Kerala High Court
Baby Mathew vs The Rubber Board on 13 February, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).Nos.11529/2015, 11531/15
& 27732 of 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941
WP(C).No.11529 OF 2015(M)
PETITIONER:
BABY MATHEW, AGED 56 YEARS
W/O.THANKACHAN ZACHARIAS, SYSTEMS OFFICER,
EDP DIVISION, RUBBER BOARD, COLLECTORATE PO,
KOTTAYAM 686002(RESIDING AT "KANNADY THUNDIYIL",
NORTH OF BISHOP'S HOUSE, CHENGANCHERRY 686101.
BY ADVS.
SRI.ASOK M.CHERIAN
SRI.JOHN K.JOSEPH(SAJAN)
SRI.N.SATHEESH
RESPONDENTS:
1 THE RUBBER BOARD
REPRESENTED BY ITS SECRETARY,
COLLECTORATE PO, KOTTAYAM 686002.
2 THE PRINCIPAL DIRECTOR OF COMMERCIAL AUDIT & EX-
OFFICIO MEMEBER OF THE AUDIT BOARD,
OFFICE OF THE PRINCIPAL DIRECTOR OF COMMERCIAL
AUDIT & OFFICIO MEMBER AUDIT BOARD 4-CH OFFICE,
GREAMS ROAD, THOUSAND LIGHTS, CHENNAI,
TAMIL NADU 600006.
3 ADDL R3 : UNION OF INDIA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
PERSONNEL TRAINING, GOVERNMENT OF INDIA,
BLOCK 04, 3RD FLOOR, OLD JNU CAMPUS,
NEW MEHRAULI ROAD, NEW DELHI-110 067
(IMPLEADED AS PER ORDER DATED 07-03-2018 IN I.A.
NO.4493/2018 IN WP(C) 11529/2015.)
R1 BY ADV. SRI.V.ABRAHAM MARKOS
R1 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R1 BY ADV. SRI.BINU MATHEW
R1 BY ADV. SRI.ISAAC THOMAS
W.P(c).Nos.11529/2015, 11531/15
& 27732 of 2015 2
R1 BY ADV. SRI.NOBY THOMAS CYRIAC
R1 BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, IA AMP AD
R1 BY ADV. SRI.TOM THOMAS KAKKUZHIYIL
ASGI SRI.P.VIJAYAKUMAR
SRI. HARIDAS P.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2020, ALONG WITH WP(C).11531/2015(N), WP(C).27732/2015(N),
THE COURT ON 13.02.2020 DELIVERED THE FOLLOWING:
W.P(c).Nos.11529/2015, 11531/15
& 27732 of 2015 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941
WP(C).No.11531 OF 2015
PETITIONER:
CHANDRIKA DEVI M.
AGED 58 YEARS
W/O.K.V.JAYAKUMAR, ASST. SYSTEMS OFFICER, EDP
DIVISION, RUBBER BOARD, COLLECTORATE PO, KOTTAYAM
686002(RESIDING AT "NANDANAM", ARPOOKARA EAST PO,
KOTTAYAM 686008).
BY ADVS.
SRI.ASOK M.CHERIAN
SRI.K.JANARDHANA SHENOY
SRI.N.SATHEESH
RESPONDENTS:
1 THE RUBBER BOARD
REPRESETNTED BY ITS SECRETARRY, COLLECTORATE PO,
KOTTAYAM 686002.
2 THE PRINCIPAL DIRECTOR OF COMMERCIAL AUDIT & EX-
OFFICIO MEMBER OF THE AUDIT BOARD,
OFFICE OF THE PRINCIPAL DIRECTOR OF COMMERCIAL
AUDIT & OFFICIO MEMBER AUDIT BOARD 4-CH OFFICE,
GREAMS ROAD, THOUSAND LIGHTS, CHENNAI,
TAMIL NADU 600006.
R1 BY ADV. SRI.V.ABRAHAM MARKOS
R1 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R1 BY ADV. SRI.BINU MATHEW
R1 BY ADV. SRI.ISAAC THOMAS
R1 BY ADV. SRI.NOBY THOMAS CYRIAC
R1 BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, IA AMP AD
R1 BY ADV. SRI.TOM THOMAS KAKKUZHIYIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2020, ALONG WITH WP(C).11529/2015(M), WP(C).27732/2015(N),
THE COURT ON 13.02.2020 DELIVERED THE FOLLOWING:
W.P(c).Nos.11529/2015, 11531/15
& 27732 of 2015 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941
WP(C).No.27732 OF 2015
PETITIONER:
SUMA GEORGE
AGED 57 YEARS, W/O.GEORGE THOMAS, ASSISTANT SYSTEM
OFFICER, COMPUTER DIVISION, RUBBER BOARD, KOTTAYAM,
RESIDING AT CHELAMATTOM HOUSE, THOTTACKAD P.O,
KOTTAYAM 686 539.
BY ADVS.
