Delhi High Court
Nafe Singh vs Indian Red Cross Society & Anr. on 18 July, 2017
Author: Rekha Palli
Bench: Vipin Sanghi, Rekha Palli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 18th July, 2017
% W.P.(C.) No.239/2017 & CM No.1184-1185/2017
NAFE SINGH ..... Petitioners
Through: Mr.Sanjeev Narula and Mr.Adrija
Thakur, Advocates.
versus
INDIAN RED CROSS SOCIETY & ANR. ..... Respondents
Through: Mr.Krishna Kr. Mishra for Mr.Padma
Kumar, S., Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J. (ORAL)
CM No.1184/2017 Exemption allowed subject to all just exceptions. The application stands disposed of.
CM No.1185/2017By this application, the Petitioner seeks condonation of delay of 60 days in re-filing the petition.
W.P.(C.) No.239/2017 Page 1 of 8For the reasons stated in the application, the same is allowed. Delay is condoned.
The application stands disposed of.
W.P.(C.) No.239/20171. The present writ petition assails the order dated 18.03.2016 and 02.06.2016 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No.30/2015, whereby the original application and review application filed by the Petitioner have been dismissed.
2. The case set up by the Petitioner before the Tribunal was that he had joined the service of Respondent No.1 as a Packer at its National Headquarter, New Delhi on contract basis on 19.09.1975 and was thereafter confirmed on the said post on 14.06.1977. The Petitioner was then promoted to the post of Lower Division Clerk, Stores in the scale of Rs.260- 400 on 06.03.1984.
3. The Petitioner was further promoted as Junior Storekeeper on 01.11.1995 and was, accordingly, placed in the scale of Rs.330-560 which was revised to the scale of Rs.4000-6000 w.e.f. 01.01.1996. After his promotion to the post of Junior Storekeeper on 01.11.1995, the Petitioner was neither promoted to the next higher post of Storekeeper, nor given any benefits under the ACP or MACP Scheme though he had been discharging the duties of the higher post of Storekeeper till his superannuation on 31.12.2013 and had made various representations to the Respondents seeking additional allowance and benefit of ACP/MACP Scheme but his request had been finally rejected on 13.01.2014, compelling him to file the OA before the Tribunal.
W.P.(C.) No.239/2017 Page 2 of 84. On the other hand, the case of the Respondents before the Tribunal was that, the Petitioner had been engaged only on contract basis as a Packer, and had been placed in the regular pay scale of LDC on his appointment to the said post on 06.03.1984, which was thereafter treated as his initial regular appointment.
5. It was further stated that the Petitioner had superannuated on 31.12.2013 before completing 30 years of service and was, therefore, not entitled to receive the third financial upgradation under the MACP Scheme. In their reply, the Respondents besides contending that the OA was barred by limitation, also refuted the Petitioner's claim that he had been performing the duties of a Storekeeper or that he had been denied his due benefits under the ACP or MACP Scheme.
6. As per the Respondents, the Petitioner after his initial appointment as LDC was promoted as Junior Storekeeper w.e.f. 01.11.1995 and since he had earned one promotion in his service career, he in accordance with the ACP Scheme dated 09.08.1999 was accorded the second financial upgradation on 01.03.2008 i.e. on completion of 24 years of service from the initial date of his appointment which was 06.03.1984. The Respondents also relied upon their communication dated 13.01.2014 which reads as under:-
"No. B-11016/01/13/P&A/161 13th January 2014 Shri Naffe Singh Ex-Junior Store Keeper Indian Red Cross Society Zonal warehousing Complex Bahadurgarh (Haryana) W.P.(C.) No.239/2017 Page 3 of 8 This is in reference to your representation dated 24th July 2013 regarding grant of financial upgradation under ACP Scheme. In this regard, it is informed to you that your request for granting financial upgradation under ACP Scheme has been considered carefully by the competent authority and it has been observed that:-
1. Appointed as Lower Division Clerk w.e.f. 06.03.1984 in the pay scale of Rs. 260-400 (3rd pay commission) revised to pay scale Rs. 3050- 4590 (5th Pay Commission from 01.01.1996).
2. First financial up-gradation (Promoted as Junior Store Keeper) granted w.e.f. 01.11.1995 in the next higher pay scale Rs. 330-560 (3rd pay commission) revised to pay scale Rs. 4000-6000 in 5th pay commission.
3. Second financial up-gradation granted under ACP Scheme w.e.f. 01.03.2008 in the pay scale of Rs.
4500-7000 (5th pay commission).
As per above you have been granted two financial up- gradation after completion of 24 years of service from the date of appointment as Lower Division Clerk from the year 1984.
