Central Administrative Tribunal - Ahmedabad
C P Singh vs M/O Railways on 30 June, 2022
:: 1 :: O.A./58/2018 .
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.58/2018.
Dated this the 30th day of June, 2022.
Reserved on :28.04.2022
Pronounced on: 30.06.2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Sh. Dr. A.K. Dubey, Member (A)
1. Chandra Pal Singh
Aged: 59 years (DoB being 22.01.1958)
Son of Shri Ram Lal Singh
Presently serving as Station Superintendent in Botad Jn., of
Bhavnagar Railway Division, Western Railway,
Address For Communication: 23, Dharti Bungalows,
IOC Tragad Road, Opp. Chandkheda railway Stn.,
Post: Digvijaynagar, Ahmedabad 382 470.
...Applicant
(By Advocate Mr. M S Rao)
Vs
1. Western Railway
(Notice to be served through its General Manager,
Western Railway, HQ Office,
Churchgate, Mumbai 400 020
2. The Divisional Railway Manager (E)
Bhavnagar Railway Division,
Western Railway, O/o. DRM (E), BVP,
Bhavnagar Para, Bhavnagar 364 001.
...Respondents
(By Advocate Mr. V K Singh)
:: 2 :: O.A./58/2018 .
ORDER
PER: Hon'ble Dr. A. K. Dubey (A)
1. Aggrieved by not being sanctioned the Third Financial up-
gradation under MACP, the applicant has filed this OA, seeking following reliefs: -
"8 A. Call upon the official respondents No.1 to4 herein to place before this Hon'ble Tribunal the entire original departmental file/noting sheet, etc., which gave rise to the issuance of the impugned documents at communication at Annexure - A/1 and Annexure A/2 hereto;
B. Upon a close perusal of he said files/noting sheet, etc., your Lordships may be graciously pleased to forthwith quash and set aside the (i) impugned Communication bearing No. ET/1030/4/5(L), dated 06.12.2016 at Annexure - A/1 hereto issued by the Dy.CPO(NG), For GM€, W.Rly., Mumbai and (ii) impugned Communication bearing No. ET/C/87 dated 10.07.2017 at Annexure-A/2 heretto issued by the O/o. DRM(E), BVP, Bhavnagar, holding and declaring the same to be ex facie & totally arbitrary, unreasonable, & discriminative towards the applicant herein;
C. Issue appropriate directions to the respondents herein to forthwith grant 3rd MACP to the applicant herein w.e.f. 01.03.2013 on his having duly completed 30 years of regular service in the railways by taking into account the period which the applicant herein had spent in training at the initial stage as Traffic Apprentice prior to his absorption as Traffic Inspector in 1988 and grant all the consequential benefits, including arrears of salary, interest thereof, calculation of pension amount accordingly having regard to the fact that the applicant herein is due to retire in January 2018.
D. Grant such other and further relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case.
2. The case of the applicant is briefly mentioned as under: -
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2.1 The applicant was recruited to class - III Service as Traffic Apprentice in the Scale of 425-700 vide letter dated 20.12.1985 (Annexure A/3). This recruitment letter states that (i) he was temporarily recruited as Traffic Apprentice in the said Scale;
(ii) he had to undergo initial training of five and half months (first visit) starting from 19.12.2018 at the Zonal Training School, Udaipur; and (iii) next order would follow on receipt of further programme of training. This letter clearly mentioned that the appointment was temporary and was liable to be terminated without giving notice or reasons. It was specified in the order that it would have the effect from the date the applicant joined initial training (first visit) at Udaipur.
2.2 The applicant completed his training and was appointed as Traffic Apprentice in the scale 425-640 on regular basis w.e.f. 22.10.1988. He received his first regular promotion to the scale of 550-750 (later revised as 1600-2660 w.e.f. 06.06.1991 and further revised as PB-2+ GP 4200 under 6th CPC . He received 2nd promotion to the scale of 700-900 revised as 2000-3200 w.e.f. 01.03.1993 and later revised as PB-2+GP 4200 under 6th CPC. He received his 3rd promotion to the scale of 2375-3500, later revised as 7450-11500/- and further revised as PB- 2 + GP 4600/- under 6th CPC.