SRI.MARTIN G.THOTTAN
SRI.M.P.VARKEY
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF COMMERCE
& INDUSTRY, GOVERNMENT OF INDIA, UDYOG BHAVAN,
NEW DELHI -110011.
2 CHAIRMAN RUBBER BOARD
P.B.NO.1122, SUB JAIL ROAD, KOTTAYAM 686 002.
*4 THE SECRETARY-CUM-DIRECTOR FINANCE
RUBBER BOARD, P.B.NO.1122, SUB JAIL ROAD, KOTTAYAM
686002.
(*SERIAL NUMBER 4 OCCURRING IN THE RESPONDENT ARRAY
(RANK) IS CORRECTED AS 3 AS PER ORDER DATED
22.09.2015 IN I.A.NO.13333/2015)
R1 BY SRI.HARIDAS P.NAIR, CGC
R1-2 BY ADV. SRI.V.ABRAHAM MARKOS
R1 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R1 BY ADV. SRI.BINU MATHEW
R1 BY ADV. SRI.ISAAC THOMAS
R1 BY ADV. SRI.NOBY THOMAS CYRIAC
R1 BY ADV. SRI.TOM THOMAS KAKKUZHIYIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2020, ALONG WITH WP(C).11529/2015(M), WP(C).11531/2015(N),
THE COURT ON 13.02.2020 DELIVERED THE FOLLOWING:
W.P(c).Nos.11529/2015, 11531/15
& 27732 of 2015 5
P.V.ASHA, J.
---------------------------
WP(C) Nos.11529/2015, 11531/2015 & 27732/2015
---------------------------
Dated this the 13th day of February, 2020
JUDGMENT
All these Writ Petitions are filed by employees of Rubber Board aggrieved by the withdrawal of the benefit granted to the petitioners under the Modified Assured Career Progression (MACP) Scheme. The parties and documents referred to in this common judgment would be as described in W.P.(C) No.27732/2015, unless specified otherwise.
WP(C) Nos.11531 and 27732 of 2015:
2. M/s Chandrika Devi and Suma George who are petitioners in WP(C) Nos.11531 and 27732 of 2015 respectively, joined the Rubber Board as LD Clerks on 26.04.1982 and 22.09.1982 respectively in the scale of pay of Rs.260-400 revised as 950-1500 (from 01.01.1986 in 4th CPC). It is stated that while the petitioners were working as LD Clerks, the Rubber Board introduced computerisation and for constituting new cadre which was later named as Electronic Data Processing (EDP) cadre, a notification dated 07.03.1986 was issued inviting applications for W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 6 appointment to the post of Data Entry Machine Operators in the scale of pay of Rs.1,200-2,040. After undergoing a process of selection consisting of written test and interview, they were deputed for a computer course in April 1986, in M/s Pallavan Transport Consulting Services Ltd, Madras. The petitioners in both these cases along with 2 others were appointed as Data Entry Machine Operators in the scale of pay of Rs.1200-30-1560-EB-40--2040, as per Ext.P1 order dated 15.12.1986. It was ordered that they would be treated as Data Entry Machine Operators under training for one year. Their scale of pay was revised to 1350-2200 as per order dated 09.07.1990. As per order dated 30.09.1992 produced as Ext.P3 in W.P.(C).No.11531/2015, the 2nd respondent accorded sanction for revision of the scale of pay of the petitioners/the existing Data Entry Operators to 1400-40-1800-EB-50-2300. It was stated that the scale of pay of 1350-2200 sanctioned to the Data Entry Operators in 1990 was the one that was applicable to Data entry Operators under Grade B; in the light of the OM dated 11.09.1989 of the Ministry of Finance on rationalisation of pay scales of Electronic Data processing posts, the next promotional grade is as Data Entry Operator Grade C in 1400-2300; taking note of the strenuous nature of job, W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 7 qualification and experience of the Data Entry Operators, the Rubber Board felt it necessary to offer the existing incumbents the next promotional grade C of Data Entry Operator in the scale of 1400-2300. The pay scale was later revised as 4500-7000 with effect from 01.01.1996 in the pay revision order. As per order dated 22.12.1999 (produced as Ext.P5 in W.P.(C).No.11531/2015) their posts were upgraded to grade D and accordingly their pay was revised to 5000-
8000 with effect from 01.11.1999. It is stated that Smt. Suma George was promoted as Computer Assistant in the scale of pay of Rs.5500-9000 as per order dated 26.08.2002. It is also stated that the scale of pay of 5000-8000 and 5500- 9000 were merged into pay band 2 in 9300-34800 with grade pay of Rs.4200, in the VI CPC. Government of India introduced Modified Assured Career Progression Scheme (MACPS) as per Ext.P3 memorandum dated 19.05.2009, with effect from 01.09.2008. It is stated that as per Ext.P5 order dated 30.04.2012, Smt.Suma George was granted financial upgradation under 3rd MACP in the pay band of 9300-3400 in the Grade Pay of Rs.4600/-. In the case of Chandrika Devi, the Rubber Board issued order dated 17.02.2012 (Ext.P6 in her case), granting her the 3rd financial upgradation under MACP in PB2 (9300-34800) with W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 8 GP 4600/- with effect from 01.11.2009, on completion of ten years of service as Data Entry Machine Operator. It was stated that the financial upgradation was granted on the basis of the recommendations of the screening committee. It is stated that the post of Data Entry Machine Operator was re-designated as Data Entry Operator and thereafter as System Assistant as per order dated 05.12.2012.