It is to further inform you that under MACP Scheme there are three financial upgradation available after completion of 10, 20 & 30 years of regular service in one category w.e.f. 01.09.2008 and thus you become entitled for third financial upgradation under MACP Scheme only after completion of 30 years of service which you will complete on 06.03.2014.
W.P.(C.) No.239/2017 Page 4 of 8Since, you retired from the services of the Society on 31.12.2013 and not completed 30 years of service, you are not entitled for third financial up-gradation under MACP Scheme.
Director (P&A)"
7. The Tribunal, after considering the submissions of the parties and perusing the record, dismissed the OA not only on the ground of limitation, but also, on merits by holding that there was nothing on record to show that the Petitioner was ever asked to perform the duties of a Storekeeper.
8. Aggrieved by the rejection of his OA by the Tribunal, the Petitioner has preferred the present petition wherein besides reiterating the pleas raised before the Tribunal, it has also been urged that the Tribunal has erred in dismissing the OA on ground of limitation by holding that the OA was filed belatedly.
9. On 13.01.2017 when this petition came up for preliminary hearing before this Court, notice was issued limited to the ground of ACP benefits only. The Court declined to issue notice on the aspect of upgradation of pay scale to the post of Storekeeper. In view of the limited notice issued in this petition, the only question which needs our consideration is as to whether the Petitioner has received his due ACP/MACP benefits, or not.
10. Counsel for the Petitioner has while contending that the Petitioner was confirmed on the post of Packer on 14.06.1977, drawn our attention to the W.P.(C.) No.239/2017 Page 5 of 8 extract of his service-book which shows that the Petitioner was indeed confirmed on the post of Packer and, therefore, his initial appointment with the Respondent was in the post of Packer and not that of LDC. Faced with this situation, Mr.Khatana, learned counsel for the Respondents, has submitted that in case the Petitioner's initial appointment is considered as a Packer, he has already earned two promotions i.e., to the post of LDC and Junior Storekeeper and would, therefore, not be entitled to grant of ACP benefits.
11. The matter, however, does not end here, as the issue which needs to be considered is, as to whether, after having earned two promotions on 06.03.1984 and 01.11.1995, the Petitioner was entitled to receive the benefit of third financial upgradation under the MACP Scheme which has been introduced w.e.f. 01.09.2008, as he had admittedly remained in the post of Junior Storekeeper for more than 10 years - which post, as per the Petitioner, was his second promotion. The relevant extract of the MACP Scheme on which reliance has been placed by the Petitioner reads as below:-
"1. There shall be three financial upgradation 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."
12. Learned counsel for the Respondents has submitted that the grade pay of an LDC was Rs.1,900/- while that of Junior Storekeeper was Rs.2,400/- and the next higher grade pay as per the MACP Scheme would be W.P.(C.) No.239/2017 Page 6 of 8 Rs.2,800/-. This position has not been disputed by the learned counsel for the Petitioner who has, however, with reference to the pay slips on record contended that the Petitioner has not received any financial benefit or upgradation by way of third financial upgradation under the MACP Scheme. This appears to us to be an error of pay fixation, and not of grant of ACP/MACP benefits as, both parties are ad idem on the right of the Petitioner to get the benefit of the third financial upgradation under the MACP Scheme in the grade pay of Rs.2,800/-.
13. We have given our thoughtful consideration to the rival contentions raised by the parties, and having perused the record, we are of the considered view that in the facts of the case, the Tribunal has erred in holding that the OA was barred by limitation as it is an admitted case of the parties that the Petitioner's representation was rejected on 13.01.2014 and he had approached the Tribunal in December, 2014. In our view, the Tribunal has also failed to examine the entitlement of the Petitioner to get the benefits of the ACP/MACP Scheme and, in these circumstances, the order passed by the Tribunal is liable to be set aside.
14. In view of the position as noted above, it would be just and proper to direct the Respondents to re-examine the pay fixation of the Petitioner and to pass a reasoned and speaking order within four weeks on the premise that the Petitioner was confirmed on the post of Packer on 14.06.1977. The order should be communicated to the Petitioner. However, in case the Petitioner is aggrieved by the said order, he will be at liberty to challenge the same as per law. Needless to say that if upon re-examination of pay, the W.P.(C.) No.239/2017 Page 7 of 8 Petitioner is found entitled to receive any amount, the same shall be released to him within the next four weeks.
15. The writ petition is allowed to the aforesaid extent with no order as to costs.
REKHA PALLI, J VIPIN SANGHI, J.
JULY 18, 2017/gm-f W.P.(C.) No.239/2017 Page 8 of 8