Kerala High Court
Union Of India vs Sri.A.R.Mohandas on 3 March, 2020
Bench: K.Vinod Chandran, P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941
OP (CAT).No.193 OF 2015(Z)
AGAINST THE ORDER IN OA 294/2013 DATED 18-06-2015 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN OA:
1 UNION OF INDIA
REPRESENTED BY THE DIRECTOR GENERAL, CENTRAL
PUBLIC WORKS DEPARTMENT, NIRMAN BHAVAN, NEW
DELHI 110 001
2 THE SUPERINTENDENTING ENGINEER (CO.ORD)
SR. CENTRAL PUBLIC WORKS DEPARTMENT, CHENNAI
600 003
3 THE SUPERINTENDENTING ENGINEER (E)/ P & A,
OFFICE OF THE CHIEF ENGINEER (E)/ SR, CENTRAL
PUBLIC WORKS DEPARTMENT, 3RD FLOOR, G WING,
RAJAJI BHAVAN, BESANT NAGAR, CHENNAI-600003
4 THE CHIEF ENGINEER (SZ) III, CENTRAL PUBLIC
WORKS DEPARTMENT, D-WING, 6TH FLOOR BANGALORE 20
5 THE EXECUTIVE ENGINEER TCD
CENTRAL PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM 695 014
6 THE SUPERINTENDENTING ENGINEER
TRIVANDRUM CENTRAL CIRCLE, CENTRAL PUBLIC WORKS
DEPARTMENT, THIRUVANANTHAPURAM 695 014
7 THE ASSISTANT ENGINEER (HQ)
CENTRAL PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM CENTRAL CIRCLE,
THIRUVANANTHAPURAM 695 014
BY ADV. SMT.I. SHEELA DEVI, CGC
OP(CAT) No.193 of 2015 2
RESPONDENT:
SRI.A.R.MOHANDAS, AGED 60 YEARS, S/O. G. RAGHAVAN
PILLAI, RETIRED OFFICE SUPERINTENDENT, RESIDING IN
UPSLRA 8, 'KRISHNA', TC NO.67/2612, UPS LANE,
AMBALATHARA, POONTHURA P.O., TRIVANDRUM-695026
R1 BY ADV. SRI.BIJITH S.KHAN
R1 BY ADV. SRI.R.KRISHNA RAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03.03.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) No.193 of 2015 3
JUDGMENT
Vinod Chandran, J.
The entire issue revolves around the interpretation of clause 25 of Modified Assured Career Programme Scheme (for brevity 'the MACP Scheme') which as extracted in the order of the Tribunal, is extracted by us:
"If a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal."
2. On facts, it has to be noticed that the applicant joined service as Lower Division Clerk (LDC) on 28.12.1981. He was promoted as Upper Division Clerk (UDC) in 1998. The Assured Career Progression Scheme (ACP) came into effect in 1999 which OP(CAT) No.193 of 2015 4 granted financial up-gradations on completion of 12 and 24 years, without promotion. The petitioner having obtained one promotion was not entitled to the first up-gradation. He was granted the second financial up-gradation on 28.12.2005, on completion of 24 years.
3. Later, the applicant applied for promotion in the departmental competitive examination for the 50% quota for promotions on merit. The applicant applied and participated in the examination and stood qualified. The applicant was posted to Madurai in the promoted higher post. However, the applicant refused to join since he had some family commitments in Trivandrum itself and continued in the lower post. In the meanwhile, on 01.09.2008 the MACP Scheme was introduced. The applicant claimed for the third financial up-gradation. As per the MACP there were three financial up-gradations, on completion of 10th, 20th and 30th years of service respectively. On 28.12.2011, on completion of 30 years from the date of his initial entry the applicant claimed the 3 rd financial up-gradation, which the respondents refused to grant on the ground that he had forfeited his claim by declining the offer for promotion.
4. Since the petitioner qualified in the departmental competitive examinations, he was well within his right to refuse OP(CAT) No.193 of 2015 5 promotion and in such circumstances, he should be granted the third MACP, is the ground urged. It was found by the Tribunal that there was a different track for promotion based on seniority and suitability which, if offered and refused could only be considered as forfeiting the right to MACP.
