a post in direct recruitment grade.
Viewing this step by step demonstration in a
cumulative manner and deciphering any meaning
which is in contravention of the instructions
contained in Board’s policy instructions dated
10.06.2009 (Annexure R/1) is erroneous and
therefore, not tenable. The Board’s instructions dated
16.12.2013 (Annexure A/ ) is not a new
instruction/clarification but merely reaffirmation of
the instructions already contained in para 28(A) (ii)
& (iii) as already explained hereinabove and as such
the applicants case is absolutely misplaced. In fact
the case of the applicant relates to erroneous grant of
3rd MACP without becoming due for the same and as
such needs to be rectified.
5. A Because the action of the respondents in RB in letter dated 16.12.2013 advised that
connection with cancellation of benefits under N.W.Railway has incorrectly allowed 3rd financial
MACP Scheme is arbitrary, illegal and upgradation on completion of 20 years of service
unjustified and such action of the respondents is from first promotion of the employee. In this context,
liable to be quashed and set aside. RB further advised that 3rd financial upgradation
under MACP scheme would be admissible either on
completion of 30 years of service from the date of
initial appointments or 10 years from the date of 2nd
financial upgradation/promotion whichever is earlier.
Further, RB stated that since the MACP scheme has
been implemented w. e. f. 01.09.2008. It is absolutely
erroneous to construe that any employee is eligible
for MACP benefits prior to that date. In the light of
RB’s instructions, the case was reviewed and 3rd
financial upgradation extended to applicant was
cancelled, as the applicant has neither completed 30
years of service from the date of joining of the post
in direct entry grade OR 10 years continuous regular
service from the previous i. e. 2nd upgradation w. e. f.
01.09.2008, therefore, the applicant was not entitled
for 3rd financial upgradation.
5. D Because applicants allowed financial benefits of The applicant can be considered for grant of 3rd
upgradation as per scheme and as per orders financial upgradation either on completion of 10
passed by the respondents because applicants years regular continuous service after grant of 2nd
draw pay & allowances for more than 10 years financial up gradation/ promotion which is
in one grade and scheme also provide benefits. 01.09.2008 OR 30 years continuous regular service
Thus action of the respondents cannot be said from the date of joining of a post in the direct entry
just & proper and the same is liable to be grade on direct recruitment basis, whichever is
quashed and set aside. earlier. With the grant of 2nd financial upgradation/
promotion, 3rd financial upgradation under MACPs is
to be given only after the mandatory 10 years
residency from the 2nd MACP/Promotion. This
position has already been explained in Board's letter
dated 29.12.2011. Further, MACP Scheme has been
introduced with effect from 1-9-2008 and, therefore,
claim of any individual that he is eligible for the
MACP benefit prior to that date is illogical and
unreasonable.
5. E Because respondents without any base put the The applicant relates to erroneous grant of 3rd MACP
applicants in financial loss and snatch the without becoming due for the same as explained
benefits of financial upgradation inspite of fact above needs to be rectified.
that applicants is entitle for the benefits. Thus
action of respondents is against facts &
circumstances and same is liable to be quashed
and set aside.
5. F Because the applicant nowhere miss-represented The applicant had erroneously allowed 3rd MACPS
while granting benefits and cancellation also on completion of 20 years of service from the of 1st
without extending any chance of hearing and the promotion which needs to be rectified as explained in
same is against the principles of natural justice. Para 4(i) to 4(iv) above.
So order passed for cancellation with the
recovery cannot be given effect as held by
Hon’ble Supreme Court in the case of state of
Punjab and others etc. V/S Rafic Masih (White
Washer) etc. decided on 18/12/2014.Thus such
action of the respondent is liable to be quashed
and set aside.
5. G Because the respondents nowhere considered The applicant had erroneously allowed 3rd MACPS
matter of the applicant as per original scheme on completion of 20 years of service from the of 1st
and also no where extended any chance of promotion which needs to be rectified as explained in
hearing, which is not at all justified and against Para 4(i) to 4(iv) above.
the procedure. Thus such action of the
respondent is liable to be quashed and set aside.
5. H Because applicant allowed second MACP w.e.f. The applicant have to given 3rd financial upgradation
01/09/2008 i.e. about after 18 years of service as explained in Para (1) above. The case of the
and provisions of the scheme provides applicant relates to erroneous grant of 3rd MACP
upgradation after 10, 20 & 30 years and also on without becoming due and as such the same needs to
stagnation for 10 years and past services are to be rectified.
be counted. So applicant rightly allowed
benefits being stagnated for more than 20 years
within the service period. Thus action of
respondents against the aim & object of the
scheme and such action of respondents with the
clarifications is liable to be quashed and set
aside.
