Central Administrative Tribunal - Madras
G Vijayakumar vs M/O Communications on 7 December, 2022
1 OA 499/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.499/2020
Dated Wednesday, the 7th day of December Two Thousand Twenty Two
CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER
&
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
G.Vijayakumar/2,
Sorting Assistant, BPC,
Park Town, Chennai 600 003,
Chennai Stg. Division. ...Applicant
By Advocate M/s P.R.Satyanarayanan
Vs.
1.Union of India, rep., by
the Chief Postmaster General,
Tamil Nadu Circle, Chennai 600 002.
2.The Superintendent R.M.S.,
Chennai Stg. Division,
Chennai 600 008. ...Respondents
By Advocate Mr. M.Kishore Kumar, SPC
2 OA 499/2020
ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"To call for records relating to proceedings No.STA/5-10/MACP/18 dated 18.02.2019 passed by the first respondent rejecting the claim of the applicant for grant of MACP-III benefits w.e.f January, 2016 and the subsequent proceedings No.B4/Review DSC dated 17.02.2020 and No.PF/G.Vijayakumar/2 dated 29.06.2020 issued by the second respondent unilaterally modifying the date of effect of MACP-II from 01.09.2008 to 19.09.2009 in so far as the applicant is concerned, and quash them as arbitrary and illegal and direct the respondents to take into account the 'regular service' rendered by the applicant in Army Postal Service from 23.01.1986 to 27.08.1989 for the purpose of grant of MACP also and direct the respondents I. to restore the MACP-II granted to the applicant w.e.f 01.09.2008 and II. to grant MACP-III after taking into account the 'regular service' rendered by the applicant in Army Postal Service from 23.01.1986 to 27.08.1989 along with arrears of pay and allowances and all other consequential benefits."
2. The brief facts of the case as stated by the applicant is as follows:
The applicant was recruited as Sorting Assistant in RMS 'M' Division, Tamil Nadu Circle in 1983 and after undergoing prescribed departmental training, he was permitted to work as 'Reserved Trained Pool' (RTP) Sorting Assistant to be absorbed in the course of time. While so, when willingness was called for deputation to Army Postal Service (APS) from among the regular as well as the RTP Sorting Assistants of RMS 'M' Division, the applicant volunteered and after he was found medically fit he was appointed as Sorting Assistant in RMS 'EK' Division on adhoc basis w.e.f 21.01.1986 and he worked as such till 22.01.1986 and thereafter he was deputed to APS on 23.01.1986 for appointment as Warrant Officer on the establishment of regular army w.e.f 28.08.1989.
2.1. The applicant was appointed as Sorting Assistant in Civil w.e.f 3 OA 499/2020 31.05.1990A/N on par with his junior and he was discharged from APS on 27.08.1991 and he rejoined as Sorting Assistant, Chennai Stg. Division on 28.08.1991. But on his return to Civil his substantive pay was downwardly revised unilaterally without taking into account the services rendered by him in APS from 23.01.1986 to 27.08.1991 and recovery of alleged overpayments were also effected.
2.2. Aggrieved by the said action of respondents, he filed OA 705/2001 wherein this Tribunal on 05.02.2002 directed the respondents to treat the services rendered by the applicant in APS as regular service and the same was also upheld by the Hon. High court of Madras in WP 37118/2002 and the said directions were also implemented by the respondents and it attained finality. But again the respondents had not taken into account the said regular service for the purpose of granting Time Bound One promotion (TBOP) on completion of 16 years of service.
2.3. Thereafter, based on the law laid down by the Hon. Supreme Court of India in Mathivanan's case (2006) 6 SCC 57, which is identical to the case of the applicant, the applicant was granted TBOP w.e.f 11.02.2002 taking into account the regular service rendered by him in APS from 23.01.1986 to 27.08.1991.
2.4. Subsequently he was granted MACP-II benefits w.e.f 01.09.2008 on completion of 20 years of regular service as Sorting Assistant taking into account the regular service rendered by him in APS from 23.01.1986 to 27.08.1991. He completed 30 years of regular service in January 2016 and therefore due for grant of MACP-III w.e.f January 2016. When he made a representation seeking the same, his request has been rejected by the first respondent by letter dated 18.02.2019 on the ground that the service 4 OA 499/2020 rendered in APS cannot be taken into account for the purpose of MACP. 2.5. Further by order dated 17.02.2020, the 2 nd respondent has revised the date of effect of MACP-II also as 19.09.2009 instead of 01.09.2008. Aggrieved, the applicant made an appeal to the first respondent on 19.03.2020 for setting aside the order dated 17.02.2020 and to restore the MACP-II granted to him w.e.f 01.09.2008 and to grant MACP-III w.e.f January 2016. But the said appeal has also been rejected on the very same grounds, vide order dated 29.06.2020. Aggrieved the applicant has filed the present OA seeking the abovesaid relief.
