Central Administrative Tribunal - Ernakulam
P.J.Antony vs Union Of India Represented By Its ... on 8 August, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.1106/2013
Monday, this the 8th day of August, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P. GOPINATH, ADMINISTRATIVE MEMBER
P.J.Antony,
Mate (Retd.),
Pulickal House, Kannamaly P.O.,
Puthenthode, Cochin - 682 008. . . . Applicant
(By Advocate Mr.C.S.G.Nair)
Versus
1. Union of India represented by its Secretary,
Ministry of Agriculture, Animal Husbandry, Dairying & Fisheries,
New Delhi - 110 001.
2. The Director,
Central Institute of Fisheries Nautical and Engineering Training,
Fine Arts Avenue, Cochin - 682 016. . . . Respondents
(By Advocate Mr.M.K.Padmanabhan Nair,ACGSC)
This application having been heard on 13 th July 2016, the Tribunal on
8th August 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant started his career as a Bosun (certified). Subsequently he was promoted as Mate Grade II. On implementation of the recommendations of VI Central Pay Commission, the pay band and grade pay of Bosun (certified) and Mate Grade II were merged. As per para 5 of Annexure I of MACP Scheme (Annexure A-3), 'promotion earned/upgradation granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of post recommended by the VI CPC shall be ignored for the purpose of granting upgradation under the modified ACP.' Since the applicant got only one promotion within the span of 24 years, he was entitled for 2nd financial upgradation under the ACP Scheme with effect from 9.8.1999. However the applicant was granted 2 nd financial upgradation under the ACP Scheme only in April, 2002. The applicant filed O.A before the Tribunal for grant of 2 nd financial upgradation under the ACP Scheme with effect from 9.8.1999. The O.A was rejected and the applicant approached the Hon'ble High Court of Kerala which by judgment dated 31.3.2014 in W.P.C.No.8259/2010 directed the Director IFP to consider the representations submitted by the applicant against the adverse ACR entries for the years 1994-95 to 1997-98 within a period of three months. While, so the Government issued the MACP Scheme granting 3 financial upgradations for 10, 20 and 30 years of service in the absence of promotions.
2. The applicant had completed 30 years of service as on 20.10.2003 and got only one promotion. He was granted 2 nd financial upgradation under the ACP Scheme with effect from 9.8.1999. The pay band and grade pay of Bosun (certified) as well as Mate Grade II were merged. Therefore, the promotion granted to the applicant from the post of Bosun to the post of Mate Grade II is to be ignored. As such, the applicant is entitled for three financial upgradations during his entire career. However, since he was granted one financial upgradation under ACP Scheme with effect from 1.4.2003 ie. to the pay scale Rs.10000-325-15200 corresponding to the pay band PB3 Rs.15200-39100 with Grade Pay of Rs.6600/-, he is entitled for two more upgradations under the MACP Scheme with effect from 1.9.2008.
3. The applicant was already drawing the pay applicable to the post of Skipper on his getting financial upgradation under ACP Scheme. The post of Skipper is an isolated post. It was held by this Tribunal in order dated 8.1.2008 in O.A.No.610/2006 that 'where benchmark is a must for grant of ACP in respect of promotional posts, for isolated posts, such bench mark is not of any utility value as the individual would be performing the same duties and there is no scope of his future promotion unlike the case of ACP in promotional posts.' It can be seen from Annexure A-14 that wherever promotions are given on non selection basis ie. 'on seniority cum fitness basis' the prescribed bench mark as mentioned in para 17 of Annexure 1 of MACP scheme dated 19.5.2009 shall not apply for the purpose of grant of financial upgradation under the MACP Scheme. Skipper is an isolated post as there is no promotion post in that cadre. Therefore, seniority cum fitness is the only basis on which MACP is granted. In as much as the applicant is graded as 'Good' he is entitled for two financial upgradations under MACP Scheme. The applicant has completed 30 years service on 20.10.2003. The applicant should have been considered for the grant of 2 nd and 3rd financial upgradations under MACP Scheme during 2009 itself.
