Central Administrative Tribunal - Madras
V Venkataraman vs M/O Communications on 20 September, 2023
1 OA 310/00055/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
ORIGINAL APPLICATION NO.310/00055/2019
Dated the 20th day of September, Two Thousand Twenty Three
CORAM :
HON'BLE MRS. LATA BASWARAJ PATNE, Member (J)
Venkataraman,
S/o.T.V.Viswanathasharma,
No.11/82, V-1, Srinagar,
II Street, Chettipalayam Road,
Podanur, Coimbatore-641 023. .. Applicant
By Advocate M/s. R. Malaichamy
Vs
1. Union of India,
Rep. by the Postmaster General,
Western Region (TN),
Coimbatore - 641 002.
2. The Senior Superintendent of Post Offices,
Coimbatore Division,
Coimbatore-641001.
3. The Senior Postmaster,
Coimbatore Head Post Office,
Coimbatore-641 001. .. Respondents
By Advocate Mr. Shakila Anand
2 OA 310/00055/2019
ORAL ORDER
(Pronounced by Hon'ble Mrs LATA BASAWARAJ PATNE, MEMBER(J)) The applicant has filed the OA under Section 19 of Administrative Tribunals Act, 1985 seeking the following relief:
1. To call for the records of the 3rd Respondent pertaining to his order which is made in C/Pension/31463-LPS dated 08.10.2013 and set aside the same; consequent to,
2. direct the Respondents to refund the amount of recovery of Rs.1,18,078/- to the Applicant with 12% interest, also
3. direct the Respondents to grant 2nd & 3rd MACP benefits to the Applicant and thereby to pay the arrears of pay and allowances and also to revise and re-fix the retirement service benefits of the Applicant and to pay the arrears to the Applicant; and
4. To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case as submitted by the applicants in nutshell are as follows:
The applicant initially entered in to the Postal Department as Extra Department Agent(now Gramin Dak Sevak-GDS) on 17.04.1974.
While working as such, he appeared for examination for recruitment to the cadre of Group D and on coming out successful, he was appointed as Group D w.e.f 13.03.1978 and thereafter he appeared for departmental examination for appointment to the post of Postman and appointed as Postman. Thereafter, he appeared for departmental examination for appointment to the cadre of Postal Assistant and was selected and appointed as Postal Assistant on
3 OA 310/00055/2019 09.05.1983. The applicant was granted TBOP benefit on completion of 16 years of service from the date of appointment to the cadre of Postal Assistant. He was also granted BCR benefit on completion of another 10 years of service w.e.f 01.07.2009. Thereafter, he retired voluntarily from service w.e.f 17.04.2010. Since the MACP scheme was introduced retrospectively w.e.f. 01.09.2008, the BCR benefit given to the applicant was cancelled by the 2nd respondent vide order dated 06.06.2012, i.e., after 2 years from the date of his retirement and recovery of a sum of Rs.1,18,078/- from the pension amount of the applicant was also ordered by monthly instalment at the rate of Rs.6000 per month started from October 2013. The grievance of the applicant is the appointment earned by way of competitive examination, that too, by way of direct recruitment could not be taken into account for considering grant of MACP benefits. The benefit granted under the TBOP is to be counted towards 1 st MACP benefit. Since the BCR benefit given was cancelled, the applicant is entitled for 2nd and 3rd MACP benefits. The Principal Bench of CAT, vide order, dated 03.11.2015 in OA 3765/2011, has allowed similar nature of case. The applicant also contended that reduction of pension in his case, that too, two years after his retirement, is a clear violation of Rule 70 of CCS (Pension) Rules 1972 since there is no clerical error as stipulated under Rule 70. Therefore, he has made a representation dated 02.02.2016 to the 2nd respondent requesting to refund the recovered amount and to restore his original pension of Rs.8535/-. Since there is no reply, the applicant 4 OA 310/00055/2019 has filed the OA for the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and filed a detailed reply statement. It is contended that the applicant was initially appointed as GDS and then appointed in the departmental cadre of Group D on 13.03.1978 and was selected and appointed as Postman on 06.03.1982 through LDCE and subsequently