3. The respondents have entered appearance through their counsel and filed a detailed reply statement refuting the contentions made in the OA except those which were admitted on facts. They respondents submitted that in the letter dated 21.01.1986 deputing the applicant to APS & enrolling the applicant as Warrant Officer w.e.f 23.01.1986, it is clearly mentioned that the appointment is purely provisional and pending absorption on regular basis in the Sorting Assistant cadre. The applicant will get the regular appointment in the civil with effect from the date from which their immediate junior are appointed on regular basis in the Sorting Assistant cadre.
3.1. The applicant was given regular appointment in Sorting Assistant Cadre w.e.f 28.08.1989 A/N on par with his immediate junior in the civil side. The respondents submitted that 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.
3.2. It has been categorically stated that the service rendered on adhoc 5 OA 499/2020 contract basis before regular appointment on pre-appointment training shall not be taken into reckoning.
3.3. Further the Directorate clarification vide letter No.44-1/2011-SPB dated 12.04.2012, reiterated the above position. However in the applicant's case, MACP II was inadvertently granted to the applicant vide order dated 16.07.2010 taking into account his adhoc services in APS as RTP. This fact was observed by the 1st respondent when the applicant represented vide his letter dated 19.07.2018 for grant of MACP-III. Since the applicant's service in APS as RTP from 23.01.1986 to 27.08.1991 was purely on adhoc basis, it will not count for grant of MACP as per the DOPT guidelines on the subject.
4. Heard both sides. Perused the OA and relevant records along with counter filed by the respondents.
5. The learned counsel for the applicant in support of his contention placed reliance upon the following orders passed by the Hon'ble Supreme Court of India, Hon'ble High court & Central Administrative Tribunals:
(i)Decision of the Hon'ble Supreme Court in Major M.R.Penghal Vs. UOI & Ors dated 30.04.1998
(ii)Decision of the Hon'ble Supreme Court in State of UP & Ors Vs. Arvind Kumar Srivastava & Ors dated 17.10.2014
(iii) Judgment of the Hon. High court of Kerala in OP (CAT) No.326/2016(Z) dated 21.12.2016 in the case of The Superintendent of Post Offices & Ors Vs. Vasudeva B & Ors.
(iv) Judgment of the Hon. High court of Kerala in OP (CAT) No.99/2017(Z) dated 30.03.2017 in the case of UOI & Ors Vs. P.N.Alexander
(v) Judgment of the Hon'ble High court of Kerala in OP (CAT) 33/2016(Z) 6 OA 499/2020 dated 09.02.2016
(vi) Orders passed by the CAT, Ernakulam Bench in OA 856/2012 dated 10.04.2015, in OA 79/2013 dated 05.08.2015, in OA 1123/2012 dated 01.08.2016, in OA 536/2021 dated 01.04.2022
(vii) Order passed by the CAT, Chandigarh Bench in OA 343/2017 dated 16.08.2018(vi) Order passed by the CAT, Chandigarh Bench in OA 343/2017 dated 16.08.2018
(viii) Order passed by the CAT, Chennai Bench in OA 32/2016 dated 30.08.2019 The learned counsel for the applicant further placed reliance upon orders of the Hon. High court of Madras in WP No.21293/2016 dated 08.12.2017 in the case of C.Mohanraj wherein the said C.Mohanraj is similarly placed like the applicant and he has been granted the relief that his continuous service in APS had to be reckoned for grant of financial upgradation under the MACP Scheme. The applicant's case is squarely covered by the above said decision.
6. The learned counsel for the respondents submitted that the judgment in the case of C.Mohanraj is applicable to that particular person and has no binding for the representation of the present applicant as cases represented by individuals cannot be taken as precedence for others. He further submitted that the Hon'ble Supreme Court in Civil Appeal No.5268/1997 dated 10.08.1997 in the case of UOI & Anr Vs. K.N.Sivadas & Ors had observed that "any service which was rendered prior to regular appointment in the cadre, cannot count for the purpose of this rule because it cannot be considered as service in any eligible cadre. The Tribunal was therefore wrong in granting to the RTPs the benefit of service rendered prior to their regular 7 OA 499/2020 appointment, for the purpose of seniority and other consequential benefits". The CAT, Ernakulam Bench in its order dated 01.10.2013 in OA 79/2011 has clearly held that "In so far as MACP is concerned, the period of 20 years for 2nd MACP shall be reckoned only from the date of regular appointment and those who are entitled to 2 nd MACP financial benefits accordingly shall be afforded the same, if not already done", and this was also upheld by the Hon. High court of Kerala in OP(CAT) No.89/2014. They further relied upon the order of the Ernakulam Bench of this Tribunal in OA 55 & 475/2018 dated 10.06.2019 and order of this Tribunal in OA 1149 & 1240/2014 dated 27.06.2019.
7. It is to be noted that in the matter of Major M.R.Penghal Vs. UOI & Ors relied upon by the applicant, the Hon'ble Supreme Court in its order dated 30.04.1998 while dealing into similar issue in respect of services rendered by the Postal employee on deputation to the Army Postal Services, wherein though the applicant therein came out successfully in the examination conducted by the Post and Telegraph Service Selection Board but due to want of vacancy he could not be offered appointment in the unit of his choice. However, the Post and Telegraph Department vide its memo dated 31.10.1962 has informed that that the Postal Department required a number of clerks for enrolment on deputation in the Indian Army Postal Service and with a condition that from the date of a candidate's enrolment in the Army Postal Service, the employee will be treated as a Clerk of the Posts and Telegraphs Department on deputation to the Indian Army Postal Service and consequently the appellant therein accepted the same and he was posted as a Civilian in the Army service on deputation. Further, the said appellant was promoted to various higher ranks including the rank of Major and also given a temporary commission in the Army. However, subsequently 8 OA 499/2020 though he was entitled for further promotion to the rank of Lt. Colonel. Which was denied, aggrieved he has made a representation to the Military Secretary but the same was rejected on the ground that he was a Civilian in the Army services he should represent to the Director General of Posts and subsequently he has been served with an order relinquishing his temporary commission and repatriating him to the Department of Post. Subsequently, the appellant has sought voluntary retirement from the Department of Post and the same has been accepted by the Assistant Post Master General and permitted him to retire voluntarily direct from the Army Postal Services without even reversion to the Civil duties. Thus, it is observed that the day on which he has given his willingness and joined the Indian Army Postal Services on deputation he has been appointed by the Postal Department on regular basis, that is the reason he has been permitted to join the Army Postal Services as a Clerk of the Post and Telegraph Department on deputation.
8. It is observed that while dealing into the similar issue, the coordinate Bench of this Tribunal at Ernakulam in OA 856/2012 dated 10.04.2015 in the matter of G.Anilkumar & Ors Vs. Superintendent of Post Offices has considered all the facts about the applicants therein who were claiming that the service which was rendered by them in the Army Postal Services have to be calculated for the TBOP Promotions and held that the applicants who were enrolled as a Reserved Trained Pool Postal Assistant appointed as a Postal Assistant in short term vacancy on adhoc basis and based on their selection for enrolment in the Army Postal Services appointed as a Warrant Officer by a Presidential order, their services in Army Postal Services as a Warrant Officer to which they were appointed by the Presidential order dated 24.07.1984, 25.01.1985, 23.12.1985, 21.11.1986, 22.04.1988 & 04.05.1988 9 OA 499/2020 as a regular service and their performance of duty as a Warrant Officer is a reality that cannot be overlooked while counting the total service performed by the applicants. The Ernakulam CAT finally held that the duty performed by the applicants as a full time Warrant Officer in the Army Postal Service is required to the counted as a regular service in the direct entry grade while computing the service record of the applicants and all benefits of service accruing thereafter including MACP. The said order of the CAT Ernakulam was upheld by the Hon'ble High court of Kerala in OP (CAT) 33/2016(Z) dated 09.02.2016 wherein the Hon'ble High court has held as under:
"It is not in dispute that, the appointment orders of the other respondents were also similarly worded. It is clear from Annexure A5 that the appointment of the respondents to the Army Postal Service was on regular basis, though they were borne in the Postal service in the Reserve Trained Pool. It was while they were in the R.T.P that they were deputed to the Army Postal Service. Therefore, their first regular appointment was from the dates on which they were appointed as Warrant Officers in the Army Postal Service. It is not in dispute that they were appointed in the regular service of the Postal Department, without any break in service. We notice that the 1st applicant was regularly appointed as per Annexure A2 on 28.05.1990 and he was discharged from the Army Postal Service as per Annexure A3 only on 27.6.1991. Therefore, the continuous service of the respondents had to be reckoned from the dates on which they were appointed as Warrant Officers in the Army Postal Service. As per the order of the C.A.T, they have been directed to be granted the benefits of the MACP Scheme counting their service in the Army Postal Service also. We find that the direction issued by the C.A.T is justified in the facts and circumstances of the case.
