Central Administrative Tribunal - Delhi
Vinod Kumar Sandlesh vs M/O Home Affairs on 24 September, 2024
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Item No. 29/ C-5
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O.A. No.3173/2015
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.3173/2015
Reserved on 11.09.2024
Pronounced on 24.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Vinod Kumar Sandlesh Joint Director Central Translation Bureau
Department of Official Language Ministry of Home Affairs
Paryavaran Bhawan, B Block, 8th Floor CGO Complex, Lodhi
Road New Delhi 110003
Applicant
(By Advocate: Mr. Balaji Subramanian)
Versus
Union of India Through the Director Central Translation Bureau
Department of Official Language Ministry of Home Affairs
Paryavaran Bhavan, B Block, 8th Floor CGO Complex, Lodhi
Road New Delhi 110003
...Respondent
(By Advocate: Mr. H.K. Ganagwani)
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Item No. 29/ C-5
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O.A. No.3173/2015
ORDER
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present OA, the applicant seeks the following relief(s):
"(a) Quash and set aside the Speaking Order dated 29.08.2014 bearing File No. 11(1)386/86 11(1)386/86-ADMN/603 issued by the Director, Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, Government of India, andconsequent Office Orde Order dated 31.10.2014 bearing File No. 01/03/2008 01/03/2008-Fin./39-46 issued by the Deputy Director, Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, Government of India; and
(b) Pass such further Orders as this Hon'ble Tribunal may deem fit in the interests of justice."
2. Learned counsel for the applicant submitted that the applicant has impugned the speaking order dated 29.08.2014, 2 .08.2014, challenging the reasoning therein, particularly the statement "Since Sh. Vinod Kumar Sandlesh has refused promotion available to him, he is not eligible for grant of financial up gradation under MACPS. Therefore, we may advise the referring department to decide the matter, in terms of the above.".
He contends that this rationale for refusal is not applicable when the MACP scheme is not in place.
3. Learned counsel argued that even if the refusal pertains to the MACP scheme, such reasoning cannot serve as a ground to reject the applicant's claim for the grant of MACP benefits. In support of his claim, 3 Item No. 29/ C-5 C O.A. No.3173/2015 he relies on the decision rendered by the Hon'ble High Court of Madras in n the matter of Union of India and Ors V/s C. Ramasamy and Ors. in WP No. 4971 to 4975 of 2018 & batch decided on 18.03.2022, wherein the following observations were made:-
made:
"Having Having said that, it is necessary to refer to Para 25 of MACPS dated 18.09.2009, which which provides that if a regular promotion offered is refused, then no financial upgradation shall be allowed. The sheet anchor and thrust of the case of the petitioners is the first part of the said Para 25 of MACPS, which reads as under:
"25. If a regular regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been due to lack of opportunities. If however, financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second and the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal."
Against the above background, the common question that arises for consideration in these batch of writ petitions is as to whether the fact that the respondent have declined LSG promotion prior to the introduction of., batch MACPS, which came into operation with effect from 01.09.2008 would attract the bar/ embargo/ restrictions imposed under the sa said scheme, in particular, under Para 25 of Annexure Annexure-I to the letter of the Department of Posts (Establishment Division) No.4 No.4-7/(MACPS)/2009- PCC dated 18.09.2009.
b. The expression "has been" employed in Para 25 of MACPS dated 18.09.2009 is possibly capable of two meanings viz., one which would cover the act of refusal anterior to the introduction of MACPS, the other is to treat as covering refusal of promotion after introduction of MACPS. The above expression viz., "has been" has come up for consideration before efore the Hon'ble Supreme Court in the following judgments:
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i) Secretary, Regional Transport Authority v. D.P. Sharma2 Sharma2:
"15. The High Court seems to think that if any special permit had not been granted to a public service vehicle when the Act came into force, such a vehicle will not come within the meaning of the definition of "contract carriage" under Section 3(g). This view of the he High Court is not correct.
In clauses (i) and (ii) of Section 3(g), the expression "has been issued"
occurs. It is submitted by the learned Advocate General of Karnataka that in view of the expression "has been issued", clauses (i) and (ii) contemplate the issuance of a special permit or a temporary permit after the coming into force of the Act. It 2 (1989)Supp 1 SCC 407does not include the issuance of a special permit or a temporary permit earlier than the date of the commencement of the Act. The learne learned Advocate General has placed reliance on an English decision In re Athlumney Ex parte Wilson [(1898) 2 QB 547 : 79 LT 303] . In that case, the words "where a debt has been proved under the Principal Act"came to be construed and it was observed: "But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation --aa time which will have become a past time only when the event occurs on which the statute is to operate."In our opinion opinion, whether the expression "has been" occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute.
