Kamaruddin Khan vs Union Of India & Ors.

Mohan Pyare, Member (A)

Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:

“i) The Hon’ble Tribunal may graciously be pleased to quash the impugned order dated 1.10.2013 (Annexure-A-1 of the O.A.), 24.1.2014 (Annexure-A-2 of the O.A.) and 27.10.2015 (Annexure-A-3 of the O.A.) with direction to the respondents to grant 3rd Up-gradation/promotion on completion of 30 years of service in postman cadre and further pay the settlement dues after granting such financial upgradation alongwith its arrears.

ii) The Hon’ble Tribunal may graciously be pleased to direct the respondents to pay the arrears of difference of pay accrued after fixation of pay in lieu of upgradation with 18% compound interest.

iii) issue any other suitable order or direction or which this Hon’ble Tribunal may deem fit and proper under the facts and circumstances of the case.

iv) To award the costs of the application in favour of the applicant.”

Brief facts of the case as narrated in the O.A. are that the applicant was initially appointed as G.D.S. (Extra Departmental Agents/Gram Dak Sewaks on 4.12.1982 under the supervision and control of the respondents. The respondents issued notification for selection for the post of Postman by holding an examination in which the applicant participated and got selected on the said post and joined the post of postman cadre on 21.4.1983. The Departmental Promotion Committee gave the applicant the 1st Promotion/financial up-gradation on 27.7.1999 under T.Β.Ο.Ρ. Scheme dated 24.4.1999 after completion of 16 years in Postman cadre from 21.4.1983. Then the applicant got 2nd upgradation under M.A.C.Ps. Scheme vide Memo No.B-2/MACPs/ Postman Varanasi- 2 dated 18.8.2010 after completion of 20 years of service in postman cadre after the Screening Committee considered and recommended the applicant for IInd Financial Upgradation (M.A.C.Ps-II) of Grade Pay Rs. 2800/-. The respondents passed the impugned order Memo No.B-2-/MACPs/Postman Varanasi-2 dated 1.10.2013 and constituted a screening committee which considered the case of officials on completion of 30 years of service in the postman cadre for granting 3rd financial upgradation to Grade Pay Rs. 4200/- under MACP Scheme. The applicant herein is aggrieved with the fact that in spite of completing 30 years of continuous service in the postman cadre, he was not considered by the aforesaid committee for the grant of third upgradation under the MACP Scheme.

We have heard learned counsel for the parties.

Submission of learned counsel for the applicant is that the applicant completed 30 years of continuous and qualified service in postman cadre and retired on 31.7.2013 from the service in the department. It is argued that the screening committee illegally and without application of mind and without considering length of service of the applicant in the postman cadre did not give him the benefit of the third financial upgradation under the MACP Scheme while another similarly situated employee namely Shri Samu Yadav, who joined the post of postman cadre on 21.04.1983, has been granted the same. It is further submitted that the respondents have not considered the rule while stating that the applicant had already got three promotions, and is not eligible for IIIrd M.A.C.Ps. in Grade Pay Rs. 4200/-. The impugned order passed by respondents is totally against the Rule as well as direction given by the different benches of this Tribunal and the Hon'ble High Court. He states that being aggrieved thereby, the applicant preferred appeal/ representation to the higher authority i.e. respondent no.6 on 12.11.2013 for granting him 3rd financial up-gradation under M.A.C.P. Scheme. The respondents issued the impugned letter B/2-MACP/Postman/2013 dated 24.1.2014 in reply to representation given by the applicant on 12.11.2013. It is argued that respondent no.6 issued the letter without application of mind. Learned counsel for the applicant contends that the respondents issued the impugned order dated 27.10.2015 and constituted a screening committee for Review D.P.C. which considered the case of the applicant on completion of 30 years of service in the cadre for 3rd financial upgradation under MACP Scheme but the committee illegally gave recommendation of IIIrd M.A.C.P. with G.P. 2800 without application of mind as the Grade Pay of Rs. 2800/- was already given to the applicant on 18.8.2010 by recommendation of screening committee on 18.8.2010 and respondents instead of giving IIIrd M.A.C.Ps. in Grade Pay Rs. 4200/-, illegally adjusted G.P. 2800 of applicant against IIIrd M.A.C.P. without application of mind and against the Rule. It is mentioned that the respondents had never given IIIrd M.A.C.Ps. benefits to the applicant till date.

