Central Administrative Tribunal - Jaipur
Arjun Lal Saini vs D/O Post on 25 January, 2019
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A. No. 382/2012
Reserved on: 18.01.2019
Pronounced on:25.01.2019
Hon'ble Mr. Suresh Kumar Monga, Member (J)
Hon'ble Mr. A. Mukhopadhaya, Member (A)
Arjun Lal Saini son of Shri Ruda Ram Saini, aged 62 yrs,
resident of Seva Das Ki Dhani Village & Post Barvasi via
Nawalgarh, District Jhunjhunu and retired on 31.08.2009
from the post of Postal Assistant (BCR), Jhunjhunu Head
Post Office, Jhunjhunu.
...Applicant.
(By Advocate: Shri C.B.Sharma)
Versus
1. Union of India through Secretary to the Government of India,
Department of Posts, Ministry of Communication &
Information Technology, Dak Bhawan, New Delhi-110001.
2. Chief Post Master General, Rajasthan Circle, Jaipur-302007.
3. Superintendent of Post Offices, Jhunjhunu Postal Division,
Jhunujhunu-333001.
...Respondents.
(By Advocate: Shri Kinshuk Jain)
ORDER
Per: A.Mukhopadhaya, Member (A):
This Original Application, (OA), arises from the impugned letter/order dated 02.03.2012, (Annexure A/1), of the respondent department vide which the respondents rejected the representation of the applicant for grant of the benefits of the 3rd (OA No.382/2012) (2) financial upgradation under the Modified Assured Career Progression, (MACP), Scheme due to "below benchmark grading".
2. Briefly, the facts of the case are that the applicant, who had been appointed as Postal Assistant with the department on 17.06.1969, was placed in a higher pay scale after 16 years of service on 02.01.1986; (Annexure A/5), and thereafter after 26 years of service on 11.08.1995, he was placed in the next higher pay scale; (Annexure A/6). Subsequently, the applicant was visited with departmental action and imposed a punishment of recovery of Rs.156452/-, out of which Rs.56452/- was to be recovered from his pay and allowances and Rs.100000/- from the gratuity payable to the applicant on his superannuation slated for 31.08.2009; (Annexure A/11). The Government of India promulgated the MACP Scheme with effect from 01.09.2008, (Annexure A/7), and the applicant, who thereupon applied for the 3rd financial upgradation under the Scheme following upon the two earlier upgradations that he had received as mentioned above, was denied such upgaradation by the Department of Posts vide Memorandum dated 03.06.2010, (Annexure A/8), on the ground that the punishment of recovery imposed on the applicant was "current till retirement". Thereupon, the applicant represented vide Annexure A/10 dated 15.10.2010 stating that recovery from his pay as a measure of penalty should not constitute a bar to his promotion. In this representation, he (OA No.382/2012) (3) enclosed a decision of CAT Mumbai Bench given in OA No.495/2003 in support of his contention that a punishment of recovery of loss does not constitute a bar to promotion and also drew attention to DG P&T Memorandum dated 19.05.1984 to the effect that promotion can be given to officials awarded the punishment of recovery. The applicant contends that despite this representation, the respondents denied him the benefits of the 3rd financial upgradation under the MACP Scheme vide letter dated 10-2010, (Annexure A/4), citing as ground the currency of his punishment. Upon this, the applicant represented yet again on 30.06.2011, (Annexure A/3), citing the respondents' letter of 18.10.2010, (Annexure A/9), Item No.5 of which is reproduced below:
"Para 18 of Annexure-I to OM dated 18.09.2009 provides that - "In the matter of disciplinary/penalty proceedings, grant of benefit under the MACPS shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of the CCS (CCA) Rules, 1965 and instructions issued there under." Attention of the Circle is drawn to Department of Personnel and Training OM No. 22011/2/78-Estt. (A) dated 16.02.1979 communicated in DGP&T letter no.35-1/79-SPB-II dated 07.05.79. According to these orders, the penalty of censure or recovery of pecuniary loss is not a bar for penalty (sic) for promotion if the findings of the DPC are in favour of the employee.
Similarly, the officials who were facing disciplinary action as on the date of actual due date of their up gradation can only be not considered."
(OA No.382/2012) (4)
3. The applicant thereafter approached this Tribunal in OA No.630/2011 with his grievance and the same was disposed of on 23.12.2011 with a direction to decide his representation; (Annexure A/2). Since his representation was disposed of with an adverse order, (Annexure A/1 - impugned order), the applicant has approached this Tribunal seeking the following relief:-
(i) The respondents be directed to extend benefits under MACP Scheme for third financial upgradation in the Pay Band of Rs.9300-34800 with Grade Pay Rs.4200/4600 from the due date by quashing letter dated 02.03.2012 (Annexure A/1) with the letter dated 10/2010 (Annexure A/4) with all consequential benefits.
(ii) The respondents be further directed to extend benefits with the revised pension and pensionary benefits with all consequential benefits.
(iii) Any other order, direction or relief may be passed in favour of the applicant, which is deemed fit, just and proper under the facts and circumstances of the case.
4. In reply, the respondents point out that the reason as stated clearly in the impugned order, (Anneuxre A/1), for denying the applicant the 3rd financial upgradation under the MACP Scheme was not that he was still undergoing punishment as a consequence of departmental proceedings but that his APARs for the relevant years showed below benchmark grading. Thus notwithstanding the Screening Committee to review the cases for (OA No.382/2012) (5) grant of the 3rd financial upgradation under the MACP Scheme not finding the applicant fit for such upgradation owing to "punishment current on due date"; (Annexure R/1 - 28.07.2011 refers), MACP was denied on the grounds of below benchmark grading only. In this connection they cite Para-17 of the MACP Scheme which is reproduced below:
"17. The financial upgradation would be on non- functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACPS the benchmark of 'good' would be applicable till the grade pay of Rs.6600/- in PB-3. The bench will be 'Very Good' for financial upgradation to the grade pay of Rs.7600 and above."
5. The respondents further state that the punishment of recovery does not constitute a bar to promotion/financial upgradation under MACP Scheme "if the findings of the DPC are in favour of the employee". In the present case, the Departmental Screening Committee did not find in favour of the applicant, (Annexure R-1 refers), but in his case his APARs also were found to be below benchmark grading as clearly stated in the impugned order at Annexure A/1.
6. Learned counsels for the parties were heard and the material available on record was perused.
7. Learned counsel for the applicant, while reiterating the applicant's contentions as detailed above, stated that throughout the proceedings in this case, the respondent department had (OA No.382/2012) (6) denied the financial upgradation in question on the ground that the punishment of recovery was current against the applicant and only when his representation was finally decided as per the Tribunal's direction in OA No.630/2011, (Annexure A/2), did the issue of below benchmark grading arise. Emphasising that the punishment of recovery is not a bar to promotion or grant of financial upgradation under the MACP Scheme, he prayed for the impugned order to be quashed and the relief sought by the applicant to be granted by the Tribunal.
8. Per contra, learned counsel for the respondents, while reiterating the respondents' contentions as detailed earlier, again emphasised that the financial upgradation under MACP in question was denied to the applicant vide the impugned order not because of any punishment of recovery but specifically because he did not meet the criteria of APAR grading given as a benchmark. Citing Para-17 of Annexure A/7, he stated that as per rules and procedure prescribed, the Screening Committee scrutinised five years of ACRs/APARs of the officials and the applicant was found to have received "average grading for the years 2003-2004, 2004-2005 and 2007-2008" and hence the applicant was not found fit for granting financial upgradation. In addition, as per Para 6.2.3 of DoP&T OM No.22011/5/91- Estt.(D) of 27.03.1997, (Annexure R/2 refers), the DPC did take into account whether the officer was awarded any penalty during (OA No.382/2012) (7) the relevant period. The respondents' counsel argued that while the punishment of recovery in itself constitutes no bar to promotion/financial upgradation, below benchmark grading does constitute a bar in terms of Para-17 of the MACP Scheme; (Annexure A/7 refers).
9. It is undisputed in this case that applicant's plea for financial upgradation has been rejected on the ground of below benchmark grading in his APARs, a fact that he has not contested. Consequently, given the specific provisions of Para 17 of the MACP Scheme, (Annexure A/7), there appear to be no ground for contesting the validity of the decision conveyed by the impugned letter/order in the applicant's case.
10. In the result, this OA is found to be devoid of merit and it is accordingly dismissed.
11. There will be no order on costs.
(A.Mukhopadhaya) (Suresh Kumar Monga) Member (A) Member (J) /kdr/