Central Administrative Tribunal - Kolkata
Sukumar Bhattacharjee vs M/O Environment And Forests on 20 September, 2022
4 | OA 283/2016 lad CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA 0.A./350/00283/2016 'Date of Order: 20.09.2022 Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member In the matter of : Shri Sukumar Bhattacharjee, Son of Late Sudhir Chandra Bhattacharjee, aged about 65 years, since retired as Deputy Ranger from Forest Survey of India (EZ), 1B-198, Sec-lll, Salt Lake, Kolkata-700106 and residing at Bhawani Complex, Flat No. 2B, 2" Floor, Block-'0', Kolkata- 700102, PS- Baguiahati, Dist.- North 24 Parganas. r ..... Applicant Vs. 1. Union of India, service through the Secretary, Ministry of Environment & Forests, Govt. of India, Paryavaran Bhavan, CGO Complex, New Delhi-110003. 2. The Secretary, Ministry of Personnel, Public Grievances & a Per: Hon'ble Dr. OA 283/2016 Pensions, Department of Pension & -- Pensioners' Welfare, 37 Floor, Loknayak Bhavan, Khan Market, New Delhi-110003. 3. The Director General, Forest Survey of India, Kaulagarh Road, Dehradoon, PO-IPE, Dehradoon- 248001. 4. The Regional Director (EZ), Forest Survey of India, 1B 198, Sector-Ill, Salt Lake City, Kolkata- 700106. 5. Addl. Director General (FC), 5" Floor, Jai Block Indira Paryavaran Bhawan, Jorbagh Road, New Delhi- 110003. beeeeees Respondents For The Applicant(s): Mr. J. R. Das, Counsel For The Respondent(s): Mr. B. B. Chatterjee, Counsel ORDER (RAL)
s.) Nandita Chatterjee, Administrative Member Agerieved at non-receipt of 3" MACP and consequential benefits, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i) An order directing the respondents to cancel, rescind, withdraw or set aside the purported order/letter dated 30.11.2015 since being undue, coercive and malafide.
ii) An order directing the respondents to cancel, rescind, withdraw or.
set aside the purported letters dated 06.07.2012, 02.11.2012 since Ine 3 OA 283/2016 regretted the claim of 3 MACP of the applicant on wrong premises holding to be retrenched in place of already declared surplus being in contrary to their own orders dated 28.02.1981.
iii) An order directing the respondents to cause necessary correction/ amendment in the order/letter dated 17.03.2008 to delete the point that the intervening period from 01.04.1981 to 09.11.1981 to be considered for pension only and not for any other purpose and consider the said period for 3 MACP benefit as per rule.
iv) An order directing the respondents to allow the benefits of 3"
MACP to the applicant herein in conformity to DOPT guidelines regarding surplus period on completion of 30 years since 10.07.1976. as per DOPT OM dated 19.05.2009 since effected from 01.09.2008.
v) An order directing the respondents to allow the benefits of 3 MACP to the applicant herein on completion of 30 years since 10.07.1976 in conformity to DOPT guidelines as per rules.
vi) An order directing the respondents to fix and calculate the higher pay band, grade pay as also basic pay on implementation of 3"
MACP benefit to the applicant herein and also fix and calculate higher pension and pensionary benefit w.e.f. 01.05.2009 accordingly and pay the differences of such arrears of pay, allowances and pensionary benefits with statutory. interest thereon as decided by this Hon'ble Tribunal.
vii) An order directing the respondents to place entire records of the case before this Hon'ble Tribunal for conscionable justice.
vili) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
2. Heard Learned Counsel for both sides.
Examined pleadings and documents on record. Written notes of arguments have been filed by Learned Counsel for the applicant.
3. Learned Counsel for the applicant would submit that, the applicant had joined the Pre-investment Survey of Forest Resources (PISFR) in Bhutan, under the aegis of Government of India in July, 1976 and was appointed as a Deputy Ranger in the pay scale of Rs. 290-560/- along with commensurate dearness allowance.
That, vide letter dated 28.02.1981, the name of the applicant along with 14 others were sent to surplus cell for redeployment/ absorption in -other offices of Ibn, oO 4 OA 283/2016 Government of India upon winding up of the Bhutan project, and, on 14.12.1981, an 'NOC' was issued by the Ministry of Home Affairs to such effect (annexed at Annexure-A/2 collectively to the OA).
That, DOPT's OMs dated 27.03.1976 and 29.06.1978 lay down that the surplus staff would be entitled to certain concession/benefits, which would be distinct from those applicable to retrenched employees (annexed at Annexure-
A/4 to the OA).
