IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

BENCH, CHENNAI

O.A NO. ______ OF 2018

IN THE MATTER OF :

1. SH.S. GANESANNE RIVIERE

S/O LATE SHRI. SAMBASIVAM

APPLICANT

VERSUS

1. THE CHAIRMAN ,CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH

BLOCK, NEW DELHI .

2. SECRETARY , DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI

3. SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING, NORTH

BLOCK, NEW DELHI.

4. SECRETARY, DEPARTMENT OF EXPENDITURE, NORTH BLOCK, NEW DELHI.

5. PR. CHIEF CONTROLLER OF ACCOUNTS, CENTRAL BOARD OF EXCISE AND

CUSTOMS, A.G.C.R. BUILDIG IST FLOOR , NEW DELHI

6. PRICIPAL CHIEF COMMISSIONER OF GST& CENTRAL EXCISE , TAMIL

NADU&PUDUCHERRY

7. COMMISSIONER OF GST &t CENTRAL EXCISE PUDUCHERRY

RESPONDENTS

APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT

TO

THE HON’BLE CHAIRMAN AND HIS LORDSHIPS COMPANION MEMBERS

CENTRAL ADMINISTRATIVE TRIBUNAL

CHENNAI ATCHENNAI

1. DETAILS OF APPLICATION :

PARTICULARS OF ORDER AGAINST WHICH THIS APPLICATION IS MADE

The Present O.A. is preferred against the Order C.No. II/25/4/2017-Pension

dated 18.12.2017 of the Commissioner of GST& Central Excise, Puducherry .
The applicant is presently working as Assistant Commissioner [Service tax] under the
office of the Commissioner of GST& Central Excise, Puducherry , Central Board of
Excise & Customs, Ministry of Finance, Department of Revenue Government of India.

Vide the above order , the pay of the applicant has been re fixed on the lower side
and thereby recovery is sought be made from the applicant on the ground that Grade
Pay of Rs. 6600/- in PB3 under MACP scheme (3rd Up-gradation ) was wrongly granted
to him.
A copy of the Pay Re fixation Order C.No. II/25/4/2017-Pension dated 18.12.2017 of
the Commissioner of GST& Central Excise, Puducherry is enclosed in Annexure A-1.

2. JURISDICTION OF THE TRIBUNAL :

The Applicants declare that the subject matter against which redressal is sought is within
the jurisdiction of the Tribunal because the Respondent is within the jurisdiction of this
Tribunal.

3. LIMITATION :

The Applicant declare that the Application is within the limitation prescribed under
Section 21 of the Administrative Tribunal Act.

4. FACTS OF THE CASE:

A. The facts and circumstances giving rise to the present Application are mentioned in
detail as under :

That the Applicant is presently working in the office of the Commissioner of GST&
Central Excise, Puducherry,CBEC,Finance Ministry ,Govt of India in the cadre of
Assistant commissioner .The applicant was promoted to the cadre of Assistant
commissioner on 23.10.2014. Prior to his promotion , he was working as
Superintendent of Central excise in the Pondicherry Central Excise Commissionerate
which was falling under the jurisdiction of Chennai Central Excise zone then. He was
promoted to the post of Superintendent of Central Excise in April 2011 in the Pre-
revised Pay Scale of Rs. 6500-10500/- which was revised to Rs. 7500-12000/- w.e.f. 21-
4-2004.

The VI Central Pay commission [VI th CPC in brief) had revised the pay scale of
Superintendents to Rs. 7500 - 12000/- with Corresponding Pay Band & Grade Pay
of PB2+Rs. 4800/- and the pay scale of those Superintendents who have completed 4
years service in the Superintendent cadre to the pay scale of Rs. 8000 – 13500 with
Corresponding Pay Band & Grade Pay of PB2+Rs. 5400/- . The next promotional post
for the Superintendents is Assistant Commissioner with the Pre-revised Pay Scale Rs.
8000-275-13500 (Group A Entry ) and the VI th CPC had introduced a new scale to this
cadre with corresponding Grade Pay of Rs. 5400/- in PB3 .

