Central Administrative Tribunal - Allahabad
Maqbool Ahmad Khan vs Chief Post Master General Up Circle on 3 January, 2024
OA No. 330/00489 of 2014
(Reserved on 08.12.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 03rd day of January, 2024
Original Application No. 330/00489 of 2014
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Maqbool Ahmad Khan aged about 57 years, R/o late M.S. Khan, R/o
Village Pankhobari, Post Bankati, District Basti, presently posted as
Sub Post Master, Mahuli, District -Sant Kabir Nagar
....Applicant
By Advocate: Shri Ashish Srivastava
VERSUS
1. Union of India, through Ministry of Post & Telecommunication
Department of Post, New Delhi
2. Chief Post Master General, U.P. Circle, Lucknow
3. Director, Postal Accounts, U.P. Circle, Lucknow
4. Superintendent of Post Offices, Basti
...... Respondents
By Advocate: Shri M.K. Sharma
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri Ashish Srivastava, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents were present at the time of hearing of the present case.Page 1 of 12
OA No. 330/00489 of 2014
2. By means of this OA, the applicant has sought the following reliefs :
I. This Hon'ble Tribunal may be pleased to quash the impugned Audit Objection and order dated 15.02.2012 passed by respondent No.3 as well as order dated 09.04.2013 passed by the respondent No.2 (Annexure-1, A-2 & A-3 to this Original Application.
II. This Hon'ble Tribunal may be pleased to direct the respondents to restore the benefit of 2nd MACP to the applicant from the due date i.e., from the date it is withdrawn, with all consequential benefits.
III. This Hon'ble Tribunal may be pleased to direct the respondents to refund the recovered amount pursuant to the impugned orders along with 12 % interest thereupon.
IV. This Hon'ble Tribunal may be pleased to direct the respondents to correct the seniority of the applicant in the Postal Assistant Cadre from 1983 when he was passed the examination along with other candidates.
V. Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
VI. Award the costs of the original applicant in favour of the applicant.
3. The brief facts of the case are that the applicant was appointed as Packer Group 'D' on 07.06.1980 and was posted in the Army Postal Service, Lucknow. In the year, 1983, he appeared in the examination in the P.A. Cadre, conducted by the respondents, but the results were not declared. In the year 1985, the applicant again appeared and passed in the examination of Postman conducted by the official respondents and vide order dated 25.09.1985 he was posted as Postman in the Army Postal Service. In the year 1987, the applicant laid his hand the letter issued from Page 2 of 12 OA No. 330/00489 of 2014 the office of the Postmaster General Lucknow Circle for conducting the examination Postal Assistant Cadre. In view thereof, applicant again furnished his application for appearing in the said examination. However, before the applicant could appear in the said examination, the office of the respondent No.2 informed the Army Postal Service Circle that the applicant has already been passed the exam of Postal Assistant Cadre held in the year 1983. Consequently vide order dated 26.01.1987, the applicant was allowed posting as Postal Assistant in the Army Postal service. After the appointment of the applicant in Postal Assistant Cadre, he was allowed first upgradation in the pay scale of Rs.4500-125-7000 (GP) 2800 vide order No. B-4/LSG/TBOP/CH4 dated 21.03.2003 issued by the respondent No.3 in view of one time bound promotion scheme, which is admissible to the Postal Servants who has not acquired any promotion within a period of 16 years.
4. It is further the case of the applicant that under 6th pay Commission, MACP scheme for three financial upgradation on completion of 10, 20 and 30 years of service was introduced and implemented by the respondents vide letter 18.09.2009. In view thereof, the respondent No.3 vide order dated 20.01.2010 allowed the benefit of 2nd MACP from 01.09.2008 to the applicant as he joined the Postal Assistant Cadre in 1987, completed 20 years of service in this cadre and could have acquired only one promotion by way of OTBP in 2003. Accordingly, pay of the applicant was fixed and arrears of difference of pay was also paid to him. Surprisingly, the pay of the applicant was reduced from Rs. 17080/- to Rs. 15120/- (GP 4200- 2800) from the month of January 2011 and the respondent No.3 started recovery of Rs. 5000/- (Five Thousand) from the pay and allowances of the applicant. On inquiry, the applicant learnt that the aforesaid reduction in pay and recovery has been made in view of the audit objection raised by the office of the respondent No.3. He received the copy of said Audit Objection under RTI Act, wherein it was found that the benefit of 2nd MACP allowed to the applicant has been withdrawn on the alleged ground Page 3 of 12 OA No. 330/00489 of 2014 that the applicant has already availed three promotions and as such he is not entitled for 2nd MACP benefits w.e.f. 01.09.2008 allowed to him pursuant to the order dated 29.01.2010 passed by the respondent No.3. Aggrieved by the same, he preferred a representation before the respondent No.3 through proper channel, but the same was rejected vide impugned order dated 15.02.2012. Again aggrieved by the action of the respondent No.3, the applicant preferred a representation before the Postmaster General, Gorakhpur Region Gorakhpur, but the same was also rejected vide order dated 09.04.2013. Hence, the applicant has been constrained to knock the door of this Tribunal.
