Central Administrative Tribunal - Bangalore
I Jeyabalan vs Defence Accounts Department on 21 October, 2024
1 OA 201/2022/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00201/2022
DATED THIS THE 21ST DAY OF OCTOBER, 2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE DR.SANJIV KUMAR ...MEMBER(A)
Shri I.Jeyabalan,
S/o Sri R.Irudaysamy,
Aged about 74 years,
MES 148937,
Retired as Junior Engineer (E/M),
Office of the AGE (I) AF, Chimney Hills,
Bangalore-560090. ...Applicant
(By Advocate, Smt.Kumari M.)
Vs.
1. The Union of India,
Through the Secretary,
Ministry of Defence,
South Block,
New Delhi-110001.
2. The Engineer-in-Chief,
Army Head Quarters,
E-in-C's Branch,
Kashmir House,
Rajaji Marg, DHQ (P.O)
New Delhi -110011.
2 OA 201/2022/CAT/BANGALORE BENCH
3. The Chief Engineer,
Southern Command,
Pune-1.
4. The Controller of Defence Accounts,
Rustham Bagh,
Agram (P.O),
Bangalore -560007. ...Respondents
(By Advocate, Shri K.Gajendra Vasu for Respondents No.1 to 4)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) direct the Respondents to grant I ACP, & II ACP & III MACP to the applicant by counting the services rendered by the applicant in Beas Project with eligible pay with all consequential benefits in interest of justice and equity.
and
b) pass any other order or direction as deemed fit by this Hon'ble Tribunal including an order for award of cost in the interest of justice and fair play."
3 OA 201/2022/CAT/BANGALORE BENCH
2. The applicant claims that initially he was appointed as Section Officer (Mechanical) in Beas Construction Board (BCB), Sunder Nagar (H.P.) on 13.12.1972. Subsequent to the judgment of the Hon'ble Apex Court in Jaswant Singh vs. Union of India and others - AIR 1980 SC 115, BCB was declared a wing of the Central Government and employees like applicants were treated as Central Government employees and declared as quasi permanent after expiry of three years period from initial date of appointment. The applicant was declared as quasi permanent with effect from 14.03.1976. In terms of Punjab Reorganisation Act, the applicant was surrendered along with the other employees to surplus cell in December, 1984 and was redeployed and transferred with other employees in the respondent department to the post of Superintendent E/M Grade II in the scale of Rs.425-700 (RPR 1973) as per the letter dated 09.05.1985 of the Deputy Secretary to Government of India, Ministry of Personnel and Training Administrative Reforms and Public Grievances and Pension, Department of Personnel and Training, New Delhi and accepted in MES as per the letter dated 27.05.1985 of the Engineer-in-Chief, AHQ, New Delhi. The applicant along with other employees was 4 OA 201/2022/CAT/BANGALORE BENCH relieved from BCB to report to Chief Engineer, Southern Command, Pune. Vide the order of Superintending Engineer, BSL Admn & Accts. Circle Sundernagar HP. On redeployment , the applicant was given option either to switch over to Central Pay Scale or to continue drawing BCB pay scale. The applicant opted for Central Pay scale. The applicant had filed OA No.339/2008 before this Tribunal seeking a direction to the respondents to fix his pay in the pay scale of Rs.2000-60-75-2600-75-3200-100-3500/- with effect from 01.01.1986, which is the corresponding pay scale Rs.700-25-850-30-1000-40-1200/- in RPR as revised from time to time and to draw all the consequential benefits of arrears from 01.01.1986. The said OA was allowed by this Tribunal in terms of the order dated 07.04.2011 whereby the direction was issued to the respondents to extend to the applicant all the benefits that were granted to the applicants in OA No.431-CH/2006, specifically with reference to Shri Karnail Singh Jinda, who happens to be junior to the applicant in BCB. The said order passed by this Tribunal was challenged by the respondents before the Hon'ble High Court of Karnataka in Writ Petition No.11237/2013 (S-CAT), which came to be dismissed vide order dated 13.03.2020. Consequent to which 5 OA 201/2022/CAT/BANGALORE BENCH the applicant filed Contempt Petition No.57/2020 in OA No.339/2008 alleging non-implementation of the order of this Tribunal, which came to be disposed of vide order dated 04.01.2022, noticing the compliance of the directions issued in OA No.339/2008 however, reserving liberty to the petitioner to claim the benefits of 1st ACP, 2nd ACP and 3rd MACP by filing a fresh original application. Hence this OA.
