Central Administrative Tribunal - Ernakulam

R.A.No.180/00023/2017 In ... vs The Chairman on 4 July, 2017

.1.

CENTRAL ADMINISTRATIVE TRIBUNAL

ERNAKULAM BENCH

R.A.No.180/00023/2017 in O.A.No.180/00651/2016,
R.A.No.180/00024/2017 in O.A.No.180/00005/2016,
R.A.No.180/00025/2017 in O.A.No.180/00089/2016,
R.A.No.180/00026/2017 in O.A.No.180/00488/2016,
R.A.No.180/00027/2017 in O.A.No.180/00725/2016
& R.A.No.180/00028/2017 in O.A.No.180/00726/2016

Tuesday, this the 4th day of July, 2017

CORAM:

HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER

HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER

R.A.No.180/00023/2017 in O.A.No.180/00651/2016
K.R.Satish, S/o.late K.N.Ramesh,
Assistant Commissioner of Central Excise,
(Retired on superannuation on 31.7.2016)
Office of the Commissioner of Central Excise,
Central Revenue Buildings, I.S.Press Road, Cochin - 682 011.
Residing at Shivapadh, Near Government UP School,
Padamugal, Kakkanad P.O., Ernakulam - 682 030. .
. . Review

Applicant

(By Advocate Mr.Shafik M Abdul Khadir)

Versus

1. The Chairman,
Central Board of Excise and Customs,
Department of Revenue, Ministry of Finance,
North Block, New Delhi.

2. The Deputy Secretary,

Central Board of Excise and Customs,
North Block, New Delhi.

3. The Commissioner of Central Excise,

Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.

4. The Deputy Controller of Accounts,

Central Excise, 121, Mahatma Gandhi Road,
Chennai - 600 034.

5. The Pay and Accounts Officer,

Central Excise and Customs, Cochin - 682 018. . . .
Respondents
.2.

(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])

R.A.No.180/00024/2017 in O.A.No.180/00005/2016
A.Praveen Kumar,
S/o.late A.Choykutty,
Assistant Commissioner of Customs,
Customs Preventive Division,
Central Revenue Buildings,
Manachira, Kozhikode - 673 001. . .
. Review

Applicant

(By Advocate Mr.C.S.G.Nair)

Versus

1. Union of India represented by its Secretary,

Department of Revenue, North Block,
New Delhi - 110 001.

2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.

3. Chief Commissioner of Central Excise & Customs,

Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.

4. Commissioner of Central Excise & Customs,

Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.

5. Commissioner of Customs (Preventive),

Catholic Centre, Broadway, Cochin - 682 031.

6. Pay & Accounts Officer,

Customs, Customs House,
Willington Island, Cochin - 682 009. . . .
Respondents

(By Advocates Mr.K.S.Dilip,ACGSC)

R.A.No.180/00025/2017 in O.A.No.180/00089/2016
Rasheed Ali P.N.,
S/o.late Ahamed Koya P.N.,
Assistant Commissioner of Central Excise (Retd.),
Mayflowers, Zilla Colony, P.T.Usha Road,
Kozhikode - 673 032. . . . Review
Applicant

(By Advocate Mr.C.S.G.Nair)

Versus

1. Union of India represented by its Secretary,

.3.

Department of Revenue, North Block,

New Delhi - 110 001.
2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.

3. Chief Commissioner of Central Excise & Customs,

Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.

4. Commissioner of Central Excise & Customs,

Central Revenue Buildings, Mananchira,
Kozhikode - 673 032.

5. Pay & Accounts Officer,

Central Excise & Customs,
Central Revenue Buildings,
Mananchira, Kozhikode - 673 032. . . .
Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])

R.A.No.180/00026/2017 in O.A.No.180/00488/2016
K.K.Subramanyan,
S/o.late K.S.Kesavan,
Assistant Commissioner of Customs,
Calicut Airport, Karipur,
Malappuram District. . .
. Review

Applicant

(By Advocate Mr.C.S.G.Nair)

Versus

1. Union of India
represented by its Secretary,
Department of Revenue, North Block,
New Delhi - 110 001.

2. Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001.