5. We are unable to agree with the said finding especially looking at clause 25 of the MACP Scheme. The offer of a regular promotion as spoken of in clause 25 does not draw a distinction between a promotion on merit, based on the performance in a departmental competitive examination or based on seniority. In effect, clause 25 says that if a person has refused the offer for promotion then he cannot be granted a stagnation up-gradation, later to such refusal. He can then be granted an up-gradation only if he has accepted a promotion later to that and then stagnated further. The applicant had refused a promotion offered to him.
6. The learned counsel would assert that it was not one offered but one acquired by way of his merit. Either way when there is a refusal to accept a promotion, then the up-gradation under the MACP Scheme would not apply. This is because, the financial up-gradation as per the MACP Scheme is specifically to mitigate the hardship and heart-burn of stagnation in a post with OP(CAT) No.193 of 2015 6 the same pay, for reason of not enough promotional opportunities being available. In the present case, if the petitioner had not taken up the departmental competitive examination, none could have faulted him and he could have also been granted the MACP Scheme, if he was not promoted on the basis of seniority. The petitioner having taken the option to participate in the examination and having qualified, declined acceptance of the higher post on personal reasons. If the MACP Scheme is then allowed it would result in the petitioner enjoying the benefits of the higher pay of the higher post without his being shifted from Trivandrum.
7. The learned counsel for the applicant also submits that the term used in clause 25 is 'regular promotion'. We are of the opinion that the use of the word 'regular promotion' is only to distinguish it from an 'adhoc', 'temporary' or 'officiating' promotion. Whether it be on the accelerated track through a departmental competitive exam, or on the normal track of seniority the promotion, when offered cannot be refused; as is rightly found in Annexure A-12. Annexure A-4 though pointed out by the applicant's counsel works against him. The applicant was promoted as is seen from Annexure A-3, which is the offer. Annexure A-4 indicates that the applicant accepted it on OP(CAT) No.193 of 2015 7 condition; presumably of desiring to continue in Trivandrum. This amounts to a refusal and he was barred for further promotion for one year.
8. The MACP up-gradation was declined for reason of the refusal to accept the promoted post. If the applicant had accepted the higher post then he would not have a claim for financial up-gradation. Having qualified in the selection, on merit, and having refused the offer, the applicant cannot have a grievance of stagnation. In such circumstances, we find that the order of the Tribunal cannot be sustained. We set aside the same and reject the Original Application. The Original Petition is allowed. Parties to suffer their costs.
Sd/-
K.VINOD CHANDRAN, JUDGE Sd/-
P.V.KUNHIKRISHNAN, JUDGE pkk OP(CAT) No.193 of 2015 8 APPENDIX PETITIONERS' EXHIBITS & ANNEXURES EXHIBIT P1 TRUE COPY OF THE OA NO.294/2013 DATED 1/4/2013 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.294/2013 DATED 18/6/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P4 TRUE COPY OF THE OM NO.12/13/2010-EC-IV (SC) DATED 24/7/2012 ISSUED BY THE DIRECTOR GENERAL, CPWD, NEW DELHI EXHIBIT P5 TRUE COPY OF THE OFFICE ORDER NO.8(21)/TCC/2015/3092-96(H) DATED 8/10/2015 OF THE SUPERINTENDING ENGINEER, TRIVANDRUM CENTRAL CIRCLE, CPWD, TRIVANDRUM ANNEXURE A1 TRUE COPY OF THE OFFICE ORDER NO.22/1/2005-CE(E)/SR DATED 7.2.2006 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE OFFICE ORDER NO.9/4/2/COORD/SR/222 DATED 10.4.2007 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE OFFICE ORDER NO.139/2007 DATED 26.10.2007 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE OFFICE ORDER OP(CAT) No.193 of 2015 9 NO.9/4/2/COORD/SR/2007/916 DATED 22.11.2007 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE OM NO.35034/3/2008.ESTT DATED 19.05.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING ANNEXURE A6 TRUE COPY OF THE LETTER NO.8(21)TCC/2012/786 DATED 2.4.2012 ISSUED BY THE 7TH RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE OFFICE ORDER NO.8(21)TCC/12/EC.II/1033-46 DATED 27.2.2012 ISSUED BY THE 7TH RESPONDENT. ANNEXURE A8 TRUE COPY OF LETTER OF THE RESPONDENT TO THE 6TH RESPONDENT DATED 2.4.2012. ANNEXURE A9 TRUE COPY OF THE SENIORITY LIST APPENDED TO OM 9/4/5/1012/CORD/SR/492 DATED 30.3.2012.
