Central Administrative Tribunal - Jaipur
Shyam Lal Sharma vs D/O Post on 14 February, 2023
1
OA No. 694/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 694/2019
Order Reserved on: 08.02.2023
DATE OF ORDER: 14.02.2023
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Shyam Lal Sharma son of Late Shri Ram Niwas
Sharma, aged about 63 years, resident of Narsing
Colony, Gangapur City, District Sawai Madhopur and
retired on 31/07/2016 from the post of Sub Post
Master, Shahar Sub Post Office, Gangapur City,
District Sawai Madhopur (Rajasthan).
....Applicant
(Group-C, Mob. 99822-18138)
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to the
Government of India, Department of Posts,
Ministry of Communications, Dak Bhawan, New
Delhi-110001.
2. Chief Post Master General, Rajasthan Circle,
Jaipur-302007.
3. Superintendent of Post Offices, Sawai Madhopur
Postal Division, Sawai Madhopur-322001.
.... Respondents
Shri Anand Sharma, counsel for respondents.
2
OA No. 694/2019
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:-
"(i) That the respondents be directed to allow second financial upgradation to the applicant under provisions of MACP Scheme in grade pay Rs. 4200 w.e.f. 19/12/2014 taking into consideration orders in similar cases upheld by Hon'ble High Courts and SLP's also dismissed by Hon'ble Supreme Court and further implemented by the respondents vide order dated 18/02/2019 (Annexure-A/1) with all consequential benefits.
(ii) That respondents be further directed to allow due fixation of pay after allowing benefits of upgradations and to release pay and allowances with due retirement benefits including pension etc. with all consequential benefits.
(iii) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(iv) That the costs of this application may be awarded."
2(a). The brief facts of the case, as stated by the applicant, is that he was initially appointed as Gramin Dak Sevak (GDS) and further became Group 'D' on 25.01.1980. After passing departmental examination against direct recruitment vacancies, he was selected to the post of Postal Assistant and after prescribed 3 OA No. 694/2019 training, he was appointed as Postal Assistant vide Memo dated 19.12.1994 (Annexure A/3). It is the claim of the applicant that he was selected / appointed to the post of Postal Assistant against direct recruitment vacancies after going through prescribed departmental examination but the respondents without any basis, shown it promotion whereas there is no channel of promotion from the cadre of Postman to Postal Assistant. As per One Time Bound Promotion (OTBP) Scheme, which provides financial up-gradation in promotional scale after completion of 16 and 26 years of service from clerical cadre i.e. Postal Assistant cadre, but the applicant was not granted benefits of 16 years of service.
2(b). The applicant further states that Govt. of India promulgated Modified Assured Career Progression Scheme (MACP) for the Central Government Civilian Employees for placement in higher scale after completion of 10, 20 and 30 years of service and respondent-department also adopted the same vide OM dated 18.09.2009 and Govt. of India further issued clarification vide OM dated 01.11.2010 regarding bench-mark and clarified that bench-mark for promotion is lower than the bench-mark for grant 4 OA No. 694/2019 of the benefits under MACP and mentioned in para 17, the bench-mark for promotion which shall apply to MACP also and further clarified vide OM dated 04.10.2012, no bench-mark is apply for the purpose of granting financial up-gradation under MACP Scheme, if promotions are on non-selection basis i.e. on seniority-cum-fitness and taking into consideration of the Scheme, applicant was allowed the benefits of grade pay Rs. 2800 vide Memo dated 18.03.2010 (Annexure A/5) w.e.f. 01.09.2008 treating first up- gradation under MACP from the date of appointment of Postal Assistant. The applicant having date of birth 07.07.1956 retired on superannuation on 31.07.2016 and prior to that even he completed 20 years of service in the year 2014 but he was not allowed the benefits of second financial up-gradation under MACP Scheme and the applicant stands retired in the grade pay of Rs. 2800 instead of Grade Pay of Rs. 4200 w.e.f. 19.12.2014 and the applicant also allowed pension and pensionary benefits in the grade pay of Rs. 2800 after allowing pay fixation as per recommendation of 7th CPC vide PPO dated 14.02.2017 (Annexure A/8).
