Karnataka High Court
Union Of India And Ors vs Fairaz Hussain on 8 February, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF FEBRUARY -2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
WRIT PETITION NO.226628/2020 (S-CAT)
BETWEEN:
1. Union of India
Represented by Secretary,
Department of Post,
(Postal & Accounts wing)
Dak Bhavan, New Delhi-110 001.
2. Chief Postmaster General,
Karnataka Circle, Bangalore,
Bengaluru-560 001.
3. Postmaster General,
N.K.Region, Dharwad,
Dharwad-580 001.
4. Sr. Superintendent of Post Offices,
Kalaburagi Division,
Kalaburagi-585 101.
... Petitioners
(By Sri. Sudhirsingh.R.Vijapur, Advocate)
AND:
Faiyaz Hussain S/o Abdul Quayam,
Age: 62 years,
Retired SPM,
Shahapur Town-585223
2
Residing at H.No.16-41,
Near Mulla Maszid, Adilapur,
Shahapur, Dist: Yadgir-585 223.
... Respondent
(By Sri.Shambuling S.Salemath, Advocate)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to call for the records from the Hon'ble
Central Administrative Tribunal, Bangalore and Quash the order
dated 25th February-2020 of the Hon'ble CAT, Bangalore in
O.A.No.170/00589/2019 on its file (Annexure-A to the W.P.) and to
direct the respondents to Benefits to be made available within two
months next. To issue such order writ / order / orders as this
Hon'ble Court may deem fit to grant or pass in the circumstances of
the case and in the interest of justice and equity.
This petition coming on for orders this day,
K.S. Hemalekha J., made the following:
ORDER
The Union of India has preferred this petition assailing the order dated 25.02.2020 passed in O.A.No.170/00589/2019 by the Central Administrative Tribunal, Bengaluru (hereinafter referred to as 'the CAT' for the sake of brevity).
2. The parties are referred to as per their ranking before the CAT for the sake of convenience.
3. The applicant filed an application for grant of MACP-II from 13.04.2006 instead of 01.09.2008 with all consequential benefits and MACP-III from 13.04.2016 with all consequential and 3 monetary benefits and further direction to re-fix his pension and retrial benefits.
Brief facts of the case:
4. The Government of India, Ministry of Personnel Public Grievances and Pensions, the Department of Personnel and Training, vide Office Memorandum No.35034/3/2008-Est(D) dated 19.05.2009, introduced Modified Assured Career Progression Scheme ("MACPS") for the Central Government Civilian Employees. The applicant being appointed as a Postman and later been promoted as a Postal Assistant from 13.04.1996 was granted under MACP-II with effect from 01.09.2008 and the applicant retired from service on 01.05.2017. The applicant, on his retirement, gave representation to the authority for financial upgradation under MACP-II from 13.04.2006 since he had completed twenty years of service in the Postal Assistant Cadre as on 13.04.2006 and MACP-III from 13.04.2016. The authority rejected the representation holding that the applicant has already earned two financial upgradation and for further financial upgradation under MACP-III, the applicant was not entitled as per the Rules of MACPS. Being aggrieved by the rejection of his 4 representation, seeking for grant of upgradation under MACP-II from 13.04.2006 instead of 01.09.2008 with all consequential monetary benefits and sought for a direction to re-fix his pension and retrial benefits before the appellate authority and MACP-III from 13.04.2016. The CAT, vide order dated 25.02.2020, allowed the application holding that the application relates to MACP and its implementation is squarely covered by the order of the High Court of Mumbai in W.P.No.1763/2013 in the case of M.P.Joseph vs. Union of India (M.P.Joseph) and the judgment of the Hon'ble Apex Court in Union of India & others vs. Balbir Singh Turn [(2018) 11 SCC 99] (Balbir Singh Turn), wherein it was held that the benefit of MACP is applicable with retrospective effect and MACP is a part of pay structure which will not only affect the grade pay, but also the pension. Thus, it is not the part of allowance and it would be applicable from 01.01.2006. Considering the judgment in the case of M.P.Joseph and Balbir Singh Turn stated supra, the CAT allowed the application on the similar terms. Aggrieved by the order of the CAT, the Union of India is in appeal.
5. Heard Sri Sudhir Singh R. Vijaypur, learned ASGI for the petitioners and Sri. Shambuling S. Salemath, learned counsel for the respondent.
56. Learned ASGI appearing for the petitioners would contend that the order of CAT is without considering the recommendation of 6th CPC formulation for implementing the MACPS and the order of the CAT to hold that the MACP has to be given retrospective effect as the MACP is the condition in service is not sustainable in view of the fact that the order passed by the CAT is contrary to the judgment of the Hon'ble Apex Court. In support of his contention, he has relied upon the decision of the Hon'ble Apex Court in C.A.No.1579/2021 in the case of Union of India vs. R.K. Sharma & Ors. and in Civil Appeal No.442/2022 in the case of The Director, Directorate of Enforcement & Anr. vs. K. Sudheesh Kumar & Ors.
