Dismissed

Rubber Board, Represented by Its Secretary v. Dr.Tharian George K

Kerala HC16 Jun 2017WA/1063/2017

Case brief

AI extract

What is this about?

The court dismissed the Rubber Board's appeal against a single judge's order granting a retired employee MACP benefits. The bench resolved that tenure for MACP calculation includes continuous service where grade pay remained unchanged despite a new direct recruit appointment.

What did the court decide?

The appeal was dismissed; the direction to grant MACP benefits with effect from 27.04.2015 was upheld.

Rubber Board, Represented by Its Secretary Vs… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939

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WA. No.1063 of 2017 ()

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(AGAINST THE JUDGMENT IN WP(C) NO.30059/2015 DATED 02-02-2017.)

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APPELLANT(S)/1ST RESPONDENT IN WP:

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RUBBER BOARD, REPRESENTED BY ITS SECRETARY, SUB JAIL ROAD, KOTTAYAM - 686 002.

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BY ADVS.SRI.V.ABRAHAM MARKOS

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SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS

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RESPONDENT(S)/WRIT PETITIONER & RESPONDENTS 2 & 3 IN WP:

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DR.THARIAN GEORGE K.,

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JOINT DIRECTOR(ECONOMICS), RUBBER RESEARCH INSTITUTE OF INDIA, RUBBER BOARD P.O., KOTTAYAM - 686 009.

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UNION OF INDIA, REPRESENTED BY SECRETARY TO ITS GOVERNMENT, DEPARTMENT OF COMMERCE, MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA, NEW DELHI - 110 001.

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DEPARTMENT OF PERSONNEL AND TRAINING, REPRESENTED BY ITS DIRECTOR, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA, UDYOG BHAVAN, RAFI MARG, NEW DELHI - 110 001.

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R2,R3 BY ADV. SRI.H.GOPAKUMAR, CGC

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R1 BY ADV. SRI.ASOK M.CHERIAN BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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NAVANITI PRASAD SINGH, C.J. &

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RAJA VIJAYARAGHAVAN V., J.

W.A. No.1063 of 2017

Dated this the 16^th day of June, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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The Rubber Board constituted under the Rubber Act, 1947 is in appeal, being aggrieved by a part of the judgment of the learned Single Judge dated 02.02.2017 passed in W.P.(C) No.30059 of 2015. The first respondent in this appeal is the writ petitioner.

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We have heard the parties at length and with their consent, we are disposing of this appeal at this stage itself.

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The facts are not in dispute. The first respondent joined the Rubber Board on 18.06.1985. On 26.04.1993, he was appointed to the post of Deputy Director (Economic Research) in the Rubber Board through direct recruitment. He completed 12 years of service as Deputy Director (Economic Research) on 27.04.2005 and thus became entitled to benefits under the Assured Career Progression (ACP) Scheme. Under the said scheme, he became entitled to the next higher pay scale. This was apparently sanctioned on 03.11.2005. Again, through the process of direct recruitment, the

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first respondent joined the post of Joint Director (Economic Research) in the Rubber Board on 13.07.2006. However there was no increment in his pay or grade pay. Rather, he was, as a Deputy Director, drawing or was given more than what he was entitled as Joint Director, and thus was given a sort of pay protection. He superannuated on completion of 60 years of age with effect from 31.05.2016.

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What brought the first respondent to this Court was the dispute with regard to the quantification of benefits under the ACP Scheme. The appellant has alleged that there were some miscalculations and as such, had issued a memo for recovery thereof. This is what was challenged. This is what is borne out from Exhibits P13 and P14 to the writ petition. During the pendency of the writ petition, the first respondent superannuated and apparently, he was denied MACP i.e. Modified Assured Career Progression benefits, which scheme had come into force in 2009. The scheme was framed by the Central Government, which is Exhibit P7. Accordingly, the writ petition was amended. Consequently, the first respondent urged this Court for a direction with regard to the eligibility of the benefits under the MACP.

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The writ petition was contested by the respondent therein, the Rubber Board. After hearing the parties, the writ petition was allowed by judgment dated 02.02.2017. The learned single Judge disposed of the matter and the operative part can be found in paragraph (13) of the judgment, which is quoted hereunder:

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“Therefore Exts.P13 and P14 are unsustainable and hence set aside. It is declared that the petitioner will be entitled to get his pay restored to that of S21 scale based on the first ACP granted to him and there shall be a direction to consider the case of the petitioner for financial up gradation under the MACP scheme with effect from the date of completion of 10 years in the grade of (S21) after grant of ACP and to grant him the same. Since the petitioner has already retired from service, on such restoration of his pay and grant of MACP, the retirement benefits of the petitioner shall be recomputed, refixed and disbursed to the petitioner within a period of 'three months' from the date of receipt of a copy of the judgment.”

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As would be seen from the aforesaid paragraph, it is in two parts. First in relation to ACP where, Exhibits P13 and P14 have been quashed. Then, there is a direction to consider the case of the first respondent for financial upgradation under the MACP Scheme with effect from the date of completion of 10 years “in the grade of

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(S21) after grant of ACP”. It is this latter part, against which this intra court appeal has been filed by the Rubber Board.

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Learned counsel for the Rubber Board submits that MACP was not a point of dispute before the learned single Judge. At best, the learned single Judge could have directed the Rubber Board to consider the grant and pass appropriate orders, but a positive direction ought not to be issued. We cannot accept this submission for the simple reason that the writ petition, as we have already noted above, was amended upon superannuation of the first respondent during pendency of the writ petition and in the amendment petition, it was specifically pointed out that the Board was denying him the right to receive financial upgradation under the MACP Scheme. Thus, there were two issues before the learned single Judge. One is with regard to the ACP and the second by virtue of the amendment of the writ petition with regard to the MACP. The paragraph quoted above decided the two issues. Thus, this objection of the appellant cannot be sustained.

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Learned counsel for the appellant, however, submits that in fact the first respondent is not entitled to the benefits of upgradation under the MACP Scheme in as much as he joined the

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post of Joint Director (Economic Research) by direct recruitment on 13.07.2006. The first financial upgradation would have to be 10 years thereafter and in the case of the first respondent that would be on 12.07.2016, by which time he had already superannuated on 31.05.2016. He would thus, not be entitled to the benefits under the MACP Scheme.

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Reliance was placed on Exhibit P7 scheme and in particular, paragraphs (1) and (9) thereof. He has also drawn our attention to Exhibit P6 order of appointment in respect of the first respondent to the post of Joint Director and in particular, paragraph (2) thereof. For ready reference, paragraphs (1) and (9) of Exhibit P7 and paragraph (2) of Exhibit P6 dated 13.07.2006 are quoted hereunder:

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“1. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. Financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade-pay.”

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xxx xxxxx xxxxxx xxx

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'Regular service' for the purposes of the MACPS shall commence from the date of joining a post in a

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direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on 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 a 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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xxx xxxxx xxx

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The appointment in the new post will take effect from the date on which he assumes duty in the said post and will not confer any right or claim other than the emoluments attached to the said post.”

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On the other hand, learned counsel for the first respondent submits that the learned single Judge was correct in directing the Board to take into consideration, for the purpose of MACP, the service of the first respondent from the date of grant of ACP. His simple contention was that on the appellant's own showing, the first

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respondent's grade of pay did not change when he joined as Joint Director (Economic Research) by direct recruitment. His emoluments as Deputy Director consequent to the grant of ACP was itself higher than that of the Joint Director (Economic Research) and it is for this reason, he had to be granted pay protection. That being so, the service tenure would have to be calculated from 27.04.2005, when he became entitled to ACP. Taking 10 years period from then, he would be entitled to the grant of MACP with effect from 27.04.2015, virtually a year before he superannuated and thus, grant of MACP would not only upgrade his remunerations for the last one year, but would automatically effect his retiral benefits. The learned single Judge was thus, right in issuing the direction and the contention of the appellant Board is not correct.

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We have considered the submissions and in our view, the learned single Judge had not erred in any manner. The submission of the first respondent is correct. We are unable to accept the submissions as made on behalf of the appellant.

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We may first refer to the Exhibit P6 office memorandum dated 13.07.2016 whereby, the first respondent was appointed to the post of Joint Director (Economic Research), clause (2) of which

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reliance was placed by the appellant and quoted above, in our view, only stipulates that the first respondent would not claim any other emoluments than the emoluments attached to the post. This cannot mean that he would not be entitled to claim MACP. That is an emolument by virtue of the scheme to which, every employee who satisfy the conditions therein would become entitled to. Thus this clause is of no assistance or help to the appellant.

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We may then, refer to clause (1) of Exhibit P7 scheme as quoted above. With reference to the said clause, learned counsel for the appellant lays emphasis upon the expression “counted from the direct entry grade” and last expression “same grade-pay”. It is submitted on behalf of the appellant that if this is read along with the first part and paragraph (9) of the scheme, it could be seen that as the first respondent had joined the post of Joint Director (Economic Research) on 13.07.2006 by direct recruitment and remained on that grade pay till his superannuation, the starting point for calculating 10 years period would be 13.07.2006 and the end point would be after he had superannuated. We are unable to accept this contention. We have to read paragraphs (1) and (9) of the scheme together and in particular, paragraph (9) as a whole.

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No doubt, learned counsel for the appellant is correct in his submission that if we read only the first half of paragraph (9) of the scheme as quoted above. But, that first half is followed by another part which starts with the expression “however”. The use of this expression “however” clearly signifies notwithstanding the above. If we read the second part of paragraph (9), the scheme is clear.

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The normal rule would be that the 10 years period would be counted from the time the first respondent enters service through direct recruitment. However, past continuous regular Government service earlier in a post carrying the same grade pay prior to regular appointment in a new department, without a break, shall also be counted towards qualifying regular service for the purpose of MACP. Applying this to the facts of the case, it is clear that the first respondent was granted ACP on 27.04.2005, when he was working as Deputy Director. When he joined through direct recruitment to the post of Joint Director w.e.f. 13.07.2006, there was no change in his grade pay, rather he had been receiving more earlier which was preserved. Thus, for the purpose of counting the period of 10 years in the case of the first respondent, the relevant date would be when his grade pay etc. were fixed upon grant of ACP

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on 27.04.2005 in the post of Deputy Director itself. As a consequence thereof and corollary to that, 10 years period would fall on 27.04.2015, when admittedly, he was still in service. Thus, there cannot be a denial of MACP and the date was also set right by the learned single Judge as demonstrated by us. We thus, find no merit in this appeal. It is accordingly dismissed.

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However, before parting, we would like to point out that the first respondent has since superannuated more than a year back, the appellant would immediately calculate and give effect to the benefits under the MACP Scheme as expeditiously as possible, preferably within three months from today.

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Sd/Navaniti Prasad Singh, Chief Justice

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Sd/Raja Vijayaraghavan V., Judge

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krj.17/6

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/TRUE COPY/

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P.A. TO JUDGE

Rubber Board, Represented by Its Secretary v. Dr.Tharian George K

Case brief

What is this about?

What did the court decide?

Rubber Board, Represented by Its Secretary v. Dr.Tharian George K

Case brief

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