5OA No. 694/2019 2(c). The applicant also states that respondent- department introduced One Time Bound Promotion Scheme (OTBP Scheme) in the year 1983 for placement in higher scale after 16 years of service and thereafter further Scheme in the year 1991 for placement in further higher scale after completion of 26 years of service and as per these schemes, service is counted from the clerical grade and not from the lower cadre but the respondents without any base, treating appointment to the post of clerk from lower staff as promotion, whereas as per MACP Scheme, 10, 20 and 30 years of service is to be counted from entry into the grade and applicant was allowed benefits for MACP Scheme in the grade pay Rs. 2800 w.e.f. 01.09.2008, which is first up-gradation under MACP Scheme and, as such, he was only allowed one financial up-gradation under the MACP Scheme. 2(d). The applicant states that he was appointed as GDS and further became Group 'D' on 25.01.1980 and thereafter after passing departmental examination, he was selected and posted as Postman in the year 1983. Further, on qualifying the departmental examination, he was appointed as Postal Assistant vide Memo dated 19.12.1994 against direct 6 OA No. 694/2019 recruitment vacancy, which is entry into the grade of Postal Assistant cadre and Group 'D' to Postman and Postman to Postal Assistant, promotions cannot be counted. Besides, there is no channel of promotion from Postman cadre to Postal Assistant cadre and lower staff always became Postal Assistant after passing department examination meant for the same against direct recruitment vacancies. 2(e). The applicant further states that similar issues have been adjudicated by Jodhpur Bench of this Tribunal in the case of Bhawar Lal Raigar vs. Union of India & Ors. and the O.A. filed by the applicant was allowed vide order dated 22.05.2012. But this Bench of the Tribunal has dismissed similar OAs vide its order dated 04.07.2013 i.e. OA No. 321/2011 (Jagdish Prasad Sharma vs. UOI & Ors.), OA No. 149/2011 (Anand Prakash Bhatnagar vs. UOI & Ors.) and OA No. 150/2012 (Mool Chand Kalawat vs. UOI & Ors.). Thereafter, applicants in the said OAs preferred D.B. Civil Writ Petition Nos. 16150/2013, 11538/2014 and 10599/2014 before the Hon'ble High Court of Rajasthan, Jaipur Bench and the Hon'ble High Court has allowed said Writ Petitions vide its order dated 10.12.2015 taking into consideration the Hon'ble High 7 OA No. 694/2019 Court of Rajasthan, Jodhpur Bench order dated 10.08.2015. The respondents further preferred Review Petition Nos. 181/2016, 179/2016 and 161/2016 before the Hon'ble High Court of Rajasthan, Jaipur Bench and the said Review Petitions were dismissed vide order dated 15.02.2018. Thereafter, applicants namely Jagdish Prasad Sharma, Anand Prakash Bhatnagar and Mool Chand Kalawat preferred D.B. Civil Contempt Petition Nos. 1344/2016, 656/2016 and 657/2016 before the Hon'ble High Court of Rajasthan, Jaipur Bench, which has been disposed of vide its order dated 20.03.2018 with the observation that the petitioners are to be approached before the Central Administrative Tribunal for execution of order and thereafter applicants filed Execution Petition No. 183/2018, 185/2018 and 184/2018 before this Tribunal and after filing execution application, respondents have implemented the orders by allowing the benefits to the respective applicants. The respondent-department also preferred SLPs against the order of the Hon'ble High Court, Jaipur Bench in above said Writ Petitions after dismissal of review petition and the SLPs preferred in the cases of Jagdish Prasad Sharma, Bhanwar Lal Raigar and Anand Prakash Bhatnagar have been dismissed vide order 8 OA No. 694/2019 dated 30.07.2018, 10.08.2018 and 17.09.2018, respectively, by the Hon'ble Supreme Court. 2(f). The applicant states that respondents have implemented the orders passed by the Hon'ble High Court of Rajasthan, Jaipur Bench and extended the benefits to the applicants like Mool Chand Kalawat, Jagdish Prasad Sharma, Shri Anand Prakash Bhatnagar vide order dated 18.02.2019 (Annexure A/1). The applicant claims that his case is similar to above said persons and applicant is entitled for grant of Grade Pay Rs. 4200 as second financial up- gradation under MACP Scheme w.e.f. 19.12.2014 after counting service from the cadre of Postal Assistant i.e. 19.12.1994. Therefore, being aggrieved by the action of the respondents, the applicant has filed the present O.A. for redressal of his grievance.
