Kerala High Court
Union Of India vs V.S.Joseph on 21 January, 2020
Author: K.Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
OP (CAT).No.288 OF 2019
AGAINST THE ORDER IN OA 863/2015 DATED 04-02-2019 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE
GOVERNMENT OF INDIA, MINISTRY OF FISHERIES,
ANIMAL HUSBANDRY AND DAIRYING,
DEPARTMENT OF FISHERIES,
KRISHI BHAVAN, NEW DELHI-110001.
2 THE PAY AND ACCOUNTS OFFICER,
CENTRAL PENSION ACCOUNTING OFFICE, MINISTRY OF
FINANCE, GOVERNMENT OF INDIA,
TRIKOOT 11 COMPLEX, BHIKAJI CAMA PLACE,
NEW DELHI-110 066.
3 THE DIRECTOR,
CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET), MINISTRY OF
FISHERIES, ANIMAL HUSBANDRY AND DAIRYING,
DEPARTMENT OF FISHERIES,
FORESHORE ROAD, KOCHI-682 016.
4 THE SENIOR ADMINISTRATIVE OFFICER,
CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET),
MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND
DAIRYING, DEPARTMENT OF FISHERIES,
FORESHORE ROAD, KOCHI-682 018.
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
O.P.(CAT) No. 288 of 2019
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RESPONDENT/S:
V.S.JOSEPH
S/O SEBASTIAN V.A, RETIRED CARPENTER (CIFNET),
VALIYAPARAMBIL HOUSE, WATER LAND ROAD,
PALLURUTHY, KOCHI-682 006.
OTHER PRESENT:
SMT. SMITHA GEORGE
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(CAT) No. 288 of 2019
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JUDGMENT
Dated this the 21st day of January, 2020 K.VINOD CHANDRAN, J.
The claim raised before the Tribunal was with respect to the second financial up-gradation as per the Assured Career Progression Scheme (ACPS) on completion of 24 years with effect from January, 2008. We refer to the parties and documents as are available in the original petition. The applicant retired on 30.01.2008 and approached the Tribunal for the first time in the year 2015, which delay by itself stands against the grant of financial up-gradation as per the ACPS while in service.
2. Even then we look at the facts which indicate that the applicant had been appointed for various periods from 15.12.1975 in different spells on a temporary basis, which however is not claimed for the purpose of grant of ACPS. The applicant's claim is that he was appointed as an adhoc O.P.(CAT) No. 288 of 2019 -4- Carpenter on 13.01.1984 and he was regularised on 7.11.1985 and hence, the adhoc appointment as on 13.01.1984 itself is to be treated as a regular appointment. Admittedly, the applicant's probation was declared by Annexure A3 order dated 23.12.1987. The regular appointment of the applicant too was made as on 7.11.1985; which order is not produced here or challenged at any earlier point of time. It is submitted by the learned ASG that the regular appointment itself was an exception made, since the applicant was over-aged at that point of time.
3. The applicant was granted the first ACP up- gradation on 09.08.1999, on completion of 12 years from the date of entry into regular service. The applicant did not make any further claim for the second ACP up-gradation as on the date when it is alleged to have accrued to him on completion of his 24 years service in January 2008, computed from the date of his adhoc appointment. The O.P.(CAT) No. 288 of 2019 -5- applicant continued in service and obtained the second financial up-gradation as per the Modified Assured Career Progression Scheme (MACPS) on 1.9.2008 when the said scheme was implemented. The applicant retired on 31.10.2008 and approached the Tribunal after seven years.
4. The prayer made after seven years for the financial up-gradation while in service cannot at all be entertained. Further we have also found that adhoc service cannot be reckoned for the purpose of ACPS following Union of India and others v. P.J. Mary [2011 (1) KHC 861]. P.J. Mary, looked at an identical issue of counting of adhoc service for the purpose of ACPS, which, for promotion, is not reckoned as eligible service. The Division Bench specifically found from the terms of the ACPS that regular service for purpose of time-bound up-gradation, has to be interpreted to mean the eligible service counted for regular promotion, in terms of regular recruitment/service rules. It was O.P.(CAT) No. 288 of 2019 -6- categorically found that for the purpose of financial up- gardation under the ACPS, there can be no reckoning of adhoc service. We perfectly agree with the finding since, if an adhoc employee is not entitled to count his adhoc service for promotion; then there arises no question of stagnation, on which factum is anchored the very scheme of financial up- gradation.
In such circumstances, we set aside the order of the Tribunal and allow the original petition. No order as to costs.
sd/-
K.VINOD CHANDRAN JUDGE sd/-
V.G.ARUN JUDGE Scl/21. 01.2020 xx O.P.(CAT) No. 288 of 2019 -7- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF OA NO 180/00863/2015 FILED BY THE PETITIONER DATED 11.2.2015 EXHIBIT P1(A5) TRUE COPY OF THE COMMUNICATION NO PF 203/ADM/677 DATED 25.9.2014 EXHIBIT P1(A1) TRUE COPY OF THE MEMO DATED 29.11.1975 EXHIBIT P1(A2) TRUE COPY OF THE OFFICE ORDER NO F13-
18/83 ADM DATED 20.1.1984 EXHIBIT P1(A3) TRUE COPY OF THE OFFICE ORFDER NO F.1.14/87 ADM DATED 23.12.1987 EXHIBIT P1(A4) TRUE COPY OF THE REQUEST LETTER FOR THE GRANT OF 2ND LEVEL FINANCIAL UP-
GRADATION UNDER THE ACP SCHEME DATED 20.6.2014 EXHIBIT P1(A6) TRUE COPY OF THE CERTIFICATE DATED 2.12.2003 REHEARING THE DETAILS OF QUALIFYING SERVICE OF THE APPLICANT ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN OA NO 180/00863/2015 DATED NIL 6.2016 EXHIBIT P2(R1A) TRUE COPY OF THE DEPT OM NO 35034/97- ESTT(D) DATED 9.8.1999 EXHIBIT P2(RIB) TRUE COPY OF THE RELEVANT PORTION OF THE DOPT OM NO 35034/1/97-ESTT(D)(VOL- IV)DATED 10.2.2000 EXHIBIT P3 TRUE COPY OF THE IN OA 180/00863/2015 DATED 4.2.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.
O.P.(CAT) No. 288 of 2019-8-