As per the clarification issued vide letter F.No HRD/CM/175/15/2008-10/324

dated 06.03.2009 of the CBDT[ Annexure A-2]and similar letter F.No 26017/98/2008-
AD IIA dated 16.09.2009 of the CBEC[ Annexure A-3] ,the only criteria for granting the
non-functional scale of 8000-13500 with GP of Rs 5400 in PB2 is regular service of 4
years in the cadre and staying in the grade pay of 4800/for 4 years is not relevant .

On the implementation of the VI th CPC recommendations with effect from 1.1.2006,

the pay of the applicant was required to be fixed straight in the Grade Pay of Rs. 5400/-
in PB-2 in as much as the applicant had completed 4 years of service in the cadre prior
to 01-01-2006 .However, he was not given of this benefit immediately due to divergent
interpretations prevalent at the initial years and so his pay was initially wrongly fixed
in the grade pay of Rs 4800/ in PB2 as on 1.01. 2006 which is applicable only to those
group B officers who have not completed 4 years of service as on 1.1.2006.

Assured Career Progression Scheme[ACP in brief ] was introduced w.e.f. 9-8-1999 by

the Union of India to grant two financial up-gradations; the first one, after
completing 12 years of service and the second one, after completion of 24 year’s service.
The financial up-gradation was to be granted by way of fixation of pay prescribed for the
promotional post in the hierarchy. The said scheme remained in force till 31-8-08. As the
Applicant had completed 24 years of service as on 03.07.06 he was rightly granted
the benefit of the second ACP with effect from 03.07.2006 in the poay scale of 8000-
13500 with GP OF 5400 in PB3 vide order of the CBEC F.No 32013/3/2006-AD–IIA
dated 22.04.2008.[ Annexure A-4]after taking into account that he was given only one
promotion till 3rd July 2006 and ACP had to be given in the Grade pay/pay band of
the hierarchy i.e. Assistant Commissioner.

The CBEC vide its letter F.No .A-26017/98/2008-Ad IIA dated 16.09.2009[ Annexure A-
5]clarified that group “B’ officers of CBEC, who have completed 4 years of service in the
grade pay of Rs 4800/ in PB2 as on 1.1.2006 was eligible for the grade pay of Rs 5400/
and ordered the same shall be granted with retrospective effect from 1.1.2006 on
noticing that it is not linked to any vacancy

Only on the basis of this clarificatory Letter dated 15.09.2009 of the CBEC , the
applicant was granted revised pay scale of [GP of 5400 in PB2] in the year 2011 with
retrospective effect from 1.01.2006 and it merely resulted in rectifying the initial
mistake of fixing his grade as 4800 in PB2 consequent to implementation of the 6th
Pay Commission recommendations and it was not granted as a financial up gradation.

The Union of India had replaced the ACP Scheme by the Modified ACP Scheme[MACP
in short ][ Annexure A-6]with effect from 1.09.2008 as per para1 ofDOPT OM dated
19-5-09 which envisaged three financial up-gradations; the first after 10 years of service,
the second after 20 years of service and the third after 30 years of service. The scope of
the scheme was defined in the para 2 of Annexure to OM dated 19-5-2009 as mere
placement in the immediate next higher grade pay in the hierarchy
of recommended pay bands and grade pay as given in Section I, Part A of the first
schedule of the CCS (Revised Pay ) Rules, 2008.

The applicant was granted the benefit of MACP on completion of 30 years on 3.7.2012
in the form of Grade pay of Rs. 6600/- in PB3 vide order No 6/2013 dated
05.03.2013 of the Commissioner of CEX ,Pondicherry[ Annexure A-7]and it was granted
after duly considering the relevant instructions of the Personnel Ministry , the CBEC
and the jurisdictional Chief Commissioner.

under these circumstances ,an Audit Finding was raised in PARTII /PARA -02/2014
[Annexure A-8] by relying on Circular issued by the CCA,CBEC, New Delhi that the
applicant though entitled for the grade pay of Rs 5400/ in PB2 as on 01.01.2006 and
correctly granted the 2nd ACP w.e.f 3.07.2006, he is not entitled for Grade pay of Rs
6600/- and excess pay given to him on this account since 03.07.2012 , should be
recovered.

By following this Audit finding , Deputy commissioner[Accounts ] Pondicherry issued

letter C.No II/39/14/2014-Estt dated 15.07.2016 [Annexure A-9]and PAO , Chennai
issued letter PAO/CBEC/IAW/SZ/2016-17/2095 dated 17.08.2016 [Annexure A-10]by
pointing out that the granting of Grade pay of 5400 in PB2 to the applicant is to be
treated as a financial up gradation countable for the MACP Scheme and thereby grade
pay of Rs 6600/ was wrongly given to him and consequential recovery should be
made from him .

The office head of Chennai III service tax Commissionerate had followed these
directives and issued an adverse re fixation order C.No. P -1025/11/2014AT dated
18.04.2017 [Annexure A-1]which is ordained to result reduction of salary and
recovery of the supposed excess salary paid to the applicant since 1.1.2006.

VI. The applicant had considered re fixation order as arbitrary and illegal as the
Grade Pay in PB2+Rs. 5400/- was granted to him only as a revised pay scale based on
the recommendations of the 6th CPC and not as a financial up-gradation and as it
was given with effect from 1.1.2006 in the era of ACP ,offsetting it against the MACP
schme which came into effect only from 1.9.2008 is highly arbitrary and illegal and
having aggrieved by the said re fixation order , filed an application with the Hon
Tribunal .
 VI. The Hon Tribunal vide its order no OA/310/01575/2017 DISPOSED THE
VAPPLICATION WITH DIRECTION TOTHE AUTHORITY CONCRNEDTO DECIDED
THE AFRESH AFTER GIVINGOPPRTUNITY TO THE APPLICANT TO RMAKE A
REPRESENTATION.
Consequent to the transfer of the applicant to PUCDUCHERRY on .1.7.2017 , the
competent authority changed to commiisioner og GSTand central excise .Accordingly
arerepresentation was filed on 24.10.2017 with commissioner of gst and central
excise.CONSEQUENTLY, the applicant was personally heard on 4.12.2017 and made
additionoral/ written submissions that
non functional scale wioth GP of Rs. 5,400 /- in PB2 with effect from
01.01.2006is nhot countable both for ACP/MACP schmes

2.1
2.3

3.1
Granting grade pay of Rs. 5,400 /- in PB-2 from grade pay of Rs. 4,800 /- after
completion of four years of regular service is not a financial up-gradation by its
very natureand it is normal pay scale of the Superintendent to be given in
accordance with the CCSrp rules 2008, on completion of four years of regular
service and no question of CBEC GRANTING IT AND CBEC WAS NEVER
enjoyed such authority.GICEN SUCH . Even otherwise, the socalled financial up-
gradation Scheme was given before the introduction of MACP Scheme and
ignored for ACP purpose is not countable even for under MACP Scheme since the
meaning of financial upgradation which is relared to stagnatyion remained the
same and only quantum varied.. Para 8.1 of annexure to the MACP Scheme is
applicable only to those up-gradations granted under MACP Scheme, and
not to those up-gradations granted under earlier ACP Scheme. 4. Re-opening of
past cases is arbitrary and illegal.As he had completed 4 years of service as a
regular Superintendent as on 01.01.2006, he should have been directly placed, in
terms of Revised Pay Rules, 2008, in the PB-2 with grade pay of Rs. 5,400 /- with
effect from 01.01.2006 ANS NO QUESTION OGF requiring any non functional
up gradation.

A copy of Order C. No II/39/01/2014-CF/viz ST-III PF dated 09.05.2017 is annexed and

marked as Annexure [Annexure A-15].