got promotion to the Postal Assistant cadre on 09.05.1983 through LDCE. He was also granted TBOP on completion of 16 years of service w.e.f 19.05.1999 and BCR w.e.f 01.07.2009 on completion of 26 years of service and retired voluntarily on 17.04.2010. As per the provisions of MACP Scheme there shall be three financial upgradations under MACP Scheme counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively. Financial upgradation under this scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay. In this case, the applicant's direct entry was Group D cadre in the year 1978 and promotion to Postman cadre will be 1 st financial upgradation, promotion to Postal Assistant will be 2nd financial upgradation and grant of TBOP benefits will be third financial upgradation. As per Directorate memo No.35034/3/2008- Estt(D) dated 09.09.2010, if the Government servant had already earned three promotions, he would not be entitled for any further upgradations under the MACP Scheme and hence the BCR promotion granted w.e.f 01.07.2009 was cancelled, vide office memo, dated 06.06.2012, as per the MACPS orders received, vide Directorate 5 OA 310/00055/2019 memo, dated 18.09.2009, and as per the directions of Senior AO, vide order dated 22.06.2011 and recovery of excess paid allowances from the applicant was ordered, vide office memo dated 06.02.2013 and 20.08.2014. The respondents also raise the ground of delay, since the applicant has filed this OA only on 14.07.2016, whereas the BCR benefits was cancelled on 06.06.2012 and recovery was effected in the year 2013. Hence the respondents pray for dismissal of the OA.
4. The applicant has filed a rejoinder reiterating the contentions made in the OA .
5. Heard both sides and perused the material placed on record.
6. When the matter is taken up for hearing, learned counsel on both sides submit that in a similar matter this Tribunal has dismissed the said OA and the order of the Tribunal has been challenged before the Hon'ble High Court of Madras in WP No.16818 of 2016 by the applicants and the same has been dismissed by the Hon'ble High Court of Madras.
7. Learned counsel for the respondents submits that in similar issue, Cuttack Bench of this Tribunal after elaborate discussions has disposed of a batch of matters in OA 1023/2014. The operative portion of the order which reads as under: paras 15 to 18 "15. From the discussions above, it is clear that as per the Recruitment Rules, 1971 under which the selection to the post of Postal Assistant has been carried out, 50% of the posts are to be filled up by promotion through LDCE and 50% by direct recruitment. As held by Hon'ble Rajasthan High Court in the case of Dev Karan Mahala (supra) and Ram Karan Kumhar (supra), the appointment/selection to a 6 OA 310/00055/2019 higher post through LDCE is to be treated in accordance with the Recruitment Rules. The decision in the case of Dev Karan Mahala (supra) has been challenged by filing the SLP before Hon'ble Apex Court, which is pending as observed in the order dated 30.9.2019 of Hon'ble Delhi High Court in W.P. (C) 2806/2016 in the case of Union of India vs. Shakeel Ahmad Burney. The order dated 18.7.2019 of this Tribunal in OA No. 702/2012, which has been cited by the applicant's counsel was passed following the judgment dated 5.8.2014 of Hon'ble Delhi High Court in the case of Union of India vs. Shakeel Ahmad Burney, which was reviewed subsequently in the R.P. No. 441/2014 as discussed in the order dated 17.11.2015 of Ahmedabad Bench of the Tribunal in OA No. 219/2015 (vide para 11 of this order). The fact that the judgment dated 5.8.2014 was reviewed by Hon'ble Delhi High Court subsequently was not considered by the Tribunal while passing the order dated 18.7.2019 in the OA No. 702/2012. Further, in the said order, the provisions of the Recruitment Rules of 1971, which are extracted in the judgment of Hon'ble Punjab and Haryana High Court in the case of Senior Superintendent of Post Offices, Karnal Division, Karnal and others vs. Nand Kishore & another Civil Writ Petition No. 4829/2015 vide para 12 above, have not been considered. For these reasons, the order dated 18.7.2019 of this Bench of the Tribunal will not be applicable to the present OA.
