Central Administrative Tribunal - Ernakulam
P J Antony vs M/O Agriculture on 5 December, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/001106/2013
Thursday, this the 5th day of December, 2024
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
P.J.Antony, Mate (Retd.), Pulickal House
Kannamaly P.O., Puthenthode Cochin-682008
-Applicant
[By Advocates: Mr. Shafik M Abdulkhadir, Mrs.Girija P]
Versus
1. Union of India, Represented by its Secretary, Ministry of
Agriculture, Animal Husbandry, Dairying & Fisheries
New Delhi-110001
2. The Director, Central Institute of Fisheries Nautical and
Engineering Training, Fine Arts Avenue, Cochin-682016
- Respondents
[By Advocate: Mr. M.K.Padmanabhan Nair, ACGSC]
The application having been heard on 24.10.2024, the Tribunal on
05.12.2024 delivered the following:
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O.A.No.1106/2013 2
ORDER
Justice K.Haripal Applicant is a former Mate in the 2 nd respondent organisation- CIFNET, who commenced service as Bosun(Certified) on 20.10.1973 on adhoc basis. He was promoted as Mate-II on 21.05.1980. During the period of 24 years service he got only one promotion and was entitled to get 2nd financial upgradation under ACP on 09.08.1999. But he was granted ACP only on 01.04.2002. Then he moved this Tribunal for getting 2nd financial upgradation under the ACP, which was dismissed. When moved the Hon'ble High Court with WP(C)8259/2010 the 2 nd respondent was directed to consider the representation against adverse ACP entries for 1994-1995 to 1997-1998 within a period of three months. Meanwhile, the pay band and grade pay of Bosun(Certified) and Mate-II were merged and in effect, the applicant did not get any promotion during the entire period of 30 years. So, he is entitled to get three financial upgradations during his career.
2. According to the applicant, when he was not granted financial upgradations under the MACP, he gave representations. By 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 3 Annexure-A5 order dated 21.06.2012 he was asked to fill up Part-II of ACR for 2005-2006. In fact he had submitted self appraisal report in April 2006 itself, which was apparently missing. Still he gave self appraisal through Annexure-A6. Later, he was told that grading for the years 2003-2004, 2004-2005 and 2006-2007 were only 'good' so that representations were invited for upgrading the same, following which he gave Annexure-A8 representation. Then he was informed again through Annexure-A9 that his grading for 2005-2006 was below benchmark and representation was called for which he gave reply through Annexure- A10. Then he understood that ACR for 2005-2006 was forwarded to Dr.P.Premalatha, Assistant Director (Retired) for reviewing the ACR. Even though she had retired by the time, only a grading of 'good' was given despite the fact that it was done after a lapse of 6½ years. Such a review was done without any record on hand. Then he gave Annexure-A12 representation. He has also relied on Annexure-A13 order of this Tribunal in O.A.610/2006 to say that benchmark upgradation is not necessary in respect of promotional post or isolated post. He also relied 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 4 on Annexure-A14 to say that wherever promotion is given on non- selection basis, prescribed benchmark grading in paragraph 17 of Annexure-I of the MACP scheme is not applicable.
3. According to the applicant, his promotion was stagnated during the entire period of the service. Whenever promotions are given on non-selection basis or on seniority-cum-fitness basis, prescribed benchmark is not applicable to the post Skipper, which is an isolated post; where there is no promotion the seniority cum fitness is the only basis for grant of financial upgradation under the MACP scheme. He is entitled to be granted two financial upgradations under the MACP from 01.09.2008 treating his grading as 'very good'. Denial of such benefits to him is illegal. Thus he has prayed for a declaration that he is entitled to get 2nd and 3rd financial upgradations under the MACP scheme with effect from 01.09.2008 and to grant him consequential benefits including arrears of pay and allowances, retirement benefits, leave encashment and all other monetary benefits within a stipulated period of time.
