Central Administrative Tribunal - Ernakulam
A.V.Pushkaran vs Union Of India (2008) 8 Scc 725 on 21 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 79/2010
Friday, this the 21st day of October, 2011.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K.NOORJEHAN, ADMINISTRATIVE MEMBER
A.V.Pushkaran,
S/o Velayudhan, Retired Engine Driver Class I,
CIFNET, Kochi residing at Achencheril House,
Nanthiathu Kunna, North Parur,
Ernakulam District. ....Applicant
(By Advocate Mr Shafik M Abdulkhadir)
v.
1. Union of India represented by Secretary,
Department of Animal Husbandry, Dairying
and Fisheries, Ministry of Agriculture,
New Delhi.
2. The Director,
Central Institute of Fisheries, Nautical
& Engineering & Training( CIFNET),
Cochin-16.
3. The Director, National Institute of Fisheries,
Post Harvest Technology & Training,
(Formerly Integrated Fisheries Project),
Cochin-16.
4. The Director General,
Fisheries Survey of India,
Mumbai. ....Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC )
This application having been finally heard on 10.10.2011, the Tribunal on
21-10-2011 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicant initially joined the services of the Respondents as Engine Driver Class II in the Integrated Fisheries Project (IFP) during 1978 and was promoted to the post of Engine Driver Class I in 1991. His pay scale as per the V C.P.C. Recommendations was fixed at Rs 5000 - 8000 w.e.f. 01-01-1996. From I.F.P., the applicant was transferred to the Central Institute of Fisheries Nautical Engineering Training (CIFNET) vide order dated 19-05-2005. Certain others in the CIFNET were transferred to Fisheries Survey of India (FSI). While effecting such transfer, no option was called for from the individuals concerned.
2. In all the above three units, i.e. IFP, CIFNET and FSI, the next avenue of promotion is Chief Engineer Grade II for which the qualifications are as under:-
"Educational and other qualifications required for direct recruits in IFP:
Essential:
(i) Ministry of Transport Certificate of Competency as 1st or 2nd Class Engineers (Motors) or Certificate of Competency as Engineer of Fishing Vessel.
(ii)SSLC or equivalent or satisfactory completion of Engine Driver's Course at Central Institute of Fisheries Nautical and Engineering Training.
(iii)3 Years' practical experience of fishing vessels.
Note 1: Qualifications are relaxable at the discretion of the Union Public Service Commission in case of candidates otherwise well qualified."
"Educational and other qualifications required for direct recruits in CIFNET:
Essential:
i) Matriculation passed from a recognised Board/University or equivalent.
ii) Certificate of Competency of MOT first class or Second Class Engineer(Motor) or Certificate of competency as Engineer (Fishing Vessel) issued by Mercantile Marine Department.
iii)3 years' practical experiences on fishing vessel.
Note 2. The qualification(s) regarding experience is/are relaxable at the discretion of the Union Public Service Commission in the case of candidates belonging to Scheduled Castes and Scheduled Tribes.
"Educational and other qualifications required for direct recruits in FSI:
Essential:
i) Ministry of Transport Certificate of Competency in 1st Class or 2nd Class Engineer (Motor). Or Ministry of Transport Certificate as Engineer of Fishing vessels Or Certificate of Competency as:
a) Engineer of Fishing vessels
b) Engine Driver of Fishing vessels Or
c) Sea Going Engine Driver issued by the Mercantile Marine Department.
ii) Secondary School Leaving Certificate or equivalent or satisfactory completion of Institutional Training of Engine Driver's Course at the Central Institute of Fisheries Operatives, Cochin/Madras.
iii)3 years' practical experience on fishing vessels.
Qualifications relaxable at Commission;s discretion in the case of candidate otherwise well qualified, in particular, the qualification regarding experience is relaxable in the case of candidates belong to the Scheduled Castes and the Scheduled Tribes for posts reserved for them."
