Wednesday, 22 August 2018

Grant of financial upgradation under ACP & MACP schemes for the central Government Civilian Employees including Railway employees

NFIR

Grant of financial upgradation under ACP & MACP schemes for the central Government Civilian Employees including Railway employees
MACP
No. IV/MACPs/09/part II
Dated: 21/08/2018
The Secretary / DoP&T
(Department of personnel PG & pension),
Department of personnel & Training,
North Block,
New Delhi.

Dear Sir,

Sub: Grant of financial upgradation under ACP & MACP schemes for the central Government Civilian Employees including Railway employees - reg.

Ref: (i)  Dop&T oM No.35034/1/97-Estt (D) dated 09/08/1999.
        (ii) Dop&T oM No.35034/3/2008-Estt (D) dated 19/05/2009.

NFIR invites kind attention to the OM dated 09/08/1999 wherein the Government of India (DoP&T) had introduced 'Assured career Progression Scheme' (ACPs) for the central Government civilian Employees pursuant to the recommendation of 5th central pay commission. The ACP Scheme was made effective in the Central Government departments from 1999. The ACP Scheme remained functional until 31/08/2008 (as clarified by the DoP&T vide para 9 its OM dated 19/05/2009) due to the fact that the 'Modified Assured Carrer Progression Scheme' was introduced by the DoP&T, replacing ACPS w.e.f. 01/09/2008, pursuant to the recommendations of 6th CPC.
The Federation has however been receiving representations from the Central Government civilian Employees, mainly railway employees from all corners of the country to make the MACP Scheme operational w.e.f. 01/01/2006
01/01/2006 instead from 0l/09/2008, pursuant to the order dated 08th December, 2017 passed by the Hon'ble Supreme Court in Civil Appeal Diary No.3744 of 2016. In this connection, NFIR places following facts for consideration:-
  • on perusal of the order of the Apex court, it is found that the Hon'ble Apex court has held that the MACP is a part of pay structure recommended by the 6th CPC, the same cannot be considerd as allowance which had been given effect from 01/09/2008. The said order has also cited the Resolution dated 30/08/2008 of the Government which was referred in the notification issued by the Ministry of Finance wherein MACP has been defined part of 'Pay structure' and not as 'Allowance' and therefore should be given effect from 01/01/2006.
  • The order dated 8th Dec 2017 passed by the Apex court has already been implemented by the Ministry of Defence, giving effect to the MACPs w.e.f.01/01/2006 through an OM dated 25/07/2018.
  • DoP&T may kindly take note that in para 6.5.2 & 6.5.4 of the report of 6th CPC, the Commission had recommended for implementation of the revised pay structure consisting of Pay Band and Grade Pay w.e.f. 01/01/2006 while the revised allowances were given effect from prospective date i.e. 01/09/2008.
  • Ministry of Finance vide Gazette of India, Extraordinary Notification of Resolution No. 1/1/2008-IC dated 29/08/2008 had implemented revised pay structure (Pay Band & Grade Pay) w.e.f. 01/01/2006 whereas the implementation of MACPS was made effective from 0110912008, Accordingly, Ministry of Railways also implemented revised Pay structure w.e.f. 01/01/2006 vide its order dated 04/09/2008 while the rates of Non Practicing Allowance (NPA) were revised w.e.f. 01/01/2006 vide Board's order dated 22/09/2008. Therefore, the MACPS which is part of Pay structure as decided by Apex Court should be given effect from 01/01/2006 in railways and all other Central Government departments.
  • Another important fact which cannot be ignored is, that the Apex Court had held that the benefit of ACP granted to an employee is part of the Pay structure which not only affects the pay but also pension of the employee, therefore, decided that the ACP is not allowance but a part of pay. At the same time, the Hon'ble Supreme Court further held that there can be no dispute that grant of ACP is part of pay structure and that the resolution dated 30/08/2008 relating to implementation of 6th CPC recommendations on pay structure, pay bands, grade pay etc have been given effect from 0110112006 and also added that this is the decision of the Cabinet which could not have been modified by issuing executive instructions.
  • NFIR suggests that while issuing modified instructions, in compliance with Apex Court order, the DoP&T may allow option opportunity to all those beneficiaries of ACPS as well MACPS to exercise their option for financial upgradation from the dates advantageous to them so as to avoid further grievances.
  • Summing up, NFIR urges upon the DoP&T to kindly consider the above points and issue modified instructions for granting financial upgradation under MACPS with effect from 01/01/2006 as was done by the Ministry of Defence. A copy of the instructions issued may be endorsed to this Federation.
Yours faithfully,
(Dr.M.Raghavaiah)
General Secretary
Source: NFIR

