Rajendra Prasad Bhatt & Others vs Union Of India Through General Manager, North Eastern Railway, Allahabad & Others

Om Prakash VII, Member-J

By means of this Original Application (OA), the applicants, eleven in number, have sought the following relief(s):-

“(a) to issue necessary order or direction setting aside the impugned order dated 18.1.2016 passed by the respondent no.4 (Annexure no. A-1) to this Application.

(b) to issue necessary order or direction directing the respondent authorities to consider the claim of the applicants for providing the financial benefits of up-gradation under MACPs and pay the difference of salary arrears, leave encashment, retirement gratuity, pension commutation and revision of pension and other dues admissible under the law to the applicants forthwith.

(c) to issue any other necessary order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.

(d) Award the cost of the application to the applicants.”

The facts leading to this Original Application are that all the applicants, except applicant no.11, retired from service on attaining the age of superannuation from the post of Technician-I in Carpenter and Master Crafts Man (MCM) Trade from Mechanical Workshop, NER, Gorakhpur between the periods from the year 2010 to 2014. The applicant no.11 is working on the post of Technician Gr.I in Carpenter Trade. According to the applicants, they were initially appointed as un skilled post in the pre-revised pay scale of Rs. 196-232. Thereafter, all of them had appeared in the departmental test/ examination for appointment on the post of Skilled Artisan Gr.III in the years 1983 and 1984 respectively.

2.1 Government of India introduced a scheme known as Modified Assured Career Progression Scheme (in short MACP) for providing three financial upgradation to Central Government employees at the intervals of 10, 20 and 30 years of service with a rider that in the meanwhile no promotion has been given to the employee.

2.2 The grievance of the applicants is that since they have been appointed on the post of Skilled Artisan Gr. III by qualifying LDCE examination and as such they are entitled to get the benefits of MACPs as the applicants shall be treated as appointed as direct recruitment through LDCE. In this regard, the Railway Board also issued a circular/letter dated 12.9.2012. The case of the applicants is that pursuant to aforementioned circular/letter dated 12.9.2012, the benefit of MACP has been granted to similarly situated persons like the applicants, but the same has been denied in the case of the applicants. Thereafter, the matter of the applicants took up the union by writing a letter to the respondent no.2 on 6.3.2013, to which the respondent no.2 observed vide letter dated 28.5.2013 that the employees who fall under the category of para no.2 of the letter dated 16.3.1982 issued by the Railway Board shall be entitled to the benefit of MACP. Being aggrieved, the applicants preferred a representation before the respondents for ventilating their grievance. Thereafter, the applicants filed O.A. No. 1599 of 2015, which came to be disposed of finally vide judgment and order dated 23.11.2015 with a direction to the competent authority to take a decision on the pending representation of the applicants within a period of two months. In compliance thereof, the respondent no.4 passed the impugned order dated 18.1.2016 by means of which the representation of the applicants has been rejected. The said order is under challenge in the instant O.A. Hence, this O.A.

Per-contra, the respondents have resisted the claim of the respondents by filing a detailed Counter Affidavit wherein they have stated that the applicant nos. 1 to 11 were appointed as Khalasi/Unskilled Khalasi in the Railways. The applicants were promoted to the post of Skilled Gr.III after passing the trade test conducted by the Railway Administration. According to the respondents, the applicants had not been selected for the post of Skilled Gr.III through direct recruitment quota i.e.GDSE/LDSE, but they were promoted after passing the trade test conducted amongst the employees of one unit. The respondents have also clarified that since the applicants have not been promoted to the Skilled Gr.III through examination conducted under LDCE, hence they will not be treated as directly appointed as Skilled Gr.III and, therefore, they are not entitled for the benefit of MACP on the ground that they are not fulfilling the conditions as meant for MACP scheme.

