For 6600 PB-3 as MACP based on interpretation of C&AG

 Ref. No: FS/ES/CBIC/48/2020                        Date: 27.10.2020

 

 

To

1)    The Finance Secretary to the Government of India, North Block, New Delhi.

2)    The Expenditure Secretary to the Government of India, North Block, New Delhi.

3)    The Secretary, DOPT, North Block, New Delhi.

4)    The Chairman, CBIC, North Block, New Delhi.

Sirs,

Sub: Grant of MACP for the Inspectors and Superintendents in CBIC - reg

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We wish to bring to your kind attention an anomalous situation persisting in the CBIC with regard to the MACP for the Inspectors and Superintendents of the Department, which is also leading to a lot of litigation around the Country.

 

2.1.      Inspectors of Central Excise are in the pay scale of 4600 PB-2 and the scale of pay adopted for the Superintendents is 5400 PB-2 after initially placing them on 4800 PB-2 for a period of 4 years.  However, instead of granting the MACP of 5400 PB-3 from the stage of Superintendent’s scale, only 5400 PB-2 is being adopted and hence the Third MACP is granted only in 5400 PB-3 instead of 6600 PB-3.  This has been done with a notion that the pay scale pertaining to the cadre of Superintendents is only 4800 PB-2 and that the subsequent 5400 PB-2 is to be treated as a promotion based on an erroneous interpretation of the para 2 of the Annexure I to MACPS issued in DoPT’s OM No.35034/3/2008-Estt. (D) dated 19.05.2009 wherein it is stated that, ‘The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the  recommended revised pay bands and grade pay as given in Section 1 , Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008.’  The misinterpretation has occurred because, it has not been observed that 5400 PB-2 is itself a pay scale prescribed for the post of Superintendent of Central Excise, etc and hence cannot be treated as ‘next higher grade pay’ as per MACPS.

 

2.2.      Further, we would like to bring to your kind attention the  Circular No. 42-Staff Wing-2020 of the C&AG issued in Letter No. 1027-Staff (Entt.I)/78-2020 dated 15.10.2020, wherein 3^rd MACP has been ordered to be given in 6600 PB-3 to the Officers of IA & AD.  The said decision refers to Para 5 of Annexure 1 to DoPT’s O.M. No. 35034/3/2015-Estt.(D) dated 22.10.2019 issued after the Seventh CPCwherein it has been stipulated that promotion/upgradation granted under MACP scheme to those grades which are in the same level of the pay matrix due to merger of the pay scales or upgradation of the posts shall be ignored for the purpose of granting unpgradation under MACPS.  By the above decision, it has been ordered that the promotion from AO to Sr. AO may not be taken as a promotion for MACPS.

 

2.3.      The above interpretation of the C&AG clearly shows that even in the face of para 2 of the Annexure 1 of the MACP Scheme, para 5 of the same Annexure to the said OM gives the exception to para 2.  Thus, when a pay scale or pay band has been granted to a particular post by virtue of upgradation/merger of scales, then the said effect has to be ignored for the purpose of granting MACPS.

 

3.1.    It is pertinent that the pay scale of the Superintendent of Central Excise was also by merger of scales/upgradation by the Sixth Pay Commission.

 

3.2.      Under the Revised Pay Rules, 2008, in accordance with para 1 (x) (e) of Resolution No: 1/1/2008-IC dated 29.08.2008 and notified in Section II, Part C, First Schedule of the Notification No: GSR (E) dated 29.08.2008 against Sl. No. 9 under Ministry of Finance, for Department of Revenue, the following replacement scale was prescribed for the posts mentioned therein:

Sl. No	Post	Present Pay Scale	Revised Pay scale	Corresponding Pay Band and Grade Pay		Para No of Report
				Pay Band	Grade pay
Department of Revenue
9	Income Tax Officers, Superintendents, Appraisers, etc (Customs & Central Excise)	Rs.7500-12000	Rs.7500-12000     Rs.8000-13500* (on completion of four years)	PB – 2       PB - 2	4800       5400	7.15.17

 

3.3. Para 7.15.17 of the CPC mentioned in the above Table reads as below:

“7.15.17: Higher scale of Rs.8000-13500 has been sought for the posts of Appraiser /Superintendents/Income Tax Officer/equivalent in CBEC and CBDT. The higher scale has been demanded on the ground that these posts are comparable with Deputy Superintendents of Police in CBI who are already in the scale of Rs.8000-13500. It is observed that the Fifth Central Pay Commission had specifically noted that no relativity could be established between executive posts in Income Tax and Customs vis-à-vis those existing in CBI. Although the recommendation was made with reference to the post of Inspector, the same cannot but hold true for the next higher posts in the hierarchy of these organizations. 439 Further, the pay scale of Rs.8000-13500 is the entry pay scale for Group A posts of Assistant Commissioner/equivalent. The post of Assistant Commissioner is a promotion post for Superintendents/Appraisers/ITOs, etc. Therefore, even otherwise, this scale cannot be granted.”

3.4.     From the above recommendation of the Sixth CPC, it is evident that the above said ‘twin pay scale’ of 4800 PB-2 plus 5400 PB-2 on completion of 4 years in 4800 PB-2 was adopted for the Superintendents of Central Excise, etc, only because they could not be granted the pay scale of 5400 PB-3 which was a Group A Scale.  Thus, it becomes evident that for this post, 5400 PB-2 is a prescribed pay scale and is not the next pay scale. In other words, the Superintendents of Central Excise, etc have been granted 5400 PB-2 on completion of 4 years in 4800 PB-2, instead of 5400 PB-3. 

3.5.          It may also kindly be note that in the case of M.Subramainiam, the Hon’ble Supreme Court has dismissed an SLP (and subsequently a Review Petition) by the UOI against a judgment of the Hon’ble High Court of Madras, wherein it had been held that 5400 PB-2 flows out on completion of 4 years in 4800 PB-2.  This decision has been accepted by the UOI and is being implemented in the department. Thus, it is clear that 5400 PB-2 is an extension of the pay scale of 4800 PB-2 in so far as the Superintendents of Central Excise, Appraisers, Income Tax Officers, etc are concerned as per the Resolution of the Government of India cited in para 3.2 above.

4.1.       The basis of such a restructuring of the scales for these category of Officers could be found in the Sixth Pay Commission Recommendations in Chapter 3 also. 

4.2.     The Sixth CPC stated in para 3.1.3 as below:

“3.1.3: Higher pay scales in the Secretariat offices may have been justified in the past when formulation of proper policies was of paramount importance. The present position is different. Today, the weakest link in respect of any Government policy is at the delivery stage. This phenomenon is not endemic to India. Internationally also, there is an increasing emphasis on strengthening the delivery lines and decentralization with greater Chapter 3.1 159 role being assigned at delivery points which actually determines the benefit that the common citizen is going to derive out of any policy initiative of the Government. The field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual benefit to the consumer. Accordingly, the time has come to grant parity between similarly placed personnel employed in field offices and in the Secretariat. This parity will need to be absolute till the grade of Assistant. Beyond this, it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.”

4.3.     Accordingly the CPC recommended as below in para 3.1.9:

“3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services (including CSS as well as non participating ministries/ departments/organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat 161 Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group B corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs.8700- 34800 along with grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB-2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-

Post	Pre revised pay scale	Corresponding revised pay band and grade pay
Section Officer	Rs.7500-12000     Rs.8000-13500* (on completion of four years)	PB-2 of Rs.8700-34800 along with grade pay of Rs.4800.   PB-2 of Rs.8700-34800 along with grade pay of Rs.5400* (on completion of four years)

                            (The entire table is not reproduced for brevity)

 

4.4.     Thus it is evident that as in the case of the Section Officers of the Central Secretariat Services, the scale of pay adopted for the Superintendents of Central Excise, etc include 5400 PB-2, by virtue of merger of pay scales/upgradation.

5.1.    Under Section I of Part C of the above Pay Rules (2008), in Sl. No. (ii) the rationale for merger of Pay Scales has been explained and in in Sl. No. (v) it has been stated that ‘Upgradation as in (ii) may be done in consultation with Department of Expenditure, Ministry of Finance’.

5.2.     Para 5 of Annexure 1 to DoPT’s OM No.35034/3/2008-Estt. (D) dated 19.05.2009 for MACPS for the Central Government civilian employees states as below:

“5. Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.”          

6.     Thus, from the pay scale of 5400 PB-2 on completion of 4 years in 4800 PB-2 prescribed for the Superintendents of Central Excise, they are entitled for the scale of 5400 PB-3 as the next MACP and after that they are entitled for 6600 PB-3 as the next MACP in terms of the MACPS.  In other words, 5400 PB-2 cannot be taken as a promotion for the purpose of MACPS because it is only the pay scale prescribed for the post of Superintendent of Central Excise as a consequence of a merger of scales/upgradation.

7.      Thus, the interpretation of para 5 of the MACPS in respect of the Officers of the IA&AD, whose case has been referred herein becomes squarely applicable in the case of Inspectors and Superintendents of our department also. Hence, considering that 5400 PB-2 being the pay scale prescribed for the post of Superintendents cannot be given as MACP, considering it as promotion and that even otherwise, when it has been granted based on upgradation/merger of scales by the Sixth Pay Commission, in terms of para 5 of the Annexure 1 of the MACPS, it cannot be considered as a promotion, it is requested that necessary orders may kindly be issued immediately that from the grade of Inspector (4600 PB-2), First MACP is on 4800 PB-2 (+5400 PB-2 on completion of 4 years in 4800 PB-2)  and the Second MACP should be granted in the pay scale of 5400 PB-3 and the Third MACP should be granted in the pay scale of 6600 PB-3 in the Department of Revenue, as per the MACPS.

With regards,

Yours truly,

Encl: Copy of C&AG’s Letter dt. 15.10.2020

(R. Manimohan)

Secretary General