Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 13 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA. No. 1503/PB/2012
(Reserved on 05.11.2014)
Chandigarh, this the 13th day of November, 2014
CORAM:HONBLE MRS.RAJWANT SANDHU,MEMBER(A)
HONBLE DR. BRAHM A.AGRAWAL,MEMBER(J)
Ashok Kumar Madan S/o Sh. Chunni Lal Madan, Postal Assistant (Retd.), Gandhi Bazar Branch Post Office, Amritsar now R/o # 2864/20, Gali No. 19, Nawan Kot, Amritsar, PIN 143001.
Applicant
Versus
1. Union of India through the Secretary, Ministry of Communication & IT, Department of Posts, New Delhi.
2. Chief Postmaster General, Punjab Circle, Chandigarh.
3. Senior Superintendent of Post Offices, Amritsar Division, Amritsar.
Respondents
Present: Sh. R.P. Singh, counsel for the applicant.
Sh. B.B. Sharma, counsel for the respondents.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(a) Declare the action of the respondents in withdrawing the benefit of BCR and making recovery of Rs. 47,000/- (Approx.) from the applicant and letter dated 09.09.2011, Annexure A-1, whereby he has been conveyed adverse remarks Average in the Annual Confidential Reports for the year 2004-2005, 2005-2006 and 2006-2007.
(b) Direct the respondents to grant the benefit of BCR w.e.f. 16.07.2008 and consequently revise the pensionary benefits of the applicant and arrears be released to him alongwith interest @ 18% p.a.
(c) Refund the amount of Rs. 47,000/- (Approx.) recovered from the applicant while withdrawing the benefit of BCR alongwith interest @ 18% p.a.
2. It has been stated in the OA that the applicant was initially appointed as Postman on 22.03.1974 and was thereafter promoted on 16.7.1982 in Group C as Postal Assistant after passing Departmental Examination. Thereafter, in the year 1998, he was granted the benefit of Time Bound One Promotion (TBOP) on completion of 16 years of service on 21.07.1998. The applicant completed 26 years of service on 16.07.2008 and was entitled to the benefit of BCR w.e.f. 16.06.2008 but, vide order dated 2.4.2009 (Annexure A-3), the applicant was granted the benefit of Biennial Cadre Review (BCR) in the pay scale of Rs. 5000-8000 w.e.f. 1.1.2009 on completion of 26 years of service instead of 16.06.2008 and the due arrears were also released to the applicant w.e.f. 1.1.2009. The Government of India vide notification dated 9.8.1999 introduced Assured Career Progression Scheme (ACP) in respect of Group C and D employees and as per the Scheme, an employee became entitled for first ACP on completion of 16 years of regular service and second ACP on completion of 26 years of regular service. The said Scheme was modified in the year 2009 and the Government of India introduced modified Assured Career Progression Scheme (MACP) under which the benefit of three upgradations are to be granted to the employees on completion of 10/20/30 years of regular service. The said Scheme has been introduced vide notification dated 19.5.2009 (Annexure A-4) and the same has been made applicable w.e.f. 1.9.2008.
3. Further averment has been made in the OA that the benefit of BCR granted on completion of 26 years regular service vide order dated 2.4.2009 (Annexure A-3) has been withdrawn by the respondents and recovery of Rs. 47,000/- (approx.) made from the retiral benefits of the applicant without passing any specific order and without granting any opportunity of hearing or issuing show cause notice on the plea that since the MACP Scheme has been made applicable w.e.f. 1.9.2008 vide notification dated 19.5.2009 (Annexure A-4) and since the applicant has been granted the benefit of BCR w.e.f. 01.01.2009, therefore, his case would be considered for grant of third ACP on completion of 30 years of regular service as per the new Scheme, whereas as per Para 11 of the Scheme dated 19.5.2009 (Annexure A-4), the past cases cannot be reopened. Para 11 of the MACP Scheme dated 19.5.2009 reads as follows:-
11. It is clarified that no past cases would be re-opened. Further, while implementing the MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly. This Court has already held in its order dated 23.2.2012 (Annexure A-5) in OA No. 1003/PB/2011 (Amar Singh & Ors. Vs. UOI & Ors). That the benefits granted prior to introduction of MACP Scheme vide notification dated 19.5.2009 cannot be reopened and are to be treated as past cases. Therefore, the action of the respondents in withdrawing the benefit of BCR granted on completion of 26 years of regular service and making consequent recovery from the applicant is totally illegal and arbitrary.
4. In the grounds for relief, it has been stated as follows:-
(i) The case of the applicant is covered by the judgement of this Court upheld by the Jurisdictional High Court in Om Parkash Bhagats case wherein it was held that the applicant is entitled for the benefit of BCR from the date it became due. A copy of the same is annexed as Annexure A-9. Further, the case of the applicant is squarely covered by the order dated 23.2.2012 passed in OA No. 1003-PB-2011 (Amar Singh & Ors. Vs. UOI & Ors.), Annexure A-5 wherein it has been held that the benefits of ACP granted prior to 19.5.2009 cannot be reopened and consequently no recovery can be effected from the applicant. In the present case also, the benefit of BCR was granted to the applicant vide order dated 02/05.4.2009 w.e.f. 1.1.2009 although he is entitled for the same w.e.f. 16.7.2008, on completion of 26 years of service and, therefore, the present case is to be considered as past case and cannot be reopened as per Para 11 of MACP Scheme dated 19.5.2009.
(ii) That even otherwise, the benefit of BCR was granted to the applicant under BCR Scheme on completion of 26 years of regular service. The applicant completed 26 years of regular service as on 16.7.2008 and the MACP Scheme came into existence vide notification dated 19.5.2009, therefore, the said Scheme cannot be made applicable retrospectively and therefore, the action of the respondents in withdrawing the benefit of BCR granted to the applicant is totally illegal and arbitrary and cannot be sustained in the eyes of law.
(iii) That the adverse remarks of the confidential reports of the applicant for the year 2004-05, 2005-06 and 2006-07 has been conveyed to him only on 09.09.2011 (Annexure A-1) which is not permissible in law. If there was any average report, the same should have been conveyed to the applicant immediately, when the same was recorded and since the same was not conveyed to the applicant, therefore, the same cannot be considered as average and is to be taken as good and consequently, even it is held that the applicant is to be granted the benefit of third ACP under MACP Scheme, the same cannot be denied to the applicant.
(iv) That the applicant was granted the benefit of BCR on completion of 26 years of service vide order dated 2.4.2009 w.e.f. 1.1.2009 (Annexure A-3). There was no mis-representation or fraud on the part of the applicant for the grant of above-said benefit, therefore, recovery made from the retiral benefits of the applicant is totally illegal and arbitrary and is against the various judgements rendered by the Honble Supreme Court, Honble High Court and this Court, wherein it has been held that in such like circumstances, no recovery can be effected especially when there is no mis-representation or fraud on the part of an employee, in view of the judgement passed by the Full Bench of the Jurisdictional Punjab and Haryana High Court, reported as 2009(3) SCT 333, titled as Budh Ram and Ors. Vs. State of Haryana and Ors.
(v) That neither any show cause notice has been served upon the applicant nor any opportunity of personal hearing has been granted to the applicant by the respondents while making recovery of the amount of Rs. 47,000/- from the retiral benefits of the applicant and even at the time of passing order dated 02.11.2012 (Annexure A-2).
