Central Administrative Tribunal - Kolkata
Damodar Pradhan vs M/O Defence on 26 June, 2023
PIAA SR
a) a 2 0a.1704.2016 fl) To pass an order and / or declaration: that in the fact and circumstances of the case, the uninterrupted service rendered by the applicant in-the post of Staff Car Driver from 04.05.1984 to 16.12.1986, constitute regular and continuous service for all purposes.
iii) To issue an order / direction to the respondents, each of them, their agents or subordinates to forthwith grant 3rd MACP to the applicant from the date he has completed thirty years of service from the date of initial appointment to the post of Staff Car Driver w.e.f. 04.05.1981.
iv) To issue an order / direction to the respondents, each of them, their agents or subordinates to forthwith revise the pay and allowances, pension -and other terminal benefits in respect of the applicant consequent upon grant of 3rd MACP and pay all arrears along with interest.
v) To issue an order / direction to cancel, withdraw and / or rescind the impugned orders dated 30.08.2012 and dated 05.09.2012 and as contained at Annexure - A/11. 7
vi) To direct the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of the points at issue.
vii) Award costs pertaining to this application.
viii) And / or to pass such order or further order or orders and / or direction or directions as this Hon'ble Tribunal deem fit and proper, in favour of the applicant."
2. Ld. counsel for the applicant submits that the applicant was posted as a Staff Car Driver in 1981, even if on an adhoc basis but in the' pay and scale of a Driver. He continued to get all benefits including annual increments in the scale of staff car driver since 1981. It is admitted that order for his regularisation in the post of Staff Car Driver was issued in 1986. The respondents have considered his service in the grade of Staff Car driver w.e.f. 17/12/1986 and have denied him the benefit of 3rd MACP as he did not complete 30 years as staff car driver before his retirement in July 2011. The applicant claims that his service as staff car driver should be counted from 1981, in which case, he would have completed 30 year before his retirement in 2011.
2.1, Ld. counsel for the applicant fairly submits that the only point of adjudication in the instant case is whether the applicant's service for the purpose of MACP commences in 1981 or in 1986. The respondents vide Qo. : 3 0a.1704.2016 their speaking order which has been impugned have relied on the provision in para 9 of the MACP scheme circulated by DOPT -vide their OM dated 19/5/2009 which states that the service rendered as an adhoc employee before regula: appointment on pre appointment training shall not be taken into reckéning for purpose of grant of MACP benefit. The respondents have stated in the speaking order that the applicant was posted as a staff car driver as the regular driver was on leave and that his appointment was not against a regular vacancy.
2.2. Ld. counsel for the applicant assails the contents of the speaking order on multiple grounds. He submits that, Firstly, there is no mention in the order No. 326 dated 01.05.1981 that the appointment was made on account of one Shri Ganesh Lal Dutta proceeding on leave.
Secondly, D.O. order No. 652 dated 22.08.1981 (Annexure-A/3), in the remarks column clearly mentions that the appointment is in an _ existing vacancy.
Thirdly, the said appointment with effect.from 16/7/81 (F/N) until further order was made 'without the applicant being reverted back to the i lower post i.e. the appointment made with effect from 04. 05.1981 continued without any bhesk.
Fourthly, the said appointment continued for over 5 % years without any break and pay and allowances, annual increments and other service benefits grantedias available to the post absolutely based on the | | | initial appointment and pay fixation made w.e.f. 04.05.1981. . i .
Fifthly, the statement that 'subsequently, the said ad-hoc appointment was further extended vide D.O. Pt. No, 598 dated 04.08.1981 on account-of proceeding on leave of Shri Lal Mohan Ram SCD (Gr.- I) is \ unreliable and untenable on the face of record as the order clearly w 4 oa,1704.2016 mentioned that the appointment was in an existing vacancy. Moreover, such ad hoc appointment cannot continue for over five (5) years on the ground that some has proceeded on leave.
Sixthly, the D.O. No. 806 dated 17.12.1986 was issued with reference to order dated 01.05.1981 and order dated 03.08.1981 and declaring that the DGOF/Chairman, O.F.Board, has approved of appointment of the applicant as Temporary Staff Car Driver Grade II with immediate effect. This order was made after 5 % years of continuous service of the applicant from initial appointment and that too without any break and the applicant not requiring to undergo fresh selection process or requiring to acquire additional qualification and cligibility criteria.
