Central Administrative Tribunal - Ahmedabad
Mudasseril N Narayanan vs M/O Personnel,Public Grievances And ... on 19 March, 2021
(CAT/AHMEDABAD BENCH/OA No.347/2015) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH, AHMEDABAD
Original Application No.347 of 2015
Dated this the 19th day of March, 2021
Reserved on: 01.02.2021
Pronouncement on: 19.03.2021
CORAM :
HON'BLE SHRI JAYESH V BHAIRAVIA, MEMBER (J)
HONBLE DR A K DUBEY, MEMBER (A)
1. Mudasseril Narayanan Narayanan
(M.N.Narayanan)
(Retired as Administrative Officer SAC, ISRO, Ahmedabad)
Aged: 61 years (DoB) being 24.11.1953)
Son of Shri Krishna Menon & presently residing at No.602, Earth Building,
Rajhans Campus, Opp.Rajhans Theatre,
Pal, Adajan,
SURAT - 395 009. ..Applicant
(By Advocate Mr.M.S.Rao)
Vs.
1. Union of India
(to be represented through its Secretary to the Government of India
Department of Space, Government of India,
Antariksh Bhavan, New BEL Road,
BANGALORE 560 231.
2. Space Applications Centre
(Through its Director, Space Applications Centre,
Department of Space, Govt. of India
Satellite, AHMEDABAD 380 015.
3. The Secretary to the Government of India,
Department of Personnel,
Ministry of Personnel, Training & Pensioners‟ Grievances,
Govt. of India,
North Block,
NEW DELHI 110 001. ... Respondents
(By Advocate Ms.R.R.Patel)
(CAT/AHMEDABAD BENCH/OA No.347/2015) 2
ORDER
Per Dr. A. K. Dubey, Member (A)
1. The applicant has preferred this application seeking the following reliefs:-
"A) Your Lordships may be graciously pleased to call upon the official respondents herein to place before this Hon'ble Tribunal the entire original departmental file/noting sheet, etc., pertaining to the applicant's case for the grant of 3rd Financial Upgradation w.e.f. 1.9.2008 under the MACP Scheme of the Govt. of India.
B)Quash and set aside the decision, as conveyed in the communication dated 30.04.2014 at Annexure-AI hereto, holding the same as arbitrary, unreasonable, discriminatory and as running counter to the documents viz. The DoS, ISRO Bangalore Office Memorandum No.HQ:ADMN:
4.20(2) dated 8th March 1983 at Annexure-A/4 hereto and also the CAG's Circular No.20/NGE/2008, dated 31.07.2008 at Annexure-A/11 hereto:
C) Your Lordships may be further graciously pleased to hold and declare that in view of the contents of the documents viz. The DoS ISRO Bangalore Office Memorandum No.HQ:ADMN:4.20(2) dated 8th March 1983 at Annexure-A/4 hereto and also the CAG's Circular No.20/NGE/2008, dated 31.07.2008 at Annexure-A/11 hereto, the applicant herein is lawfully entitled to be considered and granted the 3rd financial upgradation under the MACP w.e.f. 1.9.2008, inasmuch as the applicant's selection and posting as Junior Stenographer in the year 1975 cannot be construed as a promotion.
(D)issue appropriate directions to the respondent herein to (i) forthwith convene a review screening committee for the purpose of the reconsideration of the applicant's case for the grant of 3rd financial upgradaton w.e.f. 1.9.2008 upon his completion of 30 years of regular service to be reckoned from 25.08.1975 in view of the contents of the documents viz. the DoS, ISRO Bangalore Office Memorandum No.HQ;ADMN:4.20 (2) dated 8th March 1983 at Annexure-A/4 hereto and also the CAG's Circular No.20/NGE/2008, dated 31.07.2008 at Annexure-A/11 here to and (ii) forthwith grant 3rd financial Upgradation to the applicant herein w.e.f. 1.9.2008, with all consequential benefits flowing there from including the arrears of salary, revision in pension with arrears of pensional dues, together with interest thereon at the rate of 18% p.a. till the date of actual payment to the applicant herein."
2. Main contentions in the OA are briefly mentioned as under:-
2.1 The applicant was initially appointed as a typist in the scale of 110-3-131-4-
155-EGB-4-175-5-180/- w.e.f. 13.02.1973 (Annex.A/2). In 1975, he successfully cleared the written and stenography test as part of the recruitment procedure and came to be appointed as Stenographer in the scale of Rs.380-12-440-EB-15-560-EB-20-640/- vide Memorandum No. EST/PER/3.4/75 dated 25/8/1975 (Annex. A/3). The applicant contends that although the memorandum reads that he was promoted to the post of Junior Stenographer (consequent upon test and interview), it was not a (CAT/AHMEDABAD BENCH/OA No.347/2015) 3 "promotion‟ as the clarification in OM. bearing HQ.ADMN:4.20(2) dated 08.03.1983 (Annex.A/4) unambiguously amplifies in its para 2. Further, the stenographers‟ scale itself was revised from 1400-2300 to 1400-2600 and pay fixation and increments date were ordered accordingly vide office order EST/PC/IC/1/1990 dated 16.09.1990 (Annex.A/5). The post of stenographer was redesignated as Personal Assistant with pay scale 5500-9000 as per 5th CPC Scales (Annex.A/6).
2.2. With introduction of ACP by 5th CPC, the applicant was granted second financial upgradation on completion of 24 years of service vide office order dated 12.05.2000. He contends that this upgradation reckoned his service from 25.08.1975 i.e., the date on which he was appointed as Junior Stenographer. Then, the applicant was promoted as Assistant Administrative Officer and joined on 28.11.2000 at ISRO, New Delhi. His pay was fixed in the scale 6500-10500 (ACPS) vide order No.2(2)2000- ISRO dated 16.04.2001 (Annex.A/7). Later, on transfer, he joined at SAC, Ahmedbad as A.A.O where he was granted promotion in officiating capacity to the rank of "officer" in the scale of 8000-13500 w.e.f. 4.2.2004 until further orders and thereafter, vide office order EST/3.20/2004/2 dated 05.02.2004 (Annex.A/8) his pay was fixed. Consequent to 6th CPC pay revision, he was granted the PB 3 scale+GP5400 w.e.f. 1.1.2006 while serving as Administrative Officer.
2.3 Vide DoP&T OM dated 19.05.2009 (Annex.A/9), MACP scheme was introduced which said that upon completion of 30 years of service, one would be entitled to a third financial upgradation. Applicant‟s contention is that in his entire career, only two promotions were given to him: first, the promotion as PA and second as Administrative Officer. He submitted that his case was probably not placed before the Screening Committee. Later, the applicant retired voluntarily w.e.f. 02.08.2010 vide office order dated 02.08.2010 (Annex.A/10). The applicant contends that OM dated 08.03.1983 (Annex.A/4) and CAG‟s Circular dated 31.07.2008 (Annex.A/11) made it clear that he ought to have got third upgradation treating his elevation to Junior Stenographer in 1975 not as promotion. The applicant got a copy of the from OM dated 08.03.1983 (Annex.A/4) by way of reply to his RTI request which, in his opinion, clearly established that his (CAT/AHMEDABAD BENCH/OA No.347/2015) 4 elevation as Junior Stenographer was not a promotion but a recruitment by transfer. In this backdrop, he submitted his formal representation (Annex.A/2) asking for 3rd upgradation under MACP which was not considered.
2.4 The applicant has also filed Miscellaneous Application for Condonation of delay in filing the OA before this Tribunal on the plea that he could submit his representation only after getting the requisite information under RTI Act, contending that denial of 3rd upgradation to him under MACP was based on a wrong promise.
3. Respondents have filed their combined reply to both OA and M.A. Respondents mainly contend that the elevation from typist to Stenographer was a promotion. Then on completion of 24 years‟ of service, the applicant got his upgradation under ACP on 25.08.1999. He was re-designated as PA "A" w.e.f. 31.12.1999 vide office order dated 13.01.2000 (Annex.A/6). Thereafter, the applicant was promoted to the rank of Assistant Administrative Officer in the year 2000, which was his second promotion. (He was already in that scale because of 2nd ACP granted on 24 years‟ of service). Finally, he was promoted as Administrative Officer in the scale 8000-13500 (revised in 6th CPC to PB 3 plus GP 5400) which was his third promotion. Respondents have put a copy of reply dated 10.11.2015 to the applicant in response to his representation (Annex.R2) which clearly indicates the sequence of upgradation/promotion granted to the applicant.
4. Heard the counsel for the applicant and the respondents. 4.1 Learned Counsel for the applicant mainly argued that in view of the clarification of Annex.A/4, the first promotion could not be treated as a "promotion" in its usual sense. After receipt of this information, the applicant could give his representation. Quoting CAG‟s clarification dated 31.07.2008 through circular No.20/NGE/2008 (Annex.A/11), he further contended that those Stenographer Grade III appointed from the post of clerks after qualifying LDCE for promotion as Stenographer will be treated as direct recruits and would be entitled to the 1st and 2nd financial upgradation under ACP on completion of 12 to 24 years respectively of regular service in the cadre. Hence MACP benefits eligibility would count w.e.f. date of joining as Junior Stenographer, he argued Later the applicant was re-designated as PA "A" in the scale of 5500-9000. Obviously a mere (CAT/AHMEDABAD BENCH/OA No.347/2015) 5 re-designation cannot be treated as promotion. Then he was promoted as AAO in the scale of 6500-10500. Learned counsel for the applicant drew attention to the illustration in para 5(a) & (b) and stated that in this case too, being in the scale of 6500-10500 or 5500-9000 should be ignored and he should get his second upgradation. He further argued that his promotion to the Administrative Officer grade being a substantive one, alone should be counted and he should get the 3rd upgradation on completing 30 years of service, as provided in the rules on MACP. He also clarified that the applicant voluntarily retired only in April 2010 and although he was eligible for 3rd upgradation under MACP, his case was not put up before the Screening Committee.
5. Per contra, learned counsel for the respondents argued that promotion as Jr. Stenographer was very much a promotion as clearly mentioned in the order itself (Annex.A/3). Counsel also stated that even the OM dated 8/3/1983 (Annex.A/4) does not say it is a direct recruitment; it only says that filling up of vacant posts of Jr.Steno was only a "recruitment by transfer". Obviously this transfer is of existing staff. In this regard, she referred to the judgment of Hon‟ble High Court of Punjab & Haryana in Nand Kishore And Anr. v. Uma Krishnan and Anr. (Civil Writ Petition No.4829/2015) passed on 23.01.2019 which said that promotion based on limited departmental competitive examination has to be treated as promotion for ACP. The counsel submitted further that the applicant was given 2nd financial upgradation w.e.f 25/8/1999 in the 6500-10500 scale (as per V CPC scales since he completed 24 years of service on that day when counted from 25.08.1975). The applicant was substantively promoted to the Assistant AO Post w.e.f 27.11.2000. Then he received yet another promotion to AO‟s scale w.e.f 04.02.2004. This was again during the fifth CPC regime. This way, he had received 3 promotion/upgradation. In this context, instruction in sub para „C‟ of para 28 (illustration) of the Annexure-1 of the OM No.35034/3/2008 -Estt.(D) dated 19.05.2009 of DoP&T on MACP (Annex.A/9) are relevant which reads as under:-
"If a Government servant has been granted either two regular promotions or 2nd financial upgradation under the ACP Scheme of August, 1999 after completion of 24 years of regular service then only 3rd financial upgradation would be admissible to him under the MACPS on completion of 30 years of service provided that he has not earned third promotion in the hierarchy."(CAT/AHMEDABAD BENCH/OA No.347/2015) 6
Accordingly, the applicant is not entitled to the 3 rd upgradation under MACP, she argued.
6. After hearing the counsel for both parties and perusal of the records, documents and contextual instructions brought before us, the clearly established and undisputed facts of this case are summarized as under:-
6.1 The applicant, initially appointed as typist, qualified in the departmental test and was promoted to the post of Jr.Stenographer w.e.f 25.08.1975 as per the Memorandum dated 25.08.1975 (Annex.A/3). Vide OM dated 08.03.1983, filling up of vacant post of Junior Steno was not a promotion but a recruitment by transfer.
6.2 The post of stenographer in the scale 1400-2600 under 4th CPC was re-
designated as Personal Assistant w.e.f. 31.12.1999 in the scale of 5500-9000 vide office order dated 13.01.2000. (Annex.A/6).
6.3 The applicant was promoted to the rank of AAO w.e.f. 28.11.2000 in the pay scale of 6500-10500 and accordingly, his pay fixation order was issued (Annex.A/7). Further, vide office order No.EST/3.20/2004/L dated 05.02.2004, he was further promoted to the rank of A.O. in the scale of 8000-13,500. This was his third promotion, after the second upgradation in 1999 and promotion in 2000.
7. We have also gone through the MACP Scheme and the clarification OM dated 08.03.1983 (Annex.A/3). In the OM dated 08.03.1983, the clarification in para 5 amplifies that "all eligible candidates in the feeder category can appear for both the tests (for seniority and merit) and panels will be drawn up separately. The panels will be valid for one year extendable by specific orders of the appointing authority in writing prior to the date of completion of one year from first approval. At the end of a total period of eighteen months the panel will cease to exist and cannot be extended." This, read together with the clarification at para 2 ibidem amplifies that filling up of vacant posts of Junior Stenographer by OCA‟s is not a promotion but a recruitment by transfer, and will, therefore, be based entirely on merit as for recruitment for amongst outside candidates. The same clarification also states that recruitment by transfer is in no way comparable to or linked with promotion to the post of OCB.
(CAT/AHMEDABAD BENCH/OA No.347/2015) 78. A harmonious reading of the clarification in para 2 & 5 make it obvious that it is about the mode of recruitment to facilitate horizontal movement of employees and in that sense, it is not taken as promotion. As a result of promotion, three things happen. First a higher scale of pay; second, a changed designation as per hierarchy; and third, pay fixation benefits under FR 22. When all the three are allowed, the upward movement is undoubtedly a promotion. Thus, we are inclined to accept the contention of the respondents that the upward movement of the applicant from the typist‟s post to the post of Junior Stenographer was a promotion. After that, on completion of 24 years of service without any upgradation or promotion, the applicant got 2nd upgradation under ACP by way of placement in the scale of 6500-10500 w.e.f. 25.08.1999, not accompanied by change in designation. This was in accordance with the provision contained in para 5.1 read with para 15 of Annexure 1 of the OM dated 09.08.1999 (Annex.R/1) (the steno‟s scale revision of 1400-2300 to 1400-2600 and re-designation of Steno‟s as PA-A are not taken as upward movement.) The third promotion was to the rank of A.O. in the pay scale 8000-13500 w.e.f. 04.02.2004 which involved all the three elements mentioned above.
9. The applicant voluntarily retired w.e.f 02.08.2010. The counsel for the applicant argued that the applicant should have got 3rd MACP benefit on completing 30 years from the date of appointment as Junior Stenographer. Here it is relevant to refer to para 1 of the Annexure-1 of OM No.35034/3/2008 - Estt(D) dated 19.5.2009 (Annex. A/9) which stipulates that the financial upgradation shall be admissible whenever a person has spent 10 years continuously in the same grade pay. Thus, here it is important to see whether any upgradation/promotion took place after 2 nd upgradation which was w.e.f 25.08.1999. The promotion to the AAO in scale 6500-10500 would not have allowed fixation benefit under FR(I)22
(a)(I) because of 2nd ACP. But it was a substantive promotion w.e.f 27/11/2000. As per the provision of MACP quoted in para 5 above, if a govt. servant had got two regular promotion or 2 nd financial upgradation under ACP of 08.01.1999 after completing 24 years, then only one financial upgradation is admissible on completion of 30 years of service provided that he has not been granted the third promotion, in the hierarchy.
(CAT/AHMEDABAD BENCH/OA No.347/2015) 810. In this case, the applicant got the third promotion over 3 years after the 2nd promotion. Taking into consideration the factual matrix of this case and the ACP/MACP rules/instruction and the records and documents brought before us, we find that the applicant has not been able to show any act of violation or non-compliance of any extant instruction with regard to the financial upgradation/promotion. Nor has he been able to establish any wrong or discriminatory interpretation of instructions by the respondents. In result, the OA does not succeed and hence dismissed. The MA No.332/2015 is also disposed of accordingly.
A.K.Dubey Jayesh V. Bhairavia (Administrative Member) (Judicial Member) SKV