5. In the written statement filed on behalf of the respondents, it has been stated that the 2nd financial upgradation under BCR Scheme after completion of 26 years of service w.e.f. 1.1.2009 was allowed to the applicant, but the same was withdrawn w.e.f. 1.9.2008 by Department of Posts on the introduction of MACP Scheme vide DGP New Delhi, letter No. 4-7(MACP)/2009-PCC dated 18.09.2009. The case of the applicant was submitted to the Screening Committee on 4.6.2011 for grant of 3rd financial upgradation under MACP Scheme but the said financial upgradation was not recommended by the Screening Committee to the applicant due to average remarks in his ACR. The case was kept to be considered by the Scrutiny Committee for scrutiny of his ACRs. The applicant was informed vide office letter No. B-6/MACP-III/Pas dated 07.09.2011 that his financial upgradation under MACP Scheme is due and while reviewing the R file for the year 2004-05, 2005-06 and 2006-07, it has been observed that Average remarks have been awarded to him. He was given an opportunity to make any representation against the remarks within a period of ten days to the appropriate authority. The representation dated 19.09.2011 of the applicant was put up before the Scrutiny Committee in the meeting held on 23.06.2012 and the Average remarks awarded for the years 2004-05, 2005-06 and 2006-07 were not recommended by the said Committee for conversion into Good one. The same was approved by the Assistant Director Postal Services-1 O/o the Postmaster General Punjab Region, Chandigarh vide No. STC-R/10-15/PA/2010 dated 29.6.2012/02.07.2012. Further, the case of the applicant was put up before the Screening Committee on 09.10.2012 for grant of 3rd financial upgradation under MACP Scheme but the said financial upgradation was not granted by the Screening Committee to the applicant due to unsatisfactory service record. He was informed of this vide memo dated 02.11.2012.
6. It has further been stated that the case of the applicant was again put up before the Screening Committee on 8.2.2013 to review the cases for grant of 3rd financial upgradation under MACP Scheme in the light of instructions issued vide DOPT Memo No. 35034/3/2008-Estt.(D) (Vol.II) dated 04.10.2012 received vide PMG, Punjab Region, Chandigarh, Endorsement No. Estt.R-15-1/2009/Corr. dated 29.11.2012 and the said financial upgradation has been granted by the Screening Committee to applicant vide office memo dated 20.2.2013 w.e.f. 1.9.2008.
7. Arguments advanced by the learned counsel for the parties were heard when learned counsel for the applicant pressed that the applicant was entitled to 2nd upgradation under BCR w.e.f. 16.7.2008 when the applicant completed 26 years of service. This was actually allowed to the applicant w.e.f. 1.1.2009. But this benefit was withdrawn by the respondents stating that the applicant would be considered for MACP Scheme on completion of 30 years of service. Initially, the case of the applicant for grant of 3rd MACP was rejected on ground Average grading in ACR of 2004-05, 2005-06 and 2006-07, but ultimately, MACP was granted w.e.f. 1,9.2008 and the applicant retired from service on 31.5.2012. Learned counsel stated that as per the guidelines in the MACP, there was no provision for referring to the gradings in the ACR while assessing an employee for grant of benefit of financial upgradation under this Scheme. Hence, the learned counsel pressed that the upgradation under BCR was to be allowed to the applicant w.e.f. 16.7.2008 and the recovery of Rs. 47,000/- effected by the respondents, was unjustified and illegal.
8. Learned counsel for the respondents stated that an identical claim as made by the applicant in the present OA had been adjudicated while deciding OA No. 1443/PB/12 on 30.10.2013 and that OA was rejected. He stated that being a covered case, the present OA be disposed of in the like manner.
8. We have given our thoughtful consideration to the matter. It is evident from the material on record that the ACRs of the applicant were Average for the period from 2004-2007 and these ACRs were material to the claim of the applicant for being granted BCR w.e.f. 16.7.2008. The learned counsel for the applicant has not brought the guidelines under the BCR Scheme while claiming that the grading in the ACR is immaterial for grant of financial consideration under the BCR Scheme. Besides, it is seen that the applicant has been allowed the third MACP w.e.f. 1.9.2008 and since it is found that over-payment had been made to the applicant due to BCR having been released to him w.e.f. 1.1.2009 although the BCR Scheme stood withdrawn as on that date, the applicant cannot resist the recovery of over payment. After the grant of third MACP, the re-fixation of the pay in respect of the applicant had been effected and his retiral benefits had also been computed and released to him. We also observe that the claim in the present OA is similar to that in OA No. 1443/PB/2012 and hence, the present OA is rejected as there being no merit in the claim. No costs.
(RAJWANT SANDHU)
MEMBER(A)
(DR. BRAHM A.AGRAWAL)
MEMBER(J)
Dated: November , 2014.
ND*
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OA. 1503/PB/2012