Judicially protected promotion from a notional date counts as regular service for MACP and NFSG benefits.

The applicants, Central Excise officers, were promoted as Inspectors on a regular basis with effect from 6 December 2002 pursuant to Review DPC proceedings concerning vacancies arising before 7 December 2002.

Their promotions were subject to the outcome of proceedings before the Supreme Court, and their pay was fixed on the basis of those promotions.

The Supreme Court in D. Raghu v. R. Basaveswarudu protected promotions against the relevant pre-7 December 2002 vacancies.

The applicants were granted third MACP in Grade Pay of ₹4,800 with effect from 6 December 2012, but the respondents later sought to exclude the notional period of service from the MACP calculation, relying on clarifications dated 7 February 2018 and 14 July 2021.

The applicants sought restoration of the MACP and NFSG in Grade Pay of ₹5,400 with effect from 6 December 2016, relying, among other things, on decisions concerning similarly situated employees and M. Subramaniam v. Union of India.

Whether the applicants’ regular Inspector service from 6 December 2002 could be counted for the purpose of MACP, notwithstanding that the promotions followed Review DPC proceedings and were described by the respondents as notional.

Whether, following the applicants’ placement in Grade Pay of ₹4,800 from 6 December 2012, they were entitled to NFSG in Grade Pay of ₹5,400 from 6 December 2016, after four years in that grade.

Whether the applicants were entitled to consequential monetary and pensionary benefits, interest, and relief from the challenged administrative action.

The Tribunal applied the MACP Scheme, including the principle that its “regular service” requirement distinguishes regular service from ad hoc, stop-gap, or purely temporary service.

The Tribunal held that regular service need not be limited to the period after physical assumption of charge where promotion has been granted on a regular basis through due process.

It relied on D. Raghu v. R. Basaveswarudu for the protection of promotions made against vacancies arising before 7 December 2002 and held that administrative instructions cannot override the effect of that judicial protection.

For NFSG, it applied the principle in M. Subramaniam v. Union of India, as affirmed by the Supreme Court, that eligible employees completing four years in Grade Pay of ₹4,800 may be placed in Grade Pay of ₹5,400; it also relied on Tribunal decisions applying that principle.

The Tribunal found that the applicants’ promotion orders granted regular promotion from 6 December 2002 against regular vacancies, and that the Supreme Court had protected the relevant promotions.

It therefore rejected the respondents’ attempt to treat the service from that date as non-regular for MACP purposes, reasoning that such an approach would undermine the promotion already granted and judicially protected.

As the applicants had received the third MACP in Grade Pay of ₹4,800 from 6 December 2012, the Tribunal held that, under M. Subramaniam, they qualified for NFSG in Grade Pay of ₹5,400 after four years, from 6 December 2016.

It accordingly set aside the challenged administrative action insofar as it affected the applicants, but declined to award interest unless the respondents failed to comply within the prescribed period.

The respondents were directed to restore the applicants’ third MACP in Grade Pay of ₹4,800 with effect from 6 December 2012 and grant NFSG in Grade Pay of ₹5,400 with effect from 6 December 2016, with consequential pay refixation and revision of pensionary benefits, where applicable.

The exercise was to be completed within four months of receipt of a certified copy of the order.

Interest was denied unless the respondents failed to comply within that period, in which case outstanding dues would carry simple interest at 6% per annum from expiry of the compliance period until payment.

No order as to costs was made.