Central Administrative Tribunal - Jodhpur
Chhagan Lal vs M/O Communications on 23 April, 2025
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290/00474/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00474/2016
Reserved on : 27.02.2025
Date of Pronouncement: 23.04.2025
CORAM
HON'BLE Mr JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE Dr AMIT SAHAI, MEMBER (A)
Chhagan Lal S/o Late Shri Khem Das, Aged about 57 years, b/c
Swamy (OBC), R/o 5th Patty, Ladnu, District-Nagaur (Office
Address:- Employed as Sub Post Master at Nimbi Jodhan post
office under SPO, Nagaur Division, Nagaur).
......Applicant
By Advocate : Mr S.P. Singh.
Versus
1. Union of India through the Secretary, Government of
India, Ministry of Communication, Department of Post, Dak
Tar Bhawan, New Delhi.
2. The Chief Postmaster General, Rajasthan Circle, Jaipur.
3. The Assistant Director (Staff), O/o the Chief Postmaster
General, Rajasthan Circle, Jaipur-302007.
4. Director of Postal Services, O/o Postmaster General Office,
Western Region, Jaipur.
5. Superintendent of Post Offices, Nagaur Division, Nagaur.
6. Postmaster, Head Post Office, Didwana-341 303.
......Respondents
By Advocate : Mr K.S. Yadav.
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290/00474/2016
ORDER
Per : Hon'ble Mr Justice Rameshwar Vyas Being aggrieved by order dated 12.08.2016, whereby, representation preferred by the applicant against withdrawal of 3rd financial upgradation under Modified Assured Career Progression Scheme [MACPS] was rejected, the applicant has filed this OA with prayer to quash and set aside above order and also seeks direction to restrain the respondents to recover Rs 1,32,672/- pursuant to withdrawal of financial upgradation under MACPS.
2. The facts necessary to adjudicate this OA are as under:-
2.1 The applicant was appointed as Postal Assistant (PA) on 28.04.1979. After completion of 16 years & 26 years regular service, he was granted financial upgradation under TBOP & BCR in the year 1995 & 2005 respectively. Thereafter, vide order dated 19.01.2011 (Annex. A/3), the applicant was granted 3rd financial upgradation under MACPS w.e.f. 14.05.2009 in PB-2 [9300-34800 with grade pay of Rs 4600/-
] on completion of 30 years regular service. Meanwhile, in the year 1992, the applicant appeared in the departmental examination for selection to the post of Junior Accounts Officer (JAO) and was declared successful but he did not join. In June, 2008, he joined the post of JAO and served for two months but on account of unavoidable circumstances, he was compelled to revert back to his previous post as PA after serving as JAO for two months only.
3290/00474/2016 2.2 It is the case of the applicant that his appointment as JAO cannot be counted as promotion for the purpose of grant of 3rd financial upgradation under MACPS. The PA and JAO are separate cadres. The respondents committed error in treating appointment as JAO as regular promotion and illegally withdrawn 3rd financial upgradation under MACPS. It is also the case of the applicant that the recovery was started without any prior notice. As per law laid down by Hon'ble Supreme Court in the matter of State of Punjab & Ors v. Rafiq Masih (white washer), AIR 2015 SC 696, recovery cannot be made for a period older than five years. The 3rd financial upgradation granted to the applicant w.e.f. 14.05.2009 was directed to be withdrawn in the month of August, 2015. It is also the case of the applicant that SPO or the DA (P) are not competent to withdraw the 3rd financial upgradation granted to the applicant under MACPS. Financial upgradation was granted to the applicant by the DPC meeting convened by the C.P.M.G. 2.3 Terming the actions of the respondents as arbitrary, it is averred that the representation filed by the applicant was rejected without any reason. Relying upon the judgment of Rafiq Masih (supra), the applicant has prayed to quash and set aside the impugned order, as also the consequent recovery.
2.4 It is the reply of the respondents that 3rd financial upgradation under MACPS was granted to the applicant inadvertently on completion of 30 years' service. The applicant was granted two financial upgradations under TBOP 4 290/00474/2016 & BCR Scheme on completion of 16 and 26 years of service respectively. He was promoted to the post of JAO against the promotional quota vacancy after qualifying Limited Departmental Competitive Examination (LDCE) held for the purpose of fast-track promotion. After joining on the promotional post, he sought reversion to the post of PA and was allowed to forgo his promotion and reverted to the post of PA w.e.f. 05.06.2008. The applicant has failed to show his entitlement for grant of 3rd financial upgradation under MACPS in view of para 25 of MACPS. Justifying the action of the respondents in withdrawing 3rd financial upgradation under MACPS, the respondents prayed to dismiss the OA.
3. Heard learned counsel for the parties and perused the material available on record.
4. It is contended by learned counsel for the applicant that promotion to the post of JAO was not a regular promotion. He was appointed to the post of JAO after successfully qualifying the LDCE, therefore, this promotion should not be counted as promotion for the purpose of grant of 3rd financial upgradation under MACPS to the applicant. In alternate, learned counsel for the applicant submitted that after withdrawal of 3rd financial upgradation under MACPS consequent recovery is against the principles laid down by Hon'ble Apex Court in Rafiq Masih's case (supra). It was contended that 3rd financial upgradation to the applicant was granted w.e.f 2009, whereas, the same was withdrawn after 5 years in the year 5 290/00474/2016 2015 which is not in accordance with the directions issued by the Hon'ble Supreme Court in Rafiq Masih's case (supra).
5. On the contrary, learned counsel for the respondents submitted that since the applicant got two financial upgradation and one promotion, he was not entitled to get the benefit of 3rd financial upgradation under MACPS. He was erroneously granted 3rd financial upgradation vide order dated 19.01.2011 (Annex. A/3). When the mistake came into the notice through audit para, the 3rd financial upgradation under MACPS granted to the applicant w.e.f. 14.05.2009 was withdrawn and consequent recovery was ordered. There is no error in withdrawing the 3rd financial upgradation. The applicant was not entitled to get the same.
6. Having regard to the contentions raised by learned counsel for the parties and material available on record, it remains not in dispute that the applicant got two financial upgradations under TBOP & BCR Scheme on completion of 16 and 26 years of service respectively. He also got one promotion after qualifying the LDCE. The controversy with regard to treating the appointment through LDCE as promotion for the purpose of grant of upgradation in MACPS has already been settled by various courts including this tribunal. In OA No. 231/2018 & connected OAs [Jhunta Ram v. Union of India & Ors] decided on 19.12.2023, this tribunal after considering various judgments observed as under :
6290/00474/2016 "9. In Ramkaran Kumhar's case, the Hon'ble Rajasthan High Court specifically opined that 'where the rules specifically provide for promotion quota, may be to be filled in by way of Limited Department Competitive Examination, the promotions made by the method as aforesaid, has to be counted as promotion for the purpose of ACP Scheme.' In the instant matters in hand, we find that there was a promotion quota for the post of Postal Assistant/Sorting Assistant to be filled up by LDCE.
The applicants got promotion under the promotion quota through Limited Departmental Competitive Examination and not through Open Competitive Examination.
Once the recruitment of the applicants through LDCE on the post of PA/SA from the post of Postman has been treated as promotion and not as Direct Recruitment by judicial verdict passed in the latest judgment by Division Bench of Hon'ble Rajasthan High Court in the matter of Ramkaran Kumhar, their recruitment on the post of PA/SA through LDCE cannot be treated as Direct Recruitment. Thus, we find no infirmity in impugned orders dated 12.05.2018 (Annex. A/1) passed by the respondents in all these OAs, rejecting their claim to treat their appointment on the post of PA/SA through LDCE as direct recruitment. Respondents rightly treated them as promoted for the purpose of grant of upgradation under Modified Assure Career Progression Scheme (MACPS)."
In view of this, in our considered opinion in the present matter also the applicant was not entitled for grant of 3rd financial upgradation under MACPS. Therefore, the respondents committed no error in withdrawing the 3rd financial upgradation granted to him vide order dated 19.01.2011 (Annex. A/3). The applicant has failed to establish his right to get 3rd financial upgradation under MACPS.
So far as the issue of recovery of excess amount paid to the applicant is concerned, the applicant is a Group 'C' 7 290/00474/2016 employee. It is not in dispute that the 3rd financial upgradation granted to the applicant was not on account of any misrepresentation on his part. In the matter of Rafiq Masih (supra), the Hon'ble Supreme Court cited following situations wherein recoveries by the employer are impermissible in law:
It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
7. The applicant's case is covered by the principles laid down in the matter of Rafiq Masih (supra). Resultantly, while maintaining the legality of the order whereby 3rd financial upgradation granted to the applicant was withdrawn, the consequent recovery from the applicant is quashed and set aside. The excess payment recovered from the applicant shall be refunded within a period of six months from the date of 8 290/00474/2016 receipt of a copy of this order. In case of failure to refund the same within stipulated time, the recovered amount shall carry an interest @6% p.a. till its actual payment.
8. In terms of above directions, OA is disposed of with no order as to costs.
(Amit Sahai) (Rameshwar Vyas)
MEMBER (A) MEMBER (J)
Ss