16. In the instant case, the words "has been" contemplate the issuance of a special permit or a temporary permit as referred to in clauses (i) and (n) of Section 3(g) of the Act after the enactment of the Act which is clear from the exclusion clause (ii) of Section 3(g) which excludes a stage carriage from the definition of "contract carriage", if special permits issued under Section 62(1) of Section 63(6) of the Motor Vehicles Act were in force on 30-1- 30 1976. It is difficult to interpret clauses (i) and (ii) of Section 3(g) as contemplating the issuance of a temporary permit or a special permit, as referred to therein before the coming into force of the Act. Merely because of the use of the words "has been"in clauses (i) and
(ii) of Section 3(g), 3(g) such an interpretation is not possible to be made, particularly in view of the legislative intent apparent from the exclusion 5 Item No. 29/ C-5 C O.A. No.3173/2015 clause (ii), namely, that the legislature only excluded a stage carriage in respect of which a temporary contract carriage or a sspecial permit issued under Section 62(1) or 63(6) of the Motor Vehicles Act was in force on 30- 1-1976. "
(emphasis supplied)
ii) Deepak Aggarwal v. Keshav Kaushik3 :
"102. As regards construction of the expression, "if he has been for not less than seven years an advocate"in Articlecle 233(2) of the Constitution, we think Mr Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of "has been".
been". The present perfect continuous tense is used for a position which began at sometime in the past and is stilbatch continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application ."
(emphasis supplied) A reading of the above judgments would show that the expression "has been" is capable of being understood to cover events after the operation of the statute and that it is a present perfect continuous tense and thus looks to a present event. Thus, by employing the expression "has been"
in Para 25 of MACPS, the executive only intended to cover acts of refusal of promotion after the introduction of MACPS.
c. A reading of Para 25 of MACPS dated 18.09.2009 as a whole, would also suggest that it intended to cover only acts of refusal of promotion post introduction of MACPS, for while providing the consequence for refusal it not only provides that refusal would result in denial until promotion is accepted but also, provides that the second and third upgradation would be deferred. Thus, the refusal is intended to cast its batch shadow on all three upgradations which again appears to be indicative of the fact that Para 25 of MACPS was only intended to cover refusal of promotion post introduction of MACPS.
G. Conclusion:
The MACPS having been brought into force from 01.09.2008, the consequence for a refusal which is provided therein can get attracted only in respect ct of refusal to promotion made after the implementation of the MACPS and not prior thereto."
4. He also relied relie on the following decisions:-
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(i) Judgment dated 05.08.2013 in OA No. 91/2011 of the Bombay Bench of this Tribunal.
(ii) Judgment dated 20.10.2010 in OA 148/2010 of the Chandigarh Bench of this Tribunal.
(iii) Judgment dated 26.10.2007 in OA 162/2007 of the Madras Bench of this Tribunal.
4.1. Additionally, he made a reference to the interim order passed by this Tribunal on 15.09.2015.
5. Opposing the grant of relief, the learned counsel for the respondent reiterated the contentions made in the counter counter-reply, arguing that the impugned order has been passed in accordance with the rules. He specifically relied d on Clause 25 of the MACP Scheme.
5.1. Learned counsel for the respondent had drawn our attention to the following averments made in in the counter reply, which read as under:-
"Sh.
