Central Administrative Tribunal - Ernakulam
L.Joy vs Union Of India Represented By on 7 June, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.1126/2012
Friday, this the 7th day of June, 2013
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE MR.K GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. L.Joy, S/o.Lucose
Station Master, Southern Railway, Quilon
Residing at Thodipurayidom
T.K.M College P.O, Karicode
Kollam - 691 005
2. M.Vinayan
Station Master, Southern Railway, Kayamkulam
Residing at Sindooram
Behind Court, Mavelikkara - 690 101
3. N.C Venugopalan Nair, S/o.N.Chellappan Nair
Station Master, Southern Railway, Ernakulam Town
Residing at Narekattu House, Pindimana P.O
Kothamangalam, Ernakulam - 686 692
4. P.V Raju, S/o.PP Varkey
Station Master, Southern Railway
Karuketty, Residing at Palakkad House
Keezhillam P.O, Perumbavoor,
Ernakulam - 686692
5. M.Abdul Manaf
S/o.Mohammed Nooh
Station Master, Southern Railway
Ambalapuzha
Residing at Padipura House
Thottappally P.O, Alepuzha - 688 563
6. K.Lakshmiprasad
S/o.G Krishna Pai
Station Master, Southern Railway, Quilon
Residing at Souparnika, Devinagar - 74
Dethara Junction, Kollam - 691 013
7. K.A Vijaya Kurup
S/o.Achuthan Nair
Station Master, Southern Railway, Quilon
Residing at Kavumpurathu Melettil, Thattayil P.O
Pathanamthitta - 691 525
8. S.Balachandran Nair
S/o.Sankara Pillao
Station Master, Southern Railway
Chingavanam
Residing at "PRANAVAN", Velloor P.O
Pampady, Kottayam - 686 501 Applicants
(By Advocate M/s.Varkey & Martin)
V e r s u s
1. Union of India represented by
Chairman Railway Board
Rail Bhavan, New Delhi - 100 001
2. The Divisional Railway Manager
Southern Railway
Trivandrum - 695 014
3. The Divisional Personnel Officer
Southern Railway
Trivandrum - 695 014 Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil,ACGSC)
This application having been heard on 07.06.2013, the Tribunal on the same
day delivered the following :-
O R D E R
HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER The applicants (8 in number) joined the Railway service as Asst. Station Master during the period between 1983 and 1989 and their first promotion as SM III was between 1986 to 1991. They had got their next promotion to the post of SM II during the years 2007 and 2008. ACP scheme prevalent between end 1998 was substituted by MACP Scheme introduced w.e.f. 01-09-2008 vide Railway Board letter dated 10-06-2009 (Annexure A-4) and as per para 5 of the scheme, promotions earned or upgradations granted under the ACP Scheme 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 the Modified ACP Scheme. Again, while calculating the period from which the MACP has to be granted, an illustration under para 28 has been given, and para 28 (A) reads as under:-
"28. Illustration:-
A. (i) If a Railway servant (LDC) in PB-1 in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in PB-1 in the Grade Pay of Rs.2400 on ompletion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd fiancial upgradation under the MACPS in PB-1 in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get any promotion thereafrter, then he would get 3rd financial upgradation in PB-2 in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10).
(iii) However, if he gets 2nd promotion after 5 years of further service in PB-2 in the Grade Pay of Rs.4200 (Asistant Grade/Grade 'C') i.e. on completion of 23 years (8+10+5 years) then he would get 3rd financial upgradation after completion of 30 eyars i.e. 10 years after the 2nd ACP in PB-2 in the Grade Pay of Rs.4600.
In the above scenario, the pay shall be raised by 3% of the total pay in the Pay Band and Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay or in the higher Grade Pay. Only the difference of Grade Pay would be admissible at the time of promotions."