Thereafter, the applicant was formally appointed as a Deputy Ranger with effect from 01.03.1982, upon being requested to submit his formal resignation with effect from 01.01.1982 from the post of Peon and Fieldman which he had occupied on an ad-hoc basis (annexed at Annexure-A/3 collectively to the OA).
The applicant was allowed his 2"* ACP w.e.f. 01.03.2006 in the next higher scale of Rs. 5500-9000/- (annexed at Annexure-A/6 to the OA). Further, as at Annexure-A/7 to the OA, the applicant received an office order dated 17.04.2008 intimating him that his past service from 10.07.1976 to 31.03.1981 as Deputy Ranger in the Pre-investment Survey of Forest Resources in Bhutan would be counted for pensionary benefits only.
According to the applicant, upon notification of the Modified Assured Career Progression Scheme (MACPs) which took effect from 01.09.2008, the applicant had earned his eligibility for his 3 MACP benefits after completing his 30 years of service since 10.06.1976, and his past services rendered at Bhutan under the Government of India are to be counted for the purpose of MACP benefits as para 23 of the MACP scheme. | a"
om 5 OA 283/2016 That, the applicant had represented duly for his 3 MACP benefits on several occasions (annexed at Annexure-A/10 collectively to the OA), and, being aggrieved by inaction on the part of the authorities, had approached this Tribunal in first. round of litigation in OA 350/01078/2015 which was disposed of on 12.08.2015 (annexed at Annexure-A/12 to the OA), with the following directions :-
"7. What we could see from Aninexure-A/10 is that the respondent department took into account only the office order dated 17 April, 2008 vide Annexure-A/7 referred to supra and not para 23 of the MACP scheme. The respondent department should necessarily consider Annexure-A/2 which refers to the list of surplus staff in which the name of the applicant is found specified. It is not readily known as to why the respondent department ignored para 23 of the MACP scheme. If the applicant is taken as a surplus staff during the break period, obviously it may attract para 23 of the MACP scheme. It is not the stand of the respondent department that the work performed by him from 10.07.1976 to 31.03.1981 was not to be » counted as continuous service on the ground that it was adhoc service. Hence re consideration. at the level of the respondents is absolutely required and as such without deciding this matter on merits, at this stage, we would issue the following directions :
8. The respondent department shall consider the observation made by us above with reference to the records available and interpret the applicability of the MACP scheme in favour of the applicant within a period of two months from the date of receipt of a copy of this order and communicate the result of such consideration, in a well reasoned order to the applicant."
In compliance, the respondent authorities issued an order thereby regretting the prayer of the applicant vide their communication dated 30.11.1982 (annexed at Annexure-A/14 to the OA), upon challenging which, the applicant has approached this Tribunal praying for the aforementioned relief.
4, The applicant would challenge the actions of the authorities primarily on the following grounds :-
(i) That,-as the applicant's service from 10.07.1976 upto 31.03.1981 had already been recognized for purpose of pension, the applicant cannot be _ denied MAC? in violation of law.
(ii) That, the DoPT OM dated 19.05.2009 provides that past service before being declared surplus cannot be denied for counting towards regular service 6 . OA 283/2016 in the new organization for the purpose of financial up-gradation and for grant of benefits of 3"? MACP.
(iii) That, the Principal Bench of this Tribunal in M. Jaykuthi vs. Union of India & Ors. [ (1992) 19 ATC 435 (Del)] had held that surplus staff employed by Government of India on foreign project is entitled for the benefit of re-
~ deployment.
5.
(iv) That, the applicant, after having rendered nearly 32 years of continuous service cannot be deprived of his 3 MACP benefits and that, although similarly circumstanced employees have been rendered such benefits by taking into account the past services rendered by them in other organisations, the applicant was sought to be discriminated against and hence action of the authorities was arbitrary and illegal.
Per contra, the respondents in their counter-reply, and, also during the hearing, sought to rebut the claim of the applicant on the following grounds:-
(i) That, the applicant was initially appointed as Deputy Ranger in the Pre-
investment Survey of Forest Resources (PISFR) w.e.f. 10.07.1976 . The post was initially sanctioned upto 28.02.1977. The project was wound up on 31.05.1981.
(ii) That, the applicant joined as Fieldman under the Forest Survey of India, Eastern zone w.e.f. 01.01.1982 (annexed at Annexure-R/2 to the reply), and, subsequently upon resigning from the post of Fieldman, the applicant joined as Deputy Ranger as a fresh appointee w.e.f. 01.03.1982 (annexed at Annexure-R/3 to the reply).
last, a 7 OA 283/2016 t
(iii) That, the applicant's period of service was not continuous and on that consideration his 2™ ACP was w.e.f. 01.03.2006 in the next higher scale of Rs.
