Central Administrative Tribunal - Mumbai
Balu T Jawale vs M/O Information And Broadcasting on 22 April, 2024
1 OA No.744/2017 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAT BENCH, MUMBAI. ORIGINAL APPLICATION No.744/2017 Dated this Monday the 22 day of April, 2024 CORAM: Ms. Harvinder Kaur Oberoi, Member (J) Mr. Shri Krishna, Member (A) Balu T. Jawale, Residing at Worli BDD Chawl, Building No.59, Room No.25, Worli, Mumbai -- 400 018. Retired as Floor Assistant from the office of Addl. Director General (Prog.) Doordarshan Kendra, Worli, Mumbai -- 400 030. wee Applicant ( By Advocate Shri R.P. Saxena ) VERSUS 1. Union of India, through The Secretary to Govt. of India, Ministry of Personnel, Public Grievances and Pensions, (Dept. of Personnel & Training), North Block, New Delhi - 110 001. 2. Chairman, Prasar Bharti, (India's Public Service Broadcaster), Prasar Bharti House, Copernicus Marg, New Delhi - 110 OO1. 3. The Director General Doordarshan Doordarshan Bhawan, Copernicus Marg, New Delhi - 110 OO1. 2 OA No.744/2017 4, The Addl. Director General (Programme) Doordarshan Kendra, Worli, Mumbai -- 400 030. ... Respondents (By Advocate Shri A.M. Sethna ) ORDER Per: Ms. Harvinder Kaur Oberoi, Member (J)
The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:-
"8.1 The Hon'ble Tribunal may be pleased to hold and declare that the OM dated 19" May, 2009, comprising MACP Scheme cannot be operational with retrospective effect from 01 September, 2008.
8.2 To hold and declare that the applicant is entitled to 1 financial upgradation under ACP Scheme with effect from 18.12.2008 after completion of 12 years regular service.
8.3 To quash and set aside impugned order dated 07.07.2017 with a direction to the respondents to grant financial upgradation to the applicant under ACP scheme with effect from 18.12.2008 and to pay the arrears of consequential benefits accordingly,
2. The undisputed facts of the case are that the applicant was appointed as Floor Assistant in the office of the respondents in grade pay of Rs.2400 w.e.f. 18.12.1996. He completed 12 years of service on 18.12.2008. The MACP scheme was introduced on 19.05.2009 w.e.f. 01.09.2008. The applicant was considered and granted 1st MACP on 17.09.2012 w.e.f.
01.09.2008 in the grade pay of Rs.2800/-. The 3 OA No.744/2017 applicant claims 15 ACP w.e.f. 18.12.2008 on completion of 12 years of service.
3. Learned counsel for the applicant, at the outset, submitted that the MACP Scheme was introduced on 19.05.2009. Although the same scheme was made effective retrospectively w.e.f. 01.09.2008, the applicant had completed 12 years of service on 18.12.2008 and was thus eligible for consideration for grant of 18t ACP on the said date. The applicant submitted that the respondents, instead of granting him 15* ACP, have illegally considered and granted 15+ MACP which has led to consider financial loss to the applicant. Counsel for the applicant has relied upon the decision of the Madras Bench of this Tribunal as reported in the Swamynews and annexed at page Nos.30 and 31 of the OA, wherein the Madras Bench of this:
Tribunal held that those employees, who had completed 12 - 24 years of service prior to the issue of the OM dated 19.05.2009 introducing ~= the MACP scheme retrospectively w.e.f. 01.09.2008, were eligible for grant of benefits under ACP Scheme. He submits that the applicant, on coming to know of this decision, 4 OA No.744/2017 filed a representation seeking 1st ACP on completion of 12 years of service. The said representation was rejected by the respondents on 07.07.2017 (Annexure A-1). Challenging the said order, the present OA was filed.
