Central Administrative Tribunal - Ernakulam
C P Baby vs The General Manager Southern Railway Hq ... on 2 September, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00691/2019
Friday, this the 2nd day of September 2022
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
C.P.Baby,
Senior Section Engineer D&D (Retd.),
Office of the Deputy Chief Engineer, (Constructions),
Southern Railway, Ernakulam.
Residing at "Sreyas", Vidya Nagar,
Kadavanthra, Cochin - 20. ...Applicant
(By Advocate Mrs.Thanuja Roshan George)
versus
1. Union of India represented by General Manager,
Southern Railway, Park Town,
Chennai - 3.
2. Chief Personnel Officer,
Southern Railway, Park Town,
Chennai - 3.
3. Deputy Chief Engineer (Constructions),
Southern Railway, Ernakulam - 682 011. ...Respondents
(By Advocate Mr.V.A.Shaji)
This application having been heard on 23 rd August 2022, the Tribunal
on 2nd September 2022 delivered the following :
ORDER
Per : HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant in the O.A has prayed for the following relief : -2-
(a) To declare that the applicant is entitled to get 3 rd Modified Assured Career Progression (MACP) on completion of 30 years of service (18.12.2016) and redetermine the terminal benefits and consequential benefits thereof.
(b) Grant such further and other reliefs as the nature and circumstance of the case may require.
2. A background of the case is as follows :
The applicant is a retired Senior Section Engineer of the Southern Railway. She entered the service of the Railways on 18.12.1986 as Assistant Draftsman after selection by the Railway Recruitment Board (RRB). She has furnished in the Original Application (OA) at Annexure A-1 a copy of the seniority list as on 01.08.1991 of her cadre, in which her name figures at Sl.No.92. As per the said list at Column 5 titled the 'date of appointment' the date indicated is 18.12.1986. In Column 7 against the 'date of entry into the grade as ADM/JDM' it is indicated as 18.12.1987. The applicant has also submitted at Annexure A-2, a copy of an Office Order dated 14.03.2011 relating to financial upgradation under MACP Scheme. In this order at Sl.No.2 pertaining to her under the Column 'date of entry into regular service', the date indicated is 18.12.1986. The order also reveals that she has been granted '2nd MACP' on 01.09.2008. She has also submitted at Annexure A-3 seniority list of Junior Engineer Gr.II as on 01.03.2005 where it is again indicated against her name at Sl.No.18, that her 'date of appointment' is 18.12.1986 and her 'date of entry' as Junior Engineer Gr.II is 15.09.1994. At the time of filing the O.A the main issue agitated by -3- her was only to the effect that she has not been given the 3 rd MACP due to her as on 18.12.2016, counting 30 years of service with effect from 18.12.1986. She retired on superannuation on 31.12.2017. She also submitted that her representations for getting the third MACP produced at Annexure A-4 and Annexure A-5, given to the authorities on 28.10.2017 and 25.08.2018 respectively, were also not considered. Therefore, it is to be noted that the only relief sought by the applicant in the O.A is to be given her 3rd MACP on completion of 30 years of service as on 18.12.2016 and also to redetermine the terminal benefits and consequential benefits thereof and nothing else. However, later some other points brought in at the time of filing the rejoinder which are dealt with subsequently.