Learned counsel for the applicant further states that the illustration 28 (b) of MACP scheme (page-61 of Original Application) clearly provides that grant of 3rd MACP will depend upon completion of 10 years of regular service or completion of total 30 years of service before the date of completion of 10 years as such there was no need to completion of 10 years in one grade pay and in the case of applicant, the applicant has completed 30 years of service on 21.04.2013 before his retirement and as such the applicant is entitled for grant of benefit of 3rd MACP in GP of Rs. 4200/-w.e.f. 21.04.2013. Learned counsel for the applicant further contends that the circular governing the M.A.C.Ps. dated 18.09.2009 has further clarified that if an official has joined in postman or Postal Assistant cadre under the direct recruitment quota on regular basis, the regular service for the purpose of M.A.C.Ps. commences from the date of joining in Postman Cadre as direct recruit basis.

Learned counsel for the applicant further states that a similar issue came up before the Jodhpur Bench of this Tribunal in the case of Bhanwar Lal Regar Vs. U.O.I. and others etc. in O.A. No.382 of 2011 with other connected matters. The Tribunal decided the aforesaid original application in favour of the applicant (therein) and held that the selection for the post of Postman by appearing at departmental examination cannot be said to be a promotion or treated to be upgradation. It is mentionable here that the aforesaid order has been affirmed by Hon'ble High Court of Rajasthan at Jodhpur and has not been unsettled by any court of law. He also states that an identical controversy has been decided by Madras bench of this Hon'ble Court in Original Application No. 1088/2011, D. Sivakumar vs Union of India and others wherein the Hon'ble Tribunal has taken into account the direct entry grade of applicant in postman cadre in the year 1982, allowed the Original Application by holding that the applicant is entitled for grant of 3rd MACP on completion of 30 years of service and is not necessary of 10 years working in one grade pay. The order of Madras bench had been challenged before the Hon'ble High Court of Madras in Writ Petition No. 30629/2014, Union of India and others vs D. Sivakumar and the Hon'ble High Court has also dismissed the Writ Petition by upholding the order of Madras bench of this Hon'ble Court. The respondents further challenged the order of Hon'ble High Court of Madras before the Hon'ble Supreme Court in SLP (C) No. 4848 of 2015, Union of India and others vs D. Sivakumar and the aforesaid SLP was dismissed vide order dated 16.08.2016. The Hon'ble Supreme Court while dismissing the SLP kept the question of law open. The respondents have again approached the Hon'ble Supreme Court and filed review petition against the order dated 16.08.2016 and the Hon'ble Supreme Court vide order dated 13.09.2017 dismissed the review application on the ground of delay as well as on merit. While deciding the review application, the Hon'ble Supreme Court has also closed the window which is open in the form of question of law.

Learned counsel for the applicant has further submitted that as far as the applicability of full bench judgment of Jabalpur bench of this Hon'ble Court in respect of controversy involved in present Original Application is concerned, it is submitted that once the matter has been affirmed up to level of Hon'ble Supreme Court, then the judgment of full bench has no binding effect until it is affirmed by the Hon'ble Supreme Court and it could not be a basis for deciding the controversy involved in the present Original Application.

