FINAL HEARING OVER ON 3.11.2015 - DATE OF VERDICT WILL BE ANNOUNCED SOON

The final hearing in the CASE FOR Rs.4600 Grade pay was over on 3.11.2015.   The date of verdict will be announced soon.

One MACP is adjusted against 2 promotions - Anomaly - some discussions in Gconnect forum

Thread: One MACP to Rs.4600 Grade pay adjusted against 2 Promotions - Unique anomaly

Ramnath posted on 1.9.2015

In our Department (Central Excise), we have Tax Assistant (Rs.2400 Gpay) and its promotional post Senior Tax Assistant (4200 Grade pay) & its promotional post - Deputy office Supdt. (Rs.4200 Gpay with 3% Increment). Then Dy. Office Supdt. gets promoted to Admn. Officer (4600 Gpay).

One situation is:

A few Senior Tax Assistants in Rs.4200 Grade pay have been granted MACP to 4600 Grade pay prior to promotion to Dy. Office Supdt. Then they have been promoted as Dy. Office Supdt. As MACP already granted, no fixation on promotion. After some years as Dy. Office Supdt., they have been promoted as Admn. Officers (Rs.4600 Grade pay). Hence, no fixation. Here, one MACP of Rs.4600 Grade pay is adjusted against 2 Promotions.

MACP envisages placement in the next immediate higher grade pay. Hence, a Tax Assistant drawing Grade pay of Rs.2400 is placed in Rs.2800 Grade pay. Then on promotion as senior Tax Assistant, he is granted Rs.4200 Grade pay. Likewise, a Senior tax Assistant (Rs.4200 Grade pay) is given Rs.4600 Grade pay on MACP. (Only Rs.5400 gpay in PB2 & PB3 have been mentioned to be different Grade pays as per Para 8.1 of MACP Order). As 3% increment (illogical) order dt.7.1.2013 has been issued & made applicable to Rs.4200 grade pay posts (feeder and promotional), a Senior Tax Assistant is drawing lesser Grade Pay on Promotion than on MACP which is a great anomaly.

I have been fighting the case of Grade pay in the Hon`ble CAT, Chennai Bench which is in final stages. Hope to get positive verdict on this sooner.

I welcome views of other boarders.
Ramnath.

soodeep posted on 2.9.2015

Is promotion within same pay band & grade pay still exists? (Senior Tax Assistant (4200 Grade pay) to the promotional post - Deputy office Supdt. (Rs.4200 Gpay with 3% Increment) 

 

Ramnath posted on 2.9.2015

I am fighting the case in CAT Chennai Bench since 2011 which is nearing its final stages.

soodeep posted on 3.9.2015

Agreed with the cause. But, MACP should be effective from 01.09.2008, the date from which MACP came into force after submission of report of 6 CPC.

Ramnath posted on 3.9.2015

In our Department persons have been granted MACP w.e.from 1.9.2008 (they are eligible from 1.9.2008 itself) with 4600 Gpay. But, they were getting ZERO on promotion till order of 3% for posts carrying same gpay was issued on 7.1.2013. Hence, MACP benefit is more than actual promotion.

Victor posted on 5.9.2015

The benefit of MACP cannot be more than actual promotion as MACP is basically a sort of compensation in the event of non-promotion. 

 

Ideally the feeder post and promotion post should have different grade pay as this signifies seniority in a cadre. But if there is a conscious decision to keep the two posts in the hierarchy with the same grade pay then the MACP would also be to the same grade pay.

In this regard the Record of Discussions of 3rd meeting of the Joint Committee on MACPS held on 20.4.2011 may also be referred to (Last Item on page 4 - 'Promotion in the identical Grade Pay'
(http://ccis.nic.in/WriteReadData/Cir...2010-JCA-1.pdf)

Victor

Ramnath posted on 8.9.2015

Thank you Mr.Victor for your response. Very happy to interact after a very long time. I differ from your view.

