Surya Nath Yadav vs Union Of India & Ors

Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned orders dated 06.07.2011 and 20.06.2013 and to direct the respondents to restore the benefits of MACP II and MACP III in grade of Rs. 4200/- and Rs. 4600/- with continuity and all consequential benefits, and to direct the respondents to refund the recovered amount with admissible interest, and direct the respondents to correct the date of increment of applicant as 01st April of each year after implementation of MACP II and MACP III, and any other relief and award cost.

The fact of the applicant is that the applicant was appointed as Group ‘D’ in the Army Postal Services, Lucknow on 15.10.1980. After appearing in the examination on 09.07.1979 (?) for the post of PA/SA cadre and vide order dated 07.11.1989 the applicant was declared successful in the aforesaid examination. On 01.04.1991 the applicant was posted as Postal Assistant at Army Postal Service, Palam Airport, New Delhi. On 20.02.2008 the respondent No. 4 issued a list of promotion order for TBOP from the postal assistants on completion of 16 years of service on recommendation of DPC for the next higher pay scale of Rs. 4500 – 7000 and in the said list the applicant was also promoted w.e.f. 01.04.2007. On 25.05.2011 the respondent No. 4 again issued a list allowing MACP II on completion of 20 years of service and thereby the applicant was allowed MACP II in the pay band Rs. 9300 – 34800 + Grade Pay Rs. 4200/- w.e.f. 01.09.2008. Further, on 25.11.2005 (?) consequent to the recommendation of screening committee the respondent No. 3 issued another order for MACP III in favour of those who have completed 30 years of service as on 31.08.2008 and between 01.09.2008 to 30.09.2011 allowing them up gradation in the pay band of Rs. 9300 – 34800 + Grade Pay Rs. 4600/-. The applicant was also promoted / upgraded and his name was placed at Sl. No. 7 of the aforesaid list. The applicant further states that on 10.06.2011 he submitted an application before respondent No. 4 that he has been allowed MACP II vide order dated 25.05.2011 and allowed the benefit of increment from July, however, the applicant is allowed annual increment in the month of April, hence the basic pay of the applicant may be corrected as per FR 22 (1). Similar application was again submitted on 13.06.2011 when the applicant was allowed MACP III in the Grade Pay of Rs. 4600/- for correcting his date of increment as per FR 22 (1). The applicant further says that suddenly vide order dated 06.07.2011 respondent No. 4 cancelled the MACP II allowed to the applicant in the Grade Pay of Rs. 4200/- and also the MACP III in the grade of Rs. 4600/- was modified in the pay scale of Rs. 4200/- w.e.f. 15.10.2010. The applicant further states that on 28.07.2012 he submitted a representation that vide order dated 25.05.2011 he was allowed the MACP II and III in the Grade Pay of Rs. 4200/- and 4600/-, however, vide order dated 06.07.2011 the MACP II in the Grade pay of Rs. 4200/- has been cancelled and MACP III has been modified in the Grade Pay of Rs. 4200/- without recording any reason or any opportunity of hearing to the applicant. The applicant further says that on 22.09.2012, 05.10.2012 and 19.10.2012 he submitted reminders against the illegal order withdrawing one financial up gradation without affording any reasonable opportunity to the applicant and on 20.11.2012 the applicant preferred a representation before the respondent No. 2 and submitted that after posting of the applicant as Postal Assistant on passing the examination, the applicant has been allowed three promotions, however vide impugned order dated 06.07.2011 the MACP II has been cancelled and MACP III has been modified from Grade Pay Rs. 4600/- to 4200/- without affording any opportunity to the applicant, and vide order dated 30.10.2012 the aforesaid representation of the applicant was forwarded to respondent No. 4 for giving clarification on the representation of the applicant. On 02.02.2013 the applicant preferred another representation reiterating that the MACP II and MACP III rightly allowed to the applicant on completion of 20 and 30 years of service has been withdrawn in flagrant exercise of power surpassing the norms of MACP’s laid down by the DOPT. The aforesaid illegal action has been given effect without providing the applicant a reasonable opportunity of hearing and as such the order dated 06.07.2011 passed by the respondent No. 3 is illegal and is liable to be set aside. On 26.06.2013 the respondent No. 2 rejected the representation of the applicant and informed that after appointment in Group ‘D’ category the applicant has already availed three promotions after his appointment in Group ‘D’ category and as such the ACP III allowed in Grade Pay of Rs. 4600/- has been modified in Grade Pay Rs. 4200/-. The applicant states that the order passed by the respondent No. 2 is completely cryptic and non speaking and asserts that his promotion from Group ‘D’ to Postal Assistant has also been counted as one promotion and as such by the impugned order the MACP II has been withdrawn and MACP III has been modified in the Grade Pay of Rs. 4200/- as it was the third promotion and put in the Grade Pay of Rs. 4200/-. The applicant asserts that he joined Group ‘D’ through Limited Departmental Competitive Examination and became Postal Assistant, which cannot be termed as promotion under MACP. He asserts that passing the intermediate post examination and attaining a cadre by a competitive examination and not in the course of prescribe avenue of promotion by way of natural progration through seniority cannot be counted towards the promotion under MACP.

