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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.

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.

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.

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.