Madhya Pradesh High Court
Union Of India vs M.S. Hashmi on 20 November, 2015
Author: K.K. Trivedi
Bench: Rajendra Menon, K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.13031/2013
Union of India
Vs.
K. Bhaskaran.
Writ Petition No.13032/2013
Union of India
Vs.
K.K. Gumashta.
Writ Petition No.13118/2013
Union of India
Vs.
Ajay Saxena.
Writ Petition No.13121/2013
Union of India
Vs.
O.P. Yadav.
Writ Petition No.13588/2013
Union of India
Vs.
S.G. Gare.
Writ Petition No.13589/2013
Union of India
Vs.
J.S. Thakur.
2
Writ Petition No.13734/2013
Union of India
Vs.
C.L. Patel.
Writ Petition No.13738/2013
Union of India
Vs.
Sheikh Nawab.
Writ Petition No.13883/2013
Union of India
Vs.
M.S. Hashmi.
Writ Petition No.14202/2013
Union of India
Vs.
S.R. Saiyam.
Writ Petition No.14671/2013
Union of India
Vs.
R.C. Tripathi.
Coram :
Hon'ble Shri Justice Rajendra Menon, J.
Hon'ble Shri Justice K.K. Trivedi, J.
3
Whether approved for reporting ? - Yes/No.
Smt. Amrit Ruprah, learned counsel for the petitioners.
Shri Siddharth Singh, learned counsel for the
respondent.
Judgment Reserved on : 17.11.2015.
Date of Decision : 20.11.2015
JUDGMENT
(20.11.2015) Per K.K. Trivedi, J.
This order will govern the disposal of all the aforesaid writ petitions. Since a common question in all the writ petitions has been raised and in fact, the order passed by the Central Administrative Tribunal in different Original Applications on the same subject has been called in question in these writ petitions, all these writ petitions have been heard together. For the convenience, since return has been filed in W.P.No.13031/2013, the facts are taken from the said writ petition.
2: The petitioners-Railways have approached this Court against the order dated 8.1.2013 passed in Original Application No.939/2011 and other analogous Original Applications by the Central Administrative Tribunal, Jabalpur, by way of this writ petition under Article 227 of the Constitution of India, on the grounds that a complete interpretation of the provisions of Modified Assure Career Progression Scheme (hereinafter referred to as 'MACPS' for 4 brevity) will make it clear that the persons like respondent were not entitled to the benefit of the said Scheme as they were extended the benefit of promotion in due course and, therefore, on wrong interpretation of the provisions of paragraphs 5 & 8 of the aforesaid Scheme, the Tribunal has erred in law in directing the authorities of the petitioners to examine the case of each and every such claimant like respondent, keeping in view the specific provisions of the MACPS, within a period of three months. The interference in the order passed by the petitioners authorities withdrawing the said benefits from the persons like respondent was thus said to be uncalled for.
3: It is the case of the petitioners that the Railway Board made a proposal for making of a MACPS. The object of the said Scheme was to prescribe financial benefits to those employees who were stagnating on one post for a long time without any promotion or those who were granted the benefit of promotion, but without any financial upgradation. The only object of the aforesaid Scheme was conferral of financial upgradation in the next higher grade on completion of requisite years of service to such employees, who were stagnating for a long time. In terms of the said Scheme, there was a prohibition to grant such benefits to the persons like respondent as they were not covered under the said Scheme, having earned the promotion in due course of their service tenure including the financial upgradation, yet by mistake certain benefits of upgradation were extended to those persons by the petitioners on wrong interpretation of the provisions of MACPS, which though were not attracted, were wrongly made applicable for the persons like respondent. A clarification in the said respect was asked for and since the guidance in that respect was provided by the competent authority on due 5 examination it was found that persons like respondent were not to be given the benefit of MACPS and, therefore, show cause notices were issued to them as to why such a benefit should not be withdrawn. Despite service of the show cause notice, no response whatsoever was filed by the respondent, therefore, ultimately, the orders were issued against them fixing their pay in appropriate manner and directing recovery of excess payment made to them. Such orders were called in question before the Central Administrative Tribunal (hereinafter referred to as 'CAT' for brevity) by those employes and wrongly applying the principle laid down by the CAT Bench at Kerala, the benefit was extended to the persons like respondent.