3. Whileso, the audit party in its inspection raised objection to the benefit of MACPS granted to the petitioners as per its report dated 10.06.2014, produced as Ext.R2(a) by the 2nd respondent, stating that the 2nd respondent was considering the shift over to another channel based on departmental examination as direct entry post, disregarding the service rendered by them prior to their appointment in such posts. It was stated that when the service prior to their appointment to such posts is reckoned towards other benefits, that would also be regular service and promotions obtained at these levels are also promotion/upgradation under ACP. It was further stated that the intermediary steps for appointment cannot be considered as direct appointment since no open selection is involved in such appointment, giving opportunity to inside and outside candidates. In the case of Suma George, the W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 9 objection was that she got three promotions/upgradations before granting ACP and that direct entry at a later stage in service cannot be considered for granting ACP. The 2nd respondent was directed to revise all such similar cases. It is stated that even though Rubber Board submitted its reply justifying their action submitting Ext.R2(b) explanation dated 05.01.2015, the audit wing did not accept the same. Thereupon, the Rubber Board issued Ext.P6 order dated 16.01.2015 withdrawing the benefit of MACP granted to the petitioners on the ground that audit did not accept its explanation. It was ordered to re-fix the pay as per the audit objection and to effect recovery of the payment made towards MACP. Consequent to this, their pay was re-fixed as per Ext.P7 order withdrawing the benefit of MACP.
4. The Rubber Board filed a counter affidavit in 2016, stating that the benefit was withdrawn based on Ext.R2(a) objection which was not dropped even after Ext.R2(b) explanation submitted by them. It was stated that the Comptroller and Auditor General of India and the Ministry of Commerce and Industry had objected to the grant of MACP on the ground that Data Entry Machine Operator cannot be treated as direct entry grade because they were already working in the Rubber Board at the time when they W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 10 were appointed in the respective posts and that service was being reckoned for service benefits. It is stated that the petitioner joined as LDC on 22.09.1982 in the scale of pay of Rs.260-400 (revised as 950-1500). She was appointed as Data Entry Machine Operator on 15.12.1986 in the scale of pay of Rs.1200-2040. The pay scale was revised to 1350-2200 on 09.07.1990. On 30.09.1992 she got a further upgradation in the scale of Rs.1400-2300; she got a higher grade in the scale of pay of Rs.5000-8000 (pre-revised) under the cadre review scheme with effect from 01.11.1999; thereafter, on 28.02.2002 she got promotion as Computer Assistant re- designated as Assistant System Officer in the scale of pay of Rs.5500-9000 and thereafter she was granted 3 rd financial upgradation under MACPS in the pay scale of Rs.9300-34800 (PB2) + GP 4600, with effect from 01.11.2009. It was stated that the benefit of MACP was withdrawn and the pay was re- fixed in view of the audit objections and after receipt of Ext.R2(c) clarifications from the Ministry of Commerce, according to which, the direct entry grade of the petitioner is Junior Assistant and the post of Data Entry Machine Operator is a promotion post.
5. After disposal of the Writ Petition in favour of the petitioners, the Rubber Board filed a review petition W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 11 stating that they omitted to produce the recruitment rules to the posts involved. The judgment was thereupon recalled. Thereafter, the Rubber Board filed additional counter affidavit dated 22.01.2020 stating that the counter affidavit dated 17.06.2006 was filed inadvertently overlooking several material facts. It is stated that they had considered the appointment to the post of Data Entry Machine Operator as direct recruitment and considered that post as direct entry grade, without adverting to the recruitment rules in Exts.R2(e) or R2(f) proceedings issued on 25.8.1986 and 14.04.1988, which provided promotion as the method of appointment. It is stated that the benefit of financial upgradation under MACP was given to the petitioner after she had already enjoyed three upgradations, which is not admissible under the scheme for ACP or MACP. It is stated that the post of Data Entry Machine Operator was created as per Ext.R2(e) order dated 25.08.1986, on introduction of computerization program. It was decided to call option from the existing LD Clerks with good speed and accuracy in typing and to make selection after speed cum accuracy test in typing. As per the Recruitment Rules appended to Ext.R2(e) circular dated 25.08.1986, the method of appointment was prescribed as W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 12 transfer/promotion failing which by direct recruitment. The post is classified as selection post under Group C. The appointments were to be made by transfer of persons from the post of UDC/promotion from LDC, who possess the requisite qualifications prescribed for direct recruitment and who have passed the aptitude test conducted by the Board. It is stated that as per Ext.R2(f) order dated 14.04.1988, the Chairman accorded sanction for appointment of 4 LD clerks as Data Entry Machine Operators in the scale of pay of Rs.1200-2040 after giving them aptitude test and training and the Board ratified the appointment and sanctioned creation of the 4 posts of Data Entry Machine Operator. It was also stated that the 110th meeting of the Board had approved the recruitment rules for the post of Data Entry Machine Operator. (However the date of the 110 th meeting is not mentioned anywhere.
