CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No.

805/2013 Friday, this

the 6th day of January, 2017 CORAM: HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Surendran C., S/o.P.Bhaskaran Nambiar,
Retired Loco Pilot (Shunting) Grade II, Mangalapuram. Residing at Devi Nivas, Chodathil House, Chalad - 670
014.. . . Applicant (By Advocate Mr.U.Balagangadharan) Versus
1. Union of India represented by General Manager, Southern Railway, Park Town, Chennai - 600 003.
2. The Senior Divisional Personnel Officer, Palakkad Division, Southern Railway, Palakkad - 678 001.
3. The Divisional Railway Manager, Southern Railway, Palakkad Division, Palakkad - 678 001. . . .
Respondents (By Advocate Mrs.K.Girija) This application having been heard on 15 th December 2016, the
Tribunal on 6th January 2017 delivered the following : ORDER HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE
MEMBER Applicant is aggrieved by the cancellation of 3rd financial upgradation granted to him without
assigning any expressed reason. Applicant commenced his service as Khalasi in the year 1977 and was
promoted as Diesel Assistant in the pe-revised scale of pay Rs.950-1500 (Rs.3050-4590) on 14.10.1991.
Thereafter he was promoted as Senior Diesel Assistant on 26.2.2000 in the scale of pay Rs.4000-6000. He
was again promoted as Loco Pilot (Shunting) on 26.2.2002, however, without any change in the scale of pay.
2. On the introduction of Sixth Pay Commission recommendation he was brought to PB-1 Rs.5200-20200 with
the Grade Pay of Rs.2400/-. As per Annexure A-2 he was granted 3 rd financial upgradation under MACPS with
effect from 1.9.2008. However, vide Annexure A-6 the 3 rd financial upgradation under MACPS was cancelled
and excess amount drawn was recovered. Applicant submits that the posts of Diesel Assistant and Senior
Diesel Assistant carried different pay scales in the pre-revised regime. He is given the 3rd promotion as LP
Shunter. However, the post of LP Shunter and the post of Senior Diesel Assistant carried same scale of pay
prior to VI CPC revision. In the VI CPC revision, the post of Senior Diesel Assistant and LP Shunting were
merged and brought in one Pay Band ie. Rs.5200- 20200/-. Therefore, he is entitled for 3 rd financial
upgradation as granted in Annexure A-2 in view of clause 5 of Annexure A-1 MACPS which makes a provision
to ignore promotions earned earlier in the post which are merged in the VI CPC recommendations. Applicant
argues that the MACP scheme at Annexure A-1 provides under clause 8 that promotions earned in the posts
carrying same Grade Pay in the promotion hierarchy as per Recruitment Rules shall be counted for the
purpose of MACPS. The said clause does not come into play in this case as it intends to cover the cases of
promotions made after the VI CPC recommendations. The use of words 'same grade pay' pre-supposes
essentially the post after the VI CPC for the obvious reason that there was no system of Grade Pay prior to VI
CPC. Applicant argues that clause 8 is inconsistent with the concept of assured career progression. Annexure
A-1 Scheme is a modified version of ACP Scheme introduced in the year 1989. It is specifically provided
therein that the scheme is intended to avoid the stagnation of an incumbent in a particular scale of pay for a
specified period in the absence of regular promotion. It is a safety net. MACPS being a continuation of the ACP
Scheme of 1989 the objects and fundamentals of the Scheme cannot be said to waived with introduction of
MACPS. The impugned clause 8 says that promotions earned in the post carrying same grade pay in the
promotion hierarchy shall be counted for the purpose of MACPS. This leads to a situation where an incumbent
will be required to be in the same pay band/scale of pay or grade pay for more than the stipulated intervals
specified in the preamble of the scheme in other words allowing the incumbent to stagnate in a scale of
pay/grade pay for more than the stipulated intervals and obviates the object of the scheme which forbids
stagnation of an incumbent in a scale of pay for more than 10 years. Therefore, clause 8 is challenged. The
reliefs sought by applicant is to declare that clause 8 of Annexure A-1 is uncontainable and repugnant and
inconsistent with the very object of MACP Scheme and direct the 2 nd respondent to refund Rs.94257/-
recovered from his terminal benefits and refix the pay notionally and fix pension taking into account the
financial upgradation granted to him as per Annexure A-2 and disburse the consequential arrears of pension.