3. In so far as promotion is concerned the above qualifications were equally made essential as could be seen from the columns next to the above columns in the Recruitment Rules.
4. The above is the position right from 1985 onwards.
5. It could be seen from the above qualifications, the qualification for the post of Chief Engineer Grade II in the F.S.I. is slightly different from that of the other two. The difference is that for Chief Engineer Gr. II in FSI, Ministry of Transport Certificate as Engineer of Fishing vessels or Certificate of Competency as Engineer of Fishing vessels or Engine Driver of Fishing vessels or Sea Going Engine Driver issued by the Mercantile Marine Department was required, while in the CIFNET, for the said post the requirement is Certificate of Competency of MOT first class or Second Class Engineer (Motor) or Certificate of competency as Engineer (Fishing Vessels) issued by the Mercantile Marine Department.
6. The applicant possesses the Certificate of Competency as Engine Driver of Fishing Vessels. In addition, the applicant had passed the Examination Part A of 'Fishing Engineer' and had undergone package course.
7. In 1999, the Government introduced the ACP Scheme as per the first ACP is provided for after 12 years of recruitment and the second ACP can be considered after 12 years from the first promotion or ACP or after completion of 24 years of service from the date of initial appointment whichever is earlier. In the case of the applicant since he was initially appointed in 1978, the said second ACP was due in 2002. The scheme of ACP contained certain conditions one of which is as under:-
6. Fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group 'D' employees) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purpose and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances etc) only without conferring any privileges related to higher status (e.g. Invitation to ceremonial functions, deputation to higher posts etc) shall be ensured for grant of benefit under the ACP Scheme.
8. When the applicant moved a representation in 2006 requesting for grant of the said financial upgradation under the ACP scheme vide Annexure A-2, he was informed vide Annexure A-3 OM dated 17-01-2007, that he is not eligible for 2nd level Financial Upgradation under the ACP scheme as he does not possess the requisite qualification as per the RRs for the post of Chief Engineer II i.e. the next promotional post.
9. When the applicant was transferred to FSI from CIFNET in the same capacity as Engine Driver Gr. I, on the applicant's moving the matter before CAT in OA No. 65 of 2008, vide order dated 31-01-2008, the applicant was given liberty to move a representation to the first respondent stating his difficulties in accepting the post of Engine Driver Class I in the Fishery Survey of India, Mumbai as a pre condition for his promotion as Chief Engineer Gr. II and the Respondent No. 1 shall consider the same and dispose it of by a Speaking Order and convey the same to the applicant. Accordingly, the applicant expressed the difficulty in his transfer to FSI whereas he would be prepared to move to FSI after he is promoted to the grade of Chief Engineer Grade II, as he possesses the requisite qualifications for the said post in FSI. However, the respondents stated that since he could not be promoted in the CIFNET as Chief Engineer Gr. II (as the requirement of qualifications is not fulfilled by him), he should first move to FSI where his promotion for the said post would be considered and as the applicant was reluctant to move on transfer to FSI prior to promotion, the transfer order was cancelled. Annexure A-5 refers.
10. The applicant moved yet another representation dated 13-03-2008 in regard to his promotion, adverse remarks in the ACR etc., which was disposed of by Annexure A-6 order, wherein also, as regards promotion as Chief Engineer Grade II in the CIFNET, the applicant was informed that the requisite qualification for the post is not possessed by the applicant. Other aspects such as ACR have also been dealt with in the reply, vide Annexure A-6.
11. After making some more attempt by way of representations, the applicant has moved this OA seeking inter alia the following reliefs:-
(i) To call for the records lead by the issue of Annexure A-3 and A-6 and quash the same;
(ii)To cal for the records leading to the issue of Annexure A-5 and quash the same to the extent it denies financial upgradation/promotion to the applicant;
(iii)To declare that the applicant is entitled to second financial upgradation to the post of Chief Engineer/Grade II in scale of Rs.7450-11500 (5th CPC scale of pay) with effect from 30.6.2002 and direct the respondents to grant all consequential benefits with interest at the rate of 18% on the arrears;
(iv)To declare that the applicant is entitled to 3rd financial upgradation as granted in Annexure A-10 with effect from 1.9.2008 to the next scale of pay and direct the respondents to grant all consequential benefits with interest on the arrears."