7th CPC and OROP: Revision of Casualty Pensionary Awards in respect of Pre-2006 Armed Forces Officer and JCOs/ORs pensioners


7th CPC and OROP: Revision of Casualty Pensionary Awards in respect of Pre-2006 Armed Forces Officer and JCOs/ORs pensioners - Clarification

OFFICE OF THE PR. CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)
DRAUPADI GHAT, ALLAHABAD- 211014
Circular No. 604
Dated: 16.08.2018
To,

    The Chief Accountant, RBI, Deptt. Of Govt. Bank Accounts, Central office C-7, Second Floor, Bandre- Kuria Complex, P B No 8143, Bandre East Mumbai- 400051
    All CMDs, Public Sector Banks including IDBI Bank
    Nodal Officers, ICICl/ HDFC/ AXIS/ IDBI Banks
    Managers, All CPPCs
    Military and Air Attache, Indian Embassy, Kathmandu, Nepal
    The PCDA (WC), Chandigarh
    The CDA (PD), Meerut
    The CDA, Chennai
    The Director of Treasuries, All States
    The Pay and Accounts Officer, Delhi Administration, RK Puram and Tis Hazari, New Delhi
    The Pay and Accounts Office, Govt of Maharashtra, Mumbai
    The Post Master Kathua (J&K)
    The Post Master Camp Bell Bay
    The Pr. Pay and Accounts Officer, Andaman and Nicobar Administration, Port Blair

Sub:- Revision of Casualty Pensionary Awards in respect of Pre-2006 Armed Forces Officer and JCOs/Ors pensioners: Clarification.

Ref:- This office Circular No. 569 dated 19.10.2016.

There are several representations from various War Veteran Associations demanding the benefit of Maximum of Term of Engagement in OROP as well as in 7th CPC revision quoting the Para-3 of Circular No. 569 dated 19.10.2016. Thus, it appears that there are some misinterpretation /confusion about Para-3 of Circular No. 569 dated 19.10.2016, which needs to be clarified in this regard.

Earlier vide Annexure No.-II of MoD letter No. 200847/Pen-C/71 dated 24.02.1972, there was a provision that Service Element of War Injury Pension will be equal in amount to the normal retiring pension of the rank held at the time of disablement for maximum service of rank. It means Service Element of War Injury Pension was admissible for maximum term of engagement subject to restriction that War Injury Pension should not be more than last pay drawn. Prior to 6th CPC the Service Element/ Service Pension was given 50% of the reckonable emoluments for 33 years of Qualifying Service including weightage, and for lesser period it was proportionately reduced. It is pertinent to mention that after evolution of 6th CPC provision concept of pro-rata reduction has been dispensed with. As per 6th CPC orders pension will be 50% of the last pay drawn irrespective of Qualifying Service. Therefore, relevance of Maximum Term of Engagement becomes obsolete.

The minimum guaranteed pension after implementation of 6th Central Pay Commission, was initially determined on the basis of minimum of the Pay in Pay Band plus Grade Pay vide MoD letter dated 11.11.2008 (Circular No. 397 of this office). This was further modified with issue of MoD letter No. 1(04)/ 2015 / (1)-D (Pen/ Pol) dated 03.09 .2015 for revision of Service Pension/ Service Element in respect of Pre-2006 Commissioned Officers/JCOs/ORs pensioners on the basis of minimum of fitment table for the Rank in the revised Pay Band as indicated under fitment tables, and accordingly Circular No. 547 and 548 has been issued for PBORs and Commissioned Officers respectively. The ibid minimum guaranteed pension was calculated as 50% of minimum of fitment table for 33 years of Qualifying Service including weightage with pro-rata reduction for lesser period.