3. Respondent argues that the O.A has been filed by the applicant as an experimental measure. Financial
upgradation benefits to grade Pay Rs.2800/- under MACP Scheme through Annexure A2 order was granted to
the applicant by an inadvertent error, for which he was not eligible as per prevailing instructions. Hence the
same was rectified by issuing Annexure A-6 corrective order after giving a due show cause notice to the
applicant. This Tribunal has already accepted the downward revision of Grade Pay granted to the running staff
under MACP Scheme by order dated 30.8.2013 in OA No.604/2013. In Para 7 of the order dated 25.7.2013 in
OA No.100/2012 this Tribunal has held that the respondents have every right to correct a mistake.
4. The Modified Assured Career Progression Scheme has been implemented by the Central Government on
the recommendation of the VIth Central Pay Commission's recommendations and it is to be viewed as a safety
net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of
adequate promotional avenues. The said scheme merely envisages three financial upgradations counted from
the direct entry grade on completion of 10, 20 and 30 years of service respectively. Financial upgradation is
admissible whenever a person has actually spent 10 years continuously in the same grade without any
promotion. It is submitted that the grant of financial upgradation under MACP scheme is regulated as per the
terms and conditions contained in Annexure A-1 Railway Board's policy instructions dated 10.6.2009. Board's
said letter comprises a set of inter related instructions and has to be read and interpreted in totality for the grant
of financial upgradation under the scheme. Para 8 of Annexure to the said letter states that promotions earned
in the post carrying same Grade Pay in the promotional hierarchy as per Recruitment Rules shall be counted
for the purpose of MACP.
5. The instructions regarding grant of financial upgradation under the Scheme in respect of an employee in
feeder grade of a cadre/ category where promotional post also happens to be in same Grade Pay, has been
issued vide Railway Board's clarificatory letter dated 13.12.2012. Reasoning of this instruction lies in the fact
that the ACP/MACP Scheme has been introduced to mitigate the stagnation and hardship faced by the
employees due to lack of adequate promotional avenue and therefore logically the benefit allowed under the
ACP/MACP Scheme cannot be more than what would accrue to employee on normal promotion. The letter
dated 13.12.2012 further clarifies that the matter of what Grade Pay would be admissible under MACP Scheme
to an employee holding feeder post in a cadre where promotional post is in the same Grade Pay, has been
examined in consultation with Department of Personnel & Training (in short DOP&T) which is the nodal
department of the Government on MACP scheme and thereafter only it was decided that financial upgradation
under ACP/MACP Schemes cannot be to higher Grade Pay than what can be allowed to an employee on his
normal promotion. In such cases financial upgradation under MACP Scheme would be granted to the same
Grade Pay. A copy of letter dated 13.12.2012 is produced herewith and marked as Annexure-R1.
6. It has been held by the Hon'ble Apex Court in the State of Rajasthan vs. Fateh Chand Soni {1996 (1) SCC
562} that : 'in service law the expression 'promotion has been understood in the wider sense and it has been
held that promotion can be either to a higher pay scale or to a higher post' which has been reiterated in CA No.
6934-6946 of 2005 UOI Vs. Pushpa Rani & others (2008 9 SCC 242).'
7. It has been held by the Hon'ble Supreme Court in a similar case of UOI Vs. Pushpa Rani & others {2008 (9)
SCC 242} that : 'Creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing
the source/mode of recruitment and qualifications, criteria of selection. Evaluation of service records of the
employees fall within the exclusive domain of the employer. What steps should be taken for improving eff: iency
of the administration is also the preserve of the employer. The power of judicial review can be exercised in such
matters only if it is shown that action of the employer is contrary to any constitutional or statutory provision or is
patently arbitrary or is vitiated due to malafides. The Court cannot sit in appeal over the judgment of the
employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court
has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not
open the Court to make comparative evaluation of the merit of the candidates. The court cannot suggest the
manner in which the employer should structure or restructure the cadres for the purpose of improving the
efficiency of administration.'
