Central Administrative Tribunal - Delhi
Shakeel Ahmad Burney vs Union Of India Rep. By on 21 December, 2012
Central Administrative Tribunal
Principal Bench
O.A. No. 3756/2011
Order reserved on: 05.07.2012
Order Pronounced on:21.12.2012
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Shakeel Ahmad Burney,
S/o late Shri Khalil Ahmad,
Assistant Manager Outdoor,
PSFS, Department of Posts,
Aligarh.
-Applicant
(By Advocate : Shri R.K. Gupta)
Versus
1. Union of India Rep. by
Its Secretary,
Department of Personnel and Training,
North Block,
New Delhi.
2. The Secretary,
Department of Posts,
Ministry of Communication,
Dak Bhawan, New Delhi.
3. The Director of Accounts (Postal),
U.P. Circle, Lucknow.
4. The Supdt. PSFS,
Department of Posts,
Aligarh. - Respondents
(By Advocate Shri R.C. Gautam)
O R D E R
Mr. Sudhir Kumar, Member (A):
Applicant of this OA joined the respondent-Department under respondent No.4 on 04.09.1971. Nearly five years after his joining as a class IV employee on 02.09.1976, the applicant was appointed as a Postal Assistant, after his having passed and qualified the Limited Departmental Competitive Examination (LDCE, for short) through Annexure A/2)dated 04.08.1976, asking him to proceed for training before joining as Postal Assistant. Later, on completion of 16 years of service he was provided with one financial upgradation under the Time Bound One Promotion (TBOP, for short) Scheme then in vogue in respondent-department. Later, on completion of 26 years of service, on 02.09.2002 applicant was provided with second financial upgradation under Biennial Cadre Review (BCR, for short) Scheme. Later, with effect from 01.09.2008, the respondent-department adopted the Modified Assured Career Progression (MACP, for short) Scheme prescribed by the Government of India, and on 28.06.2011, through Annexure A/3, applicant was provided 3rd financial upgradation under MACP Scheme w.e.f. 01.09.2008 the date of coming into effect of the MACP Scheme, since by that time he had completed nearly 32 years of service from the date of his appointment as Postal Assistant. However, the applicant has alleged that later on, arbitrarily and illegally, while fixing his pension after his superannuation on 30.09.2011, the respondents ordered for recovery of the payment made to him in respect of 3rd MACP benefit granted to him vide Annexure A/3 from his pension, giving the reasons that the applicant had already got three financial upgradatins/promotions, i.e., first promotion from Class IV post as Postal Assistant, second as TBOP financial upgradation, and 3rd by way of BCR financial upgradation, and hence he was not eligible for grant of 3rd MACP financial upgradation. Aggrieved with this order, the applicant has filed the present OA.
2. The applicant has alleged that the respondents have wrongly treated his appointment as Postal Assistant as his first promotion/financial upgradation, as his appointment as Postal Assistant cannot be called as promotion or financial upgradation, since 50% of the posts of Postal Assistants are filled through LDCE held for the class IV employees of the respondent-department. The applicant had submitted that since he was declared successful in the LDCE, and thereafter served for more than 30 years after joining as Postal Assistant, his appointment as Postal Assistant cannot be treated as his first promotion/financial upgradation, and denial of the benefit of the 3rd MACP financial upgradation to him is, therefore, against the law, and any recovery or refixation of his pension shall be unjustified, as his juniors recruited through the direct recruitment quota, i.e., 50% quota of recruitment of Postal Assistants from the open market from outside are enjoying the benefit of 3rd MACP Scheme financial upgradation, and after refixation of applicants pay/pension, his juniors, who had served for lesser period in the Postal Assistant cadre, would be held to have been drawing higher pay than the applicant on a mistaken notion.
3. The applicant had first preferred a Writ Petition (Civil) No.49814 of 2011 before the Honble Allahabad High Court, but the Honble High Court dismissed the same on 30.08.2011, giving liberty to the applicant to seek the alternative remedy available to him before this Tribunal. Even though he was posted outside the jurisdiction of this Bench of the Tribunal, and in the jurisdiction of the Allahabad Bench of this Tribunal, but he filed a Petition before the Honble Chairman under Section 25 of the Administrative Tribunals Act, 1985, read with Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, and his PT (Petition for Transfer) was allowed by the Honble Chairman on 12.10.2011, and the case was listed for hearing before this Bench.
4. The applicant had taken the ground for seeking the reliefs as prayed for in the OA that his appointment in the Postal Assistant cadre should not be treated as 1st financial upgradation under the MACP Scheme as he had been declared successful in the LDCE by his own efforts and skills, and hence the financial upgradation provided to him under the TBOP Scheme 12 years after his appointment as Postal Assistant should be treated as his first financial upgradation. It was also submitted that as per the law, no recovery can be made from the retiral dues of the applicant, since he is not a party to the wrong pay fixation, if any, and he had not made any misrepresentation or manipulation for getting the benefit of the 3rd financial upgradation under the MACP Scheme. He has also cited a recent judgment of the Honble Allahabad High Court in State of U.P. v. Mahesh Chand Agrawal & Anr., in which the Honble High Court has held that the employee cannot be faulted in such a case, as there is nothing attributable to him.
5. He had also taken the ground that his case is covered by the judgment of the Madras Bench of this Tribunal in OA No.1075/2010, in which the Bench has held that FR 22 provides for removal of anomalies by stepping up the pay of the seniors when their juniors happen to draw more pay, which would be the case in the instant case if the employees junior to the applicant are given higher pay scale in the guise of implementation of the wrong order, which is not sustainable in law. He pleaded that the Honble Apex Court had in the case of Secretary, Finance Department and others v. West Bengal Registration Service Association and others, 1993 Supp. (1) SCC 153 held that Courts have jurisdiction to grant relief to the aggrieved employees who are unjustly treated, and when the State action is arbitrary. He had pleaded that in the instant case the applicant has been unjustly treated, and even higher pay scale has been allowed to the employees who were functioning at posts inferior than the applicant when he was promoted from the Postal Assistants cadre to the norm based Lower Selection Grade (LSG, for short) cadre, and was working as Assistant Manager (Outdoor), and by this arbitrary act of the respondents, the employees working on inferior posts than him shall be drawing higher pay. The OA having been filed just in the last month prior to the date of the applicants retirement he had declared that the OA may be treated extraordinary for the purpose of Section 20 of the Administrative Tribunals Act, 1985 and had prayed for the following reliefs:
1. That the impugned orders Annexure A-1 dated 2.8.2011 may kindly be quashed and set aside.
2. That the respondents may kindly be directed not to withdraw the benefits of third financial upgradation, given to the applicant and fix the pay of the applicant after granting him the benefit of MACPS and recovery, if any, may kindly be refunded with interest @10%.
3. That any other benefit of relief which in the circumstances of the case deemed fit and proper be allowed to the applicant.
4. That the cost of the suit be awarded to the applicant.
6. Respondents filed a detailed counter reply on 03.04.2012. They accepted the contention of the applicant regarding his appointment to Group C post of Postal Assistant w.e.f. 2.11.1976, the TBOP financial upgradation granted to him on completion of 16 years of service w.e.f 2.11.1992, and the BCR upgradation allowed to him on completion of 26 yars of service in the Postal Assistants cadre through Memo dated 28.03.2003 w.e.f. 1.1.2003, and also that he was given 3rd MACP financial upgradation through order dated 28.06.2011. But, they submitted that when the pension case of the applicant was sent to the Director of Postal Accounts, it was pointed out that the applicant had already been given three promotions/financial upgradations by the time he retired as Assistant Manager (Outdoor), and hence the 3rd financial upgradation under MACP was not admissible to him according to the Rules. Therefore, as per the orders of the Director of Accounts (Postal), a recovery of Rs.46,876/- had been effected from the DCRG in respect of 3rd MACP benefit incorrectly granted to him w.e.f. 01.09.2008 the date of coming into effect of the MACP Scheme.
7. In their objections, respondents have taken two separate lines of defence. The first line of defence was that under the MACP Scheme implemented on the recommendations of the VI Central Pay Commission (VI CPC, for short), three financial upgradations are admissible after 10, 20 and 30 years of continuous regular service, and for this purpose regular service by the applicant in the employment of the respondents would be counted from 04.09.1971 the initial date of his appointment in group D cadre, and that the plea taken by the applicant that such service should be counted only from the date of his appointment as Postal Assistant w.e.f. 2.11.1976 for counting service for grant of 3rd financial upgradation under MACP is wrong. In saying so, the respondents had submitted that since the applicant had got his first upgradation/promotion as Postal Assistant on 02.11.1976 after qualifying the LDCE, the TBOP benefit granted to him should actually be treated as his second financial upgradation, and the BCR benefit granted to him w.e.f. 1.1.12003 should be treated as his 3rd promotion/financial upgradation, from the date of his initial entry into service of the department w.e.f. 04.09.1971. The second contention of the respondents was that applicants contention that his promotion as Postal Assistant cannot be treated as a promotion/financial upgradation is wrong as per the rules and instructions of MACP Scheme issued by the Department, and, therefore, the order granting him 3rd MACP benefit was incorrect, and the benefit wrongly given to him has to be withdrawn. In saying so, the ground taken by the respondents was that the LDCE is clearly a promotion/financial upgradation, and that this fact cannot be ignored, and has been rightly pointed out by the Audit, and since statutory rules cannot be overlooked, the actions of the respondents were justified, and it was prayed that the OA be rejected.