3.1 The respondents have also stated that as per para 2 of Railway Board’s letter dated 12.9.2012 (RBE No. 100/2012), it is provided that if the relevant Recruitment Rules, prescribes a promotion quota on the basis of LDCE/GDCE, such appointment should be treated as promotion for the purpose of benefit under MACP and in such cases, the past services shall also be counted for further benefits, if any, under the MACP Scheme. By quoting the said para, the respondents have stated that under the Railway Board’s letter dated 24.2.1979 and para 159 (1)(ii) and (iii) as promotional quota, as such the benefit of up-gradation under MACP Scheme may be extended to those Artisan staff, who have been recruited under the Railway Board letter dated 24.2.1979 and para 159 (1)(i) of IREM Vol. 1 (1989 edition). The respondents have again repeated by stating that the applicants have not been appointed on the post of Skilled Artisan Gr.III by qualifying LDCE, but after passing trade test they have been promoted on the post of Skilled Artisan Gr.III from the post of Khalasi, they are not entitled to get the benefit of MACP Scheme. Lastly, they have stated that the order, impugned in the Application, is perfectly legal and valid and as such O.A. has no merit and the same is liable to be dismissed.

The applicant has filed Rejoinder Affidavit to the Counter Affidavit filed by the respondents refuting the contentions of the respondents made in Counter Affidavit while reiterating the averments as already advanced in the O.A.

Supplementary Counter Affidavit has also been filed by the respondents reiterating the averments as made in the Counter Affidavit by refuting the contentions made in the Rejoinder Affidavit.

Supplementary Affidavit has been filed by the applicants by enclosing a list of eligible employees providing the benefit of MACPs vide letter dated 17.2.2017. In the said letter, the name of the applicant no.2 finds place at sl. No. 43. As a consequence thereof, a sum of Rs. 2,08,307/- has been paid to applicant no.2 towards the arrears of MACP.

We have heard the learned counsel for the parties at length and also perused the pleadings available on record.

The short point involved in this O.A. is that whether the applicants, eleven in number, (now 10 applicants as applicant no.2 has been granted the benefit of MACP), who have been appointed/promoted on the post of Skilled Gr.III through examination conducted under LDCE, are entitled for the benefit of MACP or not ?. There is no dispute about the facts of the case as projected by the applicants.

The issue involved in this O.A. came up for consideration before the Hon’ble Jodhpur Bench in OA 382/2011, which was decided on 22.05.2012 holding that the promotion earned by a Group D/Postman to the post of Postman/Postal Assistant cannot be treated as a promotion in the hierarchy and as such, cannot deny the financial up-gradation on that count. Following the same, Madras Bench of this Tribunal decided OA No. 1088/2011 (in re. D. Shivakumar Vs. Union of India & Others), on 14.03.2013 and the said order was confirmed by the Hon’ble High Court at Madras in WP No. 30629/2014 filed by the Department. The Hon’ble High Court has observed as under:

“9. 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.”

Thereafter, the matter was further carried to the Hon’ble Supreme Court vide SLP No. 4848/2016, which was also dismissed vide order dated 16.08.2016. Review Petition No.1939/2017 in SLP No. 4848/2016 filed by the Union of India was also dismissed on 13.09.2017. Therefore, the action of the respondents in not granting financial up-gradation to the next Grade Pay under MACP ignoring the promotion of the post of Skilled Artisan Gr.III pursuant to the LDCE, which does not fall under the hierarchy as contemplated under ACP/MACP Scheme is arbitrary and violative of Articles 14 and 16 of the Constitution of India.

In view of the above, it is now clear that the law on this point is amply clear and the applicants, who were promoted/appointed on the post of Skilled Artisan Gr.III through LDCE, cannot/should not be treated as a promotion and as such the applicants are entitled the benefit of MACP

In view of the decisions cited above, we are of the view that this case is squarely covered by the order of Madras Bench of the Tribunal rendered in the case of D. Shivakumar (supra), affirmed by Hon’ble High Court of Madras and upheld by Hon’ble Supreme Court. Hence, the instant OA is also liable to be disposed on the same lines.

In the result, O.A. succeeds and is accordingly allowed. Order dated 18.1.2016 is set-aside. The respondents are directed to consider the claim of the applicants for grant of financial up-gradation under MACP Scheme from the date it was due and consequently, re-fix the pay and allowances of the applicants with consequential benefits. Arrears to be paid, if any, to be restricted to a period of 3 years prior to the date of filing the OA as per Hon’ble Supreme Court judgment rendered in the case of Union of India & Ors. v. Tarsem Singh in Civil Appeal Nos. 5151-5152 of 2008. Time period allowed to implement the order is six months from the date of receipt of copy of this order. No order as to costs.

All the associated MAs stand also disposed of.