WP(C) No.11529 of 2015
6. The petitioner Smt.Baby Mathew joined as Statistical Assistant on 05.04.1983 in the scale of pay of Rs. 425-700 (revised as 1400-2300 in 4 th CPC). Pursuant to notification inviting applications for appointment of Computer Programmers in the scale of pay of Rs. 425-800 from among LD Clerks and Statistical Assistants, she W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 13 applied and was successful in the selection. Thereafter, on successful completion of a course in Computer Programming she was appointed as Trainee-Computer Programmer as per Ext.P2 order dated 22.05.1986 along with three others. It was ordered that on completion of training they would be posted as Computer Programmers, in the scale of pay of Rs.425-800. As per Ext.P3 order dated 01.04.1991, the scale of pay was revised as 2000-3200 and the post was re- designated as Programmer cum Processing Assistant with effect from 01.04.1991 in the scale of pay of Rs.2000-3200. The seniority of the incumbents in the post was also fixed. In this order it was ordered that the Electronic Data Processing Unit would function as a separate Division in the Finance and Accounts Department. Thereafter, the seniority was re-fixed as per Ext.P4 order dated 03.09.1991, based on the ranking recommended to the incumbents by the Computer Consultants in the evaluation and assessment tests for the trainees sponsored by the 2 nd respondent, stating that the appointment to the post was not by promotion; but the appointment and length of service in the previous post are not relevant for fixing seniority in the new cadre of programmers selected. As per Ext.P5 order dated 13.06.2002, she was granted financial W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 14 upgradation under cadre review scheme to Rs.8000-13500 with effect from 15.02.2002. It is stated that the post was re- designated as System Officer and as per Ext.P6 order dated 30.01.2013 she was granted financial upgradation under 3rd MACP in the pay band of Rs.15600-39100 with Grade Pay of Rs.6600/- with effect from 15.02.2012, based on the recommendation of screening committee. According to the petitioner, it was her 2nd financial upgradation only under MACPs after her appointment in the EDP wing. In Ext.P7 report, the audit wing raised similar objections in the case of the petitioner also as in the case of Smt.Suma George that she had already obtained three promotions before granting ACP and direct entry at later stage cannot be considered for granting ACP. After submitting Ext.P8 explanation to the audit objection the Rubber Board issued Ext.P9 order on 16.01.2015, re-fixing the pay withdrawing the benefit of MACP and Ext.P11 order directing recovery of the excess pay based on Ext.P6 upgradation. Petitioner claims that the withdrawal of the MACPS benefit and re- fixation of pay are illegal; she is entitled to 2nd financial upgradation as on 21.05.2006 on completion of 20 years of her appointment, as she got only one upgradation from 01.09.2008.
W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 15
7. The Rubber Board has in the counter affidavit stated that her initial appointment was as Statistical Assistant on 5.4.1983 in the scale of pay of 1400-2300. Her appointment as Computer Programmer was on 22.5.1986 in the scale of 1400-2600. The post was re-designated as Programmer-cum-Processing Assistant and the scale of pay was upgraded to 2000-3200. She got a financial upgradation to 8000-13500 in the 5th CPC under cadre review scheme. Thereafter, she got financial upgradation under MACP on 15.2.2012. According to the respondents, she had already enjoyed 3 upgradations before the upgradation under MACP granted on 15.2.2012 was the 4th one. They have raised contentions similar to those in the other cases in the additional counter affidavit producing the recruitment rules.
8. The Comptroller and Audit General has filed a counter affidavit in this case stating that Smt.Baby Mathew was posted as Computer Programmer from the post of Statistical Assistant without break, in the same organization. Hence earlier service has to be treated as regular service for ACP/MACP as per paragraph 9 of the O.M dt.19.5.2009 introducing ACP/MACP. It is stated that the Government of India had clarified the position that where a W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 16 rationalisation/restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level taking into consideration their length of service in existing prestructured/prerationalised grade, it would be taken as promotion/upgradation. According to them, the petitioner's appointment as Computer Programmer from Statistical Assistant was without break in her past continuous service and it is regular service for MACP.