8. Hence respondent holds that the Railway Board is fully competent to issue clause 8 to Annexure A-1 orders
and it has statutory force. The applicant belongs to running staff category of Loco Pilot (Shunting Grade II). As
per para 137 (1) of Indian Railway Establishment Manuel, Volume I, the lowest post in the running category is
Diesel Assistant/Electric Assistant which is redesignated as Assistant LocoPilot and 50% of the posts in the
said category is being filled up from among the volunteers of Diesel/Electric Fitters of
Diesel/Electric LocoSheds with three years service etc. and the remaining 50% by Direct recruitment. Para 137
(3) specifies that Diesel/Electric Assistants have avenue of promotion to the posts of Shunters/Engine Turners,
Goods Drivers and so on as per procedure in force for filling up posts in these categories. As per Para 140 of
IREM (Vol-I) the channel of promotion available to Goods Drivers in running staff category is Loco Pilot
(Passenger), Loco Pilot (Mail). All the three promotional posts of LocoPilot (Goods), Loco Pilot (Passenger)
& Loco Pilot (Mail) are in Pay Band-2 Rs.9300-34800 with Grade Pay Rs.4200/-. After implementation of the
VIth CPC pay scales carry the same pay band-2 and Grade Pay i.e. Rs.4200/-, 3% increase in pay with special
allowance of Rs.500/- + D.A per month in the case of Loco Pilot (Passenger) and Rs.1000/- + D.A. per month in
the case of Loco Pilot (Mail).
9. The applicant was engaged as a casual labourer with effect from 8.7.1976 and granted the benefit of
temporary status with effect from 8.1.1977. Subsequently he was absorbed in the permanent post of Khalasi in
scale Rs.196-232 (Rs.750-940 in IV PC) with effect from 8.1.1979. Thereafter, he was promoted as Diesel
Assistant in Scale Rs.3050-4590 with effect from 14.10.1991 (1st promotion). While working as Diesel Assistant
he was promoted as Senior Diesel Assistant in scale Rs.4000-6000 with effect from 20.7.1998 (2nd promotion)
and thereafter as Shunter in scale Rs.4000-6000 with effect from 25.7.2000 (3 rd promotion). As such he has
already earned three promotions. He finally retired as Loco Pilot (Shunting- Grade II) with effect from
30.6.2013. Thus the applicant after having entered into the Railway Service as Khalasi in Grade pay Rs.1800/-,
had enjoyed three promotions, viz. (i) Diesel Assistant (Grade Pay Rs.1900/-),
(ii) Senior Diesel Assistant (Grade Pay Rs.2400/-), (iii) Shunter (Grade Pay Rs.2400/-).
10. Respondent argues that the post of Senior Diesel Assistant/Senior Assistant Loco Pilot and
Shunter/Loco Pilot (Shunting Grade-II) carries the same Grade Pay Rs.2400/-, and no pay fixation is
admissible on such promotion. As per Para 8 of Annexure-A1 (5) MACP OM, promotions earned in the post
carrying same Grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the
purpose of MACPS. Since the Grade Pay of the post of Loco Pilot (Shunting Grade -II) is Rs. 2400/-, which is
the promotional post for running cadre, as far as the applicant was concerned he was not entitled for Grade
Pay Rs.2800/- as claimed. However, due to a misinterpretation of rules, the applicant was granted financial
upgradation in GP Rs.2800/- vide Annexure A-2 order dated 7.7.2010. The Chief Personnel Officer,
Southern Railway, Chennai by letter dated 23.11.2010 had advised to review such cases since some Divisions
had implemented the MACP Scheme disregarding the provisions in Para 8 of Annexure-A1 that promotions
earned in the post carrying same Grade Pay in the promotional hierarchy as per Recruitment Rules shall be
counted for the purpose of MACP. The applicant was issued with show cause notice dated 22.5.2013
(Annexure A-3) showing the erroneous fixation of pay leading to grant of the financial upgradation benefits to
Grade Pay Rs.2800/-. The respondents were left with no alternate but to rectify the mistake.
