Central Administrative Tribunal - Madras
S Rajendran vs D/O Post on 7 September, 2023
ty
1 OA 310/01504 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
ORIGINAL APPLICATION NO.310/01304/2019
Dated Thursday the 7" day of September, Two Thousand Twenty Three
CORAM :
HON'BLE MRS. LATA BASWARAJ PATNE, MEMBER (J)
AND
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, MEMBER{(A)
S. Rajendran(Retd. Postal Assistant),
S/o Sangilikaruppaiah,
No.177, Opp. To Travels Bugalow,
Sivaganga Road,
Manamadurai.
By Advocate M/s. R. Malaichamy.,
Vs
1.Union of India,
rep. by the Chief Postmaster General,
Tamil Nadu Circle,
Anna Salai,Chennai.
2.The Postmaster General,
Southern Region(TN),
Madurai.
3.The Senior Superintendent of Post Offices.
Sivaganga Division,
Sivaganga. .. Respondents
By Advocate Mr. M. Kishore Kumar
4
2 OA 310/01304 of 2019
ORAL ORDER
(Pronounced by Hon'ble Mrs LATA BASAWARAJ PATNE, MEMBER(S) The applicant has filed the OA under Section 19 of Administrative © Tribunals Act, 1985 seeking the following relief:
i) To call for the records of the 3" respondent pertaining to his order which is made in No BI/MACP//Digs dated 16.07.2019 and set aside the same; consequent to
ii) direct the respondents to grant MACP-III to the applicant w.e.f. 29.03.2017 and thereby to revise and re-fix the pay of the applicant and also the retirement service benefits of the applicant and to pay arrears of pay and allowances and retirement service benefits with all other attendant benefits to him; and
iii) to pass such further orders as this Hon'ble Tribunal may deem fit and proper"
2, The brief facts of the case as submitted by the applicants in nutshell .
are as follows:
The applicant initially joined the Postal Department as Gramin Dak Sevak (GDS) Packer. While so, he has passed the Limited Departmental Competitive Examination (LDCE) for appointment to the cadre of Postman for the vacancies earmarked for GDS officials and joined the post on 22.03.1992 at Manamadurai. Thereafter, he earned one promotion through Departmental Examination for the post of Postal Assistant and joined the post on 29.03.1997, He was granted MACP-II on 01.09.2008 3 OA 310/01304 of 2019 "by adjusting the promotion earned by the applicant to the cadre of PA as MACP-I. He further submits that he is entitled to grant MACP-ID wef. 29.03.2017 since he has completed 20 years of service as Postal Assistant from 29.03.1997. He retired from service on attaining the age of superannuation on 31.05.2018. His representations dated 12.10.2017 and 10.11.2017 to grant him MACP-III have not been answered properly. Lastly he has made a representation dated 12.10.2018 to the 2™ respondent. However, his request has been rejected by the impugned order dated 16.07.2019 of the 3" respondent. Being agerieved, the applicant has filed the OA for the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and filed a detailed reply statement . It is contended that three financial upgradations under the Scheme MACP is counted from the direct entry grade on completion of 10,20 and 30 years of service Financial upgradation under the MACP Scheme is admissible wherever a person has completed 10 years in the same grade pay. As such direct recruited PAs were granted MACP I & I as per rules on the subject. In the instant case, the applicant had entered the Department as Postman on 22.03.1992 and promoted as PA on 29.03.1997 through LDCE. The applicant has completed 10 years of service in the same grade on 29.03.2007. As the MACP Scheme has come into operation w.e.f. 01.09.2018, he was granted financial upgradation under MACP II wef. 01.09.2008 (Grade Pay 4 OA 310/01304 of 2019 Rs.2800/-) As per rulings, MACP II! is to be given after completion of 30 years of service from the date of appointment or 10 years of service in the' same grade pay. The applicant will complete 30 years of service on 22.03.2022 only. Even though, the applicant had completed 10 years of service in PA cadre on 29.03.2007, his grade pay was fixed as Rs.2800/- w.e.f, 01.09.2008 on implementation of MACP II. Hence, the applicant is due for MACP II from 01 .09.2018 after completion of 10 years of service in the same grade pay. As he has retired on superannuation on 31.05.2018 itself, financial upgradation under MACP scheme is not eligible after retirement. Hence, the contention of the applicant that he is eligible to get MACP III w.e.f 29.03.2017 itself is not maintainable. For the reasons stated above, the respondents prayed for dismissal of the OA.
4. The applicant has filed a rejoinder to which the respondents have filed a reply reiterating the contentions made in the OA and the reply.
5. Heard the learned counsel on both sides and perused the material placed on record.
6. | When the matter is taken up for hearing, learned counsel on both sides submit that in a similar matter, this Tribunal has dismissed the said OA and the order of the Tribunal has been challenged before the Hon'ble High Court of Madras in WP No.16818 of 2016 by the applicants and the same has been dismissed by the Hon'ble High Court of Madras.