12. Respondents have contested the O.A. According to them, as long as the Recruitment Rules for the post of Chief Engineer Grade II in CIFNET provide for certain qualifications which the applicant does not possess, he cannot be considered for the second financial upgradation under the ACP or for that matter the 3rd MACP.
13. In his rejoinder, the applicant tried to justify his entitlement by interpreting the term of benchmark etc., specified in the ACP/MACP Scheme stating that notwithstanding the grant of ACP benefit, the designation remains the same and that the benefit is personal etc., He has also referred to yet another clarification wherein it has been stated that in case there be only two posts available in a hierarchy (i.e. only one promotional post), for the second financial upgradation, the post as available in the sister organization could be taken into account, as the case cannot fall under the term 'isolated post'.
14. In their additional reply, the respondents have contended that the aforesaid situation does not apply to the facts of the case of the applicant as the cadre or hierarchy of the applicant is not limited to two and neither there is any doubt as to which pay scale the applicant is to be considered for the second financial upgradation under the ACP Scheme.
15. Counsel for the applicant, after narrating the brief history of the case as mentioned above and after taking us through the relevant part of the Recruitment Rules, submitted that in fact as early as in 2001, the issue came up before the Tribunal in a batch of O.As, i.e. OA No. 1353 of 2000, 103/2001, 212/2001 and 297 of 2001. And the Tribunal analysed the same in the following manner -
"22. From a reading of para 7 of Annexure-I to A-1 OM dated 9.8.99 and hat is brought out above in our view what is required to be examined is whether there is a well defined cadre consisting of different grades where promotion from the lower grade to the higher grade is on fulfillment of promotional norms like passing of a suitability test, fulfillment of bench mark, etc. and if an employee fulfils these conditions irrespective of whether there is a vacancy in the higher grade or not if he has completed the prescribed period of service in the lower grade as per the ACP scheme, he will be eligible for financial benefits. On the other hand if a higher educational qualification than what was prescribed for the lower grade post to which he was recruited/promoted, is provided for in the Recruitment Rules, for filling up the next higher grade post, in that case such a post cannot be taken as a promotional post and both the posts cannot be stated to belong to a "well defined cadre."
xxxx xxxxx xxxxx
26. Though the respondents have used only the word "qualifications" in the impugned orders in O.A.No.1353/2000, O.A.103/2001 and O.A.No.297/2001, from a reading of R-3G and A-7 we hold that what the respondents mean by the said word is "educational qualifications". We have already held that when different educational qualifications are prescribed for lower and higher grade posts both posts could not be said to be a part of a well defined cadre. Further if such a higher grade post only is available to the incumbents of the said lower grade post for career progression, then such incumbents cannot be said to have adequate avenue of promotion."
16. Ultimately, all the OAs were allowed. This order was challenged through different writ petitions viz., CWP 18024 of 2002 (in respect of OA No. 1353 of 2000) and 20149 of 2002 (in respect of OA No. 103 of 2001). These were allowed and the order of the Tribunal was dismissed.
17. Against the judgment of the High Court in CWP 18024 of 2002, the applicants before the Tribunal preferred Special Leave Petition which on admission was converted into Civil Appeal No. 3562 of 2007 and the Apex Court has held in that case as under:-
"Heard learned counsel for the parties.
This Appeal has been filed against the judgment and order dated 29th January, 2003 passed by the High Court of Kerala at Ernakulam in O.P.No.18024 of 2002.
The facts have been detailed in the impugned judgment and hence we are not repeating the same here.
Appellants herein claimed the benefit of Assured Career Progression Scheme (for short 'ACP') as per the recommendation of the V th Pay Commission.