11. The Bench notes that after the promotion of Shunter/Loco Pilot (Shunting Grade II), the turn of the applicant
for further promotion as Loco Pilot (Goods) in Pay Band-2 with Grade Pay Rs.4200/- had also arisen. When the
applicant was nominated for attending the promotional course training {LM 16 training for promotion as Goods
Driver/Loco Pilot (Goods)}, the applicant expressed his unwillingness for undergoing the training by Annexure
R-3 letter dated 27.9.2012. So applicant's case is not one of stagnation or lack of promotion. It is a case where
the promotion offered was refused. The Bench notes that the grant of financial upgradation benefits
under MACP Scheme is a policy decision of the Central Government as also the provision under clause 8
which specifies that promotions earned in the posts carrying the same Grade pay in the promotional hierarchy
as per Recruitment Rules shall be counted for the purpose of MACP Scheme. The Hon'ble Supreme Court in
the case of S.P.Shiv Prasad Pipal vs. Union of India & Ors. 1998 (3) SLJ 108 (SC) - JT 1998 (3) SC 216 has
held that : '15. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried
the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any
prejudice to the members of any of the cadres. The total number of posts were also increased proportionately
when the merger took place so that the percentage of posts available on promotion was not in any manner
adversely affected by the merger of the cadres. XXXXXXXXXXXXX
19. However, it is possible that by reason of such a merger, the chance of promotion of some of the employees
may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting
aside the merger which is essentially a policy decision. This court in Union of India Vs. S.L.Dutta JT 1990 (4)
SC 741 (supra) examined this contention. In S.L. Dutta's case (supra) a change in the promotional policy was
challenged on the ground that as a result, service conditions of the respondent were adversely affected since
his chance of promotion were reduced. Relying upon the decision in the State of Maharashtra Vs. Chandrakant
Anant Kulkarni 1982 (1) SCR 665 (supra) this court held that a mere chance of promotion was not a condition
of service and the fact that there was a reduction in the chance of promotion would not amount to a change in
the conditions of service.' In P.U.Joshi and others Vs. The Accountant General, Ahmedabad and others AIR -
2003 SC 2156 - (2002) 2 SCC 632 the Hon'ble Supreme Court has held that : 'Employee has no right to
question relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition,
prescription of qualifications and other conditions of service including avenues of promotions pertain to the field
of policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or
restrictions envisaged in the Constitution of India. A Government Servant has no right to challenge the authority
of the State to amend, alter and bring into force new rules relating to even an existing service.' Respondents
also cite the following judgments in support of the above rule positions :
(i) Balco Employees Union (Regd.) Vs. UOI, 2002 (2) SCC 333
(ii) Narmada Bachao Andolan Vs. UOI, 2000 (10) SCC 664
(iii) Mallikarjuna Rao Vs. State of Andhra Pradesh, 1990 (2) SCC 707
(iv) Judgment dated 7.3.2006 in OA No.1861/2004 passed by the Principal Bench, Central Administrative
Tribunal, New Delhi in the case of V.K.Saxena Vs. UOI & ors.
(v) Sumangala Nagrath Vs. Union of India & Ors. (SCC 1999 [L&S] 1318).
12. The applicant had already enjoyed three promotions. The applicant even though offered further promotion
as Goods Driver/Loco Pilot (Goods) in Pay Band-2 with Grade Pay Rs.4200/-, had declined to attend the
promotional course when nominated. As such the promotional chances of the applicant has not been stagnated
due to lack of opportunities, but on his own volition. Having refused promotion applicant cannot seek financial
upgradation benefits under the MACPScheme. The pay scales of Rs.3050-4590, Rs.4000-6000 and Rs.4500-
7000 were allotted with Pay Band 1 Rs.5200-20200 but with different ascending Grade Pay Rs.1900/-,
Rs.2400/- and Rs.2800/- respectively. The post of Senior Assistant Loco Pilot and Loco Pilot (Shunting-Grade
II) carried the same pay scale of Rs.4000-6000 in the earlier Vth Pay Commission pay scales and continued so
in VIth PC in Pay Band-1 with Grade pay Rs.2400/-. There is no merger of posts of Senior Diesel Assistant
and Loco Pilot (Shunting Grade-II) and both continue to carry the same pay scales and Grade Pay in the V and
VI CPC. Hence we do not agree with the contention of the applicant to read this as a merger of posts. This is
an instance of two posts carrying the same pay scale. Where a promotional avenue is provided applicant
cannot refuse and seek to replace it with MACP benefits.
13. Applicant has furnished an illustration under Para 5 of Annexure A-1 (3/4) regarding the cases of
appointment of candidates made in scale Rs.5000-8000 and promoted to scale Rs.5500-9000/6500-10500 and
the said pay scales stands merged in the VIth PC. The case of the applicant is not covered by these
instructions. In the case of the applicant he has not been recruited in scale Rs.5000-8000 or promoted to scale
Rs.5500-9000 and Rs.6500-10500 which stands merged with effect from 1.1.2006. Para 8 of MACP OM is
applicable to the case of the applicant. Respondent brings to notice that applicant was not isolated and as per
Annexure R-2 letter more than 92 cases were reviewed, wherein para 8 of MACP OM had been overlooked.
However, the case of the applicant went unnoticed. When the Service Register of the applicant was reviewed
for updating of entries due to retirement on 30.6.2013, the case came to light and hence he was issued with a
show cause notice for rectification of the error and after considering the representations the corrective orders at
Annexure A-6 was issued. Further this Tribunal in the penultimate para of order dated 22.11.2011 in
O.A.No.973/2011 has held that : 'If the respondents have a case that the applicants salary paid is higher and
that any reduction is justified, let them issue notice to the applicants and then pass an order. This is the proper
way to do in the case the applicants are not entitled for the salary they are drawing now.....'
14. Respondent has followed the dictum laid down by the Tribunal. The post of Senior Diesel Assistant
and Loco Pilot (Shunting Grade-II) carries the same Pay Band-1 with same Grade Pay Rs.2800/- both these
posts are distinct posts. The latter post is a promotional post for the former post. The respondents bring to our
notice that following posts exist in the running cadre after the implementation of VIth Pay Commission :
Assistant Loco Pilot Pay Band 1 Rs.5200-20200 with Grade Pay Rs.1900/- Senior Assistant Loco Pilot Pay
Band 1 Rs.5200-20200 with Grade Pay Rs.2400/- Loco Pilot (Shunting GradeII) Pay Band 1 Rs.5200-20200
with Grade Pay Rs.2400/- Loco Pilot (Shunting GradeI) Pay Band 2 Rs.9300-34800 with Grade Pay
Rs.4200/- LocoPilot (Goods) Pay Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- Loco Pilot (Passenger)
Pay Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- + Special Allowance Rs.500/- p.m Loco Pilot (Mail) Pay
Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- + Special Allowance Rs.1000/- p.m
15. The post of Loco Pilot (Shunting Grade II) being a promotional post for Senior Assistant Loco Pilot in the
promotional hierarchy, the same was counted as promotion for the purpose of MACP Scheme argue the
respondent. The applicant having entered Railway service in Grade Pay Rs.1800/- had enjoyed three
promotions, viz. as Diesel Assistant, Senior Diesel Assistant and as Loco Pilot (Shunting Grade II). Even
though the post of Senior Diesel Assistant and Loco Pilot (Shunting Grade II) carries the same Pay Band and
Grade Pay, as per the Recruitment Rules promotional hierarchy of the running cadre LocoPilot (Shunting
Grade II) is a promotional post.
16. Respondent also argue that if the applicant had any such grievance that both the promotional posts and
feeder posts carry the same pay scale, he ought not have accepted the promotion order as Loco Pilot
(Shunting Grade II) and sought legal remedy at the material time itself. Now after a lapse of more than 11 years
of the promotion the applicant having slept over cannot rake up the matter of post carrying the same pay scale
which as per Recruitment Rules are marked as promotional posts. We also note that the Recruitment Rules
making provision for the promotions in the same pay scale of Senior Diesel Assistant and Loco Pilot (Shunting
Grade II) has also not been challenged by the applicant. Respondent contend that the post of Senior Diesel
Assistant and Loco Pilot (Shunting Grade II) carried the same scale of pay during the Vth Pay Commission
also. There are other instances in respondent department like the post of Senior Diesel Assistant/Senior
Assistant Loco Pilot and Loco Pilot (Shunting Grade II) which carried the same pay scale of Rs.4000-6000 in
the Vth Pay Commission. If the applicant had any grievance over the existence of the same scale of pay to
both the feeder and promotional posts, he should have challenged it after Vth CPC. But applicant had accepted
the promotion as Loco Pilot (Shunting Grade II) ordered in the year 2002 and did not challenge the same at the
appropriate time. Having accepted the promotion of LocoPilot (Shunting Grade II) which carried the same pay
scale of Senior Diesel Assistant/Senior Assistant Loco Pilot 10 years ago the applicant cannot contend at this
distant date that it cannot be considered as promotion. Railway Board's clarificatory order at Annexure R-1
clearly specifies that financial upgradation under ACP/MACP Scheme cannot be to a higher Grade Pay than
what can be allowed to an employee on his normal promotion. The Hon'ble Supreme Court in the case
of S.S.Grewal Vs. State of Punjab & Ors. (1993) [Supp] 3 SCC 234has held that '....the clarification must be
read as part of the original order.....'. This ratio has been reiterated by the Hon'ble High Court of Madras while
deciding the case of Union of India Vs. K.S.Krishnaswamy, etc. (2005) 2 CTC 661. Further the Hon'ble High
Court in the above case has held that : ' It is a well settled principle of law that recommendations of Pay
Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also
well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by
Executive instructions.'
17. Railway Board's Annexure A-1 order dated 10.6.2009 comprises a set of inter-related instructions and it
ought to be read and interpreted in totality while implementing the scheme. An isolated interpretation of any
instruction contained in the said letter which conflicts or nullify the other instructions will not be in the true spirit
of the Scheme. The instructions relating to regulations of MACP Scheme, needs to be interpreted in
consonance with the policy perspective and scope of the Scheme. The Hon'ble Supreme Court in the case
of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. in Civil Appeal No.5899 of 2012 has held in
para-16 of the judgment that : '16. We are concerned with the excess payment of public money which is often
described as tax payers money which belongs neither to the officers who have effected over-payment nor that
of recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations.
Question to be asked is whether execss money has been paid or not may be due to a bona fide mistake.
Possibly effecting excess payment of public money by Government officers, may be due to various reasons like
negligence, carelessness, collusion, favoritism etc. because money in such situations does not belong to the
payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake
is mutual. Payments are being effected in many situations without any authority of law and payments have
been received by the recipients also without any authority of law. Any amount paid/received without authority of
law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such
situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust
enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case
(supra) and in Col.B.J.Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay
fixation can always be recovered'.
18. There is a need to examine the argument made by applicant favouring Para 5 of MACP OM which states
that : '5. Promotion earned/upgradations granted under the ACP Scheme in the past to those grades which now
carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay
Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.'
19. This is not a case of merger of two posts or upgradation of posts - post VIth CPC. This is a case where the
two posts carried the same pay scale in the Vth CPC also. The scheme provides for either financial
upgradation or promotion and not both. Respondent also informs vide Annexure R-3 that applicant has refused
promotion to the post of Goods Driver/Loco Pilot (Goods) and he declined to attend the promotional course
when nominated and hence are covered by Para 25 of MACP OM which states as follows : '25. If a regular
promotion has been offered but was refused by the employee before becoming entitled to a financial
upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to
lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee
subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall,
however, not be eligible to be considered for further financial upgradation till he agrees to be considered for
promotion again and the second or the next financial upgradation shall also be deferred to the extent of period
of debarment due to the refusal.'
20. In the light of what is stated above we find no merit in the contentions raised by the applicant in the O.A and
accordingly the same is dismissed. No costs. (Dated this the 6th day of January 2017) (P.GOPINATH) (N.K.
BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER asp Principal Bench, Central
Administrative Tribunal, New Delhi in the case of V.K.Saxena Vs. UOI & ors.
(v) Sumangala Nagrath Vs. Union of India & Ors. (SCC 1999 [L&S] 1318).
12. The applicant had already enjoyed three promotions. The applicant even though offered further promotion
as Goods Driver/Loco Pilot (Goods) in Pay Band-2 with Grade Pay Rs.4200/-, had declined to attend the
promotional course when nominated. As such the promotional chances of the applicant has not been stagnated
due to lack of opportunities, but on his own volition. Having refused promotion applicant cannot seek financial
upgradation benefits under the MACPScheme. The pay scales of Rs.3050-4590, Rs.4000-6000 and Rs.4500-
7000 were allotted with Pay Band 1 Rs.5200-20200 but with different ascending Grade Pay Rs.1900/-,
Rs.2400/- and Rs.2800/- respectively. The post of Senior Assistant Loco Pilot and Loco Pilot (Shunting-Grade
II) carried the same pay scale of Rs.4000-6000 in the earlier Vth Pay Commission pay scales and continued so
in VIth PC in Pay Band-1 with Grade pay Rs.2400/-. There is no merger of posts of Senior Diesel Assistant
and Loco Pilot (Shunting Grade-II) and both continue to carry the same pay scales and Grade Pay in the V and
VI CPC. Hence we do not agree with the contention of the applicant to read this as a merger of posts. This is
an instance of two posts carrying the same pay scale. Where a promotional avenue is provided applicant
cannot refuse and seek to replace it with MACP benefits.
13. Applicant has furnished an illustration under Para 5 of Annexure A-1 (3/4) regarding the cases of
appointment of candidates made in scale Rs.5000-8000 and promoted to scale Rs.5500-9000/6500-10500 and
the said pay scales stands merged in the VIth PC. The case of the applicant is not covered by these
instructions. In the case of the applicant he has not been recruited in scale Rs.5000-8000 or promoted to scale
Rs.5500-9000 and Rs.6500-10500 which stands merged with effect from 1.1.2006. Para 8 of MACP OM is
applicable to the case of the applicant. Respondent brings to notice that applicant was not isolated and as per
Annexure R-2 letter more than 92 cases were reviewed, wherein para 8 of MACP OM had been overlooked.
However, the case of the applicant went unnoticed. When the Service Register of the applicant was reviewed
for updating of entries due to retirement on 30.6.2013, the case came to light and hence he was issued with a
show cause notice for rectification of the error and after considering the representations the corrective orders at
Annexure A-6 was issued. Further this Tribunal in the penultimate para of order dated 22.11.2011 in
O.A.No.973/2011 has held that : 'If the respondents have a case that the applicants salary paid is higher and
that any reduction is justified, let them issue notice to the applicants and then pass an order. This is the proper
way to do in the case the applicants are not entitled for the salary they are drawing now.....'
14. Respondent has followed the dictum laid down by the Tribunal. The post of Senior Diesel Assistant
and Loco Pilot (Shunting Grade-II) carries the same Pay Band-1 with same Grade Pay Rs.2800/- both these
posts are distinct posts. The latter post is a promotional post for the former post. The respondents bring to our
notice that following posts exist in the running cadre after the implementation of VIth Pay Commission :
Assistant Loco Pilot Pay Band 1 Rs.5200-20200 with Grade Pay Rs.1900/- Senior Assistant Loco Pilot Pay
Band 1 Rs.5200-20200 with Grade Pay Rs.2400/- Loco Pilot (Shunting GradeII) Pay Band 1 Rs.5200-20200
with Grade Pay Rs.2400/- Loco Pilot (Shunting GradeI) Pay Band 2 Rs.9300-34800 with Grade Pay
Rs.4200/- LocoPilot (Goods) Pay Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- Loco Pilot (Passenger)
Pay Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- + Special Allowance Rs.500/- p.m Loco Pilot (Mail) Pay
Band 2 Rs.9300-34800 with Grade Pay Rs.4200/- + Special Allowance Rs.1000/- p.m
15. The post of Loco Pilot (Shunting Grade II) being a promotional post for Senior Assistant Loco Pilot in the
promotional hierarchy, the same was counted as promotion for the purpose of MACP Scheme argue the
respondent. The applicant having entered Railway service in Grade Pay Rs.1800/- had enjoyed three
promotions, viz. as Diesel Assistant, Senior Diesel Assistant and as Loco Pilot (Shunting Grade II). Even
though the post of Senior Diesel Assistant and Loco Pilot (Shunting Grade II) carries the same Pay Band and
Grade Pay, as per the Recruitment Rules promotional hierarchy of the running cadre LocoPilot (Shunting
Grade II) is a promotional post.