3. In their reply statement to the points in the O.A., the respondents have submitted that the applicant was, indeed, recruited through the RRB for the post of Apprentice Assistant Draftsman in pay scale Rs.1200-2040/- (4 th CPC)/Rs.4000-6000/- (5th CPC). She reported on 18.12.1986 as 'Apprentice' Assistant Draftsman at Mysore and was paid a monthly stipend of Rs.1200/- in the scale Rs.1200-2040/-. She then passed the final examination of Apprentice Assistant Draftsman and with effect from 07.01.1988 was absorbed as Temporary Assistant Draftsman in scale Rs.1200-2040/- with a probation period of one year. After being transferred from Mysore to Kayamkulam to the office of Executive Engineer (Constructions), the applicant was granted adhoc promotion as Senior Draftsman in the scale Rs.1400-2300/- (4th CPC)/Rs.5000-8000/- (5th CPC) -4- on 10.01.1990. This promotion was extended from time to time until she was given a regular promotion as Senior Draftsman with effect from 16.09.1994, with the benefit of increments earned in the adhoc service being carried forward. It is submitted by the respondents that, after the implementation of the 5th Central Pay Commission (CPC) recommendations with effect from 01.01.1996, the posts in the category of Assistant Draftsman in Grade Rs.4000-6000/- were abolished. It was decided that the additional posts becoming available in the Grade Rs.5000-8000/- as a result of the upgradation of the posts in Rs.4000-6000/- scale would be filled by promotion of the staff in the Grade Rs.4000-6000/- through normal process of selection. This decision was taken vide Railway Board's letter No.RBE 223/1998 dated 28.09.1998 produced at Annexure R-1.
4. It is also submitted by the respondents that the Railway Board also introduced the Assured Career Progression Scheme (ACP) in the year 1999, under which employees not in receipt of promotion were to be given the 1 st financial upgradation on completion of 12 years of regular service and the 2nd financial upgradation on completion of 24 years of regular service in case of non receipt of second promotion. It is submitted that the Service Register of the applicant shows that she had been given a regular promotion as Senior Draftsman in the year 1994 with effect from 16.09.1994. However, inspite of this, she was considered for grant of the 1 st ACP inadvertently and incorrectly and the same was granted to her in the scale Rs.5500-9000/- on 07.01.2000. It is submitted that this was incorrect and -5- inadvertent, as the Annexure R-1 order dated 28.09.1998, had clearly indicated that upgradation of posts from scale Rs.4000-6000/- to scale Rs.5000-8000/- should be treated as promotion and, thus, the grant of 1 st ACP to the applicant in the scale Rs.5500-9000/- was wrong. It is also submitted that this Bench of the Tribunal had dismissed, vide order dated 13.06.2019 in a similar matter in O.A.No.270/2015 produced at Annexure R-2, grant of the MACP. Be that as it may, it appears that the respondents did not withdraw the grant of the promotion (ie. grant of the 1 st ACP) in the case of the applicant. Later, the applicant was then granted 2 nd MACP (as indicated earlier) in Pay Band II - Rs.9300-34800/- with Grade Pay (GP) Rs.4600/- with effect from 01.09.2008 when the 6 th CPC was implemented and on the introduction of MACP Scheme with effect from 01.09.2008. Even later, she was regularly promoted to the post of Senior Section Engineer under the restructuring scheme in PB 2 with GP Rs.4600/- with effect from 01.11.2013. She then retired on attaining the age of superannuation with effect from 31.12.2017.
5. Since as indicated earlier the relief sought is for getting the 3 rd MACP on completion of 30 years of service on 18.12.2016, the focus of the reply statement of the respondents is mainly on this issue. In this connection, they have produced the details of the MACP Scheme at Annexure R-3 with the reply. They have drawn particular attention to Clause 9 of the Scheme which reads as follows :
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"9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on casual, adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in same/another Central Government Department in a post carrying same pay level in the Pay Matrix prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
It is the contention of the respondents in their reply statement that since the applicant had neither completed 30 years' 'regular' service as on the date of retirement, nor had completed 10 years service in the last promoted grade, she is thus not entitled for 3 rd MACP in terms of the above MACP guidelines as claimed by her. It is further contended by them that the Railway Board vide RBE No.25/1991 dated 04.02.1991 and another clarification vide RBE No.195/1991 dated 15.11.1991 has decided that the period of training undergone by the employees will be reckoned for the purpose of increments with effect from 01.10.1990. There are also other circulars, wherein, it has been decided that the benefit of reckoning of period undergone for training for the purpose of increment will be allowed to the Railway servants with effect from 01.01.1986, on notional basis for the period from 01.01.1986 to 01.10.1990. All such circulars have been produced collectively by the respondents at Annexure R-4. However, what is contended is that, all these Railway Board orders only deal with the -7- reckoning of training period for the purpose of increment and nothing else and, thus, the same cannot be applied for reckoning the period as regular service for the purpose of grant of MACP. Hence, it is submitted that under both the kinds of circulars issued by the Railway Board, ie., for the MACP as well for counting of training period for the purpose of drawing increments, there is nothing to indicate that the applicant is eligible for getting the 3rd MACP with effect from 18.12.2016, as is prayed for in the O.A.