The MACP is based on the principle of grant of NEXT IMMEDIATE HIGHER GRADE PAY and as per 8.1 of MACP order, PB-2 5400 Gpay and PB3 5400 Gpay though they are in same Gpay are to be treated as different grade pay for MACP. Hence, on MACP one should get only next immediate higher grade pay. The meeting referred by you was held in 2011. At that point of time, the posts in 4200 gpay used to get ZERO financial benefit on promotion. So, it means MACP should be also ZERO and should be taken as granted one MACP. How can this be?

 

The posts that were placed in same Gpay of 4200 (5000 & 5500 scale of pay) should have been merged w.e.from 1.1.2006. Wherever it was not done, the promotion benefit should match MACP benefit. However, in our Department there existed two lines of promotion. Since 6th Pay Commn was implemented on 30.8.2008, but with effect from 1.1.2006 retrospectively, the posts could not be merged on 1.1.2006 itself as it would lead to revision of RR, etc. which cannot be done retrospectively and would lead to so many problems as there 2 channels of promotion. If there had been single channel of promotion, this would have been easier (like in many departments).

 

The meeting between Official side and staff side held in 2011, the minutes has been issued to cater to convenience of admn. rather than to be based on Logic. The order granting 3% increment was issued on 7.1.2013. Hence, till that time, if the promotion benefit is ZERO, can be MACP granted also be ZERO but taken as if one MACP has been granted. This violates the basic rule of MACP (which envisages placement in the next immediate higher grade pay).

 

For this clarification to withstand, the merger should be on 1.1.2006 itself. Keeping the posts separately till merger date (which is after 1.1.2006 on 18.12.2013 in our department), the anomaly will be in existence. This wont withstand any legal forum - I strongly feel.

Once again thank you for your response.

Regards,
Ramnath

ONE MACP is adjusted against TWO PROMOTIONS - Unique anomaly

In our Department (Central Excise), we have Tax Assistant (Rs.2400 Gpay) and its promotional post Senior Tax Assistant (4200 Grade pay) & its promotional post - Deputy office Supdt. (Rs.4200 Gpay with 3% Increment).   Then Dy. Office Supdt. gets promoted to Admn. Officer (4600 Gpay).

One situation is:  

A few Senior Tax Assistants in Rs.4200 Grade pay have been granted MACP to 4600 Grade pay prior to promotion to Dy. Office Supdt.   Then they have been promoted as Dy. Office Supdt.   As MACP already granted, no fixation on promotion.    After some years as Dy. Office Supdt., they have been promoted as Admn. Officers (Rs.4600 Grade pay).   Hence, no fixation.   Here, one MACP of Rs.4600 Grade pay is adjusted against 2 Promotions.

MACP envisages placement in the next immediate higher grade pay.   Hence, a Tax Assistant drawing Grade pay of Rs.2400 is placed in Rs.2800 Grade pay.   Then on promotion as senior Tax Assistant, he is granted Rs.4200 Grade pay.   Likewise, a Senior tax Assistant (Rs.4200 Grade pay) is given Rs.4600 Grade pay on MACP.      (Only Rs.5400 gpay in PB2 & PB3 have been mentioned to be different Grade pays as per Para 8.1 of MACP Order).    As 3% increment (illogical) order dt.7.1.2013 has been issued & made applicable to Rs.4200 grade pay posts (feeder and promotional), a Senior Tax Assistant is drawing lesser Grade Pay on Promotion than on MACP which is a great anomaly.  
   
I have been fighting the case of Grade pay in the Hon`ble CAT, Chennai Bench which is in final stages.     Hope to get positive verdict on this sooner.