Contentions and Conclusions
9. The contention of Sri.Martin G.Thottan, learned counsel for the petitioner in WP(C) No.27732/2015 is that at the time when the process of selection for appointment as Data Entry Machine Operators was initiated in March, 1986 or when the selection was conducted or when they were deputed for computer course and training and even as on the date of appointment of M/s Suma George and Chandrika Devi, there was no recruitment rules in force and therefore the method of appointment provided in the recruitment rule as promotion from LD Clerk cannot affect their entitlement for the benefit of MACP. According to him, the direct entry W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 17 cadre does not mean that the appointment to the post should be by direct recruitment. As per the MACP Scheme, there shall be three financial upgradations counted from the direct entry 'grade' on completion of 10, 20 and 30 years. Therefore, an appointment in a newly constituted Data Entry/computer wing as Data Entry Machine Operator is in a separate cadre and the post in which the petitioners were appointed in that cadre is liable to be treated as direct entry grade. Therefore, they are entitled to the benefit of MACPS.
10. The petitioners have also relied on the judgment in State Of punjab v. Rafiq Masih [2015 (1) KLT 429 (SC)] and argued that if at all a refixation was necessary they being class 3 employees, recovery is not permissible. It is argued that they were granted the benefit of MACP with effect from the dates in 2009 and orders withdrawing the benefit were issued in 2014 and therefore there cannot be any recovery.
11. Sri Ashok M.Cherian, the learned counsel appearing for Smt.Baby Mathew and Smt.Chandrika Devi, pointed out that the Controller General of Accounts had in circular Ext.P12 (in W.P.(C) No.11529 of 2015) dt.10.12.2012 ordered that in the case of the Hindi Officers who were initially W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 18 appointed as Hindi Translators Gr.II after qualifying the Departmental examination, their appointment would be treated as direct recruitment and their past service/promotion will not be counted for the benefits under ACP/MACP. In Ext.P13 circular dt.20.6.2016 it was ordered that the appointment of SAS qualified persons to the post of Assistant Audit/Accounts Officer shall be treated as direct recruitment for the purpose of grant of benefits under ACP/MACP scheme. Their appointments were made after Departmental Subordinate Audit/Accounts Service examinations.
12. The learned standing counsel pointed out that as per Section 27(7) under Chapter 5 of the Rubber Board Act, the Chairman is empowered to take a decision when a decision cannot wait till a meeting is convened by the Board or the appropriate committee. After taking the decision, he shall keep the members of the Board or committee informed of the decision so taken. Therefore, it is pointed out that the Chairman was competent to issue orders even with respect to the issuance of recruitment rules. It is also his contention that the entire proceedings for appointments were initiated under orders of the Chairman and therefore the contention that rules were W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 19 issued subsequently and therefore their appointments would not be governed by Ext. R2(e) or R2f) is not sustainable.
13. Having considered the pleadings and the arguments advanced by the learned counsel on both sides, it is seen that the eligibility of the petitioners for the benefit of financial upgradation under MACP is to be determined with reference to the orders governing the same (Ext.P3 in W.P. (C).No.27732/2015). The contention now advanced by the Rubber Board which had justified their action in granting the benefit to the petitioners by submitting their explanation to the audit objections and whose only objection was that they had to act on the basis of audit objection, is that the appointment of the petitioners to the EDP unit was by promotion, as per the recruitment rules, which could be found out only later in 2019-20.
14. In this context it is pertinent to note the order dated 03.09.1991(Ext.P4 in W.P.(C) No.11529 of 2015) of the Rubber Board, where it was stated as follows:
" Orders of the Chairman fixing inter-se seniority of the personnel drafted to the post of Programmer cum Processing Assistants on the basis of their grade and length of service in the Rubber board was issued vide OM. No. 23/1(2)/91/EST dated 1st April 1991. Now on re-examination of the matter considering the representation in this regard it has been decided that the seniority of the personnel holding the post of Programmer cum Processing Assistants may be fixed based on the original ranking recommended by the Computer Consultants who conducted the evaluation assessment tests for the trainees sponsored by us in W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 20 Computer Programming. The posting of Computer Programmer was not a promotion but an appointment and the length of service in the previous post is not relevant in fixing the seniority in the new cadre of programmers selected. The fact that the Programmers cum Processing Assistants is only a re-designation of the post of Computer Programmers is also taken into account while arriving at the decision. Xxxx"
15. It is also relevant to note the following statements made by the Rubber Board in its order dated 01.04.1991 (Ext.P3) issued in Baby Mathew's case:
"The Chairman has ordered that the Electronic Data Processing (EDP) unit will function as a separate Division in the Finance and Accounts Department."
16. What is relevant to be examined is the provision in the orders introducing MACP Scheme. Union of India has not filed any counter affidavit in these cases. Petitioners were working in the newly constituted cadre since 1986. Their appointments were not on the basis of their seniority in the post of LD Clerk or Statistical Assistant; but after inviting applications and after being successful in the process of selection consisting of written test and interview and after they were deputed for undergoing respective courses and completing training. The clarification of DoPT, referred to in paragraph 8 of the counter affidavit filed by the Principal Auditor of Commercial Audit in W.P.(C) 11529/2015 would not apply in the case because they are not placed in the new hierarchy W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 21 of restructured set up on the basis of their length of service in the pre-restructured service, as is evident from the orders issued by the Rubber Board itself.