6. From the above it appears that the main contention of the respondents, without it being explicitly articulated, is that the applicant's period of 'regular' service should be counted with effect from 07.01.1988 when she passed the final examination of Apprentice Assistant Draftsman and was absorbed as Temporary Assistant Draftsman with effect from that date, with a probation period of one year. Hence, by the time she completed 30 years from that date (ie., 07.01.1988), she had already proceeded on superannuation on 31.12.2017. Further, the other contention taken by the respondents is that she had been given the 2 nd MACP, vide Annexure A-2, with effect from 01.09.2008 and, thus, she had not completed the required period of 10 years by the time of her superannuation on 31.12.2017. It is to be noted that the guidelines of the MACP only allow financial upgradations under the Scheme as admissible whenever the employee has spent 10 years continuously in the same Grade Pay. In this context, they submit that the applicant had been granted the 2nd MACP with GP of Rs.4600/- with effect -8- from 01.09.2008 in PB 2 Rs.9300-34800/- after the implementation of the 6th CPC and introduction of MACP Scheme with effect from 01.09.2008. Thus, she had not completed the required period of 10 years by the time of her superannuation.
7. Arising from the above contentions, the first issue before us for consideration is whether the respondents are correct in indicating that the applicant's period of 'regular' service only had started with effect from 07.01.1988 and cannot be counted with effect from her initial recruitment as Assistant Draftsman on 18.12.1986. In this connection, Mrs.Thanuja Roshan George, learned counsel for the applicant during oral submissions produced orders in O.A.No.260/763/2014 passed by the Cuttack Bench of the Tribunal on 14.11.2017. In that matter, the Tribunal dealt with the issue of the competent authority therein not granting the ACP taking into account the 'Trainee Artisan' period with stipendiary pay and allowing the ACP only by counting the period from the 'regular' service. The prayer in the O.A therein was for a direction to the respondents to grant first financial upgradation with effect from 07.04.2000 treating the period from the date of induction of the applicant therein as a Trainee as regular service. The Tribunal in its order noted that the applicant had been regularized/absorbed as Technical Grade III/Skilled Artisan in the scale of Rs.950-1500/- revised to Rs.3050-4590/- on 04.06.1998. It was also noted in the Order that, broadly speaking, the Railway administration engages two types of Apprentices, one set being the Apprentices engaged purely under the -9- Apprentices Act, 1961 to whom the Railways, except for imparting training, does not provide any other facility and the other kind being those Apprentices who are recruited from the ITI pass outs or having higher qualifications who are imparted training at Railway expense eventually to be appointed against regular posts under the Railways. It was noted that Para 2202 (2) Railway Establishment Code Vol.II, as it stood at the relevant point of time, defined an Apprentice to mean a person deputed in a trade or business with a view to employment in Government service. After examining the issue as well various Railway Board Circulars the Tribunal found as follows, in paragraph 8 in the said O.A.No.763/2014 :
"8. The moot question that comes for consideration is when by way of catena of judicial pronouncements, similarly placed persons undergoing Artisan Training have been treated as in- service training, this Bench is not competent or empowered to take a different view and is rather bound by the aforesaid authoritative pronouncements of the Hon'ble High Court and Hon'ble Supreme Court. There is nothing left to be adjudicated in the present O.A as the respondents intentionally delayed the training period and there was inordinate delay in regularizing the service of the Artisan Training Holders. If there was no necessity of continuance of the training period, the Railways could have dispensed with their services but once the Railways utilized their services regularly, denying them service benefit amounts to unfair trade practice. That apart, had they been only granted stipend, the matter would have been different. Since regular increments were granted to the Trainees, it cannot be treated as a stipend as they were getting the same pay scale, which were available to regular appointees. In any view of the matter, since the Training period has to be treated as regular service for the purpose of ACP as has already been observed in earlier judicial pronouncement, the Respondents are duty bound to honour such verdict and to grant such financial upgradation treating induction of the applicant as in service Trainee. Hence ordered."
