Central Administrative Tribunal - Hyderabad
V V N Acharyulu vs M/O Information And Broadcasting on 23 January, 2018
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A.No.021/8/2017 Reserved for orders on:06.1 J. ? ty Poe Pronouncement of the order: Bi) Js VN Acharyulu S/o Late V.R.K.Acharyulu Aged about 60 years, Occ: Retired Upper Division Clerk Q/o Regional Officer, Central Board of Film Certification Ministry of Information & Broadcasting, CGO Towers Room No. 206, 2" Floor, Kavadi Gude Oop. Qld Kalpana Threatre, Secunderabad-80 Ryo Plot No.203, Kalyan Nagar, Venture-3 Near Motinagar, Hyderabad-500018. _ Applicant Versus 2. had . Union of India rep by its Secretary Ministry of Information anc Groadcasting Room No.655, 6" Floor, A-Wing Shastri Bhavan, New Delhi - 110 001. The Chief Executive Office: Central Board of Fila Cert vication Ministry of Information & Sroadcasting O1-E, Bharat Bhavan Walkeshwar Road Mumbai ~ 490006, The Regional Officer Central Board of Film Cerincation er "Rh ey Ministry of Information Room No. 206, 2° Flo Opp. Old Kalpana Theatre, Secunderabad-8Q. .. Respondents Broadcasting, CGO Towers vadi Guda Counsel for the Applicants: Or. A. Raghukumar. Counsel for the Respondents: Mrs. K. Rajitha. CORAM: Hon'ble Shri Justice R. Kantha Rao, Member Qudicial) Hon'ble Mrs. Minnie Mathew, Member (Admn.) ORDER
fPer Hon'ble Shri Justice R. Kantha Rao, Member (ludicial)) 8 The applicant has Hied the instant OA under Section 19 of the Administrative Tribunals Act, 19585 challenging the Order dated ra 18.07.2018 (Annexure 1}, issued by the Sentor Administrative Officer, Central Board of Film Certification, Mumbai (Respondent No.2), whereby the 3° Financial Vogradation, already granted to the applicant under MACP vide Orcer dated 24.06.2016 has bean withdrawn on the ground that his oreviaus service rendered in State Government before absorption in CSFC is not to be counted towards requiar service as per Para 10 of Annexure-!t anclosed to the DoaPT's OM No.35034/3/2008-Estt. (BD) dated 19.05.2009.
, neettattin.
Ao Igtsegeg ae e >, The brief facts of the " relevant to the controversy invalved in this case, are that the applicant initially joined as Junie Assistant in Department of Information and Public Relation in Government of Andhra Pradesh an 17.04.1984 under sports quota in the pay scale of Rs.425-10-455-15-650. On O2.10.15986, he joined as Lower Division Clerk Un short, LOC} to Central Board af Flim Certification (in short, CBFC}, Hyderabad on deputation basis in the pay scale of Rs.950-20-150-E8-25-1500, and thereafter he was permanently abserbed as LDC in CBFC an 24.03.1988, vide Ministry's letter dated 24.03.1988. Thereafter, he was promoted as UDC on ad foc basis wef. Q1.05.1989 and regularised as such wef, 01.01.2002. The applicant retired from service, on attaining the age of superannuation, on 31.03.2016. After his retirement, he was granted 3° MACP vide Order dated 34,05.2016 and thereafter the same was withdrawn by the Office of Respondent No.2 under the impugned Order dated 18.07.2016, referred to hereinbefore. Hence, the instant OA has been fled by the applicant, seeking the following relief(s):
'facts and circumstances the Hon'ble Tribunal may be pleased to. call far the rece sttaining to the impugned Qrder NoA-SkOLG/ i / io: . dated 18. OF. 2016 issued by the Senior Adrrinistrat Officer, CBEC, withdrawing the 3° MACE granted ta oplicant vide their earter affice arder of evert nam dated 34.05.2616 on the legal ground that the af at has nob completed 30 years of Service 88 69 | 2014 since fis previous service renderad fm the State Governrrant before "tn view of the abe aonlicant herein prays & ap ae at y i ected QA NGO PROS mnted towards regular POM Na S5024/5/2008~ we : eGetion of the respondents in withdrawing the 3°53 ted to the applicant on the basis of the above sis jNegal, arbitrary and violative of Articla Id and 16 of the Constitution of Ina and the few of the land and quash and set asite the same as legal, arbitrary, violative Constitution of India and rulgs an the subject matter and compequently deciare that the cant is entitled for the 3" financial upgradatign s5 per "Rig antitlement, in the irterest of Justice, and be lee sed te pass such other arder or orders inal arey deem AE and proper in the cr absorption in CBFC sarvic® as cer Para 3 Esttt of dated 15.05.23 3 We have heard both the learned counsel, appearing on behalf of thelr respective parties, and perused the pleadings on record,
4. The jearned counsel for the applicant has mainiy raised the following grounds, in support of the claim of the applicant:
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a} The impugned arder dates :8.07.2010° withdrawing the MACP, already granted to the applicant, is bad In law, arbitrary and violative of Articles 14 and 16 of the Consticution of india.
b) The contention of the respondents that the applicant has not completed 30 years of service as on 17.04.2014, as Ms service rendered in State Government cannot be con sidered towards regular service as per Para 10 of the Annexure-1 of the DoP&T OM dated 19.05.2009 cannot be any more considered as res integrs as per the orders of the Jodhpur Banch of this Tribunal in GA No.97/2004 (Dharmendra OANG OE ReoR 7 Kumar Sharma /. Uni | Andia & Others) decided on 12.09.2006, as confirmed by the Hon'ble High Court of Rajasthan wn WP No.504/2008, decided on 05.04.2010, and the SLP filed before the Hon'ble Apex Court was also dismissed, and was followed by the Ernakulam Bench of this Tribunal in OA No.720/2013 in its Order dated O5, 01.2016.
c) In view of the aforesaid judicial pronouncements on the scape and meaning of the "Regular Service", the respondents failed to understand the same and considered the case of the applicant on wrong presumption and accordingly withdrew the 3 MACP granted to the applicant, which is legal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India.
d) On the point of scope and meaning of the "Regular Service", the learned counsel for the applicant also rallied uoan the following Judgements and copies of the same have been produced at the time of Rearing:
) _R.K.Mobisana Singh v. Kh. Temba Singh and Ors., AIR 2008 SC (Supp) 1296.
GANG SEGT?
ee ji) Nathi Ram Chaudhary & Gthers v. North Delhi Municipal Corporation & Others, CD) 2014 CAT New Delhi 336 [T.A.No.1028/2009, decided on 05.12.2014 by the Principal Bench of this Tribunal].
Hi) Direct Recruit Class II Engineering Association and Ors. Vs. State of Maharashtra and Ors. AIR 1990 SC 1007.
iv) H.&.Sharma v. Union of India, 63 (1996) DLT 427, decided on 01.07.1996 by the Delhi High Court.
5. On the other hand, the respondents in their reply, while denying the OA averments and admitting the facts about the service particulars of the applicant, mentioned hereinbefore, mainly stated that the applicant has not completed 30 years of regular service as on 17.04.2014 for the purpose of granting of 3° Financia! Upgradation under MACP Scheme of 2009, since as per Para 10 of Annexure I to the aforesaid MACP Scheme, the past service rendered by a Government employee in a State Govt /Statutory Body/Autonomous body/Public Sector Organization before appointment in the Government shall not be counted towards ChA.MG G22 JAS 2NE?
"Regular Service, and this has bi -yeiterated vide Communication dated 01.04.2011 af DoPT.