3. Learned Counsel Smt.Kumari M., representing the applicant submitted that the 1st ACP, 2nd ACP and 3rd MACP claimed by the applicant, was rejected mainly on two grounds. Firstly, the applicant has not passed Military Engineer Service Procedure Examination, an eligibility criteria for consideration of granting of ACP. Secondly, Bench mark criteria specified was 'Good' in five ACRs grading from reckoning period of 1st ACP with effect from 09.08.1999, whereas two of applicant's last ACRs for the reckoning period is 'Average'. Similarly, Bench mark criteria specified was 'Very Good' in the five ACRs grading for grant of 2nd ACP with effect from 09.08.1999 whereas last two years of applicant's ACRs reckoning period was 'Average'.
6 OA 201/2022/CAT/BANGALORE BENCH Placing reliance on the order passed by this Tribunal in the case of J.Kamaeshwara Rao vs. Union of India and others in OA No.1010/2016 dated 02.03.2018, learned Counsel submitted that passing of Military Engineer Service Procedure Examination is not mandatory. Nextly, learned Counsel submitted that the respondents have contended that two of the five ACRs of the applicants for the reckoning period is 'Average'. However, the said below Bench mark remarks have not been communicated to the applicant either when he was in service or after he retired from service i.e., on 31.12.2008. The same has not been even reflected in the communication of the respondents dated 29.05.2011 (Annexure A4), while rejecting the claim of the applicant wherein, the respondents have only stated that for grant of 2nd ACP passing of Military Engineer Service examination is mandatory. Learned Counsel further submitted that the applicant has put in 36 years of service including the services rendered in BCB without there being any promotion. The applicant's case is squarely covered by the decision in OA No.238/2017 passed by the CAT, Chandigarh Bench in Karnail Singh Jandu and others vs. Union of India and others. As such, the applicant is entitled for 1st ACP, 2nd ACP 7 OA 201/2022/CAT/BANGALORE BENCH with effect from 09.08.1999 and 3rd MACP with effect from 01.09.2008 and all other consequential benefits. An affidavit of the applicant dated 09.10.2024 has also been filed to substantiate her contention that the adverse remarks shown as 'Average' in the ACRs was not communicated to the applicant. Elaborately arguing on these points, learned Counsel invited attention of this Tribunal to the judgment of the Hon'ble Apex Court in the case of Abhijit Ghosh Dastidar vs. Union of India and others reported in (2009) 16 SCC 146.
4. Learned Counsel Shri K.Gajendra Vasu representing the respondents submitted that the claim of the applicant i.e., grant of 1st ACP, 2nd ACP and 3rd MACP was rejected on two grounds namely, not passing Military Engineer Service Procedure Exam and not fulfilling the requisite Bench marks specified relating to the ACRs for the relevant reckoning periods. Learned Counsel fairly admitting that the present case is squarely covered by the order passed by this Tribunal in J.Kameshwara supra, declaring passing of Military Engineer Service Procedure Examination is not mandatory, submitted that the said order has been challenged by the 8 OA 201/2022/CAT/BANGALORE BENCH respondents before the Hon'ble High Court of Karnataka in W.P.No.42849/2018 and the same is pending for consideration. Further learned Counsel submitted that the average remarks reflected in the ACRs of the applicant for the relevant reckoning periods was not communicated to him.
5. We have carefully considered the rival submissions of the learned Counsel for the parties and perused the material on record.
6. The controversy herein relates to non-grant of 1st ACP, 2nd ACP and 3rd MACP to the applicant on the ground of non-passing of Military Engineer Service Procedure Examination by the applicant and not fulfilling the requisite Bench mark criteria relating to the ACRs. This Tribunal while deciding identical issue of the condition of passing of Military Engineer Service Procedure Examination held that the same is not mandatory for granting of financial upgradation under ACP Scheme for diploma holder Junior Engineers. Further it has been held that there is no ambiguity to the fact that a person is entitled to 3rd financial upgradation under MACP on completion of 30 years of service and the contention of the respondents that a person will be allowed 3rd financial 9 OA 201/2022/CAT/BANGALORE BENCH upgradation only after completion of 10 years from the date of last financial upgradation even though he has already completed 30 years of service, is erroneous and unjustified. It is not in dispute that the applicant has completed 36 years of service. It is also not in dispute that the applicant is similarly placed to that of J.Kameshwara Rao supra. The relevant paragraphs of the order in J.Kameshwara Rao supra, is quoted hereunder for ready reference:
"17. The respondents have taken the contention that the communication dtd.14.03.2007 only mentioned about relaxation of educational qualification i.e. from degree to diploma. However, it seems that as per recruitment rules both degree holders and diploma holders are entitled for promotion to the post of Asst.Engineer and also to the grade of Executive Engineer after completing certain number of years of service. Hence, the relaxation given by the respondents in consultation with the DOPT cannot amount to indicate a relaxation from degree to diploma since the diploma holders are also held eligible for being considered for promotion to both Executive Engineer and Asst.Engineer. Only the number of years in case of degree and diploma holders varies. The only other condition was Military Engineer Service(MES) Procedure Examination.
10 OA 201/2022/CAT/BANGALORE BENCH Moreover para-3 of the said communication of March,2007 indicates that the competent authority had decided to grant 2nd ACP to all eligible diploma/degree holders who have completed 24 years of eligibility service. This should only mean that the relaxation would only relates to passing of Military Engineer Service Procedure Examination and that too for officials who have completed 24 years of service between August, 1999 to July 2004. Moreover it should be noted that this memo specified that this relaxation is meant only for grant of financial upgradation under ACP scheme and not for regular promotion. We also note that this OM has not been recalled or substituted by any further order. Therefore, we are inclined to accept the contention of the applicant that passing of Military Engineer Service Procedure Examination does not become an essential condition for granting of 2nd financial upgradation under ACP scheme for diploma holder Junior Engineers. We also taken note of the earlier view taken by the Jodhpur Bench of this Tribunal in order dtd.20.08.2010 in OA.No.149/2008 wherein it was held that passing of MES Procedure Examination is not essential to become entitled for 2nd financial upgradation under ACP.
18. The issue of grant of 3rd MACP benefit has also been raised by the applicant. According to the applicant, he is entitled to get 3rd MACP w.e.f 01.09.2008 on completion 11 OA 201/2022/CAT/BANGALORE BENCH of 30 years of regular service which has not been granted to him. The respondents, on the other hand, taken the contention that the applicant would be eligible for grant of 3rd MACP only after completion of 10 years from the date of grant of last upgradation under ACP scheme. The Modified Assured Career Progression scheme which was introduced in place of earlier ACP scheme following the 6th Pay Commission recommendation has envisaged three financial upgradations counting from the direct entry grade on completion of 10, 20 & 30 years of service respectively. Para-28(C) of the MACP scheme mentioned as follows:
"28(C): If a Government servant has been granted either two regular promotions or 2nd financial upgradation under the ACP Scheme of August, 1999 after completion of 24 years of regular service, then only 3rd financial upgradation would be admissible to him under the MACPS on completion of 30 years of service, provided that he has not earned third promotion in the hierarchy."
7. We find no reasons to differ from the views expressed by this Tribunal as aforesaid. Hence agreeing with the same, we are of the considered opinion that the rejection of the claim of the applicant for not fulfilling the condition of passing the Military 12 OA 201/2022/CAT/BANGALORE BENCH Engineer Service Procedure Examination, is wholly erroneous and unjustifiable. However, the same shall be subject to the result of W.P.No.42849/2018 pending before the Hon'ble High Court of Karnataka.
8. As regards non-communication of the remarks below the Bench mark, it is candidly admitted by the learned Counsel for the respondents that no such communication was made to the applicant. Affidavit filed by the applicant in this regard remains uncontroverted. Thus, it is not in dispute that the below Bench mark remarks of the applicant was not communicated to the applicant. On this aspect, it is apt to refer to the judgment of the Hon'ble Apex Court in Abhijit Ghosh Dastidar supra, wherein it is observed thus:
"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any 13 OA 201/2022/CAT/BANGALORE BENCH other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
9. Hon'ble Apex Court has reiterated the law laid down in Devdutt vs. Union of India and others reported in 2008 (8) SCC
725. Though the Bench mark 'Good' is required for being considered for grant of 1st ACP and 'Very Good' for grant of 2nd ACP with effect from 09.08.1999, admittedly the entry of 'Average' in two of the applicant's last five ACRs was not communicated to the applicant. Hence such non-communication of below Bench mark grading would be arbitrary and as such violates Article 14 of the Constitution in the light of the legal principles enunciated consistently by the Hon'ble Apex Court.
