Central Administrative Tribunal - Madras
P Ravindra Kumar vs D/O Post on 11 December, 2024
1 OA No. 497/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00497/2020
Dated this, the 11th day of December Two Thousand Twenty Four
CORAM : HON'BLE MS. VEENA KOTHAVALE, Member (J)
HON'BLE MR. SISIR KUMAR RATHO, Member (A)
P.Ravindra Kumar, Grade-I Postmaster (Retd),
Vellore Postal Division,
Residing at : No. 62, S. K. Ram Nagar,
(Near Ariyur Rly Gate),
Thorapadi, Vellore 632002. .....Applicant
By Advocate M/s. P. R. Satyanarayanan
Vs.
Union of India, rep by,
1.The Secretary,
Department of Posts,
Ministry of Communications & IT,
Dak Bhavan, New Delhi 110001.
2.The Chief Postmaster General,
Tamil Nadu Circle,
Chennai 600002.
3.Postmaster General,
Chennai City Region,
Chennai 600002.
4.The General Manager,
Postal Accounts and Finance,
Tamil Nadu Circle, Chennai 600008.
5.The Superintendent of Post Offices,
Vellore Division,
Vellore 632001. ....Respondents
By Advocate Mr. Su. Srinivasan, SCGSC
2 OA No. 497/2020
ORDER
(Pronounced by Hon'ble Mr. Sisir Kumar Ratho, Member(A)) This OA has been filed by the applicant seeking the following reliefs:-
"to call for records relating to (i) proceedings. No. B383 dated 27.05.2019 (ii) Letter No. B1/383-ACCT dated 16.01.2020 issued by the fifth respondent which has been confirmed on appeal by proceedings No. STA/2-111/MACP Dlgs/2020 dated 18.08.2020 issued by the second respondent and quash them as arbitrary, irrational and illegal and direct the respondents I. to restore 3rd MACP benefits i.e. Grade Pay of Rs 4200/- already granted to the applicant with effect from 16.04.2009 in Memo. No.B-1/MACP/Dlgs dated 13.07.2010 issued by the fifth respondent;
II. to refund the amount of Rs. 2,31,460/- credited by the applicant on 20.07.2019 due to retrospective revision of date of effect of MACP-III; III. revise the pensionary and all other consequential benefits. and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice."
2. The facts of the case as submitted by the Applicant, are as follows, in brief:
2.1. The applicant submits that he was appointed as Group 'D' on 30.12.1982 and he was promoted as Postal Assistant through Limited Competitive Examination in w.e.f. 01.04.1989. On completion of 16 years of service as Postal Assistant, the applicant was granted financial upgradation wef 15.04.2005 under earlier TBOP scheme and w.e.f. 01.01.2006, the applicant was placed in the 6th CPC pay scale PB-1(Rs 5,200-20,200) with Grade Pay 2800/-.3 OA No. 497/2020
2.2. The applicant submits that as he completed 20 years of service as Postal Assistant without any promotion in his promotional hierarchy, he was granted another financial upgradation in Postal Assistant cadre MACP-III w.e.f. 16.04.2009 vide memo No. B-1/MACP/Digs dated 13.07.2010 issued by the fifth respondent and the applicant was granted Grade Pay of Rs 4200/- in PB-1(Rs 5200-20200). But, after his retirement on superannuation on 30.04.2019, by a corrigendum No. B383 dated 27.05.2019 issued by the fifth respondent, the date of effect of MACP-III already granted to the applicant w.e.f. 16.04.2009 was unilaterally modified as 15.01.2013 without adducing any reason and without issuing any show cause notice and his 'grade pay' was also reduced from Rs 4200/- to Rs. 2800/- with retrospective effect. As a result, the applicant was also compelled to credit Rs. 2,31,460/-
under 'UCR' towards alleged overpayment of pay and allowances. The applicant therefore credited Rs. 2,31,640/- under UCR at Thorapadi SO on 20.07.2019 without prejudice to his right to claim the amount on a later date. His retirement benefits were paid only on 17.07.2019. 2.3. The applicant contends that before issuing the corrigendum dated 27.05.2019, the respondents have conducted a 'review DPC' in response to an observation made by the fourth respondent while processing his pension papers that grant of MACP-III to the applicant before completion of 30 years of service was not in order.
4 OA No. 497/20202.4. The applicant submits that as per the illustrations given in OM No. 4- 7/(MACPS)/2009-PCC dated 18.9.2009 issued by Department of Posts, the applicant is eligible for grant of MACP-III w.e.f. 16.04.2009. The applicant submits that he therefore represented to the fifth respondent on 21.12.2019 seeking to restore the original date of MACP-III and to refund the sum of Rs. 2,31,640/-. But by letter No.B1/383-ACCT dated 16.01.2020, the fifth respondent rejected the justified claim of the applicant taking recourse to the 'safety clause' in the order dated 13.07.2010 granting MACP-III to the applicant and without in any manner informing how the earlier decision to grant MACP-III wef 16.04.2009 was 'not in order'.
