Central Administrative Tribunal - Delhi
Union Of India vs Union Of India & Ors.) Of Jodhpur Bench Of ... on 12 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.4103/2011
Order reserved on 17.08.2012
Order pronounced on 12.12.2012
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Shri Laxmi Dutt Kaushik
S/o Shri Dev Karan
Postal Assistant, New Delhi GPO, New Delhi.
R/o H.No. B-206, Shyam Nagar,
Palwal District, Faridabad-121102.
(By Advocate: Shri R.P.Sharma)
versus
1. Union of India, M/o Communication & I.T.
Through Secretary, Department of Posts,
Dak Bhawan, Sansad Marg, New Delhi-110001.
2. The Chief Post Master General,
Delhi Circle, Meghdoot Bhawan,
Link Road, New Delhi-110001.
3. The Director,
New Delhi GPO, Ashoka Road,
New Delhi-110001.
(By Advocate: Shri Nasir Ahmed)
ORDER
Shri Sudhir Kumar, Member (A):
The applicant of this OA is a Postal Assistant at New Delhi, G.P.O. He was recruited in the respondent-department as Class IV cadre (Packer) at New Delhi Headquarter in the pay scale of Rs.196-232, as an outsider candidate, with effect from 31.01.1976, vide office order dated 18.02.1976 (Annexure A-3). Though this appointment was temporary, but it continued from time to time, and the applicant later appeared at the departmental examination for appointment to the Postman cadre, and after having been successful in that examination, he satisfactorily completed his practical and theoretical training, and was appointed as a temporary Postman, with effect from the date of assumption of his duties, in the pay scale of Rs.210-270/- through Annexure A-4 order dated 04.10.1979. The applicant later appeared at the Lower Grade Examination (LGO, in short) for promotion to the clerical cadre of Postal Assistants, and he was successful in that examination also, and was appointed as an officiating Postal Assistant with effect from 17.04.1985, through Annexure A-5 order dated 16.04.1985.
2. The respondent-department was operating the Time Bound One Promotion (TBOP, in short) Scheme for those of its officials who had completed 16 years of satisfactory service without having obtained any promotion, and since he had not got any subsequent substantive promotion after his appointment as Postal Assistant with effect form 17.04.1985, through Annexure A-6 order dated 30.07.2001 passed by the Chief Postmaster, G.P.O., New Delhi, the benefit of TBOP financial upgradation was granted to the applicant with effect from 20.04.2001. Before the applicant could become eligible for the other Departmental Scheme of Biennial Cadre Review (BCR, in short) for grant of 2nd financial upgradation after completion of 26 years of service without any substantive promotion, the respondent-department, which had not earlier adopted the Assured Career Progression (ACP, in short) Scheme, now adopted the newly introduced Modified Assured Career Progression (MACP, in short) Scheme, notified on 19.05.2009 by the DoP&T, after adoption of the recommendations of the Sixth Pay Commission in this regard.
3. The applicant represented to the Director, New Delhi G.P.O., through Annexure A-10 representation dated 02.08.2010, praying that since he was appointed as Group D (Packer) in the Department on 31.01.1976, and in terms of provisions of DoP&Ts clarificatory OM dated 16.11.2009, all promotions/financial upgradations granted up to the Grade Pay of Rs.1800/- are to be ignored, his previous financial upgradations and promotions had to be ignored, and he had become entitled to the 3rd MACP financial upgradation to the Grade Pay of Rs.4200/-, as he had completed 20 years of service in the Postal Assistant cadre. However, the respondent-department did not consider his request favourably, and issued a common reply to 9 similarly placed persons, including the present applicant, through Annexure A-1 letter dated 20.04.2011, which stated as follows:
Sub: Regarding grant of 3rd financial upgradation under MACPS 2008.
XXX With reference to your application on the subject cited above, it is intimated that under the provision of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) letter no.35034/3/2008 Estt.(D) dated 16.11.2009, further clarifications received from Circle Office, Delhi Circle, New Delhi-110001 vide letter no. Estt./E/385/VI Pay Comm./Correspondence/08 dated 17.01.2011, no further action into the case at this stage, is required to be taken by this office.
