Central Administrative Tribunal - Allahabad
Aftab Ahmed Siddiqui vs M/O Defence on 7 April, 2025
O.A./820/2016
(Reserved on 03.04.2025)
Central Administrative Tribunal, Allahabad
Original Application No.820 of 2016
th
Pronounced on this the 07 Day of April, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Aftab Ahmed Siddiquee aged about 61 years. S/o Late Faiyaz Ahmed,
retired from the post of Office Supdt. Ordnance Parachute Factory
Kanpur. Resident of H. No. 20/13-A. Chatai Mohal, Patkapur,
Kanpur-208001.
...........Applicant
By Advocate: Ms. Aditi Kesarwani having authorization from
Shri Udai Chandani
Versus
1. Union of India, Through the Secretary, Ministry of Defence.
Deptt. of Defence Production & Supplies, South Block, New
Delhi-11.
2. The Secretary, Ordnance Factory Board, "Ayudh Bhawan" 10 S.K.
Bose Road, Kolkata-1.
3. The Addl. D.G.O.F., Ordnance Equipment Fys Group HQrs.,
"Ayudh Upaskar Bhawan", G.T. Road, Kanpur.
4. The General Manager, Ordnance Parachute Factory Napier Road,
Kanpur Cantt. 208004.
...Respondents
By Advocate: Shri Amitabh Kumar Sinha
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
Digitally MADHU signed by KUMARI MADHU Page 1 of 6 KUMARI O.A./820/2016 "8.(i) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 18.6.2015 (Annexure A-1).
8.(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the applicant's claim for counting of about 2 years service in total while granted ACP/MACP with consequential benefits including correction in pensionary benefits.
8 (iii) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
8(iv) To award costs of the petition."
2. The brief facts of this case are that the applicant was initially appointed on the post of Machinist in the pay scale of Rs.210-290, w.e.f. 01.01.1979 in Ordnance Parachute Factory (Ministry of Defence) Kanpur. Subsequently, the applicant was appointed on the post of Lower Division Clerk in the pay scale of Rs.260-400 and also placed on probation without effect on seniority. Thereafter, the applicant was promoted to the post of Upper Division Clerk against an existing vacancy, vide Factory order Part II No.1235 dated 29.09.1997. After that the applicant was promoted to the post of "Assistant" in the pay scale of Rs.5000-8000 plus grade pay of Rs. 4200/-. In the sixth central pay commission, the pay scales of Assistant and Office Supdt. were merged together in the pay scale of Rs.5000-8000 plus grade pay of Rs. 4200/- as per provisions made in revised pay rules 2008. As per provisions made in Fifth Central Pay Commission Report, in order to provide safety net to the stagnating employees, a scheme with the name of Assured Career Progression scheme was introduced with provision that the employees getting no promotion during the course of 12 years of service will be given next higher grade in hierarchy without any effect of seniority. In Sixth Pay Commission the Modified Assured Career Progression Scheme (in brief was renamed as Assured M.A.C.P. Scheme) was Digitally MADHU signed by KUMARI MADHU Page 2 of 6 KUMARI O.A./820/2016 introduced with provision to grant benefits of higher grade pay on completion of 10, 20 and 30 years of service, if they could not get any promotion during this period. Herein the applicant is aggrieved because the respondent did not count the applicant's service rendered from 01.01.1979 to 07.12.1981 as machinist while determining the total eligible service for the benefit of ACP/MACP Scheme vide their order dated 18.06.2015.
3. We have heard learned counsel for the parties.
4. Submission of learned counsel for the applicant is that from the chronological order of promotion in respect of the applicant, it is seen that while calculating the M.A.C.P. benefits on completion of 30 years of service, the applicant's service from 01.01.1979 (i.e. from Machinist to the post of L.D.C.) 18.12.1981 has not been taken into consideration. Consequently, he is getting lesser amount of pay & allowances in comparison to his counterpart. It is submitted that, as per provisions made in A.C.P. Scheme dated 09.08.1999, regular service for the purpose of the A.C.P. Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant recruitment service rules." Further the residency periods (Regular service) for grant of benefits under the ACP Scheme shall be counted from the date on which an employee was appointed as a direct recruit. In the instant case, the applicant was initially appointed on the post of machinist w.e.f. 01.01.1979 and thereafter appointed as Lower Division Clerk w.e.f. 18.12.1981. Since both the posts were of appointments, it cannot be termed as promotion. Besides, the applicant was also not covered under the provisions of A.C.P. Scheme as at that time no such scheme was available. On 29.9.1997, the applicant was promoted to the post of U.D.C. in the pay scale of Rs. 3050-4590, thereafter, w.e.f. 09.08.1999, the first ACP Scheme was introduced but the benefits could not be granted to the applicant as he had already been promoted to the post of Upper Division clerk. Thus, it was his first promotion as holding the post of L.D.C. by the applicant was appointment and not Digitally MADHU signed by KUMARI MADHU Page 3 of 6 KUMARI O.A./820/2016 promotion. Thereafter, the applicant was promoted to the post of Assistant w.e.f. 14.11.2005 in the pay scale of Rs. 5000-8000, which was merged in the grade of office Supdt. in the pay scale of Rs.5500-9000, but this was also not a promotion as it was a merger of pay scale. It is further submitted that as per provision of third M.A.C.P i.e. on completion of 30 years of service from the date of 1.1.1979, the respondents must have granted the benefits of third MACPS w.e.f. 01.01.2009 but the respondents have granted it w.e.f. 18.12.2011 with grade pay of Rs.4500/-. On the matter of counting of service w.e.f. 01.01.1979, it is also submitted that in deciding the matter of length of service, the service rendered in lower grade may also be counted towards the higher post. Besides, total length of service cannot be ignored while granting benefits if the applicant fulfills all the conditions of eligibility. It is argued that as per paragraph No.5 of M.A.C.P. Scheme, the applicant is entitled to get grade pay of Rs.5400/- instead of Rs. 4600/-. Besides, O.F.B. Kolkata vide their letter No.01/6th CPC/2008(PCC/A/A and instructions No.55/2009(PCC) dated 14.10.2009, under point No.10 have stated that those LDCs who have been appointed directly will get the benefits of MACP like ACP. In view of this the applicant is entitled to get MACP benefits in higher pay scale in hierarchy and not grade pay in hierarchy. Thus, the applicant is entitled to get correct payment under M.A.C.P. Scheme and accordingly the pensionary benefits may also be suitable corrected.
5. Submission of learned counsel for the respondents is that the applicant was appointed on casual basis as Machinist 'B' (Knitter) on 01.01.1979 and his service was regularised on temporary basis on 03.07.1979. He was subsequently appointed on direct recruitment to the post of LDC on 18.12.1981. He was promoted to the post of UDC on 20.09.1997 and Assistant on 14.11.2005 which was merged to Office Superintendent on 01.01.2006. The applicant was appointed on direct recruitment to the post of LDC on 18.12.1981, hence he was given 3rd MACP on 18.12.2011 after completion of 30 years of service. The applicant retired on Digitally MADHU signed by KUMARI MADHU Page 4 of 6 KUMARI O.A./820/2016 superannuation on 30.06.2015. In view of the above, the applicant is not entitled for the relief sought in the O.A.
6. Learned counsel for the applicant, in support of his argument, has placed reliance on the following case laws:
(i) Sunity Chakraborty vs Union of India & Others ( WPCT 497 of 2013 with WPCT 498 of 2013 [Pratima Giri vs Union of India and Others]) decided by the Hon'ble High Court at Calcutta on 11.03.2014. The operative portion (para 20) of the same reads as under:
"20. In our opinion, therefore, the Tribunal has erred in rejecting the applications of the petitioners. A correct interpretation of Clause 9 of the Scheme would entitled the petitioners to the benefits of the MACP Scheme as both of them have completed more than 30 years of service in employment from the date they had been appointed as trained staff nurses but on an ad hoc basis. They would thus be entitled to the 3rd financial upgradation. The petitioners would also be entitled to all arrears of pay and allowances and other pensionary benefits consequent to the extension of the benefits of the MACP Scheme."
(ii) Sanjeev Kumar and another vs. Rajendra Agricultural University and others (Civil Writ Jurisdiction Case No.233 of 2016) decided by the Hon'ble High Court of Judicature at Patna on 19.03.2018. The relied upon para 7 of the same reads as under:
" 7. The court finds substance in the submission made by Mr. Shahi and considering the totality of the facts situation the Court holds that the contractual employees are on better footing than the ad-hoc employee and as such the petitioners are deserve similar treatment like the ad-hoc employees in the matter of counting of past service before regularization for grant of MACP, accordingly, respondents are directed to consider the case of petitioners for grant of benefit of MACP counting their past services. The omission of contractual employees in the matter of counting past services for grant of MACP is unsustainable. Accordingly, the order as contained in Annexure-10, so far exclusion of the petitioners are concerned is unsustainable. The respondents are therefore directed to workout the scheme to include the contractual appointees for one additional reason that in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra and others, reported in AIR 1990 SC 1607, the Apex Court has considered the effect of past services in the matter of granting seniority and held out that if the irregular appointment is followed by regular appointment, the benefit of past service has to be reckoned."
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7. We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.
8. The case of the applicant is squarely covered by the ratio of the law laid down in the case laws cited above in paragraph 6. Undisputedly, the applicant was appointed on casual basis as Machinist 'B' (Knitter) on 01.01.1979 and his service was regularised on temporary basis on 03.07.1979. He was subsequently appointed on direct recruitment to the post of LDC on 18.12.1981. As it has been held that if the irregular appointment is followed by regular appointment, the benefit of past service has to be reckoned, the respondents ought to have counted the period of casual service of the applicant also while determining the total length of eligible service for grant of the benefit of the third MACP. Thus, the impugned order dated 18.06.2015 is liable to be set aside and is, accordingly, quashed. The respondents are directed to count the services of the applicant from the date of his initial appointment on temporary basis i.e. 03.07.1979 for the purpose of grant of the benefit of 3rd MACP and grant him all the consequential benefits arising therefrom including the arrears of payments and correction in pensionary benefits. The said exercise should be completed within a period of five months from the date of receipt of a certified copy of this order.
9. The O.A. stands allowed with above directions. All associated M.A.s also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
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