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Judgment
AM Bujor Barua, J
Heard Mr. SC Keyal, learned Assistant Solicitor General of India for the petitioners and M. SN Tamuli, learned counsel for the respondent.
The respondent, Sri Hari Kanta Kalita was initially appointed as a Mail Runner in the Post and Telegraph Department of the Government of India.
Sometime in the year 1977, a Limited Departmental Competitive Examination (for short, LDCE) was conducted by the Department for appointment of
Postal Clerk (subsequently designated as Postal Assistant), amongst the departmental candidates. It is taken note of that for the post of Postal
Assistant, neither the Mail Runner is a feeder post nor there is any provision under the Rules for a Mail Runner to be promoted as a Postal Assistant.
Be that as it may, by following the aforesaid procedure the respondent was appointed as a Postal Assistant on 01.09.1977. As the respondent
continued working as a Postal Assistant, he was granted the first financial upgradation under TBOP Scheme w.e.f. 01.09.1995 on completion of 16
years of service as Postal Assistant. Thereafter, he was given the second financial upgradation under the BCR Scheme w.e.f. 01.01.2004 upon
completion of 24 years of service. It is taken note of that the calculation of the qualifying service of 16 years and 24 years, respectively for the
purpose of the financial upgradation were made on the basis of his appointment as Postal Assistant on 01.09.1977. Upon completion of 30 years of
service as Postal Assistant, the respondent was given the 3rd financial upgradation w.e.f.,01.09.2008 in the scale of Rs.9300-34,800/- with grade pay
of Rs.4600/- under the MACP Scheme. But, later on, the grant of the 3rd financial upgradation was withdrawn and the respondent was downgraded
to his earlier scale of pay of Rs.9300-34800/- with grade pay of Rs.4200/- and, accordingly, his pension and salary were refixed as per the
downgraded scale w.e.f. November, 2011. Against the withdrawal of the 3rd financial upgradation, the respondent served legal notice dated
19.03.2012 and in reply thereof, the petitioner No.5 by letter dated 27.03.2012 had informed that the respondent is not entitled to the 3rd financial
upgradation under the MACP, inasmuch as, he had joined his service as a Mail Runner on 15.09.1972 and, thereafter, promoted as a Clerk/Postal
Assistant and thereupon given the financial upgradation under the TBOP Scheme w.e.f. 01.09.1995 and BCR Scheme w.e.f. 01.01.2004.
Accordingly, it is the stand of the petitioner authorities that the respondent already had the benefit of 3(three) promotions/financial upgradation in his
service career and, thereafter, a further financial upgradation under the MACP Scheme would be the 4th such benefit, to which the respondent is not
entitled.
In the aforesaid premises, the petitioner preferred OA No.308/2013 before the Central Administrative Tribunal Guwahati (hereinafter to be referred
to as the Tribunal).
In the original application before the learned Tribunal, two communications dated 06.01.2012 of the Assistant Chief Accounts Officer (PEN)
addressed to the Senior Superintendent of Post Office Guwahati Division and dated 12.01.2012 of the Senior Superintendent of Post Office to the
Senior Post Master, Guwahati GPO were also assailed.
The said two communications contain the conclusion of the petitioner authorities that as the respondent was in service as a Mail Runner from
15.09.1972, thereafter, promoted as Postal Clerk on 01.09.1977 and, subsequently, given two financial upgradations under TBOP Scheme
w.e.f.,01.09.1995 and BCR Scheme w.e.f.01.01.2004, therefore, he already had the benefit of 3(three) promotions/upgradations in his service career.
Accordingly, the further benefit of financial upgradation under the MACP Scheme was not available to the respondent. The learned Tribunal by its
Judgment and Order dated 03.07.2015 had arrived at a conclusion that the respondent having been appointed as a Postal Assistant on 01.09.1977 on
being selected through LDCE, such appointment cannot be called to be a promotion.
