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APPLICATION UNDER SECTION 19 OF THE

ADMINISTRATIVESTRIBUNAL ACT 1985

BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL

AT CHENNAI

O.A.No. of 2018

Ganessane Riviere,
Son of……..
Aged …….. years,
No.11, First Cross Street,
Suriya Gandhi Nagar,
Muthialpet Post,
Puducherry - 605 003.
…Applicant

Versus
1. Union of India,
Rep. by its Secretary to Government,
Department of Revenue,
North Block, New Delhi.

2. The Chairman,
Central Board of Excise and Customs,
North Block, New Delhi.

3. Secretary to Government,
Department of Personnel and Training,
North Block, New Delhi.

4. The Commissioner of GST & Central Excise,

Guberc Avenue,
Beach Road, Puducherry, 605 001.

5. Additional Commissioner & Officer Head,

Service Tax III Commissionerate,
Anna Nagar, Chennai.

DETAILS LEADING TO THE APPLICATION:

I. PARTICULARS OF THE ORDER AGAINST WHICH APPLICATION

IS MADE:

Order No. : C No.II/25/4/2017-Pension

Dated : 18.12.2017
Passed by : 4th Respondent

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Subject in brief: Withdrawal of benefit of 3 rd MACP resulting in
reduction of the Applicant’s pay, and recovery of alleged excess pay, in
violation of the extant Rules.

II. JURISDICTION OF THE TRIBUNAL:

The Applicant declares that the subject matter of the order against which
he wants redressal is within the jurisdiction of the Tribunal.

III. LIMITATION:
The  Applicant   further   declares    that     the Application is within
the limitation prescribed in Section 21 of the Administrative Tribunals
Act 1985.

IV. FACTS OF THE CASE:

1. The Applicant entered service as an Inspector in the Central Excise

Department on 03.07.1982, following his selection by the Staff Selection
Commission. From the inception of his service he has been discharging
his duties in a sincere and dedicated manner and won appreciation of
his superiors. (The Applicant’s name was originally Ganessane. His
name was changed to Ganessane Riviere in the year 2010 – Annexure
A- ).

2. By dint of hard work and merit he was promoted to the post of

Superintendent in April 2001. The post of Superintendent initially
carried a pay scale of Rs.6500 – Rs.10500 (V PC) which was later revised
as Rs.7500 – 12000. The next post in the existing hierarchy was the
post of Assistant Commissioner, which is a Group-A post which carried a
pay scale of Rs.8000 – 13500 (V PC). As such upon completion of 24
years of service with effect from 03.07.2006, the Applicant was granted
his 2nd A.C.P. to the said scale of Rs.8000 – 13500/- vide order dated
22.04.2008 (Annexure A- )

3. While so, upon acceptance of the recommendations of VI Pay

Commission, CCS (Revised Pay) Rules 2008, hereinafter referred to as
“the RP Rules” were notified on 29.08.2008 with effect from 01.01.2006.
As on 29.08.2008 when the revised rules were notified the Applicant was
drawing pay in the scale of Rs.8000 – Rs.13500/- which is the scale
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pertaining to the post of Assistant Commissioner by virtue of his 2 nd ACP,
as set out in the previous paragraphs.

Following the notification of the RP Rules”, the pay scales pertaining to

the posts below (which are relevant for the purpose of the present case)
were altered to pay bands as follows:

Sl.No. Post V PC ( VI PC
01 Inspector Rs.5000 – 8000 Rs.9300 – 34800
+ GP Rs.4200/-
02 Superintendent Rs.7500 – 12000 Rs.9300 – 34800
+ GP Rs.4800/-
03 Assistant Rs.8000 - 13500 Rs.9300 – 34800
Commissioner + GP Rs.5400/-

4. It however needs to be stated that in Part C Section II of the RP

Rules, it has been provided that Superintendents, upon completion of 4
years of service would be assigned a Grade Pay of Rs.5,400/- in PB 2. It
is pertinent to state that the Applicant was not actually upgraded to this
scale on 01.01.2006, since on 29.08.2008 when the RP rules were
notified, he was already enjoying the pay scale of Assistant
Commissioner (with effect from 3.07.2006) and therefore entitled to the
Grade Pay of Rs.5,400/- in PB 2 in terms of the revised Pay Band and
Grade Pay for posts in Group A under Section I Part-A of the 1 st Schedule
to the RP Rules. As such, the Applicant had no occasion to avail of the
facility of upgradation, Grade Pay of Rs.5,400/- as Superintendent in
terms of Part C, Section II of the RP Rules.

5. Upon completion of 30 years of service on 03.07.2012, he was

granted the benefit of 3rd MACP to the Grade Pay of Rs.6,600/- in PB 3
vide order dated 10.04.2013. The Applicant also got regular promotion
to the post of Assistant Commissioner following his selection by the DPC
on 23.10.2014.

6. While so, following an audit objection an order dated

12.04.2017(Annexure A- ) was issued, re-fixing the pay of the Applicant
withdrawing the benefit granted under the 3 rd MACP to the Grade Pay of
Rs. 6,600/-. The Applicant challenged the same in OA
No.310/01575/2017. By order dated 11.10.2017 the Hon’ble Central
Administrative Tribunal, Chennai Bench disposed of the said OA by

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directing the competent authority to grant an opportunity of hearing
before deciding upon the re-fixation of pay of the Applicant and kept the
above said order in abeyance.

7. The Applicant submitted a representation dated 23.10.2017

(Annexure A- ) against the withdrawal of the benefit of re-fixation of his
pay to his detriment. But by an order dated 18.12.2017 (Annexure A- )
the 4th Respondent rejected the representation of the Applicant holding
that the Applicant is not eligible for a Grade Pay of Rs.6,600/- in -PB3
with effect from 3.07.2012 and withdrawing the order dated 10.04.2013.
The 4th Respondent also directed that the alleged excess pay drawn by
the Applicant is liable to be recovered.

8. It is submitted that the impugned orders dated 12.04.2017 and

18.12.2017 are arbitrary and unreasonable apart from being in gross
violation of RP Rules and the MACPs.

Under the above circumstances, the Applicant has no other alternative

and efficacious remedy except to approach this Hon’ble Tribunal under
Sec. 19 of the Administrative Tribunals Act, 1985 on the following among
other grounds.

V. GROUNDS WITH LEGAL PROVISIONS:

A. The impugned orders have been passed in gross violation of the

rights of the Applicant under Articles 14, 16 and 300 A of the
Constitution. The said orders are arbitrary and unreasonable and
contrary to established canons of service jurisprudence.

B. The impugned orders are violative of the provisions of the CCS

(Revised Pay) Rules 2008, under which the Applicant is entitled to be
fixed in PB 3 i.e., Rs.15,600 – 39,100/- plus GP Rs.5,400/-, as he was
already enjoying pay in the scale [corresponding to the post of Assistant
Commissioner, which is a Group A post] of Rs.8,000 – Rs.13,500/-
revised as above, having been placed/upgraded to the said scale with
effect from 03.07.2006 prior to 29.08.2008 when the RP Rules were
notified. Hence the impugned order is liable to be set aside.

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C. The impugned order is also grossly violative of the Modified
Assured Career Progression Scheme (MACPS) dated 19.05.2009
(Annexure A- ) under which 3 financial upgradations under MACP would
be granted under the Direct Entry Grade on completion of 10, 20, 30
years of service. “Financial upgradation under the Scheme will be
admissible whenever a person has spent 10 years continuously in the
same Grade Pay”. As set out in para ….. above, the Applicant was
granted 2nd ACP with effect from 03.07.2006 and as such on completion
of 30 years he was granted 3 rd MACP with effect from 03.07.2012 vide
order dated 10.04.2013. As such withdrawing such a benefit citing a
frivolous audit objection is arbitrary and illegal.

D. It is submitted that the impugned order is contrary to the doctrine

of vested rights. It is well established that a retrospective order cannot
interfere with vested rights of parties. In the present case, the Applicant
has already enjoyed the benefit of financial upgradation to the post of
Assistant Commissioner, which is a Group A Post with effect from
03.07.2006 and is as such entitled to GP Rs.5,400/- in PB 3. Depriving
the Applicant of this benefit following the RP Rules which were notified
on 29.08.2008 is clearly illegal.

E. It is further submitted that the ACP Scheme which came into

operation with effect from 09.08.1999 continued to be in force till
31.08.2008. In terms of DPOT OM dated 09.09.2010 the benefit of
financial upgradation in the promotional hierarchy under ACPs has been
allowed in the revised pay structure during the period between
01.01.2006 and 31.08.2008. Hence, the impugned order is liable to be
set aside.

F. Without prejudice to the foregoing, it is submitted that under the

2nd proviso to Rule 5 of the RP Rules, a Government servant who has
been placed in the higher scale between 01.01.2006 and 29.08.2008 on
account of promotion, upgradation etc., may elect to be fixed in revised
pay structure from the date of promotion, upgradation etc., In the
Applicant’s case, initially his 2nd upgradation under ACP was not
withdrawan and accordingly he has also been granted the 3 rd MACP with
effect from 03.01.2012 and it is sought to be withdrawn by the impugned
order. As such there was no necessity for the Applicant to specifically
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exercise such an option. But under the changed circumstances with the
order of re-fixation of pay dated 12.04.2017 which is to his detriment,
the Applicant in his representation dated 23.10.2017 and also written
submissions made to the 4th Respondent during the hearing on
04.12.2017 exercised an option to switch over to the revised scale of pay
from the date of 2nd upgradation under APP i.e., 03.07.2006. The denial
of the said benefit is clearly arbitrary, unreasonable and illegal.