ANNEXURE A10 TRUE COPY OF LETTER NO.52(5) (15)2012/RTI/ADG(SR)/AA 635-39 DATED 7.5.2012 ISSUED BY THE FIRST APPELLATE AUTHORITY UNDER RTI ACT IN CPWS.
ANNEXURE A11 TRUE COPY OF THE REPRESENTATION OF THE RESPONDENT TO THE ADG(SR).CHENNAI DATED 1.5.2012.
ANNEXURE A12 TRUE COPY OF OFFICE MEMORANDUM F.NO.12/13/2010 EC (SC) DATED 24.7.2012 ISSUED BY THE FIRST RESPONDENT ANNEXURE A13 TRUE COPY OF THE LETTER NO.1 (9)3/212/5588 DATED 23.8.2012 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE A 13 A TRUE COPY OF THE LETTER OF THE 7TH RESPONDENT NO.8(21)TCC/2012/ECII DATED 12.9.2012.
ANNEXURE 14 TRUE COPY OF OFFICE ORDER NO.64/2002 DATED 15.3.2002 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A14 A TRUE COPY OF OFFICE ORDER NO.8 (17) BCEC/2010/709 DATED 5.8.2010 ISSUED BY THE SEC,BCEC,CPWD,BANGALORE.
OP(CAT) No.193 of 2015 10ANNEXURE R1 TRUE COPY OF THE OFFICE ORDER NO.139/2007 DATED 26.10.2007 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE R2 TRUE COPY OF THE OM NO.35034/3/2008- ESTT DATED 19.05.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. ANNEXURE R3 TRUE COPY OF THE OM NO.35034/3/97- ESTT(D) DATED 09.08.1999 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. ANNEXURE R4 TRUE COPY OF THE OFFICE ORDER NO.22/1/2005-CE(E)/SR/150 DATED 07.02.2006 ISSUED BY CE(E),SR,CPWD,CHENNAI.
ANNEXURE R5 EXTRACT OF RECRUITMENT RULES FOR THE POST OF HEADCLERK ANNEXURE R6 TRUE COPY OF OFFICE MEMORANDUM NO.9/4/2/COORD/SR/222 DATED 10/4/2007 ISSUED BY THE 3RD RESPONDENT ANNEXURE R8 TRUE COPY OF LETTER OF THE RESPONDENT TO THE 6TH RESPONDENT DATED 30/12/2011 ANNEXURE R9 TRUE COPY OF LETTER OF THE RESPONDENT TO THE 6TH RESPONDENT DATED 1/3/2012 ANNEXURE R10 TRUE COPY OF LETTER NO.8(21)/TCC/2012/1796 DATED 2/4/2012 OF THE 7TH RESPONDENT ANNEXURE R11 TRUE COPY OF THE OFFICE ORDER NO.8(21)TCC12/EC.II/1033-46 DATED 27/2/2012 ISSUED BY THE 6TH RESPONDENT ANNEXURE R12 TRUE COPY OF ORDER ON OA NO.4111/2011 BY THE HON'BLE CAT, NEW DELHI ANNEXURE R13 TRUE COPY OF THE EXTRACT OF SENIORITY LIST APPENDED TO OM NO.9/4/5/2012/COORD/SR/268 DATED 20/2/2012 ANNEXURE R14 TRUE COPY OF THE THE SENIORITY LIST APPENDED TO OM NO.9/4/5/2013/DDG(HQ)/255 DATED 4/4/2013 ANNEXURE R15 TRUE COPY OF OFFICE MEMORANDUM F.NO.13/13/2010EC(SC) DATED 24/7/2012 OP(CAT) No.193 of 2015 11 ISSUED BY THE FIRST RESPONDENT ANNEXURE R16 TRUE COPY OF THE LETTER NO.8(21) TCC/2012/ECII/3824 DATED 12/9/2012 OF THE 7TH RESPONDENT WITH ENCLOSURE ANNEXURE R17 TRUE COPY OF THE OFFICE ORDER NO.8(21)TCC/2012/EC11/48876-79 DATED 5.12.2012.