4: It is the case of the petitioners that they have contested the claim made by respondent before the CAT, have categorically pleaded that the benefit of said Scheme was not available to them and that the order passed by the CAT at Kerala was subjudice before the higher Forum and there was an interim stay operating, yet without considering all these aspects, since the order impugned has been passed by the CAT, the present writ petitions are required to be filed. In view of these submissions, it is claimed that the order impugned is liable to be set aside.
5: The respondent, contesting employee, has filed the return and has categorically contended that the stand taken by the petitioners in the present writ petitions is not acceptable in view of the fact that the harmonious interpretation of the Clause 5 & 8 of the MACPS was done by the CAT. Similar issue was considered by the CAT at Allahabad, which order has been affirmed by the Division Bench of Allahabad High Court. Apart from the aforesaid, it is the contention that there was no upgradation in the pay 6 scale, there was only a change in the basic pay scale because of the release of the increments, which cannot be treated as a upgradation of the pay scale. The fact that the different pay scales were merged, which were made applicable for different post, will not amount to the financial upgradation of the employees like respondent and, thus, since there was a complete stagnation on one post and in one cadre for a long period, the employees like respondent were entitled to grant of benefit of MACPS which order was rightly issued in their respect. Such an order was not to be recalled nor any recovery was to be made from the persons like respondent and in view of the aforesaid, the action taken by the petitioners was rightly interfered with by the Tribunal which need no interference by this Court in the writ proceedings. Thus, it is submitted that the writ petitions are liable to be dismissed.
6: We have heard learned counsel for the parties at length and perused the record.
7: For the purpose of convenience, we are required to examine the MACPS. Rightly the provisions of paras 5 and 8 of MACPS have been interpreted and noted down by the Tribunal. However, for the purposes of convenience, the same are reproduced hereunder :-
"5. 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 scales/ upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
The pre-revised hierarchy (in ascending order) in a particular organization was as under :-
Rs.5000-8000, Rs.5500-9000 & Rs.6500- 7 10500.
(a) A Government servant who was recruited in the hierarchy in the pre-revised pay scale Rs. 5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006 he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, i.e., to the pre- revised scales of Rs.5500-9000 and Rs.6500-10500.
(b) Another Government servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 & Rs.6500-10500 during this period.
In the case of both (a) and (b) above, the promotions/ financial upgradations granted under ACP to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 1.1.2006 will be ignored on account of merger of the pre- revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 recommended by the Sixth CPC. As per CCS (RP) Rules, both of them will be granted grade pay of Rs.4200 in the pay band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs.4600 and Rs.4800 in the pay band PB-2.
8. Promotions earned in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs.5400 is now in two pay bands viz., PB-2 and PB-3. The grade pay of Rs.5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme."
8: The Tribunal in its order has quoted the aforesaid provision, has taken note of the fact that the same is 8 interpreted by Ernakulam Bench of the CAT in Kerala and has held that in the given circumstances, the persons like respondent (applicant before the Tribunal) would be entitled to the benefit of MACPS. The Ernakulam Bench of CAT has considered these aspects in order dated 22.2.2012 passed in Original Application No.484/2011 and other analogous Original Applications in paragraph 14 onwards, which for the purpose of convenience are reproduced hereunder :-
"14. At the very outset, it is to be made clear that the above two provisions may appear to be conflicting with each other whereas, it is not so. Even if these are conflicting, what is expected is to read them harmoniously without making any of them otiose or unworkable. This is the settled law of interpretation, as held by the Apex Court in the case of Bhakra Beas Management Board Vs. Krishan Kumar VII (2010) 8 SCC 701, wherein the Apex Court has observed as under :-
32. It has been stated by Lord Dunedin in Murrav V. IRC AC that :
"...It is our duty to make what we can of statutes, knowing that they are meant to be operative and not inept, and nothing short of impossibility should in my judgment allow a Judge to declare a statute unworkable."
15. Continuing further, the Apex Court also has observed that while interpreting the provisions of any law, such interpretation should be to secure the object. Thus, observed the Apex Court -
The principle was reiterated by him in a later judgment in Whitnev V. IRC, AC at where he observed :
"A statute is designed to be workable and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable."
16. Consolidating the above, the Apex Court then observed -
9"33. The aforesaid observations make it abundantly clear that the courts will, therefore, reject the construction which is likely to defeat the plain intention of the legislature even though there may be some inexactitude in the language used. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. In view of this, to attain the fruitful results of the 1990 Order we have to give it a meaningful and proper construction which would achieve the object for which it was passed, rather than to give a narrower construction which may defeat the very purpose of passing the said order."
17. Now, the purpose of financial upgradation as contained in the original ACP Scheme or for that matter in the modified ACP Scheme is to afford additional financial benefits when no promotions are possible. Again, yet another law of service jurisprudence in matter of pay, as held by the Apex Court in the case of Gurcharan Singh Grewal Vs. Punjab State Electricity Board (2009) 3 SCC 94 is "a senior cannot be paid a lesser salary than his junior."
18. It is with the above broad principles of interpretation that the two provisions i.e. para 5 and para 8 of the scheme are to be interpreted. Para 5 talks of promotions granted in the past to some posts the pay scales of which have since been merged and the said para requires that such promotions granted should be ignored for the purpose of MACP. Para 8, on the other hand states that if there be two posts carrying the same grade pay and one is the promotional post of the other, and if promotion to such post takes place, the same shall be taken into account for the purpose of MACP. There may be a seeming conflict between the two provisions, whereas, it is not so. The difference in the two is that para 5 applies to a situation where there is merger of two or more pay scales, while such a merger is not there in respect of the pay scales of promotional post and the feeder posts in respect of para 8. The two provisions are in fact functioning in two different planes and are compatible.
1019. The underlying reason in such provisions
(a) to ignore the promotions granted when the two or more pay scales have been merged vide para 5 of the Scheme (b) but to take into account the promotions even if grade pay is the same in respect of two promotions vide para 8 is not far from comprehension.
20. Where there is a merger of pay scales in future cases, promotion from the feeder grade would be only in the merged pay scale which would constitute only one promotion making eligible the persons for one or two MACPS thereafter, whereas, for the past cases, unless the promotions are ignored, the same would account for two or more promotions which would disentitle them from the benefit of MACP. In so far as the other case referred to in para 8 of the scheme, there being no merger of pay scales, be it the past promotion or future promotion, entitlement or otherwise to MACP would be identical. If the promotions are to be accounted for in respect of merged posts whose pay scales have been merged into a single one then, such a situation would result in a calamitous disparity in the pay of the seniors and juniors (juniors getting more pay than the seniors). And as held in the case of Gurcharan Singh Grewal(supra) such a situation cannot be allowed to permeate.
21. The respondents were right when they had earlier granted MACP to the applicants ignoring the promotions granted earlier as such promotions fell under the provisions of para 5 of the scheme. It is only due to the erroneous clarification issued by the CPO that the respondents have taken action for recovery of alleged excess payment. We render our finding here that the applicants are all entitled to the MACP already awarded and withdrawal of the same and effecting recovery on account of the withdrawal are thoroughly illegal and unjust."
9: Though the said order was called in question in a writ petition before the Kerala High Court and an interim stay has been granted, yet the fact remains that the very same 11 analogy was made applicable by the CAT Allahabad Bench in Original Application No.1241/2011. The said order of Allahabad Bench of the Tribunal was called in question before the Division Bench of High Court of Allahabad in WP-A. No.18244/2013 by the Railways, which petition has been dismissed vide order dated 19.7.2013 as has been placed on record by the respondent along with his return as Annx.R/1. The Division Bench of Allahabad High Court has considered these aspects as also the question whether the movement of a senior Goods Guards to the post of Passenger Guard is a promotion or not. Dealing with the aforesaid question, the Division Bench of Allahabad High Court has recorded the reasons which reads thus :-
"Therefore, the sole question to be decided in this writ petition is as to whether the movement of a Senior Goods Guard to the post of Passenger Goods Guard is a promotion or not. If it is not a promotion, the private respondents will be entitled to the benefits of MACPS.