2.3 The applicant has claimed in his representation dated 28.08.2016 that he was entitled for the financial up-gradation on completion of 30 years of service taking from the date of his appointment as 19.12.1985 vide Annexure A/3. The applicant submits that the department had taken the stand that his regular service started from 22.10.1988 and either after 30 years from that day or 10 years regular service from 01.09.2008 would be the date for grant of up-gradation under 3rd MACP.
2.4 The applicant says that the respondents stand reveals that there is a mis-interpretation of the Rules because the appointment :: 4 :: O.A./58/2018 .
letter dated 20.12.1985 (Annexure A/3) very clearly mentions that the appointment was temporary and he was required to undergo initial training. He has drawn attention to the provision at Para 125 (i) contained in the Indian Railway Establishment Manual (IREM- Vol.I) which provides that 25 % of the vacancies in specified categories including Traffic Inspectors in the scale 1400-2660 will be filled by recruitment as Traffic Inspectors in two ways namely (i) 15% by Direct Recruitment through railway recruitment board; (ii) 10% through LDCE.
The Note below Para 125(2) specifies that the period of training for those inducted against 15% will also be two year but they will continue to receive the allowances from the parts which they were selected from during the period of training.
2.5 The applicant has placed on record the order dated 15.10.1993 (Annexure A/5), vide which, the applicant was originally fitted in the scale of 1600-2660/-. This order clearly mentions that in terms of letter dated 08.03.1991 and dated 26.06.1992, the applicant's pay was fixed considering training period on notional basis from 01.01.1988 to 30.09.1990. Later, vide letter dated 28.07.1994 (Annexure A/6) the applicant was promoted to the post of TI in the scale 2375-3500/- w.e.f 31.05.1990 2.6 The applicant retired on 31.01.2018. Before retirement he had submitted another representation dated 15.09.2013 (Annexure A/12) requesting for 3rd up-gradation from 01.06.2010 on the plea that he had completed 20 years of service as on 01.06.2010 in the scale PB-2 + GP 4600/-. This request was declined vide respondents letter dated 17.11.2013 (Annexure A/3). This letter clearly indicates that he joined as Traffic Apprentice on 19.12.1985 which is now in the scale of PB-2 + 4200/- GP. He got his promotion w.e.f 12.01.1994 which is now in the scale of PB-2 + GP 4600/-. This letter further informs that the applicant :: 5 :: O.A./58/2018 .
received MACP with effect from 01.09.2008. It is the say of the applicant that treating the upgradaion from GP 4200/- + 4600/- separately as a promotion is erroneous because as per the instruction in MACPS, these scales were merged and promotion to any of these had to be ignored.
3. Respondents have filed their reply. They have mainly contended that applicant was first recruited as Traffic Apprentice from 20.12.1985, where as his regular service started from the dated of his substantive appointment i.e., from 22.10.1988. Respondents have referred to Rule 303 (iv) Section B of Chapter-I of IREM Vol.1, which defines the word Apprentice, as under: -
"1903. Recruitment -
Recruitment of Special Class Apprentices on the railways is made through the Union Public Service Commission. Recruitment of all other Apprentices (other than trade apprentices) is made through the Railway Recruitment Board. The rules regarding the recruitment of apprentices other than special class Apprentice on railways are contained in Section B of Chapter I.
103. (iv) An "apprentice" or a "trainee" means a person undergoing training with a view to employment in railway service, who draws pay, leave salary, subsistence allowance or stipend during such training but is not employed in or against a substantive vacancy in the cadre of a branch deptt. On satisfactory completion of his training he is eligible for appointment of probation in a substantive vacancy but no guarantee of such appointment is given."
