Sher Singh Duggal vs Central Excise & Customs

​ ​ ​ ​ 1 ​ (O.A.No.060/573/2018)

CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.No.060/573/2018
Chandigarh, Order Reserved: 20.08.2026
Pronounced: 14.10.2026
CORAM:
HON’BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON’BLE MRS. ANJALI BHAWRA, MEMBER (A)
Sher Singh Duggal son of Sh. G.S. Duggal, age 63 years, Retired
Superintendent, office of Custom Preventive Amritsar, Punjab, now
resident of H.No. 1081, Sector 51-B, Central Excise & Customs Society,
Chandigarh. (Group B)
...Applicant
By Advocate: Mr. Harpal Singh Saini for Mr. Rishav Sharma
VERSUS
1. Union of India through Secretary, Ministry of Finance, Department of
Revenue, Central Board of Excise & Customs, North Block, New
Delhi-110001.
2. Chief Commissioner, Central GST Commissionerate, Chandigarh Zone
Central Revenue Building, Plot No. 19, Sector 17-C, Chandigarh.
3. Commissioner, Central GST Commissionerate, Chandigarh Zone,
Chandigarh, Central Revenue Building, Plot No. 19, Sector 17-C,
Chandigarh.
…Respondents
By Advocate: Ms. Komal Preet Chauhan
O R D E R
Per: RAMESH SINGH THAKUR, MEMBER (J):
1. ​ The present Original Application filed under Section 19 of the
Administrative Tribunals Act, 1985, is directed against order dated
25.04.2018 (Annexure A-9) by which the representation of the applicant
for grant of 3rd MACP on completion of 30 years of service w.e.f.
1.9.2008 in the grade pay of Rs. 6600/- has been rejected. The applicant
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has prayed for reliefs as under:
“(i) Against the order dated 25.04.2018 (Annexure A-9) by which the
representation of the applicant for grant of 3rd MACP on completion of 30
years of service w.e.f. 1.9.2008 in the grade pay of Rs. 6600/- has been
rejected in an illegal manner and on non-existent grounds.

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(ii) Quash the action of the respondents in not granting to the applicant
the benefit of 3rd financial up gradation under MACP in the grade pay of
Rs.6600/- w.e.f. 1.9.2008.
(iii) Direct the respondents for grant of 3rd MACP to the applicant on
completion of 30 years of service w.e.f. 1.9.2008 in the grade pay of Rs.
6600/- with all consequential benefits.
(iv) Direct the respondents to fix the pay of the applicant as a result of
grant of 3rd financial up gradation in the grade pay of Rs.6600/- w.e.f.
1.9.2008.
(v) Direct the respondents to refix the pension and other retiral benefits
of the applicant consequent to the grant of 3rd financial up gradation.
(vi) Direct the respondents to grant the arrear of salary and arrests of
pension and other retiral benefits along with interest @ 18% p.a.
(vii) Any other order or direction deemed fit and proper in the facts and
circumstances of the case may also kindly be issued in favour of the
applicant.
(viii) Costs of the O.A. be allowed in favour of the applicant.”
2. ​ Facts of the case in brief are that the applicant was initially
appointed as Clerk in the Beas Construction Board (BCB) on 01.09.1973
and was subsequently appointed as a Steno Typist on 03.08.1977. Upon
completion of the project, he was declared surplus on 01.12.1984 and
redeployed in the respondent department as Lower Division Clerk (LDC)
on 08.02.1985. He was subsequently promoted as Superintendent w.e.f.
23.09.2002.
3. ​ The applicant submits that, in the course of earlier litigation
concerning his pay fixation and redeployment, this Tribunal, vide
judgment dated 19.09.2013 in OA No. 159/PB/2011 (Annexure A-1),
directed relief in his favour. The challenge to the said judgment was
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dismissed by the Hon’ble Punjab and Haryana High Court on 23.05.2017
(Annexure A-2). The respondents implemented the judgment of this
Tribunal vide order dated 28.04.2014 (Annexure A-3), pursuant to which
the pay of the applicant was fixed in Pay Band-3 with Grade Pay of

​ ​ ​ ​ 3 ​ (O.A.No.060/573/2018)

Rs.5400/- (Annexure A-4). The applicant retired from service on
28.02.2015 on attaining the age of superannuation.
4. ​ The applicant relies upon the Modified Assured Career
Progression (MACP) Scheme introduced vide Government of India OM
dated 19.05.2009, effective from 01.09.2008, providing for three financial
upgradations on completion of 10, 20 and 30 years of service. He
contends that having completed 30 years of service, he is entitled to the
third financial upgradation w.e.f. 01.09.2008 in the Grade Pay of
Rs.6600/-, particularly as he had earned only one regular promotion to
the post of Superintendent.
5. ​ The applicant submits that he repeatedly sought the benefit
through representations dated 04.05.2010, 30.06.2010, 13.06.2014 and
14.07.2014, followed by a legal notice dated 11.08.2014. The applicant
has asserted that the respondents kept his claim pending awaiting the
outcome of the writ petition before the High Court, as reflected in their
letter dated 06.03.2017 (Annexure A-6). He further contends that,
following dismissal of the writ petition on 23.05.2017 (Annexure A-2),
there was no justification for withholding the claimed benefit, particularly
when respondent No. 1 had already conveyed approval on 21.04.2014 for
implementation of the judgment of this Tribunal (Annexure A-7).
6. ​ The applicant further states that, upon his approaching this Tribunal
in OA No. 60/1497/2017, the same was disposed of on 18.12.2017 with a
direction to the respondents to consider and decide his pending
representation within two months of receipt of the certified copy of the
order (Annexure A-8). The respondents thereafter rejected his
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representation vide impugned order dated 25.04.2018 (Annexure A-9).
7. ​ The applicant has challenged the rejection order primarily on the
ground that the respondents have erroneously treated the placement in
the higher/senior scale of Rs.510–800 w.e.f. 01.01.1978 as a promotion
or financial upgradation disentitling him to the claimed MACP benefit. He

​ ​ ​ ​ 4 ​ (O.A.No.060/573/2018)

contends that the said placement was granted to a percentage of
employees in the clerical cadre without any change in duties,
responsibilities or selection process, and did not constitute promotion to a
higher post. In support of his contention, the applicant relies upon the
Punjab Government circular dated 29.04.1980 (Annexure A-11),
instructions dated 04.05.1983 (Annexure A-12), and the judgment of the
Hon’ble Punjab and Haryana High Court in Jaswant Singh v. Union of
India , decided on 01.07.2014 (Annexure A-13). He also refers to a DoPT
note dated 26.07.2011 (Annexure A-14), which is asserted to support the
grant of financial upgradations to similarly placed employees redeployed
from BCB.
8. ​ The applicant additionally relies upon paragraph 5 of the MACP
Scheme, contending that promotions or upgradations in the past to
grades which, following merger or revision of pay scales on the
recommendations of the Sixth Central Pay Commission, carry the same
Grade Pay are to be ignored for the purpose of MACP, and that his case
falls within the illustration accompanying the said provision. He
accordingly maintains that the senior scale of Rs.510–800 cannot be
counted as a financial upgradation disentitling him to the benefit claimed.
9. ​ Per contra, the respondents submit that the parent department of
the applicant i.e. BCB had granted him the selection grade of Rs.510–800
w.e.f. 01.01.1978, pursuant to the order of this Tribunal dated
06.12.2000, and that the said placement constitutes one financial
upgradation for the purposes of the MACP Scheme. They further state
that pursuant to the directions of this Tribunal dated 19.09.2013, the
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applicant was granted the first and second financial upgradations under
the ACP Scheme w.e.f. 09.08.1999 conditionally. The respondents assert
that the selection grade and the two ACP upgradations together account
for three financial upgradations, thereby disentitling the applicant from
the third financial upgradation under MACP.

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10. ​ Referring to the DoP&T OM dated 19.05.2009, the respondents
contend that three financial upgradations are admissible under the MACP
Scheme on completion of 10, 20 and 30 years of service, subject to the
employee not having already received three financial upgradations. They
rely upon Board’s dated 17.04.2018 in support of treating the selection
grade granted to the applicant as a financial upgradation. On this basis,
the respondents maintain that the applicant was not eligible for the
benefit claimed and that his representation was rightly rejected vide
speaking order dated 25.04.2018.
11. ​ The respondents have clarified that the representations made by
the applicant could not be disposed of while the matter remained pending
before the Hon’ble High Court, and that the applicant was informed of the
position vide letter dated 06.03.2017. The respondents further rely upon
Ministry’s letter dated 05.09.2007, which is asserted to have required
departmental clearance before implementation of court orders adverse to
the interests of the Department/Government. The respondents state that
in compliance with order dated 18.12.2017 in OA No. 60/1497/2017, the
representation of the applicant was considered and speaking order dated
25.04.2018 was passed. The respondents accordingly submit that the
applicant has no legally sustainable claim for the third financial
upgradation in Grade Pay Rs.6,600/- w.e.f. 01.09.2008, or for
consequential refixation of pay, pension and retiral benefits, arrears and
interest.
12. ​ We have heard arguments addressed by learned counsel for both
sides and perused the material on record.
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13. ​ The undisputed facts emerging from the pleadings are that the
applicant initially joined the Beas Construction Board (BCB) as a Clerk on
01.09.1973 and was subsequently redeployed in the respondent
department as LDC on 08.02.1985. The applicant was promoted as
Superintendent w.e.f. 23.09.2002 and was granted non-functional Grade

​ ​ ​ ​ 6 ​ (O.A.No.060/573/2018)

