Central Administrative Tribunal - Ernakulam
K. Rajasenan vs Union Of India on 28 June, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 932 of 2011
Thursday, this the 28th day of June, 2012
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
K. Rajasenan, aged 57 years,
S/o. K.P. Karunakaran Pillai,
Sr. Section Officer/Accounts Department/
Southern Railway/Trivandrum Division,
Residing at "Krishnaragam",
Pattathanam P.O., Kollam-691 021. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
V e r s u s
1. Union of India, represented by the
General Manager, Southern Railway,
Headquarters Office, Park Town PO,
Chennai-600 003.
2. The Financial Adviser & Chief Accounts Officer,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai-600 003.
3. The Financial Commissioner (Railways),
Ministry of Railways, Rail Mantralaya,
(Rail Bhavan), New Delhi-110 001. ..... Respondents
(By Advocate - Mr. Thomas Mathew Nellimoottil)
This application having been heard on 28.06.2012, the Tribunal on the
same day delivered the following:
O R D E R
By Hon'ble Mr. Justice P.R. Raman, Judicial Member-
The applicant who is presently working as Senior Section Officer in the Accounts Department of Southern Railway, Trivandrum in PB-2 with Grade Pay of Rs. 4,800/- is aggrieved by refusal on the part of the respondents to grant him the benefit of 3rd financial up-gradation under the Modified Assured Career Progression Scheme (MACP in short). The copy of the letter rejecting the applicant's grievance is produced as Annexure A1 dated 11.4.2001. It is stated in that the employee has gained three promotions as Grade-I at three different new organizations where he has worked (by gettng transfer on his own request). Further, the employee has been promoted as SO (A), which is his 4th promotion. Since the employee has gone on unilateral transfer to a lower post/lower scale to the new organizations and has availed four promotions he is not entitled for any financial up-gradation under MACP vide paragraph 24 of the Railway Board's letter. Paragraph 24 refers to therein is paragraphs 24 of Annexure A2 which is the copy of the MACP scheme. Paragraph 24 is reproduced below:-
"24. In case, an employee after getting promotion/ACP seeks unilateral transfer on a lower post or lower scale, he will be entitled only for second and third financial upgradation on completion of 20/30 years of regular service under the MACPs, as the case may be, from the date of his initial appointment to the post in the new organization."
2. This paragraph 24 further underwent an amendment which is contained in Annexure A3 dated 28.12.2010. Paragraph 2 of the said order reads as hereunder:-
"2. During the Joint Committee meeting it was pointed out by the Staff Side that the word New Organization of the last line of Para-24 of annexure of MACPS dated 10.6.2009 was not in committee with the spirit of the Scheme. The issue has been examined and it is clarified that in case of transfer including unilateral transfer on request, regular service rendered in previous organization/Office shall be counted along with the regular service in the new organization/office for the purpose of getting financial upgradation under the MACPS. However, financial upgradation under the MACPS shall be allowed in the immediate next higher grade pay in the hierarchy of revised pay bands as given in Railway services (Revised Pay) Rules, 2008. Para-24 of MACPS stands amended to this extent."
3. In view of the amendment made in paragraph 2 what is relevant for our purpose is paragraph 24 in Annexure A2 as amended by paragraph 2 in Annexure A3. According to the applicant he was earlier a appointed as a Clerk in Grade-II on 17.9.190 in Hubli Division in the scale of pay of Rs. 260-400/-. He was temporarily promoted to Clerk Grade-I with effect from 7.7.1982 in the scale of Rs. 330-560/-. He was thereafter transferred to Tiruchirapalli Division on request. Accordingly he was transferred as junior most in Clerk Grade-II and his pay was fixed in the scale of pay of Rs. 260- 400/-. Subsequently he got an ad hoc promotion to the Clerk Grade-I and while working so he was again transferred to Trivandrum on his request and joined at Trivandrum Division on 3.10.1986. He was posted in Grade-II as junior most. While working so he was promoted on regular basis to Clerk Grade-I on 1.6.1988 and thereafter promoted as Section Officer which post he is holding now. The pay scale of the Section Officer underwent change with a result of the Vth CPC by which scale of pay was Rs. 6500-10500/- and on implementation of the VIth CPC the scale was again amended as PB-2 with Grade Pay of Rs. 4800/-. According to the applicant in view of the amendment made in paragraph 24 by Annexure A3 paragraph 2 referred to above he is entitled to the MACP benefits irrespective of his temporary/ad hoc promotions earned earlier. Further he is also entitled to reckon the period served by him in the relevant grade to which he is seeking promotion.
4. In the reply statement filed by respondents in paragraph 3 & 6 it is stated as follows:-
"3. It is respectfully submitted that as per Para 24 of MACP, in case an employee after getting promotion/ACP seeks unilateral transfer to a lower post or a lower scale, he will be entitled for second and third financial upgradation on completion of 20/30 years of regular service under the MACPS as the case may be, from the date of his initial appointment to the post in the new Organization. Further Railway Board in clarification to Para 24 of MACP Scheme vide letter No. PC V/2009/ACP dt. 28.12.2010 has clarified that the financial upgradation shall be only allowed in the immediate higher grade pay in the hierarchy of revised pay band as given in Railway service (Revised Pay) Rules, 2008 duly counting the regular service rendered in previous organization/office.
6. In the interest of the employees who have come on one way unilateral transfer on bottom most seniority to the appointment grade from one Railway to another / one Division to another, Railway Board has been addressed vide Para 2 of FA&CAO/MAS Lr. No. P.535/HQA/MACP/Admn/Admn/vol.I dated 11.10.2010. However, Railway Board vide Lt. NO. PC-V/2009/ACP/9/SR dated 29.10.2010 has stated that these issues are the agenda items of Joint Committee constituted by Department of Personnel and Training for examining the anomalies pertaining to MACP scheme and the decision would be communicated later. True copy of the letter dated 11.1.2010 is produced herewith and marked as Annexure R1. True copy of the letter dated 29.10.2011 is produced herewith and marked as Annexure R2."
5. Annexure R1 is the clarification sought on the relevant point. Originally they have not answered in Annexure R2 as the matter was under
consideration only.
6. It is by way of clarification that Annexure A3 has been issued therefore, the points to which clarification is sought for is answered by amendment brought out in Annexure A3 paragraph 2. He also placed reliance on a decision of the Hon'ble High Court in WP(C) Nos. 34884 of 2007 and connected cases rendered on 20th March, 2012.
7. We have heard both sides. Admittedly the applicant had been promoted only on a temporary basis or on ad hoc basis as the case may be. Subsequently, he lost the benefit of the promotion when he was unilaterally transferred to another divisions to the lower grade. Merely because he was promoted earlier will not stand in the way of his getting the benefit of MACP since paragraph 24 itself speaks of the promotion and it says that the promotion shall be ignored for the purpose of MACP benefits. The next question is as to whether he is entitled to reckon the period served by him in Clerk Grade-II for the purpose of MACP benefit. Though, earlier the view was that such length of service will not be counted for the purpose of MACP benefit but now the matter is made clear by amendment brought in paragraph 24 of Annexure A2 by paragraph 2 in Annexure A3. The Hon'ble High Court of Kerala in WP No. 34884 of 2007 and connected matters have also considered the similar situation whereby the decision of this Court rendered in OA No. 138 of 2009 and connected cases was upheld and Writ Petitions were dismissed. This Tribunal in its order dated 20th January, 2010 in OA No. 138 of 2009 allowed the OA following the decision rendered in similar case i.e. OA No. 438 of 2008. What was followed in OA No. 438 of 2008 was reiterated in paragraph 8 of the order in OA No. 138 of 2009 which is as follows:-
"8. In OA No. 438/2008, this Tribunal has held as under:-
"15. Arguments were heard and documents perused. Let the case of applicant in OA No. 438/08 is taken up for consideration. The applicant in that O.A. was appointed in 1982 at SCR/UBL in the scale 330 - 560/1200- 204-/4500 - 7000. In 1983 he had been promoted to the next higher grade of Rs 425-640/1400-2300/5000 - 8000. At that time, he would have earned one notional increment at the lower post in accordance with the provisions of FR 22-C/22(1)(a)(i). At the time when he was transferred to PGT division and in the lower pay scale of Rs 4500 - 7000/- his pay prior to transfer (which included the notional increment drawn at the time of promotion to the higher grade in the previous division) had been protected. In Palghat division also, the applicant had earned the promotion in the grade of Rs 5000 - 8000 wherein also, in all probability, he would have earned another notional increment at the lower grade before his pay is fixed in the higher grade. This increment is also carried to up to the time he is transferred to Trivandrum Division, wherein though placed in the scale of pay of Rs 4,500 - 7000 he would have his pay protected. In other words, for two promotions two notional increments were added to his pay. Now, a comparison of an Asst. Station Master at Trivandrum Division appointed in 1982 who has no promotion till 1999 with that of the applicant, would reveal a difference in pay drawn by the former and the applicant, the latter drawing more because of the two notional increments and difference in the rates of increments in the two scales, if any. Under these circumstances, if the ACP is given in the grade of 5000 - 8000 after completion of 12 years of service or the date of introduction of the ACP scheme whichever is later and the second ACP in the grade of Rs 5500 - 9000 on the basis of the pay drawn by him at the relevant dates, the same would be more than that which would have been drawn by the other individual who had been appointed at Trivandrum Division itself. It is exactly this kind of unintended benefit, which the counsel for the respondent had pointed out, of course, without specifically mentioning the above comparison. It is for this reason that the respondents contend that the applicants are not entitled to any financial benefits as they had already been given promotions when they were in the earlier divisions and Annexure A-3 illustration applies.