It is evident from the definition that training is necessary for the apprentice in order to become eligible for being posted on a working post. Further, training is defined in Para 1904 of Chapter XIX of IREM Vol.2, which reads as under: -
"Apprentices are required to undergo a prescribed course of training and to pass such examination as may be-laid down in their respective syllabi. They do not become eligible for appointment to working posts until they have successfully completed their training.".
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They have also quoted the provision of 1914 of the Chapter XIX of IREM Vol.2 which reads as under:
"1914. Employment.- No guarantee or promise of employment can be given to an apprentice. But on the satisfactory completion of their training the apprentices will be considered for appointment to the post for which they are apprentices subject to the existence of vacancies. They will, however, be taken on probation for a period to be specified in each case."
3.1 On the basis of the definition quoted above, the respondents have stated that only upon satisfactory completion of the training of the training, the apprentices are considered for appointment subject to existence of vacancies. The respondents have also referred to the judgment of Hon'ble Apex Court in Prafulla Kumar Swain Vs Chandra Prakash Misra & Ors. Reported as 1993 SUPP (3) SCC 181 to distinguish between the recruitment and appointment and to argue that recruitment is not actual appointment or posting in service; it is just and initial process.
4. The applicant has filed rejoinder reiterating the grounds stated in the original application. Besides, he has also placed reliance on the order of the Principal Bench of this Tribunal dated 23.05.2016 in OA No. 1288/2014 Shrimati Manju vashishta & Ors. Vs UOI & Ors. in which, the full bench agreed with the judgment passed by the Ernakulam Bench of this Tribunal in OA 905/2012 in which the MACP was granted after 20 years of service. The applicant has also relied on the order of Principal Bench in OA 1471/2013.
5. After, completion of pleading, the matter came up for final hearing on 28.04.2022. The counsel for both sides reiterated their grounds.
5.1 Learned counsel for the applicant argued that the very appointment letter dated 20.12.1985 of the respondents reads :: 7 :: O.A./58/2018 .
that it was an "appointment" which was temporary and could be terminated without giving notice or reason. More specifically the counsel referred to the MACPS scheme and argued that as per instruction of Para 5 of the Scheme, (Annexure A/8), financial up-gradations granted in the pre-revised scale of 5500- 9000, 6500-10500 prior to 01.01.2006 will be ignored on account of merger of pre-revised scales of 5000-8000, 5500- 9000, 6500-10500 recommended by the 6th CPC. The learned counsel also drew attention the Clause 9 of the said MACP Scheme, which reads as under: -
"Regular Service for the purpose of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government/Department in a post carrying same Grade Pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purpose of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post".
On this basis the counsel argued that was an important issue to be looked into whether the consequent appointment vide the appointment letter dated 20.12.1985 started from the date of joining initial training (First Visit) which in this case was 19.12.1985 or whether the date of placement on a working post should be referred for the purpose of regular service. The counsel averred that a plain reading of the term "Regular service" in Para 9 of the MACPS, makes it clear that the service rendered on ad-hoc / contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. Obviously, any service on contract or ad hoc basis before regular appointment on pre appointment training shall have to be excluded. Here, vide the letter dated 20.12.1985 it was an :: 8 :: O.A./58/2018 .
appointment on a pre-appointment training and here the applicant is not asking about any service prior to this date. Admittedly the recruit's past service prior to the issuance of letter dated 20.12.1985 has to be excluded for regular service as the period that is to be reckoned for regular service is confined only to the period of that service which was rendered on ad-hoc or contract basis prior to the "regular appointment on pre- appointment".
5.2 The learned counsel argued that Para 125 (i) of the IREM Vol.1 stipulates that the Traffic Inspectors post in the specified scale will be filled as Traffic Apprentice as per the ratio specified there. It no where excludes the training period. Even, the Provision in Para 103 contained in Rule 303 (iv) of Section - B of Chapter 1 of IREM Vol. 1 envisages that an apprentice or a trainee is a person who is undergoing training to draw pay, leave, salary etc, but is not employed in or against a substantive vacancy in the cadre of a branch or department and on satisfactory completion of his training he will become eligible for appointment in a substantive vacancy although no guarantee of such appointment will given. In the similar way, the Provision in para 1904 of Chapter XIX of IREM Vol.2 says that apprentices must undergo the prescribed training and pass the same and they do not become eligible for appointment to working post until they have successfully completed their training. Here there is no provision that expressly excludes the period of training whereafter the service continues sans any break or gap. He relies on judgment of Hon'ble Bombay High Court in M P Joseph Vs UoI in WP 1763 of 2013, with regard to approval of upgradation under MACP from an earlier stage.
5.3 The counsel for the respondents reiterated the grounds and said that in view of the statutory provisions, the applicant's services were reckoned w.e.f. 22.10.1988, when he was appointed on regular basis after completion of training. Apart from placing :: 9 :: O.A./58/2018 .
reliance on the Hon'ble Supreme Court Order in Prafulla Kumar Swain (supra), he also placed reliance on the Hon'ble Apex Court order in Haryana Power Generation Corporation Limited & Ors Vs Harkesh Chandra & Ors. reported in 2013 (2) SCR 593, in which it was held that an apprentice under the Apprenticeship Act, 1961, is only a trainee as per section 18 thereof and not a worker. And an apprentice does not have a statutory right to claim an appointment and employer is not under any statutory obligation to give him employment. The counsel for the respondents averred the it was therefore obvious that in the case of the applicant the period starts only from 22.10.1988 according to which the 3rd up-gradation under MACP would become admissible only on 22.10.2018, upon completion of 30 years of service. The applicant however retired in January 2018 and therefore, as per the extent Rules he was not eligible for the 3rd Upgradation.
6. Heard both the counselat length. We find that the records brought before us clearly establish the following: -
6.1 On the recommendation of the RRB the applicant was temporarily appointed as Traffic Apprentice in the scale of 425-640/- vide letter dated 20.12.1985 and was required to undergo initial training of five and a half months (First Visit) starting from 19.12.1985 and that appointment was to take effect from the date he joined the training. Accordingly, the temporary appointment as Traffic Apprentice took effect from 19.12.1985. The impugned letter from the respondent to the applicant dated ---10-1988 (Annexure A/1) mentions the following:
1. He was appointed in the scale of 425-640 on regular basis from 22.10.1988 after training.
The scale of 425-640 was revised to 1400-
2300/-, revised yet again under 5th CPC to :: 10 :: O.A./58/2018 .
5000- 8000- on 19.12.1985 and yet again revised to PB-2 +GP 4600/- under 6th CPC.
2. The applicant received first regular promotion to the scale 550-750 on regular basis w.e.f 06.06.1991. This scale was revised to 1600- 2660/- and again revised to 5000-9000 under 5th CPC and finally to PB-2+4200/- GP, under 6th CPC.
3. The applicant received the scale of Rs. 700-900 w.e.f 01.03.1993. This scale was later revised to 2000-3200 and further revised under 5th CPC to the scale of 6500-10500, which was finally revised to PB-2 + GP 4600/- under 6th CPC.
4. The applicant received his 3rd Promotion in the scale of 2375-3500 w.e.f 30.12.1996. This scale was later revised to 7450-11500 under 5th CPC and was further revised to PB-2+ GP 4600/- under 6th CPC.
5. The scales 5000-8000 and 5500-9000 of 5th CPC were merged together in PB-2 +GP 4200/-. Similarly, the scale 6500-10500 and 7450-11500 were merged in PB-2 +GP 4600/-
the department in the impugned order dated 06.12.2016 has contended that the applicant was given one promotion in the scale PB-2 +GP-4200/- w.e.f 01.03.1993. and 2nd financial upgradation under MACP was given to him w.e.f. 01.09.2008 by putting him in PB-
2+ GP-4800/-. According to this the respondents claimed that he would have become due for next financial upgradation only :: 11 :: O.A./58/2018 .
w.e.f. 01.09.2018 but prior to that the applicant retired.