7. Per contra, learned counsel for the respondent would contend that the benefits of financial upgradation under MACP is applicable to the applicant in view of the Office Memorandum dated 06.09.2021 issued by the Ministry of Communication, Department of Posts, Government of India.
8. Having given our anxious consideration to the submission of the learned counsel for the parties and having perused the memorandum and the judgments in R.K. Sharma and 6 Sudheesh Kumar's case supra, the Hon'ble Apex Court at paragraph No.9 of R.K. Sharma's case has held as under:
"9. In view of the judgment of this Court in M.V. Mohanan Nair (supra), the Respondents and other similarly situated employees are entitled for financial upgradation under MACPS only to the next grade pay and not to the grade pay of next promotional post. It is clear from the resolution dated 30.08.2008 that the recommendation of the 6th Pay Commission was accepted by the Government and was made effective from 01.01.2006 in respect of civilian employees with regard to revised scales of pay and dearness allowances. In so far as the revised allowances other than dearness allowance, recommendation of the 6th Pay Commission were given effect from 01.09.2008. The judgment in M.V. Mohanan Nair (supra) clinches the issue. Benefits flowing from ACP & MACP Schemes are incentives and are not part of pay. The resolution dated 29.08.2008 is made effective from 01.09.2008 for implementation of allowances other than Pay and DA which includes financial upgradation under ACP & MACP Schemes. Therefore, the Respondents and other similarly situated officers are not entitled to seek implementation of the benefits of MACPS w.e.f. 01.01.2006 according to the resolution dated 29.08.2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band 7 and not granting pay of the next promotional post w.e.f. 01.01.2006 would be detrimental to a large number of employees, particularly those who have retired. We find force in the submission made by the learned Additional Solicitor General that uniform implementation of MACPS for civilian employees w.e.f. 01.01.2006 would result in large scale recoveries of amounts paid in excess."
And at paragraph No.8 of Sudheesh Kumar's case, the Hon'ble Apex Court has held as under:
"8. By the impugned judgment and order and while granting grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the High Court has modified the MACP Scheme which has been framed by the Government on the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme. As observed and held by this Court in the case of M.V.Mohanan Nair (supra) the ACP which is now suspended by MACP Scheme is a matter of Government policy and interfering with the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. It is further observed that the recommendations of the pay commission for the MACP Scheme have been accepted by the Government and implemented. It is further observed that therefore the High Court has no jurisdiction to interfere with the Government 8 policies in the form of MACP Scheme which was after accepting the Sixth Central Pay Commission. In view of the above and for the reasons stated above and the binding decision of this Court in the case of M.V. Mohanan Nair (supra) with which we also agree, the impugned judgment and order passed by the High Court granting grade pay of Rs.6600 to respondent Nos.1 & 2 is unsustainable and deserves to be quashed and set aside.
However, we observe that the view which we are taking is on the premise that neither the MACP Scheme nor Clause 8.1 is under challenge and as per the law laid down by this Court in M.V. Mohanan Nair (supra), an employee is entitled to the higher grade pay as provided under MACP Scheme, more particularly, as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Therefore, so long as Clause 8.1 and the grade pay mentioned as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 stands, the employee shall be entitled to the grade pay accordingly. Therefore, if any of the employees is aggrieved by Clause 8.1 and if in his opinion, there is any anomaly the same has to be challenged by the aggrieved employee, which can be considered in accordance with law and on its own merits. However, as the same is not under challenge, we have to go by the MACP Scheme as it is."9
Where as the Circular dated 06.09.2021 issued by the Ministry of Communication, Department of Posts, Government of India produced by the learned counsel for the respondent at para 2 reads as under:
"2. The matter has been examined and it is clarified that if a Central Govt. employee who is promoted to either Postman/Mail Guard or Postal/Sorting Assistant or Inspector Posts cadre (i.e. to the post which carry higher Grade Pay / pay Level in Pay Matrix than what is available under MACPS and have the element of direct recruitment) through Limited Department Competitive Examination (LDCE) immediate after availing the benefits of 1st financial upgradation under MACP Scheme (not TBOP/BCR Scheme), the benefit of 2nd financial upgradation under MACP Scheme (in the next Grade Pay w.r.t. Grade Pay / pay Level held by Government servant) shall be admissible to him/her on completion of 20 years service from direct entry grade in terms of para-28(B) of OM dated 19.05.2009 & para- 27(B) of OM dated 22.10.2009, if otherwise, admissible and the employee fulfils the other eligibility conditions.