DOS Grade Pay Case Status

Status of CAT case for Rs.4600 Grade Pay in the Hon`ble CAT, Chennai:-


FINAL HEARING OVER ON 3.11.2015

After summer holidays, the DOS Case came up for hearing today i.e., 2.7.2015 & 13.7.2015, 23.7.2015, 4.8.2015,... 24.8.2015, 31.8.2015, 2.9.2015, 10.9.2015 & 14.9.2015, 28.9.2015, 8.10.2015, 15.10.2015, 30.10.2015 & 3.11.2015.   The FINAL HEARING OVER ON 3.11.2015.

Counter Received from the Department on 25th Oct 2012.     Rejoinder submitted in March, 2013.

Hearing was held on 4th December 2012 and not held on 10th January, 2013, 20th March, 2013 (due to boycott of courts by lawers).    Next hearing was held on 9th April, 2013.     No hearing took place on 11th June, 2013 once again due to boycott of courts by Lawyers.         This is the 3rd time no hearing has taken place.   Hearings were also on 28th June and 18th July, 2013 & 12.8.2013 (court boycott).   Hearing got posted/postponed to 3rd & 13th then postponed to 23rd September, 2013, 10th Oct, 2013 & 9th Dec 2013, 3rd January 2014, 6th February 2014, 3rd March, 2014 and 13th March, 2014, 21st March, 2014 & 1.4.2014, 15th April, 2014, July 2014 & 1st August, 2014.
Next hearing is on 21.8.2014.

Dear DOS of Central Excise, If you are redesignated as Executive Assistant, represent for MACP

The DOS Case in the Hon`ble CAT Chennai is yet to come up for hearing after summer holidays.   The date is yet to be notified in the Cause List.    No solution at sight for Grade pay issue.   Another issue - Merger has cropped up now.    But this merger if it had been from 1.1.2006, no problem with regard to Merger.   But, it is silent on the benefit of promotion from 1.1.2006 to the date of merger when STA gets more benefit on MACP (Rs.4600 gpay) then on promotion.    But, merger from 1.1.2006 cannot be done as RR for promotion cadre cannot be amended from pre-date.    Better way would have been to abolish the post of DOS which will settle the issue forever.     It has not been settled but merger has been done.    Hence, represent for MACP for the time being.

 

Given below is the model representation for MACP.   If you are treated as Executive Assisant, then apply for MACP.  

From

Deputy Office Superintendent,

O/o........................

 

To,

The Commissioner of Central Excise/Customs/Service Tax,

.............................................

 

Respected Sir,

Sub:-

Request for the grant of 2nd or 3rd  MACP -Reg. *****

          I humbly submit the following for the Commissioner’s kind consideration for the grant of 2nd or  MACP :-

          I joined Central Excise/Customs department as ......................................... on                on my first appointment at .............................................

          I was re-designated as Tax Assistant (Grade Pay Rs.2,400/-) with effect from .....................        I got my first promotion as Senior Tax Assistant (Grade Pay Rs.4,200/-) on .............................

          I Got my Second/3rd promotion promotion as Deputy Office Superintendent (Grade Pay Rs.4,200/-) on ...............................

          As per Board’s letter F.No.A-11013/18/2015-Ad.IV dated 15^th April 2015 (Copy enclosed), the posts of Deputy Office Superintendent (PB-2 Rs.9300-34800 with Grade Pay Rs.4,200/-) and Senior Tax Assistant (PB-2 Rs.9300-34800 with Grade Pay Rs.4,200/-) as Executive Assistant in Central Board of Excise & Customs, consequent upon cadre restructuring and re-organization of filed formations under the Central Board of Excise & Customs issued vide F.No.A-11019/08/2013-Ad.IV dated 18.12.2013 and the re-designated post of Executive Assistant will carry a pay scale of PB-2 Rs.9300-34,800/- with Grade pay of Rs.4,200/- w.e.f 18.12.2013.

          In view of Board’s Order dated 15.04.2015, my promotion to Grade of Deputy Office Superintendent has been nullified & as I have completed more than 10 years of service in Rs.4200 Grade pay on .................................itself, I am eligible for grant of  ................MACP with effect from 18.12.2013 (the date of merger of DOS & STA into EA on re-designation) to Grade Pay of Rs.4,600/-.