Sh. Vinod Kumar Sandlesh serving as Joint Director in Central Translation Bureau (CTB) Department of Official Language, Ministry of Home Affairs has vide aforementioned O.A as sought relief for quashing and setting aside the orders passed by respondent regarding withdrawal of financial financial upgradation granted under Modified Assured Carrier Progression Scheme (MACP) of Government of India and making recovery of over payment made to him consequent upon grant of above said financial upgradation. The fact in the case is that Sh. Vinod Kumar Kumar Sandlesh was appointed as Assistant Director in Central Translation Bureau w.e.f 01.09.1994 and was promoted to the post of Deputy Director w.e.f 17.11.1999. He was given next promotion to the post of Joint Director in the year 2005 and was directed to join the post of Joint Director at Translation Training Centre Kolkata. However inspite of repeated directions, he did not join the post of Joint Director at Kolkata. He was clearly conveyed that his nonjoining the 7 Item No. 29/ C-5 C O.A. No.3173/2015 promotional post would be treated as his refusal of promotion. Since he did not join the promotional post of Joint Director, as per the existing instruction of DOPT the nodal agency for service matters, he was debarred from promotion for the next one year or the next vacancy, whichever is later. Meanwhile along with, some other officers of the Central Translation Bureau, the name of Sh. Vinod Kumar Sandlesh was also considered for grant of financial up gradation under MACP Scheme. This Scheme envisages financial up gradation to next higher grade pay pay whenever an employee has completed 10 years of continuous service in the same grade without earning promotion. The mistake on the part of this office was that the DPC considering the case couldn't be apprised of the promotion and debarment of Sh. Vinod Kumar Sandlesh. This was inadvertent mistake. Sh. Sandlesh was recommended for the grant of financial up gradation by the DPC wasgranted financialupgradation with consequent pay fixation benefit w.e.f. 17.11.2009. The MACP Scheme interalia provides that "If "If a regular promotion has been offered but was refused by the employee before becoming entitled to a financial up gradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities". As per this clause clause of MACP Scheme, Sh. Sandlesh was not entitled for financial up gradation under MACP Scheme as he had the opportunities of promotion but he refused to accept it. The matter came to notice when some RTI andcomplaints were filed. The matter was referred to to DOPT. The DOPT after examining the matter opined that since Sh. Vinod Kumar Sandlesh has refused promotion available to him is not eligible for grant of financial up gradation under MACP. Accordingly an order dated29.08.2014was passedwithdrawing financia financial upgradation granted to Sh. Vinod Kumar Sandlesh and recovering the consequent over payment.
From the facts above it may be seen that as per the provision for the MACP Scheme, Sh. Vinod Kumar Sandlesh is not entitled for the financial upgradation therefore, therefore, there is no illegality or inconsistency involved in withdrawing his financial up gradation 8 Item No. 29/ C-5 C O.A. No.3173/2015 that was granted to him inadvertently and is also well in accordance with the advise rendered by DoPT."
DoPT.
6. Learned counsel for the respondent further emphasized that the MACP is granted in cases of stagnation.
7. Having heard the learned counsel for the parties and perused the records of the case, we would draw the following analysis.
8. ANALYSIS 8.1. It is not in dispute that ACP scheme, which came iinto effect in 1999 was in place when the applicant had refused / rejected the offer of promotion made to him in 2006. Whether it is a case of deferment or not in light of clause 25 of MACP Scheme is to be looked into.
8.2. Admittedly, the MACP Scheme which came into existen existence is an extension of earlier ACP Scheme.
8.3 In Civil Appeal Nos.7027-7028 Nos OF 2009 Union Of India & Ors.Versus Manju Arora & Anr. decided on 3.1.2022, the Hon'ble Apex Court has held as under -
"10. The OM dated 9.8.1999 offering Assured Career Progression for the he Central Government Civilian Employees was intended as a "safety net" to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional av avenues. The ACP Scheme was introduced by the government with appropriate modification on the basis of the recommendation made by the Fifth Central Pay Commission. Under the Scheme, it was decided to grant financial upgradation after 12 years of regular serv service and the second one after 12 years of regular service from the date of the first financial upgradation, subject to fulfillment of prescribed conditions. Conditions 5.1 and 10 thereof being relevant, are extracted herein below:--
"5.1 Two financial up-gradation up adation under the ACP Scheme in the entire Government Service career of an employee shall be counted against regular promotions (including in-situ in situ promotion and fast track 9 Item No. 29/ C-5 C O.A. No.3173/2015 promotion availed through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up up-
gradation under the ACP Scheme shall be available only if no regular promotion during the prescribed periods (12 and 24 years) have been availed by an employee. If a employee has already got one regular promotion, he shall qualify for the second financial up up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received ceived by an employee, no benefit under the ACP Scheme shall accrue to him.
**** **** **** **** **** **** **** ****
10.ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified lified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions ctions in this regard. However, as and when he accepts regular promotion thereafter, he shall become eligible for the secondup secondup-
gradation under the ACP Scheme only after he completes the required eligibility service/ period under the ACP Scheme in that high higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a persons has got one financial up-gradation up gradation after Grant of higher pay scale under the rendering 12 years of regular service and after 2 years there from if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+12+1) of regular service, he shall be eligible for consideration for the second up-gradation gradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial up-gradation up gradation (2+10) in the higher grade i.e. after 25 years ears (12+12+1) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade."