4, Learned counsel has also relied upon the Division Bench decision of the Delhi High Court in the case of Delhi Urban Shelter Improvement Board Vs. Shashi Malik & Ors., reported in 2016 SCC Online Del 4991, to fortify his argument | that ACP Scheme was operational till 19.05.2009 when MACP was introduced retrospectively. Therefore, those who complete requisite service between 01.09.2008 to 19.05.2009 ought to have been considered under ACP. Relevant para 17 is set out herein below:
"17, The ACP Scheme was not withdrawn at any point of time till MACP Scheme was introduced by OM dated 19% May, 2009. The ACP Scheme, therefore, was as such operational till 18" May, 2009. The ACP Scheme and the MACP Scheme are both in the nature of delegated legislation. The Schemes are not formulated and enacted under the proviso to Article 309 and Clause 5 of Article 148 of the Constitution. As a rule, subordinate legislation could not have retrospective effect unless it is held that the said power has been granted under the legislation to the Executive. This is lacking and absent in the present case. We have not been shown any power and authority under which the said subordinate legislation could have been given retrospective effect. This would be one of the important factors and consideration to he kept in 5 OA No.744/2017 mind while interpreting clauses 9 and 11 of the OM dated 19% May, 2009."
5. Learned counsel has relied upon the judgment of the Apex Court in the case of Ex. Capt. K.C. Arora and Anr. Vs. State of Haryana and others, 1984(2) Ail india Services law Journal 54. The Apex Court held that Accrued rights cannot be taken away by Government by making amendment of the rules with retrospective effect.
6. He has also relied upon the judgment of _Madras High Court in the case of Zhe Union of India Rep. By the Engineer in Chief, Military Engineering Services, New Delhi & Ors. Vs. S. Ranjit Samuel & Ors., Writ Petition No.33946/2014 decided on 14.02.2017.
7. He therefore submitted that in view of the aforesaid judgments that the MACP Scheme was introduced only on 19.05.2009, By that time, the right of the applicant for 15t ACP had accrued on 18.12.2008. It was only due to the delay or laxity on the part of the respondents that applicant was not considered for 18* ACP during this period. When the MACP scheme was introduced, the applicant had by that 6 ' OA No.744/2017 time completed more than 12 years of service was granted the benefit of 1st MACP w.e.f. 01.09.2008 leading to financial loss.
a The respondents are resisting the OA and they have filed their counter affidavit. A preliminary objection with respect to limitation has been raised. It is stated that the applicant retired from service on 30.06.2013. He was granted 15* MACP by the order dated 17.09.2012 [email protected]. 01.09.2008. Therefore, the cause of action, if any, in favour of the applicant had arisen only on 17.09.2012. The applicant could have challenged the action of the respondents before the court latest by 16.09.2013. Instead, the OA came to be filed only in the year 2017. Therefore, there is a delay in approaching the Tribunal and the OA deserves to be rejected on this ground alone.
9. On merits, the respondents have stated that the MACP Scheme was introduced with retrospective effect w.e.f. 01.09.2008. In clause 9 of the Scheme itself provides that the scheme shall be operational w.e.f. 01.09.2008. In other words, financial 7 OA No.744/2017 upgradations as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008. As on 31.08.2008, the applicant was yet to complete 12 years of service and, therefore, he could not have been considered even for grant of 15 ACP.
io. We have heard learned counsel for both the parties and perused the pleadings and documents on record.
il. Learned counsel for the applicant stated _that the OA was filed when the applicant came to know that Madras Bench of the Tribunal had allowed certain cases of similarly placed individuals, as such, he had submitted his representation seeking similar relief. The representation came to be rejected in July 2017 and immediately thereafter he has filed the OA in August, 2017. Therefore, there is no delay. Moreover, he has relied on the often referred to case law in the case of M.R. Gupta Vs. Union of India and others, 1995 (5) SCC 628 to say that as the applicant has since retired, any grant of relief would affect the pension received by him. Relief claimed in this 8 OA No.744/2017 OA is with respect to salary and pension being a recurring cause of action, cause of action is arisen every month and, therefore, there is no question of delay.
