Dismissed

Telson Noronha v. Union of India

Kerala HC3 Dec 2019OP (CAT)/10/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition challenging the rejection of claims for Assured Career Progression (ACP) and Modified ACP (MACP) benefits. The court held that a prior promotion to a higher category dis-entitles an employee from ACP for stagnation in the initial post before a merger of posts occurred, as relating the merger to the prior date would amount to putting the clock back.

What the court decided

AI extract

Telson Noronha Vs Union of India — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941

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O.P.(CAT).No.10 OF 2014(Z)

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AGAINST THE ORDER IN OA 56/2012 DATED 19.06.2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/S:

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TELSON NORONHA, AGED 49 YEARS, S/O.ANTONY NORONHA, SENIOR TECHNICAL ASSISTANT, CENTRE FOR MARINE LIVING RESOURCES & ECOLOGY (CMLRE), MINISTRY OF EARTH SCIENCES, BLOCK - C, VI FLOOR, KENDRIYA BHAVAN, P.B.NO.5415, CSEZ P.O., COCHIN - 682 037.

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BY ADVS.

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SRI.M.A.SHAFIK SMT.SHAMEENA SALAHUDHEEN

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RESPONDENT/S:

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1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF EARTH SCIENCES, GOVERNMENT OF INDIA, NEW DELHI - 110 001.

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2 THE DIRECTOR (ADMIN), MINISTRY OF EARTH SCIENCES, MAHASAGAR BHAVAN, BLOCK - 12, C.G.O. COMPLEX, LODHI ROAD, NEW DELHI - 110 003.

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3 THE DIRECTOR, CENTRE FOR MARINE LIVING RESOURCES & ECOLOGY (CMLRE), MINISTRY OF EARTH SCIENCES, BLOCK - C, VI FLOOR, KENDRIYA BHAVAN, P.B.NO.5415, CSEZ P.O., COCHIN - 682 037.

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R1-R3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(CAT).10 of 2014

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K.Vinod Chandran & V.G.Arun, JJ.

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O.P(CAT) No.10 of 2014

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Dated this the 03^rd day of December, 2019

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JUDGMENT

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K.Vinod Chandran,J:

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The petitioner, applicant before the Tribunal, is

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aggrieved with the rejection of his claim for Assured Career Progression ('ACP' for short) from 2001 and the second Modified Assured Career Progression ('MACP' for short) from 2009.

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2. The admitted facts are that the applicant initially joined service at Opto-Electronics Factory, Dehradun in the Department of Defence Production on 13.03.1989 in the scale of pay of Rs.1400-2300 as a Supervisor. He joined the respondent-Organization on deputation in the very same scale of pay as Technical Assistant ['TA' for short] on 29.11.1991 and was absorbed under the respondent on 20.05.1993. Later, he was again appointed on deputation to the post of Senior Technical Assistant ['STA' for short] in the scale of pay of Rs.1640-2900,which was affirmed as a promotion; with effect from 02.12.1998. The promotional hierarchy available in the respondent-Organization was Junior Technical Assistant ['JTA' for short], TA and STA in that ascending order.

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3. The ACP Scheme introduced on 09.08.1999 provided for two financial up-gradations on stagnation; the first on completion of 12 years and the next on completion of 24 years. Since in the first 12 years the petitioner was promoted once, he was dis-entitled from the first financial up-gradation as per the ACP. With effect from 01.01.2006, the 6^th Pay Commission recommendations were implemented. There was a merger of the posts of JTA, TA and STA with effect from 01.01.2006; which together were placed in the pay band of Rs.9300-34800 with Grade Pay ['GP' for short) of Rs.4200/-.

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4. MACP Scheme was introduced on 01.09.2008,

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which provided for three financial up-gradations on stagnation, after completion of 10, 20 and 30 years, where the employee stagnated in any of the block periods. The petitioner having been continued in the post of STA from 02.12.1998, was granted the 1^st up-gradation of MACP on completion of 10 years on 01.09.2008 and the second up-gradation of MACP on 13.03.2009, as per the counter affidavit dated 13.01.2014 filed in the O.P.(CAT). This is after introduction of MACP Scheme, the first up-gradation being computed from 02.02.1998, i.e., effective date of his first promotion as STA and the second up-gradation

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on the basis of his initial appointment in 1998 and completion of 20 years.

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5. The petitioner, aggrieved with the fact that he had been continued in the same post with one promotion for long years and also the heart-burn occasioned due to his juniors also being entitled to the very same pay scale/band on merger of the posts, filed a representation claiming ACP on completion of 12 years from the initial appointment and MACP on completion again of 20 years from the initial appointment. What the applicant wanted effectively was the grant of ACP in the year 2001 for reason of the merger of the two posts by the 6^th Pay Commission, which happened in 2006.

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6. The representation was declined by the official respondents, finding that the applicant was regularly absorbed in the post of TA only with effect from 20.05.1993 and his first ACP could have been considered on 20.05.2005; but for his promotion in the year 1998, i.e., within 12 years, within which period he cannot be said to have stagnated. As far as the MACP is concerned, for reckoning 20 years his initial appointment in the post of TA was reckoned. We cannot agree with the date reckoned of 1993, in consideration of ACP, as his initial appointment since

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O.P(CAT).10 of 2014

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that, though in another department, occurred in 1998. But that is of little consequence since even then the first ACP would have arisen in 2001, before which he was granted a promotion from TA to STA.

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7. Sri.M.A.Shafik, learned Counsel for the

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petitioner would emphasize the fact that after 23 years of service the petitioner-applicant was continuing in the same pay, which, on merger of the three categories of TA, resulted in his juniors also being conferred with the same benefits of pay. Annexure A9 produced in the O.A. is pointed out to contend that there was a merger effected, which essentially resulted in effacing the promotion of the petitioner. The post of TA and STA were merged, thus entitling the petitioner for the first ACP benefit in 2001. Reference also is made to Annexure A1 to contend that the clarification issued there would enable the claim of ACP to the petitioner in 2001. A similarly placed person was granted the very same benefits by the Tribunal, as discernible from Exhibit P5, argues learned Counsel to further urge discrimination.

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8. The learned Assistant Solicitor General of India, who appeared for the official respondents, stoutly argued for sustaining the order of the Tribunal. The

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Tribunal's order was specifically referred, to contend that what the petitioner-applicant seeks is to put the clock back and give him a benefit in the year 2001 on the basis of a merger effected in the year 2006. No such benefit can be conferred on the petitioner, is the compelling argument of the learned ASG.

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9. We are also convinced that there is absolutely no claim available to the petitioner to contend that his first promotion should be treated as effaced for the purpose of granting the first financial up-gradation as per the ACP Scheme. Essentially we have to consider the claim for ACP in the year 2001, in accordance with the position as existing at that point of time. Admittedly at that point of time TA and STA were posts in the hierarchy of promotion, former being the feeder category for the latter. In 2001 when the petitioner completed 12 years after his initial entry into service, he had already obtained a promotion to a higher pay scale. This specifically dis-entitles the petitioner from a financial up-gradation which was available only on stagnation in the entry post.

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10. We also look at Annexure A9 specifically referred to by the learned Counsel, which has the date 18.07.2011. After merger of the three categories of

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scientific posts of JTA, TA and STA, the only post available was of 'STA', which merger occurred only from 01.01.2006, being the date of implementation of the 6^th Pay Commission. We do not find anything in Annexure A9 to sustain the claim put forth by the petitioner of a retrospective ACP, on the sole ground of merger of posts.

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11. Next we look at Annexure A11, relied upon by the petitioner, which is dated 10.02.2000. Annexure A11 is a clarification issued with respect to the 5^th Pay Commission recommendations. The attempt of the petitioner is to draw a corollary and enable rectification of alleged anomalies in the 6^th Pay Commission recommendations on similar lines. Though this clarification is with respect to the earlier pay-revision; we would look at it as generally applicable in identical situations for reason of the principle being very appealing. The first clarification sought for is as to how the ACP has to be granted in case of merger of two categories of posts in different pay scales; the higher category being a promotion post of the former. This is definitely an identical situation that occurred in the implementation of the 5^th Pay Commission recommendations.

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12. We specifically look at the clarification, which indicates only this, that if there is a merger of posts, a promotion to the merged higher post granted prior to the implementation of the Pay Commission recommendation need not be taken as dis-entitling the grant of financial up-gradation under the ACP. This does not provide for a

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financial up-gradation on a date prior to the recommendation of the 6^th Pay Commission implementation. We have to first notice that such a clarification has not been produced insofar as the 6^th Pay Commission recommendations. Even then, we reiterate our acceptance of the principle as one having general application across the board and quite reasonable in the context of merger of posts, which were earlier in the promotional hierarchy.

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13. Drawing an illustration, an employee who joined the entry post in the year 1996 if before the implementation of the 6^th Pay Commission recommendations on 01.01.2006 was promoted to a higher category and both the posts stood merged as on 01.01.2006, he would be entitled to claim the first financial up-gradation as per the ACP in the year 2008 on completion of 12 years from the date of his first entry in service, since the promotion he obtained within the 12 year period stood effaced by the merger of

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the posts, again within the 12 year period. This would not enable a person whose date of ACP arose prior to the merger of posts; at which time the two posts remained distinct in the hierarchy of posts. We are unable to accept the contention of the petitioner-applicant in that respect.

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14. Now we refer to Exhibit P5 order of the

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Tribunal relied on as identical. Exhibit P5 is on a totally different claim raised for promotion to the post of Scientist 'B' reckoning the entire service of the applicant therein as STA, which post stood merged with that of TA on 01.01.2006. Here the situation is akin to that we noticed in the illustration above. The applicant therein was appointed as TA on 10.01.2000. On merger of the posts, effective from 01.01.2006, he became a STA; not on promotion, but on merger. After completion of 8 years of service in the grade, i.e., in 2008, when promotions were notified to the post of Scientist 'B', the applicant staked a claim on the ground that he had 8 years continuous service from 2000; which was the eligibility criteria. The respondents resisted the contention on the ground that the applicant became a STA only in 2006 on merger of the posts. Hence, he would be entitled to be considered for the promotion post of Scientist 'B'; only after 31.12.2013; the

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O.P(CAT).10 of 2014

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qualifying service of 8 years commencing from the date of merger, was the stand of the official respondents.

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15. The Tribunal, however, relied on a

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notification dated 17.01.2012, which was extracted in the order. Paragraph 2 of the notification indicated so:

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“2. All the officers appointed on or before the effective date shall be deemed to have been appointed in the grade and they shall be members of the service in the respective grades and the regular continuous service of officers shall count for the purpose of promotion, qualifying service for promotion, confirmation and pension in the service”.

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Hence, though the merger was made effective from 01.01.2006, all officers appointed on or before the effective date were deemed to have been appointed in the same grade for promotion. This is similar to the clarification at Annexure A11. In this instance the applicant would have been entitled to ACP benefits also from his initial date of appointment, if the further promotion to Scientist 'B' had not been granted, on completion of 12 years subject only to the Scheme being in vogue, which admittedly was substituted with MACP.

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16. Here we have to notice that when second

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up-gradation under MACP was due to the petitioner he was granted that, reckoning 20 years from the date of his initial appointment. This is the benefit accrued by the

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O.P(CAT).10 of 2014

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merger, which is evident from the clarification at Annexure A11. In this context, we again refer to the illustration made by us and if the applicant in Exhibit P5 appointed in the year 2000 as a TA was promoted as STA before 01.01.2006, after the implementation of the 6^th Pay Commission recommendations on 01.01.2006 he would be treated as continued as STA from 2000 for the purpose of promotion as also ACP and MACP. The distinction, as we noticed in the petitioner's case, is that the very date for grant of ACP came before the merger and to relate the merger to that date or the prior date on which promotion was granted; itself is in effect putting the clock back as rightly found by the Tribunal.

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For all the above reasons, we do not find any

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reason to interfere with the order of the Tribunal. We reject the Original Petition (CAT), without any order as to costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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O.P(CAT).10 of 2014

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	TRUE COPY OF THE MOES/25/32/2009-E ISSUED BY THE 2ND	LETTER NO. STT DATED 25.10.2011 RESPONDENT.
ANNEXURE A2	TRUE COPY OF THE ESTT DATED 01.01. RESPONDENT.	ORDER NO. MOES/25/32/2009 2010 ISSUED BY THE 2ND
ANNEXURE A3	TRUE COPY OF THE NO.MOES/25/32/200 ISSUED BY THE 2ND	CORRIGENDUM 9 ESTT DATED 28.10.2010 RESPONDENT.
ANNEXURE A4	TRUE COPY OF THE 10.05.1993 ISSUED OPTO ELECTRONICS	ORDER NO.1051 DATED BY THE GENERAL MANAGER FACTORY, DEHRADUN
ANNEXURE A5	TRUE COPY OF THE ISSUED BY THE JOI ELECTRONICS FACTO	LETTER DATED 15.05.2010 NT DIRECTOR AND PIO, OPTO RY, DEHRADUN
ANNEXURE A6	TRUE COPY OF THE ISSUED BY THE JOI ELECTRONICS FACTO	LETTER DATED 19.05.2010 NT DIRECTOR AND PIO, OPTO RY, DEHRADUN
ANNEXURE A7	TRUE COPY OF THE 07.12.07 OF PAGE OF THE 6TH CPC.	RELEVANT EXTRACT OF PARA 426 OF THE RECOMMENDATIONS
ANNEXURE A8	TRUE COPY OF THE C, SECTION II PAG NOTIFICATION DATE BY THE DEPARTMENT OF FINANCE.	RELEVANT EXTRACT OF PART- E NO.53 OF THE D 29TH AUGUST,2008 ISSUED OF EXPENDITURE , MINISTRY
ANNEXURE A9	TRUE COPY OF THE ESTT. DATED 18.07 RESPONDENT MINIST	OM NO. MOES/25/07/2010- .2011 ISSUED BY THE 1ST RY.
ANNEXURE A10	TRUE COPY OF THE SUBMITTED BEFORE OF THE 1ST RESPON	APPEAL DATED 18.08.2011 THE ADDITIONAL SECRETARY DENT.
ANNEXURE A11	TRUE COPY OF THE PER O.M.NO.35034/ DATED 10.02.2000	CLARIFICATION ISSUED AS 01/1997-ESTT (D) (VOL.IV) ISSUED BY DOPT.

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ANNEXURE A12	TRUE COPY OF THE ORDER NO.1051 DATED 10.06.1998 ISSUED BY THE ASST.GENERAL MANAGER, OPTO ELECTRONIC FACTORY, DEHRADUN.
ANNEXURE A13	TRUE COPY OF THE LETTER DATED 19.05.2012 RECEIVED UNDER RTI.
ANNEXURE A14	TRUE COPY OF THE NOTIFICATION NO. MES/25/7 2010-ESTT-DATED 17.01.2012 ISSUED BY THE 1 ST RESPONDENT.
ANNEXURE A15	TRUE COPY OF THE RELEVANT PAGES OF THE 6TH CPC RECOMMENDATIONS.
ANNEXURE A16	TRUE COPY OF THE LETTER NO. MOES/25/32/2009 ESTT-DATED 05.04.2010 ISSUED BY THE RESPONDENT.
ANNEXUREA 17	TRUE COPY OF THE REPRESENTATION DATED 20.05.2010 SUBMITTED BY THE APPLICANT.
ANNEXURE A18	TRUE COPY OF THE REPRESENTATION DATED 30.05.2010 SUBMITTED BY THE APPLICANT
ANNEXURE A19	TRUE COPY OF THE REPRESENTATION DATED 31.09.2010.
ANNEXURE R1	TRUE COPY OF THE G.I.M.F. RESOLUTION NO. 50(1) IC/97 DATED 30.09.1997
ANNEXURE R2	TRUE COPY OF THE PART A, SECTION I OF THE FIRST SCHEDULE TO THE REVISED PAY RULES.
ANNEXURE R3	TRUE COPY OF THE MACP SCHEME
EXHIBIT P1	TRUE COPY OF THE ORIGINAL APPLICATION NO.56/2012 FILED BEFORE THE C.A.T.
EXHIBIT P2	TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.56/2012 BEFORE THE C.A.T.
EXHIBIT P3	TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN O.A.56/2012 BEFORE THE C.A.T.
EXHIBIT P4	TRUE COPY OF THE ADDL. REPLY STATEMENT FILED BEFORE THE C.A.T. IN O.A.56/2012.
EXHIBIT P5	TRUE COPY OF THE ORDER DATED 07.08.2011 OF THE C.A.T. ERNAKLAM BENCH IN O.A.1091/2011.

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O.P(CAT).10 of 2014

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EXHIBIT P6 TRUE COPY OF THE OFFICE MEMORANDUM F.NO.MOES/19/03/2012-ESTT DATED 13.05.2013 ISSUED BY THE RESPONDENTS.

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EXHIBIT P7 TRUE COPY OF THE OFFICE ORDER NO.MOES/19/03/2012-ESTT DATED 10.12.2013 ISSUED BY THE RESPONDENTS.

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EXHIBIT P8 TRUE COPY OF THE OFFICE ORDER NO.MOES/2532/2009-ESTT DATED 28.10.2010 ISSUED BY THE RESPONDENTS.

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 19.06.13 IN O.A.56/12 CAT ERNAKULAM BENCH.

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DOCUMENTS PRODUCED ALONG WITH REPLY AFFIDAVIT DT.10.02.2015

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 07/08/2012 OF THE CAT IN OA NO.1091/2011.

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EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.MOES/25/7/2010-ESTT DATED 17/01/2012 ISSUED BY THE RESPONDENTS.

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EXHIBIT P11 TRUE COPY OF THE OFFICE ORDER NO.MOES/19/03/2012-ESTT DATED 10/12/2013 ISSUED BY THE RESPONDENTS.

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EXHIBIT P12 TRUE COPY OF THE OM NO.MOES/19/03/2012-ESTT DATED 13/05/2013 ISSUED BY THE RESPONDENTS.

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EXHIBIT P13 TRUE COPY OF THE ORDER NO.MOES/25/32/2009-ESTT DATED 06/03/2013 ISSUED BY THE RESPONDENTS.

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[TRUE COPY]

Telson Noronha v. Union of India

Case brief

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Telson Noronha v. Union of India

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