Central Administrative Tribunal - Madras
D Jagannathan vs D/O Post on 27 November, 2024
1 OA /310/00290/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00290/2019
Dated this the 27th day of November, Two Thousand Twenty Four
CORAM :
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
D. Jagannathan,
S/o Duraiswamy,
No.17, Natesan Nagar,
Madhavaram, Chennai. .. Applicant
By Advocate M/s. S. RamaswamyRajarajan
Vs.
1. Union of India
rep by The Chief Postmaster General
Tamil Nadu Circle,
Chennai.
2. The Superintendent of Railway Mail Service,
Chennai Sorting Division,
Chennai. .. Respondents
By Advocate Mr. Su. Srinivasan, SCGSC
2 OA /310/00290/2019
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
(i) "To direct the respondents to grant MACP III with effect from 01.10.2015 i.e., on completion of 30 years of service by taking into account the service rendered by him in APS as Warrant Officer and fix his pay and allowances accordingly and to give all consequential benefits such as arrears of pay and allowances with reasonable interest and
(ii) To pass such further or other order as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case with cost.
2. Brief facts of the case, as submitted by the applicant are as follows:
The applicant was selected as a Sorting Assistant in 1982 and placed in the Reserved Trained Pool (RTP). During this period, he voluntarily joined the Army Postal Service (APS) and served as a Warrant Officer from 1985 to 1991. Upon completing his tenure, he returned to the Postal Department and resumed his position as a Sorting Assistant. Subsequently, he was granted financial upgradations under the TBOP scheme, as well as MACP II, taking into account his service in the APS. However, despite completing 30 years of service, the respondents have not granted him MACP III. In response, the applicant submitted representations on 27.06.2018 and 18.07.2018 to the 2nd and 1st respondents, respectively,
3 OA /310/00290/2019 requesting the grant of MACP III effective from 01.01.2015, the date he completed 30 years of service. To date, no action has been taken to address his grievance. Consequently, the applicant has filed the present OA before this Tribunal seeking remedy and justice.
3. The learned counsel for the applicant argued that the applicant had already received financial upgradation under the MACP Scheme, with MACP II granted through an order dated 16.07.2010, effective from 01.09.2008. This upgradation took into account the applicant's service in the Army Postal Service as a Warrant Officer. However, the applicant has been denied MACP III, with the respondents stating that service rendered on an ad hoc or contract basis prior to regular appointment or pre- appointment training cannot be considered for MACP eligibility. The counsel contended that this reasoning is unreasonable, given that the applicant's previous service in the Army Postal Service was already recognized when granting MACP II.
4. Additionally, the counsel argued that the 1st respondent rejected the applicant's request for MACP III in an order dated 18.02.2019, citing that the service in the Army Postal Service was on an ad hoc basis and, therefore, not eligible for MACP. However, the 1st respondent failed to consider the observations made by the Hon'ble High Court of Kerala in OP(CAT) No.33 of 2016, which clearly stated that "while the petitioners 4 OA /310/00290/2019 were in RTP (Reserve Trained Pool), 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, and they were appointed to the regular service of the Postal Department without any break in service." The Court further emphasized that the continuous service of the employees should be recognized from the date they were appointed as Warrant Officers in the Army Postal Service, a principle also upheld by the Hon'ble Madras High Court in WP No.21293 of 2016, where the petitioner was granted similar benefits.
5. He also submitted that, in accordance with the judgments of the Hon'ble Kerala High Court and the Hon'ble Madras High Court cited above, this Tribunal granted relief in favor of the applicants in OA No. 498/2020 (order dated 07.12.2022) and OA No. 199/2019 (order dated 08.04.2024). Therefore, he prayed for the relief sought in the present OA.
6. On the other hand, the learned counsel for the respondents, referring to the reply statement, vehemently opposed the applicant's submissions. The main argument put forth by the respondents is that there has been undue delay and laches in seeking relief. The counsel further contended that since the applicant had not pursued the relief within the prescribed time frame and had delayed the matter for many years, he is now a "fence 5 OA /310/00290/2019 sitter." Additionally, the judgments relied upon by the applicant apply only to the specific individuals in those cases and are judgments in personam, not judgments in rem. The counsel cited the following judgments in support of the respondents' position: (i) UP Power Corporation, reported in 2021 (13) SCC 225, (ii) LIC v. Shree Lal Meena, reported in 2019 (4) SCC 479, (iii) Jagadish Lal v. State of Haryana & others, reported in AIR 1997 SC 2366, and (iv) State of Karnataka v. SM Kotrayya & others, reported in 1966 (6) SCC 267. Based on these grounds, the counsel prayed for the dismissal of the OA.