12. Counsel appearing on behalf of the respondents on merits has relied upon the decision of the Division Bench of the Hon'ble Apex Court in the case of Union of India & Ors. ETC. Vs. S. Ranjit Samuel & Ors. Eic., Civil Appeal No.1625-1627 of 2021 decided on 24 March, 2022. In this case, the similar issue was in question and the Apex Court while relying upon a three judge Bench decision of the Supreme Court in the case of Vice Chairman Delhi Development Authority Vs, Narender Kumar and Others, I 2022 SCC Online SC 273 has held that the ACP would cease to be operational on 31.08.2008. It was held that Macp Scheme becomes operational on 01.09.2008. Even the Madras High Court decision relied upon by applicant above was considered and the (Civil Appeal was disposed. In Union of India & Ors. ETC. Vs. S. Ranjit Samuel (supra), it was held as under:
9 OA No.744/2017"10... Ht is submitted that all such employees, who had become due for the benefit under the ACP Scheme prior to 1" September 2008, would get the benefit of the ACP Scheme, whereas all such employees, who had become due for the benefits from ]* September, 2008 onwards would be considered only under the MACP Scheme. She relies on the recent judgment of this Court by a three Judge Bench in the case of Vice Chairman Delhi Development Authority vs. Narender Kumar and Others.
14. In the present case, this Court is considering the question, as to whether the employees, who had completed 24 years of regular service between I" September, 2008 and 19" May, 2009 would be considered under the ACP Scheme or under the MACP Scheme. This was also a question, which directly fell for consideration and decided by the three-judge Bench of this Court in the case of Vice Chairman Delhi Development Authority (supra).
. 15. In that view of the matter, the appeals deserve to be allowed. It is, therefore, ordered that :
(i) The appeals are allowed.
(ti) The impugned order of the High Court of Judicature at Madras dated 14" February, 2017 passed in Writ Petition Nos.33946, 34602 and 27798 of 2014 and the orders of the Tribunal dated 06"
November, 2013, passed in OA No.818/2011 and 26" February, 2014, passed in OA Nos.1170 of 2012 and 437 of 2013 are quashed and set aside;
(iii) The Original Applications filed by the respondents-employees herein are dismissed.
(iv) It is held and declared that the cases of the respondents- employees/applicants before the Tribunal would be governed by the MACP Scheme.
(v) In case, the appellants have not finalized the cases of any of the respondents-employees for their entitlement under the MACP Scheme, the same shall be considered in accordance with the MACP Scheme and the benefits be given to them within a period of three months from the date of this order."
10 OA No.744/201713. In Vice Chairman Delhi Development Authority Vs. Narender Kumar and Others (supra), Tt has been held as under:-
"31. Para 9 recognises the fact that if there is any ambiguity in the interpretation of the MACP scheme it would be resolved by the Depariment of Personnel and Training. It also clarifies in the last sentence that financial up- gradation would be granted till 31.08.2008 (given that the MACP scheme itself became operative on 01 09,2008), although the office memorandum was issued on 19.05.2009. In the opinion of this Court the undue influence placed upon the last sentence cannot be met much of by the employees given that the ACP scheme itself ended on 31.08.2008. This provision (i.e. Para 9) was made to cater to the situations where the grant of ACP benefits was under
process, this would mean both types of benefits i.e. the first and the second up-gradation. Doubtlessly, the first up-gradation under the ACP scheme was to be granted after 12 years. If Para 9 were to be considered in the context of the first up- gradation it is a clarification to the effect that the individual concerned who has crossed 12 years' service (and therefore became eligible and whose case is under active consideration) would get the ACP benefits. However. this provision cannot be understood as an independent transitional provision, enabling ali employees awaiting the up-gradation to insist that the benefit of the ACP scheme should indefinitely continue despite its ceasing to exist after 31.08.2008"
Further Hon'ble Apex Court has held as under:-
33. The concept of "vested right" has arisen for consideration before this court in several contexts especially with respect to alteration of service condition of public employees. That the Central Government in the exercise of its legislative powers conferred under provision of Article 309 of the Constitution can frame rules which has the force of law has been settled several decades ago. This court has also held that such rules can be made to operate from anterior date by giving retrospective effect to them, The determination of an anterior date for the operation of a rule which has the effect of nullifying or refacing intervening events or invalidating benefits which had been granted to public employees was held to be unconstitutional in State of Gujarat vs Raman Lal Keshav Lal Sonil9. Several previous judgments of this Court dealing with the question that what is accrued or vested right were considered in Chairman, Railway Board v. C.R. Rangadhamaiah20 wherein the impugned rule in question sought to disturb the method of calculating the last pay drawn for the Purposes of pension and related allowances. This impacted the pension disbursement of a large number of employees who had retired much earlier. The court observed that the amendments applied to employees who had already retired and were no 1] OA No.744/2017 longer in service on the date the impugned notifications were issued, and adversely impacted the pension they were drawing. In such context the court held as impermissible, those benefits which accrued or in other words had been actually enjoyed and were taken away by the devise of giving retrospective effect to the rule. The court observed as follows:
22. In State of Gujarat v. Raman Lal Keshav Lal Soni [(1983) 2 SCC 33] decided by a Constitution Bench of the Court, the question was whether the status of ex-ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act 1961 as government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said:
"52. ... The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no _ rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years.
