Central Administrative Tribunal - Delhi
P.S. Pathrudu (Jio-1/G) vs Union Of India Through on 1 September, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3435/2014
Reserved on 27.07.2015
Pronounced on: 01.09.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
P.S. Pathrudu (JIO-1/G)
PIS No. 109311
S/o Late Sh. P. Ramana Pathrudu,
R/o H.No. 72/2, Sector No.1,
Pushap Vihar, New Delhi. Applicant
(By Advocate: Sh. Yashpal Rangi)
-VERSUS-
1. Union of India through
Secretary
Ministry of Home Affairs,
Central Secretariat, North Block,
New Delhi.
4.Secretary,
2. Director General, Ministry of Personnel
Intelligence Bureau (MHA), Public Grievances and
IB Headquarter, Pensions, Deptt. of
35, S.P. Marg, New Delhi Personnel & Training,
North Block,
3. Director/Assistant Director, New Delhi.
Intelligence Bureau (MHA)
IB Headquarters,
35, S.P. marg, New Delhi. Respondents.
(By Advocate: Sh. S.M. Arif & Sh. Gyanendra Singh)
O R D E R
By Dr. Birendra Kumar Sinha, Member (A):
The applicant, vide the instant OA filed under Section 19 of the Administrative Tribunals Act, assails clauses 9 & 10 of Annexure-I pertaining to Modified Assured Career Progression Scheme [hereinafter referred to MACPS] enclosed with OM dated 19.05.2009 which provides that services rendered by a government employee in the State Government before employment in the Central Government shall not be counted towards regular service for the purpose of granting financial upgradation under MACPS.
2. The case of the applicant is that he is holding the post of JIO-I(G) with the respondent organization. He had initially joined the Andhra Pradesh Police as Constable on 03.01.1981. Subsequently, in February, 1989, the applicant went on deputation to Special Protection Group (SPG) and remained there till he was repatriated to his parent department i.e. Andhra Police in April, 1999. It is the case of the applicant that while he was on deputation with SPG, Andhra Police vide order dated 16.08.1992 granted him Special Grade Time Scale (SGTS for short) of Head Constable on completion of ten years regular satisfactory service w.e.f. 04.01.1991. Having repatriated to his parent department in April, 1999, the applicant was granted SPP-I scale on completion of 16 years incremental service in that service. On 13.10.1999, the applicant joined respondent organization on deputation basis on the post of SA/G, an analogous post to that of Constable in Andhra Pradesh Police, and was ultimately absorbed in the respondents organization vide order dated 11.06.2008 with retrospective effect i.e. 13.10.2004 as SA/Exe. in an officiating capacity.
3. The Government of India on recommendation of the 5th Central Pay Commission [hereinafter referred to as CPC] introduced the Assured Career Progression Scheme [hereinafter referred to as ACPS] vide OM 09.08.1999 w.e.f. 01.01.1996 providing that a government employee was entitled to first and second financial upgradation on completion of 12 and 24 years of regular satisfactory service in case he had not been promoted during this period. The Government of India further replaced the ACPS by MACPS which came into force w.e.f. 01.09.2008. The MACPS envisages three financial upgradations on completion of 10, 20 and 30 years of regular satisfactory service. It is the submission of the applicant that he was promoted to the post of JIO-II/G w.e.f. 07.04.2005 vide order dated 02.09.2008, and in June, 2011 he was further promoted to the post of JIO-I/G. Thus, the applicant got two promotions since his initial appointment in Andhra Pradesh Police. On 10.12.2010, the applicant made representation seeking 3rd financial upgradation under MACPS w.e.f. 02.01.2011 after he had completed 30 years of regular service, which was rejected by the respondents vide impugned order dated 02.02.2011 on the ground that as per Clause 10 of the MACPS, the past service rendered by an officer in the State Government is not to be taken into account towards qualifying service for the purpose of granting financial upgradation under ACPS as per DOP&T OM dated 18.07.2001 as well as under MACPS vide OM dated 19.05.2009. However, as the applicant had not completed 10 years of regular service since his appointment in the grade of JIO-I/G, he was not entitled to be granted the 3rd financial upgradation under the MACPS.
