GRANT OF 5400 GRADE PAY TO GROUP B OFFICERS OF CUSTOMS AND CENTRAL EXCISE.

There is no doubt that the ACP Inspectors are in Gouop ‘B’ and placed in Grade pay 4800.The DOPT/CBEC had been saying no to ACP inspectors basing on the ‘Regular Service in the Grade Pay of 4800’ . They may say that the Regular Service means Regular Service in the Post of entry grade where 4800 grade pay is attached, this is also ruled out because all the Superintendents baring few( Direct Supdts or Appraisers), all the officers are promotees. Now we analyze the ‘Regular Service’.
AS PER CONDITIONS FOR GRANT OF BENEFITS UNDER THE ACP SCHEME 1999
3.2 ‘Regular Service’ for the purpose of the ACP Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant Recruitment/ Service Rules.
4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly;
6. Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group ‘D’ employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme;
9. On upgradation under the ACP Scheme, pay of an employee shall be fixed under the provisions of FR 22(I) a(1) subject to a minimum financial benefit of Rs.100/- as per the Department of Personnel and Training Office Memorandum No.1/6/97-Pay.I dated July 5, 1999. The financial benefit allowed under the ACP Scheme shall be final and no pay-fixation benefit shall accrue at the time of regular promotion i.e. posting against a functional post in the higher grade;
11. In the matter of disciplinary/penalty proceedings, grant of benefits under the ACP Scheme shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of relevant CCS(CCA) Rules, 1965 and instructions thereunder;
From the above it is clear that Regular service after Ist ACP is taken as 12 years from the date of first ACP as Inspector or in the same post. It is not the service that counted as Superintendent or the higher post.Thus regular service cannot be taken different for different reasons and different situations.
The case law of Delhi High Court speaks as follows in our favour.

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SERVICE MATTER
WRIT PETITION (CIVIL) NO. 9224 OF 2006
Date of decision: 7th August, 2006.
Union of India ........Petitioner
through: Mr.Atul Bandhu, advocate.
Versus
Prakash Chand & Ors. ........Respondents.
through: Nemo.
Coram :
Hon'ble Mr.Justice Manmohan Sarin.
Hon'ble Ms.Justice Aruna Suresh.
Aruna Suresh, J.
1. The petitioner, Union of India, aggrieved by the order dated 15.12.2005 of
the Central Administrative Tribunal (in short the Tribunal), Principal Bench, Delhi, has
assailed the same before us in the present writ petition. By virtue of the said order dated
15.12.2005, the Tribunal was pleased to quash the order dated 19.1.2004 issued by the
Ministry of Small Scale Industries whereby financial upgradation under the Assured
Career Progression (in short ACP) Scheme granted to respondents in the scale of
Rs.5500-9000 was down graded in the scale of Rs.5000-8000, in view of the clarification
No.56 under the ACP Scheme issued by Deptt. of Personnel and Training (in short
DOPT) on 18th July,2001. The Tribunal restored the financial benefits granted to
respondents by way of granting them ACP in the scale of Rs.5500-9000 with
consequential recoveries.
2. Respondents were appointed as Lower Division Clerks(LDCs) with Small
Industries Service Institute, Ministry of Small Scale Industries, Udyog Bhawan, New
Delhi. They were promoted as Upper Division Clerks (UDCs) in the pay scale of
Rs.4000-6000/-. As per the existing hierarchy, under the recruitment rules the applicants
are to be promoted to the post of Superintendent in the pay scale of Rs.5500-9000/-.
3. By virtue of Vth Central Pay Commission recommendations for ACP
Scheme had been introduced. Deptt. of Personnel and Training vide Office Memo
No.35034/1/97-Estt.(D) dated 9.8.99 issued guidelines for the implementation of ACP.
As per condition No.7 of the Scheme financial upgradation shall be given to the next
higher grade in accordance with the existing hierarchy in a cadre/ category of post
without creating new posts for the purpose. For the sake of convenience condition No.7
is reproduced below:-
“7. Financial upgradation under the Scheme shall be given to the next higher grade, in
accordance with the existing hierarchy in a cadre/ category of posts without creating new
posts for the purpose. However, in case of isolated posts, in the absence of defined
hierarchical grades, financial upgradation shall be given by the Ministries/ Departments
concerned in the immediately next higher pay-scales as indicated in ANNEXURE-II
which is in keeping with Part-A of the First Schedule annexed to the Notification dated
September 30,1997 of the Ministry of Finance (Department of Expenditure). For
instance incumbents of isolated posts in the pay Scale S-4, as indicated in Annexure-II
will be eligible for the proposed two financial upgradations only to the pay-scale S-5 and
S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the
relevant scales of Pay) has been recommended by the Fifth Central pay Commission only
for the incumbents of Isolated Posts which have no avenues of promotion at all. Since
financial upgradations under the Scheme shall be personal to the incumbent of the
isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts
which are part of a well-defined cadre shall not qualify for the ACP Scheme on `dynamic'
basis. The ACP benefits in their case shall be granted conforming to the existing
hierarchical structure only.”