5. On the other hand, counter-affidavit has been filed by the respondents, wherein it has been stated that the applicant was specially recruited as class-IV (packer) army Postal service with effect from 07.06.1980, in terms of DG P& T New Delhi Letter No. B. 7/2/79-SPM.II dated 27.02.1980 from Lucknow Division and was allotted to ASPOS (West) Sub Division Lucknow vide Sr. Supdt. of Post offices, Lucknow Division Memo no. B.8/2/8/class.IV dated 06.08.1983. The applicant had been appointed in O.P. capacity with effect from 7.6.1983 vide ASPOs (west) Sub Division Lucknow Memo No. B.M.A.Khan dated 23.11.1984 and worked in this cadre upto 12.05.1986. Further, the applicant had been approved for promotion to the cadre of Postman vide Senior Superintendent Lucknow Division Memo No. SSP/Con/B.8/2/3/84 dated 25.09.1985. Based on the passing of postman examination, the applicant was promoted to the rank of Naik (Field promotion) in field with effect from 13.05.1986 from that date he was drawing pay as postman till 25.01.1987. The applicant had further been declared successful in examination for promotion of lower grade officials to the clerks cadre vide PMG UP Circle Lucknow Letter no. Rectt/M.75/ surplus /84/5 dated 03.03.1986 and was allotted to Basti Postal Division as surplus qualified candidate and based on passing Postal Assistant Examination, the applicant was promoted to the rank of Warrant Officer (field promotion) with effect from 26.01.1987 and from that Page 4 of 12 OA No. 330/00489 of 2014 date he is drawing the pay of postal Assistant. After being discharged from Army Postal Service, the applicant joined in Basti Postal Division as postal Assistant, Khalilabad Sub post office on 13.07.1994. After completion of 16 years continuous satisfactory service in Postal Assistant cadre, the applicant had been ordered be to be promoted to the next higher scale of pay of Rs. 4500-125- 7000/- under the time bound one promotion scheme with effect from 07.02.2003 vide SPOs Basti Memo No.B.4/LSG/TBOP/Ch.IV dated 21.03.2003.
6. It is further stated that in the meantime, after implementation 6th Pay commission the scheme of MACP was introduced w.e.f. 01.09.2008 which provides 3 financial up-gradation in pay to official on completion of 10 years, 20 years & 30 years service. If any official who has already obtained 3 promotions, this scheme was not available for them. But, after completion of 20 years service in Postal Assistant cadre, the applicant had been granted 2nd financial up- gradation of pay with effect from 01.09.2008 in the pay band Rs. 5200-20200 from grade pay Rs. 2800/- to grade pay 4200/- vide SPOs Basti Memo No. B. 4/2nd MACP/20 years/09-10 dated 20.01.2010 and 22.02.2010 under MACP scheme introduced vide DG post New Delhi commn. No. 4- 7 (MACPS/2009-PCC dated 18.09.2009. Due to above financial upgradation of pay, the pay of the applicant had been fixed in grade pay of Rs. 4200/- in pay band of Rs. 5200-20200 as Rs. 16080 against actual due Rs. 14250/- with effect from 01.09.2008 and onwards. Accordingly, the Accounts Officer Internal Audit 0/o Director of Accounts (Postal) UP Circle Lucknow carried out inspection of Basti Head Post Office during year 2010 during period 9.11.2010 to 13.11.2010, 18.11.2010 to 20.11.2010 and 22.11.2010 to 24.11.2010 and during checking of service book of applicant noticed that the applicant had already got three promotion upgradation and therefore he was not entitled for any promotion under MACP scheme as such 2nd financial upgradation of pay awarded vide order No.B.4/2nd MACP /20 years/09-10 dtd.20.10.2010 was not admissible and in these Page 5 of 12 OA No. 330/00489 of 2014 circumstances, Officers of Audit calculated the over payment Rs.71029/-due to awarding 2nd financial upgradation of pay of applicant and ordered to recover from the applicant and also ordered to restrict his pay and allowances as to what he was drawing without financial upgradation of pay under MACP Scheme. It was further directed to cancel the order dtd. 20.01.2010 by which 2nd MACP was granted.
7. In the light of above instruction, the over payment amounting to Rs.71029/- has been recovered from the applicant from his pay of June 2011 to April 2012 @ Rs.7000/- per month and last installment Rs.1029/-. The applicant submitted representation to Director of Accounts (Postal) UP Circle Lucknow against the order of recovery of over payment calculated rejected by Internal Audit, which has been vide letter 1/Repre/M.A.Khan/Basti/2010 No.1A-1/P- D-822 dtd.06.02.2012. The applicant further submitted representation dtd 01.01.2013 to the Postmaster General Gorakhpur Region Gorakhpur which has also been rejected vide Memo No. RPG/Staff/XA- 11/33/Basti/MACP dtd.09.04.2013. The applicant had been appointed as Group 'D' post with effect from 07.06.1980 and was promoted as Postman with effect from 13.05.1986 and was further promoted in PA Cadre with effect from 26.01.1987. He was promoted in TBOP scheme with effect from 07.02.2003 and as such, he has already got three promotion and therefore MACP promotion given to him is not admissible. Rightly, the respondents have passed the impugned orders.
8. In reply, the applicant has filed rejoinder affidavit, wherein it has been stated that the applicant was initially appointed as Packer against Group 'D' post. In the year 1983, the applicant appeared in the P.A. exam. The result of the said exam was not declared and meanwhile, the applicant in the year, 1985 appeared in the examination of postman consequently, the applicant was promoted as Postman. As a matter of fact, in the year 1987, the applicant again applied against the vacancy notified for Postal Assistant. On verification of the form of the applicant, it was found Page 6 of 12 OA No. 330/00489 of 2014 that the applicant was earlier appeared in the said examination and had qualified the same. The applicant, in view of the aforesaid facts and circumstances was allowed promotion to the Postal Assistant on 26.01.1987. The aforesaid promotion acquired by the applicant was on the basis of passing LDCE, hence it was not liable to be calculated as promotion in terms of the provisions of MACPs. The applicant after completing the 16 years of regular service in P.A. cadre was allowed first promotion under OTBP and the second promotion under MACPs from GP 2800 to GP 4200/-. The impugned order shows that the three promotions of the applicant to the post of postman, PA Cadre and TBOP, he has already availed, therefore he is not entitled to be promoted in Grade Pay of Rs.4200/-. However, this Hon'ble Court in catena of cases had held that the higher pay scale acquired after passing the LDCE shall not be calculated while considering the promotion under MACPS.
9. We have heard learned counsel for the parties.
10. Shri Ashish Srivastava, learned counsel appearing on behalf of the applicant submits that the benefit of MACP allowed to the applicant has been withdrawn without giving him any opportunity of hearing. The applicant has appointed in the Postal Assistant Cadre after passing the examination held in 1983 and after joining in this cadre the applicant was allowed only one financial upgradation under ОТВР Scheme on completion of 16 years of service in the year 2003 and as such, applicant has been rightly allowed the 2nd MACP, which has illegally been withdrawn in complete violation of principles of natural justice. The reversion and recovery has a civil consequence and as such, it is a pre- condition that before passing such orders the principle of natural justice contained in Article 311 (2) of the Constitution of India is followed and the employee against whom such order is due to be passed would be given a full opportunity. The applicant, who joined the Group 'C' Cadre on account of passing the departmental examination, was not countable as promotion for the purposes of upgradation under MACPS. The MACPS are admissible to a cadre where there is Page 7 of 12 OA No. 330/00489 of 2014 stagnation to an incumbent who could not avail any promotional avenues even after ten years of his service. The applicant has rightly been granted the benefit of 2nd Promotion under MACPS on completion of their 20 years of regular service and as such it was not liable to be withdrawn that too without adhering to the provisions of principles of natural justice. In the similar circumstances, the CAT, Jodhpur Bench while allowing O.A. No.382 of 2011 with O.A. No.353 of 2011 and O.A. No.354 of 2011 vide its judgment dated 22.05.2011 has observed that when the applicant face the process of selection and were appointed as postman and further appeared in the limited departmental competitive examination and qualified to become Postal Assistant and as such their joining to Postal Assistant was not in the nature of promotion in their earlier existing service and as such appointment as postman or the the postal assistant was not liable to be count as promotion in the terms of scheme of MACP. The Hon'ble Court has further directed that any promotion allowed to the applicant after joining as postal assistant would be liable to be counted for benefit under MACPS.
11. He further stated that the clarification issued by the Cell of the Department of Posts, Ministry of Communication and IT dated 25.04.2011 provides that for purposes of counting of the period of the Stagnation is the period spent as Postal Assistant and his previous carrier advancements can not be called to be promotion under this scheme. The applicant after qualifying the P.A. examination in 1983, it was duty of the departmental authority to post him and if the applicant has been promoted in the year, 1987, the post of Postman shall not be liable to be calculated as one of the promotion to the applicant.
12. Shri M.K. Sharma, learned counsel appearing on behalf of the respondents vehemently opposed the contention of the learned counsel for the applicant and submitted that the applicant was appointed as Group 'D' on 07.06.1980 and further promoted on 13.005.1986 and 26.01.1987 in Postman Cadre and P.A. Cadre respectively. In P.A. Cadre, he also promoted in TBOP w.e.f.