7. We have heard both the parties at length, perused the pleadings, and the materials placed on record. We have also carefully gone through the judgments relied upon by the respective parties.
8. We find that the issue is no more res integra and the Hon'ble High Court of Madras vide its order, dated 08.12.2017 has allowed similar relief in WP No.21293 of 2016 by quashing the order, dated 27.11.2015 of this Tribunal in OA No.807 of 2014. The relevant portions of the order are extracted below:
"5. On a perusal of the judgment of the High Court of Kerala at Ernakulam, in O.P. (CAT) No.33 of 2016 (2), dated
09.02.2016, which has been relied upon by the learned counsel for the petitioner, we find that the said order squarely applies to the facts and circumstances of the present case. In 6 OA /310/00290/2019 that case, the first applicant therein and others were appointed as Warrant Officers in the Army Postal Service in the regular service. The first applicant therein was regularly appointed on 28.05.1990 and he was discharged from the Army Postal Service on 27.06.1991. Their appointments to the Army Postal Service were on regular service, though they were borne in the Postal Service in the Reserve Trained Pool. Therefore, it was held that their continuous service had to be reckoned from the dates on which they were appointed as Warrant Officers in the Army Postal Service. We are not having any second opinion over this aspect.
6. The petitioner herein has been appointed in the regular service in the Postal Department and thereafter, on his request, appointed as Warrant Officer in the Army Postal Service and having been discharged from such service, he joined the Postal Department without break in service. In view of the above judgment of the Hon'ble Kerala High Court which squarely applies to the facts and circumstances of the present case, we hereby quash the impugned order, dated 27.11.2015, passed by the Tribunal in O.A.No.807 of 2014 and hold that the continuous service of the petitioner herein had to be reckoned by taking into account the service rendered by the petitioner in Army Postal Service as Warrant Officer and accordingly the second financial upgradation under the MACP Scheme shall be conferred. "
9. We find that the Ernakulam Bench of this Tribunal has dealt with similar issue in OA No.79 of 2013 and vide its order, dated 05.08.2015, held as follows:
"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 7 OA /310/00290/2019 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."
10. Further, it is also seen that the order, dated 09.02.2016 of the Ernakulam Bench of this Tribunal, in a similar matter was upheld by the Hon'ble High court of Kerala vide its judgment, dated 30.03.2017 in OP (CAT) No.99/2017 (Z), 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."
11. It is also to be noted that the Chandigarh Bench of this Tribunal has dealt with similar issue in OA No.343/2017, and vide order, dated 16.08.2018, 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 (OA060/00343/2017) 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 8 OA /310/00290/2019 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. Furthermore, the Chennai Bench has addressed a similar issue in OA No. 32/2016, with an order, dated 30.08.2019, OA No. 498/2020, with an order, dated 07.12.2022, and OA No. 199/2019, with an order, dated 08.04.2024. The decisions cited by the respondents primarily focus on delay, laches, and the concept of a "fence sitter." However, we note that the applicant made representations in 2016 and 2018 and subsequently approached this Tribunal through the present OA in 2019. Therefore, we find no undue delay on the part of the applicant in approaching this Tribunal. As a result, the decisions relied upon by the respondents concerning delay and laches are not applicable in this case.
13. On the other hand, the judgments/orders relied upon the applicant 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 9 OA /310/00290/2019 would amount to discrimination and would be violative of Article 14of 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.
14. In light of the above, we are of the considered opinion that the issue raised in the present OA is no longer res integra, as it is fully addressed by the order passed by this Bench, as well as the decisions of the coordinate Benches of this Tribunal, which have been upheld by the Hon'ble High Courts. Additionally, as observed by the Hon'ble Supreme Court in the cited judgments, persons in identical situations cannot be treated differently, and failure to do so would constitute discrimination, violating Article 14 of the Constitution of India.
15. In view of the above, we direct the respondents to grant MACP III to the applicant, effective from 01.10.2015, i.e., upon the completion of 30 years of service, taking into account the service rendered by the applicant in the APS as a Warrant Officer. The respondents are further directed to 10 OA /310/00290/2019 fix the applicant's pay and allowances accordingly and to provide all consequential benefits, including arrears of pay and allowances (without interest). This exercise shall be completed within 3 months from the receipt of a copy of this order. In case of non-payment within the stipulated period, the applicant shall be entitled to interest at the rate of 6% per annum.
16. With the above direction, the OA is allowed. No order as to costs.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
27 .11.2024
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