14 OA 201/2022/CAT/BANGALORE BENCH
10. In the case of Karnail Singh Jandu and others (OA No.238/2017) and allied matters (DD: 08.08.2018), CAT, Chandigarh Bench of this Tribunal has observed thus:
"(i) There are six applicants in this OA. These applicants have joined service in BCB in the period 1970-1973. Hence, they complete 12 & 24 years of service prior to introduction of the ACP Scheme and the benefit of both first and second ACP would be available to them on 09.08.1999 when the scheme was introduced as they have completed the qualifying service for both ACP by that date. The second ACP in the hierarchical pay scale existing as on 09.08.1999 is Rs. 12,000-16,500. Ordered that both ACPs be given on 09.08.1999 and 2nd ACP be given on the same date 09.08.1999 in hierarchical scale Rs. 12000-16500
(ii) Applicant Satwinder Singh having joined service in 1971 and retired on 31.08.2009 is entitled for third MACP which has been denied due to below bench mark grading.
Applicant already stands retired and this bench mark was never communicated to the applicant during his service. Hence, the 3rd MACP be given to the applicant by ignoring the un-communicated below bench mark grading and ordered accordingly.
15 OA 201/2022/CAT/BANGALORE BENCH
(iii) Applicants Harbhajan Singh and Sohan Lal Verma are not entitled for MACP benefit as they were not in service on 01.09.2008, the date of introduction of MACP Scheme and their prayer for third MACP is dismissed."
11. While summarising the aforesaid findings relating to one applicant, Satwinder Singh (Applicant No.5 in 238/2017), it is observed as under:
"22. The applicant Satwinder Singh in OA No. 238/2017 had a below bench mark grading of "Good". Applicant was required to have "Very Good" grading for grant of 3rd MACP in Grade Pay of Rs. 8700. The below bench mark grading was communicated to the applicant on 24.10.2016 (Annexure R-5), several years after retirement on 31.08.2009. Hence, in view of Apex Court judgement in similar matters, the below bench mark grading for the years 2002-03, 2003- 04 and 2005-06 is required to be ignored and ACRs of earlier years be taken into account while considering the applicants‟ case for MACP. This is being ordered in view of several judicial pronouncements ignoring the un-communicated ACRs."
12. Hence in view of the aforesaid rulings, the below Bench mark grading non-communicated to the applicant requires to be ignored while considering the case of the applicant for grant of 16 OA 201/2022/CAT/BANGALORE BENCH 1st ACP, 2nd ACP with effect from 09.08.1999 having completed the qualifying service for both ACPs by that date (12 years of regular service for 1st ACP and 24 years of regular service for the 2nd ACP). Indisputably, the applicant retired on 31.12.2008, much after the introduction of MACP on 01.09.2008. Hence after completion of 30 years of regular service, the applicant is entitled to 3rd MACP benefit, in terms of Para-28(c) of MACP Scheme , which reads as under:
"28(C): If a Government servant has been granted either two regular promotions or 2nd financial upgradation under the ACP Scheme of August, 1999 after completion of 24 years of regular service, then only 3rd financial upgradation would be admissible to him under the MACPS on completion of 30 years of service, provided that he has not earned third promotion in the hierarchy."
13. For the reasons stated herein above, the respondents are directed to grant 1st ACP, 2nd ACP and 3rd MACP to the applicant revising the pay fixation including fixation of his pension. Respondents shall sanction applicant's pension and other 17 OA 201/2022/CAT/BANGALORE BENCH terminal benefits on the basis of revision of his pay in terms of above. However, the same shall be subject to the result of W.P.No.42849/2018 pending before the Hon'ble High Court of Karnataka.
14. Compliance shall be made in an expedite manner in any event within a period of 12 weeks from the date of receipt of the certified copy of the order.
15. Resultantly, OA stands allowed to the extent indicated above.
No order as to costs.
(DR.SANJIV KUMAR) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
sanyasi Digitally signed by
sanyasi saraladevi
saraladevi Date: 2024.11.04
11:50:02 -08'00'