Page 8 of 12OA No. 330/00489 of 2014 07.02.2003 and as such, he already got three promotion/up- gradation of pay and as such, rightly the impugned order has been passed. There is no violation of principles of natural justice since it is settled law that any amount of overpayment on account of wrong pay fixation in excess of entitlement, the payee should repay the money otherwise, it would amount to unjust enrichments. The Accounts Officer Internal Audit noticed that the applicant had already got three promotion upgradation and therefore, he was not entitled for any promotion under MACP scheme and as such, over payment amounting to Rs.71029/- has been recovered from the applicant and also ordered to restrict his pay and allowances as to what he was drawing without financial upgradation of pay under MACP scheme. There is no illegality or infirmity in the impugned order and O.A. is liable to be dismissed.
13. Be that as it may, having heard the rival submissions of the parties and on perusal of the records, it appears that the applicant was initially appointed as Group 'D' Packer on 07.06.1980 and thereafter, he was selected in Postman Cadre and Postal Assistant cadre after passing the limited departmental examination. After joining the Postal Assistant Cadre, he was allowed only one financial upgradation under OTBP Scheme in the year, 2003. On implementation of MACP Scheme, he was granted 2nd ACP benefits vide order dated 20.01.2010 w.e.f. 01.09.2008 taking into consideration the fact that he joined the Postal Assistant Cadre in 1987, completing 20 years of service in this cadre. The said order was withdrawn in view of Audit Objection, wherein it was alleged that applicant has already availed three promotions. Now, the issue for our consideration is 'whether promotion/appointment of the applicant from Group 'D' to Postman Cadre and Postal Assistant cadre after passing the limited departmental examination could be counted by the respondents as promotions under MACP Scheme or not.
14. The issue fell for consideration before the CAT Madras Bench in the case of D. Shivakumar Vs. Union of India and others Page 9 of 12 OA No. 330/00489 of 2014 (OA No. 1088/2011), which was decided on 14.03.2013. For proper adjudication of this case, the operative portion of order of Madras Bench of this Tribunal is reproduced below:-
"As we have already stated that the orders of the Jodhpur Bench will apply to the case of the applicant herein, the OA is to be allowed as prayed for the applicant. Accordingly, we allow the OA by setting aside the impugned order dated 28.9.2010..."
15. Thereafter Union of India went to the Hon'ble Madras High Court and after hearing of both the parties, Hon'ble High Court has dismissed the Writ Petition holding that to adjust the appointment of the first respondent to the Postal Assistant against Modified Assured Career Progression-II, is erroneous. The relevant paras 9 and 10 of decision of Hon‟ble Madras High Court are reproduced hereinbelow:-
"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 progressions for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the 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".Page 10 of 12
OA No. 330/00489 of 2014
16. Aggrieved against the order of the Hon'ble Madras High Court, Union of India approached before the Hon'ble Supreme Court by filing SLP (C) No. 4848/2016 and thereafter Hon'ble Supreme Court dismissed the aforesaid SLP. The Order dated 16.08.2016 passed by Hon‟ble the Supreme Court in SLP (C) No. 4848/2016 reads:-
"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."
17. Union of India filed review petition (C) No. 1939/2017 against the order of Hon'ble Supreme Court passed in SLP (C) No. 4848/2016, which was also dismissed by order dated 13.09.2017. Hence, the order of CAT, Madras Bench has attained finality.
18. From perusal of the aforesaid judicial pronouncement, it is evident that facts of this case is also same and similar and as such, this Court is of the considered view that the applicant faced examinations for selection to the Postman Cadre and Postal Assistant cadre though limited Department Competitive Examination and as such, his joining in the said Cadres were not at all in the nature of promotion. Hence, his service for grant of MACP has to be counted only from the date he was appointed as Postal Assistant. The issue is answered accordingly. Further, without giving him any opportunity of hearing or notice, the ACP/MACP benefits given to him has been withdrawn, which is not permissible in the eyes of law as any order visiting with civil or evil consequence, cardinal principles of natural justice has to be followed, but the instant case, nothing has been done.
19. In view of the above discussions, impugned Audit Objection and order dated 15.02.2012 passed by respondent No.3 as well as order dated 09.04.2013 are liable to be quashed and set aside and are hereby quashed and set aside.
Page 11 of 12OA No. 330/00489 of 2014
20. As a result of quashment of the impugned order, the applicant is entitled for all the consequential benefits. The respondents are directed to refund recovered amount, if any, and also to fix his salary, taking into consideration 2nd ACP benefits vide order dated 20.01.2010 w.e.f. 01.09.2008, within a period of twelve weeks' from the date of receipt of a copy of this order. Resultantly, instant O.A. stands allowed.
21. No order as to costs.
22. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member (Judicial)
PM/
Page 12 of 12