The above question appears to have been set at rest by judicial pronouncement. A copy of the judgment and order passed by the Central Administrative Tribunal, Allahabad Bench in Original Application No.1268 of 2004 disposed of on 1st February, 2006 (Mithilesh Kumar and others Vs. Union of India and others) was produced before the Court for perusal. In the said judgment, the Tribunal specifically held that movement of Senior Goods Guard whose pay scale is 5000-8000 when posted as Passenger Guards will be only lateral induction and not exactly a promotion. While holding thus, two judgments of Calcutta Bench of the Tribunal had been relied upon by Allahabad Bench of the Central Administrative Tribunal. There is no dispute that in a similar matter filed by A. Haldhar and 37 others, the Tribunal passed a similar order and the same was challenged before this Court by the Railways in Civil Misc. Writ Petition No.51293 of 2006. The writ petition was dismissed on 15.9.2006 and the Railways preferred an appeal before the Supreme Court 12 vide Special Leave to Appeal (Civil) No.26787 of 2008. The said Special Leave Appeal was also rejected on 7.12.2011. Therefore, the law has been settled to the effect that movement of a senior Goods Guard to the post of Passenger Guard is not a promotion and is a lateral induction.
Undisputedly, the Senior Goods Guards and Passenger Guards were in the same scale of pay i.e. 5000-8000. Vide Board's Letter dated 11.9.2008, two categories of Passenger Guard and Senior Passenger Guard (5500-9000) have been merged and allotted Grade Pay of Rs.2400/- in Pay Band-II (RBE-108/2008). Whereas, earlier the post of Senior Passenger Guard was a promotional post for Passenger Guards. So far as the private respondents are concerned, undisputedly, they were initially recruited as Guard and received one financial upgradation i.e. from 2800 to 4200 (earlier grade pay assigned for both Senior Goods Guard/Passenger Guard) when they moved from the entry level of Goods Guard to the next higher post of either Senior Goods Guard or Passenger Guard. There was no further promotion so far as the private respondents are concerned. Since it has already been held by judicial pronouncement that the post of Senior Goods Guard and Passenger Guard have the same grade of pay and movement of a Senior Goods Guard to the post of Passenger Guard, is only a lateral induction and not a promotion, all the private respondents would be taken to have got only one financial upgradation and as per MACPS, they were entitled to two more financial upgradations. This is exactly what has been held by the Ernaculum Bench of the Central Administrative Tribunal in a batch of original applications, which was relied upon by the Tribunal in the impugned judgment.
For the reasons stated above, we find no justification to interfere with the impugned order of the Tribunal. The writ petition is accordingly dismissed."
10 : We have no hesitation in accepting the aforesaid reasonings of the Division Bench of Allahabad High Court, 13 for the simple reason that a categorical statement should have been made in that respect by the petitioners herein that in fact persons like respondent were granted the benefit of promotion in terms of the Regulations or Rules made by the petitioners in due course of time including the financial benefits and upgradation. Secondly, merely because of the merger of the pay scales any movement of Senior Goods Guard to the post of Passenger Guard was not to be treated as a promotion unless otherwise provided under the Service Rules. If it was a promotion, in what manner such consideration was done and whether that was granted to the persons like respondent in due course of employment in terms of those Regulations or not, was required to be proved by the petitioners. Nothing in that respect has been produced before the Tribunal. A bald statement that the MACPS would not be applicable in case of persons like respondent is not enough since it is required to be demonstrated by the petitioners themselves that the said MACPS is made for a specific purpose and for specific class of employees who have remained in stagnation in the matter of promotion for a long time. Broadly interpreting the provisions of paragraph 5 and 8 of the aforesaid MACPS, we are of the considered opinion that no error of law was committed by the Tribunal in making the said Scheme applicable for the persons like respondent. However, since certain facts were not clarified by the petitioners before the Tribunal, that opportunity to conduct an enquiry in that respect and to examine the cases of each and every individual separately was granted by the Tribunal by the impugned order. We are of the considered opinion that even such an opportunity was not required to be granted to the petitioners in view of the fact that though petitioners being employer were having all the information in respect of so-called promotion of respondent, the said information 14 was not produced before the Tribunal in adequate manner. However, we are not inclined to interfere in the order of the Tribunal only and are not willing to disturb the said liberty granted by the Tribunal for the reason the said aspect is not called in question by the respondent before us.
11 : In view of the discussions made herein above, we find no force in these writ petitions, which deserve to be and are hereby dismissed. However, looking to the facts and circumstances of the case, parties to the writ petitions to bear their own cost.
Ordered accordingly.
(RAJENDRA MENON) (K.K. TRIVEDI)
Judge Judge
A.Praj.