Central Administrative Tribunal - Madras
V Swaminathan vs Dopt on 13 June, 2024
1 OA No. 1269/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01269/2016
Dated this, the 13th day of June, Two Thousand & Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
HON'BLE MR. M. SWAMINATHAN, Member (J)
V.Swaminathan, S/o. G. Venkatachalam,
No. 1, Arumuga Chetty Street,
C.N.K.Road, Chepauk, Chennai. .....Applicant
By Advocate M/s. P.Ulaganathan
Vs.
1.Union of India rep by,
The Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pension,
North Block, New Delhi 110001.
2.The Principal Registrar,
Central Administrative Tribunal,
Principal Bench,
Copernicus Marg,
New Delhi 110001.
3.The Deputy Registrar,
Central Administrative Tribunal,
Chennai Bench,
Addl. City Civil Court Building,
High Court Campus, Chennai 600104. ....Respondents
By Advocate Mr. Su. Srinivasan, SCGSC
2 OA No. 1269/2016
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following relief:-
"to call for the records on the file of the 3rd respondent in connection with the order No.A20017/3/91 Admn.VLO.II, dated 28.07.2016 passed by her and quash the same and direct the respondents to grant the applicant the 3rd financial upgradation on completion of 30 years of service under MACP Scheme i.e., 23.09.2011 or issue any other direction, order or grant any other relief as this Hon'ble Tribunal deems fit. in the circumstances of the case and thus render justice."
2. The facts of the case as furnished by the Applicant, are summarised below:-
2.1. The applicant submits that he was appointed as a Lower Division Clerk (L.D.C.) in the Central Secretariat Clerical Services by direct recruitment, on merit, on 23.09.1981, on the basis of the open competitive examination, held by the Staff Selection Commission (S.S.C.). The applicant came to the respondent Tribunal as L.D.C., initially on deputation, followed by absorption from 1.11.1989. The applicant, while working in the office of the respondent, was promoted as Upper Division Clerk (U.D.C.), with effect from 1.10.1990. The applicant submits that consequent upon the introduction of the Assured Career Progression Scheme, (ACP), by the respondent with effect from 9.8.1999, the applicant was granted the Second Financial Upgradation under the ACP Scheme, on 23.9.2005, in the pay 3 OA No. 1269/2016 scale of Rs.5500-175-9000/-, on completion of 24 years of service, by the order, dated 9.3.2007, passed by the third respondent. Subsequently, he refused an offer of promotion as Assistant on 10.02.2009 as it involved his posting at Jabalpur Bench, outside his native State, and owing to his personal inconvenience and his family circumstances. As a result, he was debarred from further promotion for one year, with effect from 13.02.2009.
The applicant submits that the said ACP Scheme came to be substituted by a Modified Assured Career Progression, MACP, by the O.M, dated 19.05.2009, issued by the first Respondent with retrospective effect from 1.09.2008. As per the O.M. dated 19.05.2009, an employee who is stagnating in the same post before promotion is eligible for consideration for non-financial upgradation on completion of 10, 20 and 30 years of regular services from the date of entry into Government Service and there shall be a financial upgradation if he worked in the grade continuously without promotion for 10 years. The applicant submits that he completed 30 years of service on 23.09.2011. However, he was not granted the benefit. 2.2. The applicant submits that in O.A. No. 996 of 2016, this Tribunal, by its order, dated 28.06.2016, directed the applicant to make a representation and, thereafter, the respondent to pass a speaking within a period of two months from the date of receipt of a copy of that order. The applicant made a representation to the respondent and order, dt. 27.12.2016, was passed, 4 OA No. 1269/2016 stating that the financial upgradation 3rd MACP, which was due to the applicant on 23.09.2011, was deferred till 28.09.2015, that is, the date on which he agreed and accepted the promotion again, in terms of para 25 of the MACP Scheme. The relevant portion is extracted below:
"If a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal."
