Non-functional pay upgradation is an earned entitlement for officers upon fulfilling prescribed service criteria. Satisfaction of these conditions during active employment grants the right to the benefit, which cannot be invalidated by subsequent superannuation prior to formal administrative processing.

JUDGMENT :

C. HARI SHANKAR, J.

1. The issue before us is the entitlement, or otherwise, of the petitioner to non-functional upgradation, [“NFU”, hereinafter] in terms of Office Memorandum dated 24 April 2009 issued by the Department of Personnel and Training, [“DOPT”, hereinafter]. The claim of the petitioner to NFU stands rejected by the Central Administrative Tribunal, [“the Tribunal”, hereinafter] vide judgment dated 29 November 2016 rendered in OA 371/2016, R P Saxena v. UOI & Ors.. The petitioner has challenged the said decision before us in the present proceedings.

2. We have heard Mr. Shanker Raju, learned counsel for the petitioner and Ms. Sangita Rai, learned counsel for the respondents, at length.

3. The issue is short and purely legal.

4. The relevant Clauses of DOPT OM dated 24 April 2009 read as under:

“No. AB.14017/64/2008-Estt.(RR)

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

New Delhi, the 24th April, 2009

Office Memorandum

Subject:- Non-Functional upgradation for Officers of Organised Group 'A' Services in PB-3 and PB-4

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Consequent upon the acceptance of the recommendations of the Sixth Central Pay Commission, the following orders are issued:-

(i) Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay band 3 or Pay Band 4, the officers belong to batches of Organised Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative. Service Officers in that particular grade at the Centre.

(ii) Grant of higher scale would be governed by the terms and conditions given in Annex-I.”

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2. Grant of higher scale (i.e. pay band and/or grade-pay) under these instructions would be w.e.f. 1.1.2006, wherever due and admissible.

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Annexure I

TERMS AND CONDITIONS FOR GRANT OF HIGHER PAY SCALE ON NON-FUNCTIONAL BASIS TO OFFICERS OF ORGANISED GR.' A' SERVICES

1. The non functional up-gradation granted under these orders will be based on empanelment and posting of particular batch of IAS officer in the Centre. Such up-gradation would not be linked to the vacancies in the grade.

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3. All the prescribed eligibility criteria and promotional norms including 'benchmark' for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.

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6. Orders will be issued with the approval of the competent authority. Grant of higher pay scale on the non-functional basis would be from the date of posting of the first officer belonging to the particular batch of IAS officer at the centre.

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8. As and when the normal vacancies in the grade arise, the officer will be considered for regular promotions as per the normal DPC guidelines, based on the provisions of the recruitment rules. UPSC will be consulted wherever the rules provide for the same. However at the time of promotion, the pay in the grade will not be fixed again for officers who have been granted up-gradation under these orders.

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11. ILLUSTRATION:- If officers of 1987 batch of IAS are empanelled as Joint Secretary in the grade pay of Rs. 10,000/in PB 4 and an officer of