5500-9000/-.
(iv) That, the applicant had joined as Deputy Ranger on 01.03.1982 as a fresh appointee (annexed at Annexure-R/1 to the reply).
(v) That, the applicant was not treated as surplus staff but was a retrenched employee of PISFR Bhutan Project which has been admitted by him in the letter dated 18.06.1983 (annexed at Annexure-A/5 collectively to the OA).
(vi) That, the services of the applicant were terminated w.e.f. 31.03.1981 (annexed at Annexure-R/5 to the reply), and as per para 3 and 4 of DoPT OM dated 27.03.1976 and 29.06.1978 (annexed at Annexure-A/4 to the OA) the retrenched temporary employee will not be entitled to the concession/benefits admissible to surplus person taken over by the Central (Surplus Staff) Cell and that, the appointment of retrenched temporary employee in Group 'C' and Group 'D' post in subordinate offices will be .
considered as fresh appointment.
(vii) That, in compliance to the orders of this Tribunal dated 12.08.2015 in earlier OA No. 350/01078/2015, in which the applicant had approached this Tribunal in first round of litigation, the respondents would clarify that para 23 of MACP scheme would not be applicable to the applicant as he was not a surplus but a retrenched employee of the project.
(viii) That, a communication dated 28.02.1981(annexed at Annexure-A/2 to the OA) was sent to the DoPT with the request to register the names of officials including the name of the applicant in the Surplus Cell for their further hry 8 OA 283/2016 redeployment/absorption in other Government of India offices. The said request, however was not accepted by the Surplus Cell and no orders were issued declaring the applicant as included in the Surplus Cell. Accordingly, para 23 of DoPT OM dated 19.05.2009 is not applicable as the applicant was not declared as a surplus staff and the services rendered by him were purely temporary which. cannot be considered for grant of benefit under the MACP Scheme.
6. Having heard the rival contentions, and, having examined the documents on record, this Tribunal is of the opinion that the only issue that survives for adjudication is whether the applicant herein was treated as a surplus employee or :
a retrenched employee on winding up of the Bhutan Project so as to merit consequent benefits under para 23 of the MACP scheme or otherwise.
In this context, the applicant's appointment order dated 29.06.1976 in the post of Deputy Ranger on a purely temporary basis in the PISFR Bhutan is cited as under :-
"0.0. No. Camp Calcutta Government of India Pre-investment Survey of Forest Resources in Bhutan, Chenglimithang, Thimphu (Bhutan) Camp Calcutta Dt. the 29" June, 1976.
My dear Dr. Banerjee, Sub :- Shri Sukumar Bhattacharjee- appointment of -
Kindly refer to the correspondence resting with Shri P.N. Ray's Letter No. E-29/75-1918 dated 6- 4-1976.
| interviewed Shri Sukumar Bhattacharjee today in your office and discussed his work and worth with you. | agreed to offer him a post of Deputy Ranger, on purely temporary basis, till 28.02.1977 for the time: being in the grade of Rs. 290-8-330-EB-12-500-EB-15-560/- with usual allowances. He will be stationed at Gaylegphug. If he is interested in accepted the post, he may please by directed to report to the Deputy Conservator of Forests, Pre-investment Survey of Forest Resources in Bhutan, Government Houses, Gaylegphug (Bhutan) by 31° July, 1976. He should produce the original certificate and medical certificate etc. nh 9 OA 283/2016 The other conditions of the appointment will be the same as for temporary posts in PIS. He will be paid actual journey expenses to join at Gaylegphug from Calcutta.
With regards, Yours sincerely, Sd/-
(J. N. Mullick) Dr. A. K. Banerjee, IFS, Zonal Co-ordinator, Pre-investment Survey of Forest Resources, Eastern zone, 97/1/8, Hazra Road, Calcutta-26."
We note from the above that, the post of Deputy Ranger in PISFR, Bhutan was purely temporary and, that, the applicant was engaged on the basis of an interview (in the backdrop of a reference made from the Zonal Co-ordinator of the PISFR), with such emoluments as to be granted to incumbents occupying temporary posts in the PISFR.
On 31.12.1981, the applicant was appointed to the post of Fieldman on purely temporary or ad-hoc basis . The said communication is reproduced as under :-
"Government of India Office of the Joint Director, Forest Survey of india, E/Zone, 97/1 8. Hazra Road (2 Floor) Calcutta- 26.