2.3. Aggrieved by the order, the applicant has filed the present O.A.
3. We have heard the learned counsel for the applicant, Mr. P. Ulaganathan, and the learned counsel for the respondent, Mr. Su. Srinivasan, SCGSC, and perused the pleadings and the materials placed on record. We have also gone through the judgements cited by the applicant. 4.1. When the matter was taken up for hearing, the learned counsel for the applicant cited the decision, dated 24.03.2015, of CAT, Ernakulam Bench, in O.A. No. 252 of 2013. The relevant portion is extracted below, 5 OA No. 1269/2016 "9. In our view, there is a very significant aspect in this case. Annexure A-1 O.M dated 19.05.2009 which introduced the MACP for Central Government civilian employees was brought into force the scheme retrospectively with effect from 1.09.2008. The employees who got financial upgradation after 1.09.2008 i.e, the date on which the MACP was introduced- would suffer monetary loss if the 2nd ACP to which they have acquired a vested right under the old scheme is denied on the premises that by that time the MACP has been brought into effect. We are of the view that in such cases the retrospective application of the Annexure A-1, O.M taking away the vested rights of the applicants under the ACP Scheme will certainly be contrary to the law laid down by the Apex Court that amendments in the rules with retrospective effect affecting prejudicially the persons who had acquired rights are ultra-vires of the Constitution (see Ex. Capt. K.C. Arora and another v. State of Haryana and others 1984 (2) SLR 97). As observed by the Madras Bench of the Tribunal in O.A. No. 818/2011, the applicants who have completed 24 years of service becoming eligible for the 2nd ACP by April, 2009 would have been got such benefits had their cases been subjected to the Screening Committee within time."
4.2. The learned counsel for the applicant further drew our attention to the decision of the Hon'ble Madras High Court in Writ Petition Nos. 4971 to 4975 and 20488 of 2018 vide order, dated 18.3.2022, of which the relevant portions are extracted below:
"b...........
A reading of the above judgments would show that the expression "has been" is capable of being understood to cover events after the operation of the statute and that it is a present perfect continuous tense and thus looks to a present event. Thus, by employing the expression "has been" in Para 25 of MACPS, the executive only intended to cover acts of refusal of promotion after the introduction of MACPS.
c. A reading of Para 25 of MACPS dated 18.09.2009 as a whole, would also suggest that it intended to cover only acts of refusal of promotion post introduction of MACPS, for while providing the consequence for refusal it not only provides that refusal would result in denial until promotion is accepted but also, provides that the second and third upgradation would be deferred. Thus, the refusal is intended to cast its shadow on all three upgradations which again 6 OA No. 1269/2016 appears to be indicative of the fact that Para 25 of MACPS was only intended to cover refusal of promotion post introduction of MACPS.
d. The act of refusal of promotion occurred prior to introduction of MACPS and the consequence was provided in the orders dated 16.04.2008 and 23.07.2008. Thus, to construe the above act as attracting the restriction under Para 25 of MACPS dated 18.09.2009 would result in the act of refusal of promotion resulting in two adverse consequences (double jeopardy), one under the earlier orders dated 16.04.2008 and 23.07.2008 and the other under Para 25 of MACPS dated 18.09.2009, which we think is inequitable, if not obnoxious.
e. MACPS being a beneficial scheme and a construction that would result in hardship must be eschewed. MACPS is in the nature of incentive scheme, by which, employees unable to avail of adequate promotional opportunities gets some relief from stagnation in the form of financial benefits. MACPS is intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion. The offers of promotion were financially detrimental to the respondents and therefore they had not opted to avail the promotion offered prior to introduction of MACPS.
The construction that the consequences provided under MACPS for refusal to accept promotion even prior to its introduction would take away and defeat the very object of MACPS. More so, the employee who has been stagnated would now also have to suffer the consequence for his act of refusal which he was not even aware of at the time of occurrence of the act of refusal of promotion. In other words, it amounts to changing the rules of the game, after the game is played, inasmuch as the respondents had already suffered the consequence for refusal of promotion in terms of orders dated 16.04.2008 and 23.07.2008, causes serious hardship and produces results that is inequitable and unfair, which is impermissible. (Shishir Realty Private Limited reported in (2021) SCC Online SC 1141) "
xxxx "Where the language of a statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.
7 OA No. 1269/2016
G. Conclusion :
The M/ACPS having been brought into force from 01.09.2008, the consequence for a refusal which is provided therein can get attracted only in respect of refusal to promotion made after the implementation of the MACPS and not prior thereto."
5. The learned counsel for the respondent relied upon the detailed reply filed in the present case, but could not put forth any decision to the contrary. Thus, we find that the issue is no longer res integra.
6. For the reasons stated above, we are of the considered opinion that the applicant has made out a case. In the result, the O.A. is allowed. We, therefore, quash the impugned order, dt. 28.07.2016, and, accordingly, it is set aside. The applicant is entitled to the 3rd financial upgradation with effect from 23.09.2011 and, hence, all the consequential benefits should be granted to him. The above exercise shall be completed by the competent authority among the respondents within a period of three months from the date of receipt of this order.
7. No order as to costs.
(M. Swaminathan) (Varun Sindhu Kul Kaumudi)
Member (J) Member (A)
13.06.2024
SKSI