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8. This matter was later taken to the Hon'ble Orissa High Court in W.P. (C) No.6963/2018 decided on 03.01.2019 which confirmed the above order of the Tribunal. Later, the matter was also taken to the Hon'ble Supreme Court in SLP (Civil) Dairy No(s).28896/2019 in Union of India & Ors. vs. Ashok Kumar Barik. The Hon'ble Supreme Court declared as follows, in judgment dated 22.10.2019 :
" We find no ground to interfere with the impugned order(s) passed by the High Court on the ground that the petitioners were given the regular pay scale and the increments were also given to them right from day one. Even during the training period, increments were given to them. We have considered the policy pertaining to ACP. On perusal of the same, we find no ground to deny the benefit of training period, which was after appointment. The Special Leave Petitions are, accordingly, dismissed."
9. It is submitted by the learned counsel for the applicant that going by the above ratio of orders/judgments, the matter in the present O.A should be similarly considered and the period spent on apprenticeship by the applicant, herein, has to be taken as part of her regular employment by the Railway authorities. It is submitted that in this case the recruitment was done by the Railway Recruitment Board and then the applicant was sent for apprenticeship training, following which she was posted as Assistant Draftsman with a probation period of one year. Hence the entire period right from the date of entry as an Apprentice on 18.12.1986 should be counted as part of her service for the purpose of MACP. Though she may have been paid a stipend during the said period it was part of the regular scale of Rs.1200-2040. On the other hand, learned counsel for the -11- respondents Mr.V.A.Shaji has highlighted the fact that the regularization of the applicant only took place with effect from 07.01.1988, when she was absorbed as temporary Assistant Draftsman in the scale of pay and she was only an Apprentice Assistant Draftsman in the period between 18.12.1986 and 07.01.1988, being paid as stipend.
10. We have considered these opposing contentions. The MACP guidelines at Clause 9 of the Scheme indicate that regular service for the purpose of the MACPS would commence from the date of joining of a post in direct entry grade 'on a regular basis' either on direct recruitment basis or on absorption/re-employment basis. The guidelines specify that 'the service rendered on adhoc/contract basis before regular appointment on pre- appointment training shall not be taken into reckoning'. It is the contention of the counsel for the applicant that these guidelines seem to recognize that pre-appointment training can be part of regular service and it is only any service which is rendered prior to that, on adhoc or contract basis, which cannot be taken into reckoning by the usage of the word 'on' before 'pre appointment training' instead of the word 'or'. It is her contention that the applicant had to do this pre-appointment training as Apprentice Assistant Draftsman, with the full understanding that, having been recruited through the RRB, her services would be then employed by the Railways. It is also to be considered that the judgment of the Cuttack Bench of the Tribunal, Hon'ble Orrisa High Court and the Hon'ble Supreme Court in the matter arising from O.A.No.763/2014, though not pertaining to the same job -12- description, overall buttress this understanding, as the Apprenticeship training in this matter was with the full expectation of absorption into the Railways and was not simply done in a routine way under the provisions of the Indian Apprenticeship Act for giving exposure to outsider trainees in the concerned skill. These considerations are fairly convincing and, therefore, could be a case in our view, for the applicant's service to be counted with effect from 18.12.1986 in light of these contentions. There is also no indication that the period of apprenticeship training being treated on an adhoc or contract basis which supports this understanding.
