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Mr. P.K. Basu, Member (A) The applicant is aggrieved by the Show Cause Notice (SCN) dated 18.06.2012 and the final order passed pursuant to that SCN dated 3.09.2012 by which the respondents have withdrawn the third financial upgradation under Modified Assured Career Progression Scheme (MACPS) in Grade Pay of Rs.5400/- with effect from 1.09.2008 on the ground that as on that date neither had he completed 10 years service in the earlier Grade Pay of Rs.4800/- nor completed 30 years from the date of direct entry in service i.e. as Traffic Apprentice and before completion of 10/30 years of service, the applicant will be retired from service on 31.12.2012 on attaining the age of superannuation.

(Due to merger of Gr.6500-10500, 7450-11500 in GP 4600/- under 6th Pay Commission)."

3. The respondents' case is that according to MACP guidelines, the applicant has to complete 30 years of regular service to be eligible for third upgradation or he has to complete 10 years service in the previous Grade Pay. The dispute arises because though the applicant joined as a Traffic Apprentice on 18.02.1980, he was appointed on a regular basis on 12.03.1983. Therefore, the respondents contend that counting from 12.03.1983, the applicant completes 30 years in the year 2013 whereas he has retired on 31.12.2012 without completing 30 years. Secondly, he was granted second MACP on 1.09.2008 in the Grade Pay of Rs.4800/-. Therefore, he doesn't complete 10 years service in Grade Pay Rs.4800/- till the time he retires. On both counts, therefore, the applicant is not eligible for third upgradation under MACPS. Per contra, the applicant argues that since he joined as Traffic Apprentice on 18.02.1980, his service should be counted from that date, in which case he completes 30 years of service on 18.02.2010 and, therefore, is eligible for third upgradation, which was earlier granted in Grade Pay Rs.5400/- with effect from 1.09.2008.

It is contended that in view of the clear finding of the Hon'ble High Court of Delhi, the period of training cannot be counted for the purpose of ACP and, therefore, the respondents have rightly counted the eligibility period from 12.03.1983.

10. We have heard the learned counsel for the parties, gone through the pleadings available on record and perused the judgments cited.

11. There is no difference of opinion between the counsels on the fact that the applicant was promoted to the pay scale of Rs.700-900 (Rs.2000-3200) with effect from 1.08.1982 (proforma basis) and on 1.08.1983 on regular basis. From the service book, it appears that the applicant was appointed as Trainee on 18.02.1980 as Traffic Apprentice in the scale of Rs.425-455. He was promoted to the scale of Rs.700-900 on proforma basis with effect from 1.08.1982 and on regular basis from 1.08.1983. Therefore, he had received one clear promotion in his career upto that point and there is no dispute regarding this either. His second promotion from Rs.2000-3200 (Rs.6500- 10,500) to Rs.2375-3500 (Rs.7450-11500) should not be counted as a promotion as according to the applicant, all posts in the pay scale of Rs.6500-10500 were granted the replacement pay scale Rs.9300-34800 with grade pay Rs.4600/-. The applicant has not produced this order. But the Ministry of Finance, Department of Expenditure had indeed issued an OM dated 13.11.2009 whereby it granted the grade pay of Rs.4600/- in PB-2 to those posts which were in the erstwhile pay scale of Rs.6500-10500. Further, the applicant did produce copy of Railway Board's order of 2008 (Annexure A-3) introducing the new pay scales in which Deputy Station Superintendent in the erstwhile scale of Rs.6500-10500 has been indicated to be in the grade pay of Rs.4600/- in PB-2. Therefore, there can be no doubt that both pay scales namely Rs.6500-10500 and Rs.7450- 11500 were granted the same revised grade pay of Rs.4600/- and in accordance with para 5 of MACP guidelines, this has to be ignored. Para 5 is quoted below for easy reference:

Therefore, it appears that it will depend upon facts involved in a particular case.

13. In the appointment letter dated 29.01.1980, the following clause is incorporated:

"6. After completion of the training satisfactorily, and after you passed the requisite examinations, you will be appointed as a Traffic Apprentice grade Rs.425/- on the Division, subject to vacancies being available and on the following conditions.''

14. This will show that the appointment as Traffic Apprentice was promised to be made only after the applicant completes training satisfactorily and after he passes the requisite examination and further subject to availability of vacancies.