3. Chief Commissioner of Central Excise & Customs,

Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.

4. Commissioner of Customs (Preventive),

Catholic Centre, Broadway,
Cochin - 682 031.

5. Commissioner of Central Excise & Customs,

.4.
 Central Revenue Buildings, Mananchira,
Kozhikode - 673 001.

6. Pay & Accounts Officer,

Customs, Customs House,
Willington Island, Cochin - 682 009. . . .
Respondents

(By Advocates Mr.N.Anilkumar,Sr.PCGC [R])

R.A.No.180/00027/2017 in O.A.No.180/00725/2016
1. Mohan Philip, S/o.late P.P.Philip,
Superintendent of Central Excise,
Central Excise Bhavan, Kathrikadavu,
Cochin - 682 017.

2. M.C.Rajendra Babu,
S/o.Chandrasekharan Pillai,
Superintendent of Central Excise,
Central Excise Range II, Alapuzha - 682 017.

3. C.Haridas, S/o.Chakrapani Warrier,

Superintendent of Central Excise,
Office of the Commissioner of Central Excise & Customs,
I.S.Press Road, Cochin - 682 018.

4. S.Sidheswaran,
S/o.late P.P.Sivasankaran Nair,
Superintendent of Central Excise,
Angamaly, Ernakulam Dist. - 683 572. .
. . Review

Applicants

(By Advocate Mr.C.S.G.Nair)

 Versus

1. Union of India represented by its Secretary,

Department of Personnel & Training,
New Delhi - 110 001.

2. Chairman, Central Board of Excise & Customs,

North Block, New Delhi - 110 001.

3. Chief Commissioner of Central Excise & Customs,

Central Revenue Buildings,
I.S.Press Road, Cochin - 682 018.

4. The Commissioner of Central Excise & Customs,

Central Revenue Buildings, I.S.Press Road,
Cochin - 682 018.

5. Pay & Accounts Officer,

.5.

Central Excise, Central Revenue Buildings,

I.S.Press Road, Cochin - 682 018.
. . . Respondents

(By Advocates Mr.T.C.Krishna,Sr.PCGC)

R.A.No.180/00028/2017 in O.A.No.180/00726/2016
Mathew John, S/o.late N.J.John,
Assistant Commissioner of Customs,
Office of the Commissioner of Customs (Preventive),
Catholic Centre, Broadway, Cochin - 682 031.
. . . Review

Applicant

(By Advocate Mr.C.S.G.Nair)

 Versus

1. Union of India represented by its Secretary,

Department of Personnel & Training, New Delhi - 110 001.

2. Chairman, Central Board of Excise & Customs,

North Block, New Delhi - 110 001.

3. Chief Commissioner of Central Excise & Customs,

Central Revenue Buildings, I.S.Press Road, Cochin - 682
018.

4. The Commissioner of Customs (Preventive),

Catholic Centre, Broadway, Cochin - 682 031.

5. Commissioner of Central Excise,

Bangalore I Commissionerate,
Central Revenue Buildings, Queen's Road,
Bangaluru - 560 002.

6. Pay & Accounts Officer, Customs, Customs House,

Willington Island, Cochin - 682 009.
. . . Respondents

(By Advocates Mr.Thomas Mathew Nellimoottil)

These applications having been heard on 19 th June 2017,

the Tribunal on
4th July, 2017 delivered the following :

ORDER

HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER These Review

Applications have been filed by the applicants in the O.As to review the order dated
6.4.2017 passed in the O.As. The relevant part of the order is as under :
29. Applicants pay is required to be fixed as per option exercised by them for
implementation of VI CPC benefits. In case applicants have
.6.

given the option of fixation as on 1.1.2006 but the option of 2 nd ACP date is more
beneficial, a revised option be accepted to be submitted, within 15 days of date of this
order, after the applicants study the benefits that will accrue on choosing date as
1.1.2006 or date of 2nd ACP, as the date of drawal of VI CPC (RP) benefits.