4. The petitioner before us decided to implement the ACP Scheme and
accordingly placed the respondents in the next hierarchical grade in accordance with the
existing hierarchy. Since there were some doubts in the mind of the State, clarifications
were sought. DOPT issued clarificatory Office Memo. dated 18.7.2001. Vide
clarification No.56 it was clarified that in respect of common category posts like UDCs,
Assistants and Superintends, the hierarchies that exists on all-India basis should be taken
into account and not the hierarchies which exist in a particular office for the purpose of
granting ACP benefit. It was further clarified that in Small Industries Development
Organization UDCs have been granted ACP benefit with respect to next higher post of
Superintendent in the pay scale of Rs.5500-9000/-. This benefit is required to be
reviewed and rectified by granting them ACP benefit in the next higher post of Assistant
in the subordinate office of Government of India in the scale of Rs.5000-8000 by taking
into account All India hierarchies of such common category posts. It was further
observed that this rectification shall be effective from 9.8.1999 or the date from which the
concerned employee had been granted actual ACP benefit in the scale of pay of Rs.5500-
9000 whichever was later.
5. Vide its order dated 19.1.2004, the Ministry of Small Scale Industries
rejected the representation of the respondents and ordered that ACP benefits originally in
the scale of Rs.5500-9000 shall be deemed to have been accepted in the modified form to
provide grant of ACP in the scale of Rs.5000-8000. Accordingly the pay scale of
respondents was refixed in the lower grade of Rs.5000-8000 with the order of recovery of
excessive amount paid, if any. This resulted in filing of OA No.557/2004 by respondents
in the Central Administrative Tribunal, Principal Bench. By virtue of this application,
applicants assailed the order dated 19.1.2004 whereby financial upgradation under the
ACP granted to them in the scale of Rs.5500-9000 was down graded in the scale of
Rs.5000-8000, in the light of clarification No.56 under the ACP Scheme, issued by
DOPT on 18.7.2001. They sought setting aside of the order dated 19.1.2004.
6. The matter was referred to the Full Bench of the Tribunal for a decision on
whether clarification No.56 issued by DOPT on 18.7.2001 would have an effect of
rendering condition No.7 of the ACP Scheme redundant and taking away the right
accrued to a government servant in his hierarchy to be granted financial upgradation
under ACP Scheme. This reference was considered by the Full Bench of the Tribunal.
Vide its detailed order dated 16.2.2005 the above reference was answered as follows:-
“ Clarification No.56 issued by the Department of Personnel & Training on
18.7.2001 will have the effect of rendering condition No.7 of the ACP Scheme as
redundant. It cannot take away the right that has accrued to the Government servant in
his existing hierarchy with respect to the grant of the scale to be granted by way of
financial upgradation.”
7. On the basis of this answer the Division Bench of the Tribunal proceeded
with the O.A. and vide its order dated 15.12.2005 observed as follows:-
“ In the light of the aforesaid Full Bench decision, Clarification No.56 issued by
DOPT on 18.7.2001 having been made ineffective, condition No.7 of the ACP Scheme
stands revised and the right accrued to the applicant in his hierarchy for grant of financial
upgradation under ACP Scheme restored. As such, Annexure A-1 dated 19.1.2004 is
quashed and set aside and respondents are directed to restore financial upgradation to the
applicants in scale Rs.5500-9000 w.e.f. 10.5.2002 as accorded to them originally.
Applicants shall be entitled to consequential benefits. O.A. is allowed accordingly.”
8. It is an admitted case of the petitioner that in view of the decisions of
Guwahati, Kolkata and Jabalpur benches of the Central Administrative Tribunal, the
recovery has been rendered illegal and therefore the petitioner had accepted in principle
foregoing of recovery from the respondents.
9. Learned counsel for the petitioner submits that Tribunal failed to
appreciate that ACP Scheme was administrative in nature and clarification of instructions
issued thereon obviating the points of the doubts would not render it illegal and arbitrary
per se. A person becomes entitled to the next financial upgradation based on existing
hierarchy in a particular cadre in respect of next higher pay scale available in the service
as per the unamended para 7 annexed as Annexure-1 to Office Memo. Dated 9.8.1999. It
was further pointed out that quashing of clarification of Office Memo by the Tribunal
would result into financial upgradation in terms of ACP Scheme depending upon next
promotional post in a particular office irrespective of the fact that in any other office the
next promotional post might be different and might be attracting higher or lower pay
scale resulting into different financial upgradations amongst employees of a common
service and similarly situated in all respects.
10. The fact remains that the effect of DOPT Office Memo. Dated 18.7.2001
and clarification No.56 if implemented would take away the vested right of the
government servant in his existing hierarchy with respect to the grant of scale to be
granted by way of financial upgradation under the ACP Scheme. The Government
cannot amend or supersede statutory rules by administrative instructions. But if the rules
are silent on any particular point, the government can fill up the gap and supplement the
rules and issue instructions not inconsistent with the rules already framed and these
instructions shall govern the condition of service.
11. In the case Director General of Posts & Ors. Vs. B.Ravindran & Anr.
(1997) 1 SCC 641, in some what similar situation Supreme Court observed that the
Government could not have, under the guise of a clarificatory order, taken away the right
which had accrued to such re-employed pensioners with retrospective effect by declaring
that while considering hardship the last pay drawn at the time of retirement was to be
compared with the initial pay plus pension whether ignorable or not. The Supreme Court
further observed clarificatory instructions cannot supersede or take away the right itself
under the regulations sought to be clarified.
12. In the instant case clarification No.56 had been issued to clarify the
provision/ condition contained in the ACP Scheme, therefore, this clarification cannot
supersede the basic provision and condition specified in the Scheme for grant of benefits.
13. In these circumstances we do not find any illegality in the reference order
dated 16.2.2005 and the subsequent order dated 15.12.2005 whereby the order of the
Government of India, Ministry of Small Scale Industries dated 19.1.2004, was quashed
and set aside. The writ petition is, accordingly, dismissed.
( Aruna Suresh )
Judge
( Manmohan Sarin )
Judge