4. Respondents have disputed the contentions of the applicant.
2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 5 They admit that since the post of Bosun (Certified) and Mate were merged, promotion and financial upgradation granted can be ignored, that he had got only one financial upgradation during the service under the ACP scheme.
5. At the same time, the 2nd and 3rd financial upgradations under the MACP scheme with Grade Pay of Rs.7600/- and 8700/- respectively can be granted only with the required minimum benchmark grading of 'very good'. During the period 2003-2004, 2004-2005, 2005- 2006, 2006-2007, 2007-2008 and 2008-2009 his gradings were 'good', 'good' 'not available', 'good', 'very good' and 'very good' respectively. His case was placed before the committee which met on 19.02.2010. The Committee found that he is not eligible for financial upgradation under the MACP scheme since he did not fulfill the required benchmark as his ACR for 2005-2006 was not available. The same was written afresh. Then also grading was only 'good', below the benchmark. That grading was communicated to him. The documents produced by the applicant itself show that the applicant was furnished with copies of ACR for those 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 6 periods for making representations against it. Responding to the same, he submitted Annexures-A8, A10 and A12 representations. The competent authority considered the representations and vide Annexure- A11 communication informed him that the ACR gradings are retained, which is also evident from Annexure-R2. The applicant cannot insist that upgradation should be done as per his requirements. He did not submit any appeal on the retention of grading.
6. According to the respondents, the applicant was granted financial upgradation while he was holding the post of Mate, which is not an isolated post whereas in Annexure-A13 the applicant therein was holding an isolated post. Financial upgradations under MACP contemplates merely placing on the immediate higher Grade Pay and does not amount to actual/functional promotion. The applicant is trying to mingle ACP and MACP schemes. For an upgradation under the MACP scheme the employee has to fullfill the decisive factor benchmark. Referring to paragraph 2(ii) of Annexure-A14 OM they said that the applicant needs to be considered to the Pay Band of Rs.7600/- and 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 7 Rs.8700/- for which the benchmark grading is necessary. Those Grades Pay are not that of promotional post on non-selection basis. It requires benchmark grade as prescribed in the MACP scheme. In fine, the O.A. is sought to be dismissed.
7. The applicant filed rejoinder mainly contending that Annexure-R2 communication was not received by him since the address does not contain place name of 'Puthenthode'. The review was undertaken by the present incumbent in the office of the 2 nd respondent under whom the applicant has never worked. Such an exercise was done after 6 ½ years on the basis of which his legitimate right cannot be denied.
8. This is the second time the application comes up before the Tribunal for final hearing. Earlier, by order dated 08.08.2016 the O.A. was allowed and it was found that the applicant is entitled to get MACP, arrears restricting to a period of three years immediately prior to filing of the O.A. Against the said order both the applicant as well as the respondents filed separate OPs(CAT) before the Hon'ble High Court. By 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 8 judgment dated 28.05.2024 the High Court set aside the order and remanded the case to consider the matter afresh including interpretation of Annexure-A14 O.M. and pass fresh orders. Then the matter came up again.
9. We elaborately heard the learned counsel for the applicant as well as the learned Standing Counsel for the respondents.
10. The official profile of the applicant is not in dispute. He was appointed as Bosun(Certified) on 20.10.1973 on adhoc basis. Later he was regularised and promoted as Mate Grade-II on 21.05.1980. It is admitted by the applicant that he ought to have been granted 1 st ACP on 09.08.1999, but it was granted only on 01.04.2002. Evidently, he had retired from service on 30.09.2009 as Mate-II. He claims that he ought to have been granted 2nd and 3rd MACPs on 01.09.2008.
11. The case of the applicant is that because of the merger of the posts of Bosun(Certified) and Mate-II the promotion or grant of 1 st ACP has lost its relevance and thus when he retired on completion of 34 years he ought to have been granted three MACPs and therefore he is 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 9 justified in staking the claim. But he was granted only one ACP and therefore the 2nd and 3rd MACPs should have been granted with effect from 01.09.2008. After considering the profile of the applicant, we have no doubt that the respondents cannot raise any dispute on these contentions. It is evident that he was granted 1 st ACP on 01.04.2002 and during the 6th CPC the post of Bosun (Certified) and the Mate-II were merged. Clause -5 of Annexure-I of Annexure-A3 reads thus:
"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."
