Sanjeev Kaushik, Member (J).
1. The applicants herein, who are blind, came to be appointed to an isolated post of Caneman in the year 1984. The Government introduced Assured Career Progression Scheme (for short ACP) on 9.8.1999 under which employees who had completed 12 and 24 years of service, without getting any promotion, were to be placed in the pay scale of Rs.4000-6000 and Rs.5000-8000 respectively. The applicants were granted pay scale of Rs.4000-6000 under ACP Scheme w.e.f. 9.8.1999, though they were entitled to be granted the 2nd ACP also w.e.f. 9.8.1999, as they had completed 24 years of service.
2. The ACP Scheme was substituted by a new MACP Scheme applicable w.e.f. 1.9.2008, under which one was entitled to three financial up-gradations on completion of 10, 20 and 30 years of service. It was, however, mentioned that the cases already settled would not be re-opened. In O.A.No.637-HR-2005 (Dhanna Lal and Others Vs. Union of India and Others) decided on 11.12.2006, a coordinate Bench of this Tribunal has held that Since the 5th Pay Commission in respect of Upholsterer has recommended no specific pay scales, the pay scales applicable for similar posts in the same Ministry should be allowed under the ACP Scheme to the Caneman also. In the present case, the department at its own had granted the 1st A.C.P. scale of Rs.4000-6000 and they have further been granted the benefit of 2nd A.C.P. scale recently, through Ann. A6 dt. 2.9.2006 in the sale of Rs.5000-8000. The applicants therein were held entitled to first ACP in the pay scale of Rs.4000-6000. The applicants herein claim benefit of said decision on the ground that they are identically situated employees.
3. The other ground raised in support of their claim by the applicants is that the MACP was introduced on 19.5.2009 but was made effective from 1.9.2008 only which is alleged to be illegal on the ground that the same could not be applied retrospectively. Reliance is also placed on O.A.No.1003-PB-2011 Amar Singh and others Vs. Union of India and Others, decided on 23.2.2012, to contend that in that case persons who had completed their 24 years prior to 19.5.2009 are to be governed by earlier ACP Scheme of 9.8.1999 and they were given pay scale of Rs.5000-8000 as 2nd financial upgradation under the ACP Scheme. The applicants have, therefore, sought quashing of the MACP Scheme dated 19.5.2009 on the premise of its having been made applicable retrospectively w.e.f. 1.9.2008 instead of from 19.5.2009 and for grant of a direction to the respondents to consider their case and grant them benefit of 2nd MACP in the pay scale of Rs.5000-8000 on completion of 24 years of service.
4. The plea of the respondents is that in case applicants have any grievance, they should not have opted to the revised pay scale w.e.f. 1.1.2006. They have opted for the same after availing the benefit of 2nd ACP i.e. after 14.9.2008 and 18.9.2008 respectively with pre-revised scale. The Old Scheme was applicable upto 21.8.2008 and new MACP has come into place w.e.f. 1.9.2008 and validity of cut off date cannot be challenged by the applicants. The applicants in this case are entitled to second ACP w.e.f. 14.9.2008 and 18.9.2008 i.e. after the cut of date and as such they can be granted only the relevant grade pay and not the converted PB+ Grade pay of Rs.5000-8000. The settled cases would fall w.e.f. 1.1.2006 to 31.8.2008 and not thereafter. However, the respondents admit in para 4 (v) of reply to amended O.A. that they were entitled for 2nd MACP w.e.f. 1.01.2008 which has since been granted in PB Rs.5200-20200.
5. We have heard learned counsel for the parties and given our thoughtful consideration to the entire matter.
6. The issue raised in these cases is no longer res-integra and stands settled by a decision of this Tribunal in O.A.No.1003-PB-2011 Amar Singh and Others Vs. Union of India and Others, decided on 23.2.2012 in which it was held as under :-
"10. On merits, we find that it is now a well settled principle of law that conditions of service cannot be altered retrospectively to the prejudice of a public servant. The judgments cited by the learned counsel for the applicants clearly lay down that the applicants cannot be made to suffer on account of any decision applied retrospectively. The DOPT had taken into account this aspect of the matter and in para 11 of their OM no. 35034/3/2008.EStt. (D), dated 19.5.2009, it has been clearly stated as follows:-
It is clarified that no past cases will be re-opened. Further, while implementing the MACP Scheme the differences in pay-scales on account of grant of financial upgradation under the ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly.
This para has not been discussed at all in the speaking order dated 25.8.2011 issued by the respondents.
11. The applicants cases are within the ambit of the provision in the above-mentioned letter dated 19.5.2009, para 11, since these cases would constitute past cases because these were decided before the coming into force of the MACP Scheme. They had been granted the second ACP on different dates in 2008-2009, which are prior to the date of the issue of the MACP Scheme i.e. 19.5.2009. Since these applicants had obtained the said benefits under the old ACP Scheme before 19.5.2009, therefore, they would be covered under the definition of past cases and as provided in para 11 of the Scheme, these cases are not to be reopened. Therefore, we find that the respondents have misinterpreted the provision of this para of the Scheme and have wrongly withdrawn the earlier benefit from the applicants. Therefore, the impugned order dated 25.8.2011 is hereby quashed and set aside and consequently, the respondents are directed to fix the pay of the applicants after ensuring that they do not suffer any prejudice vis-a-vis the pay-scales already granted to them. They are also directed to ensure that all the applicants, who, if they are similarly placed and had all got/were eligible for the 2nd ACP before 19.5.2009, are given similar benefits as per law and rules and their eligibility. Consequently, no recovery is to be made from the applicants. This exercise may be completed within a period of 4 months from the date of receipt of a copy of this order. The applicants have also prayed that para 9 of the OM dated 19.5.2009 may be quashed. For the reasons mentioned in the preceding paras, we find that this is not required since the OM already provides that past cases are not to be re-opened."
7. The facts of the present case are found to be squarely on identical lines as in the case of Amar Singh (supra) as the learned counsel for the respondents was unable to brought to our notice any distinguishable feature inasmuch as despite availability of cut off date of 1.9.2008, the Co-ordinate Bench has opined that benefits granted or becoming available after 1.9.2008 and prior to 19.5.2009 would fall within the ambit of past cases and could not be reopened. In theses cases the applicants had completed 24 years of service in the year 2008, though after the cut off date.
8. At this stage learned counsel for the respondents produced copy of an order dated 18.3.2014 passed by the Honble High Court of Punjab and Haryana in CWP No.24958-2012 (OandM) in which order passed in the case of Amar Singh (supra) has been challenged and the Honble Court has been pleased to stay the operation of the impugned. Learned counsel for the applicants submitted that let this case be disposed of in the terms of Amar Singh and Others (supra) and the applicants would be bound by the ultimate outcome of the decision in CWP No.24958-2012. The learned counsel for the respondents does not object to the proposition made by learned counsel for the applicants.
9. In view of the fact that the issue already stands clinched by this Tribunal and is pending in appeal, it would not be proper to keep this case pending and is disposed of, on consensual basis, with an observation that it is covered by the decision in the case of Amar Singh (supra) but the grant of actual relief would depend upon the final outcome of the CWP aforementioned, as per the undertaking given by learned counsel for the applicants.
10. The stands disposed of in the above terms, leaving the parties to bear their own costs.