Admittedly, the appellants have cleared the departmental examination but they have been denied the benefit on the ground that they did not possess the qualification of promotional post.
In the ACP Scheme, which is Annexure P1 to this appeal, no where it is mentioned that for getting the benefit of ACP, the applicant must possess the qualification of promotional post.
Accordingly, this appeal is allowed, the impugned judgment of the High Court is set aside and a direction is given that the appellants herein, who have now retired, be given the benefit of ACP notionally with all consequential benefits. No costs."
18. Counsel for the applicant submitted that one of the applicants Shri M.L. Xavier in OA 103 of 2001 was functioning as Engine Driver Gr. I in the IFP and since the common order of the Tribunal has been upheld by the Apex Court, the said order should be made applicable to the case of the applicant also, as the controversy in respect of fulfillment of the requisite qualification under the Recruitment Rules has been set at naught through the aforementioned order of the Apex Court.
19. Counsel for the respondents has not denied about the existence of the aforesaid order of the Apex Court.
20. Arguments were heard and documents perused. The decision of the Apex Court relates to W.P. No. 18024 of 2002, which again relates to OA 1353 of 2000. Shri Xaviour was an applicant in OA No. 103 of 2001. In the Tribunal's order dated 18-12-2001, the relationship between OA No. 103 of 2001 and OA No. 1353 of 2000 had been brought out very clearly. Relevant portion of the order of the Tribunal is extracted as hereunder:-
"4. The applicants in this Original Application are similarly placed as those in Original Application No.1353/2000 except that the first applicant was given financial upgradations by A-3 order dated 11.2.2000 and the remaining applicants were given financial upgradations by A-4 order dated 1.8.2000. Through this Original Application they sought the following reliefs:
(i) To call for the records leading upto Ministry's letter No.5-48/2000-fy-Admn dated 7.12.2000 and quash the same to the extent it adversely affect the applicants.
(ii)To call for the records leading upto A-5 and quash the same so far as it relates to the applicants.
(iii)To direct the respondents to continue to grant the benefits of the ACP Scheme to the applicants with all consequential benefits.
(iv)To issue such other orders or directions as this Tribunal may deem fit and proper in the circumstances of the case."
xxxxx xxxxxxx xxxxxxx
12. The respondents rely on the condition No.6 of Annexure-
I to A-1 OM dated 9.8.99 and the Ministry's letter dated 7.12.2000 for issue of the impugned order dated 21.12.2000 in O.A.No.1353/2000 and 103/2001 and for withdrawal of benefits/non-grant of benefits under ACP Scheme in the other two OAs. Referring to condition No.7 of Annexure-I to A-1 OM dated 9.8.99 they submitted that in the case of posts which were part of a well defined cadre, the benefits should be granted confirming to the existing hierarchical structure only.
13. Respondents filed R-3G statement in O.A.No.1353/2000 and R-7 statement in O.A.103/2001 purported to be indicating interalia the present grade of each of the applicants, next higher grade in accordance with the existing hierarchy as per notified Recruitment Rules, qualifications prescribed for regular promotion to the next higher grade in accordance with the existing hierarchy and qualifications possessed by the applicants to prove that the applicants do not have the qualifications prescribed in the Recruitment Rules. They also justified the clarification dated 7.12.2000 on the basis of Annexure 22.1. of para 22.31 of the Report of the Fifth Central Pay Commission (Annexure R-3H in O.A.1353/2000).
Xxxx xxxxx xxxxx
27. In the light of the detailed analysis given in the foregoing paragraphs we hold that these four Original Applications are liable to succeed to the extent indicated below:
(i) We set aside and quash the letter No.5-48/2000 Fy-
Admn dated 7.12.2000 issued by the Govt. of India, Ministry of Agriculture (which is Annexure R-3C in O.A.No.1353/2000, Annexure R-2 in O.A.No.103/2001 and Annexure R-3D in O.A.No.212/2001.
