Central Administrative Tribunal - Chandigarh
Anil Parmar Son Of Sh Shiv Rattan Singh ... vs Union Of India Through Its Secretary on 13 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA. No. 1673/PB/2013
(Reserved on 28.10.2014)
Chandigarh, this the 13th day of November, 2014
CORAM:HONBLE MRS.RAJWANT SANDHU,MEMBER(A)
HONBLE DR. BRAHM A.AGRAWAL,MEMBER(J)
1. Anil Parmar son of Sh Shiv Rattan Singh Parmar
2. Madan Kumar son of Lt. Sh. Hardyal Sharma
3. Arun Upadhyay son of Lt. Sh. D.N. Upadhaya
4. Renu Bala daughter of Sh. Hem Raj Singla
5. Smt. Chandra Khullar daughter of Sh. H.S. Sethi
6. Neena Rehan daughter of Sh. Ramesh Chander Anand
7. Jagjit Singh son of Sh. Mohinder Singh
8. Mahesh Chand son of Sh. Durga Dass
9. Sewa Singh son of Sh. Darshan Singh
10. Smt. Gulshan Mansa daughter of Sh. Rawal Singh
(working as Accounts Assistant (AA) at Diesel Loco Modernisation Works, Patiala)
Applicants
Versus
1. Union of India through its Secretary, Ministry of Railways, Rail Bhawan, New Delhi.
2. The Financial Advisor & Chief Accounts Officer, Diesel Loco Modernisation Works, Patiala
Respondents
Present: Sh. K.B. Sharma proxy counsel for Sh. D.R. Sharma,
counsel for the applicant.
Sh. G.S. Sathi, counsel for the respdts.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(i). That impugned orders passed vide Annexure A-1/A-2 and A-6 be quashed and set-a-side, in the interest of justice;
(ii). That it be declared that the upgradation/ reclassification/ restructuring of the posts etc does not amount to promotion;
(iii) That respondents be directed to grant 1st ACP financial upgradation on completion of 12 years of service under ACP Scheme and thereafter 2nd MACP financial upgradation on completion of 20 years of service under MACP Scheme since the applicants completed 12 years of service much prior to effective date of implementation of MACP i.e. 01.09.2008, with effect from the dates mentioned against each of them in the chart annexed as Annexure A-9.
2. Interim relief was also sought seeking that respondents be restrained from making further recoveries in respect of applicants No. 3, 5, 6 and 8 and when the matter was taken up for hearing on admission on 02.01.2014, interim relief was allowed and this position continues till date.
3. Averment has been made in the OA that the applicants joined the services of Railways as Junior Accounts Assistant (JAA) during 1987 to 1990 and were confirmed as such pursuant to passing of requisite Appendix II examination. Later on, in implementation of restructuring dated 03.07.1987, the applicants were upgraded/reclassified as Accounts Assistant (AA) with effect from different dates falling between 20.12.1989 to 11.08.1994. It is further stated that since applicants had completed 12 years of service much prior to effective date of implementation of MACP i.e. 01.09.2008, they became entitled for grant of 1st ACP financial upgradation with effect from the dates mentioned, for grant of 2nd MACP financial upgradation on completion of 20 years of service and for grant of 3rd MACP financial upgradation on completion of 30 years of service with effect from the dates mentioned against each of them in the chart annexed as Annexure A-9. Instead of granting the benefit of 1st ACP the respondents vide Office Order dated 19.11.2009 granted 2nd MACP financial upgradation w.e.f. 01.09.2008 to all the applicants. Copies of Office Order dated 19.11.2009 granting 2nd MACP are annexed as Annexure A-8/colly. The respondents granted benefit of 3rd MACP financial upgradation to applicants at serial No. 3, 5, 6 and 8 vide different Orders, copies of which are annexed as Annexure A-7/colly, but after the lapse of considerable period of time, the respondents ordered withdrawal of the same vide different orders, copies of which are annexed as Annexure A-6/colly.
4. Further averment has been made in the OA that the applicants filed O.A. No. 769/PB/2013 in this Tribunal which came to be disposed of vide Order dated 09.07.2013 with direction to applicants to furnish a response to the show cause notice within one month and to respondents to take a view in the matter within one month thereafter. Copy of Tribunals Order dated 09.07.2013 is annexed as Annexure A-5. Pursuant to Tribunals Order, the applicants submitted joint representation dated 27.08.2013 before the respondents and Applicants No. 3,5,6 and 8 further represented against withdrawal of 3rd MACP benefit granted to them. Copies of representation dated 08.08.2013 of applicant No. 3 and joint representation dated 27.08.2013 is annexed as Annexure A-4 and A-3. Vide two impugned orders of even date 10.10.2013 the respondents have rejected the claim of applicants for grant of due 1st ACP and 2nd MACP financial upgradation benefit and ordered recoveries by withdrawing the benefit of already granted 3rd MACP financial upgradation in respect of applicants No. 3, 5, 6 and 8. Copies of Impugned Recovery Order in respect of applicant No. 1 dated 10.10.2013 and common Impugned Order dated 10.10.2013 are annexed as Annexure A-2 and A-1.