          In view of the above I humbly request for grant of ......................... MACP in the Grade Pay of Rs.4,600/- w.e.f 18.12.2013 for which i shall be so grateful.

Thanking you,

Yours faithfully,

Date :

Deputy Office Superintendent

FINAL HEARING IS ON 6TH MARCH 2015 
 

DOS of Central Excise & Customs, Pl. represent against the merger and creation of new post Executive Assistant

Dear DOS of Central Excise & Customs,

Pl. represent against the merger of DOS with STA and creation of new post Executive Assistant by stripping off the 3% Increment already available to DOS on promotion from STA.

 

From

Dy. Office Superintendent Central Excise : .

________Commissionerate.

To

The Chairman,

Central Board of Excise & Customs,

North Block, New Delhi – 110001.                    (Through proper channel)

Respected Sir,

            Sub:-    Request for revoking merger of DOS & STA post into Executive Assistant in PB-2 with

                        Grade Pay of Rs.4200 & for maintaining separate identity of DOS with Grade pay

of Rs.4600 being supervisory post (Group B Non-Gazetted) in the CBEC Cadre

Restructure – Regarding.

                                                                                    ---

            With due respect I, the undersigned, would like to invite your kind attention to the letters F.No.A-11019/08/2013-Ad.IV dated: 18^th December, 2013 and 1^st August, 2014 of CBEC, New Delhi  notifying the existing posts and posts approved for creation & re-organization of field formations under CBEC alongwith revised cadre strength respectively.

2.         In this regard, we submit that it is unfortunate that a new post has been created in the name of Executive Assistant in PB-2 with Grade Pay of Rs.4200 by way of  merger of two posts i.e., (i) Dy. Office Superintendent in supervisory cadre (Gr. B-Non Gazetted) with that of its feeder cadre i.e., (ii) Senior Tax Assistant (Gr. C ) working in the subordinate offices under CBEC (Recruitment Rules, 2009 for DOS & Senior Tax Assistant, 2003 refers).   

3.1       It is submitted that the Senior Tax Assistant (known as STA) is a subordinate post governed by Senior Tax Assistant Recruitment Rules 2003 with the Grade Pay of Rs.4200 in Pay Band-2.   The nature of duties and responsibilities of Senior Tax Assistant is clerical in nature and it is Subordinate Group `C’ post.

3.2       The Deputy Office Superintendent (known as DOS) is a Supervisory post (Group `B’ Non-Gazetted)  governed by Recruitment Rules 2009 the Grade Pay of Rs.4200 plus 3% Increment in Basic Pay in the Pay Band-2.   The duties & responsibilities discharged by the Dy. Office Superintendent carry greater responsibilities we well as supervisory and administrative control of Lower Division Clerk, Tax Assistant and Senior Tax Assistant for all purposes and also acts as Report Officer for all these subordinate posts.   The Deputy Office Superintendnet shoulders higher supervisory responsibilities and also initiate the Annual Performance Appraisal Reports (APARs) for the LDCs, Tax Asstts.and Sr.Tax.Asstts. working under them as per Board’s F.No.A-28011/2/75-Ad.III A dt.16th December 1975.   In view of such a requirement, the DOS are cast with the responsibility of overseeing, monitoring and reporting of Group-C staff working under them and thus they have supervisory responsibility which is not tagged to STAs.   STAs as such do not have any supervisory responsibilities in the department and they need not oversee the work of any one. Thus the level of responsibility and nature of duties of the two cadres are not at all comparable and therefore the two different posts of STA and DOS therefore cannot be compared and merged only on Grade pay criterion.