8. The applicant filed a rejoinder on 20.04.2012 on the same lines as in his OA. In this he had tried to take a further ground that the TBOP Scheme financial upgradation wordings includes the word promotion, and, therefore, it cannot be termed to be a financial upgradation under MACP, but he has stuck to the main ground that the promotion, which he had got into the cadre of Postal Assistants by going through LDCE, was not an Assured Career Progression (ACP, for short), and that the promotion which was acquired on going through the LDCE cannot be treated as an ACP under the MACP Scheme on any count whatsoever. He had, therefore, prayed that the crucial point to be decided is as to whether any promotion got by an official due to his own merit in the LDCE, can be considered as an ACP or not. It was, therefore, reiterated that the 3rd MACP granted to the applicant was perfectly within the provisions of the Rules, and Articles 14 and 16 of the Constitution of India, and that no recovery on account of any computation of overpayment or irregular payment due to an alleged miscalculation could have been effected by the respondents, as they have done in this case. It was, therefore, reiterated that the OA may be allowed, and the respondents may be directed for not making recovery or to return the recovered amount to the applicant.
9. Heard. The case was argued on the lines of the OA and rejoinder on behalf of the applicant, and the counter reply filed by the respondents. During arguments, in support of his contention, the learned counsel of applicant produced the order dated 22.05.2012 passed by a Single Member Bench at Jodhpur Bench of this Tribunal, consisting of one of us, in OA No.382/2011 with connected matters in Bhanwar Lal Regar v. Union of India & Others etc. etc.
10. It was further submitted that since it has been held that the selection for the post of Postal Assistant by appearing at the relevant Departmental Examination (LDCE) cannot be called to be a promotion, therefore, it cannot be held that the applicant had received three promotions, because appointment to an ex-cadre post cannot be considered as promotion, when it is not a post to which one can claim promotion as a matter of right, by virtue of seniority in the hierarchical line of promotion from the earlier post, and the department does not permit promotions from Group-D even to the post of a Postman, and nor from the post of a Postman to Postal Assistant, and nor from the posts of Postal Assistants to Inspector of Posts, by way of promotion after efflux of time itself. It was further reiterated that any selection, recruitment, appointment or absorption in an ex-cadre post has necessarily to be treated as a separate and independent entry, into a fresh pay scale and grade, for the purpose of ACP/MACP/financial upgradations, and also for TBOP/BCR financial benefits. It was submitted that the respondents cannot be allowed to approbate and reprobate at the same time, when they have themselves admitted that appointment from Group-D to Postman Cadre, and from Postman Cadre to Postal Assistants cadre, was done only through a LDCE through a process of selection. In the result, it was prayed that the OA be allowed and the impugned order Annexure A-1 be quashed. In support of his contention, the applicant had cited the letter dated 18.10.2010 issued by the Pay Commission Cell of the Department of Posts, Ministry of Communication & IT, clarifying the doubt regarding eligibility of MACP Scheme benefits as follows:-
SL.
No. Point on which clarification sought Status position Eligibility of MACPS to a direct recruited Postal Assistant conferred with TBOP-
It has been represented that in some Circles the directly recruited Postal Assistants who were accorded financial upgradation under one time bound promotion scheme on completion of 16 years of satisfactory service are not being given the 2nd MACPS on the ground that the officials have not completed 10 years of service TBOP Scale/Grade with grade pay of Rs.2800. Attention is drawn to Para No.28 of Annexure-I to this office OM dated 18.09.2009. it is stated that a directly recruited Postal Assistant who got one financial upgradation under TBOP Scheme after rendering 16 years of service before 01.09.2008, will become eligible to 2nd MACP on completion of 20 years of continuous service from date of entry in Government service or 10 years in TBOP grade pay or scale or combination of both, whichever is earlier. However, financial upgradation under MACPS cannot be conferred from the date prior to 01.09.2008 and such 2nd financial upgradation for the above referred category of officials has to be given from 01.09.2008. They will also become eligible for 3rd MACP on completion of 30 years of service or after rendering 10 year service in 2nd MACP, whichever is earlier.