The applicant quotes co-ordinate Bench of this Tribunal orders passed in OA No. 3756 of 2011 and OA No. 382 of 2011 wherein it has been ruled that Group ‘D’ employee faces a process of LDCE selection and appointed as Postal Assistant by passing an intermediate post and cadre, it cannot be called as promotion as it was not in the course of prescribed avenue of promotion. Hence, he must get three MACP after joining the cadre of Group ‘D’ Postal Assistant at completing 10, 20 and 30 of service respectively.

In the instant case the applicant after completing 16 years of service as Postal Assistant, he was first promoted under UBOP scheme on 20.02.2008 w.e.f. 01.04.2007 and after 20 and 30 years of service he was rightly allowed MACP II and MACP III in the Grade Pay of Rs. 4200/-and Rs. 4600/-. However, by the impugned order the MACP II in the Grade Pay of Rs. 4200/- has been withdrawn with a view to count his posting as Postal Assistant, which was actually a new appointment under the criteria of MACP Promotion, which is not as per law and procedure. The applicant avers that the respondents due to the audit objection illegally passed the impugned order and recovered the alleged excess payment without any notice. He says that it is well settled law that recovery of alleged over payment is a civil consequence and as such there would be a precondition that while passing such orders the principles of natural justice should have been followed. Hence, the applicant pray that his OA should be allowed and his prayers should be granted and impugned order set aside restoring his three MACP from the dates from which it were granted and to direct the respondents to return his recovered amount with interest etc.

Respondents have filed counter affidavit wherein the basic facts of the respondents is that the applicant was appointed as Group ‘D’ in Army Postal Services on 15.10.1980 and thereafter the applicant appeared in the departmental examination for the post of Postal Assistant and after passing the examination he was posted as Postal Assistant on 01.04.1991 at Delhi. From the date the applicant as Group ‘D’ employee and was promoted as Postal Assistant after passing Lower Grade Examination from Group ‘D’ to PA, which is counted for MACP purpose as first promotion and thereafter he was eligible for remaining two up gradation under MACP scheme. So after completion of 16 years of service in PA cadre the financial up gradation was given to the applicant on 01.04.2007, which was second financial up gradation, and the third up gradation was given after completion of 30 years w.e.f. 15.10.2010 with a Grade Pay of Rs. 4200/- which is just and as per rule, as the earlier order issued for his three MACP up gradations did not take into account his promotion from Group ‘D’ to PA cadre, hence, the same was later modified and the earlier orders were cancelled by the order dated 06.07.2011. Accordingly, recoveries were also made. Hence, the impugned order and consequent recoveries are all as per rule, hence, there is no merit in this OA and the same may be dismissed.

Rejoinder affidavit has been filed by the applicant wherein he reiterates the facts in the OA and has requested to allowe his OA.

The case came up for last hearing on 01.05.2023. Shri Ashish Srivastava, learned counsel for the applicants and Shri R.K. Srivastava, learned counsel for the respondents were present and heard. We have gone through the record and have carefully examined the rival contentions.

The brief issues for our consideration is as under:-

a. Whether promotion / appointment of the applicant from Group ‘D’ to PA cadre through Limited Departmental Competitive Examination could be counted by the department as one of the promotions (first MACP) to be reckoned from three promotions as envisaged under MACP and,

b. Whether the order of the respondents of modifying the three MACP orders into two and exercising consequent recovery of the excess amount paid to the applicant without due notice and opportunity to be heard to the applicant was proper?

c. If so, what orders?