2.5. The applicant submits that against the order dated 16.01.2020 passed by the fifth respondent, the applicant preferred a detailed appeal to the first respondent on 04.04.2020 quoting how the provisions/illustrations given in the circulars squarely apply to the case of the applicant. But without going into the any of the aspects highlighted in the appeal dated 04.04.2020, by a non-speaking order No. STA/2-111/MACP Dlgs/2020 dated 18.08.2020, the second respondent has upheld the retrospective modification of the date of effect of MACP-III w.e.f. 15.01.2013 as per the observations made by the fourth respondent in connection with the processing of pension case of the applicant.
5 OA No. 497/20202.6. The applicant submits that the respondents have not objectively considered the claim of the applicant and based on total misconception and erroneous interpretation of the scheme, the respondents have rejected the justified claim of the applicant and as a result, the applicant has been put to a lot financial hardship and suffering due to retrospective revision of date of effect of MACP-III and also recovery of Rs. 2,31,640/- after retirement, which is opposed to the guidelines issued in GOI DOPT OM F. No 18/03/2015-Estt- (PA-I) dated 02.03.2016.
2.7. Aggrieved, the applicant has filed this OA.
3.1. The respondents have filed reply opposing the relief prayed by the applicant. It is submitted that the applicant was initially appointed as MTS in APS and then promoted to PA Cadre. His service particulars are as follows:-
i. Initial appointment of the official : 30.12.1982(Group D) ii. Promoted to PA cadre w.e.f. : 01.04.1989 iii. Granted TBOP promotion on completion of 16 years of service in PA cadre) : 15.04.2005 3.2. The applicant was granted MACP - III w.e.f. 16.04.2009 on completion of 20 years of service in Postal Assistant (PA) cadre with grade pay Rs 4200/- vide this respondent' office memo No.B1/MACP/Dlgs dated 13.07.2010. In this regard, it is intimated that as per DoP & T guidelines on 6 OA No. 497/2020 MACP vide DOP & T OM dtd. 19.5.2009, if an official has already availed 2 promotions prior to the introduction of the Scheme, then he / she will be eligible for third MACP only on completion of 30 years of service from the entry grade or 10 years of service in the same grade / grade pay. However, in the instant case, MACP III was inadvertently granted to the applicant on completion of 20 years of service in PA cadre.
3.3. The above fact was observed by the 4th respondent while processing the pension case of the applicant and it was instructed vide letter dt.
11.1.2019 of 4th respondent, to review the eligibility of MACP-III and regulate the pay and allowances of the applicant since the grant was of MACP III w.e.f. 16.4.2009 was not in order. Accordingly, the review DSC was conducted on 29.04.2019. Third financial upgradation granted under MACP was modified from 16.04.09 to 15.01.13 and same was communicated to the applicant vide 5th respondent memo no. B383 dated 27.05.2019. The applicant credited the excess paid amount of Rs. 2,31,460 due to the revision of MACP-III under UCR on 20.7.2019. 3.4. The applicant submitted a representation dated 21.12.19 requesting to refund the amount credited by him under UCR with an interest of 24% and also to sanction the interest on the delayed payments of retirement benefits and the same was disposed of vide letter did 16.1.2020 quoting in point. no. 10 of 5th respondent vide memo No B1/MACP/Digs dated 13.07.10 issued 7 OA No. 497/2020 in connection with his MACP promotion, in which it was clearly stated that "The officials are informed that they are eligible for financial upgradation under the scheme on completion of eligible service for MACP and if at a later date it is found that any official is not eligible for financial upgradation on the given date, the same is liable to be modified/cancelled." 3.5. The applicant preferred an appeal to the 2nd respondent viz., on 04.04.2020 and same was disposed of vide second respondent letter no. STA/2-111/MACP Dlgs dt. 18.8.2020 informing that "as per MACP guidelines, MACP III has to be awarded either on completion of 10 years in the same grade pay or on completion of 30 years of service whichever is earlier. Hence MACP III granted on completion of twenty years of service in PA cadre w.e.f. 16.4.2009 instead of 15.1.2013 is not correct one." 3.6. Based on the accepted recommendations of 6th Pay Commission, the Central Government introduced the Scheme for Modified Assured Career Progression vide OM No. 35034/3/2008-Estt(D) dt. 19.5.2009 of the Department of Personnel and Training and the scheme was implemented by the Department of Posts in letter No. 4-7(MACPS)/2009-Pcc dt. 18.9.2009 of Postal Directorate. It is submitted that the main purpose of introduction of this scheme is to overlook the problem of stagnation in the career without financial upgradation/promotion. As per the MACP guidelines issued by the nodal Department, DOP & T, there shall be three financial upgradations 8 OA No. 497/2020 under the MACPs counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively. Financial upgradation under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay. It is further submitted that as per the MACP guidelines, if a government servant has been granted two promotions or 2nd financial upgradation then only 3rd financial upgradation would be admissible to him under the MACPs on completion of 30 years of service provided that he has not earned third promotion in the hierarchy. The MACP scheme is effective from 1.9.2008 only. Financial upgradations under MACPs cannot be conferred prior to 1.9.2008.