17. Even assuming that the recruitment rules could be found out at this later stage and the method of appointment is stated to be promotion in those rules, it is seen that the appointments in EDP Division was made after conducting a process of selection and after subjecting them to undergo a separate course and after subjecting them to training. Their seniority is not fixed with reference to seniority in the previous cadre. Even if the method of appointment is described as `promotion' are they not entitled to the benefit of ACP or MACP, the entitlement of the petitioners for the benefit of MACP has to be determined in the light of the provisions contained in the orders dated 19.05.2009 introducing MACP scheme. Ext.P3 order in WP(C)No.27732 of 2015 introduced MACP Scheme on the basis of the recommendations of 6th CPC. Clause 1 of the MACPS- Annexure I of Ext.P3 dated 19.05.2009 provides as follows: "There shall be three financial upgradations counted from the "direct entry grade" on completion of 10, 20 and 30 years respectively. Financial upgradation under the scheme would be admissible whenever a person has spent ten years W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 22 continuously in the same grade. Direct entry grade is not defined. As rightly pointed out by the learned Counsel for the petitioners, direct entry grade need not be a post to which a person is appointed by direct recruitment.
18. The normal and usual procedure is that promotions are made to the immediate higher post in the same hierarchy. LD Clerks and Data Entry Machine Operator or Computer Programmer are not in the same hierarchy. From the orders issued by the respondents it is seen that new posts and new cadre were introduced in the EDP Division and separate selection was conducted to the posts in that Division. Therefore, the appointment of the petitioners in the entry posts in the EDP Division can also be treated as indirect entry grade, having regard to the procedure adopted for their appointments and thereafter, whatever be the nomenclature given to the method of appointment.
19. It is also pertinent to note that the Audit department itself is adopting different yardsticks in granting the benefit of MACP, as evident from the orders Exts.P12 and P13 in Baby Mathew's case. It is seen that orders are issued providing the benefit of MACP to Hindi Officers appointed from among Hindi Translators and Assistant Accounts Officers who got appointments after W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 23 qualifying in separate examinations conducted for the same, by the Staff Selection Board from among in-service candidates, as evident from Exts.P12 and P13 orders issued from the Office of the Controller and Auditor General of India. At the same time an entirely different yardstick is adopted in the case of those in the Rubber Board. Such attitude itself indicates that the objections raised in the case of the employees like petitioners in these cases are unjust and unsustainable.
20. The office memorandum Ext.P1, the orders fixing their seniority, etc. would show that Data Entry Operators and Computer Programmers are entry posts in the EDP Division. Though the learned Standing Counsel relied on FAQ and its answers with respect to MACP, no office memorandum of DoPT is brought to my notice which defines `direct entry grade'.
21. Therefore, I am of the view that the upgradations given to the petitioners after their appointment in the EDP Division alone shall be taken into account for the purpose of financial upgradation under MACP Scheme. Even assuming that the method of appointment to the posts in EDP is by way of promotion, even when it is in a different hierarchy of posts, they would be entitled to be considered for the W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 24 benefit of MACP with reference to the date on which they were appointed as Data Entry Machine Operators/Computer Programmers in the EDP unit. Even if the argument of the learned Standing Counsel that the Chairman was competent to take a decision with respect to recruitment to new posts under Section 27(7) of Chapter 5 of the Rubber Board Act and as per the Recruitment Rules which got ratification subsequently, which provides for promotion as the method of appointment is accepted, I am of the view that the petitioners, who are governed by separate seniority list in the Electronic Data Processing Division which is a separate cadre, having regard to the entire process of selection for appointment to the post in a separate Department which is functioning separately, without any consideration for their length of service in the Rubber Board, based on their initial appointments as LDC/Statistical Assistants, are liable to be considered as having been absorbed or recruited to the new cadre.
22. In the above circumstances of the case, I am of the considered view that the audit objections raised in the case of the petitioners in all these Writ Petitions and the consequential action of the Rubber Board in withdrawing the benefit of MACPS and in re-fixing their pay are W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 25 unsustainable and accordingly the impugned orders in all these Writ Petitions i.e Exts.P6 and P7 in W.P.(C).No. 27732/2015, Exts.P9 and P11 orders in W.P.(C).Nos 11529/2015 and 11531/2015 to the extent those relate to the petitioners shall stand set aside. The benefits given to them prior to the orders which are set aside shall stand restored and they shall be granted consequential benefits.
The Writ Petitions are allowed accordingly.
Sd/- (P.V.ASHA, JUDGE) rtr/rkc W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 26 APPENDIX OF WP(C) 11529/2015 PETITIONER'S EXHIBITS:
EXHIBIT P1 P1:TRUE COPY OF THE OFFICE MEMORANDUM NO.35034/3/2008- ESTT. (D) DATED 19.05.2009 OF THE GOVERNMENT OF INDIA.
