The judgment in M. Subramaniam vs. Union of India, regarding non-functional pay upgradation, is a judgment in rem, entitling all similarly situated employees to the same benefits without requiring individual litigation, in accordance with the principles of service jurisprudence and equality.

O R D E R

By Akhil Kumar Srivastava, JM.-

By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicants have prayed for a direction to the respondents to extend the benefit of G.P. of Rs.5400/- on non-functional basis with effect from the date they completed four years regular service in the grade pay of Rs. 4800/- in pursuance of the judgment passed by the Hon’ble Madras High Court affirmed by Hon’ble Supreme Court and followed by this Tribunal in bunch of Original Applications i.e. O.A. No. 24/2015 and other connected matters. Prayer has also been made to grant the benefit of Grade Pay of Rs. 5400/- to the retired officers with effect from the date they completed four years of regular service in the grade pay of Rs. 4800 (from the date of entitlement) by paying them arrears of pay and revising their retiral dues and PPO accordingly.

2. The applicants who were working in the respondents’ department on the different posts, were granted the benefit of second financial upgradation in the Grade Pay of Rs.4800/-. The Government of India issued a Resolution dated 29.08.2008 accepting the recommendation of the Pay Commission inter alia specifying that the Group-B officers of Department of Post, Revenue etc. will be granted Grade Pay of Rs.5,400/- in PB-2 on non-functional basis after rendering four years regular service in the Grade Pay of Rs.4,800/-.

3. The applicants submit that the issue regarding grant of Grade Pay of Rs.5400/- after completion of four years service in the Grade Pay of Rs.4800/-, was agitated by one similarly placed employee M. Subramaniam Vs. U.O.I & Ors before the Hon’ble High Court of Madras in W.P. No.13225/2010 and the Hon’ble High Court has clarified as to how the four years period is to be counted for the purpose of granting non-functional upgradation to Group-B Officer. The same principle has also been followed by the various Benches of this Tribunal. Learned counsel for the applicants also cited an order dated 13.09.2018 passed by the Jabalpur Bench of this Tribunal in OA No. 200/24/2015 – Salman Imteyaz Hussaini & Others Vs. U.O.I & Ors with connected OAs (Annexure A-4) and submits that since the applicants are also similarly placed employees, they have legitimate right to get Grade Pay of Rs.5400/- and the applicants are feeling aggrieved with the action of the respondents in denial of the benefit of up-gradation in the grade pay of 5,400/- have filed the instant original application.

4. In their reply, the respondents have stated that as per Central Board of Excise & Customs clarification dated 11.02.2009, non-functional upgradation to the grade pay of Rs. 5400/- in Pay Band-2 can be given on completion of 4 years of regular service in the grade pay of Rs. 4800/- in PB-2 (pre-revised scale of Rs. 7500-12000) after regular promotion and not on account of financial upgradation due to ACP/MACP. It has also been stated by the respondents that the judgment passed in M. Subramaniam (supra) is a judgment in personam and the Department of Expenditure has clarified that the same cannot be implemented in case of similarly placed officers.

5. We have heard Shri Amardeep Gupta, learned counsel for the applicants and Shri Himanshu Shrivastava, learned counsel for the respondents. We have carefully gone through the entire record, and considered the rival contentions.

6. It is noted that the issue involved in the present original applications have already been settled in number of cases. This Tribunal in the order dated 23.11.2022 passed in OA No. 200/