§. It is not in dispute that the Government of India introduced the Assured Career Progression Scheme (for shart 'ACP Scheme') vide Office Memorandum dated 9th August, 1999 to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Under the said Schame Groups B, C & D employees on completion of 12 & 24 years of regular service are entitled for financial up-gradation and the grant of said benefit would be subject to certain conditions, [ft is also not in dispute that the Government of India also introduced Modified Assured Progression Scheme (for short, MACP Scheme) vide Office Memorandum dated 19.05.2009 and under the said Scheme, on completion of 16/20/30 years of requiar service are entitled to financial upgradations and the grant of said benefit would also be subject ta certain candiftiens.
7. As the applicant, in the instant OA, has mainly relied upan the orders passed by the Jodhpur Bench of this Tribunal in the case Dharmendra Kumar Sharma Vs. Union of India & Ors. (O.A. NO. 97/2004) decided on 12th September, 2006, and also the Order passed by the Ernakularn Bench of this Tribunal in the case of Usha CEA NST (Bi 2087 G. Nair v. The Principal Registrar, CAT & Others, we proceed to consider the judgements relied upon by the learned counsel for the applicant. In the case of Dharmendra Kumar Sharma (supra), the Jodhpur Bench of this Tribunal had allowed the similar relief for counting of service rendered in the State Government as qualifying service under the ACP Scheme. The relevant abservations in Para 14 of that decision read as under:-
"Examining the case in hand in the light of observations and findings recarded in the case af Sunt! Kumar & Ors Supra}, we have no doubt in our mind that case of applicant is an better footing inasmuch as he was initially taken on deputation and was subsequently absorhed and his parent department is State Government of Rajasthan. Thos, AiG case is covered under clarification given in OM dated 16.2.2000 against Paint No.4 which is vary clear that If a Government Servant has been appainted to another post in the same pay scala, either as a diract recruit or on absarptian (transfer) basis or first on deputation basis and later on absorbed (on transfer basis}, it should not make any difference for the purpose of ACP so jong as ha is in the same pay scale. Ib is undisputed that the applicant was holding the post of Librarian Grade Tl w.e.f. 23.28.1985, in the pay scale of Rs. 480-770 woe.f 23.72.1983, which scale was revised to firstly Rs. 1400-2300, and ther Rs. 400-2600. However, on introduction of time bound promotien scheme ir the State Government, the applicant was placed in the cay scale of Rs. 1640-2900, But, since he wes an deputation in the Central Administrative Tribunel, he was not extended benefit of this higher pay scala, as the pay scale of the post of Junior Librarian in Tribunal is only Rs. Lat 2600 (Rs. 5000-8000) and as such the applicant was granted anly sey protectian and the excess pay was ardered to be adjusted in the future increments. Meaning thereby, the applicant wes not given arty benefit of scale of Rs. 1840-29060 and the has deemed to have remained in the Librarian Grade IY since the date of his direct recruitment as such woe. 23.2.1983 and as such he would become erdithed to first financial upgradstion on comoletion of 12 years of service w.ef, 1995 and secand financial upgradation on completion of 24 years of service wieF, 2007."
ThANG SERS?