4.         Merger posts of DOS with STA into a new post of Executive Assistant of this kind is devoid of rationale in view of the following:-

4.1       Drawal of higher Pay (Rs.4200 plus 3% Increment):        Senior Tax Assistant is given Rs.4200 Grade pay and on promotion to DOS, he is given 3% Increment in the pay band plus Rs.4200 Grade pay as per OM No.10/02/2011-EIII(A) dated: 7^th January, 2013.   The  conditions for grant of 3% Increment for posts carrying same Grade pay has been stated in Para-2 & 3 of the Order dated: 7^th January, 2013 states as under:-

            “2. In terms of this Ministry’s OM No. 169/2/2000-IC dated 24.11.2000, dealing with the situation whereby both the feeder and the promotional grades were placed in the identical revised pay scales based on the recommendations of the 5^th Central Pay Commission, it was provided, inter-alia, that only in cases where it was not found feasible to appropriately restructure cadres in question on functional, operational and administrative considerations, extension of the benefit of fixation of pay under FR 22(I)(a)(1) could be considered on the merits of each case, provided all the conditions precedent for the grant of this benefit were fully satisfied and promotion to the post in question actually involved assumption of higher responsibilities.

            3. In view of the provisions which existed prior to 1.12006., the matter has been considered and the President is pleased to decide that in cases of promotion from one post to another where the promotional post carries the same Grade Pay as the feeder post, the fixation of pay in such cases will be done in the manner as prescribed in Rule 13(i) of the CCS(RP) Rules, 2008, provided fixation of pay in such cases was done prior to 1.1.2006 in terms of this Ministry’s aforesaid OM No.169/2/2000-IC dated 24 11.2000.”

From this, it can be seen that DOS is drawing more pay than STA by way of 3% Increment alongwith Grade pay of Rs.4200 being supervisory promotional post carrying higher responsibilities.     Usually any merger/upgradation will only place the higher scale post in the higher scale of pay or Higher Grade pay.    Here in the instant case, by merger of DOS  with STA and creation of new Executive Assistant, the DOS post is virtually downgraded and suffers degradation in as much as the only primacy of the only Supervisory post in ministerial cadre gets extinguished and even financial benefit given on promotion is stripped off and resulting in the ignominy of erstwhile supervisory personnel to work shoulder to shoulder with its feeder cadre personnel, which is really agonizing and causing excruciating mental agony that has been created by resorting to downgradation and degradation  ignoring the fact that DOS gets 3% Increment plus Rs.4200 Grade pay on promotion from STA.   

 It is to be mentioned here that the post of Dy. Office Superintendent is filled up by way of promotion from the Senior Tax Assistant on completion of 3 years of qualifying service.     Though DPCs were conducted and Senior Tax Assistants were promoted as Deputy office Superintendents (post with higher responsibilities), the financial benefit granted was mere Zero.   Only after issue of letter F.No.A-23011/27/2012-Ad.IIA dated: 21^st June, 2013, 3% Increment is being granted to Senior Tax Assistants on their promotion to DOS post referring the Department of Expenditure, New Delhi's OM No.10/02/2011-EIII(A) dated: 7^th January, 2013.   

Further, it is to be mentioned even this OM dated: 7^th January, 2013 cannot be squarely applied to the case of STA on promotion to DOS as posts of STA and DOS remained in different Pay Scales of  Rs.5000-150-8000 and Rs.5500-175-9000 respectively with effect from 20.9.2005 and were not in identical pay scale prior to 1.1.2006 (effective date of 6^th Pay Commission) and hence pay fixation was not done in terms of this Ministry’s aforesaid OM No.169/2/2000-IC dated 24 11.2000.   Hence, when the posts which are now in same grade pay and which were in similar identical pay scale prior to 1.1.2006 are given 3% increment, the post of DOS which was in Rs.5500-175-9000 and STA in Rs.5000-150-8000 prior to 1.1.2006, should be given something in addition to or higher than 3% Increment which in this case can only be change of Grade pay i.e., Rs.4600.