(ii)We set aside and quash A-5 order dated 21.12.2000 to the extent it relates to the applicants in O.A.No.1353/2000 and O.A.No.103/2001.
(iii)We direct the respondents to continue to grant the benefits of ACP Scheme to the applicants in O.A.No.1353/2000 and O.A.No.103/2001 with all consequential benefits."
21. The main issue whether recruitment qualifications should be fulfilled with or not in respect of the applicants in OA 1353 of 2000 and 103 of 2001 had been considered by the Tribunal in para 16, 17 and 18 of the order and the same are reproduced below:-
"16. The conditions No.6 and 7 of Annexure-I to A-1 OM dated 9.8.99 relief on by the respondents read as under:
"6. Fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group'D' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances etc.) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme.
7. Financial upgradation under the scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay scales as indicated in annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay scale S-4 as indicated in Annexure-II will be eligible for the proposed two financial upgradations only tot he pay scales S-5 and A-6. Financial upgradation on a dynamic basis (ie. without having. To create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay scale) when vacated. Posts which are part of a well defined cadre shall not qualify for the ACP Scheme on 'dynamic' basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only."
17. The impugned letter dated 7.12.2000 issued by the first respondent relied on by the third respondent for withdrawing/denying the benefits of ACP Scheme to the applicants in these Original Applications reads as under:
"To The Director, I.F.P. P.B.No.1801, Cochin-682 016.
Sub: ACP Scheme for the Central Govt. Civilian Employees
- reg.
Sir, I am directed to refer to your letter no.A1/1-2/97- Pt.III/Vol.II/3968 dated 13.10.2000 on the above mentioned subject and to say that in a defined hierarchy of grades financial upgradation can be given only if an employee fulfils the conditions of notified Recruitment Rules of next higher post and failing which he cannot be given financial upgradation under ACP Scheme either in promotion grade or in standard/common higher pay scale.
Yours faithfully, Sd/- K.P.Malhotra Under Secretary to Govt. of India"
18. From condition 6 reproduced above it is evident that fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group-D employees, etc.) are pre-requisite for grant of financial upgradation. This will ensure that the stagnation is not due to the employees' fault. Nowhere in this condition, "fulfullment of conditions of notified Recruitment Rules" as included in the impugned letter dated 7.12.2000 is mentioned. Further, we are of the view that the report of the Fifth Central Pay Commission or their recommendations could not be an authority for the respondents for issue of the letter dated 7.12.2000. Their actions are to be on the basis of Government's orders on the subject. On a complete reading of A-1 and A-2 Oms we find that there was no mention that the two financial upgradations would be on the basis of possession of prescribed educational qualifications for the direct recruits as stated in the Recruitment Rules. From a reading of condition No.7 we find that financial upgradation under the scheme was to be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating .new posts for the purpose and in absence of defined hierarchical grades the financial upgradation were to be given by Ministries/Departments concerned in the immediately next hither (standard/common) pay scales as indicated in Annexure-II to the said OM. It was also enjoined that posts which were part of a well-defined cadre was not qualified for ACP Scheme on dynamic basis. Keeping in view the instructions contained in this condition No.7, for deciding whether the employees in a particular category of post are entitled for the benefits of ACP Scheme in the next higher grade in the hierarchical structure or in the next higher grade on dynamic basis, it has to be seen as to whether the employees are in posts which are part of "a well defined cadre" or are holding "isolated posts". For deciding these aspects the respective Recruitment Rules of the lower and higher grade posts are relevant."
22. It is the aforesaid order that has now been upheld by the Apex Court through its order in CA 3562 of 2007.
23. In view of the above, we have no hesitation to hold that the order of the Apex Court shall apply to the facts of the applicant and thus, the applicant is entitled to be considered for grant of second ACP in accordance with the decision dated 18-12-2001 of the Tribunal in OA No. 1353 of 2000 and connected matters. Since the qualifications are relaxable at the instance of UPSC, if need be the respondents can make out a case for such relaxation on the basis of the aforesaid judgment of the Apex Court.