In such cases, fixation on such regular promotion immediate after availing the benefit of financial upgradation under MACP, shall be subject to the provisions of para-4 of the OM on MACP Scheme as 10 this Directorate OM No. 20-27/2015 SPN-II dated 20.08.2018 stands withdrawn vide OM No, 20-27/2016- SPN-II dated 29.06.202). As such, no pay fixation benefit with increment would be available and only difference of grade pay would be available or shall be placed in the level to which he/she is promoted at a cell in the promoted level equal to the figure being drawn by him/her on account of MACP. If no such ceil is available in the level to which promoted, he/she shall be placed at the next higher cell in that level. Provided the Basic Pay on Promotion to these posts where entry pay for direct recruits appointed on or after 01.01.2008, as per Section-II of Part-A of First Schedule of CCS (RP) Rules, 2008, becomes applicable by virtue of the provision of the element of direct recruitment in the relevant recruitment rules, shall not be lees than such entry pay w.e.f. 01.01.2006 in terms of D/o Expenditure OM No. 8-23/2017-E.IIIA dated 28.08.2018 as clarified vide DoP&T OM No. 36034/9/2015-Estt.(D) dated 08.00.2020. Further in 7 CPC pay structure, the pay cannot be lees then the first stage of the relevant level to which promoted as provided vide Department of Expenditure OM No. 1-6/2016-1C dated 03.08.2017. To illustrate-
i. If a Central Gove. employees, who was appointed (direct entry) as Postal Assistant (in the corresponding scale to Grade Pay Rs.2400/-) on 01.01.1997 and granted 1st financial upgradation under MACP Scheme w.e.f. 01.08.2006 (in Grade Pay 11 Re.2800/-), earns 1st regular promotion through LDCE to Inspector Posts cadre on 01.09.2010 in Grade Pay Re.4600/- Level-7 and completes 20 years of service on 01.09.2017, the 2nd financial upgradation under MACPS in the Level-8 of Pay Matrix (in the next Grade Pay w.r.t. Grade Pay / pay Level held by Government servant) will be granted on completion of 20 years of service i.e. 01.00.2017. The modalities shall be as follows:-
Event w.e.f Pay Scale Remarks
Postal 01.09.1997 Grade Pay Entry Grade
Assistant Rs.24,00
st
1 MACP 01.09.2008 Grade Pay On completion of 10
Rs.2800 years service. Pay
fixation as per FR-
22(I)
st
Inspector 01.09.2010 Grade Pay 1 regular promotion
Posts Rs.4600 (through LDCE). No
pay fixation with
increment. Only
difference of GP i.e.
Rs.1800 is to be
added in the basic
pay (para-4 of
MACPS) Provided
the basic pay shall
not be less than the
entry pay i.e. Rs.
17140/- (DoP&T OM
dated 08.09.2020)
nd
2 MACP 01.09.2017 Level-8 (GP On completion of 20
Rs.4800/-) years service. Pay
fixation as per FR
22(I)(a)(1)
ii. If a Central Govt. employees, who was
appointed (direct entry) as MTS (in the corresponding scale to Grade Pay Rs.1800/-) on 01.08.1990 and granted 1st financial upgradation under MACP Scheme w.e.f. 01.09.2008 in term of para-5 of MACPS (in Grade 12 Pay Rs.1900/-), earns regular promotions, 1st to Postman on 01.08.2009, 2nd to Postal Assistant (through LDCE) on 01.09.2013 & 3rd to Inspector Posts cadre (through LDCE) on 01.01.2021 and completes 20 and 30 years of service as on 01.08.2010 & 01.08.2020 respectively, the modalities for financial upgradation under MACPS and pay fixation thereon shall be as follows:-
Event w.e.f Pay Scale Remarks
MTS 01.08.1990 GP Entry Grade (initial
Rs.1800 scale Rs.2650-4000
stands merged with
TOBP scale Rs.2750-
4400 w.e.f.
01.01.2006 to
corresponding GP
Rs.1800/- as a result
th
of 6 CPC
recommendations)
st
1 MACP 01.09.2008 GP In terms para-5 of
Rs.1900 MACPS on merger of
various scales of
MTS as a result of
recommendation of
6th CPC. Pay fixation
as per FR-22(I)(a)(1)
st
Postman 01.09.2009 GP 1 regular
Rs.2000 promotion. No Pay
fixation. Only
difference of GP i.e.
