Kerala High Court
Union Of India vs N. Parameswaran Pillai on 19 November, 2019
Author: V.G.Arun
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 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941
OP (CAT).No.229 OF 2018
AGAINST THE ORDER/JUDGMENT IN OA 211/2016 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,MINISTY OF DEFENCE,NEW
DELHI-110011.
2 THE CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS),
DRAUPADI GHAT,ALLAHABAD-211014.
3 THE GENERAL MANAGER
HEAVY VEHICLES FACTORY,
AVADI,CHENNAI-600054.
4 THE GENERAL MANAGER
ORDNANCE FACTORY,TIRUCHIRAPPALLI-16.
5 THE ASSISTANT WORKS MANAGER/ADMN
ORDNANCE FACTORY,TIRUCHIRAPPALLI-16.
BY ADV. SRI.T.V.VINU, CGC
RESPONDENT/S:
N. PARAMESWARAN PILLAI
S/O.LATE ACHUTAN PILLAI,RETIRED MOTOR
DRIVER,M.T.SECTION,ORDNANCE FACTORY,TRICHY-
18.RESIDING AT-CHANGAI HOUSE,VENGAI.P.O,
SASTHAMKOTTA.P.O,KOLLAM.
R1 BY ADV. SRI.C.IJLAL
R1 BY ADV. SMT.UMMUL FIDA
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).229/18 2
K.VINOD CHANDRAN
&
V.G.ARUN, JJ.
-----------------------------------------------
O.P(CAT).No. 229 of 2018
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Dated this the 19th day of November, 2019
JUDGMENT
Vinod Chandran, J.
Petitioner is the Union of India, who is aggrieved by the order of the Tribunal which granted the third Modified Assured Career Progression to the applicant in the original application.
2. Sri.T.V.Vinu, learned Central Government Counsel would submit that the order of the Tribunal lacks clarity. It is also submitted that the applicant had been given three promotions in his career; from the post of Labourer 'B' and to Ordinary Grade Civilian Motor Driver (CMD) and then CMD Grade II and Grade-I. The cadre of CMD had only two grades which was later made three and the post of CMD Grade-II to which the applicant was initially appointed was renamed as ordinary grade. There were two higher grades, Grade-II and Grade-I. The applicant was hence posted as CMD Grade-II again on 1.8.1993 which was actually a promotion from the post of ordinary grade. Later on 8.11.1996, he was also promoted as CMD Grade-I. In such circumstances, he had three OP(CAT).229/18 3 financial up-gradations by way of promotion and hence was disentitled from the benefit of the third up-gradation under MACP Scheme, since any employee getting three financial upgradations are so disentitled. It is also submitted that the applicant had never a case for MACP and the representation was also for promotion to the single post of CMD Special Grade which was occupied by one person senior and younger to the applicant who continued till the retirement of the applicant. The applicant retired on 31.10.2009. The claim for MACP was first made in the original application.
3. Advocate Smt.Ummul Fida appearing for the applicant in the original application submits that the applicant's claim before the authority was for promotion and on its rejection, an original application was filed seeking such promotion or in the alternate an MACP which he was entitled to. It was also submitted that the initial appointment to CMD Grade-II was not in the nature of a promotion from the post of Labourer 'B' and was an open selection.
4. The learned Central Government Counsel counters the argument on the ground that applications called for as evident from Exhibit P4 itself was a limited selection from the persons already serving the establishment. In such circumstances, the clarification issued for Railway servants under the MACP OP(CAT).229/18 4 Scheme would equally apply in this case.
5. The decision to invite application to fill up the post of CMD Grade-II is seen at Exhibit P4. The applicant was admittedly appointed as a Labourer 'B' on 21.1.1976 and on Exhibit P4 applied for the post and was appointed as CMD Grade-II. We do not see any reference to a feeder category or that the applicant as a Labourer 'B' had any claim, over the other categories in the establishment, for the purpose of applying for the post of CMD Grade-II. It is also relevant that a period of service under the establishment was not at all a criteria for application to the said post. In such circumstances, we find the appointment of the applicant as CMD Grade-II to be a fresh appointment and not one of promotion from Labourer 'B'.
6. In this context, we also have to notice of the clarification issued in the case of Railway servants, which is as below:
"MACP Scheme for Railway servants - treatment of employees selected under LDCE/GDCE Scheme -
clarification G.I., Railway Board Letter No.PC-V/2009/ACP/2, dated the 12th September, 2012 References have been received from Zonal Railways seeking clarification OP(CAT).229/18 5 regarding grant of benefits under MACPS in respect of the employees qualifying through LDCE/GDCE. The matter has been examined in consultation with Department of Personnel & Training (DoP&T), the nodal department of Government on MACPS and it has been decided as under:-
(i) if the relevant RRs provide for filling up of vacancies in a grade by Direct Recruitment, induction of an employee to that grade through LDCE/DGCE may be treated as Direct Recruitment for the purpose of grant of financial upgradation under MACPS. In such cases, past service rendered in a lower pay scale/Grade Pay shall NOT be counted for the purpose of MACP Scheme.