3.7. The respondents submit that in the instant case, the applicant's promotion from Group D to PA cadre w.e.f. 1.4.1989 offsets MACP-I & his financial upgradation under TBOP offsets MACP-II and therefore he is eligible for MACP III only on 15.1.2013 on completion of thirty years of service from entry cadre. However, the applicant was inadvertently granted MACP III on completion of 20 years of service in PA cadre in contravention of MACP guidelines on the subject. Hence the MACP-III granted to the applicant w.e.f. 16.4.2009 was modified to 15.1.2013 through Review Departmental Screening Committee and the pay and allowances were regulated accordingly. The date of modification of MACP-III from 16.04.09 to 15.01.13 was communicated to him vide 5th respondent memo dated 9 OA No. 497/2020 27.05.19 to the applicant. The authority for payment of pension and other benefits were issued by 4th respondent vide memo No. Postal/2019/TN/57670 dated 05.07.19. Sanctions in respect of retirement gratuity and commutation were issued vide 5th respondent memo. No.C- 1/12/456/2019-20 dated 09.07.19. Hence it is submitted that there was no delay on the part of administration in effecting payment of pension and other benefits to the applicant.
3.8. The respondents have denied the averment of the applicant that that he has completed 20 years of service as Postal Assistant without any promotion in promotion hierarchy. The applicant was granted Time Bound One promotion w.e.f. 15.4.2005, on completion of 16 years of service in PA cadre. This fact has not been considered by him while claiming MACP on completion of 20 years of service. It is submitted that as MACP-III was granted inadvertently w.e.f. 16.4.2009, the same was modified as 15.01.2013 as observed by the 4th respondent, after conducting a review DSC on 29.04.2019. Consequently, his Grade Pay was reduced from Rs. 4200/- to Rs 2800/- with retrospective effect. Hence the averment of the applicant that the date of MACP III was modified from 16.4.2009 to 15.1.2013 unilaterally is incorrect.
3.9. The respondents contend that the applicant had not stagnated for 20 years as Postal Assistant. As the applicant has already got one promotion / 10 OA No. 497/2020 one financial upgradation, he is eligible for 3rd financial upgradation on completion of 10 years of service in Grade pay from the date 2nd promotion i.e 30.04.2015 or on completion of 30 years of service i.e., 15.01.2013 from date of entry ie., 30.12.1982. Hence the modification of date of effect of MACP-III from 16.4.2009 to 15.1.2013 and the deposit of excess paid amount of Rs. 2,31,460/- by the applicant is in order as per the MACP guidelines. Accordingly, the respondents have prayed for dismissal of the OA as devoid of merits.
4. Heard both sides and perused the records as well as the written submissions filed by the respective parties.
5. Learned counsel for the applicant has relied upon the following orders in support of his arguments :-
i. Order dt. 17.10.2016 of this Bench of the Tribunal in OA No. 1486/2013 in the case of T. Rajavarmacholan Vs. Union of India, rep by the Chief Postmaster General, TN Circle and ors;
ii. Order dt. 21.12.2023 of the Hon. Madras High Court in WP No. 1354/2018 in the case of Union of India rep by the CPMG, TN Circle and ors Vs. T. Rajavarmacholan and anr;
iii. Order dt. 15.02.2023 of this Bench of the Tribunal in OA No. 1662/2016 in the case of S. Bhoopathi Vs. Union of India rep by Postmaster General, and anr;11 OA No. 497/2020
iv. Order dt. 22.01.2024 of the Hon. Madras High Court in WP No. 1245 of 2024 in the case of Union of India rep by Postmaster General and anr Vs. Shri. S. Boopathi and anr;
v. Order dt. 21.07.2017 of the CAT-Bangalore Bench in OA No. 187/2016 in the case of M.S.Sharma Vs. Union of India, rep by the Secretary, Ministry of Railways and ors;
vi. Order dt. 08.01.2018 of the Hon. Karnataka High Court in WP No. 47005/2017 (S-CAT) in the case of The Union of India, rep by Secretary, Ministry of Railways Vs. M. S. Sharma, 2018 SCC OnLine Kar 38; vii. Order dt. 30.09.2019 of the Hon. Supreme Court in SLP (C) Dy. No. 33060/2019 in the case of The Union of India and ors Vs. M. S. Sharma; viii. Order dt. 01.09.2016, of the Hon. Madras High Court in WP No. 16143 of 2016 in the case of T. Thirumalai Vs. Union of India and ors, 2016 SCC OnLine Mad 23630;
ix. Judgment dt. 23.08.2018 of the Hon. Punjab and Haryana High Court in Civil Writ Petition No. 13953 of 2018 in the case of Union of India and ors Vs. Central Administrative Tribunal, Chandigarh Bench and anr; x. Order dt. 10.07.2023 of this Bench of the Tribunal in OA No. 565/2018 in the case of A. M. Jeyarajasekar Vs. Union of India, rep by Postmaster General and anr;12 OA No. 497/2020
xi. Order dt. 18.12.2023 of this Bench of the Tribunal in OA No. 1946/2017 in the case of L. Zackrias and ors Vs. Union of India, rep by Postmaster General and anr;
xii. Order dt. 17.04.2024 of this Bench of the Tribunal in OA No. 1300/2019 in the case of K. Elumalai - II Vs. Union of India, rep by the Secretary, Department of Posts and ors;
xiii. Judgment dt. 18.12.2014 of the Hon. Supreme Court in CA No. 11527 of 2014 (Arising out of SLP (C) No. 11684 of 2012) in the case of State of Punjab & Ors etc Vs. Rafiq Masih (White Washer) etc.