4. The relief sought by applicant is that he should be given 2 nd and 3rd financial upgradations under MACP Scheme with effect from 1.9.2008 including arrears of pay and allowances, retirement benefits, leave encashment and all other consequential monetary benefits within a stipulated time.
5. The respondents in their reply statement submit that the applicant was working as Mate in the 2nd respondent Institute and retired on superannuation on 30.9.2009. O.A has been filed by him to declare that he is entitled for 2nd and 3rd financial upgradations under the Modified Assured Career Progression Scheme with effect from 1.9.2008. The applicant has joined service as Bosun (certified) at the National Institute of Fisheries Post Harvest Technology and Training (NIFPHATT) on 20.10.1973. While working as Bosun (certified) he was promoted as Mate with effect from 21.5.1980. He was granted the 2nd financial upgradation under the ACP Scheme with effect from 1.4.2002. He had filed O.A.No.137/2008 before the Tribunal seeking the 2nd financial upgradation under the Assured Career Progression Scheme with effect from 9.8.1999 and the same has been dismissed vide order dated 9.3.2009 of the Tribunal. The R.A.No.26/2009 filed by him in the said O.A has also been dismissed vide order dated 6.11.2009.
6. Applicant filed a W.P.No.8259/2010 before the Hon'ble High Court of Kerala challenging the said orders of this Tribunal dated 9.3.2009 and 6.11.2009 and the same has been disposed by the Hon'ble High Court of Kerala vide its judgment dated 31.3.2014 and the directions has been complied by the respondents therein.
7. Consequent on the reorganization of Integrated Fisheries Project (ie. NIFPHATT) the applicant has been transferred and he joined in the 2 nd respondent Institute on 17.4.2006 and continued to work as Mate. While working in the post of Mate, the applicant retired on superannuation on 30.9.2009. Vide Annexure A-3 O.M dated 19.5.2009 the Government has introduced the Modified Assured Career Progression Scheme (MACP) scheme which granted three financial upgradations counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively. The MACP scheme envisages merely placment in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008, subject to the various conditions stipulated therein. One of the requirements for considering for financial upgradation under the MACP scheme is that the official should fulfill the benchmark criteria as prescribed therein. The applicant was appointed as Bosun (certified) on temporary capacity on 20.10.1973 in the pre-revised pay scale of Rs.550- 750 (Rs.5000-8000 pre-revised) which is corresponding to the pay band PB- 2 Rs.9300-34800 with grade pay of Rs.4200/- at the Integrated Fisheries Project (now NIFPHATT). The applicant was promoted as Mate with effect from 21.5.1980 in the then pay scale of Rs.650-960 (Rs.6500-10500 pre- revised) corresponding to the pay band PB-2 Rs.9300-34800 with grade pay of Rs.4200/-. The applicant was granted 2 nd financial upgradation under the ACP Scheme in the pay scale of Rs.10000-325-15200 (pre-revised) with effect from 1.4.2002 corresponding to the pay band PB-3 Rs.15600-39100 with Grade Pay of Rs.6600/-.
8. As per the provisions of MACP Scheme at para 5 of Annexure 1 of Annexure A-3 DOPT OM dated 19.5.2009, promotion earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission, shall be ignored for the purpose of granting upgradations under the MACP Scheme. The applicant had completed 34 years of service as on 1.9.2008 and has earned one promotion and one financial upgradation under earlier ACP Scheme. Based on the above said provisions the promotion granted to him from the post of Bosun (certified) to Mate is to be ignored. As such he has got only one financial upgradation in his service ie. the second ACP granted in the pay scale of Rs.10000-325-15200 (pre-revised) with effect from 1.4.2002 corresponding to the pay band PB - 3 Rs.15600-39100 with Grade Pay of Rs.6600/- and was therefore to be considered for 2nd and 3rd financial upgradation under the MACP scheme to the pay band PB-3 of Rs.15600-39100 to the grade pay of Rs.7600/- and to the pay band PB-4 of Rs.37400-39100 to the grade pay of Rs.8700/- respectively both with effect from 1.9.2008.