(ii) if the relevant RRs prescribe a Promotion Quota to be filled on the basis of LDCE/GDCE, such appointment would be treated as promotion for the purpose of benefit under the MACPS and in such cases, past regular service shall also be counted for further benefits, if any, under the MACP Scheme.
This issues with the concurrence of the Finance Directorate of the Ministry of Railways."
7. Clauses (I) and (ii) of the above clarification are relevant. As per the Recruitment Rules, if there is provision for direct recruitment, induction of an employee to a grade by a OP(CAT).229/18 6 Limited Departmental Competitive Examination (LDCE) or a General Departmental Competitive Examination (GDCE) would be treated as a direct recruitment for the purpose of financial up-gradation subject only to the condition that the earlier service will not be counted to determine the period of stagnation. Clause (ii) refers to a promotion quota as per the Recruitment Rules again by an LDCE/GDCE which would be treated as a promotion for the purpose of denial of benefit under the MACP Scheme. We do not see any Recruitment Rules having been referred to by the petitioner Union of India in this case indicating the post of CMD Grade-II to be a promotion post with a specific quota for direct recruitment and by-transfer appointment. In such circumstances, we have to draw an adverse inference to find that it is a direct recruitment by a Limited or General Departmental Competitive Examination which has to be treated even as per the clarification as a direct recruitment, covered under clause (i) of the above clarification.
8. On the above interpretation, we have to take it that the applicant after his direct recruitment as CMD Grade-II (renamed as Ordinary Grade) was granted only two promotions, one in the year 1993 and the other in the year 1996. He continued for 30 years in the establishment from the time of his initial appointment as CMD Grade-II (later OP(CAT).229/18 7 redesignated as Ordinary Grade). before his retirement. In such circumstances, he is entitled to the third up-gradation under the MACP Scheme and he shall be granted the same as also the pension fixed in accordance with such grant. Revised grant and the disbursal of arrears shall be made at any rate within four months from the date of receipt of a certified copy of this judgment. The original petition is dismissed upholding the directions of the Tribunal but on the reasons stated above. Parties to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vgsx OP(CAT).229/18 8 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A7 TRUE COPY OF THE ORDER DATED 29/08/2015 OF THE 5TH RESPONDENT.
ANNEXURE A1 TRUE COPY OF PROCEEDINGS OF THE OFFICER-IN-CHARGE OF THE ORDINANCE FACTORY, THIRUCHIRAPPILLY INDICATING THE APPOINTMENT OF THE APPLICANT DATED 16/08/1978.
ANNEXURE A2 TRUE COPY OF ORDER OF THE 3RD RESPONDENT DATED 06/09/2005 AND NO.1574.
ANNEXURE A3 TRUE COPY OF PROCEEDINGS RELATING TO THE RE-FIXATION OF THE PAY OF THE APPLICANT DATED 28/01/2006 AND NO.189.
ANNEXURE A4 TRUE COPY OF BIO DATA OF THE APPLICANT SHOWING HIS PENSIONARY BENEFITS.
ANNEXURE A5 TRUE COPY OF REPRESENTATION SUBMITTED BY THE APPLICANT DATED 31/07/2012.
ANNEXURE A6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE APPLICANT DATED 10/10/2014.
ANNEXURE A6(A) TRUE COPY OF ORDER DATED 25/06/2015 IN OA NO.494/2015.
ANNEXURE R4(A) TRUE COPY OF THE OFB LETTER NO.2/CMD/A/NI DATED 10/10/1996.
ANNEXURE R4(B) TRUE COPY OF THE MOD ORDER NO.45(1)/96/III/D(FY-II) DATED 30/07/1996.
ANNEXURE R4(C) TRUE COPY OF THE OFB LETTER NO.2/CMD/A/NI(PART) DATED 22/05/2001.
ANNEXURE R4(D) TRUE COPY OF THE MOD
NO.233/III/2000/D(FY-II) DATED
14/07/2004.
ANNEXURE R4(E) TRUE COPY OF THE OFB LETTER
NO.02/CMD/A/NI(PT) DATED 30/07/2004.
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION OP(CAT).229/18 9 IN O.A.NO.180/00211/2016,DATED 02.03.2016 FILED BY THE RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00211/2016,DATED 23.06.2017 FILED BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A.NO.180/00211/2016,DATED 08.11.2017 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.
EXHIBIT P4 TRUE COPY OF THE FACTORY ORDER PART-II NO.68 DATED 07.03.1978 PUBLISHED BYT THE FACT0RY CALLING FOR APPLICATIONS FROM THE EMPLOYEES OF THE FACTORY FOR THE POST OF CMND GR-II.