12. Therefore, there is justification in ignoring the promotion granted as Mate-II and the 1st ACP granted on 01.04.2002 and he should have been treated as if he was not granted any financial upgradation after the 1st ACP. So there is justification in claiming 2nd and 3rd MACPs on 01.09.2008. Therefore, the question whether the applicant is entitled to get financial upgradations, as prayed for, has to be found in favour of the 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 10 applicant.
13. The Hon'ble High Court also affirmed this position. Paragraph 7 of this judgment of the Hon'ble High Court in OP(CAT)185/2017 reads thus:
"7. We have considered the rival contentions put forward by both parties. The question to be considered in this case is whether the applicant is entitled for second and third financial upgradations under the MACP Scheme. It is an admitted fact that the applicant, who joined service as "Bosun" was promoted as "Mate Grade II" with effect from 21.05.1980. He also got a second financial upgradation under the ACP Scheme in April, 2002. Thereafter, the MACP Scheme granting three financial upgradations for 10, 20 and 30 years of service was introduced on 19.05.2009. While so, the posts of "Bosun"
and "Mate Grade II" were merged. In effect, the applicant did not get any promotion and hence, he is entitled for three financial upgradations during his entire career."
14. That means, after having granted the 1 st ACP with effect from 01.04.2002, he is entitled to get 2nd and 3rd MACPs on 01.09.2008. It is also certain that the applicant was drawing the pay in the Pay Band-3 in 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 11 the pay scale of Rs.15600-39100 with Grade Pay of Rs.6600/-, the Pay Band attached to the post of Skipper by virtue of the grant of financial upgradation under the ACP scheme. As per the ACP scheme he is entitled to get the scale of the next higher post. That means, while he was holding the post of Mate, when the ACP was granted he was granted financial upgradation to that of the higher post, that is Skipper. But when MACP is taken, it contemplates merely placement on personal basis, in the immediate next higher grade pay and does not amount to actual/functional promotion of the employee concerned. The respondents have a case that the applicant is trying to confuse ACP and MACP schemes. The conditions and requirements of both ACP and MACP are different. Financial upgradation under the MACP scheme has to fulfill the decisive factor of benchmark. In this connection, clause-17 of Annexure-A1 attached to Annexure-A3 reads thus:
"17. The financial upgradation would be on non-functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACPS the benchmark of 'good' would be applicable till the grade pay of Rs.6600/- in PB-3. The benchmark will be 'Very Good' for 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 12 financial upgradation to the grade pay of Rs.7600 and above."
15. That means, a person in PB-3 with the pay scale of Rs.15600- 39100 with Grade Pay of Rs.6600/- if granted 2 nd and 3rd MACPs under the scheme is entitled to get Grade Pay of Rs.7600/- in Pay Band-3 and Grade Pay of Rs.8700/- in the scale of Rs.37400-67000 in Pay Band-4 respectively. To put it in other words, when 2nd and 3rd MACP are granted to the applicant, on his satisfying the benchmark grade, he is entitled to Grade Pay of Rs.7600/- and 8700/- respectively. As noticed supra, for granting such a higher Grade Pay, the benchmark requirement should be 'very good', unless the applicant acquires such a benchmark, he is not entitled to get the higher grade pay.
16. In the order of the Tribunal dated 08.08.2016, the contentions of the applicant with regard to the post of Skipper being an isolated post the benchmark should be that of promotion and not that under clause-17 of the MACP scheme were upheld and the O.A. was allowed. The order has been disapproved by the Hon'ble High Court. Dealing with this matter the High Court after quoting Clause 2(ii) of Annexure-A14 observed as follows:
2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 13 "In Clause 2(ii), it is clarified that wherever promotions are given on non-selection basis, the prescribed benchmark as mentioned in para 17 of Annexure-I of MACP Scheme dated 19.05.2009 shall not apply for the purpose or grant of financial upgradation under MACP Scheme. Hence, it is clear that it applies only in cases of promotions. Admittedly, the last promotion post of the applicant was "Skipper" and he was receiving financial upgradations to the post of "Skipper".
