Central Administrative Tribunal - Ernakulam
T.K.Sahadevan vs Union Of India Represented By Its ... on 17 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No.48 /2012
Monday, this the 17th day of September, 2012.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K.NOORJEHAN, ADMINISTRATIVE MEMBER
T.K.Sahadevan,
Skipper(Retd.), Fishery Survey of India,
Thayattuparambil, Sree Valsom,
Mananttuparambu Road,
Nayarambalam.P.O.
Ernakulam District-682 509. - Applicant
(By Advocate Mr C.S.G.Nair)
v.
1. Union of India represented by its Secretary,
Ministry of Agriculture & Animal Husbandry,
New Delhi-110 001.
2. Director General,
Fishery Survey of India,
Botawala Chambers,
Sir P.M.Road, Mumbai-400 001.
3. Zonal Director,
Fishery Survey of India,
Mormugoa, Goa. - Respondents
(By Advocate Mr George Joseph, ACGSC)
This application having been finally heard on 13.09.2012, the Tribunal on
17.09.2012 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The controversy in this case is that the applicant claims his ad hoc period to be included for working out the period of thirty years for the purpose of enjoying the 3rd Financial Upgradation under the MACP Scheme. The applicant has also claimed that for considering the case for grant of MACP, no bench mark is provided for in respect of isolated posts and the post of Skipper is one of the isolated posts. The justification he gives include the following:-
(a) That he had been granted the first increment as on 01-02-1989 i.e. 12 months after the initial ad hoc appointment as Boson.
(b) His qualifying service for pension purpose has been reckoned as 30 years, 6 months reckoning from the date of his initial ad hoc appointment.
(c) The case is identical to one in OA No. 610 of 2006.
2. The following dates (plus the legal position which is discussed hereunder) would suffice for deciding the issue:
(a) Date of ad hoc appointment of the applicant as Boson : 27-02-1979.
(b) Date of regular appointment in the said post : 01-12-1979
(c) Date of first promotion as Mate Grade 1 : 01-12-2000
(d) Date of second ACP on completion of 24 years service: 01-12-2003
(e) Date of superannuation : 31-08-2009
3. The contention of the Respondents is that the period of thirty years should be of regular service and the relevant rule vide para 9 of the order dated 19-05-2009 whereby the scheme of MACP has been introduced defines what is regular service.
4. Counsel for the applicant argued that when the ad hoc service has been counted for increment purpose and for working out qualifying service for the purposes of pension, there is no justification in not taking into account the said ad hoc service for the purpose of financial upgradation.
5. Counsel for the respondents submitted that ad hoc service has been specifically stated as one not to be counted in para 9 of the order governing the grant of MACP.
6. Arguments have been heard and documents perused. First as to OA No. 610 of 2010. This relates to the case of an individual who had been directly recruited as a Skipper and as there is no higher post in the hierarchy, the Tribunal had held in that case that it is not possible to adopt the Bench mark in such cases as the post has to be treated only as isolated post. The said case does not relate to ad hoc service being treated as regular for MACP. The case would come to the rescue of the applicant only at a situation where the ad hoc service is held to be qualified for working out the period of 10/20/30 years for the purpose of grant of financial upgradation under the MACP Scheme and the applicant is eligible to be considered for grant of 3rd MACP.
7. It is seen from the pleadings that the applicant was granted the 2nd ACP in 2006 with retrospective effect from 01-12-2003, which meant that at that time, the period of regular service has been calculated not from February 1979 when the applicant was appointed on ad hoc bases but from the date he had been appointed on regular basis. The applicant did not at that time question the same.
8. In so far as the rule position is concerned, para 9 reads as under:-
"9. Regular service for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on ad hoc/contract basis before regular appointment or pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post." (emphasis supplied)
9. The applicant has not challenged the above part of the scheme. It is trite law that entitlement to any benefit or concession in every case is considered only on the basis of the rule on the subject. When the rule has not been challenged and unless the rule is struck down as unconstitutional or legally unsustainable, there is no question of ignoring the provisions of the Rules.
10. The claim of the applicant is based on the fact that while working out the annual increment, his service on ad hoc basis has been considered and that while working out the qualifying service, the same has been included. In so far as grant of increment is concerned, the same is guided by the provisions under FR. Annual increment is admissible also to temporary or officiating government servants. Even broken periods at different spells would have to be counted for working out the period of one year for the purpose of grant of increment. In so far as qualifying service is concerned, the same is guided by the provisions of CCS(Pension) Rules, 1972 and under Rule 13 thereof, qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Thus, it is under the relevant provisions of the Rules that the applicant's ad hoc services have been counted for increment and for qualifying services. Similarly, in so far as MACP is concerned, the conditions prescribed in the scheme would govern the field and as ad hoc service has been specifically excluded from reckoning the period of 10 or 20 or 30 years of service, the applicant's claim cannot be accepted. The OA thus is devoid of merits and is, therefore, dismissed. No costs.
K.NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs