Madras High Court
M.Perumal vs Union Of India on 22 November, 2023
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.41689 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.41689 of 2016
M.Perumal ... Petitioner
Vs.
1. Union of India,
Rep. by the Chief Postmaster General,
Tamilnadu Circle, Chennai 600 002.
2. Postmaster General, Western Region (TN),
Coimbatore, PIN 641 002.
3. The Superintendent, RMS 'CB' Division,
Coimbatore 641 001.
4. Deputy Director General (Estt.),
Govt. of India, Ministry of Communications & I.T.,
Department of Posts, Dak Bhavan,
Sansad Marg, New Delhi 110 116.
5. The Registrar, Central Administrative Tribunal,
Madras Bench, High Court Campus,
Chennai 600 001. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.No.41689 of 2016
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.555/2013 dated 27.11.2015 on the file of the fifth respondent and
quash the same and consequently, direct the respondents 1 to 4 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 of the
petitioner 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 R4
R5 - 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.555/2013, dated 27.11.2015, in any by which, his prayer to direct the Department to grant third MACP benefit and Page 2 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 consequently direct to pay the arrears of difference of pay was declined.
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 Sorting Assistant at RMS 'T' Division, HRO, Chidambaram. 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. After completion of 37 years of service he had retired from service on 31.05.2011.
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 Page 3 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 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 (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 andthis 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 2004, 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 Page 4 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 benefit. Though he had made several representations to grant III MACP benefit, it was rejected by the respondents, stating that since the petitioner has declined for regular promotion, he is not entitled for MACP-III benefit. According to the petitioner, the above said declination would operate only for one year or till 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 37 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 2004 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.
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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, declined by him was in the year 2007 itself. He further submitted that, the petitioner had completed 30 years of service in the year 2004 itself, i.e. before he was offered LSG promotion and hence, he is eligible for grant of 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 thrice on 29.11.2007, 14.05.2009 and 21.12.2010 and he refused same on 28.12.2007, 02.06.2009 and 21.01.2011. He further submitted that, since the MACP scheme has been come into operation w.e.f. 01.09.2008, and the petitioner had refused the promotion twice during the subsequent years, viz., 02.06.2009 and 21.01.2011, he is not entitled for financial upgradation under MACP-III. As such, the Tribunal has rightly dismissed the claim madeby the petitioner and the same does not warrant any interference by this Court. Page 6 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016
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 Sorting Assistant in the postal Department and he had retired from service on 31.05.2011 and while he was in service, he got the benefits under TBOP and BCR schemes. Further, while the ACP scheme was in force, the petitioner got first and second upgradation, after completion of 12 years and 24 years respectively. Subsequently, the above ACP scheme 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 and the same was declined thrice on 29.11.2007, 02.06.2009 and 21.01.2011.
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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 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." By citing the above said rule, the respondent/Department had passed the impugned order denying to grant the benefit of MACP-III. The above refusal, challenged by the petitioner before Tribunal, was also ended against him, observing that, while MACP scheme has been in force, the petitioner had declined the LSG promotion on 14.05.2009 and 21.12.2010 and hence, he is not entitled for the benefit of MACP-III.
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8. The contention of the petitioner is that, he had completed 30 years of service in the year 2004 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, w.e.f. 01.09.2008, he is entitled to the benefit of third MACP.
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 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.
Page 9 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 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 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, though the Page 10 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 subsequent promotion to the post of LSG offered by the Department in the year 2009 and 2011 were refused by the petitioner, i.e. after the implementation of the MACP scheme, he had completed 30 years of service, as early as in the year 2004 itself. Further, while offering LSG promotion in the year 2007, the petitioner was drawing higher pay, equivalent to the next promotion cadre of HSG-II. 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 2004 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 to pay all the consequential arrears of revised pay and pensionary benefits to Page 11 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 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. The Chief Post Master General, Tamil Nadu Circle, Anna Salai, Chennai 600 002.
4. Post Master General, Central Region (TN), Tiruchirapalli 620 001.
5. Senior Superintendent of Post Offices, Thanjavur Division, Thanjavur 613 001.
6. Assistant Superintendent of Post Offices, Thanjavur South Sub Division, Thanjavur 613 001.
7. Assistant Superintendent of Post Offices, Thanjavur North Sub Division, Thanjavur 613 001. Page 12 of 13 https://www.mhc.tn.gov.in/judis W.P.No.41689 of 2016 D.KRISHNAKUMAR, J.
and P. DHANABAL, J.
mst W.P.No.41689 of 2016 22.11.2023 Page 13 of 13 https://www.mhc.tn.gov.in/judis