7. It is stated that the Applicant is being aggrieved of discrimination by the re

fixation order C.No. P -1025/11/2014AT dated 18.04.2017[ Annexure A-1]

which is ordained to result reduction of salary and recovery of the supposed excess
salary paid to him since 1.1.2006..

8. GROUNDS FOR RELIEF WITH LEGAL PROVISIONS:

GROUNDS:

T
hat the statement of re fixation of pay dated which is based on the view that Non
functional Grade pay of Rs 5400 in PB2 granted to the applicant from 1.1.2006 as a
Superintendent of Central Excise who completed 4 years in the cadre before 1.1.2006 ,
is countable as a Financial up gradation for the purpose of MACP Scheme is highly
erroneous and illegal.

That para 9 of the covering letter of the scheme, envisages that MACP scheme[
Annexure A-6] was operational w.e.f. 01.09.2008 and financial upgradations as per the
provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008.

That para 5 of the MACP scheme [ Annexure A-6] envisages that Up gradations
granted under the ACP scheme in the past to those grades which now carry the same
grade pay due to merger pay scales/ up gradations of posts recommended by the 6th pay
commission shall be ignored for the purpose of granting up gradations under the MACP
.

That Para 6.1 of the MACP scheme[ Annexure A-6], envisages that in case of ACP up
gradations granted between 1.01.2006 and 31.08.2008, the Government servant has the
option under the CCS [RP] Rules 2008 to have his pay fixed in the revised pay structure
either with effect from 1.01.2006 with reference to his pre revised scale as on 1.01.2006
or with effect from the date of his financial up gradation under ACP with reference to
pre revised scale granted under ACP. In case of option “b” he shall be entitled to his
arrears of pay only from the date of financial up gradation under the ACP.

That FAQ 12 on this schme issued by the Personnel Ministry clarified that only those
ACP granted in the period between 1.9.2008 to 29.05.2009 shall be reviewed.

That the view taken that Rs 6600 Grade pay was wrongly given to the applicant has
been arrived from an isolated reading of Para 8.1 of the MACP scheme that Grade pay of
Rs 5400/ in PB2 and Grade pay of Rs 5400/in PB3 are to be treated as separate Grade
pays for the purpose MACP and without making a harmonious reading of all the
provisions of MACP. Quite apparently , this provision under Para 8.1 is applicable only
to those up gradations granted under the MACP Scheme and not to those up gradations
granted under the earlier ACP Scheme like the one in the case of the applicant .

That the Non-functional grade pay of Rs. 5400/- in PB2 after 4 years of service was
not granted in lieu of functional promotion or alternative to ACP/MACP up gradation.
It is the normal pay scale for the post of Superintendent which was up graded by the 6th
pay commission as clearly indicated in various paras of the 6th Pay Commission report.
This Non functional grade pay of 5400 in PB 2 to certain to certain Group B posts in
various departments such as Superintendent(Posts] Income Tax Officers /
Superintendent, Appraisers Etc (Customs and Central Excise), Pondicherry Civil Service
,etc cadres after 4 years in Grade pay of Rs.4800 ,was recommended on conceding
the demand for higher pay scale and comparing analogous post in other
organizations. The 6th Pay Commission up graded the Cadre with higher pay scale and
it is nothing but a pay scale and different from Financial up gradation. This time scale
of these cadres to be given in normal course and it is no way linked with the MACP or
ACP up gradation by the 6th Pay Commission. ACP/MACP is not part of the normal pay
scale.Even other wise Grade pay of 5400 in PB2 being granted in the era of the ACP
scheme it is not Countable against MACP .

That the pay of all the Superintendents with 4 years of service having been fixed in the
revised pay scale of Rs. 8000 – 13500 (Corresponding GP Rs. 5400 + PB-2) as per the
resolution of Govt of India Notification dated 29.08.08, it cannot be treated as
Financial Up-gradation for the purpose of MACP.
That the MACP is granted to cases where promotions are not given due to non
availability of posts. It was implemented only from 1-9-08 and not from 1-1-06.

