Central Administrative Tribunal - Jabalpur
D.D. Patel S/O Shri R.P. Patel vs Union Of India on 17 January, 2014
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.156 of 2011
Jabalpur, this Friday, the 17th day of January, 2014
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
D.D. Patel S/o Shri R.P. Patel, DOB 4-1-1952,
R/o 3580, ITI Road, Shivdham Nagar, Marhatal,
Jabalpur 482002 (MP) - Applicant
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India, through its Secretary,
Ministry of Communication, Department of Posts,
Dak Bhawan, New Delhi-110116
2. Union of India, Through its Secretary,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110001
3. Chief Post Master General, M.P.Circle,
Hoshangabad Road, Dak Bhawan, Bhopal-462012
4. Post Master General, Indore Region,
Indore (MP) 452001
5. Director, Postal Services, Office of Post Master General,
Indore Region, Indore (M.P.) 452001 - Respondents
(By Advocate Shri A.P. Khare)
(Date of reserving the order:28.10.2013)
O R D E R
By G.P.Singhal, AM.-
The applicant in this Original Application has prayed for the following reliefs:-
8(i) Summon the entire relevant record from the respondents for its kind perusal.
(ii) Set aside the order dated 23.08.2010 (Annexure-A/1) and also set aside the order dated 07.01.2011 (Annexure-A/2) with all consequential benefits;
(iii) It may kindly be declared that the MACP Scheme dated 18.09.2009 is inoperative against the applicant to the extent it snatches the BCR benefit of the applicant. If MACP Scheme dated 18.09.2009 comes in the way of the applicant to enjoy the BCR Scheme, the said scheme to that extent be declared unconstitutional and ultra vires in nature;
(iv) Any other order/direction may also be passed;
(v) Award cost of the litigation to the applicant.
2. The applicant submitted that he was granted financial upgradation under Biennial Cadre Review (for brevity BCR) Scheme w.e.f.01.01.2009, vide the order dated 10.02.2009 (Annexure A-3). However, this benefit was withdrawn, vide the order dated 23.08.2010 (Annexure A-1), on the ground that, as per the instructions contained in Department of Posts OM No.4-7 (MACPS)/2009-PCC dated 18.09.2009 the scheme of Time Bound One Promotion (for brevity TBOP) introduced w.e.f.30.11.1983 and the BCR scheme w.e.f.01.10.1991 stands withdrawn w.e.f.01.09.2008. The applicant filed the appeal dated 23.09.2010 (Annexure A-5) against this order of recovery, which has been rejected by the respondent No.4 vide the order dated 07.01.2011 (Annexure A-2). Hence, this Original Application.
3. The applicants contention is that Para 14 of the Modified Assured Career Progression (for brevity MACP) Scheme, issued vide the order dated 18.09.2009 (Annexure A-4), clearly provides that no past cases would be re-opened. However, the respondents have issued the recovery orders on the basis of audit objection, without taking into consideration this provision of the MACP Scheme.
4. The respondents, in their reply, submitted that the MACP Scheme, in its Para 4, clearly provides that TBOP and BCR Schemes shall stand withdrawn w.e.f.01.09.2008. Therefore, Senior Account Officer, internal audit, had raised objection on grant of benefit under BCR Scheme to the applicant and some other similarly placed employees. Thus, in view of the clear provision under MACP Scheme, the benefit of BCR Scheme granted to the applicant, has been withdrawn. Since it is not necessary to issue any show cause notice in the cases of recovery ordered on the basis of audit objection, there is no irregularity in ordering the recovery without issuing show cause notice to the applicant. Thus, the Original Application, being without any merit, deserves to be dismissed.
5. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
6. The learned counsel for the applicant has submitted that this case is similar to Original Application No.316/2011 decided vide the order dated 04.10.2013 and the present Original Application may be decided in terms of this decision.
7. On perusal of order dated 04.10.2013 passed in Original Application No.316/2011, we find that the facts and circumstances as well as the relief prayed for in that Original Application are similar to those in the present Original Application. Thus, the present Original Application can be decided in terms of the order dated 04.10.2013 ibid. The relevant Para 7, 8, 9 and 10 of this order are reproduced as under:-
7. On perusal of Office Memorandum dated 18.09.2009 (Annexure R-1), we find that para 14 of this order clearly states that no past cases would be re-opened. It is undisputed that when the applicant was granted upgradation under BCR Scheme vide order dated 06.02.2009 (Annexure A-2), Office Memorandum dated 18.09.2009 (Annexure R-1), by which the BCR Scheme has been withdrawn with effect from 01.09.2008, was not in existence. The applicant completed his rest of the service, till superannuation on 30.06.2009, in the pay band of Rs. 9300-34800 with Grade pay of Rs. 4200/- as granted to him under BCR Scheme. The respondent Organization is now withdrawing the said benefit from the applicant on the ground that BCR Scheme has been withdrawn with effect from 01.09.2008 vide the Office Memorandum dated 18.09.2009, ignoring the fact that the said O.M. clearly provided in its para 14 that No past cases would be re-opened.
8. The Office Memorandum dated 18.09.2009 also mentions in para 5 that switching over to the MACPs is being done with the consent of the Postal Federations, and in regard to Drivers, their existing structured promotion scheme is being retained as it is considered to be more beneficial to this category of staff and the postal federations have requested to retain it. Thus, it is clear that substitution of Time Bound One Promotion (for brevity TBOP) and BCR Scheme with MACPs has been done with the consent of the Postal Federations as it was found to be more beneficial to the staff covered under those schemes. Therefore, any negative effect of switch over to MACPs was not intended while issuing the Office Memorandum dated 18.09.2009.
9. Learned counsel for the applicant argued that it has been held in the Judgment of Honble Supreme Court in the matter of Chairman, Railway Board and others Vs. C.R. Rangadhamaiah and Ors., AIR (1997) SC 3828 that the vested rights and accrued rights could not be adversely effected by retrospective operation of rule. In this regard para 24 of the order is reproduced as under:-
In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment etc. of the employees, the said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution..
10. Thus we are of the considered opinion that the financial upgradation under the BCR Scheme, granted to the applicant vide order dated 06.02.2009 (Annexure A-2) could not be withdrawn vide the order dated 05.11.2009 (Annexure A-1) on the ground of withdrawal of BCR Scheme with effect from 01.09.2008, as the concerned Office Memorandum dated 18.09.2009 (Annexure R-3) clearly provided that Past cases are not to be reopened. The right to get upgraded pay- scale had already been vested on the applicant vide the order dated 06.02.2009 (Annexure A-2) and thus, withdrawing it by subsequent order on the ground of implementation of an alternative scheme with retrospective effect is not sustainable.
8. Thus, the impugned orders dated 23.08.2010 (Annexure A-1) and 07.01.2011 (Annexure A-2) are quashed. The applicant shall be entitled to get all the benefits consequential to quashing of these orders. Any recovery, already done from the applicant in consequence of the order dated 23.08.2010, shall be refunded to him within a period of 30 days from the date of communication of this order.
9. Thus, the Original Application is allowed. No order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member kc 1 OA No.156/2011 Page 1 of 5