4. Dissatisfied with this reply, the applicant gave a detailed representation to the Chief Postmaster General through Annexure A-11 dated 25.05.2011, this time praying that he is entitled for 3rd financial upgradation under MACP Scheme on completion of 30 years of continuous service on 31.01.2006, but since MACP Scheme has been introduced only with effect from 01.09.2008, he is eligible and entitled for grant of 3rd financial upgradation under MACP Scheme with effect from 01.09.2008, in Pay Band No.2 (Rs.9300-34800), and that the rejection of his earlier request by the Director, New Delhi G.P.O., is illegal, arbitrary and not sustainable in the eyes of law. However, Office of the CPMG also did not consider his case favourably, and replied through Annexure A-2 dated 14.07.2011 stating as follows:
Sub: Non-grant of Financial upgradation Case of Sh. L.D.Kaushik, P.A. ND GPO Ref: Your No. B-2/9/MACPs/11-12 dt. 23.06.2011.
The case sent vide your office letter cited above alongwith representation of Sh. L.D.Kaushik P.A. has been examined.
The official has earned three promotions/upgradations in the Past, hence not entitled to any further upgradation under MACP scheme to next higher grade.
Official may be informed accordingly.
5. The applicant has, therefore, assailed the actions of the respondents as being arbitrary, discriminatory and violative of principles of natural justice, stating that the impugned orders are also violative of Articles 14 and 16 of the Constitution of India, and that the respondents have failed to apply their logical minds to the facts of the case, and their orders suffer from the vice of non-application of mind. He has taken the ground that he was placed in the cadre of Postman through a Limited Departmental Competitive Examination in the pay scale of Rs.210-270/-, which was substituted by the pay scale of Rs.825-1200/- by the 5th CPC under CCS (Revised Pay) Rules, 1997, and that the corresponding pay scale under 6th CPC is Rs.5200-20200/- (PB-I) + Grade Pay of Rs.1800/- per month with effect from 01.01.2006, and has submitted that when the respondent-department had adopted the DoP&T clarificatory OM dated 19.05.2009, which has clarified the provisions of the MACP Scheme introduced with effect from 01.09.2008 in lieu of TBOP & BCR Schemes prevalent earlier, para-5 of Annexure I of the said Scheme ought to be fully applicable to his case, which provides as follows:
5. Promotions earned/upgradation granted under the ACP Scheme in the posts of those grades which now carry the same grade pay due to merger of pay scales/upgradation of posts recommended by Sixth Pay Commission shall be ignored for the purpose of granting upgradations under MACPS.
6. The applicant has taken the further ground that the provision has been further clarified by the DoP&T OM dated 16.11.2009 through Annexure A-7 (colly), whereby a clarification has been issued by the DoPT, which he claimed to be applicable to his case, stating as follows:
SUBJECT:- MODIFIED ASSURED CAREER PROGRESSION SCHEME (MACPS) FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES - CLARIFICATIONS REGARDING.
Reference is invited to the Department of Personnel and Training (D0PT)'s Office Memorandum of even number dated the l9th May, 2009 regarding the Modified Assured Career Progression Scheme (MACPS). Consequent upon the implementation of Sixth Pay Commissions recommendations, the four pre-revised Group 'D' pay scales viz., Rs.2550- 3200, Rs.2610-3540, Rs.2610-4000 and Rs.2650-4000 have been upgraded and replaced by the revised pay structure of grade pay of Rs.1800 in the pay band PB-1. As per the recommendations of Sixth CPC, Government servants in these four pre-revised Group 'D' scales have been granted the Group 'C' revised pay structure of grade pay of Rs.1800 in the pay band PB-1. It has been decided on the analogy of point-5 of Annexure-l of MACPS dated 19.05.2009 that promotions earned or upgradations granted under ACP Scheme of August,-1999 in the past to the four pay scales mentioned above, which now carry the grade pay of Rs.1800/- shall be ignored for the purpose of MACPS. However, promotions/financial upgradations earned by existing Group 'D' employees to grade pay of Rs.1900 (pre-revised scale of Rs.3050-75-3590-80-4590) shall be counted for the purpose of MACPS.