5. In the grounds for relief, it has been stated as follows:-
(i) Because no regular promotion has been given to applicants till date. The upgradation/ reclassification of applicants from JAA to AA was on account of restructuring scheme dated 03.07.1987 and not on account of any regular promotion, therefore, such upgrdations/ reclassification from JAA to AA can not be termed and treated as promotion. Thus, since the applicants had completed 12 years of service much prior to effective date of implementation of MACP i.e. 01.09.2008 they are entitled for grant of 1st ACP financial upgradation and thereafter for grant of 2nd MACP financial upgradation on completion of 20 years of service as such.
(ii) Because the claim of applicants is covered with the Order dated 26.08.2007 passed in O.A. No. 335 of 2007 by the Madras Bench of Central Administrative Tribunal (Annexure A-12), upheld by the Hon'ble High Court of Madras in W.P. No. 21112/2009 vide Order dated 10.10.2010 and Hon'ble Supreme Court of India in SLP No. CC9422/2011 vide Order dated 04.01.2012 in the case of Shri V. Venkataraman, Accounts Assistant/FA&CAO/S&VV/ PER/SR holding that upgradation from Jr. Accounts Asstt. to Accounts Asstt. in terms of restructuring of the posts does not amount to promotion.
Pursuant to Supreme Court Order the office of the FA&CAO/S&W/PER/SR vide Memorandum P.535/S&W/PER/ ADMN/FIX/MACP dated 17.09.2012 accorded financial upgradation of Grade Pay of Rs.5400 to Shri V. Venkataraman (Annexure A-13).
(iii) Because the restructuring of Accounts Staff was done in 1987 in terms of Boards letter dated 18.06.1987. The ratio of number of posts in higher and lower scale was decided as under:-
(i) Section Officer(A/Cs) Rs.2000-3200 80% Inspector of Stores Accounts(ISA), Inspector of Station Accounts(TIA) Rs.1640-2900 20%
(ii) Clerks Grade I Rs.1400-2600 80% (including existing Sub-Heads) Rs.1200-2040 20% To the extent of 80% posts of SO(A)/TIA/ISA have been upgraded to Rs.2000-3200, and the same has not been treated as promotion and offset against financial upgradation applicable under ACP Scheme. Whereas, upgradation of Clerk Grade I cadre restructuring done at the same time(01.04.1987) from JAA to AA is being treated as promotion and reckoned for the purpose of financial upgradation under MACPS in an arbitrary and illegal manner.
(iv). Because though the action of respondents in granting 3rd MACP financial upgradation to applicants No. 3, 5, 6 and 8 is not justified as till date none of the applicants have completed 30 years of service. Even if for the sake of arguments it is taken that the applicants at serial No. 3, 5, 6 and 8 are entitled to 3rd MACP financial upgradation as given by the respondents, withdrawing the same without there being any plausible reason is not sustainable.
(v). Because the action of respondents in effecting recoveries from the applicants at Serial No. 3, 5, 6 and 8 is not sustainable in view of the Three Judges Judgement of the Supreme Court in case of P.H. Reddy vs. N.T.R.D. , 2002 (2) SCT 987 and recent judgement dated 02.08.2013 in the case of State of Punjab and others versus Krishan Kumar Bansal and others in Special Leave to Appeal (Civil) No(s).24607/2010.
(vi) Because as per clarifications issued by DOPT vide OM No. 35034/3/2008-Estt.-(D) dated 09.09.2010, the upgradation under MACPS is to be granted in the immediate next higher grade pay in the hierarchy of recommended revised pay band and grade pay as prescribed in the CCS (RP) Rules, 2008.
6. In the written statement filed on behalf of the respondents, it has been stated that applicants involved in this OA are seeking/claiming benefit of financial upgradation under ACP/MACP Schemes by ignoring their promotion from the post of Junior Accounts Assistant in scale of Rs. 1200-2040 (IVth CPC, now Grade Pay Rs. 2800 under 6th CPC) to Accounts Assistant post in pay scale of Rs. 1400-2600 (IVth CPC, now Grade Pay Rs. 4200 under 6th CPC). The applicants have pleaded that their promotion from the post of Jr. Accounts Assistant (Rs. 1200-2040) to the post of Accounts Assistant (Rs. 1400-2600) was not promotion but it was upgradation due to restructuring applicable as on 01.04.1987, which is factually incorrect as none of the applicants was member in Railway Service as on 01.04.1987, the applicants were recruited as Junior Accounts Assistants (Rs. 1200-2040) after 09.09.1987 and were promoted subsequently on having been found suitable & eligible for promotion as Accounts Assistant (Rs. 1400-2600) on seniority cum suitability in normal channel against normal vacancies during the period from 20.12.1989 to 11.08.1994. Hence, the claim of the applicants that they did not get any promotion is wrong and bereft of any merit.
7. It is further stated that the case of the applicants in the instant OA is not covered with the matter of V. Venkataraman (OA No. 335 of 2007) because the restructuring/revised ratio of Accounts Assistants & Junior Accounts Assistants was implemented from 01.04.1987. However, at the relevant time, none of the applicants were member of Railway Service as on 01.04.1987. They were recruited as Junior Accounts Assistants in pay scale of Rs. 1200-2040 between the period from 09.09.1987 to 14.09.1990. It was only after having been found suitable & eligible, the applicants were promoted to the post of Accounts Assistants on the basis of their seniority-cum-suitability under Para-171(5) of IREM,Volume I (Edition 1989)against the available vacancies from time to time in the category of Accounts Assistants on different dates between 20.12.1989 to 14.08.1994. Like others, their promotion from Junior Accounts Assistant (Rs. 1200-2040) to Accounts Assistant (Rs. 1400-2600) as described above was in normal channel and not by virtue of restructuring as on 01.04.1987. Whereas Sh. V. Venkataraman, the applicant in the OA. No. 335/2007, was recruited as CG-I(JAA) on 04.08.1983. He was placed in higher grade of Accounts Assistant due to restructuring/revised ratio of JAA & AA as on 01.04.1987.
8. The matter of recovery pertaining to the applicants at Sr. Nos. 3, 5, 6 & 8 only is a separate issue. These applicants were granted 3rd financial upgradation under MACP Scheme in Grade Pay of Rs. 4800 in Pay Band of Rs. 9300-34800 on provisional basis. Consequent upon clarification issued by Railway Board, following the procedure, these applicants were issued a show cause notice. Based upon the reply of the applicants to the show cause notice, the matter was referred to Railway Board as requested by the applicants. On receipt of decision of Railway Board, the recovery is being made after following the procedure and approval of competent authority.
9. It is further stated that as per para 171(3) of IREM, Volume I (Edition 1989) (Annexure R/1), Accounts Clerks are promoted as Junior Accounts Assistants against 20% promotional quota. Remaining 80% of the posts of Junior Accounts Assistant (JAA) are filled by direct recruitment through the agency of Railway Recruitment Board. The recruitment of such persons recruited as Jr. Accounts Assistants (JAA) is subject to the condition that they will have to pass Appendix-II (IREM) Examination within a period of three years of their appointment and in two chances failing which they are liable to be discharged from service. As per para 171(5) of IREM, Volume I (Edition 1989) (Annexure R/1), the posts in the grade of Accounts Assistant (AA) (Rs. 1400-2600) are filled by promotion from Junior Accounts Assistants (JAA) after they have completed three years service as JAA and have qualified App-II Examination provided that the condition of passing the Appendix-II examination will not be applicable to those JAAs who were promoted as such from the lower post of Accounts Clerk against non-qualified senior suitable quota. Further, passing of App-II Exam and completion of three years service as JAA does not confer any right to the employee for promotion as Accounts Assistant as the promotion as Accounts Assistant can be done only against the availability of vacancy in the category of Accounts Assistants and on seniority-cum-suitability basis. This is the statutory position regarding appointment to Accounts Assistants grade which categorically stipulates that this is not only promotion but there is also prescribed eligibility criteria viz 3 years service in JAA grade. Thus, JAAs post constitutes as feeder for promotion to AAs post. Further, on appointment/promotion as Accounts Assistant from Junior Accounts Assistant, the employees are also allowed benefit of pay fixation under FR-22C as admissible in case of promotion to the post having higher duties and responsibilities.
10. It is further stated that Railway Board vide letter No. PCIV/86/Imp/30 dated 18.06.1987 (Annexure R/2) had issued instructions for revision of ratio of number of posts of CG-I and Sub-Heads (revised designations JAA & AA respectively as under:-
IV CPC Pay Scale Ratio Clerks Grade I including existing sub heads.
Rs. 1400-40-1600-50-2300-EB-60-2600 Rs. 1200-30-1560-EB-40-2040 80% 20% Railway Board vide letter No. E(NG)I-86-PM9/4 dated 27.8.1987 (Annexure R/3) had issued further instructions that the staff in Grade Rs. 1200-2040 will be designated as Junior Accounts Assistant and those in Grade Rs. 1400-2600 will be designated as Accounts Assistants and the staff in Grade Rs. 1200-2040 will be eligible for promotion to the higher grade after rendering minimum three years non-fortuitous service in Grade Rs. 1200-2040 provided they have passed App-II Examination. During the project stage of D.M.W., the residency period for promotion from Junior Accounts Assistant to Accounts Assistant was relaxed from 03 years to 02 years vide Railway Boards letter No. E(NG) I 86 PM 9-8 dated 20.12.1988 (Annexure R/5). Accordingly, the applicants at Sr. No. 5, 6 & 8 were given the benefit of this relaxation.
11. Written arguments have been submitted on behalf of the applicant reiterating the content of the OA. Reliance has also been placed on order dated 26.8.2007 in OA No. 335/2007 of CAT Madras Bench in the Railways titled V. Venkataraman Vs. UOI (Annexure A/12) upheld by the Honble High Court of Madras in Writ Petition No. 2112/2009 vide order dated 10.10.2010 and Apex Court vide order dated 04.01.2012 holding that upgradation from Junior Accounts Accounts Assistant to Accounts Assistant in terms of restructuring of posts does not amount to promotion. It is also stated that the claim of the applicants is covered by the Judgement dated 29.09.2009 passed in Writ Petition No. 559 of 2008 by the Honble High Court of Bombay, Nagpur Bench in the case titled Union of India and another versus Shri Eknath Walgu Humne, upholding the Order dated 13.07.2007 of the Ld. Central Administrative Tribunal, Nagpur Bench in O.A. No. 2076/2006. In this case also the similar restructuring of Accounts Staff in Accounts Cadre had taken place in the year 1987 with restructuring scheme upgrading 80% post of Auditors/ Accountants as Senior Auditors/ Accountants while remaining 20% posts as Auditors/ Accountants. Reference has also been made to order of the CAT Chandigarh Bench dated 6.8.2014 in OA. No. 1122/PB/2013 titled Jarnail Singh Vs. UOI through which the impugned order was quashed to the extent that it denied the benefit of ACP/MACP in the guise of alleged promotion. It has also been stated that merely because the employer used the word Promotion in the letter annexed as Annexure A-8 collectively and Annexure A-7 collectively, would not change the nature of the benefits accrued and to be given to the applicants.
12. Learned counsel for the respondents stated that recovery could not be held to be irregular in case of applicants No. 3, 5, 6 & 8 as show cause notice had been issued to them before withdrawal of benefit of the third MACP that had wrongly been allowed to them and the recovery had been ordered after taking into account the replies of the applicants in this regard. Learned counsel also stated that due process of promotion of the applicants from the level of JAAs to AAs had been followed. He also submitted the written arguments to counter those submitted by the learned counsel for the applicants and stated that since none of the applicants was in the service of the Railways as on 1.4.1987, therefore, there was no question that they were placed in the higher post from Junior Accounts Assistant to Accounts Assistant during restructuring. In fact, they were promoted as AAs in the normal channel with due reference to seniority-cum-suitability. Since the applicants had earned one promotion from the normal channel from JAA to AA, they were not entitled to first ACP on completion of twelve years of service and hence there was no merit in this OA. Learned counsel has further submitted that the applicants in this OA are not covered in the matter of Sh. Eknath Walgu Humme because he was appointed as UDC/Auditor in the year 1973 and his service as Auditor was upgraded to the post of Senior Auditor since 01.04.1987 under restructuring. Even the case of Jarnail Singh (supra) was distinguishable as he was appointed as Junior Engineer w.e.f. 17.12.1990 and he was claiming that his next promotion was promotion to higher scale under cadre restructuring.
13. We have given our thoughtful consideration to the matter. From the material on record, it is evident that the claim of the applicant in the present OA is distinguishable from the cases of Sh. Venkataraman (supra) and Eknath Walgu Humme (supra) as these relate to persons who were in the service of the Railways prior to 1.4.1987 when restructuring took place and hence their upgradation to the higher level was not to be treated as promotion. However, in the present case, the applicants joined service after 1.4.1987 and they were promoted through the normal process from JAA to AA. Hence, their appointment as AAs clearly took place as a result of promotion and hence, they cannot claim eligibility for the first ACP. The case of Jarnail Singh (supra) is also distinguishable on facts as that matter relates to a different cadre of staff.
14. So far as the claim for non-recovery of amount wrongly released to applicants No. 3, 5 6 & 8, it is clear even by their own admission that they were wrongly allowed third MACP as they had not completed 30 years of service. A bonafide error can always be corrected and since over-payment has been made to the applicants, they are liable for recovery of such over payment. Besides, since the amount is being recovered in instalments, they cannot have any grievance in this regard. Hence, we conclude that there is no merit in this OA and the same is rejected. No costs.
(RAJWANT SANDHU)
MEMBER(A)
(DR. BRAHM A.AGRAWAL)
MEMBER(J)
Dated: November , 2014.
ND*
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OA. 1673/PB/2013