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Judgment
Manish Garg, Member (J)
In the instant Original Application (OA), the applicant seeks following relief(s) :-
“(i) That the Hon’ble Tribunal may graciously be pleased to pass an order of quashing the against the orders dt.22.6.2017 (A/1) and notice dt. 17.5.17 (A/2), declaring to the effect that the same are illegal, unjust and arbitrary and consequently, the applicant is entitled for all the consequential benefits of 3rd financial upgradation under MACPS w.e.f. 1.3.20013 including restoration of pay and the refund of recovered amount if any in compliance of impugned orders.
(ii) That the Hon’ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 12.12.2011 and 27.6.2014 (Annex.A/3 & A/4), declaring to the effect that the same are illegal, arbitrary and against the law of the land.
(iii) Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicant.”
The brief facts as narrated by the Learned counsel for applicant are as follows:-
1 The applicant was appointed as Electrical Chargeman (ELC) w.e.f. 06.08.1986 on regular basis. He was promoted as Sr. Section Engineer in the pay scale of Rs.9300-34800+ Grade Pay of Rs.4600 w.e.f. 01.03.1993. Thereafter, he was granted 2nd financial upgradation and 3rd financial upgradation under MACP Scheme w.e.f. 01.09.2008 and 01.03.2013 respectively. However, Accounts/Const./K.Gate, Delhi pointed out that the applicant was erroneously granted the 3rd financial upgradation under MACP Scheme and advised that the action in regard to grant of 3rd financial upgradation may be taken as per Railway Board letter No. PC/2009/ACP/2 dt.27.06.2014 which states that “3rd financial upgradation is admissible either on completion of 30 years service from the date of initial appointment or further 10 years from the date of 2nd financial upgradation/Promotion whichever is earlier.” Thereafter, the benefit of 3rd financial upgradation under MACP Scheme which was already granted to the applicant w.e.f. 01.03.2013 was withdrawn and allowed w.e.f. 21.08.2016 after taking into account 15 days LWP. His pay was fixed accordingly vide the office letter dated 22.06.2017, after giving notice to the applicant. Aggrieved by the same, the applicant has filed this Original Application.
2.2 The learned counsel for the applicant would rely upon following case laws:-
(i) OA no.2354/2014 -H K Nijhawan and ors Vs UOI decided on 01.11.2017 and upheld by the Hon’ble High Court in WP No. 427/2019.
(ii) SLP ( c) No.31921/2018 - UOI and ors vs Manju Vashyishta and Ors decided on 17.08.2021.
Opposing the grant of relief(s), the learned Counsel for the respondents reiterates the averments made in the counter affidavit.
1 He would contend that as per Circular dated 29.12.2011, the applicant was erroneously granted the MACP benefits. The error was rectified after giving due notice to him.
2 The learned counsel justified the action and Impugned office order(s), which are subject matter of challenge.
3 While interpreting the Circular dated 29.12.2011, it has been contended that 3rd financial up-gradation would be admissible on completion of 30 years service from the initial appointment or 10 years from the date of 2nd financial upgradation/promotion, whichever is earlier. Thus, it has been contended that 3rd financial upgradation even assuming for the sake of arguments would be admissible on completion of 30 years service from the initial appointment from 06.08.1986, i.e., in the year 2016 and/or in alternative 10 years from the date of 2nd financial upgradation/promotion, i.e., w.e.f 01.09.2008 which comes to year 2018.
We have perused the records of the case and heard the respective counsels.
ANALYSIS:-
5.1 It is the interpretation of the Circular dated 29.12.2011 issued by the respondents is to be examined. The said Circular dated 29.12.2011 reads as under:-
“With reference to the above, it is mentioned that MACP Scheme envisages three financial up-gradations counted from the direct entry grade on completion of 10,20 and 30 years of regular service respectively. Financial upgradation under the Scheme is admissible wherever an employee has spent 10 years continuously in the same Grade Pay. Thus, 1st financial upgradation would be admissible on completion of 10 years of regular service from the date of actual joining of the post in the entry grade, 2nd financial upgradation on completion of 20 years service from the date of initial appointment or 10 years from the date of 1st financial upgradation/promotion and 3rd financial upgradation would be admissible on completion of 30 years service from the date of initial appointment or 10 years from the date of 2nd financial upgradation/ promotion, whichever is earlier, if the employee has not earned three promotions. In thirty years upon of regular service.
Keeping in view of the above, in the extant case, the employee has already earned 1st promotion in GP-4200 on 01.01.1988. As such, he is due for 2nd and 3rd financial upgradation under MACP Scheme i.e. 2nd financial upgradation would be admissible on 01.09.2008 (date of effect of MACPS) and 3rd financial upgradation on completion of 30 years service from the date initial appointment in entry grade or on completion of 10 years from the date of 2nd financial upgradation/promotion, whichever is earlier, provided that he does not get promoted meanwhile subject to fulfillment of other terms and condition a stipulated in Board’s letter dated 10.06.2009 (RBE No.101/2009).”