7. Learned counsel for the respondents submits that in similar issue, 3 OA 310/01304 of 2019 Cuttack Bench of this Tribunal after elaborate discussions has disposed of a batch of matters in OA 1023/2014. The operative portion of the order which reads as under: paras 15 to 18 "15. From the discussions above, it is clear that as per the Recruitment Rules, 1971 under which the selection to the post of Postal Assistant has been carried out, 50% of the posts are to be filled up by promotion through LDCE and 50% by direct recruitment. As held by Hon'ble Rajasthan High Court in the case of Dev Karan Mahala (supra) and Ram Karan Kumhar (supra), the appointment/selection to a higher post through LDCE is to be treated in accordance with the Recruitment Rules.
The decision in the case of Dev Karan Mahala (supra) has been challenged by filing the SLP before Hon'ble Apex Court, which is pending as observed in the order dated 30.9.2019 of Hon'ble Delhi High Court in W.P, (C) 2806/2016 in the case of Union of India vs. Shakeel Ahmad Burney. The order dated 18.7.2019 of this Tribunal in OA No. 702/2012, which has been cited by the applicant's counsel was passed following the judgment dated 5.8.2014 of Hon'ble Delhi High Court in the case of Union of India vs. Shakeel Ahmad Burney, which was reviewed subsequently in the R.P, No. 441/2014 as discussed in the order dated 17.11.2015 of Ahmedabad Bench of the Tribunal in OA No. 219/2015 (vide para i] of this order). The fact that the judgment dated 5.8.2014 was reviewed by Hon'ble Delhi High Court subsequently was not considered by the Tribunal while passing the order dated 18.7.2019 in the OA No. 702/2012. Further, in the said order, the provisions of the Recruitment Rules of 1971, which are extracted in the judgment of Hon'ble Punjab and Haryana High Court in the cose of Senior Superintendent of Post Offices, Karnal Division, Karnal and others vs. Nand Kishore & another Civil Writ Petition No. 4829/2015 vide para 12 above, have not been considered. For these reasons, the order dated 18.7.2019 of this Bench of the Tribunal will not be applicable to the present OA, 16, We take note of the fact that in such cases, in spite of the litigations and disputes raised by the employees in different coordinate Benches of this Tribunal on this issue, no clarification or 16 guidelines regarding the point whether the selection under the Recruitment Rules in question is to be treated as promotion or direct recruitment has been issued by the respondents/competent authority. In case the notification for the LDCE and appointment order of the selected candidates mention clearly the rules under which the selection is being made, stating whether it is promotion or direct recruitment, then the disputes like the present O.A, can be avoided.
6 OA 310/01304 of 2019
17. In view of the foregoing discussions, we are unable to allow the reliefs sought for in this OA as well as other OAs in this batch and are of the view that in view of the judgments as discussed above and taking into consideration the fact that the SLP (C) Diary No.4793 of 2019 in the case of Dev Karan Mahala v. Union of India is pending before Hon'ble Apex Court as observed in the order dated 30.9.2019 of Hon'ble Delhi High Court in WE. (C) No. 2806/2016 in the case of Union of Indla vs. Shakeel Ahmad Burney, the question at Para-8 of this order as to whether the appointment of the applicants as Postal Assistant through LDCE in these OAs can be considered as promotion or direct recruitment, can be answered finally after disposal of the SLP(C) Diary No.4793 of 2019. Accordingly, we dispose of these OAs with direction to the respondents to consider the grievance of the applicants in accordance with the orders of Hon'ble Apex Court in the SLP (C) Diary No.4793 of 2019 in the-case of Dev Karan Mahala vs. Union of India. Under the circumstances, there will te no order as to costs.
18. The Registry is to sené a copy of tLis order by Pest to the Respondrt No.1 to consider action as deemed appropriate on Paragranh-16 of this order. "
8. Learned counsel for the respondents further submits that similar issue has been challenged before the other Benches of this Tribunal and the decisions are for and against the applicants therein and finally the matters are pending before the Hen'ble Supreme Court and the Department vide memorandum No. A-T/MACPS/2019-PC dated 29.09.2021 submitted in para 3 the details of the SLPs. The said memorandum is extracted herein below: a No, 4-7/MACPS/2019-PCC Goveiument of lucia Ministry of Communications Dy altraent of Posts Dak Bhawan, Sansad Mars, New Dell.i-- 110001 Date : 29.09.2021 To
1.All Chief Postmasters General I Postmasters General
2.Chief General Manager, Parcel /BD / PLI Directorate / CEPT.
3.Director, RAKNPA / Directors of All PTCs
4.Addl. Director General, Army Postal Service, R.K.Puram, New Delhi 7 OA 310/01304 of 2019
5.All General Managers (Finance) / Directors Postal Accounts Sub: Clarification on Modified Assured Career Progression (MACP) Scheme
-reg, Sir / Madam, This refers to various references/representations seeking the benefit of financial upgradation under MACP Scheme by treating promotion eared through limited departmental competitive examination (LDCE) at par Direct Recruitment in terms of Hon'ble Supreme Court Judgment dated 16.08.2016 in Special Leave Petition to Appeal (C) No. 4848/2016 in the case of D.Sivakumar.