4. The applicant has challenged the impugned order on the ground that introduction of clauses 9 & 10 of the MACPS vide OM dated 19.05.2009 is bad in law as the purpose of MACPS is to remove stagnation and grant financial upgradation to those employees who have not earned promotion(s) and even do not have future promotional prospects. The applicant has relied upon a decision in Man Singh versus State of Haryana & Ors. [2008 (4) RSJ 53] wherein the Honble Apex Court held that the services rendered with the State Government before absorption to another department is to be counted for grant of financial upgradation. The applicant has further heavily relied upon a decision in Rajpal versus Union of India & Ors,. [OA No.658-CH/2012 decided on 04.04.2013] whereby the Chandigarh Bench of the Tribunal quashed the condition stipulated at point no.4 to 6 and 43 in clarification dated 18.07.2011 and condition no. 9 & 10 under the MACP which provides for non counting the past service rendered with the State Government as qualifying service for grant of ACP/MACP benefits in Central Government.
5. The only ground for rejection of the applicants claim for grant of 3rd financial upgradation under MACPS is that the past service rendered with the State Government would not count for the purpose of granting ACP/MACP. The applicant has prayed for the following relief(s):-
(i) Declare that condition no.9 and 10 of Annexure A-1 of MACP Scheme to the effect that past service rendered by a Government employee in a State Govt./Statutory Body/Autonomous Body/Public Sector Organization, before appointment in the Government shall not be counted towards regular service as illegal and ultra vires the law laid down by the Apex Court;
(ii) Quash and set aside order dated 02.02.2011 whereby request for counting his past service rendered w.e.f. 03.01.1981 to 12.10.2014 was rejected;
(iii) Direct the respondents to grant third financial upgradation to applicant under MACP Scheme w.e.f. 03.01.2011 on completion of 30 years regular satisfactory service with all consequential benefits including arrears of pay etc. and interest @ 18% P.A. and costs;
(iv) Pass any other orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
6. The respondents have filed their counter affidavit stating that the applicant had been absorbed in the grade on 13.10.2004 and was promoted to JIO-II/G w.e.f. 07.04.2005 and JOI-I/G on 08.07.2011. The respondents further submit that the applicant has already availed two financial upgradations in the form of promotions and has not completed 30 years of service in view of the stipulation in terms of condition no.10 of OM dated 19.05.2009. As such, he was not entitled for the relief prayed for. Referring to the decision in Rajpal versus Union of India & Ors. (supra), the respondents have submitted that it did not represent good law and, hence, advised the concerned department to agitate the matter before higher courts.
7. The applicant has filed the rejoinder stating that his case is squarely covered by the decision in the case of Rajpal versus Union of India & Ors. (supra) as the applicant has completed 30 years of regular service on 02.01.2011. He has also submitted that once the condition nos. 9 & 10 have been struck down, there was no impediment in counting his service rendered in the State Government.
8. In this regard, we have also looked up the record of the case in OA No.415/2012 earlier filed by the applicant wherein his claim for protection of pay drawn by him just prior to absorption and fixing his basic pay at Rs.7640/- w.e.f. 13.10.2004 with all attendant benefits had been rejected. We have also taken the submissions made in that OA into account while deciding the instant OA.
9. We have carefully gone through the pleadings of rival parties pertaining to the instant OA as also the applicants earlier OA No.415/2012. We have also patiently heard the arguments advanced by the respective counsel of the parties. The only issue that emerges for determination in the instant case is as to whether the applicant is entitled to the 3rd financial upgradation under MACPS w.e.f. 02.01.2011 on completion of 30 years of regular satisfactory service.
10. While considering the matter, we need to place all facts into factual matrix, which are as under:-
Date Activity 03.01.1981 Appointed as Constable in Andhra Pradesh Police 04.01.1991 Got special grade time scale of Head Constable on completion of 10 years of regular service.
01.10.1999 Got SPP-I scale on completion of 16 years incremental service.
13.10.1999 Joined as SA/G, an analogous post, in the respondent organization on deputation basis.
13.10.2004 Absorbed in the respondents organization vide order dated 1.06.2008 07.04.2005 Got promotion to the post of JIO-II/G w.e.f. 07.04.2005 vide order dated 02.09.2008.