11. However, whether as a result of the service being counted from 18.12.1986, she will be eligible to get the 3 rd financial upgradation automatically with effect from 18.12.2016 on completion of 30 years is a different issue altogether which we have considered in what follows. Here, we have to be guided by the facts that have been provided. The first issue to be taken into consideration is that, after her initial appointment on 18.12.1986, the applicant appears to have clearly been granted a promotion as Senior Draftsman on a regular basis with effect from 15.09.1994. This is, in our view, to be counted as the first promotion, which has to be taken into account, notwithstanding any restructuring of the post later. Further, she was also given her 1st ACP, even though the respondents have stated that it was 'inadvertent and incorrect' in the year 2000, counting the 12 years from what they considered as her date of regular appointment as 07.01.1988. This financial upgradation given to her through the ACP Scheme does not -13- have appeared to have been withdrawn by the Railways even though it has been termed as inadvertent or incorrect. Later, when the MACP Scheme was introduced, she was granted 2nd MACP on completion of 20 years of service with GP Rs.4600/- in PB 2 - Rs.9300-34800/- with effect from 01.09.2008, after implementation of the 6 th CPC recommendations and introduction of MACP Scheme with effect from 01.09.2008. The critical point to be noted, in our view, is that counting a period of 10 years from 01.09.2008, when she got the 2nd MACP, the applicant cannot get the 3 rd MACP because she had already retired on 31.12.2017. The guidelines specify that financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same Grade Pay. This point was not highlighted in the O.A obviously but neither was done except in passing in the reply statement of the respondents.
12. Further, when the rejoinder was filed by the applicant, a different argument was put forth, after taking new contentions which were not reflected in the O.A. What is submitted by the applicant in her rejoinder is that her first promotion on 15.09.1994 as Senior Draftsman in the scale of Rs.5000-8000/-, was later set to naught in effect, by the Annexure R-1 circular dated 28.09.1988 issued by the Railway Board as by this the feeder post of Assistant Draftsman (Rs.4000-6000/- in the 5th CPC) was upgraded to the level of Senior Draftsman (Rs.5000-8000/- in the 5 th CPC) and was re-designated as JE/Grade II/Drg, with effect from 01.09.1998. It is submitted in the rejoinder that the posts in the category of Assistant -14- Draftsman in Grade Rs.4000-6000/- were thus abolished by the manner indicated in Annexure R-1, and thus the applicant's promotion, in effect became negated, since the post held by the applicant was made the entry post in the cadre of Draftsman and was, thereafter, filled up entirely by direct recruitment in terms of Annexure R-1. This argument as it stands cannot be accepted by us as the effect of such absorption or direct induction can only be taken prospectively into account. It is clear to us that, at the time applicant joined, there was only the post of Assistant Draftsman from which she got a clear promotion to the post of Senior Draftsman in 1994. This promotion needs therefore to be taken into account for the purposes of counting service for the MACP. The Hon'ble Supreme Court has again upheld in a recent judgment in Union of India & Ors. vs. Ex HC/GD Virender Singh arising out of SLP (Civil) No.16442/2021 that the grant of the MACP is an incentive measure and cannot be taken as part of 6 th CPC pay revision. Thus, the fact that the posts were upgraded later is not relevant because that impacts only those who would be recruited newly into the upgraded new post. Thus, the first promotion has to be counted in the case of the applicant and her service counted for the purpose of MACP accordingly.