6.2 It is necessary here to refer to Para 5 of the MACPS (Annexed A/8) which reads as under:
"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.
The above provision very clearly means that the promotions or upgradations to those grades which now carry the same pay due to merger of scales shall be ignored. The wordings are very clear and convey that it is mandatory to ignore it. By the own admission of the respondents in letter dated 06.10.2016 the 2nd& 3rd promotion which is in the same grade will have to be ignored. The letter conveys that he was given the benefit of upgradation to PB-2 + 4800 GP, w.e.f 01.09.2008 which actually means that after 1996 he received his next upgradation only in 2008 i.e., after 12 years. Prior to 2008 the ACP scheme was in existence where two financial up-gradation were permissible after completion of 12 years and 24 years. When that 24 years would have fallen due prior to 01.09.2008 has not been made clear. Be it as it may, here the provision contained in Para 1 of the MACPS provides that financial up-gradation under the scheme will be admissible whenever a person has spent 10 years continues service in the same grade pay. 6.3 So the most crucial question remain to be adjudicated is whether the temporary appointment as Traffic Apprentice and the period prior to the regular appointment after completion of the training is to be reckoned as regular service. We have respectfully gone through the order of Hon'ble Apex Court in :: 12 :: O.A./58/2018 .
the Prafulla Chandra Swain Case (supra) where Hon'ble Apex Court has distinguished between the word recruitment and appointment and have observed that recruitment is not an actual appointment or a posting in service; in contradistinction of the word appointment means an actual act of posting a person to a particular office. Taking guidance from Hon'ble apex court's order, the question that arises here is whether the appointing the applicant for training is tantamount to posting a person to a particular office.
6.4 We have also respectfully gone through the order of Hon'ble Apex Court in HPGC Case (supra), which has made significant observation with regard to definition of Apprentice under the Apprenticeship Act. It is obvious on the face of it that in view of the specific provision of Apprentice and Trainee in the IREM, the Traffic Apprentices of Railway are different and distinguishable from the Apprentices of the Apprenticeship Act of 1961. We have quoted the relevant Provisions above and have relied on the respondents own letter dated 20.12.1985 which unambiguously says that the applicant was temporarily appointed as Traffic Apprentice in a specified scale and was detailed for institutional training as per the provisions contained in IREM and after completion of the stipulated training the person was appointed to a substantive or working post in accordance to the provisions of respondents. Nowhere it mentions that the Traffic apprentice is an apprentice under the Apprenticeship Act. These definitions distinguish the nature of engagement of apprentices. But by referring to the definition of the term "regular service" in the MACPS, we do not find any justification to exclude the training period after making it clear in black and white that it was an appointment albeit temporary. For the sake of clarity we quote from the Rule 9 ibidem which reads that "Service render in ad-hoc/contract basis, before regular appointment on pre- appointment training, shall not :: 13 :: O.A./58/2018 .
be taken into reckoning". This particular case in not the one where service rendered prior to 20.12.1985 is claimed or is in question. Further, this provision clearly seeks to distinguish "regular appointment on pre-appointment training"from any period of appointment on contract or adhoc, prior to this. It is thus obvious that pre appointment training also ispart of regular appointment and thus covered in definition of the term "regular service"for the purpose of MACPS.
7. Under the above factual matrix, the OA succeeds. Impugned order dated 06.12.2016 (Annexure A/1) and dated 10.07.2017 (Annexure A/2) are hereby quashed. Consequently, the respondents are directed to reckon the period of first appointment vide their letter dated 20.12.1985 as a date of commencement of regular service employment for the purpose of grant of financial upgradation under MACPS. No orders as to costs.
(Dr A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
PA