Central Administrative Tribunal - Ernakulam
K.G.Sreekantan vs The Senior Superintendent on 16 May, 2017
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA/180/00448/2014
Tuesday, this the 16th May, 2017
CORAM
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
1. K.G.Sreekantan
Retired Sorting Assistant (BCR)
RMS TV Division
Thiruvananthapuram-695 001.
Residing at Amballoor Vila, Mudiyacode
Cheruniyoor P.O., Varkala
Thiruvananthapuram-695 142.
2. K.Sreekantan Nair
Retired Sorting Assistant (BCR)
RMS TV Division, Thiruvananthapuram-695 001.
Residing at T.C.23/577, Thunduvilakathu Veedu
Valiasala, Thiruvananthapuram-695 036.
3. S.Raveendran Nair
Sorting Assistant (BCR)
RMS TV Division, Thiruvananthapuram-695 001.
Residing at Nandanam, Kallarachira
Konchira Post, Vembayam
Thiruvananthapuram-695 615 . . . Applicants
(By Advocate: Mr.Vishnu S.Chempazhanthiyil)
Versus
1. The Senior Superintendent
RMS TV Division, Thiruvananthapuram-695 001.
2. The Chief Postmaster General
Department of Posts, Kerala Circle
Thiruvananthapuram-695 033
3. Union of India represented by
Director General, Department of Posts,
Dak Bhavan, New Delhi-110 001. . . . Respondents
(By Advocate: Mr.N.Anil Kumar, Sr.PCGC)
This OA having been heard on 03.04.2017, the Tribunal delivered the
following order on 16th May, 2017:
ORDER
By P.Gopinath, Administrative Member Through this application, the applicants seek a direction to the respondents to to step up their pay on par with that of their juniors with effect from the date the juniors were granted Grade Pay of Rs.4600/-.
2. The applicants were initially engaged as GDS in RMS TV Division. Later they were recruited as Mailman. They were promoted as Sorting Assistants in the pay scale of Rs.260-8-300-EB-8-340-10-360-12-420-EB- 12-480 with effect from 11.9.1981 (Annexure A1). By Annexure A2, the applicants were granted financial up-gradation under the Biennial Cadre Review Scheme on completion of 26 yeas of service, with effect from 1.7.2008. On grant of BCR, the applicants were placed in pay band-II of Rs.9300-34800 with Grade Pay of Rs.4200/-. After the introduction of MACP Scheme with effect from 1.9.2008, the officials entered in the SA cadre along with the applicants as also their juniors were granted Grade Pay of Rs.4600 on completion of 30 years in the SA cadre, whereas according to the applicants, that Grade Pay has been denied to them. Pointing out the anomaly, the applicants submitted representations, highlighting a decision rendered by the Jodhpur Bench of CAT in OA No.382/2011 where an identical issue was dealt with. The claim was rejected vide Annexure A11 communication. Hence this OA.
3. In the reply statement filed by the respondents, the career progression of the applicants after becoming departmental employees is furnished. It is contended that the applicants were initially recruited as Gramin Dak Sevaks (GDS for short). They were given appointment, promotion and financial up- gradation as per table below:-
Initial appointment, 1st Applicant 2nd Applicant 3rd Applicant Promotion/Financial upgradation Mailman 15.09.1975 01.10.1973 19.08.1976 Sorting Assistant (1st upgradation before 11.09.1981 18.01.1979 11.09.1981 MACP) Time Bound One Promotion (TBOP) 27.09.1997 04.02.1995 26.09.1997 (2nd upgradation before MACP) Biennial Cadre Review (BCR) 01.01.2008 01.07.2005 01.01.2008 3rd upgradation before MACP)
4. Under the Assured Career Progression Scheme (ACP for short), the employees were entitled to be placed in the next higher scale of pay on completion of 12/24 years of continuous regular service. The respondent Department of Posts was having its own financial up-gradation schemes for its employees, i.e., the Time Bound One Promotion (TBOP for short) Scheme introduced with effect from 30.11.1983. Those employees who had completed 16 years of qualifying service in the basic cadres were given financial up-gradation to the next higher scale of pay. On completion of 26 years of qualifying service, the employees were given second financial up- gradation under the Biennial Cadre Review (BCR for short) Scheme introduced with effect from 01.10.1991. Accordingly, the applicants were duly granted their financial up-gradations under TBOP/BCR schemes as detailed in above table and per extant applicable rules.
5. While so, the scheme of Modified Assured Career Progression Scheme (MACP for short) was introduced with effect from 01.09.2008 by Govt of India vide Annexure R1. Under the MACP Scheme, three financial up- gradations are given to an employee counted from the direct entry grade on completion of 10, 20 and 30 years of continuous regular service. Regular service for the purpose of financial up-gradation shall commence from the date of joining of a post in direct entry grade on a regular basis or on absorption/re-employment basis. The financial up-gradations under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay.
6. The essence of the new MACP scheme is that an employee should get three financial up-gradations in his entire career from his initial appointment. As per para 4 of Annexure R1, upon introduction of the MACP Scheme, TBOP and BCR schemes were withdrawn with effect from 1.9.2008. The MACP scheme also stipulates that financial up-gradation under this scheme shall be purely personal to the employee and shall have no relevance to his seniority position, or his position vis-a-vis other employees. Further, if two promotions are earned by an employee before completion of 20 years of service, only 3rd financial up gradation to next Grade Pay would be admissible on completion of 10 years of service in Grade Pay from the date of 2nd promotion or on the 30th year of service, whichever is earlier.
7. The respondents' argument is that three financial up gradations have already been granted to all the three applicants even before the introduction of MACP scheme. The applicants are not eligible for further financial up gradations under MACP. However, the officials who enter the department directly in the cadre of Sorting Assistants are eligible for financial up- gradation after 10, 20 and 30 years to the grade pay of Rs. 2800, Rs. 4200 and Rs.4600 respectively. As such, the applicants' claim for stepping up their grade pay on par with their juniors is against the very spirit of the scheme, is the argument of the respondents.
8. Respondents argue that the applicants have suppressed the fact that the order of Jodhpur Bench in OA No. 382/2011 is under challenge before the Hon'ble High Court of Jodhpur and that CWS 11321/2012, 11336/2012 and 11414/2012 are pending before the High Court. The High Court has ordered stay of the operation of the common order of the Jodhpur Bench in OA No. 382/2011 and connected cases vide CMS 3324/2012, 3 93/2012 and 3307/2012.
9. The respondents bring to our notice that the Full Bench of this Tribunal had, while disposing of OA No. 1103 of 2011, categorically declared that clause 20 of the MACP Scheme is valid and legal and rejected the claim of the applicants for financial up gradation under the MACP Scheme at par with juniors. The said full bench decision was also referred by this Honb�ble Tribunal while deciding the merits of OA No. 127/2012 and connected cases. This Tribunal has categorically held in the order dated 07.08.2013 in OA No. 127/2012 and connected cases that:
'18. In all the cases under consideration, all the individuals have got their appointment as Postal Assistants/Sorting Assistant only under the promotion quota. ACP/MACP Scheme takes into account such promotion for the purpose of working out the eligibility for financial upgradation to the Scheme. As such in all the above cases notwithstanding the fact that junior is drawing more pay the applicantsb� case could not be brought within the parameters either for stepping up of pay or for grant of MACP .'
10. Para 17 of the order in OA 127/2012 relevant to this matter is reproduced below:-
'17. In so far as (b) above is concerned, i.e. whether the applicants could be eligible for financial up-gradation on fulfillment of the conditions attached thereto, in all the cases, it is to be seen whether the post held by the applicants as Sorting Assistant or Postal Assistant is one of Direct Recruit or promotion. In so far as applicant in OA No. 702 of 2012 is concerned, he was first mailman (GDS) and then mail guard promoted as postman and now a Sorting Assistant. The contention of the respondents is that the applicantb�s position as Mail guard is one promotion, postman is another. The recruitment rules for the post of Postal Assistant or Sorting Assistant provide for two modes of recruitment namely 50% by direct recruitment and 50% by promotion through a limited departmental competitive examination, failing which the unfilled vacancies shall be offered to Gramin Dak Sevak of the recruiting divisions or units subject to certain conditions. The promotion is from feeder grades as contained in Clause XII of the Recruitment Rules
18. In all the cases under consideration, all the individuals have got their appointment as Postal Assistants/Sorting Assistants only under the promotional quota. ACP/MACP scheme takes into account such promotion for the purpose of working out the eligibility for financial up-gradation to the scheme. As such, in all the above cases, notwithstanding the fact that junior is drawing more pay, the applicants' case could not be brought within the parameters either for stepping up of pay or for grant of MACP. Hence, all the Origina Applications are to be rejected. Ordered accordingly. No costs.'
11. It is also necessary to read Para 20 of MACP O.M. notifying the Scheme which states :
20. Financial up-gradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial up-gradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS. Hence a conscious decision was taken that the benefit of pay up-gradation will be extended on completion of the required residency period.
12. Earlier there was no system of up-gradation and promotion and FR 22 ruled the field since 1961. FR 22 (27) lays down the conditions under which stepping up of pay of senior on promotion drawing less pay than his junior was to be considered and effected. Under FR 22 (27) (2)(e), the manner of fixation of pay when a person is promoted from lower to a higher post has been detailed. The pay of such a person promoted from a lower post to a higher post is fixed with reference to the pay drawn in the lower post. The example cited in O.M. introducing MACP Scheme is that of a UDC who on promotion to the post of Assistant gets his pay fixed with reference to the pay drawn in the post of UDC, whereas the pay of a direct recruit Assistant is fixed normally at the minimum under FR 22-B(2). In such cases the direct recruit UDC cannot claim parity with the senior promoted as UDC from a lower post to a higher post or vice versa, as seniority is not the only criteria but pay fixation as per FR 22 (1)a (i) and in this instance FR 22 (27) (2) (e).
13. Classification is to be based on equality and reasonable basis. Persons coming to a post on promotion and persons directly recruited are not similarly circumstanced, and though placed in the same post, undergo pay fixation as entitled to the persons differently grouped at the entry stage. They have come to the higher post, differently circumstanced, in their recruitment to the post. Thus there is a clear and substantial differentia between persons who are promotees and those who are directly recruited and promotd to a higher post and is made in accordance with the Fundamental Rules relating to pay fixation which are over half a century old and have stood the test of time.
We see no reason to disagree with the judgment of this Tribunal in OA 127/2012 or the MACP O.M. of Govt of India. The persons with whom applicants are seeking parity of pay did not join the respondent department as GDS/Mailman. They joined as Direct Recruit Sorting Assistants. Hence similarity cannot be drawn by the two different groups of persons who joined from two different streams of recruitment, i.e., by promotion and by direct recruitment, and whose pay was fixed by two different set of rules applicable to all such persons in all departments of the Govt of India by the relevant Fundamental Rules.
14. The OA is devoid of merit. Accordingly it is dismissed. No order as to costs.
(P.Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.