9. Para 17 of Annexure A-3 OM dated 19.5.2009 stipulates that the required minimum benchmark for financial upgradation to the grade pay of Rs.7600/- and above is 'Very Good'. The ACR gradings of the applicant for the year 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 are Good, Good, not available, Good, Very Good and Very Good respectively. The applicant's case was placed before the Committee which met on 19.2.2010. The Committee considered the case of the applicant and found/recommended that the applicant is not eligible for financial upgradation under the MACP Scheme since he does not fulfill the required benchmark. As per the Department of Personnel and Training O.M.No.21011/1/2010-Estt.A dated 13.4.2010 if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPC's contain final grading which are below the benchmark for his next promotion, before such ACR's are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. The O.M further states that only below benchmark ACR for the period relevant to promotion need be sent and there is no need to send below bench mark ACRs of other years. Since the ACR in respect of the applicant for the period 2005-06 was not available the same has been written afresh and the applicant has been graded as 'good' by the Reviewing Officer for this period. Since the ACR grading of the applicant for the year 2003-04, 2004- 05, 2005-06 and 2006-07 are 'good' which is below the bench mark, the same has to be communicated to the official concerned and reviewed, as per the said Annexure R-1 OM dated 13.4.2010. Vide Annexure A-7 and A-9 communications dated 14.11.2012 and 25.6.2013 the applicant has been furnished copies of the ACR for these periods for representing against the remarks/gradings or for the upgradations of the over all grading, if any. In response to the same the applicant has submitted Annexures A-8, A-10 and A-12 representations dated 27.11.2012, 27.6.2013 and 10.10.2013 wherein he has represented to upgrade the overall assessment. The competent authority has considered the representations of the applicant and vide Annexure A-11 communication dated 19.9.2013 and communication No.22- 4/2013-Adm/APAR dated 4.11.2013 informed the applicant that the ACR gradings for the said period are retained. The applicant has been communicated the ACRs and his representations have been considered and reply furnished.
10. Respondents argue that the applicant cannot insist/compel the authorities to alter/upgrade his ACR's as per his requirements. The applicant has not submitted any appeal on the retention of gradings.
11. Heard the counsel for the applicant and respondents and considered the written submissions made. Annexure A-14 DOPT OM on MACP dated 4.10.2012 states as follows :
' Benchmark for MACP scheme : Para 17 of Annexure A-1 of the MACP Scheme provide that the financial upgradation would be on non functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACP Scheme, the benchmark of 'good' would be applicable till the grade pay of Rs.6600/- in PB-3. The benchmark will be 'very good' for financial upgradation to the grade pay of Rs.7600/- and above. This departments O.M.No.35034/3/2008-Estt.(C) (Vol.II) dated 1.11.2010 provides that where thefinancial upgradation under MACP also happens to be in the promotional grade and benchmark for promotion is lower than the benchmark for granting the benefit under MACPS as mentioned in para 17 ibid, the benchmark for promotion shall apply to MACP also. It is now further clarified that whereever promotions are given on non-
selection basis (ie. on seniority-cum-fitness basis) the prescribed benchmark as mentioed in para 17 of Annexure A-1 of MACP scheme dated 19.5.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme.'
12. Para 17 of Annexure A-1 of Annexure A-3 reads :
' The financial upgradation would be on non functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACPS the benchmark of 'good' would be applicable till the grade pay of Rs.6600/- in PB-3. The benchmark will be 'Very Good' for financial upgradation to the grade pay of Rs.7600/- and above.'