5. I Because the applicant allowed benefits after due Railway Administration has issued orders for
procedure and after recommendations of withdrawl of 3rd MACP by following due
screening committee and these procedure i.e. latest instructions was put up before
recommendations cannot be undone without screening committee and screening committee has
procedure and respondent No. 3 cannot recommended for withdrawal of benefits. This fact
cancelled the benefits being same authority and has been endorsed in cancellation orders.
also without reviewing the matters. Thus action
of respondent No. 3 is without competency and
against procedure and the same is liable to be
quashed and set aside with the Annexure- A/l.
5. J Because on the post of Stock Verifier being The applicant is substantive employee of Railway and
alternate promotion on option and the same appointed as Junior Accounts Assistant 10/07/1987
scale in which no benefits extended and the and thereafter became Accounts Assistant by
same cannot be counted as promotion. Thus promotion in terms of Para 171(5) of IREM Vol. I as
action of promotion against the facts & per promotion orders issued vide Annexures 1 to 8.
circumstances and also not justified and the The post in the grade of Account Assistant in scale of
same is liable to be quashed and set aside. Rs.1400-2600 is filled by promotion of Junior
Account Assistant in scale of Rs.1200-2040 after they
have completed 3 years service in the grade and
passed Appendix-II examination. This is statutory
position regarding appointment to Account Assistant's
grade which categorically stipulates that this is not
only promotion but also laid down the eligibility
criterion viz. 3 years service in JAA grade for the said
promotion. Further, on appointment to AA grade from
JAA grade the employees are also allowed benefit of
pay fixation under FR 22 C as admissible in case of
promotion to the post having higher duties and
responsibilities. They have never became Accounts
Assistant in the scale Rs 1200-2040 as there were no
instructions from Railway Board for allowing
restructure in scale 1400-2600 to the applicants.
Hence, the applicants have availed one promotion.
8. RELIEFS SOUGHT: -
In view of the facts and grounds mentioned in
para 4 and 5, above the applicants pray for the
following relief: -
8. (i) That the respondents may be directed to hold The applicant is not entitled for allowing 3rd as
good benefits of financial upgradation allowed explained in para 4.1 to 4.4 above and as such the
vide orders dated 25/03/2010, 21/03/2011 same needs to be rectified.
(Annexure- A/6 & A/9) by quashing order dated
09/06/2015 (Annexure- A/1) with the revised
pay fixation with all consequential benefits.
8. (ii) That para-8 of the scheme dated 10/06/2009 Vide Railway Board’s letter no. PC- V/2009/ACP/2
(Annexure-A/5), be declared ultra-virus against dated 29.12.2011, it is further clarified that para-1 of
provisions treating promotion in the same grade Annexure to Board’s letter dated 10-06-2009 (RBE
pay with the clarification dated 21/02/2011 & No.101/2009), wherein it is mentioned that the
29/12/2011 (Annexure-A/7 & A/8) with the MACP Scheme envisages three financial
further clarifications be quashed and set aside, upgradations counted from the direct entry grade on
as the same against the provisions as well as aim completion of 10, 20 and 30 years of regular service
& object of the MACP Scheme at Annexure- respectively. Financial upgradation under the scheme
A/5 with all consequential benefits. is admissible wherever an employee spent 10 years
continuously in the same grade Pay. It is, thus,
evident that 1st financial upgradtion would be
admissible on completion of 10 years of regular
service from the date of actual joining of the post in
the entry grade, 2nd financial upgradation on
completion 20 years service from the date of initial
appointment or 10 years from the date of 1st
financial upgradation/promotion, whichever is earlier
and 3rd financial upgradation would be admissible
on completion of 30 years service from the date of
initial appointment or 10 years from the date of 2nd
financial upgradation/promotion, whichever is
earlier, if the employee has not earned three
promotions in thirty years span of regular service.
The illustrations given in para 28 are for the
understanding of the above stipulated position
contained in Board's policy instructions dated
10.6.2009 and demonstrates that these are
independent segments to be assessed independently
for the purpose of implementation
of the Scheme. A bare perusal of para 28(A) (ii)&(iii)
itself demonstrates that third financial upgradation is
admissible either on completion of further 10 years
service from second financial up
gradation/promotion or on completion of 30 years of
service from the date of joining of a post in direct
recruitment grade. Viewing this step by step
demonstration in a cumulative manner and
deciphering any meaning which is in contravention
of the instructions contained in Board's policy
instructions dated 10.6.2009 is erroneous and
therefore, not tenable. The Board's instructions dated
16-12-2013 is not a new instruction/clarification but
merely reaffirmation of the instructions already
contained in para 28(A) (ii) & (iii) as already
explained hereinabove and as such the applicants'
case is absolutely misplaced. In fact the case of the
applicant relates to erroneous grant of 3rd MACP
without becoming due for the same and as such
needs to be rectified.