Office order No. 104 of 1981 : Dated -- 31.12.1981 Shri Sukumar Bhattacharya, Peon is hereby appointed to the post of Fieldman on purely temporary on ad-hoc basis w.e.f. 01.01.1982 F.N. on a basic pay of Rs. 260/- p.m. in the pay scale of Rs. 260-6-326-EB-8-350/- plus usual allowances as admissible by the Govt. of India from time to time.
In view of this temporary arrangement Shri Bhattacharyya will not get any right for his absorption in this post or not any claim for his seniority in future. He may be reverted back to his original post at any time without showing any reason by the undersigned. He will continue till the vacancy will open.
Sd/-
Joint Director"
From the above communication, we deduce that the applicant was not entitled by virtue of such temporary arrangement for any absorption or claim to a 10 OA 283/2016 seniority and, that, he was to continue till the currency of the temporary vacancy in the post of Fieldman under the Forest Survey of India. A further communication from the Forest Survey of India dated 01.03.1982 reveals as under :-
"Government of India Ministry of Agriculture (Department of Agriculture & Cooporation) Forest survey of india Eastern Zone, Calcutta- 26.
- Office order no. 13 of 1982 Dated the 01.03.1982 Shri Sukumar Bhattacharyya, S/o Shri Sudhir Ch. Bhattacharyya is hereby appointed temporarily until further orders as Deputy Ranger w.e.f. 01.03.1982 F, N. on a basic pay of Rs. 290/- in the scale of pay of Rs. 290-8-330-10-580-EB-12-500-EB-15-560/- plus usual allowances sanctioned by Government of India from time to time subject to the conditions laid down this office latter no. ..........
Sd/-
Joint Director"
Such order implies that the applicant was temporarily posted as Deputy Ranger w.e.f, 01.03.1982 until further orders.
On 29.03.1982, Forest Survey of India directed as follows :-
"No, E-224/81-385 Government of India, Office of the Joint Director, Forest Survey of India, Eastern Zone, 97/1B(2™ Floor) Hazra Road, Calcutta-26.
Dated, the 29" March, 1982.
To, Shri Sukumar Bhattacharjee, Deputy Ranger, Forest Survey of India, Eastern zone, Calcutta.
Sub: Appointment to the post of Deputy Ranger on temporary basis. Ref: This office order no. 13 of 1982, dated the 1.3.1982.
You have been appointed to the post of Deputy Ranger with effect from 01.03.1982 (F.N.) as a fresh appointment.
her 11 OA 283/2016 __ In view of this, your lien to the original post of peon should have to be terminated for the purpose of allowing the seniority in the post of Deputy Ranger with effect from 1.3.1982.
Therefore, you are requested to submit your formal resignation with effect from 28.2.1982 (A.N.) from the post of Peon and Fieldman on ad-hoc basis in which you were officiating in the later post prior to your fresh appointment to the post of Deputy Ranger. :
Sd/-
Joint Director."
The above mentioned order indicated that the applicant was appointed to the post of Deputy Ranger w.e.f. 01.03.1982 as a fresh appointee. Hence, his original post of Peon will stand as terminated, and the applicant was directed to submit his formal resignation w.e.f. 28.02.1982 from the post of Fieldman, that he was occupying on ad-hoc basis in the Forest Survey of India. The above communication is an important one for the purpose of instant adjudication because for the first time he was appointed as a fresh appointee in the post of Deputy Ranger. On 01.03.1982, the applicant was also issued with an offer letter as per Annexure-R/14 to the reply).
We note herein, and, as admitted during hearing, that this office order dated 01.03.1982 was never challenged by the applicant.
During: hearing, Learned Counsel for the applicant would argue that the applicant was declared as surplus but he was not given any work during the period 31.03.1981 to 01.03.1982 and, that, he had not drawn any salary during such period of his surplus status. We note that the interim period, wherein he was neither given any work nor paid any salary, extended to nearly an year.
it is an admitted fact that that applicant's past service in the PISFR Bhutan was counted for pensionary purpose as per communication dated 17.04.2008 , but it was made clear in the said communication that such period will not count for any other purpose other than pensionary benefits. Nothing has been brought MU.
7 12 OA 283/2016before us to establish that inapplicability of his past service for non-pensionary has ever been challenged by the applicant herein.
A communication of the Forest Survey of India dated 02.06.1981 also notes that, in the event of winding up of Bhutan Project on 31.05.1981, the services of the applicant concerned has been terminated with effect from 31.03.1981 and | that, the applicant had applied on 24.04.1981 for his appointment against any post in the Forest Survey of India.
7. We do not find any challenge to the contentions of the respondents that the applicant was indeed terminated w.e.f. 31.03.1981. Rather, on 18.06.1986, (annexed at Annexure-A/5 to the OA), the applicant had stated as under :-
(emphasis supplied) "To, The Director, Forest survey of India, 25, Subhash Road, Dehradun.