5.2 The Full Bench of this Tribunal at Principal Bench in OA No.1288/2014, titled Manju Vashyishta and Ors decided on 23.05.2016 has held as under :-
“12. It is noteworthy that the second MACP Scheme benefit has been granted to the applicant only w.e.f. 01.09.2008. i.e.. after a gap of more than 16 years from the date of her first regular promotion. The date 01.09.2008 is fortuitous as it happens to be a date from which MACP Scheme was implemented. Otherwise, it has no relevance to the service record of the applicant since it is not the date on which the applicant completed either 10 or 20 years of service nor it is the date on which she completed 10 years of service after getting first promotion. Her second MACP Scheme benefit got delayed only because MACP Scheme came into existence late. Hypothetically if MACP Scheme had came into existence from an earlier date, she would have got second MACP Scheme benefit on any date after 11.11.2001 after completion of 10 years of service from the date of her first regular promotion. However, due to late implementation of MACP Scheme, she has lost benefit of almost 07 years of service. Even then the date of second MACP Scheme benefit cannot be preponed since before 01.09.2008 there was no MACP Scheme in existence.
In our opinion, the situation as it exists in the case at hand has not been envisaged in the MACP Scheme. The Scheme has left this area uncovered and is silent on this aspect. No provision has been made for preventing loss of service to those employees, who have suffered only on account of date of implementation of the MACP Scheme. We have also seen that determining date of grant of third MACP Scheme benefit to the applicant No.1 based on her initial date of recruitment or on 01.09.2008, the date on which she got the benefit of second MACP Scheme can lead to erroneous results, which are contrary to the very provisions of the MACP Scheme. Under these circumstances, the only date which can be used as reference for determining the date from which third MACP Scheme benefit can be granted to the applicant is the date of her regular promotion as ASI i.e. 11.11.1991. Therefore, third MACP Scheme benefits should be rightfully given to her after 20 years of service counted from 11.11.1991.
On the basis of above analysis, we come to the conclusion that the question drawn by a Division Bench of the Principal Bench of this Tribunal has to be answered in the negative. We are inclined to agree with the judgment of Ernakulam Bench of this Tribunal in OA - 905/201(supra) albeit for different reasons, in which benefit of third upgradation under MACP Scheme has been granted to the applicant therein after completion of 20 years counted from the date of his promotion.
Consequently, we allow this O.A. (No. 1288/2014) and quash the impugned orders at Annexures A/1, A/2, A/3 and A/4 with all consequential benefits. No costs.”
5.3 We also find that in SLP (C) No.31921/2018 – UOI and ors vs Manju Vashyishta and Ors decided on 17.08.2021, the Hon’ble Apex Court while affirming the said decision of Full Bench has held as under :-
“18. Implicit in the letter dated 26th February 2014 of DoPT is a tacit admission tha the illustration Nos. (i), (ii) and (iii) in paragraph 28 of the MACPS by reason of which the third financial upgradation was granted on and from completion of twenty years from the date of first promotion, could be construed in that manner.
As observed above, the learned Tribunal gave a possible, if not plausible, interpretation of the MACPS, which is equitable, fair and just. It is well settled that if a document is capable of interpretation in more ways than one and a Tribunal adopts a possible interpretation, the High Court does not interfere under Articles 226/227 of the Constitution because it is of the view that another interpretation would be a better one. In exercise of jurisdiction under Article 226/227 of the Constitution, the High Court does not sit in appeal on the merits of a decision taken by a Tribunal.”
5.4 In the facts of the case, we find that the benefit has to be accorded on the basis of the occurrence of event(s), “whichever is earlier”.
(i) Ist upgradation from date of initial appointment.
(ii) 2nd upgradation from 20 years from the date of grant of actual appointment or from 10 years from first promotion, “whichever is earlier”.
(iii) 3rd up gradation from completion of 30 years from date of grant of actual appointment or from 10 years from 2nd up gradation /promotion, “whichever is earlier”.
(iv) The above position is also depicted by the illustration :-
“28. Illustration :
(i) If a Railway servant (LDC) in PB-1 in the Grade pay of Rs.1900 gets his first regular promotion (UDC) in PB-1 in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the MACPS in PB-1 in the Grade Pay of Rs.2800 after completion of 18 years ( 8+10 years).
(ii) In case he does not get an promotion thereafter, then he would get 3rd financial upgradation in PB-2 in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10).
(iii) However, if he gets 2nd promotion after 5 years of further service in PB-2 in the Grade Pay of Rs.4200 (Assistant Grade/Grade ‘C’) i.e., on completion of 23 years (8+10+5years) then he would get 3rd financial upgradation after completion of 30 years i.e. 10 years after the 2nd ACP in PB-2 in the Grade Pay of Rs. 4600.
In the above scenario, the pay shall be raised by 3% of the total pay in the Pay Band and Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay or in the higher Grade Pay. Only the difference of Grade Pay would be admissible at the time of promotion.”
5.5 It is apparent from the facts of the case, the date of first promotion preceded or was at earlier point of time, i.e., 01.09.1993. The interpretation highlighted by the respondents is erroneous inasmuch as it had ignored the said fact that the date of first promotion preceded or was at earlier point of time. The respondents have misinterpreted and wrongly arrived at a conclusion that calculation has to be made from date of 2nd financial up gradation, i.e., 01.09.2008. This is where the respondents erred in interpreting the circular dated 29.12.2011. The period has to be reckoned from the date of first promotion preceded or was at earlier point of time.
CONCLUSION:-
6.1 In the result, for the foregoing reasons, we allow this OA to the extent that we quash and set aside Annexure A-1 and Annexure -A-2 with all consequential benefits.
Appropriate Order(s) for restoring the benefits with arrears be passed within three months from date of receipt of a certified copy of this order.
No order as to costs.