2. In this regard, it is informed that Hon'ble Supreme Court had left the question of law open in D.Shivakumar case henee; the Hon'ble Apex Court has not decided the issue on merit, Therefore, there is no question of any binding precedent laid down by the Supreme Court,
3. Further, since the question of law on the issue as to whether the promotion earned through Liniited Departmental Competitive Examination (LDCE) is to be treated at par Direct Recruits or otherwise, is still under consideration before Hon''ble Supreme Court in various similar tagged cases vis CA 4432/2019 Union of India Vs E. Steeramulu, SLP (C) No. 023649/2019 Union of India Vs. K.Ranganatha Pillai, S.L.P, (Civil) No. 26561 of 2019 Kharati Lal & Others Vs UOI and SLP (C) No. [1997/2019 Dev Karan Mahala Vs UOI ete, the similar cases are to be defended on their merits on the basis of grounds provided vide this Directorate letter No. 15.11.2019, 4, As such, each and every case must be dealt on its merits as per the instructions of MACP Scheme. However, in order to make a better understanding on the issue vis-a-vis clarification issued vide this Directorate OM of even No. dated 06.09.2021, the following symbolic illustrations are mentioned below:- . .
i. Ifa Central Govt. employee, who was appointed (direct entry) as Postman, eams regular promotion to the post Postal Assistant (through LDCE), granted TBOP and then emms another promotion to Inspector Posts cadre (through LDCE), no financial upgradation under MACP Scheme shall be admissible to him/her, The modalities for financial upgradation and pay fixation thereon shall be as follows:-
Event |wet Pay Scale | Rematks Postman O1/01/89 $25-1200 =| Entry Grade Postal Assistant |01/01/92 4000-6000 |Regular promotion through LDCE, Pay fixation under FR-
22(T(a{1). Reckoned as 1* offset MACP TBOP 01/01/08 GP Rs. 2800 | Pay fixation as per FR-22(1){a) (1). Reckoned as 2™ offset MACP, Inspector Posts | 01/01/06 GPRs. 4600 | Regular promotion through LDCE, Pay fixation under FR-
22((a\(1). Reckoned as 3"
offset MACP, ii. Ifa Central Govt. employee, who was appointed (direct entry) as MTS, earns three regular promotions to the posts vis Ist Lower Division Clerk (LDC), 2nd Junior Accountant, 3rd Senior Accountant in Postal Accounts Offices before completion of 30 years of service from direct entry grade, no financial upgradation under MACP Scheme shall be admissible to him/her. 'The
- g OA 310/01304 of 2019 modalities for financial upgradation and pay fixation thereon shall be as follows:-
Event wef Pay Scale | Remarks MTS/Sorter [01/01/87 825-1200 | Entry Grade.
LpCc 01/01/96 3050-4590 |Regular promotion through LDCE. Pay fixation under FR-
22()(ay(1). Reckoned as 1"
offset MACP.
Jr.Accountant [01/01/06 GP Rs. 2800) Regular promotion through LDCE. Pay fixation under FR-
22{1)(a)(1). Reckoned as 2nd offset MACP.
Sr. Accountant /OL/OL/10 GPRs, 4200|Regular promotion. Pay fixation under FR-22(a)(1).
Reckoned as 3™ offset MACP,
5. Further, the competent authority has advised to all administrative units to ensure timely review and disposal, thereon, of all the pending representations/cases on the issue in the light of this clarification as well as that of issued vide this Directorate OM of even No. dated 06.09.2021. A line of compliance may also be appraised to this Directorate.
6. It is therefore, requested to bring this clarification to the notice of all eoncemed immediately and ensure strict adherence jn true spirit.
Yours faithfully, (B.K. Tripath!) ADG (GDSA/PCC) Tel. -- 23096629 [email protected] Copy to :-
1. As per standard list.
2. CGM, CEPT for uploading the order on the Lidia Post web site under Establishment suvject.
3.Guard File."
9. Learned standing counsel! foy the respondents subm:ts that the OA cwu Le disposed ¢ f by taking into g2ccr.3t all the SLPs pending before the Hor'tle Suprer-.c Cox at as mentione in the OM,
10. Learned counsel for the applicant submits that the applicant has no objection to dispose of the OA subject to the outcome of the SLP as mentioned in the above said OM.
11. In view of the above, as the matter is subjudice before the Hon'ble Supreme Court by way of different SLPs, and in view of the order dated () 9 OA 310/01304 of 2019 11.01.2023 passed by this Tribunal in similar batch of cases in OANO.1198 of 2014 and batch, the OA is disposed of with a direction to the respondents to extend the benefit to the applicant as prayed for subject | to the outcome of the decision is taken by the Hon'ble Supreme Court in the pending SLPs including SLP(C) Diary No.4793 of 2019.
12, OA is disposed of as above. No order as to costs.
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