13. Another argument made in the rejoinder is that the applicant had been given the 1st ACP financial upgradation on 07.01.2000 upon completion of 12 years from 07.01.1988. Upon the grant of 1 st ACP she was placed in the next higher grade of Rs.5500-9000/- (or PB 2 Rs.9300-34800 + GP -15- Rs.4200/-) of Junior Engineer/Gr.I/Drg. It is submitted in the rejoinder that the contention of the respondents that the grant of 1 st ACP to scale Rs.5500- 9000/- was inadvertent and incorrect, relying on the judgment of this Tribunal in O.A.No.270/2015 dated 13.06.2019, is not to be accepted as the facts in O.A.No.270/2015 are not similar to the facts of this case. The applicant in O.A.No.270/2015 belonged to an altogether different cadre, viz., Permanent Way where the service conditions and the posts are submitted as entirely different to those which the applicant belongs to. Further, it is submitted that all persons who had been 'promoted' in 1994 along with the applicant had also been granted the 1 st ACP benefit. It is submitted that in the light of the upgradation of posts of Rs.4000-6000/- to Rs.5000-8000/- vide Annexure R-1 and re-designation of the post as JE/Gr.II/Drg. which is the entry post in the cadre, the 'promotion' granted to such persons was, therefore, ignored by the respondents and they were given 1st ACP benefit, keeping in view the provisions of the ACP Scheme and hence, no mistake was committed unlike what is mentioned in the reply statement. However, we do not find this argument acceptable as we have noted that the respondents have specifically accepted that the grant of the ACP in 2000 was a mistake considering that the first actual promotion to Senior Draftsman was made in 1994.
14. A further point made by the applicant that upon the implementation of the MACP Scheme, at Annexure R-3, any earlier upgradation under the ACP is required to be ignored, as though it was not granted. This is -16- because under Clause 5 of the Annexure to the MACP Scheme, it is laid down that promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same Grade Pay due to merger of pay scale/upgradations of posts recommended by the 6th Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS. Thus, it is submitted that when considering the case of the applicant for grant of MACP any promotions earned or upgradation granted to the scales which after 6th CPC carry the same grade pay become non-est. As per the recommendations of the 6th Pay Commission the pre-revised scales of Rs.5000-8000/-, Rs.5500-9000/- and Rs.6500-10500/- (S9+S10+S11) were merged and replaced by a single scale of Rs.9300-34800/- + GP Rs.4200/-. Hence after the implementation of the 6 th CPC the applicant was placed in the scale of Rs.9300-34800/- + GP Rs.4200/- and, therefore, while granting the benefit of the MACP Scheme, the 1 st ACP benefit granted to the applicant to the scale of Rs.5500-9000/- should be ignored. However, we do not find any error here in the action taken by the respondents. The applicant was placed in the corresponding scale of PB-2 scale of Rs.9300- 34800/- + GP Rs.4200/- as per the 6th CPC, which was by then made the entry scale of the Drawing Cadre. Thereafter she was granted 2 nd MACP on its implementation date 01.09.2008 in PB-2 scale of Rs.9300-34800/- with GP Rs.4600/-.