16. We are not able to subscribe to the views of the respondents in this regard that just because the applicants had been granted one or two notional increments earlier at the time of their promotion in the previous Division, they should be denied the benefit of ACP scheme, especially when clause 14 of the scheme extracted in para 5 above as well as clarification vide Annexure A-2 specifically provide for the grant of the benefits to such employees. In addition, order dated 27th February 2007 in OA No. 809/2005, relied upon by the learned counsel for the applicants, has clearly held that the applicants therein (who are similarly situated as those herein) are entitled to the ACP benefits. Denial of ACP for the reason contended by the respondents would be violative of the provisions of Art. 16 of the Constitution. To that extent we respectfully agree with the above order of the Tribunal and hold that the situation in which the applicants stand, would not dis-entitle them for the financial benefits available under the ACP scheme. We may supplement the reason that as on date they are in the same pay scale as they were at the time of their initial recruitment, though in the intermediate stages they would have been promoted. Their request for transfer was at the time when they were in the same grade of Rs 4500 - 7000. But at the same time, care has to be taken that there is no unintended benefits that accrue to the applicants by fixing the pay of the applicants in the higher pay scale as they draw at the time of such up-gradation. Their pay drawn as on date having the element of one or two notional increments granted to them at the time of their earlier promotion, fixing the pay without discounting the same would lead to a double benefit, as the respondents rightly contend. Thus, while the applicants should be declared as entitled to the benefits of ACP scheme, in so far as fixation of pay is concerned, the pay fixation should not take into account the notional increment allowed to them on their promotion in the previous divisions.
17. Thus, while granting the ACP benefits, the above discounting of the notional increment(s) earned would ensure that they are not given the unintended benefits
18. For working out the pay on 1st and 2nd ACP, therefore, the cases are to be divided as under:-
(a)Where no promotion has been granted to the applicants in the new Division: For affording the first financial up-gradation from the date of completion of 12 years reckoned from the date of initial appointment or 01-
10-1999 whichever is later, their pay in the grade of Rs 330-560/1400 - 2300/4500 - 7000 from initial date of appointment till the date of the first ACP should be worked out and the same would be taken into account to fix their pay in accordance with the ACP Scheme in the grade of Rs 5000 - 8000. In case, such a pay so fixed happens to be less than the pay actually drawn on that date, the difference shall be treated as personal pay absorbable in future increments. With the annual increments attached to the pay scale of Rs 5000 - 8000 added for subsequent years, grant of second ACP in the scale of Rs 5500 - 9000, shall be based on the pay as on completion of 24 years of service from the initial date of appointment and by any chance, if the pay so arrived happens to be less than the pay drawn on that date, then, the difference shall be treated as personal pay to be absorbed in the future increments.
(b) Where one promotion in the present division is granted: The second ACP shall be from the date the applicants complete 24 years of service reckoned from the date of initial appointment. The pay that would be fixed should be -
(i) if in the past, notional increments at the lower stage had been already granted twice (or even more than two) then, there shall be no further notional increment under FR 22(1)(a)(i) at the time of fixation of pay in the scale of Rs 5,500 - 9000.
(ii)Where so far only one notional increment had been granted in the past, while fixing the pay at the time of second financial up-gradation, one notional increment at the lower stage has to be granted.
19. All the O.As are allowed to the above extent. Respondents shall effect grant of first/second ACP admissible to the applicants on the basis of the above and work out the pay and allowances accordingly and pay the arrears arising out of the same."
8. Thus for granting the MACP benefits to the applicant the temporary or ad hoc promotions granted to him has to be ignored. He is also entitled to reckon the length of service rendered by him before transfer for the purpose of calculating the total number of years of service rendered by him for getting the MACP benefit.
9. In the result this Original Application is allowed. Annexure A-1 is quashed and it is declared that the applicant is entitled for the financial up- gradation under the MACP with effect from 1.9.2008 in PB2 with Grade Pay of Rs. 5400/-. The consequential benefits shall be calculated and paid to the applicant within a reasonable time. However, in the circumstances of the case there is no order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"