6. Learned counsel for the respondents has relied upon the following judgments in support of his arguments :-
i. Judgment dt. 05.03.2020 of the Hon. Supreme Court in Civil Appeal Nos. 2016 of 2020 and batch in the case of Union of India and ors Vs. M. V. Mohanan Nair, (2020) 5 SCC 421;
ii. Judgment dt. 08.03.2022 of the Hon. Supreme Court in Civil Appeal No. 1880 of 2022 in the case of The Vice Chairman, Delhi Development Authority Vs. Narender Kumar & ors, 2022 LiveLaw (SC) 261; iii. Order dt. 02.02.2022 of the CAT-Bangalore Bench in OA No. 390/2020 in the case of I.A.Nagendra Rao Vs. Union of India, rep by GM, SWR, Hubballi and anr;13 OA No. 497/2020
iv. Order dt. 11.08.2022 of the Hon. Karnataka High Court in WP No. 201842/2019 (S-CAT) in the case of Union of India, rep by Secretary, Department of Posts and ors Vs. Sri. Vishwanath;
v. Judgment dt. 17.08.2023 of the Hon. Supreme Court in Civil Appeal Nos. 5195-5201 of 2012 in the case of Secundrabad Club etc Vs. CIT-V etc, 2023 LiveLaw (SC) 660;
vi. Judgment dt. 18.07.1991 of the Hon. Supreme Court in Civil Appeal No. 2722 (NT) of 1991 in the case of State of UP and anr Vs. Synthetics and Chemicals Ltd and anr, (1991) 4 SCC 139;
vii. Judgment dt. 28.04.2021 of the Hon. Supreme Court in Civil Appeal Nos. 1579 of 2021 and batch in the case of Union of India Vs. R. K. Sharma and ors, (2021) 5 SCC 579;
viii. Judgment dt. 27.11.2018 of the Hon. Karnataka High Court in WP No. 102322/2018 (S-CAT) in the case of Union of India, rep by the Secretary, Department of Posts and ors Vs. Smt. R. K. Kulkarni; ix. Judgment dt. 02.08.2018 of the Hon. Karnataka High Court in WP No. 57935/2017 (S-CAT) in the case of Union of India, rep by Secretary, Department of Posts and ors Vs. M. G. Shivalingappa; x. Judgment dt. 06.06.2022 of the Hon. Madras High Court in WP No. 16818 of 2017 and batch in the case of N. Selvan Vs. Union of India rep by Senior Superintendent of Post Offices and anr.14 OA No. 497/2020
7. The logical conclusion to the vexed issue of MACP - III lies in the answer to the following questions:-
i. Whether MACP - III can be granted on completion of 20 years of service from the date of last promotion ignoring the financial upgradation granted under TBOP Scheme ?
ii. Whether a gap of 10 years between grant of TBOP / ACP-II / MACP
- II and MACP - III is mandatory or not?
8. In order to understand the issue, the relevant guidelines, government instructions and clarifications are extracted below for reference:
8.1. (A) Para 1 of the MACP Scheme :
"1. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively Financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade-pay."
8.2. A bare perusal of this para shows that before grant of MACP-III, the following two conditions have to be met :-
i. The person needs to complete 30 years of service counted from the direct entry date, ii. The person has to spend 10 years continuously in the same Grade Pay. 8.3. In the present case, the applicant would complete 30 years of service in the direct entry grade on 30.12.2012, his date of initial appointment as MTS being 30.12.1982. Therefore, he does not fulfil the 1st condition on 16.04.2009.15 OA No. 497/2020
8.4. The applicant was granted financial upgradation in TBOP on 15.04.2005 and was placed in Grade Pay Rs. 2800/- w.e.f. 01.01.2006.
Therefore, on 16.04.2009, he has served only 3 years 4 months 16 days only in the grade pay of Rs. 2800/-. Thus, he does not qualify the second condition as he would complete 10 years continuously in the same grade pay only on 01.01.2016.
8.5. (B) Para 28 of the MACP scheme vide OM dt. 19th May 2009 of DoPT reads as follows :-
"28. Illustrations A (i) lf a Government servant (LDC) in PB-1 in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in the PB-1 in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the MACPS in the PB-1 in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get any promotion thereafter, then he would get 3rd financial upgradation in the PB-ll in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10). "
8.6. As per the illustration, the applicant does not qualifies the condition of 28 A (i) as he was in the same grade pay / post for 16 years ie., from 1989 to 2005 instead of 10 years provided in the illustration 28 A (i). The provision in para 28 A (ii) would apply only when one meets the parameters in 28 A
(i). This is qualified by the word "further 10 years" in 28 A (ii) to mean that there has to be gap of 10 years between two MACPs. This has been further emphasized by the fact that instead of mentioning just 28 years it has been 16 OA No. 497/2020 mentioned "28 years (8 + 10 + 10)" thereby meaning that they are separate event with a clear gap of 10 years and cannot be clubbed arithmetically. 8.7. (C) The Department of Posts vide their letter dt. 18.10.2010 has issued certain clarification with regard to delay and irregularities in the implementation of MACP. The relevant portion for MACP-III is reproduced below :-
"
SL Point on which clarification Status Position
NO sought
1 Eligibility of MACPS to a Attention is drawn to Para No. 28 of
direct recruited Postal Annexure-I to this office OM dated 18-09-
Assistant conferred with 2009. It is stated that a directly recruited TBOP - Postal Assistant who got one financial upgradation under TBOP Scheme after It has been represented that in rendering 16 years of service before some Circles the directly 01.09.2008, will become eligible to 2nd recruited Postal Assistants MACP on completion of 20 years of who were accorded financial continuous service from date of entry in up gradation under one time Government service or 10 years service in bound promotion scheme on TBOP grade pay or scale or combination completion of 16 years of of both, whichever is earlier, However, satisfactory service are not financial upgradation under MACPS being given the 2nd MACPS cannot be conferred from a date prior to on the ground that the 01.09.2008 and such 2nd financial officials have not completed upgradation for the above referred category 10 years of service TBОР of officials has to be given from Scale/Grade with grade pay 01.09.2008. They will also become of Rs.2800. eligible for 3 MACP on completion of 30 years of service or after rendering 10 years in 2nd MACP whichever is earlier.