That would be most arbitrary, unreasonable and a negation of history."
23. The said decision in Raman Lal Keshav Lal Soni (1983) 2 SCR 287 of the Constitution Bench of this Court has been followed by various Division Benches of this Court. ( K.C. Arora v. State of Haryana (1984) 3 SCR 623; TR. Kapur v, State of Haryana [ (I 987) I SCR 584]; PD. Aggarwal v. State of U.P. [(1987) 3 SCR 427] ; K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44] ; Union of India v. Tushar Ranjan Mohanty [(1994) 5 SCC 450] and K. Ravindranath Pai v. State of Karnataka [1995 Supp (2) SCC 246).
24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned Provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has 12 OA No.744/2017 been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [ (1968) I SCR 185] BS. Vedera [ (1968) 3 SCR 575] and Raman Lal Keshav Lal Soni [(1983) 2 SCR
287).
34, In the present context, none of the employees actually earned a second financial up-gradation. They undoubtedly became eligible for consideration. However, the eligibility ipso facto could not. having regard to the terms of the ACP scheme translate into an entitlement. The eligibility was, to put it differently, an expectation. To be entitled to the benefits, the public employer (here DDA) had to necessarily review and consider the employees' records, fo examine whether they fulfilled the eligibility conditions and. based on such review individual orders had to be. made by DDA. In other words, second ACP up-gradation was not automatic but dependant on external factors. Furthermore, as held by this Court in MV. Mohanan Nair (supra), MACP benefits are only an incentive meant to relieve Stagnation -- framed under the executive policy. Its continued existence cannot be termed as an enforceable right.
35. Such expectation is akin to a candidate being declared successful in a recruitment process and whose name is published in the select list That, such candidate has no vested right to insist that the public employer must issue an employment letter, has been held by a Constitution Bench Judgment of this Court in Shankarsan Dash vs Union Of India21, Therefore, it is held that employees' contention that they acquire a vested right in securing the second ACP benefit is insubstantial 14, We find that the issue raised in the present OA is squarely covered by the three bench decision of the Apex Court as referred to above and, therefore, once the Supreme Court has held that the MACP scheme is operational w.e.f. 01.09.2008, the prayer clause 8(1) claimed in the present OA is rejected. Even otherwise, on limitation, we find that the applicant had retired in 2013 after receiving the first MACP on 13 'QA No.744/2017 17.09.2012. He had no objection to this at the relevant time. He filed his representation only later as an afterthought when certain reliefs were granted to other individuals who had travelled to the courts earlier in point. Even those decisions have been considered and being overturned by the superior courts. It can safely be said that the applicant is fence sitter who chose to approach the Tribunal only as per his convenience and he tried to rake up an old issue which was settled as far as he is concerned.
15. , The Original Application is, therefore, dismissed not only on limitation but also on merits.
Pending MAs, if any, stand closed. No order as to costs.
(Shri Krishna)" (Harvindex KaGr Oberoi) Member (A) Member (J) ma.