Non-functional ACP/MACP pay upgradations protected on compassionate transfer in same grade; no reversion fixation without promotion.

ORDER

Justice K.Haripal

Applicant, a U.D.Clerk in the office of the Head Quarters, Southern Naval Command, Kochi, is aggrieved by the decision of the Principal Controller of Defence Accounts, Mumbai for revising and reducing her basic pay with effect from 16.11.2004, long after nearly 18 years of grant of such pay.

2. Applicant had entered Defence Service in the Army in Parachute Regiment in Pune as L.D.Clerk on 19.11.1986 on temporary basis. Later she was transferred to Army Service Corps in Bangalore on 01.11.1987 and then to the Defence Security Corps, Kannur on 02.07.1993. While working in Kannur, on completion of 12 years of service in the same cadre, she was granted 1^st ACP with effect from 01.11.1999 and was granted the pay of U.D.Clerk in the scale of Rs.4000-6000. While so, on compassionate ground she was granted transfer to the Head Quarters, Southern Naval Command on 16.11.2004. She was appointed as L.D.C. as per the extant norms and continued as such in the same pay at bottom seniority. While so, with effect from 01.09.2008 she was granted 2^nd MACP and thus during the period when she was working as L.D.C., both in the Army and Navy, she was granted two non-functional upgradations namely 1^st ACP and 2^nd MACP. Then on 01.04.2016 she was promoted as U.D.Clerk and thus obtained the first ever functional upgradation. It is reiterated that, all these period her fixation was vetted by the Audit Department and found in order. While working as U.D.Clerk, she was granted 3^rd MACP with effect from 19.11.2016. But when the fixation statement, following grant of 3^rd MACP, was sent for audit remarks, the Principal Controller of Defence Accounts insisted that she should be given reversion fixation and thus Annexure-A1 was issued. The relevant portion of Annexure-A1 reads thus:

“2. Accordingly, your pay is to be re-fixed in the scale of pay of Rs.3050-75- 3950-80-4590 w.e.f 16 Nov 04 on reporting to this Headquarters as per Rule FR 15(A). The 2^nd and 3^rd financial upgradations under MACP scheme granted in PB 1 with GP Rs.2800/- and Level 6 of 7^th CPC Pay Matrix w.e.f 01 Sep 2008 and 19 Nov 16 respectively are to be revised to PB 1 with GP Rs.2,000/- and Level 5 of 7^th CPC Pay Matrix respectively.”

3. Accordingly, her pay was proposed to be refixed. Aggrieved by the same, the applicant has approached this Tribunal seeking a declaration that grant of Grade Pay of Rs.2800/- as the 2^nd financial upgradation under the MACP scheme with effect from 01.09.2008 and grant of 3^rd financial upgradation to Level 6 of the pay matrix with effect from 19.11.2016 are perfectly in order and there are no mistakes or illegality and to declare that Annexure-A1 is patently illegal and not sustainable and to quash the same.

4. According to the applicant, at the time when the 1^st ACP was granted, she was drawing pay in the scale of Rs.3050-4590. As per the norms for grant of ACP during the 5^th CPC she was granted fixation in the scale of the next higher post, that is U.D.C., in the scale of Rs.4000-6000 which was vetted by the Audit department. Referring to Annexure-A4 she said that when she had joined the Navy on compassionate appointment, it was specifically stated that her posting on transfer does not involve any change in trade or grade and therefore, the services rendered prior to the said posting will be treated as continuous and she is entitled to draw the very same pay. Similarly, even at the time when the 2^nd MACP was granted, she was working as L.D.C. While so, she was promoted as U.D.Clerk under Annexure-A8 order. At that time, she was drawing pay in the