That the MACP schme [ para 17 of the Annexure-I] of OM No. 35034/ 3/2008-Estt. (D)
Dated 19-5-2009[ Annexure A-6] mandates constituting Screening Committee in order
to consider fitness / Bench Mark is obligatory as in the case of functional promotion.

That the NFGP on the other hand is the normal pay scale not requiring any Screening
Committee to satisfy the fitness / Bench Mark.

That the revised pay scale for Superintendents of Customs & Central Excise ie Rs. 8000 –
13500 (Grade Pay Rs. 5400+ PB-2) after 4 years of service was required to be fixed
based on the CPC recommendation and at any stretch of imagination it can be
considered as a financial up gradation in lieu of functional promotion as it is a mere
pay Scale

That the Considering of NFGP as a substitute for MACP is a contempt of the pay
commission report which recommended NFGP only as a revised higher pay scale to
the cadre.

That the applicant was given only the NFGP as a revision of pay scale in the era of
ACP and he had not received any financial up gradation in the era of MACP and hence
his case is not falling under Para 8.1 of the scheme. .

That the same office is granting financial up-gradation under MACP Scheme to Officer
of Group B, C and D by following the DOPT circular No 35034/3/2008-estt D dated
16.11.2009[ Annexure A-14] clarifying that up gradations granted under the earlier ACP
Scheme shall be ignored .

That the Ernakulam Bench of Ld. Tribunal in the case of Sh. N.K. Gopinathan Vs. Union
of India[ Annexure A-19] granted G.P. of Rs. 7600/- to Assistant who had been granted
promotion in the pay scale of Rs. 6500-10500 followed by a non-functional scale of
Rs. 8000- 13500(notional from 1.1.96 and actual from 2003) and another promotion in
the pay scale of Rs. 10000-15200. In this case, the Ld. Tribunal did not consider the non-
functional scale as a financial up-gradation.

That the Pay Band associated with any post indicates the status in the hierarchy
like Groups A, B or C etc.as held in the case of Delhi Nurses Union (Regd.) Vs. U.O.I[
Annexure A-20]. by , the Hon’ble High Court of Delhi that the MACP scheme
requires hierarchy of grade pays to be adhered . The findings of the High Court were
upheld by the Hon’ble Supreme Court by dismissing the Appeal of Union of India. .

That offsetting of MACP upgradation with the non-functional time scale amounts to
discrimination and violation of Articles 14 and 16 of the Constitution of India , as the
ACP up gradation was never offset with the time scale.

That the time scale and MACP/ACP upgradation are altogether two different things with
different mechanisms. and procedures. There exist no statutory provisions to offset
MACP benefit by time scale as wrongly clarified by Respondents. The time scale can no
way be linked with the MACP or ACP upgradation.

That the Notification of the Govt. dt. 29.08.08 or MACP notification dt. 19-5-09
does not provide that the benefit of MACP upgradation would be offset by the time
scale granted by the 6th CPC.

That even para 8.1,of the scheme does not speak of offsetting of MACP upgradation
with the non functional grade/time scale. This para has merely divided the single grade
pay of Rs. 5400/- into two categories in arbitrary, illegal and discriminatory manner.
 That the Ministry of personnel vide its letter No 35034/3/2008-estt-D dated 16.11.2008
[ Annexure A-21] clarified that up gradations earned under the ACP Scheme shall be
ignored and only those up gradation earned under the MACP shall be counted for the
purpose of MACP.

That The CBEC vide its letter F.No: A.23011/29/2010-Ad-IIA dated 20.05.2011 [
Annexure A-22]clarified that there would be no effect on grant of ‘Non-functional
Scale’ in PB-2 with grade pay of Rs.5400 during the period between 1.1.2006 to
31.08.2008, as the same is not counted under ACPS and it would not be offset against
financial up gradation under scheme.