Through : Proper channel Sub : Seniority list of Deputy Ranger in Forest Survey of India as on 31.12.1985. Ref : Your letter no. 6-8/86-Adm. Dt. 25.4.86.
Sir, With due respect | am to represent to your kind authority with a statement as under.
That, the columns from 3 to 7 in favour of my sl. No. 65 and also in columns no.-9 are:not filled up. .
1am to furnish the details which may kindly be indicated against my name.
Column No. 3 : Date of selection 1.3.82 in Forest Survey of India, Eastern Zone, as a retrenched employee of PISFR in Bhutan Project.
Column No, 5 : Educational Qualification : H.S. Pass in Commerce and read upto B.Com ard year. Column No. 6 : Date of Birth : 24" April, 1949 Column No. 7 : Entry into Govt. Services 1 10.7.1976 (A.N.) in PISFR in Bhutan project Column No. 9 : continuous appointment in FSI wef 1.3,1982.
|, therefore pray to you to kindly take necessary action in this favour and oblige.
Yours faithfully, ; Sd/-
Place : Calcutta-26. (Sukumar Bhattacharjee) _ . Deputy Ranger Date : 18.06.86 ° Forest Survey of india, E.Z."
Wee 13 OA 283/2016 The applicant had admitted in the above noted communication that he was in continuous appointment in Forest Survey of India w.e.f. 01.03.1982 and, that, he is a retrenched employee of PISFR in Bhutan project.
Given such admission on behalf of the applicant that he was indeed a retrenched employee in PISFR Bhutan project, his present contention claiming himself to a surplus employee particularly in the context of OMs dated 27.03.1976 and 29.06.1978 do not stand substantiated. oMs dated 27.03.1976 and 29.06.1978 lay down the following in the context of retrenched employees :-
"Qa sssssssnesnsconsaneensssesssssses sees ;
iii) Ministries/Deptts. Should first explore the possibility of re-deploying the employees retrenched by them in suitably Group 'C' and Group 'D' posts in subordinate and non-participating offices under them. For this purpose they should first obtain clearance in accordance with the existing instructions, from the Deptt. Of Personnel and A.K. regarding the non-availability of suitable persons in the surplus cell, before action is taken on them to sponsor the retrenched employees for posts in the subordinate and non-participating attached offices.
FHOCCO CECE TO Cd ra Be BES 04 104 DET CCRT ES EOL TES EE EEE EDA BOE EDO ESE EDD DOO SEED EEES
3. The retrenched temporary employees will not be eligible for any pay and allowances during their waiting period not will they be entitled to the concession/benefits admissible to surplus persons taken over by the Central (Surplus Staff) Cell in.the Deptt of Personnel and A.R. (CS Ill Section),
4. The appointment of retrenched temporary employees in Group 'C' and Group 'D' posts in subordinate/non-participating attached offices will be considered as fresh appointment and their pay on such appointment will also be fixed under the normal rules."
The extracts of OMs as above clarify without any ambiguity that the appointment of retrenched employee of Group 'C' and Group 'D' would be considered as fresh appointment. The applicant admits in his representation dated 18.06.1986 that he is indeed a retrenched employee of PISFR in Bhutan.
Accordingly, the contents of para 23 of the MACPS, relied upon by the applicant with respect to past service rendered by him in the previous organisation of surplus employee would not be counted towards financial up-gradation under MACPS in case of the applicani.
bord 14 OA 283/2016 _ The fact remains that the applicant was indeed a temporary employee of PISER, Bhutan under Government of India and upon winding up of the project, his service were terminated w.e.f. 31.03.1981 in accordance with the OMs dated 23.03.1976 and 29.06.1978 as a retrenched employee. The applicant received an offer letter dated 01.03.1982 for the post of a Deputy Ranger which he duly | accepted after resigning from the temporary post of Fieldman in Forest Survey of India. His entire period between 31.03.1981 and 01.03.1982 was on no work no pay basis. This is not true in the case of the staff who are declared to be surplus and enlisted in the surplus cell. Further, no records have been brought before us to show that he was ever considered to be part of the Surplus Cell in the government of India. | Accordingly, we are of the considered view that the applicant's claim to 3 MACP benefit upon recognition of his past service in the Bhutan project of PISFR is devoid of merit and needs to be dismissed.
8. Accordingly, the OA is dismissed. No costs.
a \ ~ \ \ (Dr. Nandita Chatterjee) | (Mr. Jayesh Vv. Bhairavia) Administrative Member Judicial Member sl