13. In the instant case the applicant was considered for MACP to the pay band and grade pay falling within PB-3 and PB-4. The applicant who was appointed as Bosun (certified) and later promoted to the post of Mate was granted the second financial upgradation under the ACP Scheme to the pay band PB-3 Rs.15600-39100 with grade pay of Rs.6600/- (pre-revised pay scale of Rs.10000-15200) of the post of Skipper, since the promotional post of Mate was Skipper. Under the MACP Scheme the applicant is to be considered to the pay bands of Rs.7600/- and Rs.8700/- which is the next immediate higher grade pay in the hierarchy of the recommended revised pay bands. The above grade pay is not that of a promotional post on non selection basis nor that of a post which requires a benchmark lower than that prescribed in the MACP scheme. Hence the same are clearly not applicable in the applicant's case and the applicant has to fulfill the benchmark requirement as prescribed under the said para 17 of the MACP Scheme. Applicant can be considered for grant of financial upgradation under the MACP Scheme as per the provisions under Annexure A-3 OM dated 19.5.2009 and subsequent clarifications of the Department of Personnel & Training (DOPT), on fulfilling the conditions and requirements stipulated therein. The applicant does not automatically become entitled for financial upgradation under the MACP Scheme merely on completion of certain number of years.
14. The contention of the applicant that the post of Skipper is an isolated post is not admitted by respondents since the post of Skipper has feeder post for promotion. Whether the post of Skipper has a promotion post or not is not relevant in the applicant's case for MACP. The requirement of appropriate benchmark is relevant. The applicant argues that the benchmark requirements of MACP Scheme are not applicable to him. The applicant has been considered for financial upgradation under the MACP Scheme during February 2010. Since the applicant did not fulfill the required benchmark criteria as required and stipulated under the MACP scheme he was not granted the financial upgradation under the MACP Scheme. As per Annexure R-1 OM dated 13.4.2010 the below benchmark ACRs has been communicated to the applicant. The representations of the applicant in this regard has been considered and the competent authority has retained the gradings which has also been communicated to the applicant vide Annexure A-11 and Annexure R-2 communications dated 19.9.2013 and 4.11.2013. The applicant does not fulfill the required benchmark criteria under the MACP Scheme as the applicant's ACRs for the period 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 are good, good, good, good, Very Good and Very Good respectively.
15. The applicant in his rejoinder argues that uncommunicated adverse entry has no validity. But the entries were communicated and representations invited and the same was considered and outcome communicated. O.A.No.79/2010 referred by applicant as applicable is one where below benchmark was not communicated, which is not the case of applicant. The ACR of 2005-06 was written by the Reporting Officer who had already retired in 2009 which was not in compliance with rules on ACR Reporting. Even if ACR of the applicant for the year 2005-2006 is ignored on account of the fact that remarks were made after 6 B= years, the applicant still does not meet the benchmark. Applicant argues that the post of Skipper is not a selection post. In Col.5 of the Recruitment Rules issued on 15.5.2008 it is stated as follows :
Whether selection or non selection post } Not applicable
16. Applicant does not produce complete copy of Recruitment Rules and respondents also do not dispute the above contention. In Annexure A-14 DOP&T clarification on MACP dated 4.10.2012 it is stated :
'it is now further clarified that wherever promotions are given on non selection basis (ie. on seniority-cum-fitness basis), the prescribed bench mark as mentioned para 17 of Annexure 1 of MACP Scheme dated 19.5.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme'.
17. Applicant also brings to notice order dated 7.7.2014 in O.A.No.305/2013 filed by another retired Skipper wherein in para 11 it is stated that :
'11. .............since the post of Skipper has no promotional avenue, any promotion in terms of financial upgradation has to be on non selection basis. Therefore, in this case, the prescribed bench mark should not apply'.'
18. The Tribunal in concluding para 12 ordered as follows :
'12. Therefore, considering the entire facts enumerated in the preceding paras, we are of the view that the applicant is entitled to receive the 3rd financial upgradation of MACP w.e.f 12.11.2009 when it became due to him. Therefore, we direct the respondent to issue order granting him benefits under MACP Scheme w.e.f 12.11.2009, within a period of 3 months from date of receipt of a copy of this order and grant all consequential benefits thereon.'
19. There already exists an order of this Tribunal in a similar O.A as cited above. The applicant is also entitled to the same relief. Arrears will be restricted to a period of 3 years immediately prior to the filing of OA as held by the Supreme Court in Union of India & another Vs. Tarsem Singh, reported in (2008) 8 SCC 648.
20. The O.A is allowed accordingly. No order as to costs.
(Dated this the 8th day of August 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp