Central Administrative Tribunal - Chandigarh
Ram Kumar vs D/O Post on 25 November, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.60/1269/2017
PRONOUNCED ON: 25.11.2024
RESERVED ON: 21.10.2024
CORAM:
HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. Ram Kumar S/o Sh. Bachana Ram, aged 56 years, (Group
C), R/o H. No. 113, Vashisht Nagar, Ambala Cantt.
2. Rajwshwar of Sh. Nikka Ram, aged 55 years, r/o H. No.87,
Satsang Vihar, Ambala Cantt.
.... Applicant
(By Advocate: Sh. Rishav Sharma proxy for Sh. M.K.
Bhatnagar).
Versus
1. Union of India through the Secretary, Government of India,
Ministry of Communication, Department Posts, Dak Bhawan,
Sansad Marg, New Delhi.
2. Chief Post Master General, Haryana Circle, Ambala.
3. Superintendent Railway Mail Service 'HR' Dn. Ambala.
....Respondents
(By Advocate: Sh. Piyush Khanna).
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ORDER
PER: MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
"(i) Quash the Impugned order dated 7.4.2017 & Annexure A-1 which the respondent has 25.5.2017 Annexure-2 vide official change the date of grant of IInd & IIIrd financial up gradation under MACP without any notice and opportunity of hearing and further started recovery from the salary of the applicants without any notice which is illegal, arbitrary, discriminatory and cannot be sustained in the eyes of law.
(ii) Issue direction respondents to the stop the recovery from the salary of the applicants in the interest of justice."
2. The facts, as pleaded by the applicants in the present O.A. are that the applicants joined as RTP/SA in October, 1982 initially in RMS-Hr-Division Ambala and thereafter, they were put to induction training at Saharanpur from August, 1982 to October, 1983 and also did the practical training in civil department. They continued in RMS 'HR' Division, Ambala till volunteering for Army Postal Service. The applicants were recruited as warrant officer in Army Postal Service on 19.2.1986, as per instructions contained in Department of Post New Delhi letter dated 4.6.1983. In the said letter it was clearly mentioned that 3 RTP official may be appointed for a short period as postal Assistant/shorting Assistant then deputed to the Army Postal Service (APS). Applicant no.1 worked as APS upto 15.5.2001 and applicant no.2 upto 4.11.1995. The applicants were recruited in regular Army against regular establishment of Army Postal Service by Presidential order dated 08.03.1986. Copy of this order dated 08.3.1986 is Annexure A-3. After discharge from Army Postal service on 4.11.1995 and 15.5.2001, the applicants have joined back as sorting assistant (S.A.) in RMS Dn. Ambala and continued working in the same cadre and same grade pay w.e.f. 19.2.1986.
3. According to the applicants they have qualified for MACP provision of regular service as there is no break in service, as warrant officer in APS and S.A. in department in post. The post of warrant officer held by the applicants was neither adhoc nor on contract basis before the regular appointment as S.A. The applicants were granted 1st, 2nd and 3rd MACP after consideration of service record by DPC members and as per APAR being mentioned by the department since the date of joining as APS. In fact, applicants were granted 2nd financial up gradation w.e.f. 1.9.2008 vide order dated 19.8.2010 and 3rd financial up 4 gradation granted w.e.f. 19.2.2016 and 4.3.2016 retrospectively vide order dated 25.7.2016 (Annexures A- 4 & A- 5) respectively.
4. According to the applicants, the respondents after the implementation of order dated 25.7.2016, on their own without any notice, has appointed the review screening committee and the screening committee vide order dated 7.4.2017 has changed the date of 2nd and 3rd MACP respectively (A-1 & A-2). In pursuance to the decision of screening committee, the applicants have been issued order whereby the date of 2nd up gradation has been changed from 01.9.2008 to 14.8.2011 and in pursuance to that started recovery from the salary of the applicants. The applicants represented to the respondent No.3 on 29.5.2017 but the same has not been decided by the respondent till date (Annexures A-6 and A-7). The applicants have sought relief seeking quashing of Annexure A-1 and A-2 and that recovery without any notice is illegal, arbitrary and violative of articles 14 and 16 of the Constitution of India.