For the above reasons, we find no grounds to interfere with the impugned order of the C.A.T, evidenced herein by Ext.P4. The Original Petition is therefore dismissed.
The learned A.S.G.I seeks two months' further time for complying with the directions issued by the C.A.T. The request is accepted. The petitioners are granted two months' time from today to comply with the directions of the C.A.T."
9. It is also to be noted that the CAT Ernakulam in OA 1123/2012 dated 10 OA 499/2020 01.08.2016 after taking into consideration the respondents' stand that the services rendered in the Army Postal Service was an adhoc in nature and in view of the clause 9 of the MACP scheme, the said service cannot be reckoned as a regular service has held as under:
10. Learned counsel for the applicant Mr.V.Sajith Kumar referred to a decision dt 10.4.2015 of this Bench in OA No. 856 /2012. In that case the question was whether the services rendered by the persons who have been appointed as Warrant Officers in APS should be reckoned by the Department for including them for granting them financial upgradation in the MACP Scheme. In that, this Tribunal held that in view of the fact that applicants therein were enrolled in the regular establishment of APS as Warrant Officers by a Presidential Order such service has to be counted as regular service in direct entry grade while computing their service for benefits under the MACP scheme.
"11. Learned ACGSC pointed out that annexure R/1 communication dt 10.3.87 issued by Respondent No.3 shows that the selection of the applicant to the APS was on the basis of his voluntariness to serve in the APS. It is stated in R/1 that the appointment is purely temporary and on ad hoc basis, making it clear that applicant will get the benefit of regular appointment in civil with effect from the date his immediate junior is appointed on regular basis. Mr.Sajith Kumar submitted that it is usual in all cases of regular appointments to indicate in the appointment order that the appointment is purely temporary and on ad hoc basis and hence such wordings in R/1 will not wipe out the regular nature of the service applicant had put in the APS. Subsequently applicant produced Annexure A8 Presidential order along with the additional rejoinder on 10.9.2015 along with MA No. 830 of 2015 which had indeed escaped the notice of this Tribunal while passing the final order dated 3.11.2015 before remand of the matter by the Hon'ble High Court. Annexure A8 Presidential order does not mention that it is an ad hoc/contract appointment. Hence, Annexure A8 presidential order has to be treated as an appointment on regular service. Annexure R1 order was issued by a lower authority in civil postal service stating that the service of the applicant in APS would be only ad hoc in nature. Indeed by the Presidential warrant issued to the applicant, Annexure R1 fades into insignificance. It has been clearly stated by the applicant that he had enjoyed increments while he was working in the Army Postal Service as Warrant Officer. This pleading has not been effectively disputed by the respondents.
12. In the light of the meaning given to the term 'regular service' in Annexure A4 copy of the MACP scheme and in view of Annexure A8 presidential order dated 15.1.1992 appointing the applicant as Warrant Officer, this Tribunal is inclined to allow this OA to the extent that respondents are directed to count the duty performed by the applicant on the basis of a Presidential Warrant as Warrant Officer in the Army Postal 11 OA 499/2020 Service as regular service in the direct entry grade while computing his service records and all benefits of service accruing thereafter including MACP. Ordered accordingly. The aforesaid exercise shall be completed by the respondents within two months from the date of receipt of a copy of this order. Parties shall suffer their own costs."
The abovesaid order of the CAT Ernakulam Bench was upheld by the Hon'ble High court of Kerala in OP (CAT) No.99/2017 (Z) dated 30.03.2017 wherein the Hon'ble High court observed thus:
"Since the issue is squarely covered against the petitioners under the judgment in O.P. (CAT).No.33 of 2016, this original petition is liable to be dismissed. The learned Assistant Solicitor General, in the circumstances, sought for some time for complying with the directions of the Tribunal in the impugned order. We are inclined to grant two months time from today for complying with the directions in the impugned order."
10. Further, the CAT Ernakulam Bench has dealt with similar issue in OA 79/2013, vide order dated 05.08.2015 and held as under:
7. We have heard the learned counsel appearing for both parties and also gone through the documents/annexures produced by the parties. The applicant was appointed as a Warrant Officer to the regular establishment of Army Postal Service on 24.12.1986 by a Presidential Order and he was in receipt of all the admissible service benefits of the post he held on a regular basis till he was regularized as a Postal Assistant on 28.9.1989.
He was discharged from the Army Postal Service on 23.9.1992 and joined back as Postal Assistant in the Postal Department. Thus he qualifies the MACP provision of regular service as there was no break in service between service as a Warrant Officer in APS and Postal Assistant in Department of Posts. He was not holding the post of Warrant Officer on adhoc or contract basis before his regular appointment as a Postal Assistant. The MACP II is, therefore, admissible to the applicant. The O.A is allowed with no order as to costs.
