Allahabad High Court
Director General Ministry Of Health & ... vs Central Administrative Tribunal Lko. & ... on 9 January, 2020
Author: Saurabh Lavania
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- SERVICE BENCH No. - 21 of 2017 Petitioner :- Director General Ministry Of Health & Family Welfare & 4 Ors Respondent :- Central Administrative Tribunal Lko. & 6 Ors. Counsel for Petitioner :- Ajay Kumar Singh Counsel for Respondent :- Praveen Kumar,Raghvendra Kumar Singh-Ii Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for petitioners and learned counsel for the respondents.
Facts, in brief, of the present case are to the effect that the petitioners filed O.A. No.176 of 2013 (Udai Pratap Shahi & Others Vs. The Secretary, Ministry of Health & Family Welfare, Nirman Bhawan & Others) before the Central Administrative Tribunal, Lucknow Bench, Lucknow (in short "Tribunal") with the following main reliefs:-
"(i) To quash the impugned order dated 05.04.2013, contained as Annexure No.A-1 to this O.A. also quash the letter No.F No.A12026/10/2011-PH(CDL) dated 15.03.2013 after summoning original from the applicants with all consequential benefits.
(ii) To restrain the respondents from reducing the Pay and further from imposing recovery in pursuance of the impugned orders. And recovered amount, if any, may be refunded."
Vide judgment and order dated 21.12.2015, the Tribunal allowed the O.A. No.176 of 2013 (Udai Pratap Shahi & Others Vs. The Secretary, Ministry of Health & Family Welfare, Nirman Bhawan & Others) with the following observations:-
"5. In view of the clarification, the Guwahati Bench of this Tribunal had allowed the O.A. No.276 of 2013 with the following directions:-
"17. In our view, since the applicants were absorbed by way of merger of MOFRS with NMEP (now NVBDCP), the action of the respondents in denying them the benefit of MACP by not counting their past services from the actual date of joining in the entry grade is not sustainable in law.
18. In view of the foregoing discussions and in view of the clarifications on MACP as well as the ratio laid down by the Hon'ble Supreme Court and the Hon'ble Guwahati High Court, we set aside and quash the impugned letters dated 15.03.2013 and 05.04.2013 and direct the respondents to continue extending the benefit of MACP to the applicants by counting their service from the date of their joining of posts in the entry grade i.e. taking into account their services rendered in MOFRS prior to its merger with NMEP (now NVBDCP).
6. The respondents have through their counter reply denied the averments made in the O.A. by the applicants. Their stress was on the fact that for the purpose of grant of MACP benefits, the DoPT advised was to regulate the eligibility of erstwhile MOFRS employees, who were absorbed in the Directorate of NVBDCP, for grant of MACP benefits counting their services w.e.f. the date of absorption in the service i.e. w.e.f. 29.09.1995 only. Therefore, the order dated 05.04.2013 passed by the answering respondents is just and proper. The rejoinder has also been filed.
7. We have heard the parties and perused the records on file. Point in issue here is simply interpretation of MACP scheme as to the counting of the 10, 20 and 30 years of service. In this instant O.A., the question is whether the eligibility is to be counted from the date date of absorption of the employees w.e.f. 29.09.1995 or from the date of their actual entry in the grade. This was the issue before the Guwahati Bench which has been decided in favour of the applicant vide order dated 25.06.2015 in O.A. No.276 of 2013.
8. The respondents have referred to DoPT clarification in their counter which was filed on 22.10.2013 that is prior to the judgment delivered by the Guwahati Bench. It is not the contention of the department that said order has been challenged through the writ/SLP before the appropriate forum. Such being the case and the facts of the case of the present O.A. being similar to the facts of this and the governing dates of absorption, O.A. is allowed. We deem it just and proper to set aside the impugned order dated 05.04.2013 and direct the respondents to extend the benefits of the MACP scheme to employees as granted order dated 14.02.2012. No costs."
The order dated 21.12.2015 passed by Tribunal in O.A. No.176 of 2013 filed by applicants/respondent Nos.2 to 7 is under challenge in the present writ petition.
After hearing learned counsel for the parties and going through the records, the position which emerges out is to the effect that the judgment dated 25.06.2015 passed by the Guwahati Bench of Tribunal in O.A. No.276 of 2013 has not been challenged before High Court or Hon'ble Supreme Court, and the same was followed by the Tribunal at Lucknow in the impugned order.
The High Court of Madhya Pradesh while deciding the Writ Petition No.12910 of 2015 (Hari Shanker Gour Vs. Union of India & Others), considered the impugned order in the present writ petition dated 21.12.2015 and the order dated 25.06.2015 passed by the Guwahati Bench of Tribunal in O.A. No.276 of 2013 in the judgment and order dated 05.02.2016 and remanded the matter to Jabalpur Bench of Tribunal. On remanding the matter, the Jabalpur Bench of Tribunal on 17.03.2016 allowed the O.A. on the basis of orders passed by Guwahati and Lucknow Bench of Tribunal, the relevant portion of the judgment dated 05.02.2016 reads as under:-
"Challenging a common order passed on 24.07.2015, by Jabalpur Bench of the Central Administrative Tribunal in O.A. Nos.370, 371 and 372 of 2013 these writ petitions have been filed. Claiming benefit of Modified Assured Career Progression Scheme with effect from their initial date of appointment and challenging the act of the departmental authorities in granting the said benefit prospectively from the date of absorption, the applications were filed under Section 19 of the Central Administrative Tribunal's Act, 1985.
Based on certain orders passed by the Bangalore Bench of the Central Administrative Tribunal, the Karnataka High Court on certain observations made by the Supreme Court in certain matters, the Tribunal did not interfered and dismissed the applications, therefore, these petitions by the petitioner.
We find from the record that before the Tribunal it was the specific case of the petitioners herein that identical orders passed by the departmental authorities were subjected to challenge before the Guwahati Bench of the Central Administrative Tribunal in O.A. No.276/2013 dated 25.6.2013, so also by the Lukhnow Bench in O.A. No.176/2013 decided on 21.12.2015. Infact the order passed by the Lukhnow Bench was after the impugned order was passed by the Tribunal, at Jabalpur but before that the3 order passed on 25.6.2015 by Guwahati Bench was already pronounced it is said that before passing the impugned order this judgment of Guwahati Bench was not considered.
That apart, by placing reliance on a judgment of the Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (2014)8 SCC 883, it is argued that the consequential benefit of restraining the respondents from effecting recovery of the benefit granted, even if wrongly, has not been considered by the Tribunal, we find that tribunal did not advert to consider all these aspects of the matter and only on the basis of the order passed by the Bangalore Bench decided the dispute, whereas the Guwahati Bench and Lukhnow Bench in the orders produced before us have gone into various aspects of the matter including the order passed by the Bangalore Bench and have taken a decision. That apart, the question of restraining the respondents from effecting recovery of the monetary benefit already conferred in the light of law laid down by the Supreme Court in the case of Rafiq Masih (supra) had also not been considered.
In view of all these circumstances we deem it appropriate to remand the matter back to the tribunal for reconsideration.
Accordingly, both these petitions are allowed. Impugned orders dated 24.7.2015 and 05.04.2013 passed in O. A. Nos.370, 371 and 372 of 2013 are quashed. The matter is remanded back to the Tribunal to reconsider the matter in the light of observations made hereinabove.
With the aforesaid, both the writ petitions stand disposed of."
Further, as per the pleadings on record, the judgment and order dated 05.02.2016 passed by the High Court of Madhya Pradesh in Writ Petition No.12910 of 2015 has not been challenged before the Hon'ble Supreme Court nor the judgment and order dated 17.02.2016 passed by Jabalpur Bench has been challenged before higher forum.
We have considered the judgment and order dated 25.06.2015 passed by Guwahati Bench of Tribunal, the reliance has been placed by the Tribunal at Lucknow as well as Tribunal at Jabalpur. It appears therefrom that the Guwahati Bench of Tribunal considered the issue in detail after relying upon the judgment of the Hon'ble Apex Court and after recording the reasons in claim petition, the judgment and order dated 25.06.2015 was passed by the Guwahati Bench of Tribunal, which reads as under:-
"8. Being aggrieved by the aforesaid order of the Tribunal, the respondents of O.A.No.297 of 2006 approached the Hon'ble Gauhati High Court by filing W.P. (C) No.4576/2010. The Hon'ble High Court, vide order dated 03.03.2011 set aside and quashed the order of the Tribunal dated 27.10.2009 and remanded the matter to the Tribunal for its consideration afresh in accordance with law. Thereafter, the case was heard again and this Tribunal vide order dated 09.09.2011 observed that :"..........The O.M. dated 15.02.2001 was issued by the DOPT. It is in the context of the promotion scheme for Staff Car Drivers. No distinction is made in the O.M. for the Railway employees and other Central Government employees. As such, it can not be said that it is applicable only in the context of Railway employees." The Tribunal, after hearing the learned counsel for the respondents in the aforesaid O.A., further held as hereunder:-
"We find that his issue is no longer res-integra. Hon'ble Supreme Court has made it abundantly clear in the case of Union of India &n Ors Vs. C.B. Gangadharalah & Ors (supra) that "the employees who were transferred on the strength of NMEP shall be entitled for all benefits as applicable to other employees of Government of India as per locality of his posting.""