EXHIBIT P2 P2:TRUE COPY OF THE OFFICE MEMORANDUM NO.23/2(3)/86/EST DATED 22.05.1986 OF THE RUBBER BOARD.
EXHIBIT P3 P3:TRUE COPY OF OFFICE MEMORANDUM NO.23/1(2)/91/EST DATED 01.04.1991 OF THE RUBBER BOARD EXHIBIT P4 P4:TRUE COPY OF MEMO.NO.23/1(2)/91/EST DATED 03.09.1991 OF THE RUBBER BOARD EXHIBIT P5 P5:TRUE COPY OF THE OFFICE MEMORANDUM NO.3/24/2002/EST DATED 13.06.2002 OF THE RUBBER BOARD.
EXHIBIT P6 P6:TRUE COPY OF OFFICE MEMORANDUM NO.3/23/2013/EST DATED 30.01.2013 OF THE RUBBER BOARD EXHIBIT P7 P7:TRUE COPY OF THE LETTER NO.IA/7-2/2012- 13/2014/50 DATED 10.06.2014 OF THE RUBBER BOARD EXHIBIT P8 P8:TRUE COPY OF THE REPLY DATED NIL OF THE RUBBER BOARD TO EXT.P7.
EXHIBIT P9 P9:TRUE COPY OF THE OFFICE NOTE NO.3/23/2015/EST DATED 16.01.2015 ISSUED BY THE RUBBER BOARD EXHIBIT P10 P10:TRUE COPY OF THE REPRESENTATION DATED 06.03.2015 OF THE PETITIONER EXHIBIT P11 P11:TRUE COPY OF MEMORANDUM NO.F&A/P1- 9/2014-2015 DATED 11.03.2015 OF THE RUBBER BOARD EXHIBIT P12 A TRUE COPY OF A CIRCULAR ISSUED BY THE OFFICE OF THE CONTROLLER GENERAL OF ACCOUNTS DATED 10.12.2012 REFERRING TO THE CLARIFICATION OF THE DEPARTMENT OF PERSONAL AND TRAINING (DOP&T) OF GOVERNMENT OF INDIA.
W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 27 EXHIBIT P13 A TRUE COPY OF A CIRCULAR DATED 20.06.2016 OF THE OFFICE OF THE COMPTROLLER AND AUDITOR GENERAL OF INDIA.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 20.06.2018 ISSUED BY THE SECTION OFFICER OF THE MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI WIHTOUT ANNEXURES EXHIBIT R1(b) TRUE COPY OF THE NOTIFICATION/PROCEEDINGS DATED 15.05.1986 ISSUED BY THE 1ST RESPONDENT.
EXHIIT R1(c) TRUE COPY OF THE FREUENTLY ASKED QUESTIONS (FAQs) ON MODIFIED ASSURED CAREER PROGRESSION SCHEME (MACPS) BROUGHT OUT BY THE DEPARTMENT OF PERSONNEL AND TRAINING, ESTABLISHMENT D SECTION.
EXHIBIT R1(d) TRUE COPY OF THE OFFICE MEMORANDUM DATED 9TH SEPTEMBER 2010 ISSUED BY THE DIRECTOR (ESST.I), MINISTY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI ALONG WITH ANNEXURES THERETO.
W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 28 APPENDIX OF WP(C) 11531/2015 PETITIONER'S EXHIBITS:
EXHIBIT P1 P1:TRUE COPY OF THE OFFICE MEMORANDUM NO.35034/3/2008- ESTT. (D) DATED 19.05.2009 OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.
EXHIBIT P2 P2:TRUE COPY OF THE OFFICE MEMORANDUM NO.23/2(3)/86/EST DATED 15.12.1986 OF THE RUBBER BOARD.
EXHIBIT P3 P3:TRUE COPY OF OFFICE NOTE NO.22/2/92/EST DATED 30.09.1992 OF THE RUBBER BOARD EXHIBIT P4 P4:TRUE COPY OF MEMORANDUM NO. F&A/1-1/93 DATED 29.04.1993 OF THE RUBBER BOARD EXHIBIT P5 P5:TRUE COPY OF THE OFFICE MEMORANDUM NO.23/1(2)/99/EST DATED 22.12.1999 OF THE RUBBER BOARD EXHIBIT P6 P6:TRUE COPY OF RELEVANT PORTION OF THE OFFICE MEMORANDUM NO.3/23/2012/EST DATED 17.02.2012 OF THE RUBBER BOARD EXHIBIT P7 P7:TRUE COPY OF THE LETTER NO.IA/7-2/2012-
13/2014/50 DATED 10.06.2014 OF THE RUBBER BOARD EXHIBIT P8 P8:TRUE COPY OF THE OFFICE NOTE NO.