7. He has further taken the ground that this point has been reiterated vide DoP&T OM dated 09.09.2010, through which while issuing clarifications in regard to MACP Scheme in respect of Point of Doubt No.9, it has been stated as follows:
S.No. Point of Doubt Clarification 9. Whether the pre-revised pay scale of Rs.2,750-4,400 in respect of Group D non-matriculate employees, would also be taken as merged to grade pay of Rs.1,800 for the purpose of MACPS in view of merger of pre-revised pay scales of Rs.2,550-3,200, Rs.2,610-3,540, Rs.2,610-4,000 and Rs.2,650-4,000, which have been up-graded and replaced by the revised pay structure of grade pay of Rs.1,800 in the pay band PB-1. Yes.
8. In the result, the applicant has prayed for quashing and setting aside the impugned orders dated 20.04.2011 (Annexure A-1) and dated 14.07.2011 (Annexure A-2), and has also prayed for directions to be issued upon the respondents to grant him financial upgradation with effect from 01.09.2008, which date was beyond the date of completion of his 30 years service with the respondent-department on 30.01.2006, and he has also prayed for consequential benefits in this regard.
9. The respondents filed their counter reply on 07.03.2012. They stated that the applicant was promoted to the Postman cadre on 04.10.1979 from his earlier Group D Packer post, after qualifying the Departmental Examination, and that he was again promoted as Postal Assistant with effect from 17.04.1985, after qualifying LGO Examination. They stated that the applicant was granted TBOP financial upgradation on completion of 16 years of continuous service in the Postal Assistants cadre only, with effect from 20.04.2001. However, they submitted that since MACP Scheme envisages for grant of three financial upgradations on completion of 10, 20 and 30 years of stagnation on the basis of continuous regular service, the regular promotions availed of by an employee would have to be counted before granting such financial upgradations under MACP Scheme. They, therefore, justified their actions by stating that since the applicant had already earned three promotions /financial upgradations in the past, he was not entitled to any further financial upgradations under the MACP Scheme, which had already been clarified to him through the impugned orders Annexures A-1 and A-2. It was submitted that the impugned orders are strictly in accordance with the instructions and provisions of the MACP Scheme, as introduced on 01.09.2008.
10. It was further submitted that the applicant has not presented the factual position before this Tribunal, and he has failed to state that consequent upon the recommendations of the 6th Pay Commission, the four pre-revised Group D pay scales, viz Rs.2550-3200, Rs.2610-3540/-, Rs.2610-4000/- and Rs.2650-4000/- have been upgraded, revised and replaced by the revised pay structure of Grade Pay of Rs.1800/- in the Pay Band PB-I, and as a result, as per the recommendations of the 6th CPC, these four pre-revised Group D pay scales have also been granted equivalence to Group C status in the revised pay structure. It was however conceded that it has been decided through the DoP&T OM dated 16.11.2009 cited by the applicant, and also through Annexure A-7 reproduced in para-6, that the promotions earned or upgradations granted under ACP Scheme of August, 1999, in the past, in respect of the four scales, which now carry the Grade Pay of Rs.1800/-, shall be ignored for the purpose of MACP Scheme. However, it was pointed out that promotions/financial upgradations earned by the existing Group D employees in the pre-revised scale of Rs.3050-4590/-, now placed in the Grade Pay of Rs.1900, shall have to be counted for the purpose of MACP Scheme.
11. It was pointed out that the present applicant had already earned promotion to the Postman cadre in the pay scale of Rs. 3050-4590/- corresponding to the Grade Pay of Rs.1900 in PB-I, and in fact the 6th CPC has recommended an even higher Grade Pay of Rs.2000/- to the Postman cadre. It was, therefore, submitted that since the applicant had already earned three promotions / financial upgradations, first to the Postman cadre, second to the clerical cadre of Postal Assistant, and third being his financial upgradation under the TBOP Scheme, as such he was not entitled to any financial upgradation under the MACP Scheme. It was, therefore, prayed that the OA is liable to be dismissed.
12. The applicant filed a rejoinder on 03.04.2012 more or less reiterating his contentions already raised in the OA, and submitted that the contentions raised by the respondents in their reply are wrong, and that the respondent-department has failed to submit their reply on the clarifications issued by the DoP&T as per Annexure A-9, a reply submitted under RTI Act, 2005 to another person, other than the applicant, through Annexure A-12 of DoP&T OM dated 09.09.2010, and the Point of Doubt at Sl.No.9, which had been relied upon by the applicant in this case.