9. Accordingly, the Tribunal, after considering the entire conspectus of the matter in O.A.No.297 of 2006 held as hereunder:-
"........we hold that the applicants are entitled to the benefits of promotion taking into account their past services rendered from the date of initial appointment and give them all other benefits which they are entitled as per law within a period of three months from the date of receipt of the copy of this order."
10. The respondents once again approached the Hon'ble High Court vide W.P.(C) No.739/2012 challenging the order dated 09.09.2011 passed by the Tribunal in O.A.No.297 of 2006. The Hon'ble High Court vide judgment and order dated 16.02.2012 dismissed the said writ petition and held as hereunder:-
".......the assertion of the petitioners that the respondents still hold ex cadre posts and thus though their past services is to be counted for the purpose of Assured Career Progression benefits, the same would not be available to them for promotion does not weigh with us. As a matter of fact, this proposition is apparently illogical and opposed to the fundamentals of service jurisprudence. We are in respectful agreement with the conclusions recorded by the learned Tribunal in the impugned judgment and order.
"In the above view of the matter, the petition lacks in merit and is dismissed. No costs."
11. It is noted that the order of the Tribunal dated 09.09.2011 passed in O.A.No.297/2006 was implemented accordingly. Earlier, similar view was taken by CAT/Bangalore Bench in O.A.No.595/1999 vide its order dated 18.10.2000. However, the order of ACT/Bangalore Bench was challenged before the High Court of Karnataka and finally the matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 10.09.2003 passed in Civil Appeal No.444-450 of 2002 declined to interfere with the judgment and order of the Hon'ble High Court of Karnataka passed in W.P.(C) Nos.2722/2001 and 12391-12396/2001. However, the Hon'ble Supreme Court in its order dated 10.09.2003, concluded as hereunder:-
"However, it is made clear that with regard to Assured Career Progression respondents would be entitled to get benefit only from the date of absorption."
12. In the instant case, we note that the respondents have refused to count the past services of the applicants for granting them the benefits under the MACP Scheme basically on the following two grounds:-
(1) The order dated 10.09.2003 of the Hon'ble Supreme Court passed in Civil Appeal Nos.444-450 of 2002 as mentioned above, and (2) The judgment and order dated 14.08.2013 of CAT/Bangalore Bench passed in O.A.Nos.366/2013-374/2013.
13. In order to arrive at a conclusion, we have to first decide as to whether the order dated 10.09.2003 of the Hon'ble Supreme Court in Civil Appeal Nos.444-450 of 2002 to the extent that, with regard to Assured Career Progression respondents (applicants in O.A. No.595/1999) would be entitled to get benefit only from the date of absorption, is applicable in the present case. Firstly, we need to distinguish between the ACP Scheme and MACP Scheme. The ACP Scheme was inroduced by the Government of India, Ministry of Personnel, Public Grievances and Pensions on 09.08.1999 for granting of two financial upgradations to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Under the said scheme, provisions were made to grant two financial uprgradations to all Group 'B', 'C' and 'D' employees on completion of 12 and 24 years of regular service subject to fulfillment of certain conditions incorporated in Annexure-I therein. As per the conditions, a departmental Screening Committee shall be constituted for the purpose of processing the case for grant of benefit under ACP Scheme. The conditions for grant of ACP include the requirement of passing of trade test, passing of departmental examination and obtaining the benchmark. Further, the DOP&T has provided point-wise clarifications on doubts raised by certain Ministries/Departments. The clarification against query No.4 i.e., 'In a case where a peson is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise', reads as hereunder:-
"......................if a Government Servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer) basis of first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale."