2. The respondents had considered the case of the applicants for grant of second and third financial upgradation as their promotion as SMII has to be ignored in view of para 5 of the Scheme and as they had thus, enjoyed only one promotion in 1986- 1991, their second and third financial upgradations were granted w.e.f. 01-09-2008 or thereafter. Annexure A-3 refers. And the respondents had implemented the said order too. However, by the Impugned order dated 22nd October, 2012, which refers to the Railway Board letter dated 29-12-2011, the respondents had cancelled the earlier order of financial upgradation and restricted the financial upgradation only to II MACP and denied the grant of III MACP on the ground that the applicants have not completed 30 years of service from the date of their initial induction into the Railway Service. This order is under challenge and the applicants have prayed for the following reliefs:-
a) Declare that Annexure A1 memorandum is unjust, illegal, opposed to A4 MACPS and A5 clarification, violative of principles of natural justice and witbout jurisdiction and quash the samme.
b) Declare that the applicants are entitled to have their MACP-III restored as at A3 (series) with refund of recoveries made on the basis of A1 memorandum and direct the respondents accrdingly.
c) Award costs of and incidental to this application.
d) Grant such other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
3. Respondents have contested the OA. According to them, the applicants were appointed in PB 1 GP 2800 and earned their 1st Promotion to PB 2 with Grade Pay of Rs 4,200 and worked for more than 20 years. They were due for 2nd MACP to PB 2 with Grade pay of Rs 4,600 w.e.f. 01-09-2008 which has been correctly granted. 3rd financial upgradation to PB 2 with grade pay of Rs 4800 is available to them only on completion of 30 years service or 10 years from the last promotion/MACP whereas, it has wrongly been granted on the ground that they have completed 20 years of service from 1st promotion. Successive grant of financial upgradation is admissible only when the employee has not earned any promotion in his entire service. In the case of the applicants they have earned one normal promotion in PB 2 with Grade pay of Rs 4200 and also 2nd MACP in PB 2 with Grade Pay 4600 w.e.f. 01-09-2008. Hence, analogy of grant of successive financial upgradation is not applicable and they are eligible for 3rd financial upgradation is not applicable and they are eligible for 3rd financial upgradation in PB 2 with Grade Pay of Rs. 4800 only when they complete 30 years service or 10 years from the 2nd MACP/Promotion, whichever is earlier.
4. The applicants filed their rejoinder in which they have added a copy of the OM dated 19-05-2009 which provides for reference to DOPT in case of any interpretation/clarification of doubt. This has not been done. However, the applicants had maintained that para 28 is applicable and their entitlement to 3rd MACP would be from 01-09-2008 along with the 2nd MACP.
5. Counsel for the applicants argued exactly on the same lines as contained in the OA and also in the rejoinder. So is the case with the counsel for the respondents who relied upon the contents of the reply filed by the respondents.
6. Arguments were heard and pleadings perused. Illustration at para 28 of Annexure A-4 is clear, unambiguous and unequivocal. As per the same, when the first promotion is granted within 10 years, if no promotion is granted within next 10 years, then on completion of the said ten years from the date of first promotion, 2nd MACP is due. Thus, the applicants are due for the second upgradation exactly ten years after their first promotion. However, if the said ten years falls prior to 01-09- 2008, the same would be given effect to w.e.f. 01-09-2008 the date from which the MACP Scheme commenced. In so far as the third MACP is concerned, the same would be after twenty years of the first promotion and if the said twenty years falls prior to 01-09-2008, the date of the benefit would be from the said 01-09-2008. It was on the above basis that Annexure A-3 order was passed which we approve. Cancellation of the same by the impugned order is totally wrong and not in conformity of the provisions of the scheme. There is no need to refer the matter for any interpretation or clarification. However, since the counsel submitted that the Railways may have to refer the matter to DOPT in case of interpretation or clarification, it is clarified that since the Railways have only adopted the DOPT scheme and the entitlement of the benefits under MACP to Railway Servants springs not from the DOPT order but from the Railway Board circular, it is the Board to which reference could be made for clarification, if any. In the instant case, there is no need to refer the matter to the Railway Board, as there is no doubt which needs clarification or rectification.
6. Thus, the OA is allowed. The impugned Annexure A-1 order is quashed and set aside. Respondents are directed not to vary the pay of the applicants from the one granted in Annexure A-3. Since there has been a stay vide order dated 07-12-2012, no further action is necessary.
(K.GEORGE JOSEPH) (Dr.K.B.S.RAJAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER aa.