"
8.8. This clarification under Status Position further reiterates that although MACP-II can be granted on completion of 20 years of service or 10 years of service in TBOP same grade pay, whichever is earlier, the same concession has not been extended to MACP-III. The last sentence makes it clear that 3rd 17 OA No. 497/2020 MACP will be admissible, only when the employee completes 30 years of service or on completion of 10 years in MACP-II, whichever is earlier. 8.9. (D) The DoPT, in pursuance to the order of Hon'ble Supreme Court in Union of India and ors Vs. M. V. Mohanan Nair has issued further clarification vide their OM dt. 05.04.2021. The relevant para is extracted below :-
"Item No. 9: Employees who got one promotion or 1" ACP prior to 01.09.2008 and have completed over two decades of service without benefit of promotion may be granted third upgradation under the MACPS on 1.9.2008 (Para 12 of Minutes of the meeting of Joint Committee held on 27.07.2012). Decision: As per the MACPS guidelines, there shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively, or after 10 years of continuous service in the same Grade Pay or Pay Level in Pay Matrix, whichever is earlier. Thus, those employees who got either one promotion or 1st ACP before 1.1.2006 and who did not earn any promotion or 2nd ACP during 1.1.2006 to 31.8.2008, are eligible for 2nd MACP on or after 1.9.2008 (i.e. due on completion of 20 Years) and 3rd MACP after 30 years of service or 10 years in the same Grade Pay/Pay Level, as the case may be, if found otherwise eligible. Hence, there is no ground for grant of 3 MACP straight away on 1.9.2008, without the employee earning 2nd MACP, as per provisions of the MACPS. Therefore, the request of the Staff Side cannot be acceded to and the item is treated as closed."
9. Based on the readings of the MACP guidelines and subsequent clarification cited at (A), (B), (C), (D) above, it is abundantly clear that there is no explicit instruction for grant of MACP-III on completion of 20 years of service from the date of last promotion. The MACP-III shall be admissible after a gap of 10 years from TBOP/ACP-II/MACP-II. The only exception is when a person completes 30 years of service before completing 10 years after grant of TBOP/ACP-II/MACP-III.
18 OA No. 497/2020
10. Now, let us examine the citations submitted by both the applicants and respondents. Learned counsel for the applicant strongly argued that this case is no more res nova and it is squarely covered by the order dt. 21.12.2023 of the Hon'ble Madras High Court in WP No. 1354/2018 and WP No. 1245/2024 as well as series of orders by the co-ordinate benches of this Tribunal. The counsel for applicant has cited specifically the judgment of Hon'ble High Court of Madras in WP No. 1354 of 2018. The relevant portion of the same is extracted below :-
"8. The main issue in this case is whether the TBOP granted to the 1st respondent is a actual promotion or only a financial upgradation. In this context, the learned counsel appearing for the 1st respondent has produced the Official Memorandum of the Ministry of Communications & IT, Department of Posts dated 18.09.2009. On careful perusal of the above said Official Memorandum, it reveals that in Para 12, it has been stated as follows:-
"12. Any interpretation/clarification or doubt as to the scope and meaning of the provisions of the MACP Scheme given by the Department of Personnel and Training (Establishment~D) will be further communicated by the Establishment Division of the Directorate. The Scheme would be operational w.e.f. 01.09.2008 and financial upgradations as per the provisions of the earlier ACP Scheme (of August, 1999)/TBOP/BCR Schemes of the Department of Posts would be granted till 31.08.2008".
Therefore, on careful reading of the above Memorandum, it is clear that TBOP is only a financial upgradation and it is not an actual promotion.