30. As per MACP Scheme Clause 8.1 the Grade Pay of Rs.5400/- in two Pay Bands
viz. PB2 and PB3 will be treated as separate Grade Pays for the purpose of MACP
upgradation. The benefit to applicants, GP being the same, is in moving from PB2
Rs.9300-34800 to PB3 Rs.15600-39100. Hence a financial benefit is already in built
in the scale of the higher pay band, treating the GP of Rs.5400/- in PB2 and PB3 as
distinct and separate grade pays for the purpose of MACP upgradation. Rule 8.1 of
Annexure-I of MACP Scheme order dated 19.5.2009 holds, and any further or
additional interpretation is not necessitated. Even the High Court of Madras has
revisited its earlier judgment in W.P.No.11535/2014 granting the benefit, and in
W.P.No.19024/2014, delivered two months later on 8.12.2014 directed DOP&T to
consider the issue in extenso in the light of the provisions of MACP Scheme. DOPT
in its re-consideration order dated 2.5.2016 (Annexure R-1[h]) has upheld clause 8.1
of MACP OM that grant of non-functional GP Rs.5400/- in PB-2 to Superintendent
needs to be counted as one financial upgradation for the purpose of MACP Scheme.
Therefore, the request of the Department of Revenue to issue general instructions
for ignoring the grant of non-functional grade pay of Rs.5400/- in PB-2 to
Superintendent for the purpose of MACP is not in accordance with the policy of the
MACP Scheme. Since this was only a reiteration of the notification already issued the
official issuing the same is immaterial.

31. If applicants are claiming the benefit of 2 nd ACP as Assistant Commissioner in

the 24th year which falls between 1.1.2006 and 1.9.2008 and their pay fixation under
VI CPC on a date thereafter, applicants can claim non-functional upgradation after 4
years in Superintendent scale as this is a benefit provided under clause X(e) of the VI
CPC Government Resolution. If they claim pay fixation as on 1.1.2006 then also
Clause X(e) can be extended to those applicants who were holding the post of
Superintendent on 1.1.2006 and, have completed four years and become eligible for
non-functional upgradation to Rs.5400/- on completion of 4 years service. However
this upgradation will be counted as an upgradation and cannot be ignored on the
ground of same grade pay.

32. Those of the applicants who had already got 2nd financial upgradation as
Assistant Commissioner prior to VI CPC announcement in 2008 but after 1.1.2006
are covered by Rule 5 of CCS (RP) Rules 2008 wherein those placed in a higher scale
between 1.1.2006 and date of notification of VI CPC, on account of their promotion
may elect to switch over to the revised pay structure from the date of earning 2nd
ACP in the V CPC scale and may switch over to revised VI CPC pay structure from
the date of such upgradation to the post of Assistant Commissioner.
33. As per Apex Court order in C.A.No.11527/2014 State of Punjab & Others Vs.
Rafiq Masiq etc. no recovery can be made from those applicants who are retired or
due to retire in one year as per para 12 (ii) of the judgment.

34. The Original Applications are disposed of with the above directions. No costs.

2. The grounds raised in the Review Petitions are the grounds raised in
.7.

the O.A and the arguments made are those already made before the Bench when the
case was heard earlier. The arguments and grounds raised have been addressed in
the order delivered in the O.As sought to be reviewed. As brought out in para 27 and
28 of the order, the VI CPC in order to ensure maximum benefit of pay fixation had
given two options for pay fixation, first on the date of implementation of VI CPC on
1.1.2006 and second on the date of ACP or promotion, to switch over to the new pay
scale. The Tribunal has allowed the applicants the chance of once more exercising
the more beneficial of the two options - an option which was actually to be exercised
by applicants before opting the VI CPC benefits in 2008. This was done to ensure
that, if any applicants had by chance exercised an incorrect or non beneficial option,
they could get one more chance despite the fact that such an exercise of option had
been closed by the Government of India after availing the VI CPC pay fixation
benefits.