Submission of learned counsel for the respondents is that the applicant was working as EDMP at Industrial Estate Sub Post Office. He passed the examination of Group ‘D’ vide memo dated 01.12.1982 and joined the duty on 04.12.1982. Subsequently, after completion of successful service in Postman cadre i.e. 20 years service the applicant got 2nd financial upgradation under MACPs scheme w.e.f. 19.09.2008 (As the MACPs scheme came into existence w.e.f. 01.09.2008). Therefore, the applicant got it w.e.f. 01.09.2008. Further after completion of successful service of 30 years, the applicant got 3rd financial upgradation w.e.f. 18.12.2012. Thus, the applicant availed all the three financial upgradations as per rule and in accordance with the letter No.1-20/2008-PCC dated 04.11.2013. It is further submitted that the case of the applicant was reviewed in light of the instructions contained in the letter No.1-20/2008-PCC dated 04.11.2013 and he was awarded with all the financial upgradation admissible to him and thus there is no benefit pending and due to him. He states that the applicant got recommendation for the 3rd financial upgradation under MACP-III with grade pay 2800 w.e.f. 18.12.2012 vide memo number B- /MACPs/Postman/Review DPC/Varanasi-2 dated 27.10.2015.

We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record including the written submission of learned counsel for the applicant.

Learned counsel for the applicant has drawn attention to Illustration 28 of the OM on the MACP Scheme dated 19.05.2009 which says that there should be at least three financial upgradations after the intervals of 10, 20 and 30 years and in the case of promotion which is to be considered as a financial upgradation, the next eligible upgradation under the MACP Scheme should be after the completion of ten years from the date of the said promotion. The said illustration is quoted below:

Illustrations

A (i) If a Government servant (LDC) in PB-1 in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in the 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 2 financial upgradation under the MACPS in the PB-1 in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).

(ii) In case he does not get any promotion thereafter, then he would get 3 financial upgradation in the PB-II in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10).

Similarly, in the judgement of the Hon’ble High Court of Judicature at Madras, in Writ Petition No.30629 of 2014 (UOI vs. D. Sivakumar and another) decided on 04.02.2015, which has been confirmed up to the level of the Hon’ble Apex Court and has been referred to by the learned counsel for the applicant in support of his contentions, it has been held as follows:-

“What the Department had done is to adjust the appointment of the first respondent as the Postal Assistant on 12.11.1977, as the first financial upgradation under Modified Assured Career Progression-I. This is clearly erroneous in view of the fact that the appointment as Postal Assistant was not granted to the first respondent after mere completion of 10 years in the Cadre of Postman. From the Cadre of Postman, to which, the first respondent got appointed on 22.9.1973, he participated in a selection to the post of Postal Assistant and got appointed. Therefore, to adjust the said appointment against Modified Assured Career Progression-II, is clearly erroneous. Once that error is removed, it will be clear that the first respondent would be entitled to three modified assured career progressions for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the Department not to take into account the appointment granted to the post of Postal Assistant and to adjust it against Modified Assured Career Progression- I.

Moreover, it is to be pointed out that even the second modified assured career progression was granted under the Modified Assured Career Progression Scheme only after 16 years and the third is said to have been granted after 26 years. If the first appointment is adjusted against Modified Assured Career Progression-I, this could not have actually happened. For doing so, the Department has counted the first appointment as 12.11.1977. Therefore, they cannot do so for the Modified Assured Career Progression Scheme in a different manner.”

The said case law is not applicable in the present matter as it deals with how the next MACP has to be calculated in case of a promotion and clarifies that the next MACP should be granted after ten years from the date of promotion in case of stagnation.

The impugned order dated 27.10.2015 shows that the applicant has been granted MACP-II in GP 2400/- from 01.09.2008 and MACP-III with GP 2800/- from 18.12.2012. Earlier, as has been admitted by the applicant himself, he has been given the first promotion/ financial upgradation dated 24.04.1999 w.e.f. 27.07.1999 under the TBOP scheme. Thus, the service of the applicant has been counted from his date of joining as EDMP i.e. 04.12.1982 for the calculation of 30 years of eligible service for grant of the third MACP benefit as per the provision and the same has been granted to him. Thus, the applicant has been granted the three financial upgradations which were due to him under the scheme and we do not find any merit in the claim of the applicant for further upgradation.

Accordingly, the O.A. stands dismissed. All associated M.A.s also stand disposed of. No costs.