3/23/2014/EST DATED 18.09.2014 OF THE RUBBER BOARD EXHIBIT P9 P9:TRUE COPY OF THE OFFICE NOTE NO.3/23/2015/EST DATED 16.01.2015 OF THE RUBBER BOARD EXHIBIT P10 P10:TRUE COPY OF THE LAST REPRESENTATION DATED 11.03.2015 OF THE PETITIONER EXHIBIT P11 P11:TRUE COPY OF MEMORANDUM NO.F&A/P1- 9/2014-2015 DATED 11.03.2015 OF THE RUBBER BOARD RESPONDENTS' EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE ORDER/OFFICE CIRCULAR FOR THE POST OF DATA ENTRY MACHINE OPERATOR DATED 25/08/1986 ISSUED BY THE DEPUTY W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 29 SECRETARY (P&A) OF THE 1ST RESPONDENT. EXHIBIT R1(b) TRUE COPY OF THE NOTIFICATION/PROCEEDINGS NO.17/88 DATED 14/04/1988 ISSUED BY THE CHAIRMAN OF THE 1ST RESPONDENT.
EXHIBIT R1(c) TRUE COPY OF THE FREQUENTLY ASKED QUESTIONS (FAQs) AND MODIFIED ASSURED CAREER PROGRESSION SCHEME(MACPS) BROUGHT OUT BY THE DEPARTMENT OF PERSONNEL & TRAINING, ESTABLISHMENT D SECTION.
EXHIBIT R1(d) TRUE COPY OF THE OFFICE MEMORANDUM DATED 9TH SEPTEMBER 2010 ISSUED BY THE DIRECTOR(ESTT.I), MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI.
W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 30 APPENDIX OF WP(C) 27732/2015 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM REF NO.
23/2(3)/86/EST. DATED 15.12.1986.
EXHIBIT P2 TRUE COPY OF THE RUBBER BOARD'S OFFICE MEMORANDUM REF NO.3/23/1(2)/2002/EST DATED 26.8.2002 EXHIBIT P3 TRUE COPY OF THE OFFICE MEMORANDUM NO.35034/3/2008-ESTT(D) DATED 19.5.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.
EXHIBIT P4 TRUE EXTRACT OF THE HIERARCHY OF THE RECOMMENDED REVISED PAY BAND AND GRADE PAYS UNDER THE CCS (REVISED PAY) RULES, 2008, REFERRED TO IN PARA 2 OF THE EXT.P3 MACPs. EXHIBIT P5 TRUE COPY OF THE RUBBER BOARD'S OFFICE MEMORANDUM REF NO.3/23/2012/EST DATED 30.4.2012.
EXHIBIT P6 TRUE COPY OF THE RUBBER BOARD OFFICE REF.NO.3/23/2015/EST DATED 16.01.2015.
EXHIBIT P7 TRUE COPY OF THE MEMORANDUM
REF.NO.RES.ACCTS./7/2/2015 DATED
05.02.2015.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
19.02.2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE OFFICE MEMORANDUM NO.AB-
14017/2/2011-ESTT(RR) DATED 10.12.2014. EXHIBIT P10 TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO.REF.NO.3/23/2016/EST DATED 26.11.2016 ISSUED BY THE RUBBER BOARD.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 2.4.1986 ISSUED ON BEHALF OF THE SECOND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE RECRUITMENT RULE FOR THE POST OF DATA ENTRY MACHINE OPERATOR.
W.P(c).Nos.11529/2015, 11531/15 & 27732 of 2015 31 RESPONDENTS' EXHIBITS EXHIBIT R2(a) TRUE COPY OF RELEVANT PAGES OF THE INSPECTION REPORT.
EXHIBIT R2(b) TRUE COPY OF LETTER ADDRESSESD TO THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF COMMERCE DATED 05.01.2015.
EXHIBIT R2(c) TRUE COPY OF THE LETTER DATED 16.4.2015 ISSUED BY THE MINISTRY OF COMMERCE AND INDUSTRY.
EXHIBIT R2(d) TRUE COPY OF THE LIST OF FREQUENTLY ASKED QUESTIONS (FAQ) ON THE MACP SCHEME PUBLISHED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.
RESPONDENTS'EXHIBITS EXHIBIT R2(e) TRUE COPY OF THE ORDER/OFFICE CIRCULAR FOR THE POST OF DATA ENTRY MACHINE OPERATOR DATED 25/08/1986 ISSUED BY THE DEPUTY SECRETARY (P&A) OF THE RUBBER BOARD.
EXHIBIT R2(f) TRUE COPY OF THE NOTIFICATION/PROCEEDINGS NO.17/88 DATED 14/04/1988 ISSUED BY THE 2ND RESPONDENT OF THE RUBBER BOARD.
EXHIBIT R2(g) TRUE COPY OF THE OFFICE MEMORANDUM DATED 9TH SEPTEMBER 2010 ISSUED BY THE DIRECTOR(ESTT.I), MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI ALONG WITH ANNEXURE THERETO.