11. As can be seen, the benefit of the financial upgradation under the ACP Scheme Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hhold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-acceptance non acceptance of such promotion wo would impact only 10 Item No. 29/ C-5 C O.A. No.3173/2015 their second upgradation. With such finding, the respondent were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee.
12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion promotion for their own personal reasons, such as family needs or movement to another station etc.
13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, stated, the O.M. dated 9.8.1999 was introduced as a "safety net" to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee whenn she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition?
14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multipl multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered rregular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, Page 11 of 16 she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over.
15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and nd the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons.
16. We are quite certain that if a regular promotion is offered but is refused d by the employee before becoming entitled to a financial 11 Item No. 29/ C-5 C O.A. No.3173/2015 upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee op opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees.
17. It may also be observed that when an employee refuses the offered promotion, romotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting.
18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. In this situation, the Scottish doctrine of "Approbate and Reprobate" springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd.1 wherein Lord Atkin observed at page 429, "............In cases where the doctrine does does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other............."
The above doctrine is attracted to the circumstances in this case. The concerned employees cannot therefore be allowed to simultaneously approbate and reprobate, or to put it colloquially, "eat their cake and have it too". Itt is declared accordingly for the respondent in the C.A. Nos.7027 Nos.7027-28/2009."
8.4 The clause 5.1 read with clause 10 of ACP was akin to clause 25 of the MACP Scheme.
Scheme 8.5. The he objective of ACP Scheme was to mitigate the situation arising out of stagnation and hardship faced by Government servants on account of lack of promotional avenues as stated in the guidelines dated 09.08.1999. The MACP Scheme, launched vide the circular dated 19.05.2009 with effect from 01.09.2008, is a modification of the ACP Scheme, with the same objective as 12 Item No. 29/ C-5 C O.A. No.3173/2015 ACP. The provisions relating to the debarment of ACP and MACP for an employee who has refused regular promotion, are on account of the fact that the concerned employee did not face any stagnation in view of his refusal for promotion which was offered to him. When the applicant refused the promotion in the year, the guidelines relating to ACP for consequence of refusal of promotion were in force. Hence, Hence, the applicant's eligibility for ACP would have been affected due to his refusal of promotion. The MACP Scheme is a modification of the ACP scheme, with same objective of both the schemes. It is clear that the consequences for refusal of promotion when the ACP guidelines were in force, will also apply to the applicant, even if such refusal was done prior to coming into effect of MACP scheme, since the applicant was supposed to be aware of the consequences of such refusal in view of the guidelines dated 09.08.1999 of ACP which were in force at the time of his refusal or promotion. Therefore, the judgments cited by the in applicant does not help his case, which has decided the consequence of refusal of promotion prior to 09.08.1999, will not apply to the ccase of the applicant who has refused promotion after 09.08.1999 i.e., i ., in the year 2006, i.e., after the issue of the guidelines dated 09.08.1999 09.08.1999 relating to ACP Scheme. The MACP Scheme is nothing but modification of ACP Scheme, with intention to provide reliefs to the eligible government servants who do not get the benefit of promotion on account of stagnation and lack of promotional avenues. In this context, we are of the considered considered view that the provisions relating to deferment as in the paragraph 25 of the guidelines for MACP Scheme will be applicable to the case of the applicant. The true purport of ACP has already been observed by the Hon'ble Apex Court in Manju Arora (s (supra).
13Item No. 29/ C-5 C O.A. No.3173/2015 9 CONCLUSION 9.1. On touchstone of the ratio laid down by the Hon'ble Supreme Court in Manju Arora (supra), we do not find any infirmity in the action of the respondent in passing speaking Order dated 29.08.2014 bearing File No. 11(1)386/86-ADMN/603 ADMN/603 issued by the Director, Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, Government of India, and consequent Office Order dated 31.10.2014 bearing File No. 01/03/2008-Fin./39 Fin./39-46 46 issued by the Deputy Director, Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, Government of India denying the benefit of MACP to the applicant.
9.2. The OA is dismissed being devoid of merits. All pending MAs, if any, shall also stand disposed of. No costs.
(Dr.
Dr. Anand S Khati)
Khati (Manish Garg))
Member (A) Member (J)
/arti/