Under the MACP Scheme, the applicant has to be considered to the next immediate higher grade pay in the hierarchy of the recommended revised pay bands and these grade pays are no that of a promotional post on non-selection basis of the applicant nor that of a post, which requires a benchmark lower than that prescribed in the MACP Scheme. It appears that the tribunal has misinterpreted Annex.A14 OM and has found that the benchmark "good" is only required in the case of the applicant. We find that the interpretation of Annex A14 OM by the tribunal was on the wrong side, which requires a reconsideration. The question whether the post of "Skipper" is a selection post or not is irrelevant since the applicant is already drawing the grade pay of Rs.6,600/- by virtue of the second ACP."
17. For our purpose, it is only appropriate to reproduce clause 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 14 2(ii) of Annexure-A14 O.M. dated 14.10.2012 thus:
"Para 17 of Annexure-I of the MACP Scheme provide that the financial upgradation would be on non-functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACPS, the benchmark of 'good' would be applicable till the grade pay of Rs. 6600/- in PB-3. The benchmark will be 'Very Good' for financial upgradation to the grade pay of Rs. 7600 and above. This Department's OM No. 35034/3/2008-Estt. (D) (Vol.11) dated 01.11.2010 provides that where the financial upgradation under MACPS also happens to be in the promotional grade and benchmark for promotion is lower than the benchmark for granting the benefit under MACPS as mentioned in para 17 ibid, the benchmark for promotion shall apply to MACP also. It is now further clarified that wherever promotions are given on non-selection basis (ie; on seniority cum fitness basis), the prescribed benchmark as mentioned in para 17 of Annexure I of MACP Scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme."
18. Here, certain aspects are very clear. The applicant is already getting scale of Skipper by virtue of grant of 1 st ACP under the ACP scheme and is drawing Grade Pay of Rs.6600/-. Therefore, in the MACP 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 15 scheme, as already noticed, what is required is to grant the higher grade pay and not the pay of the higher post. Therefore, grant of promotion as Skipper is no longer relevant. For that reason, the question whether it is an isolated post or not, also is totally irrelevant.
19. Since the question of promotion is out of place, there is no point in looking at the direction in Clause 2(ii) of Annexure-A14 and that clarification is not applicable to the facts of the case. As observed by the Hon'ble High Court, the finding of this Tribunal that grading 'good' is sufficient for the grant of benchmark insisted under clause 17 of Annexure-I of Annexure-A3 also has no relevance.
20. To put it in other words, the applicant cannot claim that he has to be granted MACP following the criteria for promotion; Annexure- A14 is not applicable to the facts of the case. He has to acquire the benchmark grading of 'very good' for granting 2 nd and 3rd MACP which is lacking in the case.
21. It has also come out that during the period 2003-2004, 2004- 2005, 2005-,2006,2006-2007,2007-2008 and 2008-2009 he was granted 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 16 the gradings of 'good, 'good', 'not available', 'good', 'very good' and 'very good' respectively. In other words, during 2005-2006 his ACR was not available. But it is evident from the documents produced by the applicant itself that his ACR was subsequently constituted which was considered by the committee and communicated with the applicant through Annexure-A5 and A9 documents. The Reporting Officer, though had retired by that time, observed that he did not acquire the benchmark grading. With the aid of Annexure-R2 the respondents have submitted that the representation against the adverse entries in the ACR for the period from 2003-2004, 2006-2007 were communicated to him on 04.11.2013. The learned counsel for the applicant submitted that the applicant is not in receipt of such a communication since the place name 'Puthenthodu' is absent in the communication so that he has not received the same. Unless 'Puthenthodu' is incorporated, the article will not reach him. But various documents produced by the applicant are sufficient to believe this contention.
