Central Administrative Tribunal - Delhi
Shri Krishan Kumar vs Union Of India Through on 11 March, 2014
CENTRAL ADMINSITRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 955/2013
MA 750/2013
New Delhi this the 11th day of March, 2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. P.K. Basu, Member (A)
1. Shri Krishan Kumar
S/o Late Shri Sita Ram
R/o D-2, P&T Complex
Gopinath Bazar, Delhi Cantt.-110 010.
2. Shri Kanwar Pal
S/o Shri Sultan Singh
R/o A-4/18, Nandnagri
Delhi 110 093. . Applicants
(By Advocate: Shri M.L.Chawla & Shri G.D.Chawla)
VERSUS
Union of India through
1. The Secretary,
M/o Communication
Department of Posts, Dak Bhawan
New Delhi 110 001.
2. The Chief Postmaster General
Delhi Circle
Meghdoot Bhawan
New Delhi 110 001.
3. Assistant Director (Admn.)
Department of Posts
O/o Director, GPO,
New Delhi 110 001. . Respondents.
(By Advocate: Shri B.K.Berera)
ORDER
Mr. P.K. Basu, Member (A) The applicants who joined as Group `D employees under the respondents, had joined the service as Postal Assistants since 12.07.1982. Under Biennial Cadre Review (BCR) Scheme, they were given first upgradation after 16 years of service on 15.07.1998 and second upgradation after 26 years of service on 1.01.2009 vide order dated 5.03.2009. The applicants have been enjoying the fruits of financial upgradation for the last four years until July 2012 when the respondents reduced the basic pay of the applicants putting them to financial loss and loss in pecuniary benefits. In fact, the applicants have been orally conveyed that an amount of Rs.1,47,327/- would be recovered from them as the second BCR upgradation granted to them was being withdrawn. The OA has been filed challenging this action of the respondents and to restrain them from making recovery of any amount as well as refund of salary reduced with effect from July, 2012.
2. The applicants case is that in OA 193/2012, vide its order dated 4.12.2012, the Central Administrative Tribunal (Jaipur Bench) had decided the case of Subhash Chander Vs. Union of India and ors., which related to implementation of BCR Scheme and relying on this Tribunals order in OA 78/2001 in Shyam Lal Vs. Govt. of India, Department of Posts and ors. and OA 878/2010, P.C. Gupta Vs. UOI and ors., the Tribunal directed the grant of higher pay scale to the applicant therein under the BCR Scheme with effect from the date on which he had completed 26 years of service. The applicants also rely on Yogeshwar Prasad and ors. Vs. National Inst., Edu. Planning & Admn. & Ors, 2011 (7) SLR 1, in which the Honble Supreme Court held that additional amount paid pursuant to the grant of higher pay scale recovery of additional amount cannot be made unless it was a case of misrepresentation or fraud by the employee concerned. The applicants further drew our attention to the Modified Assured Career Progression (MACP) OM dated 18.09.2009 in which para 8 and 14 provide as follows:
8. Before initiating action for placing the eligible employees under the MACPS, action may be taken to finalize all TBOP/BCR placements due for the period till 31-08-2008 by conducting meetings of Screening Committee and issuing necessary orders. xxxx xxxx xxxx xxxx
14. It is clarified that no past cases would be re-opened. Further, while implementing the MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of August 1999)/ TBOP/ BCR schemes of Department of Posts and under the MACP Scheme within the same cadre shall not be construed as an anomaly.
3. The respondents have stated that under BCR Scheme, upgradations were granted on two crucial dates i.e. 1st January and 1st July of each year when an official has completed 26 years of service. It was stated that when the MACP Scheme was introduced, the following was clearly provided in the OM:
The scheme of Time Bound One Promotion introduced with effect from 30-11-1983 and the Biennial Cadre Review introduced with effect from 1-10-1991 and extended to categories of staff on subsequent dates shall stand withdrawn with effect from 1-9-2008. The second upgradation to the applicant was granted vide order dated 5.03.2009 with effect from 1.01.2009. Since the BCR was not applicable after 1.09.2008, the second upgradation under the BCR Scheme granted with effect from 1.01.2009 had to be withdrawn. Since the second upgradation cannot be given on the date of completion of 26 years but only on two crucial dates i.e. 1st January and 1st July of every year to any employee who has completed 26 years of service in the six months period immediately preceding the crucial dates, the second upgradation had to be withdrawn.
4. Heard both the parties.
5. The applicants, in support of their claim, have also relied on a judgment of Jodhpur Bench of this Tribunal in OA 382/2011 with connected matters, Bhanwar Lal Regar Vs. UOI and ors.
6. The question is whether second upgradation under BCR Scheme can be granted to the applicants. It is a fact that the applicants completed 26 years service on 15.07.2008. Admittedly, they had completed 26 years service before 1.09.2008, which is the cut-off date laid down by the MACP guidelines. But the BCR Scheme provides that the introduction date for granting second upgradation will be 26 years of service in the six months period immediately preceding the crucial dates (i.e. 1st January and 1st July), which in the applicants case happens to be 1.01.2009. The respondents are missing the woods for the trees by taking a strict technical view of the circular in denying the applicants the second upgradation. In our view, this is against the spirit of BCR Scheme as well as MACP Scheme, which are anti-stagnation measures. Therefore, the correct interpretation would be that under the BCR Scheme, anybody who completes 26 years of service, should be granted second upgradation because he has stagnated for ten long years. The correct interpretation of MACP guidelines would be that no case of an employee would be taken under BCR who completes 26 years after 1.09.2008 as then the new anti stagnation Scheme viz. MACP has kicked in. Therefore, to deny the applicants second BCR upgradation would be completely against the spirit of BCR Scheme.
7. We, therefore, hold that the order dated 5.03.2009 should not be withdrawn and the second financial upgradation granted to the applicants from 1.01.2009 may not be tampered with and consequently no recovery of any amount would be permissible. The respondents are also directed to refund any amount withheld or reduction in salary which they have implemented. Needless to say, the applicants will be granted upgradation whichever are due to them under the MACP Scheme beyond 1.01.2009. The aforesaid directions shall be implemented within a period of three months from the receipt of a copy of this order. No costs.
(P.K. Basu) (G. George Paracken)
Member (A) Member (J)
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