From the averments of the parties it is very clear that basic facts of the case are not disputed. The applicant has filed before us case laws. In the case of Union of India and others vs. D. Sivakumar and others –Writ Petition No. 30629 of 2014 and M.P. No. 1 of 2017 (Hon’ble Madras High Court), the brief facts of the case and finding of the Hon’ble High Court was following:-

“7. In paragraph 19 of the affidavit filed in support of the above writ petition, the Department itself has given the entire service particulars of the first respondent. The same can be summarized for easy appreciation as follows:

Details

Date of Appointment

Remarks

Grade Pay

Entered in service as Group-D

30.5.1973

lgnored as per DG's guidelines vide order No.4-7/MACPS/ 009/PCC dated 25.4.2011

Rs.1,800/-

Entry in Postman Cadre

22.9.1973

Taken an Entry grade for thepurpose of MACP

Rs.2,000/-

Promoted to Postal Assistant Cadre

12.11.1977

Adjusted against MACP-I

Rs.2,400/

Granted financial upgradation under TBOP Scheme on completion of 16 years of service

15.11.1993

Adjusted against MACP-II

Rs.2,800/-

Granted financial upgradation under BCR Scheme on completion of 26 years of service

1.1.2004

Adjusted against MACP-III

Rs.4,200/-

A close look at the above tabular column would show that even from the date of his promotion as Postal Assistant, namely 12.11.1977, the first respondent completed more than 30 years before his retirement. The fact that he stagnated in the post of Postal Assistant, is borne out by the very pleadings of the petitioners.

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.

Accordingly, the writ petition is dismissed. No costs. Consequently, the above MP is also dismissed.”

On simple perusal of this Writ Petition it is very clear that the issue to be decided there was one and the same as in the present OA and the Hon’ble High Court finding was very clear that to adjust the appointment to the post of Postman cadre from Group ‘D’ through the Limited Departmental Competitive Examination and to adjust the said appointment against MACP is clearly erroneous and once that error is removed it will be clear that the respondents in the said case was entitled for pre MACP for every 10 years of service. So they observed that the opinion of the Tribunal was right in directing the department not to take into account appointment granted to the post of PA and to adjust against MACP and accordingly Writ Petition was dismissed. They clearly say that the department has to count the first appointment to PA as basic appointment and after that the pre MACP must accrued to the concerned employee. The said case went to Hon’ble Supreme Court in SLP (C) No. 4848 of 2016, wherein the Hon’ble Supreme Court dismissed the said SLP. Hence, the judgment of Hon’ble High Court and this Tribunal in the said case becomes final. The applicant further rely in a bunch of cases decided by Hon’ble High Court of Rajasthan in Civil Writ Petition No. 11709 of 2013 – Union of India and others vs. Har Govind Sharma and 23 other cases on 10.08.2015. The Hon’ble High Court observed the following:-

“Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistant was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/ Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants / Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.

The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed.”

From simple perusal of this order it is evident that facts of this case was also similar and the Hon’ble Court came to a conclusion that appointment to the post of PA, the respondents in the said Writ Petition and applicant in the OA faced an examination which may be a Limited Departmental Competitive Examination i.e. but direct recruitment and their joining at PA was not at all in the nature of promotion, hence, their service for the grant of MACP has to be counted only from the date they were appointed as PA/Sorting Assistant, and earlier periods are inconsequential. Hence, it was observed that Writ Petition had no merit. As the facts of the present case is identical and it is covered by the aforesaid judgments. Hence, we have no doubt that the answer to the first issue framed is in negative, that, appointment of the applicant from Group ‘D’ to PA cadre through Limited Departmental Competitive Examination could not be counted by the department as first MACP granted to the applicant. Hence, the answer to the second issue framed also is in negative and we have no doubt to conclude that the order of the respondents of modifying the three MACP orders into two and exercising consequent recovery was clearly erroneous. The respondents have not brought any case law before us, which is at variance with the few presented by the applicant. Hence, we are of the considered view that the applicant has made out a strong case for him. Hence, we pass the following orders:-

“The OA is allowed. The impugned order dated 06.11.2011 and 30.06.2013 are set aside. Respondents are directed to restore the benefit of MACP II and III in the Grade of Rs. 4200/- and Rs. 4600/- with continuity and all consequential benefits to the applicant and if the respondents have recovered any amount, as a consequences of modifying their said MACP orders, the same may be refunded to the applicant in lump sum with 6% interest from the date of recovery till the date of actual payment. The respondents are further directed to examine the correction in the date of increment of the applicant as 1st April of each year after implementing the MACP II and MACP III, if the applicant is eligible for the same. The above exercise should be completed within a period of three months from the date of receipt of a certified copy of this order. All associated MAs are accordingly disposed off. No costs.”