9. As per the Scheme, in Annexure I, illustrations 28 A.(i) & (ii), it has been clearly indicated that "In case he does not get any promotion thereafter, then he would get 3rd financial upgradation in the PB~2 in Grade Pay of Rs.4200 on completion of further 10 years of service i.e., after 28 years (8+10+10). In this case also, the petitioners have not granted promotion to the 1st respondent in the cadre of Postal Assistant for more than 20 years. The 1st promotion was in the year 1987 and thereafter, the 1st respondent was given Time Bound One Promotion (TBOP) i.e., financial upgradation with effect from 14.09.2003. Since the 1st respondent has completed 21 years of service as 'Postal Assistant' on 01.09.2008, he is eligible for the next financial upgradation ie., MACP III w.e.from 01.09.2008 under new MACP Scheme. But he was not given MACP III on the ground that he had not completed 10 years of service from the date of 19 OA No. 497/2020 last upgradation i.e. 14.09.2003 or 30 years from the date of initial appointment i.e. 16.05.1980. Further the 1st respondent would be due for MACP III only on 16.05.2010 on completion of 30 years of service from the date of entry in the Postal Assistant cadre and he retired from his service by that date and the same is not in accordance with MACP Scheme. Therefore, the 1st respondent is eligible for the next financial upgradation under the MACP Scheme and the order passed by the petitioners department by rejecting the claim of the 1st respondent is misinterpretation of Scheme and the same is unsustainable.
X X X X X On careful perusal of the above judgments, it is clear that all the MACP are admissible within the service span of 8+10+10 years and 3rd MACP with effect from 01.09.2008 in the Grade Pay of Rs.4800/- upon completion of 20 years of service from the 1st promotion. In the case on hand also, the date of 1st promotion is 27.08.1987 and without any promotion, the 1st respondent retired on 28.02.2009. Therefore, on completion of 20 years, he is eligible for MACP III.
12. In view of the above said judgments and as discussed supra, this Court is of the opinion that the order passed by the Tribunal is correct and well reasoned and this Court has no warrant to interfere with the order of the Tribunal. Therefore, this Writ petition is liable to be dismissed.
13. IN THE RESULT, this Writ Petition is dismissed. No Costs. Connected miscellaneous petition is closed."
11. Learned counsel for the respondents vehemently opposes the same stating the judgment of Hon'ble Madras High Court cannot be cited as 'law declared' on the ground that in view of the decision of Hon. Supreme Court in Civil Appeal No. 2722 (NT) of 1991 in the case of State of UP and anr Vs. Synthetics and Chemicals Ltd and anr that "A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141." He submits that the judgment of the Hon'ble Madras High Court is a case of per incuriam - sub silentio in the eyes of law and therefore cannot be considered as 'law declared'. 20 OA No. 497/2020
12. Learned counsel for the respondents further submits that different High Courts have held different views on MACP. He submits that the Hon'ble High Court of Karnataka in WP No. 201842/2019 in the case of Union of India and ors Vs. Sri. Vishwanath has taken a different view to that of the Hon'ble High Court of Madras in the matter of MACP. The relevant portion of the same is reproduced below:-
"20. The Hon'ble Supreme Court in the case of Union of India and Others vs. Balbir Singh Turn and another10 had held that the Assured Career Progression Scheme (ACPS) which was earlier in force was not an allowance, but part of pay. However, a three Judges Bench of the Hon'ble Supreme Court in the case of Union of India and others vs. M.V.Mohanan Nair11 held that MACP is in the nature of an incentive. The decision in the case of M.V.Mohanan Nair (supra) has been followed by the Hon'ble Supreme Court in the case of R.K. Sharma (supra), as well as in the case of Sudheesh Kumar (supra).
21. In view of the aforementioned, the position of law being clear from the judgments noticed hereinabove, the reference to other judgments passed by the Jaipur Bench of the Rajasthan High Court and the Madras High Court is not necessary for the purpose of deciding the question that falls for consideration in the present writ petition.
22. Noticing the aforementioned legal position and applying the same to the facts of the present case, the respondent being appointed on 17.06.1975 as a Group-D employee and selected as a Postal Assistant on 13.08.1979 after having cleared the LDCE and having been granted financial upgradation under TBOP scheme on 22.08.1995 and another financial upgradation under BRC scheme on 31.12.2005, it cannot be said that the stagnation for which the financial upgradation is provided under the MACP-III scheme would be applicable to the Respondent also. Hence, we pass the following:
ORDER
(i) The writ petition is allowed;
(ii) The order dated 26.10.2018 passed by the Central Administrative Tribunal, Bangalore Bench in Original Application No.170/00045/2018 is set aside.
(iii) The Original Application No.170/00045/2018 stands dismissed as devoid of merits."
13. In their judgment, Hon'ble Madras High Court has analysed whether TBOP is a promotion or a financial upgradation and has concluded that 21 OA No. 497/2020 TBOP is only a financial upgradation and not a promotion. Accordingly, it has concluded that MACP-III is admissible on completion of 20 years without promotion. The extracts of MACP guidelines and clarifications mentioned in para 8 above have not been placed before Hon'ble High Court of Madras in WP 1354 of 2018. In the absence of these facts, Hon'ble High Court has not delved into details of the MACP scheme in its order dt. 21.12.2023.
14. The main objective of MACP Scheme is to financially compensate a public servant when they do not get promotion for a long period of time due to stagnation and various other reasons. The government after careful thought considered it appropriate that a public servant should get at least 3 promotions in his/her entire service period. Since government is not in a position to provide 3 promotions, the scheme of MACP is introduced as a fall back option to compensate financially, by an amount which is obviously less than he would have got through a regular promotion. That is why there is no roaster for reservation and the rigour of MACP Screening Committee is less than that of the Departmental Promotion Committee (DPC).