08.07.2011 Got promotion to the post of JIO-I/G.
11. Now we look at the provisions of condition nos. 9 & 10 of the MACPS which came into force vide OM dated 19.05.2009, which read as under:-
9. Regular Service for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.
10. Past service rendered by a Government employee in a State Government/statutory body/ Autonomous body/Public Sector Organization, before appointment in the Government shall not be counted towards Regular Service.
12. Now we look at the facts of the case Rajpal versus Union of India & Ors. (supra) relied upon by the applicant. The applicant in that case one Rajpal started his career as Peon in the (pre-revised) pay scale of Rs.300-430/- in the Election Department, Haryana on regular basis w.e.f. 16.06.1982 and continued as such till 21.04.1986. He was taken on deputation with respondent no.3 w.e.f. 21.04.1986 as a Photocopier in the (pre-revised) pay scale of Rs. 260-350/- against an exiting post, which was an isolated post. He was permanently absorbed as such vide order dated 12.10.1987 w.e.f. 21.04.1986 as per the recruitment rules. The said Rajpal represented for counting his past service rendered by him w.e.f. 16.06.1982 to 21.04.1986 relying upon the decision in Shyame Dave Versus Union of India & Ors. [OA No. 121/2006 decided by Jaipur Bench of the Tribunal on 26.07.2007] as also the decision in Dharmendra Kumar Sharma Versus Union of India & Ors. [OA No. 97/2004 decided on 12.09.2006] wherein the Jodhpur Bench of the Tribunal allowed claim of the applicant in that OA, which is similar to that of the instant OA.
13. The Chandigarh Bench of the Tribunal in the matter of Rajpal versus Union of India & Ors. (supra) allowed the OA with the following directives:-
16. Once, it has already been held upto Honble Apex Court that the past service rendered with the State Govt. before absorption with the respondent no.3 is to be counted for the purpose of ACP then the impugned order, rejecting the claim of the applicant cannot be sustained in the eyes of law. Consequently, the O.A. is allowed and the conditions stipulated at point no. 4 to 6 and 43 in clarification dated 18.7.2011 and condition no. 9 & 10 under the MACP are quashed which provides for non-counting the past service rendered with the State Govt. as qualifying service for grant of ACP/MACP benefits in the Central Govt.
17. The O.A. is allowed in the above terms and the respondents are directed to carry out the above exercise within a period of three months from the date of receipt of copy of this order.
14. Here, we find that the facts of the case in Dharmendra Kumar Sharma Versus Union of India & Ors. (supra) are distinguished from the facts of the instant OA as the applicant therein had been granted the pay scale of Rs.1640-2900, but since he was on deputation in Central Administrative Tribunal, he was not extended the benefit of the higher pay scale as the pay scale of the post of Junior Librarian in Tribunal was only Rs.1400-2600 (Rs.5000-8000) and as such the applicant was granted only pay protection and the excess pay was ordered to be adjusted in the future increments. That is not the case here.
15. From the factual matrix, we find that the applicant has been granted special grade time scale of Head Constable on completion of 10 years of regular service w.e.f. 04.01.1991, and thereafter he was granted SPP-I scale on completion of 16 years of incremental service w.e.f. 01.01.1999. Subsequently, the applicant came on deputation to the respondent organization as SA/G and got absorbed w.e.f. 13.10.2004. It is also seen that in the respondent organization, the applicant was promoted as JIO-II/G w.e.f. 07.04.2005 and as JIO-I/G w.e.f. 08.07.2011.
16. From the above factual narration, we find that the applicant has obtained two financial upgradations in his parent department i.e. Andhra Pradesh Police and two financial upgradations in the respondent organization in his service career. Now, we look at the very opening paragraph of the MACPS which provides that there shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. Financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay.
17. We take note of the fact that the very purpose of the MACPS is to remove stagnation in such cases where no promotion had taken place within ten years of the last promotion/upgradation. We find that the applicant has not stagnated at any point of time as he has got his due promotions/upgradations. However, even if we assume that the applicant has got only two financial upgradations in the form of promotion in the respondent organization as JOI-II/G w.e.f. 07.04.21005 and as JOI-I/G w.e.f. 08.07.2011, he has not completed the requisite ten years of service from the last date of promotion/upgradation that being 08.07.2011. Resultantly, he is not entitled to the 3rd financial upgradation, as prayed for.
18. Finding no merit in the instant OA, the same is dismissed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/