G. Without prejudice to the foregoing, it is also submitted that the

Applicant’s notional placement under GP Rs.5,400/- in the post of
Superintendent in PB2 following the re-fixation envisaged in the order
dated 12.04.2017 is also erroneous. As such upgradation is in the
overall revised pay structure and the movement from Grade Pay
Rs.4,800/- to Grade Pay Rs.5,400/- would not count either as promotion
or financial upgradation for the purpose of MACPs and para 8.1 cited in
the impugned order would not be relevant for re-fixation of pay of the
Applicant.

H. It is also submitted that the impugned order has been passed

without proper application of mind and for extraneous reasons to satiate
an audit objection which has been raised beyond the scope of audit
powers and in defiance of the extant rules.

I. The reasons cited by the 4th Respondent for rejecting the

representation of the Applicant in this regard are clearly unsustainable
in law.

VI. DETAILS OF THE REMEDIES EXHAUSTED:

The Applicant declares that he has availed of all the remedies available to
him under the relevant Service Rules, etc.

VII. MATTERS NOT PREVIOUSLY FILED OR PENDING WITH ANY

OTHER COURT:
The  Applicant  further declares that he  had  not filed  any application,
writ petition or suit regarding  the matter  in respect of which this
Application has been  made before any court of law, or any other

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authority or any other Bench of  the Tribunal and not any such
application,  writ petition or suit is pending.

VIII. RELIEF[S] SOUGHT FOR:

For the reasons stated above, the Applicant prays for the following
reliefs:

1. to call for the records relating to Order No. dated

12.04.2017 passed by the 5th Respondent and quash the same;

2. to call for the records relating order No. C No.II/25/4/2017-

Pension, dated 18.12.2017 passed by the 4 th Respondent and
quash the same.;

3. to direct the Respondents to allow the Applicant to continue to

draw his pay in PB3 with Grade Pay of Rs. 6,600/- as envisaged in
the Pay Fixation order dated 10.04.2013, with all consequential
benefits and
pass such further and other  orders  as may be deemed fit and proper
and thus  render justice.

IX. INTERIM ORDER, IF ANY, PRAYED FOR:

is The Applicant has made out a prima facie case, as the impugned order
is illegal and in violation of the RP Rules and MACPS and also the
clarifications issued by the DOPT. If an interim order is not granted, the
Applicant will be put to irreparable loss and hardship as the
Respondents are taking steps to reduce the emoluments of the Applicant
and also recover the alleged excess pay. On the other hand, no prejudice
will be caused to the Respondents. Balance of convenience lies in favour
of the Applicant.

It is therefore prayed that this Hon’ble Court may be pleased to grant an

INTERIM ORDER STAYING the operation of Order No………………
dated 12.04.2017 passed by the 5th Respondent and Order No.C
No.II/25/4/2017-Pension, dated 18.12.2017 passed by the 4th
Respondent pending disposal of the OA and thus render justice.

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X. This application is being filed through counsel. The address for service
of all notices and processes on the Applicants are as follows:
M/s.Giridhar & Sai
Y.Kavitha, ,
Advocates,  
No.319 (Old.No.155), Third Floor,
Linghi Chetty Street, Chennai 600 001.
Tel. No.: 25243949 & 42163949.

XI. PARTICULARS   OF POSTAL ORDER IN   RESPECT   OF

APPLICATION FEE:

1. No. of Indian Postal orders:

2. Name of the issuing Post office:
3. Date of issue of postal orders:
4. Post Office at which payable:

XII. LIST OF ENCLOSURES:

1.Vakalath
2.Postal orders
3. Typed set.
VERIFICATION
I, Ganessane Riviere, son of Sambasivam, aged about 58 years, residing
at No.11, First Cross Street, Suriya Gandhi Nagar, Muthialpet Post,
Puducherry - 605 003, , now temporarily come down to Chennai, do
hereby verify and state that the contents of paragraphs I to XII are true
to my personal knowledge and belief  and paragraphs  IV and V are
believed to be true on legal advice and I have not suppressed any
material facts.

Dated at Chennai, this the day of January, 2018

Counsel for Applicant Signature of Applicant

St:d:fl18:cat:OA:Ganessane Riveire
Pvsg:cal:(pl no.123/18)

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