8. (iii) That the respondents be further not to recover The applicant has been granted 3rd MACP
any amount from the applicants in pursuance to erroneously without becoming due for the same
order dated 09/06/2015 (Annexure- A/1) and to which is needs to be rectified. Accordingly recovery
allow pay & allowances as drawn by the of excess amount paid, needs to be recovered.
applicants in the month of May 2015 with all
consequential benefits.
8. (iv) Any other order, direction or relief may be To be replied by Railway Advocate.
passed in favour of the applicant, which may be
deemed fit, just and proper under the facts and
circumstances of the case.
8. (v) That the costs of this application may be To be replied by Railway Advocate.
awarded .
Submitted for perusal and approval please so that the same may be sent to Railway Advocate to
prepare draft reply for Railway Board’s approval please.
Sr SO/Adm
AFA/Adm
The applicant is substantive employee of Railway and appointed as Junior Accounts Assistant on
10.07.1987 and there after became Accounts Assistant by promotion in terms of para171(5) IREM
vol.I(Annexure R/2)(placed at CP- to ) as per promotion order issued vide Annexure R/3 to Annexure R/11
(placed a CP- to ). The post in the grade of Accounts Assistant in scale Rs. 1400-2600 is filled by
promotion of Junior Accounts Assistant in scale of Rs. 1200-2040 after he has completed 3 years service in the
grade and passed Appendix-II examination. This is statutory position regarding appointment to Accounts
Assistant grade which categorically stipulates that this is not only promotion but also laid down the eligibility
criterion viz. 3 years service in JAA grade for the said promotion. further, on appointment to AA grade from
JAA grade, the employee is also allowed benefit of pay fixation under Fr 22 C as admissible in case of
promotion to the post having higher duties and responsibilities. He has never became Accounts Assistant in the
scale Rs. 1200-2040 but became Accounts Assistant in scale Rs. 1400-2600 on promotion as per promotion
order issued vide Annexure R/3 to Annexure R/11. Hence, the applicant has availed on promotion at the time
of becoming Accounts Assistant from Junior Accounts Assistant.
The applicant was not allowed second financial upgradation under earlier ACP scheme because he had not
completed the required 24 years of service during ACP scheme & thus was not entitled for second financial
upgradation under earlier ACP scheme.
The applicant was not allowed second financial upgradation w.e.f. 01.09.2008 under MACP scheme.
Further, the applicant is not entitled for 3rd financial upgradation under MACP scheme as already explained in
detail in para 4(i) to 4(vii) above.
As the applicant has relied upon the order of Hon’ble CAT/Madras in the matter of V.Venkataraman (O.A.
No.-355/07), it is imperative to submit that the vital statutory and factual position which was crucial for
deciding that case was not placed before the Tribunal at the time of that case. These vital statutory and factual
position was subsequently submitted by the Railways in latest case of OA No. 383/2013 & 384/2013 in
Hon’ble CAT/Madras. The Hon’ble CAT/Madras while deciding these OAs has dismissed the plea of
applicant and has held in its order dated 11/03/2015 that promotion from held that the promotion that
promotion from JAA to AA cannot be ignored and this promotion is to be treated as a promotion to the
applicant. The relevant facts is reiterated as under:
a) That provisions regarding recruitment and promotion of Accounts staff is contained in para 171 of IREM
vol. 1 and as per para 171(5), the post in the grade of Accounts Assistant in scale Rs. 1400-2600 will be filled
by promotion of Junior Accounts Assistant in scale of Rs. 1200-2040 after he has completed 3 years service in
the grade and passed Appendix-II examination. This is statutory position regarding appointment to Accounts
Assistant grade which categorically stipulates that this is not only promotion but also laid down the eligibility
criterion viz. 3 years service in JAA grade for the said promotion. It also establishes that JAA’s post
constitutes as feeder for promotion to AA’s post. Further, on appointment to AA grade from JAA grade the
employee is also allowed benefit of pay fixation under FR 22 C as admissible in case of promotion to the post
having higher duties and responsibilities.
b) The Board’s instructions No. PC-IV/86-imp/30, dated 18-06-1987 and E(NG) 1- 86/PM-9/8, dated 27-08-
87, while providing for introduction of higher functional scale of Rs. 1400-2600 in Accounts Cadre to the
extent of 80% of post of Clerk Grade-1/Rs. 1200-2040 (including existing Sub-Heads) also laid down that
Staff in Grade Rs. 1200-2040 will be eligible for promotion to the higher grade after minimum 3 years service
in Rs. 1200-2040 provide he has passed Appendix-II A examination. In this regard, it is stated that Hon’ble
Supreme Court in the matter of P.R. Subramaniyam (SCC 1978 Vol.1 page 158) has held that the order issued
by the Railway Board for general application to Non-Gazetted Railway Servant is treated as rules, having force
of provision to Article 309 of the Constitution of India. Evidently, the aforementioned order dated 18-06-87
and 27-08-87 prescribing for introduction of higher functional grade and condition for promotion to that higher
functional grade carries statutory force.