22. In fact, none of the communications produced by the 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 17 applicant along with the Original Application do contain the place name 'Puthenthodu'. For instance, Annexures-A4, A6, A8, A10 and A12 are communications originated from the applicant, which are representations or letters addressed to the 2nd respondent. In none of these documents, the place name 'Puthenthodu' is incorporated.
23. On the other hand, in Annexures-A5, A7, A9 and A11, are communications addressed to the applicant, copies of which are produced by him, do not bear the place name 'Puthenthodu'. In other words, even without incorporating the place name 'Puthenthodu', such communications have reached the applicant, which indicates that the place name of 'Puthenthodu' is not an essential indicator for serving a communication on him. Therefore, no adverse inference can be drawn against the respondents for not incorporating the place name 'Puthenthodu' in Annexure-R2.
24. It is evident that the applicant has not acquired a benchmark grade of 'very good', which is sacrosanct for granting grade pay of Rs.7600/- or Rs.8700/-. Though he had stated some explanations in the 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 18 representations and contended that he ought to have been granted such a grading, we cannot approve the same. It is only the pious wish of the applicant that he should have been granted 'very good' or 'excellent' in his ACRs. It is for the reporting officer and reviewing authority to assess his performance which is very essential for grant of higher grade pay. The applicant did not acquire any such benchmark so that the prayer that he should have been granted 2nd and 3rd ACP falls to the ground.
25. After re-evaluating the materials placed before us, we do not find our way to accept the contentions of the applicant.
The Original Application lacks merits and it is dismissed. No costs.
(Dated, this the 5th December, 2024)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
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O.A.No.1106/2013 19
List of Annexures
Annexure A1 True copy of the Office Order No.117/73 dt. 7.11.1973
issued by the Director, Integrated Fisheries Project, Kochi Annexure A2 True copy of the Office Order No.88/80 dt. 19.6.1980 issued by the Director, Integrated Fisheries Project Annexure A3 True copy of the OM No.35034/3/2008-Estt. dt.
19.5.2009 issued by the DOPT Annexure A4 True copy of the reminder dt.28.3.2011 Annexure A5 True copy of the letter F.No.22-4/2007/Adm. Vol 1/391 dt.21.6.2012 issued by the 2nd respondent Annexure A6 True copy of the letter dt. 29.6.2012 addressed to the 2nd respondent Annexure A7 True copy of letter F.No.22-4/2007 Admn. Voll/542 dt.
14.11.2012 issued by the 2nd respondent Annexure A8 True copy of the reply dt. 27.11.2012 submitted by the applicant Annexure A9 True copy of the letter F.No.22-4/2007 Admn. Vol I dt.25.6.2013 issued by the 2nd respondent Annexure A10 True copy of the reply dt.27.6.2013 Annexure A11 True copy of the letter F.No.22-4/2007 Admn. Vol I dt.
19.9.2013 issued by the 2nd respondent along with the copy of the ACR 2005-2006 2024.12.05 DEEPA S 16:15:01 +05'30' O.A.No.1106/2013 20 Annexure A12 True copy of the representation dt. 10.10.2013 Annexure A13 True copy of the Order dt.8.1.2008 in OA 610/2006 Annexure A14 True copy of the om dt.4.10.2012 issued by the DOPT Annexure A15 True copy of the Recruitment Rules for the post of Skipper dt: 15.5.2008 Annexure A16 True copy of the Order dt:7.7.2014 in ΟΑ.Νο.305/2013 Annexure R1 True Copy of The Government of India, Department of Personnel & Training O.M.No.21011/1/2010-Estt. A Dated 13-04-2010.
Annexure R2 True copy of the communication No. 22-4/2013- Adm/APAR dated 04-11-2013 issued to the applicant ************ 2024.12.05 DEEPA S 16:15:01 +05'30'