13. It is seen that in the reply to the RTI query in Annexure A-9, the DoP&T has clarified as follows:
I am to refer to your application dated 19.6.2010 received on 6.7.2010 from US(Allow) of this Department and to say that with regard to queries raised by you in your application, in terms of provisions of depth OM dated 16.11.2009, all promotions/financial upgradations granted upto the Grade Pay of Rs.1800/- are to be ignored. Further financial upgradations 1st, 2nd or 3rd as the case may be under MACP Scheme shall be granted thereafter.
2. The Appellate Authority is Smt. Smita Kumar, Director (E-I), DOPT, North Block, New Delhi.
3. Receipt of Rs.10/- is enclosed.
14. Heard. We have also considered the additional documents filed by the applicant on 22.05.2012 through Annexures A-13 to A-17. Annexure A-13 gives the details of the pay scales S-1 to S-34 prescribed as per the recommendations of the 5th CPC through CCS (Revised Pay) Rules, 1997, through which it is shown that the earlier pay scale at Sl.No.4 of Rs.825-1200 stood upgraded to the pay scale of Rs. 2750-4400/- (page 43 of the OA). Annexure A-14 had reproduced circulars issued by the respondent-department on 03.07.1998, 06.04.1999 and 10.06.1999, in which upgradation of the pay scale of Postman with effect from 10.10.1997, has been ordered to have been given effect to in the pay scale of Rs.3050-4590/-, by allowing them to be given advance increments in their erstwhile pay scale of Rs. 2750-4400/-. Through Annexure A-15, the applicant had tried to demonstrate that the S-4 pay scale of Rs.2750-4400/- now stood upgraded to PB-I of Rs.5200-20200 consequent upon the acceptance of the recommendations of the 6th CPC.
15. Heard. The case was argued vehemently by both the learned counsels. It was submitted that the paragraph-5 of the MACP was of paramount importance in deciding the case of the applicant, which has already been reproduced in para-5 above.
16. We have given our anxious consideration to the facts of the case. The basic issue to be decided first is as to whether the appointment of the applicant as a Postman after his having competed in LDCE as Class-IV (Packer) was a promotion/upgradation, or a direct recruitment, and similarly, as to whether the appointment of the applicant as a Postal Assistant with effect from 14.04.1985, was again a promotion/financial upgradation, or a direct recruitment. There can be no iota of doubt about the fact that the TBOP benefit was only a financial upgradation granted to the applicant within his own substantive cadre of Postal Assistant.
17. As has been held in O.A No. 382/2011 with connected matters (Bhanwar Lal Regar,Hardewa Ram Dhaka, Chauthmal Pareek L vs. Union of India & Ors.) of Jodhpur Bench of this Tribunal, and in OA No.248/2012 Pankaj Kr. Mishra & Ors. vs. Union of India & Ors. of this Principal Bench of the Tribunal, the appointment of the applicant as a Postman after having competed in the LDCE, at which examination he was eligible to appear as a Class-IV (Packer), but which was not a regular channel for his promotion from the Class-IV post, is an appointment by selection or a direct recruitment, and cannot be counted as a financial upgradation in any manner whatsoever. Similarly, as has already been held in the cases cited above, since the post of Postal Assistant is also not a post falling within the direct promotional avenue of a Postman, the appointment of the applicant as a Postal Assistant, after his having competed in another LDCE, was once again a case of direct recruitment. Therefore, there was no stagnation, which accrued in favour of the applicant, till the date of his appointment as a Postal Assistant w.e.f. 14.04.1985. After that date, he was given TBOP benefit, which has now been ordered to be counted against one of the eligible MACP benefits, after the Postal Department adopted the MACP Scheme. It is, therefore, clear that in the absence of any further substantive promotion after his appointment as a Postal Assistant w.e.f. 14.04.1985, on completion of 24 years of his service as on 14.04.2009, the applicant would have become eligible for the second financial upgradation under the erstwhile Biennial Cadre Review (BCR) Scheme of the Postal Department. However, before this date, w.e.f. 01.09.2008 , the Department had adopted the applicability of the MACP Scheme to Postal Department employees also. Therefore, the applicant went out of the applicability of TBOP financial benefit after 12 years of regular service from 14.04.1985, and 24 years of regular service for second financial upgradation benefit under BCR, and moved into the zone of eligibility for financial upgradations under the MACP Scheme with effect from 01.09.2008. On that date, since he had already completed more than 20 years of his service, he had to be granted a second financial upgradation under MACP Scheme, which had accrued to him on 14.04.2005 itself, had the MACP Scheme been in operation then. The third MACP financial upgradation would be eligible to the applicant only after completion of 30 years of service as Postal Assistant on 14.04.2015, if he does not get any substantive promotion before that date.
18. The meaning of the word promotion was considered by the Honble Apex Court in the case of Director General, Rice Research Institute, Cuttack & anr v Khetra Mohan Das, 1994 (5) SLR 728, and it was held as follows:-
A promotion is different from fitment by way of rationalisation and initial adjustment. Promotion, as is generally understood, means; the appointment of a person of any category or grade of a service or a class of service to a higher category or Grade of such service or class. In C.C. Padmanabhan v. Director of Public Instructions, 1980 (Supp) SCC 668: (AIR 1981 SC 64) this Court observed that "Promotion" as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in a higher category of the same service or that the new post carries higher grade in the same service or class.
19. Further, in the case of State of Rajasthan v. Fatehchand Soni, (1996) 1 SCC 562, at p.567: 1995 (7) Scale 168: 1995 (9) JT 523: 1996 SCC (L&S) 340: 1996 (1) SLR 1.), the Honble Apex Court findings can be paraphrased and summarized as follows:-
In the literal sense the word promote means to advise to a higher position, grade, or honour. So also promotion means advancement or preferment in honour, dignity, rank, or grade. (See : Websters Comprehensive Dictionary, International Edn., P. 1009) Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression promotion has been understood in the wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
20. It is well settled law that beneficial schemes started by the Union of India or a State Government as a model employer, like the ACP Scheme, or its modified form, the MACP Scheme, do not per se give a right to the applicant to claim them as a matter of right, unless all the requisite conditions are fulfilled. As the opening paragraph of the ACP Scheme dated 09.08.1999 (Annexure R-1) itself states, the intention of the Union of India for granting this ACP Scheme was as a Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues, because of which, even after having granted the monetary benefits of revised pay scales under the Fifth Central Pay Commission (5th CPC), the further recommendation of the 5th CPC to introduce the ACP Scheme was accepted by the Union of India, and the Scheme was started for granting two financial upgradations to Group B, C and D employees, on completion of 12 years and 24 years of regular service respectively, provided they fulfilled all the requisite qualifications and eligibility for grant of promotions themselves, but were being denied such promotion due to stagnation in their cadre. In parallel, a Dynamic Assured Career Progression Mechanism had been granted to the stream of Doctors also.
21. Later on, on the recommendations/report of the 6th Central Pay Commission (6th CPC), wherein some modifications were suggested, the Govt. of India came out with the MACP Scheme. It will be relevant here to compare certain paragraphs of the old ACP Scheme with the new Modified ACP Scheme, to try to elicit the differences between the two as follows:-
ACP SCHEME MACP SCHEME
1. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up-gradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second up-gradation which would also get deferred accordingly;
1. The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations, financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group A whether isolated or not. However, organised Group A services will not be covered under the Scheme
2. Two financial up-gradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-track promotion through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him;
2.The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.
3. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit;
3. In case a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment will be granted at this stage.
4. Financial up-gradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial up-gradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-III, will be eligible for the proposed two financial up-gradation only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts, which have no avenues of promotion at all. Since financial up-gradation under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
4 Promotions 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 Modified ACPS.
22. As can be seen from above, the ACP Scheme introduced on the basis of the recommendations of the 5th CPC was for providing two financial upgradations in the case of stagnation, after 12 years and 24 years of regular service. In the MACP Scheme, introduced through Govt. of India, Department of Personnel & Training OM dated 19.05.2009, the Scheme has been modified to provide for three financial upgradations under the MACPS, at the intervals of 10, 20 & 30 years of continuous regular service under the Government of India. In para-3.1 of the ACP Scheme, the word continuous was not there, and only the words regular service were used.
23. In the ACP Scheme, the term regular service was defined in Para 3.2 of the Scheme to be interpreted to mean the eligible service liable to be counted for regular promotions in terms of the relevant Recruitment/Service Rules. This provision has since been slightly modified in MACPS, to state that the financial upgradation under the MACP Scheme will be admissible when a person has spent 10 years continuously in the same grade pay.
24. There are substantial differences in the old ACP Scheme and the new MACP Scheme. The ACP Scheme was drafted when the Govt. of India was following a pattern of pay scales numbered from S-1 to S-24 for Group B, C & D employees. The 6th CPC has made a wholesale departure from the concept of different pay scales, and it has now introduced the concept of Pay Bands with different levels of Grade Pay associated with the Pay Bands. All the six Central Pay Commissions set up by the Union of India so far have gradually brought in a reduction in the total number of pay scales. The 6th CPC, however, brought about the most radical change, inasmuch as it has eliminated the concept of different pay scales altogether, and has introduced the alternative concept of Pay Bands, and associated Grade Pays. The Union of India is empowered under Article 73 of the Constitution of India to bring about such changes in its policy decisions, both with regard to pay scales, as well as with regard to any extra benefits or perquisites, which the Union of India may decide to provide to its employees, for example the introduction of benevolent schemes in order to save them from stagnation, as done by introducing ACPS earlier and MACPS now.
25. Para 5.2 of the ACP Scheme provided that the residency period (regular service) for the grant of benefits under the ACP Scheme shall be counted in the grade in which an employee was appointed as a direct recruit. All the financial upgradations allowed under the ACP Scheme were clarified to be purely personal to the employees, and having no relevance to the seniority position, and were to be based only upon the condition of the employee concerned stagnating in the pay scale in which he found himself trailing for a period of 12 years (for getting the first financial upgradation) without a regular promotion, and for 24 years without getting any promotion at all for getting a second financial upgradation. It was clarified in the ACP Scheme that in order to rationalize the unequal levels of stagnation, the benefit of surplus regular service: (not taken into account for the first financial upgradation under the ACP Scheme), shall be given at the subsequent stage of consideration of his case for second financial upgradation, as a one time measure.
26. Numerous clarifications had to be issued by the Union of India to clarify the different types of complications which arose later in implementation of the ACP Scheme. Many of these complications have been tried to be ironed out this time, and explained in advance even by way of illustrations, while notifying the MACPS. In order to harmonize the financial upgradations given in the ACP Scheme earlier with the prescription of the MACPS, it has been provided for in Para-5 of the MACPS that the 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/upgradation of posts recommended by the Sixth Central Pay Commission, shall be ignored for the purpose of granting upgradations under the MACPS. One crucial point, which had not been expressly stated earlier in the ACP Scheme OM dated 09.08.99 has now been clarified upfront in the MACPS OM dated 19.05.2009 in Para-9 of the Scheme as follows:-
9. Regular Service for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on Absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.
27. It is clear that since the selection of the applicant as Postman from Class-IV (Packer) has to be treated as a direct recruitment, he cannot be allowed the benefit of the clarification issued in respect of Point of Doubt No.9 issued through the OM dated 09.09.2010, as has been reproduced in para-7 above.
28. With the above clarifications and observations, it is clear that for the purpose of grant of MACP benefits, Circular dated 16.11.2009 (Annexure R-1) cannot also be made applicable to the applicant, and the benefit of Para-5 of the Annexure-A-I of the Govt. of India Circular dated 19.05.2009 introducing MACP Scheme cannot be granted from the merger of the pay scales and upgradation of Group D, as his eligibility for grant of ACP and MACP financial benefit itself started and arose from the date he was appointed as a Postal Assistant on 16.04.1985. Therefore, it is apparent that there is nothing wrong in the stand taken by the respondent Department in the impugned orders, and the applicant has not been able to prove any wrong-doing. This OA is, therefore, dismissed, but there shall be no order as to costs.
(Sudhir Kumar) (G.George Paracken)
Member (A) Member (J)
/kdr/