3. It would not be advisable for the Tribunal to go beyond the benefits afforded by
the VI CPC which have been examined in detail in the order delivered. The
discussion in para 27, 28 and 29 is a discussion on the Clause

(iv), Clause x(e), Rule 5 and Rule 7A(i) of the Government of India Resolution
extending the VI CPC benefits. This was not a direction to the respondents as argued
by the Review Applicants but a discussion on the applicable VI CPC
recommendations. The applicants and respondents are covered by the conclusions
drawn out at para 31, 32 and 33 of the order which are based on the discussions in
para 27, 28 and 29. Some part of the arguments are virtually an attempt to have a re-
hearing of the case, relying upon some fresh documents.
.8.

4. In Meera Bhanja (Smt) Vs. Nirmala Kumar Choudhary - (1995) 1 SCC 170 it was
held that the scope of review is very limited. The court held:

'A review Application can be entertained only on the ground of error apparent on the
face of record and not on any other ground. An error apparent on the face of record
must be such an error which must strike one on mere looking at the record and
would not require any long drawn process of reasoning on points where there may
conceivably be two opinions. Re-appraisal of the entire evidence or error would
amount to exercise of appellate jurisdiction which is not permissible by way of
review application. This is the spirit of order XLVII, Rule 1 of CPC.'

5. The Apex Court in State of West Bengal & Ors. v. Kamal Sengupta & Anr. - 2008
(2) SCC 735 has enumerated the principles to be followed by the Administrative
Tribunals when it exercises the power of review of its own order under Section
22(3)(f) of the Administrative Tribunals Act, 1985. They are :

'(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of
the Act is akin/analogous to the power of a Civil Court under Section 114 read with
Order 47 Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in
Order 47 Rule 1 and not otherwise.
(iii) The expression 'any other sufficient reason' appearing in Order 47 Rule 1 has to
be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process
of reasoning, cannot be treated as an error apparent on the face of record justifying
exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of
power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of
subsequent decision/judgment of a coordinate or larger Bench of the Tribunal or of a
superior Court.
(vii) While considering an application for review, the Tribunal must confine its
adjudication with reference to material which was available at the time of initial
decision. The happening of some subsequent event or development cannot be taken
note of for declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere discovery of a new or important matter or evidence is not

.9.

sufficient ground for review. The party seeking review has also to show that such
matter or evidence was not within its knowledge and even after the exercise of due
diligence, the same could not be produced before the Court/Tribunal earlier.'

6. It is not a case where the contentions raised by the applicants were not considered
at all. The arguments made by Review Applicants are those made in the O.A and,
which were already addressed in the order on the basis of the rendering in the
Government of India VI CPC resolution and CCS (RP) Rules, 2008 enunciated
thereafter and applicable to the Review applicants. Virtually the applicant wanted to
have a rehearing of the entire matter under the pretext of Review Application.
Review application cannot be an appeal in disguise. As such we find no merit in the
Review applications. The Review Applications are accordingly dismissed. No order
as to costs.

(Dated this the 4th day of July 2017)

(P.GOPINATH)
(U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER
JUDICIAL MEMBER

asp
.10.

List of Annexures in the R.A.No.180/00023/2017

in
O.A.No.180/00651/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 of this Hon'ble Tribunal in
O.A.No.651/2017

2. Annexure RA-2 - True copy of letter F.No.26017/98/2008 AD II A dated

16.9.2009 issued by the 1st respondent.
3. Annexure RA-3 - True copy of letter F.No.26017/98/2008 AD II dated 17.12.2009
issued by the 1st respondent.

4. Annexure RA-4 - True copy of letter C.No.II/24/A-5/2011 Accts.I PB dated

24.7.2013 issued by the 3rd respondent.

List of Annexures in the R.A.No.180/00024/2017 in O.A.No.180/00005/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 in O.A.No.5/2016.

List of Annexures in the R.A.No.180/00025/2017 in O.A.No.180/00089/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 in O.A.No.89/2016.

List of Annexures in the R.A.No.180/00026/2017 in O.A.No.180/00488/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 in O.A.No.488/2016.

List of Annexures in the R.A.No.180/00027/2017 in O.A.No.180/00725/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 in O.A.No.725/2016.

List of Annexures in the R.A.No.180/00028/2017 in O.A.No.180/00726/2016

1. Annexure RA-1 - True copy of the order dated 6.4.2017 in O.A.No.726/2016.