Thus when the applicant was appointed to the post of Staff Car Driver w.e.04.05.1981 after due selection process, having essential qualifications needed for appointment to the post as per the existing . recruitment rules, against an existing vacancy, with the approval of the Head of the Department / appointment Authority and allowed to continue for a fairly long time (more that 5 % years), the appointment cannot be held to be 'stop gap' or 'fortuitous' or purely ad hoc in accordance with the principle laid down by the Constitution Bench of the Apex Court in Rudra Kumar Sain and Ors. vs Union of India & Ors., 2000 SCC (L&S) 1055. The order dated 17.12.1986 (Annexure- A/5), in fact regularize the entire service of the applicant from 04.05.1981 to 16.12.1986 and to be treated as regular and the applicant is entitled to receive all associated service benefits as admissible. The applicant also submits that this Hon'ble Tribunal vide order dated 27.07.2000, in O.A. No. 777 of 1990; Subhasis Mukherjee vs Union of India, had also reiterated the legal principle that the ad-hoc appointment which continue for long years be regularized * oa.1704.2016 unless some specified qualification is not there for the particular candidate.
3. Per contra, Ld. counsel for the respondent submits that the applicant was posted as an adhoc staff car driver in order to manage the situation arising out of long leave taken by the regular driver. He was not posted against a regular vacancy. He also submits that since Staff Car Cleaner is not a feeder grade for Staff Car Driver, applicant service as Cleaner during 1975 to 1981 cannot be considered for MACP as per the | provisions of the MACP Scheme. Ld. counsel further submits that the period spent by applicant: as an adhoc Staff Car Driver cannot be considered for the purpose of granting MACP as it would violate the provisions of DoPT OM No. 28036/1/2001:ESTT (D) dated 23/07/2001
- which prohibits regularisation of adhoc employees. Period between 4/5/1981 and 17/12/1986 cannot also be taken into consideration for the purpose of MACP as para 9 of the scheme specifically states that the service rendered as an adhoc employee will not be counted for the purpose of MACP.
4, Heard both sides at length.
5. Respondents have not counted the service of the applicant as a Staff Car Cleaner for MACP as it is NOT the feeder cadre for the staff car driver post which the applicant occupied for most part of his career. Since the ld. counsel for the applicant does not press this point we will restrict our findings to the period the applicant as Staff Car Driver.
6. Respondents in the impugned speaking order have relied on para 9 of the MACP Scheme circulated vide DOPT OM dated 19/5/2009. Para 9 of the same OM is quoted hereunder:
2al 5 0a.1704.2016 "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 Government Department in a post carrying same grade pay prior fo regular appointment in a new Department, without a break, shail 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."
We agree with the Id-counsel for the applicant that the above para refers to service rendered on adhoc /contract basis before regular appointment on pre appointment training. Since in the instant case, no pre appointment training was involved during the period of the applicant's service on adhoc basis, the provisions of the above para do not apply in the instant case. The applicant herein was posted as a staff car driver w.ef. 04.05.1981 albeit on adhoc basis but as it would appear from the posting order as it was against existing vacancy in the scale of pay admissible to a staff car driver. The applicant was already a regular employee: of the organisation and his posting as Staff Car Driver on adhoc basis was presumably done to avoid the regular process of appointment by the respondents for their convenience. The applicant was paid regular salary attached to the post. OM of 2001 relied upon by the Id. Counsel for the respondent is on the subject of regularisation of adhoc employees and > its application to the case of MACP which came into force in 2009 is a farfetched proposition. Similarly, to deny the benefit of adhoc service of the applicant on the basis of provisions in the paras 9 of the MACP scheme is not correct, as this para refers to adhoc service before regular appointment on pre appointment training which is not the case here.
7 0a.1704.2016 6.1. Moreover, para 26 of the MACP scheme vide DOPT OM dated 19/5/2009, states as follows:
"26, Cases of persons holding higher posts purely on adhoc basis shall also be considered by the Screening Committee alongwith others. They may be allowed the benefit of financial upgradation on reversion to the lower post or if it is beneficial vis-a- vis the pay drawn on adhoc basis."
It states that the persons holding higher posts purely on adhoc basis may be allowed the benefit of financial uplgradation vis-a-vis the pay drawn on adhoc basis. From the above para, it appears that the MACP scheme of 2009 did indeed make provision for counting the period ! of service rendered on adhoc basis.
7. In view of the above, we are of the considered opinion that the 'service rendered by the applicant as staff car driver on adhoc basis from 4/5/1981 to 17/12/1986 should be counted for the purpose of grant of benefits under MACP scheme. At this stage we take note of the fact that the Ordnance Factories Board, the main respondents in this OA is no longer in existence. However, a successor organization exists, for management of the erstwhile staff of OFB. We therefore direct the 'appropriate and competent authority in the successor organization to count the length of service of the applicant from the date he was posted Staff Car Driver on adhoc basis for the purpose of 'grant of benefits of MACP Scheme and extend all consequential benefits arising out of the above order within a period of 4 months from the date of this order.
8. The OA is disposed of accordingly. eee, (Suit? Bomar Das (Manish Garg) Member (A) Member (J) 8s