16. We take note of the fact that in such cases, in spite of the litigations and disputes raised by the employees in different coordinate Benches of this Tribunal on this issue, no clarification or 16 guidelines regarding the point whether the selection under the Recruitment Rules in question is to be treated as promotion or direct recruitment has been issued by the respondents/competent authority. In case the notification for the LDCE and appointment order of the selected candidates mention clearly the rules under which the selection is being made, stating whether it is promotion or direct recruitment, then the disputes like the present O.A. can be avoided.
17. In view of the foregoing discussions, we are unable to allow the reliefs sought for in this OA as well as other OAs in this batch and are of the view that in view of the judgments as discussed above and taking into consideration the fact that the SLP (C) Diary No.4793 of 2019 in the case of Dev Karan Mahala v. Union of India is pending before Hon'ble Apex Court as observed in the order dated 30.9.2019 of Hon'ble Delhi High Court in W.P. (C) No. 7 OA 310/00055/2019 2806/2016 in the case of Union of India vs. Shakeel Ahmad Burney, the question at Para-8 of this order as to whether the appointment of the applicants as Postal Assistant through LDCE in these OAs can be considered as promotion or direct recruitment, can be answered finally after disposal of the SLP(C) Diary No.4793 of 2019. Accordingly, we dispose of these OAs with direction to the respondents to consider the grievance of the applicants in accordance with the orders of Hon'ble Apex Court in the SLP (C) Diary No.4793 of 2019 in the case of Dev Karan Mahala vs. Union of India. Under the circumstances, there will be no order as to costs.
18. The Registry is to send a copy of this order by Post to the Respondent No.1 to consider action as deemed appropriate on Paragraph-16 of this order. "
8. Learned counsel for the respondents further submits that similar issue has been challenged before the other Benches of this Tribunal and the decisions are for and against the applicants therein and finally the matters are pending before the Hon'ble Supreme Court and the Department vide memorandum No. 4-7/MACPS/2019- PC dated 29.09.2021 submitted in para 3 the details of the SLPs. The said memorandum is extracted herein below:
No. 4-7/MACPS/2019-PCC Government of India Ministry of Communications Department of Posts Dak Bhawan, Sansad Marg, New Delhi - 110001 Date : 29.09.2021 To
1.All Chief Postmasters General I Postmasters General
2.Chief General Manager, Parcel /BD / PLI Directorate / CEPT.
3.Director, RAKNPA / Directors of All PTCs
4.Addl. Director General, Army Postal Service, R.K.Puram, New Delhi
5.All General Managers (Finance) / Directors Postal Accounts Sub: Clarification on Modified Assured Career Progression (MACP) Scheme -reg.
Sir / Madam, 8 OA 310/00055/2019 This refers to various references/representations seeking the benefit of financial upgradation under MACP Scheme by treating promotion earned through limited departmental competitive examination (LDCE) at par Direct Recruitment in terms of Hon'ble Supreme Court Judgment dated 16.08.2016 in Special Leave Petition to Appeal (C) No. 4848/2016 in the case of D.Sivakumar.
2. In this regard, it is informed that Hon'ble Supreme Court had left the question of law open in D.Shivakumar case hence; the Hon'ble Apex Court has not decided the issue on merit. Therefore, there is no question of any binding precedent laid down by the Supreme Court.
3. Further, since the question of law on the issue as to whether the promotion earned through Limited Departmental Competitive Examination (LDCE) is to be treated at par Direct Recruits or otherwise, is still under consideration before Hon'ble Supreme Court in various similar tagged cases vis CA 4432/2019 Union of India Vs E. Sreeramulu, SLP (C) No. 023649/2019 Union of India Vs. K.Ranganatha Pillai, S.L.P. (Civil) No. 26561 of 2019 Kharati Lal & Others Vs UOI and SLP (C) No. 11997/2019 Dev Karan Mahala Vs UOI etc., the similar cases are to be defended on their merits on the basis of grounds provided vide this Directorate letter No. 15.11.2019.
4. As such, each and every case must be dealt on its merits as per the instructions of MACP Scheme. However, in order to make a better understanding on the issue vis-a-vis clarification issued vide this Directorate OM of even No. dated 06.09.2021, the following symbolic illustrations are mentioned below:-
i. If a Central Govt. employee, who was appointed (direct entry) as Postman, earns regular promotion to the post Postal Assistant (through LDCE), granted TBOP and then earns another promotion to Inspector Posts cadre (through LDCE), no financial upgradation under MACP Scheme shall be admissible to him/her. The modalities for financial upgradation and pay fixation thereon shall be as follows:-
Event w.e.f Pay Scale Remarks
Postman 01/01/89 825-1200 Entry Grade
Postal 01/01/92 4000-6000 Regular promotion through
Assistant LDCE. Pay fixation under
FR-22(I)(a)(1). Reckoned as
1st offset MACP
TBOP 01/01/08 GP Rs. Pay fixation as per FR-22(I)
2800 (a)(1). Reckoned as 2nd
offset MACP.
Inspector 01/01/06 GP Rs. Regular promotion through
Posts 4600 LDCE. Pay fixation under
FR-22(I)(a)(1). Reckoned
as 3rd offset MACP.
ii. If a Central Govt. employee, who was appointed (direct entry) as MTS, earns three regular promotions to the posts vis 1st Lower Division Clerk (LDC), 2nd Junior Accountant, 3rd Senior Accountant in Postal Accounts Offices before completion of 30 years of service from direct entry grade, no financial upgradation under MACP Scheme shall be 9 OA 310/00055/2019 admissible to him/her. The modalities for financial upgradation and pay fixation thereon shall be as follows:-
Event w.e.f Pay Scale Remarks
MTS / Sorter 01/01/87 825-1200 Entry Grade.
LDC 01/01/96 3050-4590 Regular promotion through
LDCE. Pay fixation under
FR-22(I)(a)(1). Reckoned
as 1st offset MACP.
Jr. Accountant 01/01/06 GP Rs. Regular promotion through
2800 LDCE. Pay fixation under
FR-22(I)(a)(1). Reckoned
as 2nd offset MACP.
Sr. Accountant 01/01/10 GP Rs. Regular promotion. Pay
4200 fixation under FR-22(I)(a)
(1). Reckoned as 3rd offset
MACP.
5. Further, the competent authority has advised to all administrative units to ensure timely review and disposal, thereon, of all the pending representations/cases on the issue in the light of this clarification as well as that of issued vide this Directorate OM of even No. dated 06.09.2021. A line of compliance may also be appraised to this Directorate.
6. It is therefore, requested to bring this clarification to the notice of all concerned immediately and ensure strict adherence in true spirit.
Yours faithfully, (D.K. Tripathi) ADG (GDSA/PCC) Tel. - 23096629 [email protected] Copy to :-
1. As per standard list.
2. CGM, CEPT for uploading the order on the India Post web site under Establishment subject.
3.Guard File."
9. Learned standing counsel for the respondents submits that the OA can be disposed of by taking into account all the SLPs pending before the Hon'ble Supreme Court as mentioned in the OM.
10. Learned counsel for the applicant submits that the applicant has no objection to dispose of the OA subject to the outcome of the SLP as mentioned in the above said OM.
11. In view of the above, as the matter is subjudice before the 10 OA 310/00055/2019 Hon'ble Supreme Court by way of different SLPs, and in view of the order dated 11.01.2023 passed by this Tribunal in similar batch of cases in OANO.1198 of 2014 and batch, the OA is disposed of with a direction to the respondents to extend the benefit to the applicant as prayed for subject to the outcome of the decision is taken by the Hon'ble Supreme Court in the pending SLPs including SLP(C) Diary No.4793 of 2019.
12. OA is disposed of as above. No order as to costs.
(LATA BASWARAJ PATNE) MEMBER(J) 20.09.2023 MT