5. The respondents have filed written statement dated 03.04.2018 stating therein that as per MACP scheme circulated by the Postal Directorate vide letter dated 5 18.09.2009 (Annexure R-1), '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, 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. As per Postal Directorate New Delhi further instructions issued vide letter dated 12.04.2012, the service rendered under RTP scheme by the personnel prior to their regular appointment as PA/SA cannot be counted for promotion, seniority and grant of MACP.
6. According to respondents, the applicants rejoined as Sorting Assistant in 'HR' Division Ambala on 04.11.1995. Both the applicants were granted 2nd MACP w.e.f. 01.09.2008. Further, 3rd MACP was granted to Applicant 6 No.1 w.e.f. 19.02.2016 and 3rd MACP was granted to Applicant No.2 w.e.f. 04.03.2016 by inadvertently counting adhoc service w.e.f. 19.02.1986 to 14.08.1991 of applicant No.1 and w.e.f. 19.02.1986 to 01.09.1991 of applicant No.2. Services in respect of both the applicants were required to be calculated w.e.f. issue of NBR i.e. w.e.f. 14.08.1991 in case of applicant No.1 and w.e.f. 01.09.1991 in case of applicant number 2. The service of the applicants in APS as RTP SA was adhoc service which was erroneously taken into account for granting benefit under MACP scheme which was against the provision and instructions of MACP. One Sh. B. S. Panchal ASPOs Bahadurgarh requested to grant him 3rd MACP on the same analogy as in the cases of both the applicants. Competent Authority considered the case and ordered to hold review DPC to review the grant of 2nd and 3rd MACP to both the applicants vide Circle Office letter dated 30.11.2016 (Annexure R-2). Accordingly, review screening committee meeting was held on 07.04.2017 and date of grant of 2nd MACP was changed from 01.09.2008 to 14.08.2011 in respect of applicant No.1 and 01.09.2008 to 15.09.2011 in respect of applicant No.2.
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7. The applicants have filed rejoinder dated 21.05.2018 reiterating the contents of the O.A.
8. We have perused facts on record and submissions of both the sides and case laws relied upon. The question of law to be answered is whether adhoc services can be counted for MACP or not.
9. As per the written statement filed by the respondents, service of the applicants in APS as RTP SA was adhoc service which was erroneously taken into account for granting promotion under MACP scheme and was against the provision and instructions of MACPS. In their written statement respondents have contested the contention of the applicants that they were recruited as warrant officer on 19.02.1986 vide Presidential order in APS. According to respondents, they were deputed as warrant officer on adhoc basis from RMS to APS.
10. We have also perused letter dated 13.04.2015 of Department of Posts addressed to all CPMG/Post Master General of Postal circles regarding counting of served rendered by Reserve Trained Pool (RTP) personnel prior to their regular appointment as Postal Assistant (Pas)/Sorting Assistants (SAs). Para 2 of the said letter 8 reads as under:-
"The RTP Scheme was introduced in the year 1980 as per which a panel of such persons was retained who could not be covered under the number of vacancies declared for regular appointment as PA/SA. When required they were detailed on duty on wages to be paid on hourly basis to meet the short time needs and current needs. The said RTP personnel were given priority for absorption against vacancies, which occurred subsequently In the year 1983 the RTP personnel were given an option to opt for servicing Army Postal Services AF'S Such persons who opted so were appointed as PA/SA on ad-hoc basis and deputed to APS The said RTP candidates deputed to APS were eligible to get the benefit of regular appointment in the Civil Post from the date their immediate junior was appointed on a regular basis in Civil Post The RTP scheme was abolished w.e.f. 4.3.1986."
The above paragraph makes it very clear that those RTP personnel who opted to join APS were appointed as PA/SA on adhoc basis and deputed to APS. The applicants have also not placed on record any evidence regarding Presidential order issued in their favour by which their status changed from adhoc to regular employees of APS. We have perused Annexure A-3 filed as part of O.A. claiming it to be Presidential order. But we find It is only a movement order by which applicants reported for duty in APS. It is dated 14.03.1986 issued by Sena Dak Seva Kendra, Kamptee APO addressed to Superintendent of RMS, HR-Division Ambala, regarding arrival report of 9 applicants. It cannot be considered as Presidential order or even and appropriate order by which they have been appointed as Warrant Officer.
11. We have perused order in OA No.597/CH/2010 of this Bench. Para 2 of this order very clearly says that Annexure A-1 is a specimen of the appointment letter issued by President in favour of the applicants. The appointment letter announces that the appointee was being made a member of APS w.e.f. the date of issuance of the order of appointment. The said order does not say service in APS is adhoc in nature. The facts in case before us are clearly different. We have perused Annexure A-3 and as discussed supra, the same cannot be termed as Presidential order. There is no evidence on record to indicate that service in APS was not adhoc and so its not hit by the specific provisions of the Scheme as discussed above in para 10.
12. We have also perused decision of Ernakulam Bench dated 05.08.2015 in the case of P.M. Mathew vs. Union of India & Ors. (O.A. No.79/2012) which appears to be identical case, however, from facts of the case it is seen that applicant in that case was deputed to APS and were regularised as Postal Assistant while serving in APS. The 10 applicant in above case was appointed as Warrant Officer in regular Army establishment of Army Postal Service on 24.12.1986 and he was in receipt of all admissible service benefits of post held on regular basis till he was regularized as Postal Assistant w.e.f. 28.09.1989. Tribunal held that he was not holding the post of Warrant Officer on adhoc or contract basis before his regular appointment as a Postal Assistant.
13. The facts in the instant case are not same as the two case laws cited above as facts on record show that the services of applicants in APS were adhoc and their regular appointment in RMS was made only in the year 1991. As per the scheme cited in para 10 supra they were not eligible. The applicants have not been able to establish that they were regularly appointed in the Army Postal Service by a Presidential order for that matter. Even their discharge order from APS is not on record which could shed light on their status as regular employees. There is no evidence on record to show that there was no break in service before their regular appointment in RMS. Department of Posts instruction dated 04.06.1986 is not placed on record based on which claim of being appointed as regular Warrant Officer has been made by the 11 applicants. In fact the scheme itself stands abolished from 4.03.1986. In the absence of any evidence on record, it is difficult to accept the contention of the applicants regarding date of appointment to regular service being prior to 1991.
14. The respondents have relied on decision dated 01.08.1997 of the Hon'ble Supreme Court in the case of K. N. Shiv Das & Ors. vs. UOI & Ors., however, the same is distinguishable on facts. However, respondents have also not put any conclusive evidence to controvert the claim of applicants regarding presidential order and that their appointment was adhoc or contractual and not regular.
15. We have perused order dated 12.01.2016 passed by the Principal Bench in O.A. No.1586/2013, wherein it has been held as under:-
"We, therefore, dispose of this OA with the direction to the respondents to examine as to whether the applicant is similarly placed like the aforesaid cases, and if he is found similarly placed, the respondents shall consider to grant the same benefit to the applicant expeditiously, preferably within a period of three months from the date of production of certified copy of this order. In the event the respondents do not find any merit in the contention of the applicant and his grievance is also not found to be similar as that of OA No.597/CH/2010 (Chandigarh Bench) and OA No.856/2012 (Ernakulam Bench), they shall pass 12 a reasoned order and communicate the same to the applicant within the aforesaid time. The applicant would have liberty to assail the decision taken by the respondents before the appropriate forum in accordance with law, if he is aggrieved by the same."
16. In the absence of placement of conclusive evidence on record from either side, following the Principal Bench order in O.A. No.1586/2013, we direct the respondents to take action accordingly. Hence O.A. is disposed of accordingly. No order to costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA) MEMBER (A) MEMBER (J) /kr/