It was further clarified as hereunder:-
"............Also, in case of absorption (transfer)/deputation in the aforesaid situations, promotions earned in the previous/present organizations, together with the past regular service shall also count for the purpose of ACPS..............."
14. Now we come to the MACP Scheme which was introduced by the DOP&T on the recommendations of the Sixth CPC. Under the MACP Scheme, three financial upgradations have been provided on completion of 10, 20 and 30 years of continuous regular service. The said Scheme became operations w.e.f. 01.09.2008. In the MACP Scheme, unlike the ACP Scheme, there is no such provision/condition incorporated benchmark, seniority etc. Further, the DOP&T vide O.M. dated 09.09.2010 has provided clarifications on certain doubts raised by various Ministries/Departments in connection with the implementation of MACP Scheme. The clarification against query No.4 i.e., "Whether the benefits of MACPS would be granted from the date of entry grade or from the date of their regular service/approved service counted under the various service rules', reads as hereunder:-
"The benefits under MACPS would be available from the date of actual joining of the post in the entry grade."
15. There is a Note Dated 24.06.2011 from the Deputy Legal Adviser of the Ministry of Law and Justice, Department of Legal Affairs which is annexed as Annexure-XVII to the O.A. Serial Nos.3 and 5 of the said Note are extracted hereinbelow:
"3. After passage of long period say 6 (six) years with the changed circumstances of the country in the horizon, the DOPT formed a policy regarding the grant of financial benefits, to the employee who was bestowed with the ACP vide its OM No.35034/3/2008-Estt (D) Dt.09.09.2010 (refer to F/G), clarification against the query no.4) reads as follows:-
Sl.No. POINT OF DOUBT CLARIFICATION
4.
Whether the benefit of MACPS would be granted from th date of entry grade or from the date of their regular service/approved service counted under various service rules.
The benefits under MACPS would be available from the date of actual joining of the post in the entry grade.
5. But now presently the DOPT which is the nodal ministry for services matters, has itself framed a broader policy to give more financial benefits to the employees who have been given the ACP like in this case from the date of actual joining of the post in the entry grade. This policy of the DOPT as described in (F/G) is rather, conductive & congenial to the judgment (F/F) of the Supreme Court, because what the Apex Court thought to give now the DOPT is giving more than of that, which on no way can be a violation to the order of the Apex Court. So, we are of the considered opinion that the referring departmental should follow the OM NO.35034/3/2008-Estt.(D), Dt. 09.09.2010 (F/G) of the DOP&T."
16. We note that even after passing of the order dated 10.09.2003 by the Hon'ble Supreme Court, the office of the Director General of Health Services, vide its letter of corrigendum dated 01.09.2011 stated that:"The employee will be entitled to get the benefit from the date of actual joining of the post in the entry grade." Further, the Hon'ble Apex Court in its order dated 10.09.2003 did not place any embargo in extending more benefits than the benefits of ACP as provided under MACP Scheme. Rather the Hon'ble Apex Court in a number of decisions has held that there must be avenues for at least two promotions to the employees in every wing of public service. The MACP Scheme was professed under the said principle and philosophy of the Hon'ble Apex Court.
17. In our view, since the applicants were absorbed by way of merger of MOFRS with NMEP (now NVBDCP). The action of the respondents in denying them the benefit of MACP by not counting their past services from the actual date of joining in the entry grade is not sustainable in law.
18. In view of the foregoing discussions and in view of the clarifications on MACP as well as the ratio laid down by the Hon'ble Supreme Court and the Hon'ble Gauhati High Court, we set aside and quash the impugned letters dated 15.03.2013 and 05.04.2013 and direct the respondents to continue extending the benefit of MACP to the applicants by counting their service from the date of their joining of posts in the entry grade i.e. taking into account their services rendered in MOFRS prior to its merger with NMEP (now NVBDCP).
19. In the result, the O.A. stands allowed. There shall be no order as to costs."
Taking into consideration the aforesaid factual background and the reasoning given by the Guwahati Bench of Tribunal in the order dated 25.06.2015, which has attained finality, as on basis of the same, the impugned order dated 21.12.2015 has been passed, we are of the view that the impugned order dated 21.12.2015 is not liable to be interfered by this Court in exercise of power under Article 226 of the Constitution of India.
For the foregoing reasons, the writ petition lacks merit accordingly it is dismissed. No order as to costs.
(Saurabh Lavania,J.) (Anil Kumar,J.)
Order Date :- 9.1.2020
Vinay/-