Pay of Rs.5,400/- w.e.f. 23.09.2006. The applicant retired from service on
28.02.2015.
14. ​ It is not in dispute that the applicant was granted the selection
grade of Rs.510–800 w.e.f. 01.01.1978 by his parent department
pursuant to orders passed by this Tribunal in OA 943/CH/1991, and that
he was subsequently granted the first and second financial upgradations
under the ACP Scheme w.e.f. 09.08.1999 pursuant to the directions of
this Tribunal dated 19.09.2013 in OA No. 159/PB/2011. The claim for the
third financial upgradation under MACP w.e.f. 01.09.2008 was rejected by
the respondents vide speaking order dated 25.04.2018 (Annexure A-9),
primarily on the ground that the aforesaid selection grade was liable to be
counted as one financial upgradation, thereby exhausting his entitlement
to three financial upgradations.
15. ​ The short question requiring consideration is whether the selection
grade of Rs.510–800 granted to the applicant w.e.f. 01.01.1978 can be
treated as a financial upgradation for the purpose of determining his
eligibility for the third financial upgradation under the MACP Scheme. The
applicant has consistently contended that the selection grade was granted
as part of the restructuring of the clerical cadre, without any change in
duties and responsibilities or any process of selection, and, therefore,
cannot be treated as a promotion or financial upgradation for the purpose
of MACP. In support, he relies upon the judgment of the Hon’ble Punjab
and Haryana High Court in Jaswant Singh v. Union of India (supra).
16. ​ In Jaswant Singh (supra), the Hon’ble High Court, relying upon the
principles laid down by the Hon’ble Supreme Court in Bharat Sanchar
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Nigam Limited v. R. Santhakumari Velusamy , 2011 (9) SCC 510 , held
that placement in a higher pay scale without change of post, duties or
responsibilities, and without any process of selection or consideration of
comparative merit or suitability, constitutes an upgradation simpliciter
and cannot be categorised as a promotion. The Court specifically held

​ ​ ​ ​ 7 ​ (O.A.No.060/573/2018)

that restructuring of a cadre by placing certain posts in a higher pay
scale, without any change in responsibilities or selection process, does
not amount to promotion.
17. ​ This Tribunal, in its judgment dated 19.09.2013 in OA No.
159/PB/2011, while allowing the claim of the applicant for second
upgradation, held:
“11. Having carefully perused the material on record and weighed the
arguments advanced by the learned counsel for the parties, we observe that
the applicant has been involving in prolonged litigation regarding his
entitlement to particular scales of pay as on 01.01.1978 and 01.01.1986
consequent to his redeployment from BCB to the Respondent department
and the placements in the different pay scales had been allowed to him as a
result of the decisions in the O.As under reference. Keeping in view the scale
of pay allowed to the applicant, deployment has been given to him as per the
corresponding designations and this is how he has been designated as
Inspector since 01.01.1986. During the period of his service with BCB as well
as Respondent department, up to 1999 the applicant had not got any
"promotion" and therefore under the guidelines of the ACP Scheme he would
be entitled to 2nd upgradation. Therefore, his claim for two ACPs as granted
to one Sh. Ashok Prashar, who was similarly situated to him, w.e.f.
09.08.1999 as per order dated 22.05.2009, appears to be justified.”
18. ​ Applying the aforesaid principle to the present case, the
respondents have relied upon the grant of the selection grade of
Rs.510–800 w.e.f. 01.01.1978 to count it as one financial upgradation
under MACP. However, the mere designation of the benefit as a selection
grade would not, by itself, establish that it involved a promotion or a
financial upgradation liable to be counted under the MACP Scheme. The
applicant has specifically pleaded that the said scale was extended to a
percentage of employees in the clerical cadre without any change in
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duties, responsibilities or selection process, relying upon the Punjab
Government circular dated 29.04.1980 (Annexure A-11) and instructions
dated 04.05.1983 (Annexure A-12). The respondents, on the other hand,
have not specifically controverted these material aspects but have

​ ​ ​ ​ 8 ​ (O.A.No.060/573/2018)

principally relied upon the fact of grant of the selection grade and the
Board’s letter dated 17.04.2018.
19. ​ From the material before us, and in view of the ratio laid down
in Jaswant Singh (supra), the selection grade granted to the applicant
w.e.f. 01.01.1978 cannot be counted as a financial upgradation for the
purpose of MACP. Consequently, the principal ground of the respondents
for denying the applicant the third financial upgradation under MACP is
not sustainable. The impugned order dated 25.04.2018 (Annexure A-9),
insofar as it rejects the claim of the applicant on this basis, therefore,
cannot be sustained.
20. ​ In view of the foregoing discussion, the Original Application is
allowed. The impugned order dated 25.04.2018 (Annexure A-9) is
quashed. The respondents are directed to grant the applicant the third
financial upgradation under the MACP Scheme w.e.f. 01.09.2008, with
consequential refixation of pay, pension and other retiral benefits and
payment of admissible arrears. The consequential benefits shall be
calculated and released within a period of three months from the date of
receipt of a certified copy of this order.
21. ​ The Original Application stands disposed of in the above terms.
Pending Miscellaneous Applications, if any, shall stand disposed of
accordingly. There shall be no order as to costs.



/s/
(ANJALI BHAWRA)
(RAMESH SINGH THAKUR)
MEMBER (A)
MEMBER (J)

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