Central Administrative Tribunal - Jabalpur
Justin O.A. Aged About 43 Years vs Union Of India on 4 September, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
ORIGINAL APPLICATION NO. 424 OF 2009
Jabalpur, this Wednesday, the 4th day of September, 2013
HONBLE MR. JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE MR.G.P.SINGHAL, ADMINISTRATIVE MEMBER
Justin O.A. Aged about 43 years,
S/o Shri Anthony O.K. Junior Engineer,
Garrison Engineering Project Factory Khamaria, Jabalpur
District Jabalpur, R/o 998 Subhash Nagar,
Manegaon, Jabalpur, District Jabalpur - Applicant
(By Advocate Smt. Amrit Ruprah)
V e r s u s
1. Union of India, Through Secretary,
Ministry of Defence, New Delhi
2. Engineering-in-Chief, Defence Headquarters (DHQ)
Kashmir House, New Delhi
3. Chief Engineer, Military Engineering Services,
Jabalpur Zone, Jabalpur
4. Chief Engineer (Fy), Military Engineering Services,
Opposite Parade Ground, Sardar Patel Road,
Secunderabad 003 -Respondents
(By Advocate Shri A.P. Khare)
(Date of reserving the order : 02.08.2013)
ORDER
By G.P. Singhal, AM.-
The applicant in this Original Application has prayed for the following reliefs:-
8(i). To set aside the impugned order dated 29.05.2009 (Annexure A-1) and direct the respondents to grant the benefit of first up-gradation to the applicant w.e.f. 25-03-2000 along with interest at the rate of 18% per annum and cost of Rs.30,000/- for filing of two applications/O.A. before this Honble Court .
(ii) Any other relief as this Honble Tribunal may deem fit under the facts and circumstances of the case, in favour of the applicant may also be granted.
2. The applicant submitted that he was appointed as Superintendent (B&R) in the General Reserve Engineering Force (for brevity GREF) on 25.03.1988. He was confirmed on the said post in the year 1990. Thereafter he was appointed, on selection, on the post of Superintendent (B&R) Grade II in the Military Engineering Services (for brevity MES) on 25.09.1992. He was relieved from GREF vide order dated 20.01.1993 (Annexure A/3) by the Commander, GREF granting lien for a period of two years. The applicant joined at MES w.e.f. 29.01.1993.
3. The applicants contention is that he has been sanctioned first financial upgradation under the Assured Career Progression Scheme (for brevity ACP) w.e.f. 28.01.2005, calculating 12 years of service w.e.f. 29.01.1993, i.e. the date of joining at MES, as against his entitlement from 25.03.2000, when he completed 12 years of service after joining at GREF 25.03.1988. The applicant submitted his application to grant the benefit of first upgradation by counting his previous service rendered in GREF. However, on not getting any response, the applicant filed Original Application No.652/2008 before this Tribunal, which was disposed of vide the order dated 10.02.2009 with direction to the respondents to take final decision in his case within a period of two months and pass a speaking and reasoned order. In compliance of these directions, the Garrison Engineer considered the application dated 12.05.2008 of applicant and rejected his claim vide its order dated 29.05.2009 (Annexure A/1), which is impugned in this case.
4. The respondents, in their reply, submitted that the applicant was the direct recruit in MES on the post of Superintendent (B&R) Grade II, and he has joined after resigning from his earlier post at GREF. Therefore, no consideration of his past services can be given in view of the instructions for ACP, issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) letter No.35034/1/97-Estt (D) dated 09.08.1999. It is provided in this policy that regular service for the purpose of ACP scheme shall be interpreted to mean the eligible service counted for regular promotion in terms of relevant recruitment/service rules. Since the applicant resigned from GREF w.e.f.20.01.1993, and he took a fresh appointment in MES on 29.01.1993 on the post of Superintendent (B&R) Grade II as an open candidate without any continuity of the service, the period of service in GREF cannot be counted as regular service for grant of ACP or promotion to him. Thus, this Original Application, being without any merit, deserves to be dismissed.
5. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. We have also gone through the written submissions filed on behalf of the applicant.
6. During arguments the learned counsel for the applicant submitted a copy of clarifications in regard to ACP issued by DOPT vide Office Memorandum dated 10.02.2000. In this Office Memorandum, the relevant clarification by the department, which is in regard to points No.4 and 5 of doubt, is reproduced as under:-
4.
In case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 year of service for the purpose of ACPS will count from the initial appointment or otherwise.
The benefits under ACPS are limited to higher pay scale and do not confer designation, duties and responsibilities of the higher post. Hence, the basic criterion to allow the higher pay scale under ACPS should be whether a person is working in the same pay scale for the prescribed period of 12/24 years. Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer ) basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale. In other words, past promotion as well as past regular service in the same pay scale, even if it was on different posts for which appointment was made by different methods like direct recruitment, absorption (transfer)/ deputation, or at different places should be taken into account for computing the prescribed period of service for the purpose of ACPS. Also in case of absorption (transfer)/ deputation in the aforesaid situations, promotions earned in the previous / present organizations, together with the past regular service shall also count for the purpose of ACPS. However, if the appointment is made to higher pay-scale either as on direct recruitment or absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS.
5. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit?
Thus, it is clear that a Government servant who is direct recruit at some grade and consequently joins another post again as direct recruit in the same grade is eligible for inclusion of his service period in the earlier post for the purpose of ACP Scheme.
7. The learned counsel for the applicant was asked by us to clarify whether the post in GREF as well as the post in which he joined in MES are in the same pay scale? In this regard, the documents filed by the applicant with Miscellaneous Application No. 720/2013 clearly show that the pay scale of both the posts is same that is 1400-2300/-. Thus, in view of the clarification issued by the DOPT, Office Memorandum dated 10.02.2000, applicant is entitled to get first financial upgradation by counting the 12 year period from the date of his joining as Superintendent (B&R) at GREF.
8. In view of the aforesaid, we direct the competent authority of respondents to reconsider the case of applicant for grant of first financial upgradation, on completion of 12 years service period from the date of joining at GREF, in view of the clarification issued under the Office Memorandum No.F.No.35034/1/97-Estt (D) (Vol. IV) dated 10.02.2000 by the Department of Personnel and Training. In case of grant of ACP from the revised date, the applicant shall be entitled to get all the consequential benefits including the payments of salary arrears. This exercise shall be completed within a period of three months from the date of communication of this order.
9. Thus, the Original Application is allowed. No order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member kc 5 Sub: Defence Upgradation OA No.424/2009 Page 5 of 5