Kerala High Court
Union Of India vs K.V.Ramakrishnan on 5 November, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942
OP (CAT).No.28 OF 2018(Z)
AGAINST THE ORDER IN OA 180/00006/2014 DATED 05-01-2017 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,MINISTRY
OF DEFENCE, GOVERNMENT OF INDIA,NEW DELHI-110003.
2 ENGINEER IN CHIEF
ARMY HEADQUARTERS, DHQPO, NEW DELHI.11.
3 CHIEF ENGINEER
SOUTHERN COMMAND, PUNE-411001.
4 CHIEF ENGINEER
CHENNAI ZONE, ISLAND GROUP, CHENNAI.600009.
5 COMMANDER WORKS ENGINEER PROJECT
WELLINGTON, THE NILGIRIS-600242.
6 GARRISON ENGINEER
RED FIELDS (PO), COIMBATORE-641018.(DISBANDED AND NOW
DOWN GRADED AS AGE COIMBATORE UNDER GE WELLINGTON),
HENCE NOW GARRISON ENGINEER WELLINGTON .
BY ADV. SRI.T.V.VINU, CGC
RESPONDENT:
K.V.RAMAKRISHNAN
S/O GOPALAN NAIR (RETIRED), UDC, MES 232661, NOW
RESIDING AT SOUPARNIKA, MANGALAMKUNNU, KATTUKULAM
PO,THIRUVAZHIYODE VIA, PALAKKAD DISTRICT,KERALA, PIN-
679514.
R1 BY ADV. SRI.A.D.SHAJAN
R1 BY ADV. SMT.S.SINDHU
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 28-10-2020, THE
COURT ON 05-11-2020 DELIVERED THE FOLLOWING:
O.P.(CAT)No.28/2018 2
JUDGMENT
Dated this the 5th day of November 2020 Gopinath, J.
This Original Petition has been filed by the Union of India & its officers challenging the order dated 5.1.2017 in O.A.No.180/00006/2014 on the file of the Central Administrative Tribunal, Ernakulam Bench. The Tribunal has allowed the claim of the respondent/applicant for the benefit of the 3 rd financial up- gradation under the 'Modified Assured Career Progression' (MACP) Scheme (hereinafter referred to as MACP for short). The petitioners say that the respondent is not entitled to the 3rd financial up- gradation as he has not completed the requisite years of service for the same.
2. The respondent entered service as a Ferro Printer on 21.11.1968. However, from 31.12.1969, since he was declared surplus in the cadre of Ferro Printer, he continued in service as a Storeman. On 29.8.1980, the respondent was posted as a Lower Division Clerk. On the introduction of the Assured Career Progression Scheme (ACP), the respondent was granted the benefit of 1st and 2nd ACP at 12 and 24 years counting his service from 29.8.1980. The issue as to whether his O.P.(CAT)No.28/2018 3 service from 21.11.1968 is liable to be counted for ACP does not arise for our consideration and even if it did, such a claim would be hopelessly barred by delay, laches and limitation. With effect from 1.9.2008, on the recommendation of the 6th Central Pay Commission, the Government of India introduced the MACP which provided for financial upgradations on completion of 10 years, 20 years and 30 years in a particular grade. This was in the modification of the then existing ACP Scheme. The respondent retired from service on 30.6.2010. The only question arising for our consideration is whether, in the aforesaid fact situation, the respondent was entitled to the 3 rd financial up-gradation and if so from which date he would be so eligible.
3. Sri. T.V. Vinu, the learned counsel appearing for the petitioners would contend that the Tribunal misdirected itself in law in granting to the respondent the benefit of the 3 rd financial up- gradation under the MACP Scheme. According to the learned counsel for the petitioners, when the Tribunal itself found that the respondent could be treated as having joined service only on 29.8.1980, the Tribunal could not have proceeded to grant the benefit of 3 rd MACP on a finding that there was a shortage of only two months and on the premise that his service from 21.11.1968 to 31.12.1969 should anyway be reckoned for determining the length of service rendered by the O.P.(CAT)No.28/2018 4 respondent. He very vehemently contends that the Tribunal failed to appreciate the facts of the case properly and misconstrued the provisions of the MACP Scheme.
4. Smt. Sindhu Santhalingam, the learned counsel appearing for the respondent would, on the other hand, contend that there was no basis for the administration, to take the view that the service of the respondent from 21.11.1968 to 29.8.1980 had to be excluded to determine the date on which the respondent would be entitled to the benefit under the MACP Scheme. She would contend that the post of Ferro Printer was a post which carried the same pay scale as that of a Lower Division Clerk and that the respondent was posted as a Storeman (a lower grade) only on the basis that he was surplus in the post of Ferro Printer. Having continued the respondent in service, it was not open to the administration to contend that his service would be counted only from 1.8.1980, the date on which he was re-categorized and posted as a Lower Division Clerk. She would also place reliance on Paragraph 23 of Annexure-A-XVII Office Memorandum to contend that there was no question of the service from 21.11.1968 to 29.8.1980 being discounted for the grant of benefits under MACP.
5. We have considered the contentions raised by either side. The MACP Scheme which was introduced based on the O.P.(CAT)No.28/2018 5 recommendation of the 6th Central Pay Commission. MACP Scheme was notified on the 19th of May, 2009, with retrospective effect from 1st of September, 2008, and had replaced the ACP Scheme with effect from 1st September, 2008. The details of the MACP Scheme and conditions for grant of the financial up-gradation under the MACP Scheme are given in Annexure-l to Office Memorandum bearing No.35034/3/2008-Estt(D) issued by the Government of India in the Ministry of Personnel Public Grievances and Pensions on the 19 th May 2009. Paragraph 9 of Annexure-l to the said Office Memorandum reads as follows: -
"9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment or pre- appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."O.P.(CAT)No.28/2018 6
Thus it is clear that for the MACP Scheme, the regular service shall commence from the date of first entry into service on regular basis and that only ad-hoc or contractual employment will be excluded. Thus it is clear that in the facts of the present case the service of the respondent from 21.11.1968 to 29.8.1980 cannot be excluded for determining eligible service under MACP. Further paragraph 23 of the same Annexure -I, upon which considerable reliance has been placed by the Learned Counsel for the respondent reads as follows: -
"23. In case an employee is declared surplus in his/her organisation and appointed in the same pay scale or lower scale of pay in the new organization, the regular service rendered by him/her in the previous organisation shall be counted towards the regular service in his/her new organization for the purpose of giving financial upgradation under the MACPS."
A combined reading of Paragraphs 9 and 23 leads to the irresistible conclusion that in the case of the respondent, his service from 21.11.1968 to 29.8.1980 cannot be ignored for the grant of MACP as it is the admitted case that he was re-classified or re-posted as Storeman in a lower grade with effect from 31.12.1969 only on account of being declared surplus in the grade of Ferro Printer. Viewed in that manner, the respondent had completed 30 years of service much before the introduction of the MACP and on the introduction of MACP, he was O.P.(CAT)No.28/2018 7 entitled to the 3rd financial upgradation with effect from 1.9.2008, i.e., the date of introduction of the MACP Scheme.
6. We, therefore, find no infirmity in the direction issued by the Tribunal, not on account of the reasons recorded by the Tribunal, but for the reasons indicated above. The Original Petition will therefore stand dismissed. We hold that the respondent is entitled to the grant of the 3rd MACP with effect from 1.9.2008. The benefit shall be extended to the respondent and arrears of salary on account of grant of 3rd MACP for the period from 1.9.2008 to the date of his retirement shall be disbursed to him. His retirement benefits shall also be re-calculated and all amounts due on account of such re- calculation together with the arrears shall also be disbursed to the respondent. Let the needful be done not later than three months from the date of receipt of a certified copy of this judgment.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE acd O.P.(CAT)No.28/2018 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A NO.180/00006/2014 DATED 26.06.2013 FILED BY THE RESPONDENT BEFORE THE CAT ERNAKULAM BENCH.
EXHIBIT P2 TRUE COPY OF THE COUNSEL STATEMENT IN OA NO.180/00006/2014 DATED 13.05.2016 FILED BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE REJOINDER IN OA NO.180/00006/2014 DATED 10.06.2015 FILED BY THE RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A NO.180/00006/2014 DATED 13.05.2016 FILED BY THE PETITIONERS.
EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REJOINDER IN O.A NO.180/00006/2014 DATED 18.07.2016.
EXHIBIT P6 TRUE COPY OF THE ORDER IN OA NO.180/00006/2014 DATED 05.01.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
ANNEXURE 11 TRUE COPY OF THE REPRESENTATION DATED 19.4.2012 BEFORE THE CHIEF ENGINEER, PUNE (3RD RESPONDENT).
ANNEXURE A1 TRUE COPY OF THE CONFIDENTIAL REPORT FOR THE PERIOD FROM 1 APRIL 2009 TO 31 MARCH 2010 ANNEXURE A111 TRUE COPY OF THE LETTER DATED 27.4.2012 ISSUED BY THE 6TH RESPONDENT TO THE APPLICANT ANNEXURE AIV TRUE COPY OF THE REPRESENTATION DATED 31.7.2012 SUBMITTED BY THE APPLICANT BEFORE THE 4TH RESPONDENT ANNEXURE V TRUE COPY OF THE REPRESENTATION DATED O.P.(CAT)No.28/2018 9 6.9.2012 SUBMITTED BY THE APPLICANT BEFORE THE 4TH RESPONDENT ANNEXURE VI TRUE COPY OF THE REPRESENTATION DATED 26.9.2012 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT ANNEXURE VII TRUE COPY OF THE LETTER DATED 25.9.2012 ISSUED BY THE 6TH RESPONDENT TO THE APPLICANT ANNEXURE VIII TRUE COPY OF THE LETTER DATED 15.10.2012 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT COPY TO THE APPLICANT ANNEXURE IX TRUE COPY OF THE REPRESENTATION DATED 31.10.2012 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT ANNEXURE X TRUE COPY OF THE REPRESENTATION DATED 30.11.2012 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT ANNEXURE X1 TRUE COPY OF THE REPRESENTATION DATED 2.1.2013 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT ANNEXURE X11 TRUE COPY OF THE LETTER DATED 15.1.2013 ISSUED BY THE 1ST RESPONDENT TO THE APPLICANT ANNEXURE X111 TRUE COPY OF THE LETTER DATED 22.1.2013 ISSUED BY THE 3RD RESPONDENT TO THE APPLICANT ANNEXURE XIV TRUE COPY OF THE LETTER DATED 30.1.2013.201.1.2013 ISSUED BY THE SAO(P) ALLAHABAD TO THE APPLICANT ANNEXURE XV TRUE COPY OF THE REPRESENTATION DATED 23.2.2013 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT ANNEXURE XV1 TRUE COPY OF THE LETTER DATED 16.4.2011 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT ANNEXURE A XVII TRUE COPY OF THE RELEVANT EXTRACT OF O.P.(CAT)No.28/2018 10 THE OFFICE MEMORANDUM NO 35034/3/2008 DATED ESPT(D) DATED 19.5.2009