"The said decision was approve: the jurisdictional High Court of Rajasthan at Jodhpur by dismissing the writ petition at the hands of respondent department. Even the SLP preferred by the respondents was also dismissed, and, therefore, the sald judgment attained finality. Relying upon the same decision the Jaipur Bench of this Tribunal alse in the case of Shyama Dave case (Supra) granted the same benefit by directing the respondents to count the past service of the applicant rendered by her in her parent department ( RVS) towards qualifying service for grant of ACP,
8. We have come acrass the decision of the Chandigarh Bench of this Tribunal in OA No.658-CH of 2012 (Rajpal v. Union of India), decided on 04.04.2013, therein also the question arose is that whether the service rendered under in the State Government can be counted for the purpose of financial upgradation under the ACP Scheme or not, wherein it was observed as under:
"44 Now, we proceed te consider the judgrments relict upon by the learned counsel for the apolicant where the similar relief was allawed and the Judgment attained the finality upto the Hontie Apex Court. in the case of Oharmendra Kumar Sharma (Guprs}, wherein the Jodhpur Bench of this Trigunal had allowed the similar relief for counting of service rendered in the State Govt, as qualifying service under the ACE Scheme. The relevant ohservations in para 14 of that decision read as under:-
"Examining the case in hand in the Haht of observations and findings recarded i the case of Sunil Kumar R Ors {Supra}, we have no doubt in our mind that case of applicant is an better footing inasmuch as he was z x initially taken\ deputation and was subsequently al dooand bis parent department is State Government of Rajasthan, Thus, his case is coverad under clarification given in OM dated 10.2.2000 against Paint No.4 which is very clear that If a Government Servant has been appointed to anather pest in the same pay scale, a@ither as a direct recruit ar on absorption (transfer) basis or first on deputation basis and ister an absorbed fon transfer basis}, (€ should rot make any differesme f surpase of ACP so jong as he is in the same pay scale. Tt is undisputed that the applicant was halding the past of Ubrarian Grade U woe? 23.2.1983, in the pay Seale of Rs, 450-770 wet, 23.23.1983, which scale was revised to firstly Rs, 1400-22300, and then Re 1400-2600. However, on introduction of tire bound promotion scheme in the State Government, the applicant was placed in the pay scale of Rs. 1440-29060, But, since he was on deputation in the Central Administrative Tribunal, he was na extended benefit of this higher pay scale, as the say scale of the post of Junior Librarfan in Tribunal is only Rs, 1400-2600 (Ra. S000- 8000} and as such the applicant was granted only pay protection and the excess pay was arniered te be adjusted in the future increments, Meaning thereby, the applicant was not given any Penefit of scale ef Bs, 1640-2900 and the has deemed to have remained in the Librarian Grade 0 since the date of his direct recrusimment as such wef, 23.2, 1983 and as such he would become entitled to first financial upgradation on completion of 12 years of service wie.f 1995 and second financial upgradation an campletian of 24 years of service wef. 2007.° 15, The said decision was approved by the jurisdictional High Court of Rajasthan at Jodhpur by dismissing the writ getitian at the hands of respondent department, Even the SLP preferred by the respondents was aise diamissed, therefore, the said judament attained the finality. Relying upon the same decision the Jaipur Bench of this. Tribunal aisa in the case of Shyarna Dave case (Supra) granted the game benefit by directing the respondents to count the past service af the apricant rendered by her in her parent department { KVS) towards Quallfying service for qrart of ACP, Evan the Guwebat! Sench of this Tribunal fas also in ease of Kausal Kurnar Sarma & Anrs, (Supra) after cansidering the O.M. dated G.8.i999 and 3G, 10.2007, quashed the said conditions and held that the past service randered by the anglicant therein with the State Govt. is C38. Me OSS AS OO YF SVAMOORT ASIF to be counted for the purpo alifying service for ACP henetits.
i6. Omee, it has already been held upto Honble Apex Court that the past service rendered with the State Govt. nefore absorption with the respondent no.3 is to be counted for the purpose of ACP then the impugned order, reiecting the claim af the applicant cannot be sustained in the eyes of law. Cansequenty, tne O.A. is aliawed and the conditions stipulated at peint no. 4 to § ang 43 i0 clarification dated I8.7.2014 and condition mo. 38 4G under the MACE are quashed which provides for non: rounting the gaat service rendered with the State Seve. as service for grant of ACP/MACP benefits In the i. The GLA. is allowed in the above terms and the respondents are directed to carry out the above exercise within & period of three months from the dete of receipt of copy of this order."
a, In view of the above, we are of the considered view that the : = impugned order is Hable ta be quashed and set aside. Accordingly, the :
impugned order is quashed and set aside. The OA is allowed. There shat he mo order as to costs.