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15. As regards the matter of date of entry into service, we have, in principle, accepted the reasoning that the applicant's date of entry into regular service can be counted with effect from 18.12.1986. Hence, we are not going into further arguments given by the applicant in the rejoinder in this connection. However, this argument is extended further in paragraph 11 of the rejoinder, wherein the applicant relies on the illustration provided at paragraph 28 of the Annexure to the MACP Scheme produced at Annexure R-3. She submits in the rejoinder that after having been appointed in 1986, her first regular promotion given to her was on 15.09.1994. (The irony that this contradicts her earlier taken position that owing to the merger of posts this is not to be taken as a promotion is perhaps lost). Thus, after having been placed in the scale of Rs.1400-2300/- which is corresponding to Rs.9300-34800/- with GP Rs.4200/- on 15.09.1994 she was eligible for 2nd MACP, upon completion of 10 years from such date which would have been on or about 15.09.2004. This point is also further clarified in Railway Board Order dated 29.12.2011 which has been produced at Annexure A-6 in the rejoinder. It is clarified in Annexure A-6 that the illustration that has been elucidated in paragraph 28 of the MACP Scheme demonstrated that the 2 nd financial upgradation would be admissible on completion of 20 years service from the date of initial appointment or 10 years from the date of 1 st financial upgradation/promotion, whichever is earlier. However, the applicant was granted the 2nd MACP only with effect from 01.09.2008 in Rs.9300- 34800/- with GP Rs.4600/-. The same order at Annexure A-6 further -18- clarifies that 3rd financial upgradation would be admissible on completion of 30 years service from the date of initial appointment or 10 years from the date of the 2nd financial upgradation/promotion, whichever is earlier. Thus, it is submitted that, going by the illustration and the clarification at Annexure A-6 the applicant would be eligible for the 3rd MACP benefit to PB 2 with next higher Grade Pay Rs.4800/- on or about 15.09.2014. However, this has not been granted to her and she is entitled for the pay fixation and the consequential benefits as well as retiral benefits arising from such upgradation.
16. We note the above argument regarding 3 rd MACP benefit with effect from 15.09.2014 was neither made in the O.A nor has been mentioned at the time of oral submissions. It is, therefore, a new submission that the applicant is entitled to get financial upgradation from 15.09.2014 by grant of 3rd MACP in PB 2 with the next higher Grade Pay Rs.4800/- and contradicts the relief sought for 3 rd MACP in the O.A from 18.12.2016. This Tribunal is not in a position to examine this argument as it was neither part of the original relief claimed in the O.A which has been only to give 3 rd MACP on completion of 30 years of service with effect from 18.12.2016, nor was it argued during oral submissions. Normally, such submissions are liable to be rejected as after thoughts. It was open to the applicant to modify the relief sought by filing an M.A for amendment. As stated this Tribunal is not in a position to accept this contentions now without it being part of the relief sought or even expressed during the time of oral hearing. Further, in -19- any case, it is not clear whether this can be a basis for this relief of 3 rd financial upgradation from 15.09.2014 as the applicant enjoyed yet another promotion to the post of Senior Section Engineer in PB2 with GP of Rs.4600/- with effect from 01.11.2013 even before the now expressed due date of 15.09.2014.
17. Hence, in view of all the above considerations and also in the light of the fact that the 2nd MACP was granted to the applicant only with effect from 01.09.2008 and the fact that 10 years period since that date has not elapsed at the time of her retirement on 31.12.2017, the prayer of the applicant for 3rd financial upgradation under MACP Scheme with effect from 18.12.2016 cannot be granted in terms of the guidelines of the MACP Scheme.
18. The O.A is accordingly dismissed. There shall be no order as to costs.
(Dated this the 2nd day of September 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00691/2019
1. Annexure A-1 - A copy of the seniority list as on 01.08.1991 of the Cadre.
2. Annexure A-2 - A copy of the order dated 14.03.2011.
3. Annexure A-3 - A copy of the seniority list of Junior Engineer of Grade 2 as on 01.03.2005.
4. Annexure A-4 - A copy of the representation dated 28.10.2017.
5. Annexure A-5 - A copy of the representation dated 25.08.2018.
6. Annexure A-6 - A copy of the Railway Board Order No : PC- V/2009/ACP/2 dated 29.12.2011.
7. Annexure R-1 - A copy of the Railway Board's Letter No.RBE 223/1998 dated 28.09.1998.
8. Annexure R-2 - A copy of the Hon'ble Tribunal's order in O.A.No.180/00270/2015 dated 13.06.2019.
9. Annexure R-3 - A copy of the Railway Board's Letter No.RBE 101/2009 dated 10.06.2009.
10. Annexure R-4 - A copy of the Railway Board's Orders RBE 25/1991 dated 04.02.1991, RBE 195/1991 dated 08.08.1991 and RBE 89/1992 dated 02.06.1992.
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