15. It is important to note that for prudence in public finance, any financial upgradation can be allowed only with a specific instruction to that effect and not based on inferred conclusions from an illustration. Further an illustration cannot be taken as a rule in a scheme guideline and it will always 22 OA No. 497/2020 be subservient to the main guidelines. A selective reading of para 28 A (i) &
(ii) without taking into account the grant of TBOP is not permissible as per extant guidelines. The para 28 A (i) & (ii) will only be applicable to the officials who have neither got promotions nor have got TBOP or ACP. It cannot be applied to persons getting TBOP. A close perusal of para 28 A (i) & (ii) would also show that there has to be a minimum period of further 10 years of service between any two MACPs.
16. Further, the MACP scheme is hierarchical i.e., just like in a regular promotion which is granted one after another, the MACPs are also granted one after another, thereby meaning MACP-III can be granted only after a person gets stagnated for 10 years in MACP-II. Further there is no provision of making good the time of the old scheme of 12 years in ACP-II or 16 years of TBOP by straightaway calculating 20 years from ACP-I or 1st promotion for granting MACP-III.
17. It has been clarified that prior to 1.9.2008 whoever is eligible for ACP or TBOP, they are to be granted the financial upgradation under the old scheme of ACP/TBOP only. It is only those employees who are eligible for ACP/TBOP after 01.09.2008 that they will be covered by para 28 and 10 years of gap to be calculated between ACP/TBOP and MACP after 1.9.2008. Those who have already got ACP/TBOP before 1.9.2008 have to complete further 10 years before being considered for next MACP. 23 OA No. 497/2020
18. We therefore conclude that while MACP-II may be granted after 20 years of service, MACP-III can be only granted after completion of 10 years of further service in TBOP / ACP-II / MACP-II or on completion of 30 years of regular service, whichever is earlier.
19. As regards conflicting judgements of Hon'ble High Courts and Tribunals, we are of the view that since Hon'ble Madras High Court in WP No. 1354/2018 has not gone into the detail of the MACP scheme in the referred judgment, it cannot be construed as "law declared". While the Hon'ble Supreme Court in Union of India and ors Vs. M. V. Mohanan Nair case has dealt the case of MACP scheme in great detail and in pursuance of the decision of the Hon'ble Supreme Court in M.V.Mohanan Nair case, the DoPT has issued specific clarifications which is more relevant in the present case.
20. As regards to the 2nd relief sought by the applicant, wherein he has prayed for refund of the amount of Rs. 2,31,460/- credited by the applicant on 20.07.2019 to the respondent authority it has to be examined in the light of relevant judgements of Hon'ble Supreme Court regarding validity of retrospective punitive action of authorities. A record of event in this case shows that the applicant was sanctioned MACP-III vide respondent no. 5 ie., Senior Superintendent of Post Offices, Vellore Division, Vellore on 13.07.2010 granting MACP-III w.e.f. 16.04.2009 by enhancing the Grade 24 OA No. 497/2020 Pay from Rs. 2800/- to Rs. 4200/-. The said order had a specific condition at para 10 which said that "the officials are informed that they are eligible for financial upgradation under the scheme on completion of eligible service for MACP and if at a later date, it is found that any official is not eligible for financial upgradation on the given date, the same is eligible to be modified / cancelled. However, the applicant availed the financial upgradation uninterruptedly for more than 10 years i.e., from 16.04.2009 till his date of retirement on 30.04.2019. The applicant not only availed the financial up gradation under MACP III continuously for 10 years but, he was also given a promotion by respondents as Postmaster Grade-I w.e.f. 23.09.2011. The respondent no. 5 ie., Senior Superintendent of Post Offices, Vellore Division also submitted pension papers of the applicant on 24.12.2018 in accordance with their order of MACP III as well as promotion order. It is only when his pension papers were scrutinized by the respondent no. 4 i.e., General Manager (PA & F), Tamil Nadu Circle that an objection was raised on 11.01.2019 stating that the official has been wrongly granted MACP-III w.e.f. 16.04.2009 before completion of 30 years of service (ie., 30.12.2012) or 10 years from the date of TBOP. It is seen that in spite of receiving this communication on 14.01.2019, the respondent authorities have issued the retirement order of the applicant on 23.04.2019 just seven days before his retirement allowing the applicant to retire on attaining the age of 25 OA No. 497/2020 superannuation. The above order of superannuation mentions only 3 conditions for allowing him to retire. The said conditions are reproduced below for reference:-
"a. There should not be any Disciplinary / Vigilance / Criminal case pending / contemplated as on the date of retirement. b. No case of investigation / enquiries in which the officials involved are pending.
c. The outstanding Departmental dues are recovered."
21. There is no mention of any anomalies in sanction of MACP-III to the applicant. Even at this stage he was not asked to refund any excess payment on account of MACP III. Thus, the applicant retired peacefully on 30.04.2019.