3(a). After issue of notices, respondents have filed their reply stating that applicant was initially appointed as GDS and subsequently, he passed LDCE for the Group 'D' post and entered in the Department as Group 'D' on 25.01.1980. He was promoted as Postman in the year 1983 after passing departmental examination for promotion to the Postman cadre. The 9 OA No. 694/2019 applicant further appeared in departmental examination to the cadre of Postal Assistant in departmental lower grade official quota and he passed the examination and appointed as Time Scale Postal Assistant w.e.f. 24.12.1994. He has retired on superannuation w.e.f. 31.07.2016. The department introduced MACP-I, II and III Scheme on completion of 10, 20 and 30 years service w.e.f. 01.09.2008. Since the applicant has already got two promotions in the department from Group 'D' to Postman and Postman to TS Postal Assistant before implementation of MACP Scheme, he was entitled for one financial up- gradation only in the next grade pay. Hence, he was granted third financial up-gradation in the shape of MACP-I in the grade pay of Rs. 2800 w.e.f. 01.09.2008 as he had been working in the grade pay of Rs. 2400 on 01.09.2008. The respondents states that the applicant is seeking grade pay of Rs. 4200 for which he is not entitled.
3(b). The respondents further state that applicant has been granted MACP-I as per rules in force. None of his co-workers in Sawai Madhopur Postal Division has been allowed the benefit of MACP as stated by the applicant. The respondents state that applicant has 10 OA No. 694/2019 got two financial up-gradations by way of promotions from Group 'D' to Postman in 1983 and from Postman to Postal Assistant w.e.f. 24.12.1994 by way of passing departmental examination for promotion. Since the applicant has already got two promotions / upgradations before implementation of MACP Scheme, he was granted third up-gradation w.e.f. 01.09.2008 by granting MACP-I to him. The submission of the applicant that he is entitled for Grade Pay of Rs. 4200 w.e.f. 19.12.2014 is not acceptable as he has already got three promotions. The respondents state that the plea put forth by the applicant with regard to implementation of orders vide Annexure A/1 is not tenable as the Annexure A/1 order dated 18.02.2019 was passed by the respondents in compliance of the orders passed by the Hon'ble High Court and this may not be treated as precedent in other similar identical cases. Therefore, the respondents prayed that the O.A. filed by the applicant deserves to be dismissed.
4. The applicant has not filed any rejoinder rebutting the submissions of the respondents.
5. We have heard learned counsels for the parties and examined the pleadings brought on record 11 OA No. 694/2019 including the judgments/orders cited by the respective parties.
6. The applicant and respondents have reiterated their stand as taken earlier.
7. At the very outset, learned counsel for the applicant states that the controversy involved in the present case is no more res-integra as the similar controversy has already been adjudicated upon and upheld upto the level of Hon'ble Supreme Court.
8. The claim of the applicant is that he was initially appointed as GDS and further became Group 'D' on 25.01.1980 and thereafter he was appointed as Postman in the year 1983. Thereafter, upon qualifying the departmental examination against direct recruitment quota, he was appointed as Postal Assistant vide Memo dated 19.12.1994, which is the entry into the grade of Postal Assistant cadre. There is no channel of promotion from Postman cadre to Postal Assistant cadre and a Postman becomes a Postal Assistant only after passing departmental examination against direct recruitment quota, thus, counting promotion from GDS/Group 'D' and Postman to Postal 12 OA No. 694/2019 Assistant cannot be accepted as it is against the recruitment rules.
9. After considering the rival submissions of the parties, we are of the opinion that the issue involved in the present case is no more res intergra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. Recently, this Bench of the Tribunal vide its order dated 07.02.2023 in the case of Atma Ram Sharma vs. Union of India & Ors. (OA No. 779/2015) and other connected matters, has observed and held as under: -
"18. After considering the rival submissions of the parties, we are of the opinion that the issue involved in the present case is no more res intergra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. This Bench of the Tribunal vide its order dated 26.08.2022 in the case of Narayan Singh Chauhan (supra), (OA No. 381/2017) has observed and held as under: -
"8. We have considered the rival submissions made on behalf of the parties. We are of the opinion that the issue involved in the present case is no more res integra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. The very first judgment which we have come across is of Jodhpur Bench of this Tribunal passed in the case of Bhanwar Lal Regar (supra), wherein this Tribunal at paras 19 & 20 has held as under: -
"19. In a similar manner, while being Postmen, the three applicants in these three 13 OA No. 694/2019 OAs faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become Postal Assistants. Their joining as Postal Assistants was not in the nature of promotion in their earlier existing service or cadre, but was a career advancement through a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and MACP financial upgradation now, the only dates which are relevant to be taken into account for the purpose of counting the periods of their stagnation is the period spent by the applicants as Postal Assistants. In that sense, the clarification issued by the Pay Commission Cell of the Department of Posts, Ministry of Communications & IT on 25.04.2011 through file No. 4- 7/MACPS/2009/-PCC, as cited in para 8 above, is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when the Postman appears at the LDCE, and gets selected to a new Cadre as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements cannot be called to be promotions within the definition of the word 'promotion', as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.
20. It is, therefore, clear that Para-2 of the impugned order in all these three OAs at Annexure A-1 dated 10.08.2011, passed by the Supdt. of Post Offices, Churu Division, Churu was incorrect, and the eligibility of these three applicants for the grant of TBOP/BCR benefits earlier, and MACP benefit thereafter, has to be counted only from the date they were substantively appointed as Postal Assistants. Therefore, the impugned Annexure A-1 dated 10.08.2011 in all the three OAs are set aside, and the grant of MACP benefit correctly granted to the three applicants earlier through the order dated 14 OA No. 694/2019 31.03.2010 is upheld. The applicants shall be accordingly entitled to all the arrears, with interest at the GPF rate of interest being payable on the arrears of the financial upgradation benefit admission to the applicants, correctly granted earlier on 31.03.2010."
It is also seen that against the said order of this Tribunal, the respondent-Union of India had approached the Hon'ble High Court of Rajasthan, Jodhpur Bench by way of filing D.B. Civil Writ Petition No. 11336/2012 (Union of India & Ors. vs. Bhanwar Lal Regar) and connected Writ Petitions, but the Hon'ble High Court vide its order dated 10th August, 2015 had observed, while dismissing the same, which reads as follows:-
"Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed."15 OA No. 694/2019
We have also been informed that aggrieved by the aforesaid orders of the Hon'ble High Court of Rajasthan, the Union of India had moved to the Hon'ble Supreme Court but the Hon'ble Supreme Court has also upheld the orders passed by this Tribunal as well as Hon'ble High Court of Rajasthan.
9. We have also noted that Chennai Bench of this Tribunal vide its order dated 14.03.2013 passed in the case of D. Sivakumar (supra) while dealing with the same issue had allowed the Original Application. Aggrieved by the decision of Chennai Bench of this Tribunal, the respondent- Union of India had taken up the matter before the Hon'ble High Court of Judicature at Madras by way of filing Writ Petition No. 30629 of 2014 and M.P. No. 1 of 2014, (Union of India & Ors. vs. D. Sivakumar & Anr.), and the Hon'ble High Court vide its order dated 04.02.2015 while dismissing the Writ Petition, has held as under: -
"9. What the Department had done is to adjust the appointment of the first respondent as the Postal Assistant on 12.11.1977, as the first financial upgradation under Modified Assured Career Progression-I. This is clearly erroneous in view of the fact that the appointment as Postal Assistant was not granted to the first respondent after mere completion of 10 years in the Cadre of Postman. From the Cadre of Postman, to which, the first respondent got appointed on 22.9.1973, he participated in a selection to the post of Postal Assistant and got appointed. Therefore, to adjust the said appointment against Modified Assured Career Progression-II, is clearly erroneous. Once that error is removed, it will be clear that the first respondent would be entitled to three modified assured career progression for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the Department not to take into account the appointment granted to the post of Postal Assistant and to adjust it against Modified Assured Career Progression-I.
10. Moreover, it is to be pointed out that even the second modified assured career progression was granted under the Modified Assured Career Progression Scheme only after 16 years and the third is said to have been granted after 26 years. If the first appointment is adjusted against Modified Assured Career Progression-I, this could not have actually happened. For doing so, the Department has counted the first 16 OA No. 694/2019 appointment as 12.11.1977. Therefore, they cannot do so for the Modified Assured Career Progression Scheme in a different manner.
11. Accordingly, the writ petition is dismissed. No costs. Consequently, the above MP is also dismissed."
Thereafter, against the said order/judgment of the Hon'ble High Court, the respondent-Union of India has filed Petition for Special Leave (C) No. 4848/2016 (Union of India & Ors. vs. D. Sivakumar) before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court vide its order dated 16.08.2016, while dismissing the same, has held as under: -
"We see no reason to entertain this petition under Article 136 of the Constitution of India. The special leave petition is, accordingly, dismissed.
However, the question of law is kept open."
10. We have also come across the orders passed by Coordinate Benches of this Tribunal. The Bangalore Bench of this Tribunal, while dealing with the very same issue in the case of C.F. Tagadinamani (supra) has held as under: -
"4. It is evident from the orders passed by different Benches of the Tribunal as well as Hon'ble High Courts and Hon'ble Supreme Court on this particular issue as highlighted in the preceding para that the appointment of the applicant to the post of Postal Assistant on 01.09.1987 based on the LGO's examination cannot be considered as promotion. Following his appointment to the Postal Assistant cadre, the applicant got one financial upgradation under TBOP on completion of 16 years. He completed 20 years of service in Postal Assistant cadre in 2007. Accordingly, his claim for 2nd financial upgradation w.e.f. 1.9.2008 appears to us as justified. Therefore, we hold that the applicant is entitled to get 2nd financial upgradation w.e.f. 1.9.2008 when he had completed 20 years of service in the Postal Assistant cadre. Accordingly, we direct the respondents to pass necessary orders granting the applicant 2nd financial upgradation under MACP w.e.f. 1.9.2008 as claimed by him in place of 3rd financial upgradation granted from Oct., 2011. This shall be done within a period of two (2) months from the date of receipt of a copy of 17 OA No. 694/2019 this order. All the consequential benefits should also be granted within the said period.
5. The OA is accordingly allowed in terms of aforesaid direction. No order as to costs."
The Bangalore Bench of this Tribunal vide its order dated 22nd November, 2017 passed in the case of G.B. Kulkarni (supra) has dealt with the same issue and held that the appointment of the applicants to the post of Postal Assistant based on the LGO's examination cannot be considered as promotion.
11. The Ernakulam Bench of this Tribunal while examining the identical issue, vide order dated 04th April 2019 passed in the case of V.T. Easow (supra) had held that the selection to the post of Postal Assistant / Postman is by way of an exam and which is a direct recruitment and the same shall not be counted as promotion for the purpose of MACP. Therefore, all the applicants are entitled for the financial upgradation as per the MACP scheme on completion of respective period of service. The impugned orders in all the OAs to extent it denies the benefit of financial upgradation under MACP scheme to the applicants treating the appointment to the post of Postal Assistant / Postman as one promotion were quashed and set aside.
12. We have also come across the judgment of Ahmedabad Bench of this Tribunal which while dealing with the identical / similar issue, vide order dated 17.09.2019 passed in the case of Natvarbhai S. Makwana (supra) has quashed all impugned orders whereby either TBOP/BCR/MACP granted earlier to the applicants has been cancelled and adjusted as set off or they were declined their TBOP/BCR/MACP due treating the post of Postal Assistant as promotion from the post of Postman. The respondents were directed to place the claim of the applicants for examination afresh before the Review Screening Committee treating the date of entry into the cadre/grade of the post of Postal Assistant as the starting point and to release the financial upgradations of 1st, 2nd and 3rd MACP, as the case may be, to which they are entitled, keeping in mind that promotion of the applicants as Postal Assistant was not a 'promotion'.
13. From the aforesaid orders/judgments passed by different Coordinate Benches of this Tribunal as well as Hon'ble High Courts and Hon'ble Supreme Court on this particular issue, it is quite clear that appointment of the applicant as Postal Assistant on 28.03.1995 based on departmental competitive 18 OA No. 694/2019 examination cannot be considered as promotion. Since the applicant is similarly situated employee to that of the cases as discussed above, he is entitled for grant of benefit of 2nd MACP in grade pay Rs 4200/- w.e.f. 28.03.2015 treating upgradation allowed w.e.f. 01.09.2008 in GP-Rs.2800/- as first upgradation.
14. We are not in agreement with the submissions made on behalf of the respondents that the said orders/judgments, as discussed above, is applicable to the applicants of the said cases only. But we are of the considered view that since the applicant herein is similarly situated person, he is also entitled to get the same benefits as have been given to the applicants therein. So far as the judgment of the Hon'ble Supreme Court passed in the case of R. Santhakumari Velusamy (supra), as relied upon by the respondents, is concerned, the same is not applicable to the facts of the present case."
We have noticed from the order dated 10th August, 2015 passed by the Hon'ble High Court of Rajasthan, Jodhpur Bench in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) that while granting appointment to the post of Postal Assistant/ Sorting Assistant, original applicants therein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression. The said ratio decided by the Hon'ble High Court of Rajasthan in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) has also been followed by this Bench of the Tribunal while deciding the case of Narayan Singh Chauhan (supra). Therefore, the ratio decided by this Tribunal in the case of Narayan Singh Chauhan (supra) is squarely applicable to the facts and circumstances of the present case. The same ratio has also been followed by this Bench of the Tribunal while deciding the case of Jairam Luniwal (supra). Therefore, in view of the above position, the present Original Applications deserve to be allowed.
19. Coming to the judgments relied upon by the respondents, in the case of Onkar Mal (supra), it is clear that the issue raised by the applicant in the said matter was pertaining to the issue of recovery and, therefore, the said matter cannot be co-related with the present 19 OA No. 694/2019 matter. As far as judgment in the case of Dev Karan Mahala (supra) is concerned, the Hon'ble High Court at para 13 has clearly observed as under: -
"13. The very object of Modified Assured Promotion Scheme is to avoid stagnation. If in every 10 years any employee is not granted any promotion, he will be given selection grade. In this way, the employee will be entitled for three selection grades. If he is not being given a promotion within 10 years, he will be given next promotion scale and if after 10 years and upto 20 years he is not getting any promotion then next benefit will be given to him on completion of 20 years from the date of appointment and thereafter if he is not getting further promotion till 30 years, he will be entitled for benefit of promotional scale after completion of 30 years. The original applicant/s will be granted the benefits accordingly.
It is also noted that the Hon'ble High Court was of the view that as per Rules, in view of promotion, first benefit is to be granted from 10 years from the promotional post or from the new recruitment taken as confirmed. Further, the Hon'ble High Court was of the view that the benefit will be conferred only after regular 10, 20 and 30 years service and if not promoted, the incumbent will be entitled for next up-gradation. However, it is clear that in the said order, while deciding the issue in the case of Dev Karan Mahala (supra), the Hon'ble High Court has not taken into consideration the judgment passed by the Hon'ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court. Therefore, it is clear that the said judgment is not applicable to the present case.