T
hat the CBEC vide it’s letter F.No23011/29[ii]2010-AD-IIA dated 06.05.2013[ Annexure
A-23] ,addressed to the Chief Commissioner of CEX [Jaipur Zone] clarified that the
NFSG would be counted for /offset only for MACP ie after 1.09.2008 and the NFSG
has no effect under the ACP.

That the Personnel Ministry and the CBEC though subsequently made a volte-face
and changed the stated position, as clarified in CBEC letter F.No 23011/29/2010-AD-IIA
dated 04.06.2014 and re iterated vide CBEC letters FNo23011/25]2015-AD-IIA dated
20.06.2016,FNo23011/25]2015-AD-IIA dated 20.06.2016 and letter F.No A
26017/149/2016-AdII dated 31.08.2016 and FNo26017/203/2016-AD-IIA dated
07.12.2016 [ Annexure A24-27]that the NFSG granted during the period 1.1.2006 to
31.08.2008 would be counted for /offset under for financial up gradation under the
MACP,the changed stance of Ministry of personnel /the CBEC is not legally tenable for
the simple reason MACP scheme itself contains inbuilt provisions that the financial up
gradations granted in the period where ACP scheme was still operative is not
countable for MACP and MACP scheme is not to be operated retrospectively and the
ACP scheme does not contain any provision to offset any other financial up gradation.

That the Hon High court of Madras under WP No 33946,34602,27798/2014 in the

case of UOI and others Vs Ranjit Samuel and others, [ Annexure A-28] has held that
that MACP Scheme cannot traverse retrospectively to the period prior to 1.9.2008
and In all fairness and fitness of things, till the introduction of MACP Scheme vide Office
Memorandum dated 9.05.2009, the benefit which accrued to the employees under the
erstwhile ACP Scheme ought to have been made available.

That the High court of Kerala in the case of Union of India Vs. Allath Sundaran under
OP[CAT] 4400/2012, [ Annexure A-31] the High court of Delhi in the case of sis kaur vs
Jawaharlal Nehru university under WPNo 76622/2014[ Annexure A-32] , the Hon High
court of Madras in the case o UOI VS Balakrishnan and others [ WP NO 11535of 2014] [
Annexure A-33], the CAT ,Ernakulam vide its order OA NO870/2011 and 873/2011
dated 06.09.2012 in the case of N.K. Gopinathan,Vs Union of India and others[
Annexure A-34], The CAT ,Delhi vide its order OA NO 804/2013 dated 17.11.2014 in
the case of Shaira.A.Khan vs the Planning Commission[ Annexure A-35], The CAT,
Chandigarh in the case of Dhanwantkaurvs UOI vide its OA NO 060/00266/2015 dated
12.04.2016[ Annexure A-36], The CAT ,Ernakulam vide its order OA NO 27/2013
dated 02.08.2013 in the case of N.J.Joseph vs UOI and others , the CAT, Delhi in the
case decided vide its OA NO 1622/2014 dated 18.04.2015[ Annexure A-37] , held that
non functional scale cannot be a substitute for ACP or MACP so as to offset against the
MACP and posts which are placed on higher scale of pay with or without requirement of
any new qualification for holding the post in higher grade specified in the recruitment
rules for the existing post and without involving any change in the responsibility and
duties, the placement of all the incumbents against such upgraded post is not to be
treated as promotion /up gradation and grant of revised scale cannot be treated as
financial up gradation. that the Grade pay of Rs 5400/in PB2 and grade pay of Rs
5400/in PB3 are not to be treated as separate grade pays

That the decided cases on MACP being judgements in Rem are squarely
applicable to the case of the applicant. As held by the Hon supreme court, in the case of
G.C.GhoshVs UOI [(1992) 19 ATC 94 SC] dated 20.7.98, decision taken in one specific
case either by the judiciary or the Government should be applied to all identical cases
(i.e., similarly circumstanced) without forcing other employees to approach the Court of
law for identical remedy or relief

That no excess pay was given to the applicant and this refixation was done
unreasonably and illegally by ignoring all relevant provisions and the settled case
laws so as to cause hardship and harassment to the applicant.

That the Personnel Ministry circular OM No 18/03/2015-Estt-pay I dated 02.03.2016 [

Annexure A-29]issued by relying on the latest and Land mark decision of the Hon
supreme court in the case of state of Punjab and others vs Rafiqmasih [white washer]in
CA No 11527/2014decided on 18.12.2014 took the firm position that recovery in any
case falling under any one of the five categories is impermissible under the law.

i]Recovery from the Employees of group c &d.

Ii] Recovery from the retired Employees or from Employees who are due to retire
within one year from the order of the recovery.

Iii] Recovery from Employees in a case where excess payment was made for more than
5 years

IV] Recovery in cases where wrong promotion was given with consequential pay
benefits.

v] Recovery is iniquitous or harsh or arbitrary and outweighs the equitable balance of the
employer right to recover.

That this OM is advising to make the recovery strictly in accordance with the above
decision of the Hon Apex court and in cases where waiver is considered, to allow it with
the prior approval of the Expenditure Ministry. The CBEC by accepting this position ,
vide its letter F.No 26017/203/203-Ad-IIA dated 7.12.2016 [ Annexure A-30] has given
directions to strictly follow the Apex court guide lines.

That the Audit PART II/PARA-02/2014 on which basis this refixation has been done is
itself based on the earlier CBEC circular which was substantially modified vide latest
CBEC‘s letter which emphatically directing all cadre controlling authorities to follow the
guidelines while making the recovery.

That the instruction issued under the CBEC letter in letter and spirit has not been
followed in the case of the applicant since recovery from an employee who is to retire
within one year is impermissible under the law.

That the above decision of the Hon supreme court is the settled law of the land which
has not only been accepted by the CBEC /Personnel Ministry but also being followed by
all the High courts and benches of the CAT .Say for instance.

That the High court of Karnataka vide its Judgement in WP No 4111/2014[S-KAT]

dated 11.08.2014 in the case of H.R. Nagaraj,the CAT ,Bangalore vide its order OA
NO 170/01677/2015 dated 29.07.2016 in the case of Sri kanta vs the UOI, the CAT,
Allahabad vide its order OA NO 330/00023 /2014 dated 27.05.2016 in the case of
Aniruthkumar Mishra vs the UOI, The CAT ,Jabalpur vide its order OA NO
201/00338/2014& 201/00391/2014 dated 13.01..2016 in the case of Rajesh kanna and
the General manager , The High court of Madras vide its Judgement in WP No
28023/2013 dated 14.07.2016 in the cases of V.Karpagam vs. State of Tamilnadu ,UOI
vs the Registrar in WP No38124/2016 dated 3.11.2016 and the Gen Manager vs the
Registrar in WP No 40557/2016 dated 18.11.2016, The High court of Gujarat vide its
Judgments in SCA 438,439/2013 others dated 03.03.2016 in the case of Kareliyh vs
executive engineer . in the case of BabulalBhimjiBhai Radaliya dated 17.03.2016, SCA
10279/2012 dated in the case of Ambalal purshotamparmar vs Gujarat water
supply and sewage, SCA 15720/2015, Even in the latest decision of the CAT, Ernakulam
in CA NO 180/0005/2016 and others in the case A Praveen kumar vs UOI and others
decided on 06.04.2027 has held by relying on the Hon Apex court in the case of
Rafiqmasih court [CA No 11527/2014] that recovery in the any one of the 5 exceptional
cases is impermissible under the law.

that the applicant never made any misrepresentation or wrong claim. Every decision
relevant was made by the department[ CBEC] and he simply acted with bonafide belief
without having any slightest doubt that h was legally entitled for the salary paid to
him .The whole disarray was caused by different interpretations at different times both
by the Personnel Ministry and the CBEC, for which the applicant cannot be made to
incur financial loss.