4.2       Even MACP is assures Rs.4600 Grade pay to STA than promotion to DOS (Rs.4200 Gpay + 3% Increment)

            It is to be mentioned here that even a Senior Tax Assistant who remains without promotion for 10 years in the same post/grade pay is granted Rs.4600 Grade pay on MACP which is a fall back option.    MACP is granted to the next immediate higher grade pay and not in promotional grade pay except in the case of Rs.5400 Grade pay which exist in both Pay Band-2 & Pay Band-3 as per Para-8.1 of MACP Order of DOPT, New Delhi's OM No.35034/3/2008-Estt(D) dated: 19^th May 2009.      It appears irrational and illogical that a person who gets promotion to the post of DOS gets mere 3% Increment and remains in Rs.4200 Grade pay whereas STA who does not get promotion is able to get Rs.4600 Grade Pay on MACP.     It is irrational and illogical that promotion benefit is not even matching the MACP benefit (which merely grants fixation in the next immediate higher Grade pay in the hierarchical scale of pay).

4.3       Hon`ble Superme Court’s ruling:

            The following principles were enunciated by the Hon`ble Supreme Court of India where different cadres are proposed to be merged in the case of State Of Maharashtra & Anr vs Chandrakant Anant Kulkarni & Ors on 8 September, 1981(4SCC 130) in the matter of equation of posts:-

 (i) Where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis; but

(ii) Where, however, there were no such similar cadres the following factors will be taken into consideration in determining the equation of posts:-

(a) nature and duties of a post;

(b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post.

(d) the salary of the post.

All the above guidelines and principles appear to have not been followed in the Cadre Restructure order dated: 1.8.2014 and the functionally unfeasible merger of the promotional & supervisory cadre of DOS with that of its feeder and subordinate cadre of STA has been made by placing posts having same grade pay of Rs.4200.   Merger has been done solely on account of Grade pay parity alone ignoring 3% Increment which is given in addition to Grade pay to DOS, the nature of functions, duties & responsibilities discharged by the functionaries in the cadre of Dy Office Supdt., a position that carries greater responsibilities of  supervisory and administrative control over their subordinate posts i.e., STA, TA and LDC.   Hence, the two different posts of STA and DOS therefore cannot be compared which have been merged solely on Grade pay criterion.  

4.4.      Pending cases in Legal Forums:

Further Original Applications against  unjustified pay-parity between these two posts that carry distinctly different duties and responsibilities has already been filed and admitted before the Hon`ble Central Administrative Tribunal Benches at Chennai and Mumbai.  By filing these applications, the applicants (DOS) in these OAs have sought to raise a substantial question of law as to whether such artificial parity between two posts for the only purpose of “pay” and by ignoring the “higher” and “superior” duties of one post over the other is in breach of public policy and public interest and whether the same violates the settled position in law that equal pay is meant only for equal positions. The matter is under litigation till date.   When the matter relating to dispute in Grade pay is still pending before the legal Forums which is sub judice and the matter relating to Pay is still to be resolved since 1.1.2006 to the date of Notification of Cadre Restructure i.e., 1.8.2014, resorting to merger of the posts of DOS and STA into Executive Assistant is hasty, arbitrary, unfair and unjust as the matter relating to grant of benefit on promotion benefit which is not even matching the MACP benefit from 1.1.2006 to 1.8.2014 is still to be resolved.

5.         The action taken by CBEC thus does not pass the test of constitutionality which particularly implies that the equation/merger of different posts must be based on fair, just and rational principles.   By this merger, the supervisory cadre personnel who are supervising their feeder cadre personnel have been brought on the same horizontal plane is nothing but travesty of justice.

           

6.         In view of the above submissions, it is humbly prayed that this anomaly may please be rectified and the separate identity of DOS post may please be maintained with Grade pay of Rs.4600.

                                                                                                                        Yours faithfully,