Dismissed

K. Vijayan v. Government of India

Kerala HC1 Mar 2019WP(C)/28356/2017

Case brief

AI extract

What is this about?

This writ petition sought mandamus directing the respondent to grant financial upgradation benefits under the MACPS scheme to a watchman who faced compulsory retirement. The court dismissed the petition, holding that eligibility requires continuous regular service and noting the petitioner's unauthorized absences, rendering the claim invalid.

What did the court decide?

Dismissal of the writ petition seeking directed sanction of grade benefits.

K. Vijayan Vs Government of India — Pension and Retirement Benefits | Kerala HC (2019)

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W.P.(C) No.28356 of 2017 1

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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 V.G.ARUN

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FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940

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WP(C).No. 28356 of 2017

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PETITIONER:

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K. VIJAYAN

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WATCHMAN, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, (M.P.E.D.A), PANAMPILLY AVENUE, P.B.NO. 4272, KOCHI - 682 36, NOW RESIDING AT VATTEZHATHU HOUSE, HOUSE NO. C.C. 19/1409 B, P.D. ROAD, KOCHI - 6.

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BY ADV. SRI.C.K.SREEJITH

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RESPONDENTS:

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1 GOVERNMENT OF INDIA SECRETARY MINISTRY OF COMMERCE & INDUSTRY, DEPARTMENT OF COMMERCE EP (M.P), UDYOG BHAVAN, NEW DELHI - 110 011.

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2 CHAIRMAN MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, (M.P.E.D.A) PANAMPILLY AVENUE, P.B.N.4272, KOCHI - 682 036.

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3 THE SECRETARY MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION, UDYOG BHAVAN, NEW DELHI - 110 107.

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4 SCREENING COMMITTEE, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, (M.P.E.D.A), PANAMPILLY AVENUE, P.B.NO. 4272, KOCHI - 682 036. BY ADVS. SMT.KEERTHI SOLOMON, CGC SMT.K.RADHAMANI AMMA, SC, MARINE PRODUCTS EXPORTS DEVP.AUTHORITY

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SRI.ANTONY MUKKATH, SC, MARINE PRODUCTS EXPORTS DEVP.AUTHORITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON 1.3.2019 DELIVERED THE FOLLOWING:

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W.P.(C) No.28356 of 2017 2

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V.G.ARUN, J.

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W.P.(C) No.28356 of 2017 ----------------------------------------------Dated this the 1^st day of March, 2019

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JUDGMENT

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The prayer in this Writ Petition is for the issue of writ of a mandamus directing the second respondent to sanction and disburse the two pending grade benefits due to the petitioner, in accordance with Ext P9 Modified Assured Career Progression Scheme (MACPS) dated 19.5.2009. The petitioner, while working as Watchman in the MPEDA was proceeded against for unauthorised absence, as per Ext P1 order dated 27.6.2002. On culmination of the disciplinary proceedings he was imposed with the punishment of compulsory retirement, as per Ext P5 order dated 12.4.2013. The appeal filed by the petitioner against Ext P5 order was also dismissed. In the meanwhile, Ext P9 was issued by the Central Government. Ext P9 provides for financial upgradation to Central Government employees on completion of continuous service in the same grade for a specified period. The contention of the petitioner is that, irrespective of the disciplinary proceedings pending against him, the petitioner

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W.P.(C) No.28356 of 2017 3

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was entitled for financial upgradation provided under Ext P9,

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since he had completed 33 years of service in the post of Watchman. His claim for financial upgradation was rejected as per Ext P15 order with the following observation:-

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“The Screening Committee which was held on 9.8.2017 considered the eligibility of ACP and MACP of Shri. K.Vijayan, Ex-Watchman as per the direction of Hon'ble High Court of Kerala in WP(C) No.20081 of 2017(I). The Committee observed that on conclusion of the Disciplinary proceedings Shri.K.Vijayan was found guilty of the offence and accordingly was punished with major penalty of compulsory retirement w.e.f.12.04.2013.

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Under the provisions of ACP and MACP guidelines issued vide OM No.35034/1/97Estt(D) dated 9.8.1999 and OM No.35034/3/2008-Estt.(D) dated 19.5.2009 respectively and the provisions of CCS(CCA)Rules 1965, the Screening Committee found that Sri.K.Vijayan is not eligible for either ACP or MACP. The Competent Authority has approved the recommendation of the Committee.”

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In this context, it may be relevant to take note of

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Clause 18 of Ext P9 which reads as follows:-

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“In the matter of disciplinary/penalty proceedings, grant of benefit under the MACPS shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of the CCS(CCA)Rules, 1965 and instructions issued thereunder.”

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As far as promotion of persons against whom

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disciplinary proceedings/criminal prosecution is pending, the

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W.P.(C) No.28356 of 2017 4

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sealed cover procedure has to be followed. As per the sealed

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cover procedure, the Departmental Promotion Committee (DPC) shall assess the suitability of Government servants against whom disciplinary proceedings/criminal prosecution is pending or those who are under suspension, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution and set apart the findings of the DPC, with respect to the eligibility of that Government servant for promotion, in a sealed cover. On the conclusion of the disciplinary case/criminal prosecution the case of the Government servant shall be considered and in case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. In the instant case, the disciplinary proceedings culminated in the petitioner being imposed with the punishment of compulsory retirement. As is revealed from Ext P10, the DPC had considered the case of the petitioner and found him not eligible for financial upgradation under MACPS for the reason that disciplinary case is pending against him. A perusal of Ext

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W.P.(C) No.28356 of 2017 5

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P10 would show that such procedure was adopted in consonance with the relevant guidelines in that regard issued by the Department of Personnel and Training. Moreover, there was no occasion for the DPC to have arrived at a different conclusion, with respect to the eligibility of the petitioner for financial up-gradation, even after culmination of the disciplinary proceedings, in view of the punishment imposed on the petitioner. In this context it may be relevant to note that the challenge against the imposition of punishment and order of the Appellate Authority affirming the punishment, was the subject matter of challenge in WP(C) No.2891 of 2018. That Writ Petition was taken up along with the instant Writ Petition and dismissed by a separate judgment.

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A reading of Ext P9 shows that the benefit of the

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MACPS would be applicable to those employees who had continued in regular service in a particular grade for the prescribed number of years. Going by the pleadings in the Writ Petition and the counter affidavit, it is evident that the petitioner was on leave, both authorised and unauthorised, for a long periods of his service. In such circumstances, the question arises as to whether the petitioner can claim the benefit of the MACPS. In my considered opinion, the benefit

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W.P.(C) No.28356 of 2017 6

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of MACPS would be available only to an employee who has rendered continuous regular service in a particular grade. The petitioner cannot claim that he had actually rendered continuous regular service during the period in question. Therefore, even if the petitioner had not been imposed with any punishment, it is doubtful as to whether he would have been entitled for the benefit under Ext P9.

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For the aforementioned reasons, the petitioner cannot claim the benefit of upgradation provided under Ext P9. As such there is no illegality in Ext P15 order and consequently, the Writ Petition is dismissed.

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Sd/- V.G.ARUN, JUDGE

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cms

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W.P.(C) No.28356 of 2017 7

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 THE TRUE COPY OF THE ORDER DT. 27/06/2002.
EXHIBIT	P2 THE TRUE COPY OF THE ENQUIRY REPORT WAS FILED BY THE ENQUIRY OFFICER ON 22.03.2004.
EXHIBIT	P3 THE TRUE COPY OF THE MEMORANDUM DT. 25/08/2004 GIVEN TO THE PETITIONER.
EXHIBIT	P4 THE TRUE COPY OF THE JUDGMENT IN W.P. (C) NO. 26417/2012 ON THE FILE OF HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT	P5 THE TRUE COPY OF THE ORDER DT. 12/40/13.
EXHIBIT	P6 THE TRUE COPY OF THE LETTER RECEIVED FROM THE 3RD RESPONDENT DT.18/04/13.
EXHIBIT	P7 THE TRUE COPY OF THE MEDICAL CERTIFICATES OF HIS WIFE.
EXHIBIT	P8 THE TRUE COPY OF THE ACPS DT. 09.08.1999.
EXHIBIT	P9 THE TRUE COPY OF THE MACPS DT. 19/05/2009.
EXHIBIT	P10 THE TRUE COPY OF THE OFFICE ORDER PART - II NO. 967 DT.22/11/2012 THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY.
EXHIBIT	P11 THE TRUE COPY OF THE LETTER ISSUED BY THE AUTHORITY DT. 20/05/2013.
EXHIBIT	P12 THE TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER'S WIFE SMT. PRESANNA KUMARIAMMA BY THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES (GENERAL) KOTTARAKARA DT. 07.07.2016.
EXHIBIT	P13 THE TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 10.06.2017.
EXHIBIT	P14 THE TRUE COPY OF THE JUDGMENT IN W.P.

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W.P.(C) No.28356 of 2017 8

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(C) NO. 20081/2017 DT. 07/07/17 ON THE FILE OF HON'BLE HIGH COURT OF KERALA.

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EXHIBIT P15 THE TRUE COPY OF THE ORDER PASSED BY THE SECRETARY MPEDA DT. 11.08.2017. EXHIBIT P16 THE TRUE COPY OF THE JUDGMENT IN W.P. (C) NO. 15726/13 ON THE FILE OF HON'BLE HIGH COURT OF KERALA. RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms

K. Vijayan v. Government of India

Case brief

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K. Vijayan v. Government of India

Case brief

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