The learned Tribunal also took note that the post of Mail Runner to which the respondent was appointed on 15.09.1972 was not a feeder post for
promotion as Postal Assistant, nor the post of Postal Assistant was a promotional post for the purpose. The learned Tribunal also took note of the
Judgment rendered by the Principal Bench of the Tribunal which was upheld by the Delhi High Court, wherein a conclusion was arrived that the
appointment of the respondent on 01.09.1977 was an appointment and not a promotion. Accordingly, the conclusion of the petitioner authorities that
the respondent had availed the benefits of 3(three) promotions/upgradations by considering the appointment as Postal Assistant to be a promotion was
unacceptable. The present petition has been preferred by the petitioner authorities against the Judgment and Order dated 03.07.2015 of the learned
Tribunal at Guwahati.
In the writ petition, the petitioner authorities take a ground that as per the policy of the Government, the respondent is entitled to only 3(three)
financial upgradations/promotions in his entire service career and although he was not otherwise eligible but the authorities had erroneously given him
the benefit of a further financial upgradations w.e.f.01.09.2008 under the MACP Scheme. Accordingly, the petitioner authorities take the stand that as
per DOPT Order No.18/26/2011-Estt(Pay-I) dated 06.02.2014, immediate corrective measures were required to be taken in all such cases, where
excess payment and grant of scale were made on account of wrong pay fixation, or in excess of the entitlements without following the procedure.
The core contention of the petitioner authorities is that the appointment of the respondent as Postal Assistant on 01.07.1977 is construed by the
Department to be a promotion, rather than an appointment. But although such ground has been taken in the writ petition, no specific reasons thereof
has been stated as to why the appointment as Postal Assistant on 01.09.1977 has to be construed to be a promotion, rather than an appointment. The
learned Tribunal had given its reasons as to why it concludes that the said appointment as Postal Assistant is an appointment rather than a promotion.
More particularly, two reasons were assigned by the Tribunal that firstly, the LDCE conducted by the Department for effecting such appointment do
not indicate that it was a promotion, and, secondly, the original post held by the respondent is neither a feeder post, nor the post of Postal Assistant is a
promotional post. Both the reasons stated by the learned Tribunal in the view of this Court are well founded and neither any effective reasoning nor
any material has been produced by the Department requiring the Court to take a view contrary to the view taken by the learned Tribunal. It is also
taken note of that the Principal Bench of the learned Tribunal in its Judgment and Order dated 21.12.2012 in OA No.3755/2012 had taken a view that
the incumbent therein having been appointed to the post of Postal Assistant after the selection from amongst the candidates in Group D, Class IV post,
the same cannot be called a promotion and moreover, even otherwise, had the LDCE not been conducted, such candidates would not have been
promoted as Postal Assistant through efflux of time. The said view taken by the Principal Bench of the learned Tribunal was assailed by the
Department before the Delhi High Court. The Delhi High Court also examined the relevant Rules under which such recruitment process to the post of
Postal Assistant was undertaken. The Rules taken into consideration by the Delhi High Court as extracted in its Judgment is as follows:
“ 3. Recruitment â€" Recruitment will be by a competitive examination which will be open to- (a) Department officials of all classes below the
clerical cadre in the post offices hereafter called departmental candidates, and (b) Outside candidates.
4- Conditions for departmental candidates: A departmental candidate should have put in not less than five years unblemished service followed by
confirmation.â€
On a plain reading of the Rules as extracted above, this Court is also of the view that the appointment when made by following the procedure as
indicated in the Rules would have to be construed to be an appointment rather than a promotion.
A further relevant consideration would also be that all along the respondent was given the benefit of the financial upgradation under the TBOP
Scheme and BCR Scheme by calculating his qualifying service from the date of his appointment as Postal Assistant on 01.09.1977. From the said
point of view also it would be improper to allow the petitioner authorities to now take the stand that for evaluating his entitlement for a further financial
upgradation, the date of entry into service will be taken as 15.09.1972, when he was appointed as a Mail Runner.
In view of the aforesaid conclusion that the appointment of the petitioner as Postal Assistant on 01.09.1977 was not a promotion, therefore, the
conclusion of the petitioner authorities that the same is to be construed to be a promotion for it being included amongst the 3(three)
promotions/financial upgradation that an employee is entitled in his service career, is unacceptable.
Accordingly, the sole ground in the present writ petition being that the appointment of the respondent as Postal Assistant on 01.09.1977 was a
promotion is unacceptable and, therefore, writ petition is found to be devoid of any merit and the same is dismissed.