11. We have given our anxious consideration to the facts of the case. It is obvious that appointment from the civil post of EDA to a regular Government employment as Group-D is a fresh appointment, and that has never been disputed by the respondents either. Thereafter when, as a Group-D employee, the applicant faced a process of selection through LDCE, and was appointed as a Postal Assistant, such selection to a level through LDCE, which is two levels above his earlier appointment, by passing the intermediate post and Cadre of Postmen, cannot be called a promotion, as it was not in the course of and prescribed avenues of promotion, or by way of natural progression through seniority. Any advancement in career, which is based on a process of selection especially undertaken for that purpose, and is over and above the prescribed channels or avenues of promotion through only seniority or seniority-cum-merit criteria, cannot be called as a promotion. A promotion has to be in a higher category in the same cadre, or service, or through a prescribed channel or avenue of promotion, but without an element of a process of selection, through tests or examinations etc..
12. The meaning of the word promotion was considered by the Honble Apex Court in the case of Director General, Rice Research Institute, Cuttack & anr v Khetra Mohan Das, 1994 (5) SLR 728, and it was held as follows:-
A promotion is different from fitment by way of rationalisation and initial adjustment. Promotion, as is generally understood, means; the appointment of a person of any category or grade of a service or a class of service to a higher category or Grade of such service or class. In C.C. Padmanabhan v. Director of Public Instructions, 1980 (Supp) SCC 668: (AIR 1981 SC 64) this Court observed that "Promotion" as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in a higher category of the same service or that the new post carries higher grade in the same service or class.
13. Further, in the case of State of Rajasthan v. Fatehchand Soni, (1996) 1 SCC 562, at p.567: 1995 (7) Scale 168: 1995 (9) JT 523: 1996 SCC (L&S) 340: 1996 (1) SLR 1.), the Honble Apex Court findings can be paraphrased and summarized as follows:-
In the literal sense the word promote means to advance to a higher position, grade, or honour. So also promotion means advancement or preferment in honour, dignity, rank, or grade. (See : Websters Comprehensive Dictionary, International Edn., P. 1009) Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression promotion has been understood in the wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
14. The applicant, while being a Class IV employee, faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become a Postal Assistant. Thus, his joining as a Postal Assistant was not in the nature of promotion from or within his earlier existing Class IV service or cadre, but was a career advancement on his own merit, through a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and MACP financial upgradation now, the only dates which are relevant to be taken into account for the purpose of counting the periods of his stagnation is the period spent by the applicant as Postal Assistant. In that sense, the clarification issued by the Pay Commission Cell of the Department of Posts, Ministry of Commissions & IT on 25.04.2011 through file No.4-7/MACPS/2009/-PCC is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when a Postman or a Class IV employee appears at the LDCE, and gets selected to a new higher Cadre and post as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements on the basis of his own merit cannot be called to be promotions within the definition of the word promotion, as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.
15. It is, therefore, clear that the eligibility of the applicant for the grant of TBOP/BCR benefits earlier, and MACP benefit thereafter, and the period of his stagnation, has to be counted only from the date he was substantively appointed as a Postal Assistant.
16. Insofar as the aspect of recovery of any payment mistakenly made to an employee by the employer is concerned, the latest law in this regard has been laid down by the Honble Apex Court in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others, 2012 STPL (Web) 436 SC, in which the previous case-law in the cases of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Sahib Ram v. State of Haryana, (1995) 1 Supp. SCC 18, State of Bihar v. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 and Yogeshwar Prasad and Ors. v. National Institute of Education Planning and Administration and Ors., (2010) 14 SCC 323 have been distinguished and overruled. Therefore, one aspect is clear that if the applicant was paid any amount wrongly, in view of the latest law laid down by the Apex Court through the judgment in Chandi Prasad Uniyal (supra), that amount can certainly be recovered even from the retiral benefits of the applicant.
17. However, we have to see as to whether the provisions of the MACP Scheme had been correctly applied by the respondents to the case of the applicant or not. As discussed above, the applicant is correct in stating that his selection from a Group D/Class IV post to the post of Postal Assistant cannot be called a promotion in the regular time scale of pay, which he would have got otherwise through efflux of time, if he had not succeeded in the LDCE on the basis of his own skills and merit. Therefore, as held by the Jodhpur Bench of this Tribunal in Bhanwar Lal Regar (supra), though there may have been a continuity of employment within the same department from Group D/Class-IV post to the Postal Assistant post, it cannot be held that the applicant did not come to occupy a fresh lien in a higher Group C post with effect from the date of his appointment as a Postal Assistant. Therefore, any attempt on the part of the respondent-Department to club the period of applicants appointment in Group D/Class-IV post with his entitlement to financial upgradation under TBOP/BCR or MACP etc. cannot be allowed, and the stand presently taken by the respondents in this regard is totally unjustified and illegal. The applicant entered into a fresh lien in the post of Postal Assistant, and was rightly granted TBOP and BCR benefits on completion of 16 years and 26 years of service. When the TBOP/BCR Schemes got replaced by the MACP Scheme, the respondents cannot be allowed to take shelter by counting his Group D/Class-IV service with his later service in Group C on the basis of his selection on his own merit through LDCE, since the jump from a group D post to the post of Postal Assistant was not a promotion, and it was a selection, as has been discussed in detail above.
18. The question as to in which cases the LDCE amounts to a promotion, and in which cases it amounts to a selection, has also been examined by this very bench in its order dated 27.09.2012 in OA-248/2012 by stating as follows:
116. In the numerous Recruitment Rules framed by the Railways for their posts at various levels, Limited Departmental Competitive Examination (LDCE) has been prescribed for promotions to a number of posts along with promotions based upon seniority-cum-merit. Here, in the instant case, the CSCS has been divided into different cadres, and for the purpose of determining inter-se seniority and relative seniority among the persons to be promoted, the principles as laid down in Para-320 of the Indian Railway Establishment Manual can be borrowed for the purposes of a comparison, which states as follows:-
320. RELATIVE SENIORITY OF EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/NON-SELECTION POST IN HIGHER GRADE.
When a post (selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-se-seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose.
Note:- Non-fortuitous service means the service rendered after the date of regular promotion after due process.
(Emphasis supplied).
117. It is, therefore, clear that in the instant case also, the service rendered by the applicants after the date of their regular promotion, after the due process of their having been declared successful at the respective years LDCE Examinations from 2004 to 2009, has to be counted as non-fortuitous service rendered by them as UDCs, and anybody who is now selected as a UDC in the year 2012, whether on the basis of an LDCE conducted for 25% of the declared 2151 posts, or through SQ quota for 75% of the said declared 2151 posts, would never be able to surmount and overcome the hurdle of the non-fortuitous service as U.D.Cs already put in by the applicants, and other similarly placed persons, and can never become their seniors as UDCs. This also answers the issue raised by the Intervenor Private Respondents, as discussed at para 27/above.
19. However, whether TBOP, or BCR, or MACP, all these Schemes are the Schemes floated by the respondents as a Safety Net Scheme for the purpose of providing relief to the employees who are caught stagnating in the same scale of pay, and, after the introduction of the VI CPC, in the same Grade pay, without being accorded any promotion in the regular course. One very relevant point in this case, which was not stressed even by the learned counsel for the respondents during the course of arguments has been that applicant before us had actually got one more norm-based promotion also, from the pay scale of Postal Assistant, to the LSG, as an Assistant Manager (Outdoor). Having availed of one norm-based promotion from the Postal Assistants cadre to LSG cadre before completion of 30 years of his regular service in the Postal Assistant cadre w.e.f. 02.09.1976, though the grant of 3rd MACP benefit w.e.f. 1.9.2008 through Annexure A/3 order dated 28.06.2011 would otherwise have been held to be correct in the light of the earlier discussion, but his subsequent norm-based promotion ordered through order dated 05.07.2011 (Annexure R/5) would, from that date, disentitle him to the 3rd MACP financial upgradation benefit, which was granted to him w.e.f. 01.09.2008, as the said 3rd MACP financial upgradation benefit would then have to be merged, as the applicant was granted a norm-based promotion on completion of about 35 years of service in the Postal Assistants cadre from 02.09.1976 to 05.07.2011 (Annexure R/5).
20. Therefore, the OA is only partly allowed, and it is held that while the respondents were wrong in counting the applicants selection as a Postal Assistant through LDCE in the year 1976 as promotion/financial upgradation, they would be free to once again examine the case of the applicant, and in case any extra financial benefits, not admissible to him, have been granted to him, for the less than three months period from 05.07.2011, the date of his substantive norm-based promotion to the LSG Cadre, to the date of his superannuation on 30.09.2011, the same may be recovered from his retiral benefits, after giving him a due notice in this regard. Therefore, the OA is only partly allowed, as above, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) San.