The minimum guaranteed disability element/war injury element was not covered in the ibid MoD letter dated 03.09.2015. Therefore, .MoD letter No. 16(01)/2014/ D(Pen/ Pol) dated 18.05.2016 was issued (Circular No. 560) for revision of Casualty Pensionary awards in respect of Pre-2006 Armed Forces Officers and JCO/ORs Pensioners/ Family Pensioners, which provides for minimum guaranteed Disability Element/War Injury Element. The clause of pension upto Maximum Term of Engagement in case of War Disabled Pensioners which was admissible prior to 6th CPC was omitted in both the above circulars of minimum guaranteed pension. Therefore, there was a need to clarify this issue and hence the Para-3 has been inserted in Circular No. 569 dated 19.10.2016. After issue of GOI MoD letter No. 1(2)/2016-D(Pen/Pol) dated 30.09.2016 for delinking of qualifying service of 33 years for revision of pension under minimum guaranteed pension, Para No, 3 of Circular No. 569 has become redundant and therefore this Para-3 may be treated as deleted.

After implementation of 6th CPC and subsequently also in 7th CPC, pension will be determined on the basis of 50% of last pay drawn irrespective of Qualifying Service, so the relevance of pro-data reduction for lesser qualifying service become redundant as full pension is admissible for each qualifying service in each rank. Therefore, pension upto term of engagement has also become redundant. Further, the pension as per OROP rates was based on the live data of 2013 retirees where pension was given as per 6th CPC provisions. Therefore, the demand of pension upto term of engagement has also become obsolete.

Therefore, it is requested that the issue may be dealt with accordingly and the pensioner approaching for this may be clarified on similar lines duly stating that pension upto term of engagement in case of war disabled pensioners in OROP as well as 7th CPC revision is irrelevant.

This circular has been uploaded on official website of this office www.pcdapension.nic.in

No. Gts/Tech/05/LXXX
Dated: 16.08.2018
(Sushil Kumar Singh)
Jt. CDA(P)
Source: pcdapension.nic.in

Supreme Court Judgement - Casual Labour Regularisation: Applicable to those Appointed after 1993 & 2006 who completed 10 years service


Supreme Court Judgement - Casual Labour Regularisation: Applicable to those Appointed after 1993 & 2006 who completed 10 years service

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7423-7429 OF 2018
(Arising out of S.L.P. (Civil) Nos. 19832-19838 OF 2017)
Narendra Kumar Tiwari & Ors. Etc. ….Appellants
versus
The State of Jharkhand & Ors. Etc. ….Respondents

JUDGMENT
Madan B. Lokur, J.

1. Leave granted

2. These appeals arise out of the common judgment and order dated 17th November, 2016 passed by a Division Bench of the High Court of Jharkhand in a batch of writ petitions relating to the regularisation of daily wage or contract workers on different posts. The writ petitioners (now appellants) were denied the benefit of regularisation in view of the provisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (hereinafter referred to as the Regularisation Rules).

3. The admitted position is that the appellants are irregularly appointed employees of the State Government. They sought regularisation of their status on the ground that they had put in more than 10 years of service and were therefore entitled to be regularised. The High Court took the view that the decision of the Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors.1 did not permit their regularisation since they had not worked for 10 years on the cut-off date of 10th April, 2006 when the Constitution Bench rendered its decision. According to the High Court, the Regularisation Rules provided a one-time measure of regularisation of the services of irregularly appointed employees based on the cut-off date of 10th April,2006 in terms of the judgment of the Constitution Bench. Therefore, since the appellants had not put in 10 years of service they could not be regularised.

4. The appellants had contended before the High Court that the State of Jharkhand was created only on 15th November, 2000 and therefore no one could have completed 10 years of service with the State of Jharkhand on the cut-off date of 10th April, 2006. Therefore, no one could get the benefit of the Regularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18th July, 2009 and 19th July, 2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State.Consequently, it was submitted that the appellants were discriminated against for no fault of theirs and in an irrational manner.

5. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors.2, we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.

6. The decision in Umadevi (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.

7. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows:

9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the onetime exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the sixmonth period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.

11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments / instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision

in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.

8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.

9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April,2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.

11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.

12. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants.

13. The appeals are accordingly disposed of.

14. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments.
………………………J.
(Madan B. Lokur)

.……………………..J.
(Deepak Gupta)
New Delhi: August 01, 2018

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