That the impugned action of the Respondents depriving the Applicants from next
MACP upgradation in the next higher Grade Pay is violative of Article 14 and 16 being
arbitrary, illegal and discriminatory thus is liable to be quashed.

that the orders of provisional recovery in the impugned order is bad in law in as much
as the Respondents cannot recover any amount in anticipation or on the ground of
uncertainty.

that even otherwise the impugned action of the Respondents is bad both on law and
facts.

6. DETAILS OF REMEDIES EXHAUSTED : The Respondents have discriminated the

applicants by violating the scheme of Art 14 and 16 of the Constitution of India and not
provided the remedies despite representations made to them and forced the applicant
to seek remedy from this Hon.Court as he is likely to retire within 8 months and suffer
irreparable harm and injury if urgent orders are not passed against the refixation order
and consequent recovery action .

7. MATTERS PREVIOUSLY WITH ANY OTHER COURT:

The Applicant has not filed any other Petition in any Tribunal or in the High Court or in
the Supreme Court challenging the same action of the Respondents and the impugned
order of penalty.

8. RELIEF SOUGHT:

The Applicant therefore prays that this Hon’ble Court may be pleased to:

Direct the Respondents to produce the Record of the Scheme i.e. Resolution of
Government of India, Ministry of Finance, Department of Expenditure dated 29-8-08.

Quash Audit Finding PART II /PARA -02/2014 letter C.No II/39/14/2014-Estt dated
15.07.2016 of the Deputy commissioner[Accounts ] Pondicherry and letter
PAO/CBEC/IAW/SZ/2016-17/2095 Dated 17.08.2016 of PAO Office, Chennai and para -
8.1 of the Annexure-I to the DOP&T OM dated 19-5-09 issued under No.
35034/3/2008-Estt.(D).

C. Issue Directions to the Respondents to quash the offsetting of MACP up-gradation

with the time scale and declare para 8.1 as against the scope of MACPS and also up held
granting of grade pay of Rs. 6600/- as the IIIrd MACP to the applicant .

To stay any permanent/provisional recovery in relation of offsetting of MACP

upgradation with the Non functional grade/time scale vide any order throughout India
including the re fixation order C.No. P -1025/11/2014AT dated 18.04.2017 of the office
head of Chennai III service tax Commissionerate

To hold that the recovery is impermissible under the law in the case of the applicant
Pass such other order as this Hon’ble Court may deem fit and proper in the interest of
justice.

9. GROUNDS FOR INTERIM RELIEF:

10. INTERIM ORDR IF ANY PRAYED FOR PENDING DECISION OF THE TRIBUNAL :

i. Grant ex-parte stay against any permanent / provisional recovery in relation

of offsetting of MACP up-gradation with the time scale vide any order
throughout India including the re fixation order C.No. P -1025/11/2014AT dated
18.04.2017 issued by the [office head] Additional Commissioner, service tax III
Commissionerate , Chennai service tax zone, Chennai.

ii. Grant ex-parte stay on the objection of Audit Finding PART II /PARA -
02/2014 letter C.No II/39/14/2014-Estt dated 15.07.2016 of the Deputy
commissioner[Accounts ] Pondicherry and letter PAO/CBEC/IAW/SZ/2016-17/2095
Dated 17.08.2016 of PAO Office, Chennai .

iii. Pass any such other order of orders, as may be deemed fit and proper

11. In the event of application being sent by registered post.

Not applicable.

Particulars of the Postal Order filed in respect of the application fee.

Postal Order No. :

Value of the Postal Order:

Date of Issue:

Payable at:

Issue by Post Office:

12. List of Enclosures:

As per Index.

APPLICANT

VERIFICATION:

I, S. GANESANNE RIVIERE presently at CHENNAI do hereby verify on this day of that

the contents of the above OA are true and correct to best of my knowledge.

APPLICANT

CHENNAI
DATE:

FILED BY