Rs.100 is to be added
in the basic pay
provided it shall not
be less than the entry
pay i.e. Rs.8460/-
nd
2 MACP 01.08.2010 GP On completion of 20
Rs.2400 years service. Pay
fixation as per FR-
22(I)(a)(1).
nd
Postal 01.09.2013 GP 2 regular promotion
Assistant Rs.2400 (through LDCE). No
fixation benefit with
increment would be
available provided the
basic pay on
promotion shall not
13
be less than the entry
pay i.e. Rs.9910/- (in
term of DoP&T OM
dated 08.09.2020)
rd
3 MACP 01.08.2020 Level-5 On completion of 30
years service. Pay
fixation as per FR-
22(I)(a)(1)
Inspector 01.01.2021 Level-7 3rd regular promotion
Posts (through LDCE). No
pay fixation with
increment. Only
simple replacement
to the Level-7 at a
cell equal to the
figure being drawn
him on account of
MACP. If no such
cell is available in the
Level-7, he shall be
place at the next
higher cell in that
Level. Provided pay
cannot be less than
the first stage of the
Level 7 i.e.
Rs.44900/- in terms
of Department of
Expenditure O.M. No.
1-6/2016-IC dated
03.08.2017.
On subsequent promotion (4th), if any, fixation benefit under FR- 22/(I)(a)(1) shall be admissible.
iii. If a Central Govt. employee. who was appointed (direct entry) as Postman on 01.01.1988 and granted TBOP in the scale (Re.3200-4900) w.e.f. 01.01.2001, earns regular promotions to the posts vis 1st Postal Assistant (through LDCE) on 01.09.2002, 2 LSG on 01.01.2009, 3rd HSG-II on 01.03.2016 & PS Gr. 'B' / AAO (through LDCE) on 01.07.2015 and completes 20 & 30 years of service on 01.01.2006 & 01.01.2015 respectively. the modalities for financial upgradation and pay fixation thereon shall be as follows:-
14 Event w.e.f Pay Scale Remarks
Postman 01.01.1985 3050-4590 Entry Grade (initial scale
Rs.825-1200 upgraded to
Rs.3050-4590 w.e.f.
01.01.1996)
TBOP 01.01.2001 3200-4900 On completion of 16 years
of service. Pay fixation as
per FR-22(I)(a)(1).
Postal 01.09.2002 4000-6000 Regular promotion. Pay
Assistant fixation under FR
22(I)(a)(1)
nd
2 MACP 01.09.2008 GP Rs.2800 On completion of 20 years
service in terms of para-5
of MACPS due to
upgradation of the scale of
Postman as a result of
recommendation of
th
6 CPC to Rs.3200-4900
(grade Pay Rs.2000/-).
Pay fixation as per FR-
22(I)(a)(1)
nd
LSG 01.01.2009 GP Rs.2800 2 regular promotion. No
Pay fixation
rd
3 MACP 01.01.2015 GP Rs.4200 On completion of 30 years
service. Pay fixation as
per FR-22(I)(a)(1)
rd
HSG-II 01.03.2015 GP Rs.4200 3 regular promotion. No
pay fixation.
th
PS G.-'B' / 01.07.2015 GP Rs.4800 4 regular promotion
Asstt. through LDCE. Pay
Accounts fixation as per FR-
Officer (AAO) 22(I)(a)(1). Since both the
posts PS Gr. 'B' and AAO
had no element of direct
recruitment. The benefit of
fixation at the minimum of
entry pay i.e. Rs. 18,150/-
in terms of D/o
Expenditure OM dated
28.09.2018 & DoP&T OM
dated 08.09.2020
(ibid), shall not be
admissible. Although, the
provisions of D/o
Expenditure OM No. 1-
6/2016-IC dated
03.08.2017 shall be
applicable.
9. The CAT allowed the application holding that the scheme of MACP is squarely covered by the judgment of the 15 Hon'ble Apex Court in Balbir Singh Turn's case and the High Court of Mumbai judgment in M.P.Joseph (Writ Petition No.1763/2003).
Now, in view of subsequent judgments as held in the case of R.K. Sharma and Sudheesh Kumar as well as in view of the subsequent Notification/Circle dated 06.09.2021 produced by the respondent/applicant, we are of the considered opinion that the matter requires reconsideration by the CAT. Hence, without expressing any opinion on the merits/demerits of the contentions urged by the parties, we pass the following:
ORDER i. The writ petition is allowed.
ii. The impugned order dated 25.02.2020 passed in O.A.No.170/00589/2019 by the Central Administrative Tribunal, Bengaluru is hereby set aside.
iii. The matter is remitted back to the CAT for reconsideration afresh, bearing in mind the decision of the Hon'ble Apex Court in R.K. Sharma's case and Sudheesh Kumar's case as well as the Circular dated 06.09.2021 issued by the Ministry of Communication, Department of Posts, Government of India, in 16 accordance with law within a period of three months from the date of receipt of a certified copy of this order.
iv. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SMP/LG