20. As far as the judgment passed by the Hon'ble High Court at Madras in the case of N. Selvan (supra) is concerned, the Hon'ble High Court has held that the writ petitioners having availed promotion to the post of Postal Assistant from the lower post of Postman and Group 'D' post, are not entitled to the grant of financial up- gradation under MACP-III and they are also not entitled to the consequential benefits thereof. However, we find that there are conflicting judgments of two different High Courts, by the Benches of equal strength, i.e. judgment passed by the Hon'ble High Court of Rajasthan at Jodhpur in the case of Bhanwar Lal Regar (supra), which has been upheld by the Hon'ble Supreme Court and the other judgment passed by the Hon'ble High Court at Madras in the case of N. Selvan (supra). In such a situation, as per decision/order dated 24th March, 2015 in OA No. 569/2009 (Ajay Sharma vs. UOI & Ors.), passed by Larger Bench at C.A.T., Jaipur Bench, if there are conflicting judgments of two different Hon'ble High Courts, by the Benches of equal strength, the Tribunal 20 OA No. 694/2019 should be free to take its own view to be in consonance of the view taken in either of the judgments of the Hon'ble High Courts. Therefore, we, in respectful agreement, are of the view that the ratio decided by the Hon'ble High Court of Rajasthan, Jodhpur in the case of Bhanwar Lal Regar (supra) shall be applicable to the present case as the same has also been upheld upto the level of Hon'ble Supreme Court.
21. Accordingly, we are of the view that while granting appointment to the post of Postal Assistant, applicants herein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression.
22. In view of the observations and discussions made herein-above, the following orders are passed:-
"(i) Respondents in OA No. 779/2015 are directed to grant second financial up-gradation to the applicant in the Grade Pay of Rs. 4200 w.e.f.
01.10.2010 with all consequential benefits.
(ii). The impugned order dated 08.10.2012 (Annexure A/1) and Memo dated 19.04.2011 (Annexure A/3), in OA No. 783/2015, qua the applicant, are hereby quashed and set aside. Accordingly, respondents are directed to restore the benefits of second financial up-gradation with all consequential benefits under MACP Scheme in the grade pay of Rs. 4200 as granted w.e.f. 01.09.2008 vide Memo dated 25.03.2010 (Annexure A/2). It is also made clear that the respondents shall restore fixation of pay & allowance as was allowed to him in the year 2010 and pay amount if already recovered and also revise the retirement benefits taking into consideration the grade pay of Rs. 4200 w.e.f. 01.09.2008 at the time of his retirement i.e. 31.12.2012 with all consequential benefits.
(iii). The impugned memo dated 19.04.2011 (Annexure A/6) and Memo dated 30.07.2018 (Annexure A/1), in OA No. 668/2018 qua the applicant, are hereby quashed and set aside. Respondents are directed to allow the benefits of second financial up-gradation to the applicant under MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 01.09.2008 as was allowed vide order dated 25.03.2010 (Annexure A/5). The respondents are 21 OA No. 694/2019 further directed to allow due pay and allowances till retirement i.e. 31.10.2011 after due fixation of pay and further revise pension and pensionary benefits to the applicant with all consequential benefits. It is also directed to refund Rs. 87,099/- to the applicant, if already recovered as stated by the applicant.
(iv). This exercise shall be carried out by the respondents within a period of three months from the date of receipt of a certified copy of this order."
23. With these observations and directions, all aforesaid Original Applications are allowed. No order as to costs."
We have observed that this Bench of the Tribunal considering judicial pronouncements made by this Tribunal, Hon'ble High Courts as well as Hon'ble Supreme Court has held that while granting appointment to the post of Postal Assistant, applicants in the said case faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants. The services rendered by them on earlier posts prior to their appointment as Postal Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression. 22 OA No. 694/2019
10. In view of the observations and discussions made herein-above, the respondents are directed to allow second financial up-gradation to the applicant under the provisions of MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 19.12.2014 and also allow due fixation of pay after allowing benefits of up-gradation and to release pay and allowances with due retirement benefits including pension etc. with all consequential benefits. This exercise shall be carried out by the respondents within a period of three months from the date of receipt of a certified copy of this order.
11. With these observations and directions, the present Original Application is allowed. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/