24. While the applicant has established a case in his favour in respect of second ACP due to him in 2002, as regards his entitlement to MACP, it is seen that the same is denied on the ground of non fulfilment of the requisite benchmark as per Confidential Reports. Para 7 of the counter refers.
25. Counsel for the applicant argued in this regard that the contention of the respondents in this regard is untenable in view of the decision of the Apex Court in the following two cases:-
(a) Dev Dutt vs Union of India (2008) 8 SCC 725
(b) Abhijit Ghosh Dastidar vs Union of India (2009) 16 SCC 146.
26. In the case of Abhijit Ghosh Dastidar, which case fits in well with the facts of the case of the applicant (as in both the cases, the applicants retired from service), the Apex Court has held as under:-
"ORDER
1. Leave granted.
2. The appellant was the Post Master General during the relevant period and was eligible to be promoted to the Higher Administrative Grade Group A of the Indian Postal Service and to be posted as the Chief Post Master General. His claim for promotion was considered by DPC on 15-12-1999 and again on 28-2-2001. The appellant was not found eligible for promotion to the Higher Administrative Grade A. He filed an original application before the Central Administrative Tribunal (hereinafter referred to as "CAT") at Patna alleging that he was not considered for promotion for the reason that there were two entries in his CR i.e. one on 22-9-1997 and another on 8-2-1998.
3. It was pointed out that CAT, Patna Bench by order dated 27-5- 2002 directed the authority not to take note of "the order of caution dated 22-9-1997" and "the order of adverse remarks dated 9-6- 1998" for the period 1-4-1997 to 13-10-1997 while considering the appellant for promotion. In the light of the said order, the appellant contended that these two adverse entries should not have been considered by DPC.
4. The appellant further contended that throughout the period he was given the entry of "good". The respondent Department alleged that the appellant was not considered for promotion as he was not having the benchmark of "very good".
5. According to the appellant, the adverse entries, namely, "good" were not communicated. The said aspect ought not to have been considered while considering his promotion. In support of the above claim, he relied on the decision of this Court in Dev Dutt v. Union of India1.
6. Pursuant to the direction of CAT, Patna Bench on 9-9-2002 review of DPC was held and the appellant was not found suitable for promotion. In March 2003, there was a regular DPC and the appellant was found fit for promotion with the same entries and accordingly promoted to the Higher Administrative Grade Group A and later retired from service.
7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22-9-1997 and the order of adverse remarks dated 9-6-1998. In view of the said order, one obstacle relating to his promotion goes.
8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case, SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion from 28-8-2000 shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules.
11. The appeal is allowed to the above extent. No costs."
27. In view of the decision of the Tribunal in OA No. 103 of 2001, the decision by the Apex Court in CA No. 3562 of 2007 (supra) and the decision of the Apex Court in the case of Abhijit Ghosh Dastidar (supra), the OA is allowed to the following extent:-
(a) It is declared that the applicant is entitled to be considered for second financial upgradation from the date he completed 24 years of his service (i.e. w.e.f. 30-06-2002) and since this is only a financial upgradation and not a promotional post, he is entitled to the grant of arrears of pay and allowance as well from the date.
(b) It is also declared that the applicant is entitled to be considered for grant of MACP in accordance with the scheme from the date he completed 30 years of service or 01-09-2008 whichever is later.
Such a consideration is without taking into account the benchmark aspect as in the case of Dastidar. Here again, he shall be granted, on being found otherwise suitable for financial upgradation, the financial benefits.
(c) Though the applicant has claimed interest, as the decision of the department in not granting is not on any untenable ground but on the basis of certain interpretation, he is not entitled to any interest.
(d) The pensionary and other terminal benefits of the applicant shall be accordingly rescheduled based on his last pay drawn at the time of his retirement.
(e) This order shall be complied with, within a period of four months from the date of receipt of a copy of this order.
28. No cost.
K NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs