The Union of India Vs D Srinivasa Rao

D. SRINIVASA RAO, S/O. LATE B. SATHYANARAYANA RAO, AGED ABOUT 69 YEARS, RETIRED AS SUB POSTMASTER, SIDDARTHANAGAR SO, MYSURU, RESIDING AT NO.109 KUNDUR MUTT ROAD, AGARAHARA

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MYSURU-570 004.

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…RESPONDENT

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(RESPONDENT - D SRINIVASA RAO SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER BY WAY OF CERTIORARI QUASHING THE ORDER DATED 09.08.2018 ( ANNEXURE - A PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.A.NO. 170/00337/2017 AND DECLARE IT AS ILLEGAL, ARBITRARY AND CONTRARY TO THE MACP SCHEME AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and HON'BLE DR. JUSTICE K.MANMADHA RAO

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ORAL ORDER

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(PER: HON'BLE DR. JUSTICE K.MANMADHA RAO)

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The present petition is filed seeking to quash the order dated 09.08.2018 passed by the Central Administrative Tribunal, Bengaluru Bench, Bengaluru, in O.A.No.170/00377/2017 (Annexure-A) and to declare the same as illegal, arbitrary and contrary to the Modified Assured Career Progression Scheme (MACPS).

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The petitioners herein are the respondents and

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the respondent herein is the applicant before the Tribunal.

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For sake of convenience, the parties herein are

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referred to as per their rankings before this Court.

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Heard learned counsel appearing for both

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parties.

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The brief facts of the case are that:-

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The respondent herein was appointed as a Postman

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in Bengaluru East Division on 20.03.1971. Under the Indian Postal & Telegraph (Time Scale Clerk) Recruitment Rules, 1971, 50% of the vacancies in the cadre of Postal Assistant/Sorting Assistant were filled by direct recruitment and the remaining 50% through a Limited Departmental Competitive Examination (LDCE) conducted for eligible departmental officials. Having acquired the requisite eligibility, the respondent appeared in the departmental examination and, upon being declared successful, was promoted as Postal Assistant, Bengaluru

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GPO, with effect from 02.04.1976. Thereafter, he was granted Time Bound One Promotion (TBOP) with effect from 02.04.1992 and Biennial Cadre Review (BCR) benefit with effect from 01.07.2002.

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The Government of India introduced the Modified Assured Career Progression Scheme (MACPS) by Office Memorandum dated 18.09.2009 with effect from 01.09.2008, providing for three financial up-gradations during the course of service, subject to the conditions stipulated therein. The scheme, inter alia , provides for reckoning of past promotions and financial up-gradations for determining eligibility under MACPS.

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The respondent retired from service on attaining the age of superannuation on 31.10.2010. Subsequently, he submitted a representation seeking grant of the third financial up-gradation under the MACP Scheme with Grade Pay of Rs.4,600/- with effect from 01.09.2008. The said request was rejected by communication dated 22.06.2017 on the ground that the

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respondent had already availed three financial upgradations prior to the introduction of MACPS.

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Aggrieved thereby, the respondent instituted O.A.No.170/00377/2017 before the Tribunal. The petitioners contested the proceedings by filing their statement of objections. By order dated 09.08.2018, the Tribunal allowed the O.A.No.170/00377/2017 and directed the petitioners to extend the benefit of the third financial up-gradation under the MACP Scheme to the respondent with effect from 01.09.2008 along with all consequential benefits, subject to the outcome of Civil Writ Petition No.11414/2012.

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Aggrieved by the aforesaid order dated 09.08.2018 passed by the Tribunal, petitioners have preferred the present writ petition.

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The learned counsel appearing for the petitioners would contend that the Tribunal failed to appreciate that the respondent's appointment as Postal

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Assistant with effect from 02.04.1976 was not by way of direct recruitment but was a promotion secured through a Limited Departmental Competitive Examination conducted exclusively for departmental lower grade officials. The respondent never participated in a recruitment process open to members of the general public. Consequently, the Tribunal erred in treating the said appointment as a direct entry appointment for the purpose of the Modified Assured Career Progression Scheme (MACPS).

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It is further contended that the MACP Scheme introduced by Office Memorandum dated 18.09.2009 with effect from 01.09.2008 contemplates only three financial upgradations during the entire service career. In terms of paragraph 8 of Annexure-R1 to the Scheme, promotions earned in the past are required to be reckoned while determining entitlement under MACPS. According to the petitioners, the respondent had already availed three upgradations, namely, promotion as Postal Assistant on 02.04.1976, Time Bound One Promotion (TBOP) on

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02.04.1992 and Biennial Cadre Review (BCR) benefit on 01.07.2002. Therefore, no further financial up-gradation under MACPS was admissible.

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Paragraph 8 to the revised MACPS reads as under:-

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8. Promotions earned in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.

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The petitioners also place reliance upon paragraph 9 of Annexure-R1 to the DOPT Office Memorandum dated 19.05.2009 and contend that acceptance of the respondent's claim would create an anomalous situation by treating the date of promotion as the commencement of regular service for MACPS, while the date of initial appointment as Postman would continue to govern pensionary and other service benefits. It is further urged that paragraph 20 of the Scheme makes financial up-gradation purely personal to the employee

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and, therefore, the respondent cannot claim parity with other employees who may have secured similar reliefs.

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Paragraph 9 to the revised MACPS reads as under:-

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9. ‘Regular Service’ for the purpose of MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/reemployment basis. Service rendered on adhoc/contract basis before regular appointment or pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.

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Paragraph 20 to the revised MACPS reads as under:-

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20. Financial upgradation under the MACPS shall be purely personal to the employees and shall no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior

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employee in the grade has got higher pay/grade pay under the MACPS.

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In support of the contentions, learned counsel for the petitioners has placed reliance on the judgment of the Apex Court in BSNL v. R. Santhakumar Veluswamy reported in 2011 (3) SLJ 353, wherein it is held that where advancement to a higher post or pay scale is preceded by a process involving selection, comparative merit or suitability, the same would amount to a promotion. The learned counsel for the petitioners also places reliance on the decision of the Co-ordinate Bench of

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this Court in Union of India and Others v. M.G. Shivalingappa, by order dated 02.08.2018 , passed in W.P.No.57935/2017 and the decision of the Dharwad Bench of this Court in Union of India and Others v. R.K. Kulkarni, by order dated 27.11.2018 , passed in W.P.No.102322/2018 wherein appointment to the cadre of Postal Assistant/Sorting Assistant through departmental examination was held to be a promotion and not a direct

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recruitment. It is urged that the respondent, having retired from service on 31.10.2010, questioned the denial of the third MACP benefit only in the year 2017 and, therefore, the Original Application suffered from delay and laches.

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Per contra , learned counsel appearing for the respondent seeks to justify the order passed by the Tribunal and contends that the respondent was entitled to the benefit of the third financial up-gradation under the Modified Assured Career Progression Scheme with effect from 01.09.2008. It is submitted that the Tribunal, upon consideration of the material placed on record and the decisions relied upon before it, has rightly directed extension of the said benefit and that the impugned order does not warrant interference in exercise of the writ jurisdiction of this Court.

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Having considered the rival submissions and perused the material on record, the question that falls for consideration is whether the respondent, who entered

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service as a Postman and thereafter came to be appointed as Postal Assistant on being successful in the Limited Departmental Competitive Examination conducted for departmental officials, is entitled to the benefit of the third financial up-gradation under the Modified Assured Career Progression Scheme with effect from 01.09.2008.

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The material on record discloses that the respondent entered service as a Postman on 20.03.1971 and was thereafter appointed as Postal Assistant with effect from 02.04.1976 through the channel earmarked for departmental candidates under the Recruitment Rules. The Recruitment Rules contemplate filling up of only 50% of the posts by direct recruitment, while the remaining vacancies are filled from amongst eligible departmental officials through a Limited Departmental Competitive Examination. Therefore, the respondent's appointment as Postal Assistant cannot be equated with a direct recruitment appointment.

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It is observed that once the appointment to the

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cadre of Postal Assistant is held to be through a promotional channel, the benefit secured by the respondent on 02.04.1976 is liable to be reckoned while considering his entitlement under the MACP Scheme. The record further discloses that the respondent was subsequently granted the benefits under the TBOP Scheme with effect from 02.04.1992 and under the BCR Scheme with effect from 01.07.2002. Paragraph 8 of Annexure-R1 to the MACP Scheme specifically requires past promotions and financial up-gradations to be taken into account for the purpose of MACPS.

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In M.G. Shivalingappa’ s case (supra) and R.K. Kulkarni’ s case (supra) the Co-ordinate Bench of this Court held that appointment to the cadre of Postal Assistant/Sorting Assistant through the departmental channel constitutes a promotion and that an employee who has already availed one promotion and two financial up-gradations cannot claim a further benefit under the

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MACP Scheme. The principle laid down therein squarely governs the facts of the present case.

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The Tribunal, while granting relief, proceeded on the basis that the respondent's appointment as Postal Assistant could be treated as the direct entry grade for the purpose of MACPS. Such an approach, in the facts of the present case, is contrary to the Recruitment Rules and the scheme governing financial up-gradations. Consequently, the direction issued to extend the benefit of the third financial up-gradation under the MACP Scheme with effect from 01.09.2008. The impugned order therefore, warrants interference.

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