Madras High Court
S.Chinnusamay vs Union Of India on 22 November, 2023
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.7181 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE P. DHANABAL
W.P.No.7181 of 2016
S.Chinnusamay ... Petitioner
Vs.
1. Union of India,
Rep. by the Chief Postmaster General,
Tamilnadu Circle, Anna Salai, Chennai 600 002.
2. Postmaster General, Western Region (TN),
Coimbatore, PIN 641 002.
3. The Superintendent of Post Offices,
Namakkal Division, Namakkal 637 211.
4.The Registrar, Central Administrative Tribunal,
Madras Bench, High Court Campus,
Chennai 600 001. ... Respondents
Prayer: Writ petition filed under Article 226 of Constitution of India to issue
a writ of certiorarified mandamus to call for the records in O.A.No.2/2012
dated 08.07.2014 on the file of the fourth respondent and quash the same
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W.P.No.7181 of 2016
and consequently, direct the respondents 1 to 3 to grant MACP-III benefit
and to pay the arrears of difference of pay and allowances to the petitioner
and also to revise and re-fix the pensionary benefits and to pay the
difference of arrears of pension and connected terminal benefits to the
petitioner.
For petitioner : Mr.R.Malaichamy
For Respondents : Mr.AR.L.Sundaresan,
Assistant Solicitor General
for Mr.V.Balasubramanian,
Senior Panel Counsel for R1 to R3
R4 - Tribunal
ORDER
(Order of the Court was delivered by D.KRISHNAKUMAR, J.) This writ petition has been filed challenging the order passed by the Tribunal in O.A.No.2/2012, dated 08.07.2014, in any by which, his prayer to direct the Department to grant third MACP benefit and consequently direct to pay the arrears of difference of pay was declined. Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016
2. The brief facts leading to the filing of the writ petition is as follows. The petitioner had entered into service in the Postal Department as Postal Clerk (now designated as Postal Assistant) on 08.12.1973. While he was in service, he got two pay benefits, i.e. after completion of 16 years of service, he got the benefit under the scheme of TBOP (Time Bound One Promotion) and after completion of 26 years of service, he got the benefit under the scheme of BCR (Biennial Cadre Reveiw) and both are not promotion, but only upgradation of pay. Subsequently, he retired voluntarily from service on 01.09.2009.
2.1. The Central Government had introduced Assured Career Progression (ACP) scheme to deal with the problem of genuine stagnation and hardship faced by the employees, due to lack of adequate promotional avenues during August 1999. As per the above scheme, after completion of 12 years of service, the officials, were entitled first upgradation pay benefit and after completion of 24 years of service, entitled for second upgradation pay benefit. Subsequently, as per the recommendation of the VI Central Pay Commission, the ACP scheme has been replaced with MACP scheme Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 (Modified Assured Career Progression Scheme), thereby, the employees, who completed 10 years of service are entitled to first upgradation and after completion of 20 years of service, entitled to second upgradation and after completion of 30 years of service, entitled to third upgradation and this scheme was given effect from 01.09.2008.
2.2. According to the petitioner, already he got two upgradation benefits after completion of 16 years and 26 years of service. Since the petitioner had completed 30 years of service in the year 2003, he is entitled to third upgradation, as per MACP-III. Further, after getting BCR benefits, the petitioner was offered LSG promotion w.e.f. 2007, however, he declined to accept the said promotion, due to his personal inconvenience and it was accepted by the Department. Though the MACP scheme has been introduced w.e.f. 01.09.2008, actual order was issued only on 19.05.2009 with retrospective effect. Therefore, the petitioner is entitled to third MACP benefit. Though he had made representation on 02.08.2011 to grant III MACP benefit, there is no reply from the respondents. According to the petitioner, the above said declination would operate only for one year or till Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 such time, the next vacancy arises. The LSG promotion was ordered only for filling up of norm based supervisory post, without any pay fixation that too after completion of 35 years of service and the above said promotion would not give any higher pay, than the pay already drawn by the petitioner.
2.3. Further, in the MACP scheme, it has been mentioned that, if a regular promotion has been offered, but was refused by the employee, before becoming entitled to a financial upgradation, no financial upgradation shall be allowed. But, in the case of the petitioner, he is eligible for third MACP benefit in the year 2003 itself, i.e., before he was offered LSG promotion in the year 2007. Therefore, he filed original application before Tribunal and the same was dismissed, which is impugned herein.
3. The learned counsel for the petitioner submitted that, the MACP scheme came into force only w.e.f. 01.09.2008, but the LSG promotion offered to the petitioner was in the year 2007. He further submitted that, the petitioner had completed 30 years of service in the year 2003 itself, i.e. before he was offered LSG promotion and hence, he is eligible for grant of Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 third MACP benefit, as it was given with retrospective effect.
4. The learned counsel for the respondents/Department submitted that, the petitioner was granted LSG promotion on 20.07.2007 and the same was declined by him and the respondent had accepted the declination. He further submitted that, since the petitioner had declined the regular promotion given to him in the year 2007 to LSG supervisory cadre, he is not entitled to the benefit of MACP-III. As such, the Tribunal has rightly dismissed the claim made by the petitioner and the same does not warrant any interference by this Court.
5. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents/Department and we have also perused the materials on record.
6. It is the admitted facts that the petitioner was appointed as postal clerk on 08.12.1973 and he had volunarily retired from service on Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 01.09.2009 and while he was in service, he got the benefits under TBOP and BCR schemes. Subsequently, ACP scheme was introduced and thereafter, it was modified by replacing MACP scheme, which was came into force w.e.f. 01.09.2008. As per the modified MACP scheme, the employees are entitled to get upgradation-I, II and III, after completion of their 10, 20 and 30 years of service respectively. In the meanwhile, the petitioner was offered LSG promotion by the Department in the year 2007 and the same was declined by him and it was accepted by the Department.
7. It is to be noted that, when the MACP scheme has been come into operation w.e.f. 01.09.2008, vide letter of the Directorate, New Delhi in No.4-7/MACPS/2009 PCC, dated 18.09.2009, there is a condition at paragraph No.25 of Annexure that " if a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further funancial upgradation, untill he agrees to be Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 considered for promotion again and the second and the next financial upgradation shall also be deferred to the extent of period of debarment due to refusal." Therefore, it is the contention of the respondents/Department that, as per the above said rule, the petitoner is not entitled to the benefit of MACP-III.
8. The contention of the petitioner is that, he had completed 30 years of service in the year 2003 itself and while offering LSG promotion in the year 2007, he was drawing higher pay, which is equivalent to the next promotion cadre of HSG-II. Further, it is the contention of the petitioner that, his denial for LSG promotion in the year 2007 was expired in the year 2008 and hence, he is entitled to the benefit of third MACP from the year 2008.
9. At this juncture, reliance was placed before this Court in W.P.No.4971 to 4975 and 20488/2018, dated 18.03.2022, in which, at page No.17 and 18, a Division Bench of this Court has held as follows.
d. The act of refusal of promotion occurred prior to Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 introduction of MACPS and the consequence was provided in the orders dated 16.04.2008 an3 23.07.2008. Thus, to construe the above act as attracting the restriction under para 25 of MACPS, dated 18.09.2009, would result in the act of refusal of promotion, resulting in two adverse consequences (double jeopardy), one under the earlier orders dated 16.04.2008 and 23.07.2008 and the other under para 25 of MACPS dated 18.09.2009, which we think is inequitable, if not obnoxious.
MACPS being a beneficial scheme and a construction that would result in hardship must be eschewed. MACPS is in the nature of incentive scheme, by which, employees unable to avail of adequate promotional opportunities gets some relief from stagnation in the form of financial benefits. MACPs is intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion. The offers of promotion were financially detrimental to the respondents and therefore, they had not opted to avail promotion offered prior to introduction of MACPS.
The constructions that the consequences provided under MACPS for refusal to accept promotion even prior to its introduction would take away and defeat the very object of MACPS. More so, the employee, who has been stagnated would now also have to suffer the consequence for his act of refusal, which he was not even aware of, at the time of occurrence of the act of refusal of promotion. In other words, it amounts to changing the rules of the game, after the game is played, inasmuch as the respondents had already suffered the consequence for refusal of promotion in terms of orders dated 16.04.2008 and 23.07.2008, causes serious hardship and produces Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 results that is inequitable and unfair, which is impermissible.
10. Admittedly, before came into force of the above MACP scheme (01.09.2009), the petitioner had denied the LSG promotion in the year 2007 and the declination was expired in the year 2008. Further, while offering LSG promotion in the year 2007, the petitioner was drawing higher pay, than the scale of pay for LSG. Therefore, since the offer of promotion to the post of LSG was financially detrimental to the petitioner, he had refused the same. As such, as per the ratio laid down by the Division Bench of this Court, in the above said writ petition and also considering the fact that when the MACP scheme was came into force w.e.f. 01.09.2008, the petitioner had completed his 30 years of service in the year 2003 itself, we are of the view that the petitioner is entitled for the benefit of MACP-III scheme and hence, the order passed by the Tribunal is liable to be set aside.
11. Accordingly, the writ petition is allowed and the impugned order passed by the Tribunal is set aside. No costs. The respondent concerned is directed to grant the benefit of MACP -III scheme to the petitioner and also Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 to pay all the consequential arrears of revised pay and pensionary benefits to the petitioner, within twelve week from the date of receipt of a copy of this order.
(D.K.K.J.) (P.D.B.J.)
22.11.2023
Internet: Yes/No
Index : Yes/No
mst
To
1. The Registrar, Central Administrative Tribunal, High Court, Madras 104.
2. The Secretary, Union of India, Department of Posts, Ministry of Communication & IT, Dak Bhavan, Sansad Marg, New Delhi 110 001.
3. Postmaster General, Western Region (TN), Coimbatore, PIN 641 002.
4. The Superintendent of Post Offices, Namakkal Division, Namakkal 637 211.
5.The Registrar, Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai 600 001.
D.KRISHNAKUMAR, J.
and P. DHANABAL, J.
mst Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.7181 of 2016 W.P.No.7181 of 2016 22.11.2023 Page 12 of 12 https://www.mhc.tn.gov.in/judis