MACP in pharmacist Cadre in ORDNANCE FACTORY BOARD:
“the Ministry of Defence consulted the DoP&T and the DoP&T vide letter dated 4.07.2012 issued clarification that the placement from GP 2800/- to GP 4200/- after two years of service in the entry grade in Pharmacist Cadre is required to be treated as financial upgradation under MACPS.”
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 2861/2013
MA 958/2014
New Delhi this the 24th day of February, 2015
Honble Mr. P.K. Basu, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
1. All India Defence PharmacistsAssociation
Having its Headquarters,
At 26/334, Dayal Park, West Sagarpur
New Delhi-110046
Through its General Secretary
Umar Farooque s/o Md. Allaudin
2. Lalit Kumar, Pharmacist
S/o Shri Pitam Singh
Qtr. No. 518, New Type-I
Ordnance Factory Estate
Muradnagar, Ghaziabad (UP) Applicants
(Through Sh. A.K. Trivedi with Sh.Ashok Kumar Vij, Advocates)
Versus
1. Union of India
Through its Secretary
Ministry of Defence
South Block, New Delhi
2. The Secretary,
Ministry of Personnel, Public Grievances & Pensions
DoP&T, North Block, New Delhi
3. The Secretary,
Ministry of Finance,
North Block, New Delhi
4. The Secretary,
Ministry of Health & Family Welfare,
NirmanBhawan, New Delhi
5. The Chairman
Ordnance Factory Board,
10-A, S.K. Bose Road
Kolkata-700001 Respondents
(Through Shri Manjeet Singh Reen, Advocate)
ORDER
Mr. P.K. Basu, Member (A)
The first applicant is All India Defence Pharmacists Association having its headquarters at New Delhi and the second applicant Shri Lalit Kumar is posted as Pharmacist at Muradnagar, Ghaziabad (UP). It is stated by the applicants that they are Pharmacists in the Defence Organization in various units and most of the units of Ordnance Factories granted the first Modified Assured Career Progression (MACP) upgradation in Grade Pay of Rs.4600/-, second MACP upgradation in Grade Pay of Rs.4800/- and third MACP upgradation in Grade Pay of Rs.5400/-. It is stated that the applicants are aggrieved by the action of the respondents by which the respondents are withdrawing the MACP granted and recoveries are being affected.
2. The Pharmacists (entry Grade) in the erstwhile pay scale of Rs.4500-7000 were granted Grade Pay of Rs.2800/- in Pay Band I. The posts of Pharmacists Grade II (pre-revised Rs.5000-8000) and Pharmacists Grade I (pre-revised Rs.5500-9000), were merged and such re-designated Pharmacists [Non Functional Grade (NFG)] were granted the Grade Pay of Rs.4200 (Pay Band 2) and Pharmacists (Entry Grade), after two years of service in the Grade Pay of Rs.2800/-, were granted PB-2 with Grade Pay Rs.4200/- as NFG. The applicants claim that grant of NFG to the Pharmacists should not be treated as first upgradation under MACP and, therefore, the original order of first MACP upgradation of Rs.4600/-, second MACP upgradation of 4800/- and third MACP upgradation of Rs.5400/- was correct. The respondents case is that the grant of NFG pay grade would be counted as a promotion and treated as first upgradation, therefore, second upgradation will be in the pay scale of Rs.4600/- and third upgradation in the scale of Rs.4800/- as per clarification received from Department of Personnel and Training (DoP&T) OM dated 4.07.2012 addressed to Ministry of Defence.
3. The applicants referred to letter dated 29.04.2011 issued by the office of the CGDA in which the following clarification had been given:
Clarification:
(i) The placement of Pharmacist (entry grade) to Pharmacist (non functional Grade) should not be taken into consideration for the purpose of MACP, as it is not promotion but merely placement by changing the grade pay and no promotional benefits are admissible.
(ii) The date of appointment to the Pharmacist (Entry Grade) should be taken into account for the purpose of MACP as his regular service starts with the appointment as Pharmacist (entry grade).
4. Our attention was also drawn to OM dated 2.06.2010 issued by the Department of Expenditure, Ministry of Finance, in which the following clarification had been made:
Reference is invited to this Departments Office Memorandum No.1/1/2008-IC dated 18th November, 2009 on the above subject. As per para 2 of this OM, Pharmacist Grade-II and I will be merged and designated as Pharmacist (non-functional grade) in PB 2 with grade pay of Rs.4200/- and the grade will be granted to Pharmacist (entry grade) on non-functional basis after 2 years of service in the grade pay of Rs.2800/-. In view of this, the word `promotionin the second sentence of para3 of the OM may be read as `placement. Such placement will, however, be subject to vigilance clearance.
5. Therefore, it is claimed by the applicant that upgradation of Pharmacist from entry grade to non-functional grade should not be treated as promotion for the purpose of MACP. OM dated 18.11.2009 related to new pay structure approved for Pharmacists in which the following had been mentioned in para 3:
3. Consequent upon the implementation of the above pay structure, promotion from Pharmacist (Entry Grade) to the next higher grade of Pharmacist (Non Functional Grade) having grade pay of Rs.4200 will be delinked from vacancies and will become non-functional and time-bound. In the case of Organizations like the Ordnance Factory Board, where all the Pharmacists posts are presently in the grade pay of Rs.2800 in the pay band PB-1, the implementation of the above pay structure will result in the introduction of the new Non-functional Grade having grade pay of Rs.4200 in the pay band PB-2.
It is, therefore, claimed that non-functional grade should not be treated as promotion.
6. The learned counsel for the applicants also referred to the order of this Tribunal in OA 3441/2012, All India CGHS Employees Association Vs. Union of India and others and vide order dated 31.01.2014, the Tribunal held as follows:
21. In view of the aforesaid, we do not agree with the contention of the respondents in their counter reply to the effect that the implementation of the recommendations of the FTC for Pharmacists for upgradation of grade pay of Rs.4200/- from Rs.2800/- on completion of two years of service should be treated as 1st financial upgradation under MACP Scheme. When it has been specifically clarified that word promotion is replaced by the word placement, it cannot be held that the grant of grade pay of Rs.4200/- on non-functional and time-bound basis be treated as a financial upgradation under MACP.
Learned counsel for the applicant also referred to the order of Chandigarh Bench of the Tribunal in OA 760/PB/2012, Ramesh Chander Sehgal and others Vs. Union of India and others, in which in a similar matter, the Chandigarh Bench passed a similar order relying on order in OA 3441/2012. It is, therefore, argued that in view of above quoted orders of this Tribunal, the applicants should also be granted upgraded Grade Pay of Rs.4600/-, Rs.4800/- and Rs.5400/- without treating the placement in NFG as a promotion.
7. The applicants further drew our attention to OM dated 18.07.2011 issued by the DoP&T in which clarification no.35 was as follows:
Where all the posts are placed in a higher scale of pay, with or without a change in the designation, without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rules for the existing post, and without involving any change in responsibilities and duties, then placement of all the incumbents against such upgraded posts is not to be treated as promotion/ upgradation.
8. Learned counsel for the respondents raised a preliminary objection that since the second respondent is posted in Muradnagar, U.P. and most of the members of the first respondent are posted outside Delhi, the Tribunal does not have jurisdiction to hear this matter. It was further stated that in a similar case, the applicants had filed a transfer petition, which was allowed by the Tribunal and the matter thereafter was heard and decided by a Bench of this Tribunal. The learned counsel for the applicants, on the other hand, states that it affects all Pharmacists and since applicant no.1 represents all the Pharmacists with its headquarters at New Delhi, this Tribunal has jurisdiction to hear this matter. We agree with the contention of the learned counsel for the applicants and dismiss this preliminary objection.
9. The second preliminary objection raised is that the impugned order dated 4.07.2012 is an internal correspondence within the government and not communicated to the association or applicant no.2 and, therefore, this cannot be challenged. The learned counsel for the applicants, per contra, stated that the applicants have received these orders under Right to Information and since these are detrimental to their interests, they have taken up this matter.
10. The learned counsel for the respondents stated that MACP guidelines dated 19.05.2009 clearly state that any interpretation/ clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by DoP&T. The Department of Expenditure, Ministry of Finance, therefore, issued another OM dated 31.03.2011 in consultation with the DoP&T , which is now prevailing, clarifying that all financial upgradation under NFG is to be treated as upgradation under MACP. Our attention was also drawn in this regard to letter dated 19.07.2012 issued by the Department of Defence Production, which conveyed the advice of Establishment Wing to Ordnance Factory Board. The advice was as follows:
The matter was examined in consultation with M/o Finance, Department of Expenditure, who has clarified as per their ibid U.O. dated 31.3.2011 that all financial up-gradations under NFG would be treated as up-gradations under MACPS. The ibid U.O. is very clear and accordingly, the placement from GP 2800/- to GP 4200/- after two years of service in the entry grade in Pharmacist Cadre is required to be treated as financial upgradation under MACPS. Moreover, in this context, OM No.35034/10/2010-Estt.(D) dated 4.7.2012 (copy enclosed) has been received from DOP&T wherein they have indicated the above fact in para 2 of ibid OM and has requested MOD to confirm whether it has been granted financial upgradations under MACPS to Pharmacists in the GPs of 4600/- (1st MACP), 4800/- (2nd MACP) and Rs.5400/- (3rd MACP).
Thereafter, the Ministry of Defence vide letter dated 19.07.2013 issued following clarification to the Senior General Managers/ General Managers:
In accordance with the provisions of the Modified Assured Career Progression Scheme (MACPS), every financial upgradation including non-functional grades are to be treated as an offset against one financial upgradation under the Scheme. Accordingly, Non Functional Grade granted to Pharmacists (entry grade with GP Rs.2800/-) to the next GP of Rs.4200/- in PB-2 on completion of 02 years of service in the GP of Rs.2800/- in PB-1 has to be treated as 1st MACP.
11. It was argued that clarification dated 19.07.2013 issued by the Ministry of Defence in consultation with the DoP&T was not considered by the Tribunal in its order earlier order in OA 3441/2012 and thus the order of this Tribunal is per incuriam.
12. In our view, it is not material whether order dated 4.07.2012 has been communicated or not. It is an OM issued by the DoP&T, which adversely affects the interests of the applicants and, therefore, they have challenged this particular order. Section 19 (1) of the Administrative Tribunals Act, 1985 provides that a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance and the word `orderhas been explained as follows:
Explanation For the purposes of this sub-section, order means an order made
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation [or society] referred to in clause (a).
Therefore, this preliminary objection of the respondents is not sustained. Since the applicants association is based in Delhi, this Tribunal does have jurisdiction to hear this matter.
13. The learned counsel for the respondents also cited order of the Principal Bench of this Tribunal in OA 3732/2012, Karamvir and others Vs. Union of India and others, which was a similar matter with the prayer not to treat their placement as Highly Skilled Workers in the Grade Pay of Rs.2800/- as promotion for the purpose of ACP/MACP and the Tribunal, in view of conflicting views of the two Coordinate Benches, referred the matter to a Larger/ Full Bench. The learned counsel stated that the present matter may also be referred to a Larger Bench.
14. We have heard learned counsel for the parties, gone through the records of the case and the judgments cited.
15. First of all, we do not agree with the learned counsel for the respondents that because OA 3732/2012 has been referred to a Larger Bench this matter should also be referred to the Larger Bench, as the facts of both the cases are completely different. In this case, we are dealing with the post of Pharmacist. In the judgment in OA 3441/2012, somehow the existence of Ministry of Defence/ DoP&Tclarification dated 19.07.2013 was not brought to the notice of the Tribunal, which is being brought to our notice now and similar was the position with OA 760/PB/2012 decided by the Chandigarh Bench of the Tribunal. The authority to issue any clarification under MACP guidelines is the DoP&T and what the Ministry of Defence does internally is not relevant and, therefore, the order dated 29.04.2011 issued by the office of the CGDA will not be considered. Moreover, just because the word `promotionhas been replaced by the word `placement, does not logically mean that the NFG will not be treated as first upgradation under the MACP. In fact, that is why, the Ministry of Defence consulted the DoP&T and the DoP&T vide letter dated 4.07.2012 issued clarification that the placement from GP 2800/- to GP 4200/- after two years of service in the entry grade in Pharmacist Cadre is required to be treated as financial upgradation under MACPS. The clarification issued by the Ministry of Defence in consultation with the DoP&T is final. In our view, in light of these additional documents, there is no need to refer the matter to a Full Bench.
16. The respondents have acted as per rules prevailing and, therefore, the OA is found to be devoid of merit. It is, therefore, dismissed. No costs.
( Raj Vir Sharma )
Member (J)
( P.K. Basu )
Member (A)
COMMENTS