22. Having retired peacefully, the applicant received a communication from the respondent no. 5 on 27.05.2019 that the date of MACP-III may please be read as 15.01.2013 instead of 16.04.2009. The respondent who had earlier sanctioned the MACP III on 16.04.2009 stated to have threatened the applicant for departmental action under rule 9 of CCS (Pension) Rules 1972 in case the so-called excess payment is not refunded. Out of fear, to avoid departmental action the applicant, now retired, credited the amount of Rs. 231400/- under UCR at Thorapadi SO on 20.07.2019 under duress, only to avail the pensionary benefits.
23. The fact of the matter in this instant makes it a fit case that the judgment of the Hon'ble Supreme Court in CA No. 11527 of 2014 (arising 26 OA No. 497/2020 out of SLP (C) No. 11684 of 2012) in the case of State of Punjab and ors Vs. Rafiq Masih (Whitewasher) etc is squarely applicable. In the said judgment Hon'ble Supreme Court has declared that in specific situations, recoveries by the employer are impermissible. In the instant case, the applicant adequately fulfills the conditions i.e., (i) he is a Group-C employee and (ii) the excess payment has been made for a period of in excess of five years, before the order of recovery is issued and (iii) the recovery order is issued after his retirement.
24. The order of recovery is not only violative of the order of Hon'ble Supreme Court but also contrary to the instructions of DOPT dt. 02.03.2016 issued in pursuance of the said judgment of the Hon'ble Supreme Court. The same reproduced below:-
"F.No. 18/03/2015-Estt. (Pay-I) Government of India Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training New Delhi, the 2nd March, 2016 OFFICE MEMORANDUM Sub: Recovery of wrongful / excess payments made to Government servants.
The undersigned is directed to refer to this Department's OM No.18/26/2011-Estt (Pay-I) dated 6th February, 2014 wherein certain instructions have been issued to deal with the issue of recovery of wrongful / excess payments made to Government servants in view of the law declared by Courts, particularly, in the case of Chandi Prasad Uniyal And Ors. vs. State of Uttarakhand And Ors., 2012 AIR SCW 4742, (2012) 8 SCC 417. Para 3(iv) of the OM inter-alia provides that recovery should be made in all cases of overpayment barring few exceptions of extreme hardships.
2. The issue has subsequently come up for consideration before the Hon'ble Supreme Court in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) etc in CA No.11527 of 2014 (Arising out of SLP(C) No.11684 of 2012) wherein Hon'ble Court on 18.12.2014 decided a bunch of cases in which monetary benefits 27 OA No. 497/2020 were given to employees in excess of their entitlement due to unintentional mistakes committed by the concerned competent authorities, in determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information / misrepresentation / fraud, which had led the concerned competent authorities to commit the mistake of making the higher payment to the employees. The employees were as innocent as their employers in the wrongful determination of their inflated emoluments. The Hon'ble Supreme Court in its judgment dated 18th December, 2014 ibid has, inter-alia, observed as under:
"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court."
"10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India."
3. The issue that was required to be adjudicated by the Hon'ble Supreme Court was whether all the private respondents, against whom an order-of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. For the applicability of the instant order, and the conclusions recorded by them thereinafter, the ingredients depicted in paras 2&3 of the judgment are essentially indispensable.
4. The Hon'ble Supreme Court while observing that 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 has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-
28 OA No. 497/2020
(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.
5. The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No.11527 of 2014 (arising out of SLP (C) No.11684 of 2012) in State of Punjab and others etc vs Rafiq Masih (White Washer) etc. However, wherever the waiver of recovery in the above-mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department's OM No.18/26/2011-Estt (Pay-I) dated 6th February, 2014.
6. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders are issued with the concurrence of the Comptroller and Auditor General of India.
7. Hindi version will follow.
-sd-
(A.K. Jain) Deputy Secretary to the Government of India"
25. It can be seen that the applicant is squarely covered by the para 4 (i) and 4(ii) of the DoPT OM as the applicant belongs to Group C and the recovery has been made after the retirement of the applicant. Even the excess payment has been made for more than a period of 5 years stipulated in the DoPT OM ie., from 16.04.2009 till his retirement ie., 30.04.2019.
26. To sum up, we are of the considered view that grant of MACP III based on the reading of para 28 (ii) of the MACP scheme guidelines will be 29 OA No. 497/2020 a case of dicto simplicitor. The para 28 (ii) of MACP Scheme guidelines needs to be read along with para-1 of the same guidelines and the subsequent DOP clarification dt. 18.10.2010 as well as DOPT clarification 05.04.2021. Accordingly, MACP-III can only be granted after completion of 10 years of service in the same grade pay of TBOP / ACP-II / MACP-II or on completion of 30 years of regular service, whichever is earlier and not after 20 years of last promotion. Resultantly, the order passed by the respondent authority is upheld. However, as regards to the impugned order of recovery of excess paid amount of Rs. 231460/- effected by the respondent-5 after retirement of the applicant and rejection of his appeal vide letter No. B1/383-ACCT dt. 16.01.2020 by the 5th respondent is not in accordance with law declared by the Hon'ble Supreme Court as well as DOPT instructions issued in the matter and therefore the same is quashed and set aside. The respondents are directed to refund the recovered amount of Rs. 2,31,460/- credited by the applicant on 20.07.2019 without any interest within a period of three months from the date of receipt of a copy of this order.
27. Accordingly, the OA is allowed in part. No order as to costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member (A) Member (J)
11.12.2024
SKSI