16. Respondent also argue that if the applicant had any such grievance that both the promotional posts and
feeder posts carry the same pay scale, he ought not have accepted the promotion order as Loco Pilot
(Shunting Grade II) and sought legal remedy at the material time itself. Now after a lapse of more than 11 years
of the promotion the applicant having slept over cannot rake up the matter of post carrying the same pay scale
which as per Recruitment Rules are marked as promotional posts. We also note that the Recruitment Rules
making provision for the promotions in the same pay scale of Senior Diesel Assistant and Loco Pilot (Shunting
Grade II) has also not been challenged by the applicant. Respondent contend that the post of Senior Diesel
Assistant and Loco Pilot (Shunting Grade II) carried the same scale of pay during the Vth Pay Commission
also. There are other instances in respondent department like the post of Senior Diesel Assistant/Senior
Assistant Loco Pilot and Loco Pilot (Shunting Grade II) which carried the same pay scale of Rs.4000-6000 in
the Vth Pay Commission. If the applicant had any grievance over the existence of the same scale of pay to
both the feeder and promotional posts, he should have challenged it after Vth CPC. But applicant had accepted
the promotion as Loco Pilot (Shunting Grade II) ordered in the year 2002 and did not challenge the same at the
appropriate time. Having accepted the promotion of LocoPilot (Shunting Grade II) which carried the same pay
scale of Senior Diesel Assistant/Senior Assistant Loco Pilot 10 years ago the applicant cannot contend at this
distant date that it cannot be considered as promotion. Railway Board's clarificatory order at Annexure R-1
clearly specifies that financial upgradation under ACP/MACP Scheme cannot be to a higher Grade Pay than
what can be allowed to an employee on his normal promotion. The Hon'ble Supreme Court in the case
of S.S.Grewal Vs. State of Punjab & Ors. (1993) [Supp] 3 SCC 234has held that '....the clarification must be
read as part of the original order.....'. This ratio has been reiterated by the Hon'ble High Court of Madras while
deciding the case of Union of India Vs. K.S.Krishnaswamy, etc. (2005) 2 CTC 661. Further the Hon'ble High
Court in the above case has held that : ' It is a well settled principle of law that recommendations of Pay
Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also
well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by
Executive instructions.'
17. Railway Board's Annexure A-1 order dated 10.6.2009 comprises a set of inter-related instructions and it
ought to be read and interpreted in totality while implementing the scheme. An isolated interpretation of any
instruction contained in the said letter which conflicts or nullify the other instructions will not be in the true spirit
of the Scheme. The instructions relating to regulations of MACP Scheme, needs to be interpreted in
consonance with the policy perspective and scope of the Scheme. The Hon'ble Supreme Court in the case
of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. in Civil Appeal No.5899 of 2012 has held in
para-16 of the judgment that : '16. We are concerned with the excess payment of public money which is often
described as tax payers money which belongs neither to the officers who have effected over-payment nor that
of recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations.
Question to be asked is whether execss money has been paid or not may be due to a bona fide mistake.
Possibly effecting excess payment of public money by Government officers, may be due to various reasons like
negligence, carelessness, collusion, favoritism etc. because money in such situations does not belong to the
payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake
is mutual. Payments are being effected in many situations without any authority of law and payments have
been received by the recipients also without any authority of law. Any amount paid/received without authority of
law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such
situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust
enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case
(supra) and in Col.B.J.Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay
fixation can always be recovered'.
18. There is a need to examine the argument made by applicant favouring Para 5 of MACP OM which states
that : '5. Promotion earned/upgradations granted under the ACP Scheme in the past to those grades which now
carry the same Grade Pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay
Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.'
19. This is not a case of merger of two posts or upgradation of posts - post VIth CPC. This is a case where the
two posts carried the same pay scale in the Vth CPC also. The scheme provides for either financial
upgradation or promotion and not both. Respondent also informs vide Annexure R-3 that applicant has refused
promotion to the post of Goods Driver/Loco Pilot (Goods) and he declined to attend the promotional course
when nominated and hence are covered by Para 25 of MACP OM which states as follows : '25. If a regular
promotion has been offered but was refused by the employee before becoming entitled to a financial
upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to
lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee
subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall,
however, not be eligible to be considered for further financial upgradation till he agrees to be considered for
promotion again and the second or the next financial upgradation shall also be deferred to the extent of period
of debarment due to the refusal.'
20. In the light of what is stated above we find no merit in the contentions raised by the applicant in the O.A and
accordingly the same is dismissed. No costs. (Dated this the 6th day of January 2017) (P.GOPINATH) (N.K.
BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER