Central Administrative Tribunal - Jaipur
Jagpat Singh Meena vs D/O Post on 21 February, 2023
1
OA No. 717/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 717/2014
Order Reserved on: 10.02.2023
DATE OF ORDER: 21.02.2023
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Jagpat Singh Meena son of Shri Vijay Singh Meena
aged about 43 years, resident of 36, Shiv Nagar,
Bharatpur and presently working as Accountant,
Bharatpur Head Post Office, Bharatpur.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to the
Government of India, Department of Posts,
Ministry of Communications and Information
Technology, Dak Bhawan, New Delhi-110001.
2. Chief Post Master General, Rajasthan Circle,
Jaipur-302007.
3. Superintendent of Post Offices, Bharatpur Postal
Division, Bharatpur.
.... Respondents
Shri Rajendra Vaish, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs: - 2 OA No. 717/2014
"(i) That the respondents be directed to hold good memo dated 18/03/2010 (Annexure-
A/2) as regards to benefits of first upgradation instead of second upgradation by quashing memo dated 23.08.2011 (Annexure A/1) quo applicant with all consequential benefits.
(ii) That the respondents be further directed to allow benefits of second financial upgradation in the grade pay Rs. 4200 by interpolating name of the applicant in the memo dated 17/07/2014 (Annexure A/8) after completion of 20 years service i.e. 25/03/2015 with all consequential benefits.
(iii) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(iv) That the costs of this application may be awarded."
2(a). The brief facts of the case, as stated by the applicant, is that the applicant was initially appointed as Postman on 13.10.1989 vide Memo dated 16.10.1989 and he was further appointed as Postal Assistant on 25.03.1995 vide Memo dated 31.03.1995. Thereafter, on qualifying the examination of Post Offices / Railway Mail Services Accountants in the year 2001, he was posted as Accountant in various offices of Bharatpur Postal Division and at present, he is working as Accountant in Bharatpur Head Post Office. The applicant states that Government of India promulgated Modified Assured 3 OA No. 717/2014 Career Progression Scheme (MACPS) for the Central Government Civilian Employees for placement in higher scale after completion of 10, 20 and 30 years of service and respondent-department also adopted the same vide OM dated 18.09.2009 and taking into consideration the said Scheme, the respondent No. 3 vide Memo dated 18.03.2010 (Annexure A/2) placed certain official in next grade pay of Rs. 2800 w.e.f. 01.09.2008 including the applicant taking into consideration his 10 years service in Postal Assistant cadre. In fact, applicant was allowed first financial up- gradation in the Pay Band Rs. 5200-20200 with Grade Pay of Rs. 2800. The applicant further states that respondent no. 3 had rightly allowed first financial up- gradation vide Memo dated 18.03.2010 (Annexure A/2) to him taking into consideration his 10 years service in the cadre of Postal Assistant but against the procedure, respondents have reviewed the cases and in review taking into consideration his service rendered from Postman cadre, modified the benefits of first up-gradation to second up-gradation vide Memo dated 23.08.2011 (Annexure A/1). By this action, the applicant has been deprived from second financial up- gradation in the Grade Pay of Rs. 4200 for which he 4 OA No. 717/2014 was due in the year 2015 after completion of 20 years service in the cadre of Postal Assistant. 2(b). The applicant also states that he joined respondent-department as Postman in the year 1989 and thereafter he was appointed as Postal Assistant on 25.03.1995 against direct recruitment vacancies and the same is entry into the grade, but respondents treated as one promotion from Postman to Postal Assistant and denied the benefits of first up-gradation under MACP Scheme. The applicant also states that similar controversies are pending before various Benches of this Tribunal and some of the Benches hold that entry grade is Postal Assistant cadre. So benefits of MACP should be allowed by counting service from the cadre of Postal Assistant and in similar circumstances, Principal Bench of this Tribunal has allowed the Original Applications against withdrawing the benefits and the same has been upheld by the Hon'ble Delhi High Court vide its order dated 05.08.2014, (Annexure A/6), in W.P. (C) No. 4131/2014, Union of India & Ors. vs. Shakeel Ahmad Burney. The applicant has filed representation on 02.07.2014 for treating benefits of second MACP as first MACP and further for 5 OA No. 717/2014 consideration to second MACP in the Grade Pay of Rs. 4200 due in the year 2015, but respondents have nowhere considered the same and convened screening committee for the period from 01.10.2014 to 31.03.2015 and allowed the benefits of MACP Scheme to other officials vide Memo dated 17.07.2014 (Annexure A/8) whereas name of the applicant has nowhere been considered despite the fact that he is going to complete 20 years of service in the cadre of Postal Assistant on 25.03.2015.
2(c). The applicant further states that respondent- department has introduced One Time Bound Promotion Scheme in the year 1983 for placement in higher scale after 16 years of service and thereafter further scheme in the year 1991 for placement in further higher scale after completion of 26 years of service and as per these schemes, service is counted from the clerical grade and not from the lower cadre, whereas respondents, without any base, are treating the appointment to the post of Clerk from lower staff as promotion, whereas as per MACP Scheme, 10 20 and 30 years of service is to be counted from entry into the grade and applicant had rightly been allowed first financial up-gradation w.e.f. 01.09.2008 vide 6 OA No. 717/2014 Annexure A/2 and the same cannot be modified as second financial up-gradation. The applicant also states that he was appointed as Postal Assistant which is entry into the grade and from Postman cadre to Postal Assistant cadre, promotion cannot be counted and, in earlier schemes, counting of services are also from Postal Assistant cadre. Besides, there is no channel of promotion from Postman cadre to Postal Assistant cadre and lower staff always became Postal Assistant after passing departmental examination meant for the same against direct recruitment vacancies. Thus, counting as promotion from Postman to Postal Assistant is against facts and also against recruitment rules. Beside this, those officials who were appointed as Postal Assistant with the applicant directly have been allowed benefits of first MACP and further second MACP in the Grade Pay Rs. 4200 and so many juniors have been allowed Grade Pay Rs. 4200 as per seniority list in the cadre of Postal Assistant. Therefore, the applicant has filed the present O.A. for redressal of his grievance. 3(a). After issue of notices, respondents have filed their reply stating that the applicant was initially approved for outsider Postman cadre vide letter dated 7 OA No. 717/2014 28.08.1989 and he was posted as Postman on purely temporary capacity w.e.f. 13.10.1989 (F/N). The applicant, thereafter, was declared successful candidate in the examination for promotion from Lower Grade Officials (L.G.O., in short) to the cadre of Postal Assistant and was selected for appointment as Postal Assistant vide Memo dated 10.11.1994 and allotted to the office of Chief Postmaster, New Delhi and he was posted as officiating Postal Assistant w.e.f. 25.03.1995 vide Memo dated 31.03.1995. Thereafter, he has been transferred from Delhi Circle to Rajasthan Circle and was posted as Postal Assistant, Bharatpur HO and further qualified in PO/RMS Accountant in the year 2001 and presently posted as Accountant, Bharatpur HO. The respondent-department was not operating Assured Career Progression Scheme earlier, but had a parallel Scheme for granting financial up- gradation in the nature of the Time Bound One Promotion (TBOP) on completion of 16 years of continuous service in a post and grade of pay without any promotion and after another Scheme of Biennial Cadre Review (BCR) was introduced by the department w.e.f. 01.10.1991 for those who had completed 26 years of service without any promotion or with only one promotion, to be granted the second 8 OA No. 717/2014 financial up-gradation. After 6th Central Pay Commission, the Department of Posts vide OM dated18.09.2009, withdrew the earlier Schemes w.e.f. 01.09.2008 and introduced the Modified Assured Career Progression Scheme (MACPS) for its employees for grant of financial up-gradations in the case of stagnation without promotion at intervals of 10, 20 and 30 years of service.
3(b). The respondents further state that DOPT, New Delhi vide letter dated 09.09.2010 circulated vide Department of Posts, New Delhi letter dated 21.09.2010 along with letter dated 09.09.2012 clarified at point No. 08 that the government servant who has already earned three promotions will not be entitled for any fourth financial up-gradation under MACP Scheme and as per clarification at point No. 04 of this letter, the benefits under MACP Scheme would be available from the date of actual joining of the post in the entry grade. The Department of Posts, New Delhi vide letter dated 18.10.2010 at point No. 03 clarified that in case of lower grade official promoted to PA cadre before completion of 10 years of continuous service, it will be off set against 1st MACP and thereafter he will be entitled to 2nd MACP on 9 OA No. 717/2014 completion of 10 years continuous service in clerical cadre or 20 years service from the date of entry which is earlier.
3(c). The respondents also state that on recommendation of Screening Committee dated 15.03.2010, the applicant was granted 1st MACP in Postal Assistant cadre w.e.f. 01.09.2008 after completion of 10 years of satisfactory service vide Memo dated 18.03.2010 (Annexure A/2). Thereafter, a Review Screening Committee was held on 26.07.2011 to review the cases of Postal Assistants who have been promoted from Postman cadre and completed 20 years of satisfactory service from the entry grade during the period from 01.09.2008 to 31.03.2010 and granted 1st MACP erroneously instead of MACP-II by the Screening Committee held on 15.03.2010 and recommended MACP-2nd to the applicant instead of MACP-1st w.e.f. 01.09.2008. Accordingly, the applicant was granted MACP-2nd instead of MACP-1st w.e.f. 01.09.2008 vide Memo dated 23.08.2011 (Annexure A/1).
3(d). The respondents state that as per clarification issued by respondent-department vide letter dated 18.10.2010, such cases of PA cadre of Bharatpur 10 OA No. 717/2014 Postal Division, who were granted 1st MACP erroneously were reviewed by Review Screening Committee on 26.07.2011 and recommended 2nd MACP to applicant w.e.f. 01.09.2008 and, accordingly, 1st MACP granted to the applicant vide Memo dated 18.03.2010 (Annexure A/2) was withdrawn and 2nd MACP was granted w.e.f. 01.09.2008 vide Memo dated 23.08.2011 (Annexure A/1). Thus, in view of provisions under MACP Scheme, clarification issued by DOPT vide OM dated 09.09.2010 and letter dated 18.10.2010, the action of the respondent is just and proper. Hence, respondents state that the present O.A. is devoid of merits and deserves to be dismissed.
4. In support of their submissions, respondents have also filed two additional affidavits. In the first additional affidavit, respondents have stated that Hon'ble Delhi High Court in Writ Petition (C) No. 2512/2012 (Uttam Singh and Ors. vs. MCD and Ors.) vide its judgment dated 26.07.2013 had categorically held that Limited Competitive Departmental Examination is a promotion and not a direct recruitment. The respondents state that the Hon'ble High Court of Rajasthan, Jaipur Bench has allowed D.B. Civil Writ Petition No. 18488/2016 (Union of India 11 OA No. 717/2014 & Ors. vs. Dev Karan Mahala & Ors.) and connected matters vide its judgment and order dated 10.05.2018. In the second additional affidavit, respondents have stated that the Hon'ble High Court of Punjab and Haryana in Civil Writ Petition No. 4829/2015 (Senior Superintendent of Posts Offices, Karnal Division, Karnal and Ors. vs. Nand Kishore and Anr.) with connected matters, vide its judgment dated 23.01.2019 had categorically held that the Limited Departmental Examination is a promotion and not direct recruitment and employees were not eligible for the said claim under MACP Scheme. Therefore, the respondents have prayed that the present O.A. filed by the applicant deserves to be dismissed.
5. The applicant has not filed any rejoinder rebutting the submissions of the respondents.
6. We have heard learned counsels for the parties and examined the pleadings brought on record including the judgments/orders cited by the respective parties.
7. The applicant and respondents have reiterated their stand as taken earlier.
12OA No. 717/2014
8. On 10.02.2023, when the matter was finally heard, at the very outset, Shri C. B. Sharma, learned counsel for the applicant states that the controversy involved in the present case is no more res-integra as the similar controversy has already been adjudicated upon and upheld upto the level of Hon'ble Supreme Court. At this stage, Shri Rajendra Vaish, learned counsel for the respondents, vehemently opposed the submissions made by learned counsel for the applicant and stated that the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 01.02.2023 in D.B. Civil Writ Petition No. 12997/2022 (Union of India & Ors. vs. Jairam Luniwal) has stayed the effect and operation of the impugned judgment and order dated 05.05.2022, until further orders, passed by this Bench of the Tribunal in the case of Jairam Luniwal vs. UOI & Ors. (OA No. 114/2019). Therefore, learned counsel for the respondents requested that the present O.A. is liable to be dismissed.
9. The claim of the applicant is that he was initially appointed as Postman on 13.10.1989. Thereafter, upon qualifying the departmental examination against direct recruitment quota, he was appointed as Postal Assistant on 25.03.1995, which is the entry into the 13 OA No. 717/2014 grade of Postal Assistant cadre. He also qualified the examination of Post Offices/Railway Mail Services Accountant in the year 2001 and was posted as Accountant. There is no channel of promotion from Postman cadre to Postal Assistant cadre and a Postman becomes a Postal Assistant only after passing departmental examination against direct recruitment quota, thus, counting promotion from Postman to Postal Assistant cannot be accepted as it is against the recruitment rules.
10. After considering the rival submissions of the parties, we are of the opinion that the issue involved in the present case is no more res intergra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. Recently, this Bench of the Tribunal vide its order dated 07.02.2023 in the case of Atma Ram Sharma vs. Union of India & Ors. (OA No. 779/2015) and other connected matters, has observed and held as under: -
"18. After considering the rival submissions of the parties, we are of the opinion that the issue involved in the present case is no more res intergra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. This Bench of the Tribunal vide its order dated 26.08.2022 in the case of Narayan Singh Chauhan 14 OA No. 717/2014 (supra), (OA No. 381/2017) has observed and held as under: -
"8. We have considered the rival submissions made on behalf of the parties. We are of the opinion that the issue involved in the present case is no more res integra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon'ble High Courts and Hon'ble Supreme Court on this particular issue. The very first judgment which we have come across is of Jodhpur Bench of this Tribunal passed in the case of Bhanwar Lal Regar (supra), wherein this Tribunal at paras 19 & 20 has held as under: -
"19. In a similar manner, while being Postmen, the three applicants in these three OAs faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become Postal Assistants. Their joining as Postal Assistants was not in the nature of promotion in their earlier existing service or cadre, but was a career advancement through a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and MACP financial upgradation now, the only dates which are relevant to be taken into account for the purpose of counting the periods of their stagnation is the period spent by the applicants as Postal Assistants. In that sense, the clarification issued by the Pay Commission Cell of the Department of Posts, Ministry of Communications & IT on 25.04.2011 through file No. 4- 7/MACPS/2009/-PCC, as cited in para 8 above, is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when the Postman appears at the LDCE, and gets selected to a new Cadre as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements cannot be called to be promotions within the definition of the word 'promotion', as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial 15 OA No. 717/2014 upgradation on account of stagnation under the MACP Scheme.
20. It is, therefore, clear that Para-2 of the impugned order in all these three OAs at Annexure A-1 dated 10.08.2011, passed by the Supdt. of Post Offices, Churu Division, Churu was incorrect, and the eligibility of these three applicants for the grant of TBOP/BCR benefits earlier, and MACP benefit thereafter, has to be counted only from the date they were substantively appointed as Postal Assistants. Therefore, the impugned Annexure A-1 dated 10.08.2011 in all the three OAs are set aside, and the grant of MACP benefit correctly granted to the three applicants earlier through the order dated 31.03.2010 is upheld. The applicants shall be accordingly entitled to all the arrears, with interest at the GPF rate of interest being payable on the arrears of the financial upgradation benefit admission to the applicants, correctly granted earlier on 31.03.2010."
It is also seen that against the said order of this Tribunal, the respondent-Union of India had approached the Hon'ble High Court of Rajasthan, Jodhpur Bench by way of filing D.B. Civil Writ Petition No. 11336/2012 (Union of India & Ors. vs. Bhanwar Lal Regar) and connected Writ Petitions, but the Hon'ble High Court vide its order dated 10th August, 2015 had observed, while dismissing the same, which reads as follows:-
"Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of 16 OA No. 717/2014 modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed."
We have also been informed that aggrieved by the aforesaid orders of the Hon'ble High Court of Rajasthan, the Union of India had moved to the Hon'ble Supreme Court but the Hon'ble Supreme Court has also upheld the orders passed by this Tribunal as well as Hon'ble High Court of Rajasthan.
9. We have also noted that Chennai Bench of this Tribunal vide its order dated 14.03.2013 passed in the case of D. Sivakumar (supra) while dealing with the same issue had allowed the Original Application. Aggrieved by the decision of Chennai Bench of this Tribunal, the respondent- Union of India had taken up the matter before the Hon'ble High Court of Judicature at Madras by way of filing Writ Petition No. 30629 of 2014 and M.P. No. 1 of 2014, (Union of India & Ors. vs. D. Sivakumar & Anr.), and the Hon'ble High Court vide its order dated 04.02.2015 while dismissing the Writ Petition, has held as under: -
"9. What the Department had done is to adjust the appointment of the first respondent as the Postal Assistant on 12.11.1977, as the first financial upgradation under Modified Assured Career Progression-I. This is clearly erroneous in view of the fact that the appointment as Postal Assistant was not granted to the first respondent after mere completion of 10 years in the Cadre of Postman. From the Cadre of Postman, to which, the first respondent got appointed on 22.9.1973, he participated in a selection to the post of Postal Assistant and got appointed. Therefore, to adjust the said appointment against Modified Assured Career Progression-II, is clearly erroneous. Once that error is removed, it will be clear that the first respondent would be entitled to three modified assured career progression for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the 17 OA No. 717/2014 Department not to take into account the appointment granted to the post of Postal Assistant and to adjust it against Modified Assured Career Progression-I.
10. Moreover, it is to be pointed out that even the second modified assured career progression was granted under the Modified Assured Career Progression Scheme only after 16 years and the third is said to have been granted after 26 years. If the first appointment is adjusted against Modified Assured Career Progression-I, this could not have actually happened. For doing so, the Department has counted the first appointment as 12.11.1977. Therefore, they cannot do so for the Modified Assured Career Progression Scheme in a different manner.
11. Accordingly, the writ petition is dismissed. No costs. Consequently, the above MP is also dismissed."
Thereafter, against the said order/judgment of the Hon'ble High Court, the respondent-Union of India has filed Petition for Special Leave (C) No. 4848/2016 (Union of India & Ors. vs. D. Sivakumar) before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court vide its order dated 16.08.2016, while dismissing the same, has held as under: -
"We see no reason to entertain this petition under Article 136 of the Constitution of India. The special leave petition is, accordingly, dismissed.
However, the question of law is kept open."
10. We have also come across the orders passed by Coordinate Benches of this Tribunal. The Bangalore Bench of this Tribunal, while dealing with the very same issue in the case of C.F. Tagadinamani (supra) has held as under: -
"4. It is evident from the orders passed by different Benches of the Tribunal as well as Hon'ble High Courts and Hon'ble Supreme Court on this particular issue as highlighted in the preceding para that the appointment of the applicant to the post of Postal Assistant on 01.09.1987 based on the LGO's examination cannot be considered as promotion. Following his appointment to the Postal Assistant cadre, the applicant got one financial upgradation under TBOP on completion of 16 years. He completed 20 years of service in Postal Assistant cadre in 18 OA No. 717/2014 2007. Accordingly, his claim for 2nd financial upgradation w.e.f. 1.9.2008 appears to us as justified. Therefore, we hold that the applicant is entitled to get 2nd financial upgradation w.e.f. 1.9.2008 when he had completed 20 years of service in the Postal Assistant cadre. Accordingly, we direct the respondents to pass necessary orders granting the applicant 2nd financial upgradation under MACP w.e.f. 1.9.2008 as claimed by him in place of 3rd financial upgradation granted from Oct., 2011. This shall be done within a period of two (2) months from the date of receipt of a copy of this order. All the consequential benefits should also be granted within the said period.
5. The OA is accordingly allowed in terms of aforesaid direction. No order as to costs."
The Bangalore Bench of this Tribunal vide its order dated 22nd November, 2017 passed in the case of G.B. Kulkarni (supra) has dealt with the same issue and held that the appointment of the applicants to the post of Postal Assistant based on the LGO's examination cannot be considered as promotion.
11. The Ernakulam Bench of this Tribunal while examining the identical issue, vide order dated 04th April 2019 passed in the case of V.T. Easow (supra) had held that the selection to the post of Postal Assistant / Postman is by way of an exam and which is a direct recruitment and the same shall not be counted as promotion for the purpose of MACP. Therefore, all the applicants are entitled for the financial upgradation as per the MACP scheme on completion of respective period of service. The impugned orders in all the OAs to extent it denies the benefit of financial upgradation under MACP scheme to the applicants treating the appointment to the post of Postal Assistant / Postman as one promotion were quashed and set aside.
12. We have also come across the judgment of Ahmedabad Bench of this Tribunal which while dealing with the identical / similar issue, vide order dated 17.09.2019 passed in the case of Natvarbhai S. Makwana (supra) has quashed all impugned orders whereby either TBOP/BCR/MACP granted earlier to the applicants has been cancelled and adjusted as set off or they were declined their TBOP/BCR/MACP due treating the post of Postal Assistant as promotion from the post of Postman. The respondents were directed to place the claim of the applicants for examination afresh before the Review Screening Committee treating the date of 19 OA No. 717/2014 entry into the cadre/grade of the post of Postal Assistant as the starting point and to release the financial upgradations of 1st, 2nd and 3rd MACP, as the case may be, to which they are entitled, keeping in mind that promotion of the applicants as Postal Assistant was not a 'promotion'.
13. From the aforesaid orders/judgments passed by different Coordinate Benches of this Tribunal as well as Hon'ble High Courts and Hon'ble Supreme Court on this particular issue, it is quite clear that appointment of the applicant as Postal Assistant on 28.03.1995 based on departmental competitive examination cannot be considered as promotion. Since the applicant is similarly situated employee to that of the cases as discussed above, he is entitled for grant of benefit of 2nd MACP in grade pay Rs 4200/- w.e.f. 28.03.2015 treating upgradation allowed w.e.f. 01.09.2008 in GP-Rs.2800/- as first upgradation.
14. We are not in agreement with the submissions made on behalf of the respondents that the said orders/judgments, as discussed above, is applicable to the applicants of the said cases only. But we are of the considered view that since the applicant herein is similarly situated person, he is also entitled to get the same benefits as have been given to the applicants therein. So far as the judgment of the Hon'ble Supreme Court passed in the case of R. Santhakumari Velusamy (supra), as relied upon by the respondents, is concerned, the same is not applicable to the facts of the present case."
We have noticed from the order dated 10th August, 2015 passed by the Hon'ble High Court of Rajasthan, Jodhpur Bench in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) that while granting appointment to the post of Postal Assistant/ Sorting Assistant, original applicants therein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression. The said ratio decided by the Hon'ble High Court of Rajasthan in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) has also been followed by this Bench of the Tribunal while deciding the case of Narayan Singh Chauhan (supra). Therefore, the ratio decided by this Tribunal in the case of Narayan Singh Chauhan (supra) is squarely 20 OA No. 717/2014 applicable to the facts and circumstances of the present case. The same ratio has also been followed by this Bench of the Tribunal while deciding the case of Jairam Luniwal (supra). Therefore, in view of the above position, the present Original Applications deserve to be allowed.
19. Coming to the judgments relied upon by the respondents, in the case of Onkar Mal (supra), it is clear that the issue raised by the applicant in the said matter was pertaining to the issue of recovery and, therefore, the said matter cannot be co-related with the present matter. As far as judgment in the case of Dev Karan Mahala (supra) is concerned, the Hon'ble High Court at para 13 has clearly observed as under: -
"13. The very object of Modified Assured Promotion Scheme is to avoid stagnation. If in every 10 years any employee is not granted any promotion, he will be given selection grade. In this way, the employee will be entitled for three selection grades. If he is not being given a promotion within 10 years, he will be given next promotion scale and if after 10 years and upto 20 years he is not getting any promotion then next benefit will be given to him on completion of 20 years from the date of appointment and thereafter if he is not getting further promotion till 30 years, he will be entitled for benefit of promotional scale after completion of 30 years. The original applicant/s will be granted the benefits accordingly.
It is also noted that the Hon'ble High Court was of the view that as per Rules, in view of promotion, first benefit is to be granted from 10 years from the promotional post or from the new recruitment taken as confirmed. Further, the Hon'ble High Court was of the view that the benefit will be conferred only after regular 10, 20 and 30 years service and if not promoted, the incumbent will be entitled for next up-gradation. However, it is clear that in the said order, while deciding the issue in the case of Dev Karan Mahala (supra), the Hon'ble High Court has not taken into consideration the judgment passed by the Hon'ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court. Therefore, it is clear that the said judgment is not applicable to the present case.
20. As far as the judgment passed by the Hon'ble High Court at Madras in the case of N. Selvan (supra) is concerned, the Hon'ble High Court has held that the writ petitioners having availed promotion to the post of Postal Assistant from the lower post of Postman and Group 'D' post, are not entitled to the grant of financial up- gradation under MACP-III and they are also not entitled to the consequential benefits thereof. However, we find that there are conflicting judgments of two different High 21 OA No. 717/2014 Courts, by the Benches of equal strength, i.e. judgment passed by the Hon'ble High Court of Rajasthan at Jodhpur in the case of Bhanwar Lal Regar (supra), which has been upheld by the Hon'ble Supreme Court and the other judgment passed by the Hon'ble High Court at Madras in the case of N. Selvan (supra). In such a situation, as per decision/order dated 24th March, 2015 in OA No. 569/2009 (Ajay Sharma vs. UOI & Ors.), passed by Larger Bench at C.A.T., Jaipur Bench, if there are conflicting judgments of two different Hon'ble High Courts, by the Benches of equal strength, the Tribunal should be free to take its own view to be in consonance of the view taken in either of the judgments of the Hon'ble High Courts. Therefore, we, in respectful agreement, are of the view that the ratio decided by the Hon'ble High Court of Rajasthan, Jodhpur in the case of Bhanwar Lal Regar (supra) shall be applicable to the present case as the same has also been upheld upto the level of Hon'ble Supreme Court.
21. Accordingly, we are of the view that while granting appointment to the post of Postal Assistant, applicants herein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression.
22. In view of the observations and discussions made herein-above, the following orders are passed:-
"(i) Respondents in OA No. 779/2015 are directed to grant second financial up-gradation to the applicant in the Grade Pay of Rs. 4200 w.e.f.
01.10.2010 with all consequential benefits.
(ii). The impugned order dated 08.10.2012 (Annexure A/1) and Memo dated 19.04.2011 (Annexure A/3), in OA No. 783/2015, qua the applicant, are hereby quashed and set aside. Accordingly, respondents are directed to restore the benefits of second financial up-gradation with all consequential benefits under MACP Scheme in the grade pay of Rs. 4200 as granted w.e.f. 01.09.2008 vide Memo dated 25.03.2010 (Annexure A/2). It is also made clear that the respondents shall restore fixation of pay & allowance as was allowed to him in the year 2010 and pay amount if already recovered and also revise the retirement benefits taking into consideration the grade pay of Rs. 4200 w.e.f. 01.09.2008 at the time of his retirement i.e. 31.12.2012 with all consequential benefits. 22 OA No. 717/2014
(iii). The impugned memo dated 19.04.2011 (Annexure A/6) and Memo dated 30.07.2018 (Annexure A/1), in OA No. 668/2018 qua the applicant, are hereby quashed and set aside. Respondents are directed to allow the benefits of second financial up-gradation to the applicant under MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 01.09.2008 as was allowed vide order dated 25.03.2010 (Annexure A/5). The respondents are further directed to allow due pay and allowances till retirement i.e. 31.10.2011 after due fixation of pay and further revise pension and pensionary benefits to the applicant with all consequential benefits. It is also directed to refund Rs. 87,099/- to the applicant, if already recovered as stated by the applicant.
(iv). This exercise shall be carried out by the respondents within a period of three months from the date of receipt of a certified copy of this order."
23. With these observations and directions, all aforesaid Original Applications are allowed. No order as to costs."
We have observed that this Bench of the Tribunal considering judicial pronouncements made by this Tribunal, Hon'ble High Courts as well as Hon'ble Supreme Court has held that while granting appointment to the post of Postal Assistant, applicants in the said case faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants. The services rendered by them on earlier 23 OA No. 717/2014 posts prior to their appointment as Postal Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression.
11. Coming to the submission made by learned counsel for the respondents that the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 01.02.2023 in D.B. Civil Writ Petition No. 12997/2022 (Union of India & Ors. vs. Jairam Luniwal) has stayed the effect and operation of the impugned judgment and order dated 05.05.2022, until further orders, passed by this Bench of the Tribunal in the case of Jairam Luniwal vs. UOI & Ors. (OA No. 114/2019). While passing the said interim order, the Hon'ble High Court of Rajasthan has observed that a similar judgment and order of the Tribunal, as impugned in that writ petition, has already been set aside by the Hon'ble High Court vide its judgment and order dated 10.05.2018 passed in a batch of writ petition in which leading case was D.B. Civil Writ Petition No. 18488/2016 (The Union of India & Ors. vs. Dev Karan Mahala & Ors.).
12. From bare perusal of the judgment passed in the case of Atma Ram Sharma (supra), it reveals that 24 OA No. 717/2014 while passing the judgment and order, this Bench of the Tribunal has considered the judgment and order passed by the Hon'ble High Court of Rajasthan in the case of Dev Karan Mahala (supra), relevant para 19 of the Tribunal's judgment reads as under:-
"19. xxxxx As far as judgment in the case of Dev Karan Mahala (supra) is concerned, the Hon'ble High Court at para 13 has clearly observed as under: -
"13. The very object of Modified Assured Promotion Scheme is to avoid stagnation. If in every 10 years any employee is not granted any promotion, he will be given selection grade. In this way, the employee will be entitled for three selection grades. If he is not being given a promotion within 10 years, he will be given next promotion scale and if after 10 years and upto 20 years he is not getting any promotion then next benefit will be given to him on completion of 20 years from the date of appointment and thereafter if he is not getting further promotion till 30 years, he will be entitled for benefit of promotional scale after completion of 30 years. The original applicant/s will be granted the benefits accordingly.
It is also noted that the Hon'ble High Court was of the view that as per Rules, in view of promotion, first benefit is to be granted from 10 years from the promotional post or from the new recruitment taken as confirmed. Further, the Hon'ble High Court was of the view that the benefit will be conferred only after regular 10, 20 and 30 years service and if not promoted, the incumbent will be entitled for next up-gradation. However, it is clear that in the said order, while deciding the issue in the case of Dev Karan Mahala (supra), the Hon'ble High Court has not taken into consideration the judgment passed by the Hon'ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court. Therefore, it is clear that the said judgment is not applicable to the present case."
It appears that this Bench of the Tribunal had observed that while deciding the issue in the case of Dev Karan Mahala (supra), the Hon'ble High Court has not taken into consideration the judgment passed 25 OA No. 717/2014 by the Hon'ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court. Therefore, this Bench of the Tribunal was of the view that the said judgment is not applicable to that case.
13. Therefore, we are of the view that at present the verdict passed in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court stands hold good. It is seen that against the order of this Tribunal, the respondent-Union of India had approached the Hon'ble High Court of Rajasthan, Jodhpur Bench by way of filing D.B. Civil Writ Petition No. 11336/2012 (Union of India & Ors. vs. Bhanwar Lal Regar) and connected Writ Petitions, but the Hon'ble High Court vide its order dated 10th August, 2015, while dismissing the same, had observed as follows:-
"Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post 26 OA No. 717/2014 prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed."
We have also been informed that aggrieved by the aforesaid orders of the Hon'ble High Court of Rajasthan, the Union of India had moved to the Hon'ble Supreme Court but the Hon'ble Supreme Court has also upheld the orders passed by this Tribunal as well as Hon'ble High Court of Rajasthan.
14. We have also gone through the judgment and order dated 04.07.2013 passed by this Bench of the Tribunal in the cases of Jagdish Prasad Sharma vs. UOI & Ors. (OA No. 321/2011), Anand Prakash Bhatnagar vs. UOI & Ors. (OA No. 149/2012)), Mool Chand Kalawat vs. UOI & Ors. (OA No. 150/2012) and Ram Bharoshi Sharma vs. UOI & Ors. (OA No. 188/2012) and we have noticed that this Tribunal had dismissed the said OAs on the ground that the order passed by Jodhpur Bench of this Tribunal in the case of Bhawar Lal Regar vs. UOI & Ors. has already 27 OA No. 717/2014 been stayed by the Hon'ble High Court of Rajasthan at Jodhpur, therefore, the applicant cannot get any benefit. Thereafter, applicants therein had challenged the said order dated 04.07.2013 passed by this Bench of the Tribunal by way of filing D.B. Civil Writ Petition Nos. 11538/2014 (Anand Prakash Bhatnagar vs. UOI & Ors.), 10599/2014 (Mool Chand Kalawat vs. UOI & Ors. and 16150/2013 (Jagdish Prasad Sharma vs. UOI & Ors.) before the Hon'ble High Court of Rajasthan, Jaipur Bench, Jaipur wherein the Hon'ble High Court of Rajasthan vide its order dated 10.12.2015 has observed and held, relevant portion of it reads as under: -
"The respondents granted to the petitioners and other similar situated persons the benefit of first and second financial upgradation by treating the date of their appointment on the post of Postal Assistant/Sorting Assistant as the of initial appointment. However, the respondents later on withdrew the second financial upgradation awarded as per modified Assured Career Progression Scheme by treating their appointment to the post of Postman/Sorting Assistant, as promotion. The affected employees aggrieved by such order approached the Bench of the Tribunal at Jodhpur and the Tribunal accepted the applications by arriving at the conclusion that the appointment to the post of Postman/Sorting Assistant was not a promotion but direct recruitment through limited competition whereagainst the Union of India approached the Division Bench of this court at Principal Seat Jodhpur, which has dismissed the aforesaid writ petitions with the following observations: -
"Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the 28 OA No. 717/2014 respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as postal assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed."
We find from the judgment of Division Bench of this Court rendered at the Principal Seat Jodhpur that, in fact, the appointment of the concerned employees as Postal Assistant / Sorting Assistants was by way of promotion and not by way of direct recruitment. The Division Bench has rejected the contrary argument by a categorical finding that no such rules were produced before it to show that it was a promotion. Even today before us despite being required, no such rules were cited before that appointment of petitioners on the post of Postal Assistant / Sorting Assistant was not at all by way of promotion and hence grant of benefit under modified Assured Career Progression Scheme is to be counted only from the date of appointment as Postal Assistants / Sorting Assistants.
In view of the above, we are persuaded to allow the writ petition in terms of the judgment of this Court delivered at Principal Seat Jodhpur dated 10/08/2015. The petitions are accordingly allowed. The impugned judgment dt. 04/07/2013 is set aside. Show cause notice dt. 08/06/2011 and impugned order dt. 01/07/2011 assailed before the Tribunal are quashed and the Original Application filed by the petitioner stands disposed of. The respondents are directed to extend all the benefits of the judgment dt. 10/08/2015 passed by the Division Bench of this Court at Principal Seat Jodhpur holding consequential benefits to the writ petitioners in these matter. 29 OA No. 717/2014
Compliance of the judgment be made within a period of three months from the date copy of this order is produced before the respondents."
We have also noticed that thereafter the Union of India has filed review petitions against the said order dated 10.12.2015 before the Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing D.B. Writ Review No. 181//2016 in D.B. Civil Writ Petition No. 16150/2013 (UOI & Ors. vs. Jagdish Prasad Sharma & Anr.), D.B. Writ Review No. 161/2016 in D.B. Civil Writ Petition No. 10599/2014 (UOI & Ors. vs. Mool Chand Kalawat & Anr.) and D.B. Writ Review No. 179/2016 in D. B. Civil Writ Petition No. 11538/2014 (UOI & Ors. vs. Anand Prakash Bhatnagar & Anr.), which have been dismissed vide order dated 15.02.2018 by the Hon'ble High Court. The Hon'ble High Court of Rajasthan, Jaipur Bench while dismissing the said Review Petitions had observed, relevant part of it reads as under: -
"These review petitions have been filed seeking review of the judgment of this Court dated 10.12.2015, whereby the writ petitions filed by the respondents were allowed on the basis of judgment rendered by Principal Seat Jodhpur in D.B. Civil Writ Petition No. 11709/2013, Union of India & Ors. vs. Har Govind Sharma.
Shri R.D. Rastogi, learned Additional Solicitor General at the outset fairly submitted that the review petition was filed at the Principal Seat, Jodhpur in Union of India & Ors. vs. S.N. Singh Bhati, D.B. Writ Review Petition No. 171/2016 along with other 25 connected matters seeking review of the judgment of this Court dated 10.08.2015, whereby 24 writ petitions were dismissed. The Principal Seat, Jodhpur has dismissed the review petitions and 30 OA No. 717/2014 upheld the judgment passed by the Central Administrative Tribunal, Jodhpur Bench in the following terms: -
"6. Learned counsel for the respondents point out that similar is the view taken by the Division Bench of the Madras High Court in Civil Writ Petition No. 30629/2014, Union of India & Ors. vs. D. Sivakumar & Anr. against which decision SLP (C) No. 4848/2016, Union of India & Ors. vs. D. Sivakumar was dismissed by the Supreme Court on 16th August, 2016 after condoning the delay. Review sought of the order dated 16th August, 2016 vide Review Petition (C) No. 1939/2017 was dismissed by the Supreme Court as recently as on 13th September, 2017. Learned counsel further submit that even a Division Bench of the High Court of Karnataka in Writ Petition No. 200807/2016, The Union of India & Ors. vs. Shri Basanna Nayak has taken a similar view. Learned counsel for the respondents point out that in the Madras Circle and Karnataka Circle the decisions have been implemented.
7. Learned counsel for the review petitioner does not dispute aforesaid facts pertaining to the decisions of the Madras High Court and Karnataka High Court having attained finality on the same issue. The decision passed by the Central Administrative Tribunal brings out that Group-D employees, irrespective of their seniority participated in a merit based selection and appointed to the higher post were never treated as a case of promotion. The examination was not a Limited Departmental Qualifying Examination but was a Limited Departmental Competitive Examination. Before the MACP Scheme was introduced the department had a TBOP/BCR Financial upgradation Scheme and under the said Scheme benefit was granted treating the appointment as one of direct recruitment and not by way of promotion.
8. Thus we find no merit in the review petitions which are dismissed and since we are dismissing the review petitions on merits we are not going into the issue whether sufficient cause has been shown in the delay to be condoned."
We, therefore, do not find any merit in these review petitions. For the same reason, the present review petitions are dismissed."
Thereafter, original petitioners / applicants filed D.B. Civil Contempt Petition No. 656/2016 (Anand 31 OA No. 717/2014 Prakash Bhatnagar vs. Smt. Kaveri Baneerji & Ors.), D.B. Civil Contempt Petition No. 657/2016 (Mool Chand Kalawat vs. Smt. Kaveri Baneerji & Ors.) and D.B. Civil Contempt Petition No. 1344/2016 (Jagdish Prasad Sharma vs. Smt. B.V. Sudhakar & Ors.) before the Hon'ble High Court of Rajasthan, Jaipur Bench seeking compliance of order dated 10.12.2015, wherein vide its order dated 20.03.2018, the Hon'ble High Court has disposed of the said contempt petitions observing that the appropriate remedy for the petitioner is to approach CAT for execution of the order since this is a matter of calculation.
Thereafter, the Union of India approached the Hon'ble Supreme Court by way of filing Special Leave Petition (Civil) No. 22650/2018 (Union of India & Ors. vs. Jagdish Prasad Sharma), which has been dismissed by the Hon'ble Supreme Court vide its order dated 30.07.2018 having no merits. Further, the Special Leave Petition (Civil) No. 23271/2018 (Union of India & Ors. vs. Anand Prakash Bhatnagar) has also been dismissed by the Hon'ble Supreme Court vide its order dated 17.09.2018 observing that since similar case, i.e., SLP (C) Nos. 23193-94/2018 (Union of 32 OA No. 717/2014 India & Ors. vs. Jagdish Prasad Sharma), has been dismissed, the instant petitions are also dismissed.
It is noticed that thereafter the respondents- Union of India has implemented the common orders/judgments passed by the Hon'ble High Court of Rajasthan, Jaipur Bench by way of passing orders dated 18th February, 2019 (Annexure MA/7), order dated 19.02.2019 (Annexure MA/8) and order dated 21.02.2019 (Annexure A/9 in respect of the original petitioners/applicants therein, as noticed above. From the above analysis, it appears that the judicial pronouncement made in the similar matters had already attained its finality.
15. Coming to the judgment and order passed by the Hon'ble High Court of Punjab and Haryana in Civil Writ Petition No. 4829/2015, Senior Superintendent of Posts Offices, Karnal Division, Karnal and Ors. vs. Nand Kishore and Anr.) with connected matters (supra), as relied upon by the respondents, we have noticed that while allowing the petitions, the Hon'ble High Court of Punjab and Haryana was of the respectful agreement with the ratio of the judgments 33 OA No. 717/2014 in Ramkaran Kumhar and Dev Karan Mahala's case.
At this stage, on the cost of repetition, it is stated that while deciding the issue in the case of Dev Karan Mahala (supra), the Hon'ble High Court of Rajasthan has not taken into consideration the judgment passed by the Hon'ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon'ble Supreme Court. Further, in the case of Ramkaran Kumhar vs. UOI & Ors. (D.B. Civil Writ Petition No. 3968/2008), the Hon'ble High Court of Rajasthan, Jodhpur Bench vide its order dated 31st May, 2016, has observed as under: -
"12. Coming to the Bench decision of this court in Har Govind's case (supra), relied upon by the counsel for the petitioner, it is to be noticed that in the said case, where the employees had entered into services of the respondent therein on being appointed as Mail Guards/Extra Departmental Agents/Gram Dak Sewaks and while in service, faced process of selection for appointment to the post of Sorting Assistants/Postal Assistants and were appointed on the said posts, in absence of any provision under the Rules, showing that the appointment to the post of Postal Assistant / Sorting Assistant are made by way of promotion, the court held that such appointment may be by way of Limited Competitive Examination has to be treated as appointment by direct recruitment.
13. As noticed hereinabove, in the instant case, it is specifically provided under the Rules that 66.66% posts of the Inspector of Posts shall be filled in by way of promotion through limited Departmental Competitive Examination and thus, the Bench decision of this court in Har Govind's case (supra) does not help the petitioner in any manner."34 OA No. 717/2014
We have gone through the judgment and order dated 31st May, 2016 passed by the Hon'ble High Court of Rajasthan, Jodhpur Bench in the case of Ramkaran Kumhar (supra) and find that the applicant therein has entered the services of the respondents as Postal Assistant on 23.03.1978 and on being declared successful in the limited departmental competitive examination, he was appointed as Inspector of Posts on 26.07.1984. The Hon'ble High Court has dealt with the matter considering the recruitment rules observing that as per the provisions of the Department of Posts Inspector of Posts Recruitment Rules, 2001, the posts of Inspector of Posts are required to be filled in, in the ratio of 33.34% by direct recruitment through Staff Selection Commission and 66.66% by way of promotion through limited departmental competitive examination. The Hon'ble High Court has also observed that merely because the post of Inspector of Posts by promotion is filled in by way of limited departmental competitive examination from amongst the employees holding the posts specified, their promotion to the post cannot be treated as direct entry and the Hon'ble High Court was of the opinion that where the rules specifically 35 OA No. 717/2014 provides for promotion quota, may be, to be filled in by way of limited Departmental Competitive Examination, the promotions made by the method specified as aforesaid, has to be counted as promotion for the purpose of ACP Scheme. The Hon'ble High Court, while considering the decision in Har Govind's case, noticed that in the said case, where the employees had entered into services of the respondent therein on being appointed as Mail Guards/Extra Departmental Agents/Gram Dak Sewaks and while in service, faced process of selection for appointment to the post of Sorting Assistants/Postal Assistants and were appointed on the said posts, in absence of any provision under the Rules, showing that the appointment to the post of Postal Assistant / Sorting Assistant are made by way of promotion, the court held that such appointment may be by way of Limited Competitive Examination has to be treated as appointment by direct recruitment. Therefore, the Hon'ble High Court held that in Ramkaran Kumhar's case, it is specifically provided under the Recruitment Rules that 66.66% posts of the Inspector of Posts shall be filled in by way of promotion through limited Departmental Competitive Examination and thus, the decision in Har Govind's case does not help the 36 OA No. 717/2014 petitioner in any manner. Therefore, we are of the considered opinion that facts and circumstances of Ramkaran Kumhar's case do not apply to the present case as in the case of Ramkaran Kumhar, there was specific provisions under the recruitment rules that 66.66% posts of Inspector of Posts shall be filled in by way of promotion through limited department competitive examination and, hence, the Hon'ble High Court was of the view that the decision in Har Govind's case does not help the petitioner in that case.
In the instant case, the applicant was initially appointed as Postman on 13.10.1989 and thereafter, upon qualifying the departmental examination against direct recruitment quota, he was appointed as Postal Assistant on 25.03.1995, which is the entry into the grade of Postal Assistant cadre. There is no channel of promotion from Postman cadre to Postal Assistant cadre and a Postman becomes a Postal Assistant only after passing departmental examination against direct recruitment quota. Further, there is no provision under the Recruitment Rules showing that the appointment to the post of Postal Assistant is made by way of promotion and in absence of any provision 37 OA No. 717/2014 under the Recruitment Rules, showing that the appointment to the post of Postal Assistant / Sorting Assistant are made by way of promotion, such appointment may be by way of Limited Competitive Examination has to be treated as appointment by direct recruitment. Therefore, ratio decided by the Hon'ble High Court of Rajasthan, Jodhpur Bench in Union of India & Ors. vs. Har Govind Sharma (D.B. CWP No. 11709/2013), decided on 10.08.2015 squarely applies in the instant case.
In view of the above analysis, we are of the respectful opinion that findings / observations made in the judgment by the Hon'ble High Court of Punjab and Haryana in the case of Senior Superintendent of Posts Offices, Karnal Division, Karnal and Ors. vs. Nand Kishore and Anr. (supra) do not apply to the present case; more particularly when the similar controversy has already been adjudicated upon and affirmed upto the level of Hon'ble Supreme Court, as noticed above.
16. In view of the above observations and since the similar issue/controversy involved in the present case is no more res-integra as the similar controversy has 38 OA No. 717/2014 already been adjudicated upon and affirmed upto the level of Hon'ble Supreme Court, we are of the considered opinion that we have to follow the judicial pronouncements, which have already attained its finality, as discussed hereinabove, and, thus, we disagree with the submission of learned counsel for the respondents that since stay has been granted in one of the matters i.e. in the matter of Jairman Luniwal (supra) by the Hon'ble High Court of Rajasthan, this Tribunal cannot pass similar orders in the present matter as have already been passed in other connected matters and also when this is only an interim order passed by the Hon'ble High Court of Rajasthan in a particular case.
17. In view of the observations and discussions made herein-above, the following orders are passed: -
"(i). The impugned order dated 23.08.2011 (Annexure A/1) qua the applicant is hereby quashed and aside. Accordingly, respondents are directed to hold good Memo dated 18.03.2010 (Annexure A/2) qua the applicant as regards to benefits of first up-gradation instead of second up-gradation with all consequential benefits.39 OA No. 717/2014
(ii). The respondents are further directed to allow the benefits of second financial up-
gradation to the applicant in the Grade Pay of Rs. 4200/- after completion of 20 years of service i.e. 25.03.2015 with all consequential benefits.
(iii). This exercise shall be carried out by the respondents within a period of three months from the date of receipt of certified copy of this order."
18. With these observations and directions, the present Original Application is hereby allowed. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/