Following the above said cases, the CAT Ernakulam Bench has disposed of OA No 536/2021 and granted the same relief as granted in the abovesaid cases.
12 OA 499/2020
11. Further, the CAT Chandigarh Bench has dealt with similar issue in OA 343/2017, vide order dated 16.08.2018 and held as under:
5. We have given our thoughtful consideration to the entire matter, and are of the view that the OA deserves to be allowed, for the simple reason that the applicant was earlier working as Warrant Officer with the APS, and was appointed in the respondent-department in (OA 060/00343/2017) continuity. In terms of MACP policy, the respondents are under obligation to count regular service, while calculating the period for grant of 3rd financial upgradation under MACP. Since the applicant is having regular service, therefore, the respondents are bound to count the service for grant of 3rd financial upgradation in favour of the applicant as per view taken by this court in case of Sunil Kumar etc. (supra), which has also been implemented by the respondents. Judgment cited by learned counsel for the respondents does not help them, because in one of the cases, the Lordships have already held the regular service has to be counted. Since the applicant is having regular service as Warrant Officer with the APS, therefore, cited decision cannot be applicable in the instant case, whereas the judgment relied in case of Sunil Kumar etc. (supra) would apply on all fours.
12. Further, this Bench has dealt with similar issue in OA 32/2016, vide order dated 30.08.2019 in the case of G.Rajarathinam wherein this Tribunal has considered the service rendered as RTP to be counted for the purpose of extending the benefit of TBOP Scheme as well as the MACP Scheme and has given a direction to consider the case of the applicant therein on the basis of the order passed by the Coordinate Bench of this Tribunal at Ernakulam in OA 79/2011 and Batch cases and the order passed by the Hon'ble Kerala High court in OP (CAT) 89/2014.
13. It is to be noted that the authorities/orders/judgements which are cited by the respondents' counsel in support of his contention pertains to the issue of the Reserve Trained Pool services employees' eligibility to appear for the departmental examination and further for regularization from the date of the joining in the RTP services and accordingly granting of TBOP as well as other benefits like seniority. According to the rules, the eligibility criteria to 13 OA 499/2020 appear for the departmental examination is that one must have put in atleast 5 years of continuous satisfactory service in one or more eligible cadres. On this technical issue since the RTP service is service rendered prior to regular appointment in the cadre it cannot be counted for the purpose and therefore the Hon'ble Supreme Court rejected the claim of the employees. As far as counting of the RTP services for the other benefits like TBOP & pensionary benefits, the court has directed to grant the benefit by counting their services as RTP. The above stated issues are completely different from the issue in hand. None of those employees have served in the Army Postal Service as in the present OA and hence the orders/judgements relied upon by the respondents are not applicable to the present case.
14. On the other hand, the judgments/orders relied upon the applicants are exactly similar to the case in hand and according to the order passed by the Hon'ble Supreme Court of India in the matter of State of UP & Ors Vs. Arvind Kumar Srivastava that "Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently", the applicant is entitled to the relief as granted in the similar cases cited supra.
15. In view of the above position, we are of the considered opinion that the 14 OA 499/2020 issue involved in the present OA is no more res-integra and it is squarely covered by the order passed by this Bench as well as the coordinate Benches of this Tribunal and upheld by the Hon'ble High Court and as observed by the Hon'ble Supreme Court cited supra identically situated persons cannot be treated differently and not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. Hence the OA is allowed as under:
"The impugned order dated 18.02.2019 passed by the first respondent rejecting the claim of the applicant for grant of MACP-III benefits w.e.f January, 2016 and subsequent proceedings dated 17.02.2020 and 29.06.2020 issued by the second respondent modifying the date of effect of MACP-II from 01.09.2008 to 19.09.2009 is hereby quashed and set aside.
The respondents are directed to take into account the 'regular service' rendered by the applicant in Army Postal Service from 23.01.1986 to 27.08.1989 for the purpose of grant of MACP also and to restore the MACP-II granted to the applicant w.e.f 01.09.2008 and to grant MACP-III after taking into account the 'regular service' rendered by the applicant in Army Postal Service from 23.01.1986 to 27.08.1989 along with arrears of pay and allowances and all other consequential benefits.
The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order. In case, the amount is not paid within a period of three months, then without prejudice to any other remedy that the applicant may have, the amount shall carry interest at the rate of 9% per annum."
16. The OA is accordingly allowed. No order as to costs.
(Lata Baswaraj Patne) (T. Jacob) Member (J) 07.12.2022 Member (A) MT