Allowed

The Secretary (Power) v. Shri.K.Mathai

Kerala HC15 Nov 2019OP (CAT)/298/2019

Case brief

AI extract

What is this about?

The High Courtrejcted the objections raised by the Secretary, Andaman & Nicobar Administration, against the Central Administrative Tribunal's order allowing an employee's claim for third up-gradation under the MACP Scheme. The court held the employee was entitled to benefits based on his 1981 appointment date and dismissed the delay objection.

What did the court decide?

The applicant shall be granted the arrears of pay as also the pension fixed accordingly and the arrears due thereof shall also be disbursed.

The Secretary (Power) Vs Shri.K.Mathai — 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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FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941

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OP (CAT).No.298 OF 2019

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AGAINST THE ORDER IN OA NO.734/2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONERS/RESPONDENTS:

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1 THE SECRETARY (POWER), ANDAMAN AND NICOBAR ADMINISTRATION, PART BLAIR, ANDAMAN AND NICOBAR ISLAND, PIN-744 101

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2 THE SUPERINTENDING ENGINEER, ELECTRICITY DEPARTMENT, PORT BLAIR, ANDAMAN AND NICOBAR ISLAND, PIN-744 101

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3 THE EXECUTIVE ENGINEER, ELECTRICITY DEPARTMENT, SOUTH ANDAMAN DIVISION, HADDO P.O., PORT BLAIR, ANDAMAN AND NICOBAR ISLAND, PIN-744 101

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4 THE PAY AND ACCOUNTS OFFICER, OFFICE OF THE CHIEF PAY & ACCOUNT OFFICE, ANDAMAN AND NICOBAR ADMINISTRATION, PIN -744 101

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BY ADV. SRI.P.VIJAYAKUMAR

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RESPONDENT/APPLICANT:

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SHRI.K.MATHAI, S/O. SHRI.M.KOSHI LINEMAN (RETD), ELECTRICITY DEPARTMENT PORT BLAIR, ANDAMAN AND NICOBAR ISLAND -744 101 R/O. CHRAKOROTTU HOUSE, KADAKKAD SOUTH PANDALAM, PATHANAMTHITTA DISTRICT, KERALA-689 501

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BY SRI.M.A.SHAFIK

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 15.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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K. Vinod Chandran, J.

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The applicant is the Secretary, Andaman & Nicobar Administration. Andaman & Nicobar is under the jurisdiction of the High Court of Calcutta. But it is clear from the records that the applicant, a native of Kerala, had retired as early as on 01.04.2012 and has taken up residence in his native place, which is within our jurisdiction. His claim is also against the orders issued, cancelling his third up-gradation as per the Modified Assured Career Progression Scheme [for brevity, 'the MACP Scheme'], which was issued after his retirement and served on him along with a response to a query under the Right to Information Act, 2005 served on him within the State of Kerala. Hence we find no fault in the Tribunal having assumed jurisdiction in entertaining the original application challenging the said order.

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2. The Tribunal allowed the claim on the

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OP (CAT).No.298 OF 2019

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ground that even as per the clear admission made by the respondents in the Counter Affidavit, it is evident that the applicant had regular service as a Mazdoor from 20.07.1981, which enables him to be granted the third up-gradation under the MACP Scheme after completion of 30 years, as on 20.07.2011, just prior to his retirement.

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3. The learned Assistant Solicitor General of India appearing for the Administration would contend that the applicant's appointment on 20.07.1981 is as an 'Adhoc Mazdoor'. He had been regularised only by Ext.R1 in the post of Lineman from 24.12.1996 w.e.f. 12.04.1993. Hence the computation of completed year of service can only start from 12.04.1993. It is also pointed out that as per Ext.R2, the applicant was granted the first up-gradation as per the earlier Assured Career Progression Scheme [for brevity, 'the

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ACP Scheme'] with effect from 12.04.2005, computing the 12 years' service from 12.04.1993.

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4. The learned Counsel for the applicant, per contra, takes us through the various documents

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OP (CAT).No.298 OF 2019

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produced in the OA to establish that he had been regularly appointed from 20.07.1981 and had also been granted second upgradation under the ACP Scheme from 20.07.2005. He had not sought for the first upgradation as per the ACP Scheme for reason of his promotion as a Lineman on 12.04.1993.

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5. We have to first look at the documents produced by the applicant in the OA. Annexure-A4 is an order dated 20.07.1981, which appointed the 16 persons mentioned therein as 'Regular Mazdoors' on adhoc basis on a regular scale of pay. It is also seen from Annexure-A4 that all these persons, who have been appointed as 'Regular Mazdoors', were earlier working as 'Casual Mazdoors'. The applicant was one named therein. The appointment as 'Regular Mazdoor' was continued and granted quasi permanent status as per Annexure-A5 22.12.1986. The quasi permanent status of the applicant was dated back to 20.07.1984 by Annexure-A5. Again the applicant was appointed as a Lineman on adhoc basis on a regular scale of pay by Annexure-A6. The said appointment was

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OP (CAT).No.298 OF 2019

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also regularised as is seen from Ext.R1 w.e.f. 12.04.1993, that is the date of his adhoc appointment as Lineman.

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6. What is relevant is the fact that in the year 2009 by Ext.R2 order dated 09.02.2009, he was granted the second up-gradation under the ACP Scheme and his date of eligibility was shown as 20.07.2005.

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This date of eligibility has to be dated back to 20.07.1981, his appointment as a 'Regular Mazdoor' on adhoc basis, since the 2^nd up-gradation under the ACP Scheme is granted on completion of 24 years.

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7. There is absolutely no dispute as to

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Ext.R2 having been issued on 09.02.2009, since this document itself is produced by the Administration. Later, by a communication produced as Ext.R2/2 dated 10.06.2010, the applicant was granted first upgradation under ACP Scheme from 12.04.2005. We fail to understand, when the second up-gradation as per the ACP Scheme was granted from 20.07.2005, how there could be a first up-gradation granted from 12.04.2005, which is only three months apart, whereas

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OP (CAT).No.298 OF 2019

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the first and second up-gradation should normally have 12 years between them. And here the second upgradation precedes the first one.

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8. We also find from Ext.R2/3 dated 23.03.2012 that the scale of pay granted on the second up-gradation was revised as per this order. Hence even after grant of first up-gradation, there was a revision made of second upgradation showing the correct scale of pay applicable to the applicant. This raises a suspicion as to the document produced as Ext.R2/2, to establish the first up-gradation.

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9. We also notice from paragraph 3 of the reply statement that the Administration has vouched the grant of second ACP by Ext.R2 order and the revision of pay scale alone as per Ext.R2/3 order.

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10. The further interesting aspect is that the applicant was found eligible for the grant of third up-gradation under MACP on completion of 30 years as is evident from Ext.A8. Ext.A8 was an order issued on 29.01.2013, specifically showing the date of eligibility of the applicant, for grant of third

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OP (CAT).No.298 OF 2019

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up-gradation under MACP as on 20.07.2011, the date of completion of 30 years from his original appointment as regular Mazdoor on regular scales of pay. It is admitted that the applicant retired on 01.04.2012.

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11. There is a contention raised by the learned ASGI that despite the cancellation issued as per Ext.A2 dated 17.12.2013, the challenge was made only in the year 2017. The learned Counsel appearing for the applicant explains that he had sought for voluntary retirement only by reason of a stroke suffered by him, on medical grounds. Subsequently he had retired to Kerala and he was also granted pension, but he was not issued with any order as seen from Ext.A2 and later when he felt that he was paid with lesser amounts as pension, he approached the Administration with a request for disbursing his rightful due as pension and an application was submitted under the RTI Act. It was only then the applicant was issued with Ext.A1 letter dated 16.01.2017, enclosing the communication at Ext.A2 dated 17.10.2013. The receipt of the said order was

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OP (CAT).No.298 OF 2019

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in 2017 and immediately thereafter he had approached the Tribunal. We do not see any ground to reject the petitioner's claim for reason of the delay.

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12. In this context we again notice AnnexureA8, which also notice the grant of second MACP and the eligibility of the third up-gradation under the MACP as on 20.07.2005. There is no reason stated as to why the MACP granted has been withdrawn as per Annexure-A2 nor is any notice issued to the applicant before such withdrawal of the benefit granted. We observe from Ext.A2 that there is not even a copy endorsed to the applicant. The records as produced by the Administration itself indicates that the second up-gradation as per the ACP Scheme was granted on 20.07.2005 on completion of 24 years computing regular service from 20.07.1981. The appointment from then onward was to regular posts, though initially

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termed adhoc , regularised later on which deems the initial appointment itself to be regular.

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In such circumstances, there is no reason to deny the applicant, the third up-gradation as per the

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OP (CAT).No.298 OF 2019

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MACP, which is eligible to an employee on completion of 30 years on or after 01.04.2008. The applicant completed his 30 years as on 20.07.2011 and he would be entitled to that. The applicant shall be granted the arrears of pay as also the pension fixed accordingly and the arrears due thereof shall also be disbursed at any rate within a period of three months from the date of receipt of a certified copy of this judgment.

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The original petition is rejected. There is no order as to costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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Sd/-

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V.G. ARUN, JUDGE.

sp/15/11/19

//True Copy//

P.A. To Judge

OP (CAT).No.298 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	-P1		TRUE COPY OF OA NO.180/00734/2017 FILED BY TH PETITIONER DATED 20.08.2017 BEFORE THE CAT, ERNAKULAM BENCH
EXHIBIT	P1	(A1)	TRUE COPY OF THE LETTER F.NO.II- 152/PF/EE/SA/07/107 DATED 16.1.2017 ISSUED BY THE 3RD RESPONDENT
EXHIBIT	P1	(A2)	TRUE COPY OF THE OFFICE ORDER 1575 DATED 17.10.2013 ISSUED BY THE ASST.DIRECTOR (ADMN) OF THE 2ND RESPONDENT
EXHIBIT	P1	(A3)	TRUE COPY OF THE ORDER F.NO.20- 17149/PAO/PB/PEN/1604 DATED 21.6.2013 OF THE 4TH RESPONDENT
EXHIBIT	P1	(A4)	TRUE COPY OF THE OFFICE ORDER NO 68 DATED 20.07.1981 ISSUED BY THE 2ND RESPONDENT
EXHIBIT	P1	(A5)	TRUE COPY OF THE ORDER NO.954 DATED 22.12.1986 OF THE 2ND RESPONDENT
EXHIBIT	P1	(A6)	TRUE COPY OF THE OFFICE ORDER NO.695 DATED 12.04.1993 ISSUED BY THE 2ND RESPONDENT
EXHIBIT	P1	(A7)	TRUE COPY OF THE ORDER NO 579 DATED 23.3.2012 ISSUED BY THE ASST DIRECTOR (ADMN) OR THE -2ND RESPONDENT
EXHIBIT	P1	(A8)	TRUE COPY OF THE ORDER NO.144 DATED 29.1.2013 ISSUED BY THE ASST.DRECTOR (ADMN) OF THE 2ND RESPONDENT
EXHIBIT	P1	(A9)	TRUE COPY OF THE OFFICE ORDER NO.484 DATED 7.3.2012 ISSUED BY THE 4TH RESPONDENT
EXHIBIT	P1	(A10)	TRUE COPY OF THE REPRESENTATION DATED 22.09.2016 BEFORE THE 3RD RESPONDENT
EXHIBIT	P1	(A11)	TRUE COPY OF THE REPRESENTATION DATED 24.01.2017 BEFORE THE 2ND RESPONDENT
EXHIBIT	P1	(A12)	TRUE COPY OF THE REPRESENTATION DATED 27.3.2017 BEFORE THE 2ND RESPONDENT

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OP (CAT).No.298 OF 2019

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EXHIBIT	P1	(A13)	TRUE COPY OF	THE REPRESENTATION DATED
			02.05.2017 SUB RESPONDENT	MITTED BORE THE 1ST
EXHIBIT	P1	(A14)	TRUE COPY OF THE 24.08.2012 ISSUED	OFFICE ORDER NO.17 DATED BY THE 3RD RESPONDENT
EXHIBIT	P2		TUE COPY OF TH 180/00734/2017 BEFORE THE CAT, E	E REPLY STATEMENT IN OA DATED 05.01.2018 FILED RNAKULAM BENCH
EXHIBIT	P2	(A1)	TRUE COPY OF THE 24.12.1996	OFFICE ORDER NO.5358 DATED
EXHIBIT	P2	(A2 )	TRUE COPY OF THE 09.02.2009 AND OR	OFFICE ORDER NO.161 DATED DER NO.579 OF 23.03.2012
EXHIBIT	P2	(A3)	TRUE COPY OF THE POST OF LINEMAN	RECRUITMENT RULES FOR THE
EXHIBIT	P2	(A4)	TRUE COPY OF 16.01.2017	THE LETTER/MEMO DATED
EXHIBIT	P3		TRUE COPY OF THE DATED 26.03.2019 CAT ERNAKULAM	ORDER IN OA 180/00734/2017 FILED BEFORE THE HON'BLE

The Secretary (Power) v. Shri.K.Mathai

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The Secretary (Power) v. Shri.K.Mathai

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