Central Administrative Tribunal - Jaipur
Kishan Lal Ojha vs D/O Post on 13 December, 2021
i (Q,A. No. 568/2017) TRIBUNAL NTRAL ADMINISTRATIVE eae JAIPUR BENCH, JAIPUR Original Application No. 568/2017 Order reserved on : 30.11.2021 1 Date of order: 173...\2..2 | CORAM: fel HON'BLE MR. DINESH SHARMA, MEMBER (A) HON'BLE MRS. HINA P. SHAH, MEMBER (3) , Lal Ojha s/o Shri Parma Nand Ojha, Retd. ASMR ad 69 years, Resident of Maha Laxmi Enclave, B- , Naya Nohra, Baran Road, Kota (Raj.) 342002. aay ASMR Post Department Jaipur Gr (B). .. Applicant (By Adv: Shri K.R. Gurjar) Versus 1 Chief Post Master General, Rajasthan Circle, Jaipur. " Nshoka Marg C-Scheme, Jaipur. 2. The Secretary (Posts) Department of Posts Dak 'Bhawan, New Delhi. The Secretary Department of Expenditure, Ministr 3. of Finance, North Block, New Delhi-110001 " 01. 4, The S.S.R.M. Jaipur Division Department of Posts Jaipur. C-Scheme Jaipur. ' ... Respondents (By Adv: Shri Rajendra Vaish) Order Per: Dinesh Sharma, Member (A)
In this Original Application the applicant has prayed for the following reliefs:
2(QA. No, 568/2017)
i) | The appropriate orders and direction may kindly be passed on the respondents to make the payment of the 3 Up-gradation amounts with the applicant with interest and expenditure incurred in court may kindly be passed on he respondents.
ii) That the action against the respondents for the harassment of the applicant may kindly be taken.
iii) That any other beneficial orders or directions which this Hon'ble Tribunal deems just and proper in the facts and circumstances of the case be kindly passed in favour of the applicant.
iv) Costs be quantified in favour of the applicant.
v) The copies of his various postings are enclosed herewith as Annexure-A/13.
2. These (apparently vague) reliefs claimed by the applicant are mainly based on the order of the Madras Bench of this Tribunal passed in D. Sivakumar Vs. UOI & Ors. O.A. No. 1088/2011 dated 14.03.2013 upheld by the Hon'ble Supreme Court vide judgement dated 16.08.2016 in SLP No. 4848/2016. The applicant has claimed that his appointment on selection as Inspector post Office in the year 1991 should not be counted as promotion while determining his eligibility for getting financial upgradation under TBOP/ACP/MACP The applicant joined the Department of Posts on 14.12.1968, thereafter he was granted financial Upgradation under TBOP scheme after completion of 16 years of service on 14.12.1984. On his seletion to the cadre of Inspector Post Office w.e.f. 01.10.1991, he was not given any (0.8. No. 568/207 financial benefit, since the pay scales of TBOPPA and Inspector Post Office were same and identical. The applicant was granted next financial upgradation under ACP scheme in August, 1999, this was treated as ACP-II financial upgradation. The applicant was further granted 3" financial upgradation under MACP, w.e.f. 01.09.2008, vide order dated 18.09.2009. The applicant claims that as per the judgement of Hon'ble Supreme Court in the case of D. Sivakumar (supra), it has been decided to ignore the promotions/selections earned through passing competetive departmental examinations while counting eligibility for ACP/MACP. Hence, based on this judgement, ignoring his selection to the post of Inspector Post Office as promotion, the ACP-II should be treated as ACP-I in the pay scale of Rs. 6500-10500 and ACP-II should be granted in pay scale of Rs. 7500- 12000 w.e.f. 09.08.1999 and MACP-III in pay band-IIl 15600-39100 w.e.f. 01.09.2008.
3. The respondents have denied the claim of the applicant in their reply to the Original Application. It states that the applicant has already got three financial upgradations/promotion benefits in his Career, the first one was by way of TBOP w.e.f. 14.12.1984. He got his second financial upgradation under ACP scheme w.e.f, 09.08.1999. On introduction of MACP scheme, he wa | ' AS) (0.8.o.568/2012) allowed third financial upgradation w.e.f. 01.09.2008. He did not get any pay upgradation at the time when he was selected as Inspector Post Office and also in the year 2006, when he was promoted as ASRM, since his pay had already been increased to those levek following the grant of TBOP/ACP. The reply also states that judgement in D. Sivakumar's case (supra) cannot be applied to the present case since the Hon'ble Supreme Court had left the question of law open and, therefore, it should not be treated as binding precedent. The respondents have cited various judgements (judgement by the Hon'ble Supreme Court in Civil Appeal No, 5286- 5287 of 2005 in the matter of Bharat Sanchar Nigam Limited Vs. R. Shantha Kumar Velusamy reported in 23011(3) SLI 353, Judgement by the Hon'ble High Court of Delhi in WP (C) No. 2512/2012 titled Uttam Singh and ors Vs. MCD and Ors. dated 26.07.2013 and order of The Ahemdabad Bench of this Tribunal in O.A. No. 2219/2015 titled B.C. Dutta Vs. U.o.1 and Ors dated 17.11.2015) wherein it has been decided that an appointment on a lower post on the basis of limited departmental competetive examination (LDCE) is appointment by promotion and not by direct recruitment. The applicant has filed a very detailed rejoinder reiterating his claim ang annexing the Order 5 17.09.2019 passed by the the Ahmedabad Bench of this Tribunal {in O.A. No. 93/2019 (titled Natvarbhai S. na Vs. U.O.I. &Ors.) and other connected _-- The applicant has also given some additional i ts about what would have happened if he had ee as Postal Assistant (and not got selected as vnapector Post Office). He has alleged voilation of Article 14 and 16 (1) due to such discriminatory treatment internal policy of department of . because of in happening i isi the joinder also mentions that decision of The rejoin posts.
in W.P. No 2512/2012 have been ; High Court In Delhi Hig ded by the Hon'ble Supreme Court in sip No. superse copy which has been annexed as 4848/2016 a icant have also produced following
-A/4. Applican Annexure dqements through a Misc. Application:
juag
a) Judgement of the Hon'ble in Civil Appeal Diary No, with other connected matt of India and Ors vs. Bal &Anr. dated 08.02.2017
b) Judgement of the Hon' Supreme Court 3744 of 2016 €rs titled Union bir Singh Turn Union of India and Ors VS. S.N. Bhati dated 03.01.2018.
c) Judgement of the Hon'ble High Court of Rajasthan in D.B.C.W.P, No, 181/2016 in D.B.C.W.P. No. 16150/2013 with other connected matters titled Union of India and Ors vs. Jagd ish Prasad Sharma &Anr.
dated 15.02.2018.
d) Judgement of ¢ 6 (0.A, No, 568/2047) of 2011 titled Union of India and Ors vs. Raj Pal & another dated 19.10.2011.
4. The matter was heard on 30.11.2021. Both the parties reiterated their respective claims.
5 We have gone through the pleadings and heard the arguments. The issue of MACP and the issue regarding whether a selection on the post through LDCE should be considered as promotion (to be counted as a benefit while considering eligibility for MACP) has been agitated before the various Benches of this Tribunal, Hon'ble High Courts and Before the Hon'ble Supreme Courts in a number of cases. It is regratable that despite a number of clear pronouncements we still have Original Applications like the one before us. The facts mentioned in the Original Application are undisputed. The applicant as well as respondents have not disputed the fact that applicant got one financial upgradation (under TBOP) in the year 1984, second financial upgradation (under ACP scheme) in the year 1999 and third financial upgradation (under MACP) in the year 2008. The applicant has come before us stating that his selection following an examination to the post of Inspector Post Office in the year 1991 did not give him financial benefits and as such it should not be counted as promotion. The respondents have not disputed this fact C that the applicant did not get any financial upgradation 7 (0.A, No. 568/2017) tal t of selection following the departmen on accou hich have been cited and produced by the decisions W (including the detailed decision of the applicant d Bench of this Tribunal, in O.A. No. 93/2019, Ahemdaba rbhai S. Makwana Vs. U.O.I. &Ors. and other titled Natva tters) are in favour of not counting the ma connected the basis of LDCE as promotion, for not . n selection 0 y amount already paid as MACP (on later . an recovering | h selections as promotions) and for release ing suc counting ot counting such selections as Promotions, P if, n of MAC loyee still has elgibility for grant of MACP. the en in the present case, the selection has not ee as promotion. However, even without been coe as promotions, the applicant has been cae ane-bouné promotion benefits and there is no given .
case here for recovery. Thus, none of the cases cited by che applicant apply on the facts and circumstances of .< case.We are reproducing here the beginning and the
- relevant portions of the order passeq by the Ahemdabad Bench in Natwar Bhai Makwana and a huge bunch of other such cases (supra) to make this position clear:
8(0.A, No, 568/2017) adjusted as set off treating the post of Postal Assistant as promotion post of Postman whereas grievances of applicants of rest OAs of this set are that treating the post of Postal Assistant as promotion post of Postman they were not granted their due MACP. It is the contention of each applicants of this set of 52 OAs that the post of Postal Assistant is not a promotional post for the post of Postman whereas the stand of respondents is that it is a promotional post and that entry from Postman cadre to Postal Assistant has nghtly been adjusted and set off against TBOP/ BCR/MACP."
And the order ends with the following:
"32, In view of the foregoing factual and the legal scenario and the rules propounded by the jurisprudence, we hereby quash all impugned orders of this set of OAs whereby either TBOP/BCR/MACP granted earlier to them has been cancelled & adjusted as set off or they were declined their TBOP/BCR/MACP due treating the post of Postal Assistant promotion post of Postman. Respondents as directed to place the claim of applicants for examination afresh before the Re for Screening Committee treating the dete entry_into the_cadre/grade of the a of Postal Assistant_as_thestarti st_ of release the financial upgradations send to and 3°MACP, as the case may be, t¢ m2 they are entitled, keeping in nn which promotion of the applicants as Posta| a _ that was not a "promotion", within a senna three months (90 days) from the rod of receipt of a certified copy of this orden. of consequential benefits.(emphasis added)" with
6. Thus, even if, for the sake of arguments , We consider the applicant as selected w.e.f. 01.10 19 a ° . 91 (when he got selection as Inspector Post Office) h r Ne (0A. No. 5868/2017;
would be. entitled for only two financial upgradation benefits in his remaining career till his retirement in the en 2009. He has already got these two benefits after year his selection aS Inspector Post Office. Under these is to understand what is the . we are unable circumstances, licant to claim benefits of financial basis for the aPP tion under any of the financial upgradation io hemes. The argument taken by the cP/MACP) S© (TBOP/A in his rejoinder about what would have i ; | Assistant cadre if he had not in his Posta happened ! ost of Inspector Post Office ;
ted to the P e is been selec pothetical argument and this cannot 'olation of the right to equality tical violatio hypothe AS discussed above, We find the Original Application
7. totally lacking in merit and an apparent fishing O pased on @ Strained and convoluted on of the Hon Supreme Court Judgment in D expedition interpretatl
a). Th igi vumar case (supra). The Original Application is,
-~missed. No costs.
e, dismiss therefore:
«na P. Shah) Di . 7 .
(Heiember (J) (Dinesh Sharmay..._ iy