Dismissed

Krishna Kumaran.E v. Superintendent of Post Offices

Kerala HC18 Jun 2020OP (CAT)/57/2015

Case brief

AI extract

What is this about?

The Court dismissed the applicant's writ petition challenging the Central Administrative Tribunal's order denying second financial up-gradation under MACP. It held that since the appointment involved a promotion quota via LDCE, past service cannot be counted, limiting claims to the scheme's inception date.

What did the court decide?

The Original Petition (CAT) is dismissed.

Krishna Kumaran.E Vs Superintendent of Post… — Pension and Retirement Benefits | Kerala HC (2020)

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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 P.V.KUNHIKRISHNAN THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942 OP (CAT).No.57 OF 2015(Z)

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AGAINST THE ORDER IN OA.294/2012 DATED 20-08-2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER/S:

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KRISHNA KUMARAN.E., AGED 62 YEARS, S/O. LATE GOVINDAN, (RETIRED) SUB POSTMASTER, OTHUKKUNGAL.P.O., DEPARTMENT OF POSTS, MALAPPURAM - 676 528, RESIDING AT EDAPPARUTHY HOUSE, KALPPALLIKUNDU, POST KOTTAKKAL, MALAPPURAM - 676 503.

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BY ADVS. SRI.SAJITH KUMAR V. SRI.P.K.ANTONY

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RESPONDENT/S:

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1 SUPERINTENDENT OF POST OFFICES, TIRUR POSTAL DIVISION, TIRUR - 676 104.

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2 POSTMASTER GENERAL, NORTHERN REGION, CALICUT - 673 011.

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3 CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM - 695 033.

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4 DIRECTOR GENERAL OF POSTS, DAK BHAVAN, NEW DELHI - 110 001.

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5 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, GOVERMENT OF INDIA, NEW DELHI - 110 001.

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R1-R5 BY SRI.T.V.VINU, CGC

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CAT) No.57 of 2015

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K.Vinod Chandran & P.V.Kunhikrishnan, JJ.

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O.P(CAT) No.57 of 2015

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Dated this the 18^th day of June, 2020

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JUDGMENT

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K. Vinod Chandran,J:

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The petitioner-applicant's claim before the Tribunal was that he was entitled to second financial

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up-gradation as per the Modified Assured Career Progression ['MACP' for brevity] Scheme. The applicant, in fact, had two stands before the Tribunal; one in the original application and the other in the rejoinder filed. It was claimed in the O.A that he is entitled to Time Bound One Promotion ['TBOP' for brevity] and 2^nd financial up-gradation under the MACP by taking 20 years regular service in the promoted post of Postal Assistant. However, the said stand was later modified, to contend that since he was promoted on merit to the

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post of Postal Assistant by Limited Departmental Competitive Examination, he should be permitted the financial up-gradation on completion of 10, 20 AND 30

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years from the promotion to the post of Postal Assistant.

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OP(CAT) No.57 of 2015

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2. The petitioner was appointed as Postman on

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04.04.1983 and through a Limited Departmental Competitive Examination, he was promoted as Postal Assistant on 07.11.1988 to the quota reserved for in-service candidates. The MACP Scheme was introduced with effect from 01.09.2008, by an order of September, 2009. During the period he continued after initial entry into the Postal Department what was applicable was TBOP, which provided for financial up-gradation on 16^th and 26^th years. The petitioner having stagnated in the higher post of Postal Assistant after promotion on 07.11.1988, he was granted the first financial up-gradation on completion of 16 years from that date on 07.12.2005.

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3. When the MACP Scheme was introduced, the benefits of which were payable only from 01.09.2008, he could have claimed only the 3^rd financial up-gradation and not the 2^nd financial up-gradation. In considering such claim, it is seen from the order of the Tribunal that his service from the initial date of appointment

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as Postman from 1983 was reckoned and his 3^rd financial up-gradation granted as per MACP in the year 2013. We

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OP(CAT) No.57 of 2015 - 4 -

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do not think that a 2^nd financial up-gradation can be granted since on the date on which he completed 20 years of service, the MACP Scheme was not in force, i.e., in the year 2003. Before the MACP Scheme was introduced, on 07.12.2005 he was also granted a financial up-gradation to mitigate his stagnation. The petitioner having obtained one promotion, ie: from the post of Postman to Postal Assistant and then a TBOP financial upgradation can only aspire for the 3^rd MACP, on stagnation after completion of 30 years from the entry post.

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4. The learned Counsel then urged that in fact the entry post was that of Postal Assistant and not a Postman. The learned Counsel relied on the judgment of the Jodhpur Bench of the High Court of Rajasthan, in Civil W.P. No. 11709 of 2013 and connected matters

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dated 10.08.2015, the SLP against which has been dismissed and the decisions of the Division Benches of the Madras, Karnataka and Chhatisgarh High Courts respectively in W.P. No. 30629 of 2014 Union of India

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Vs. D.Sivakumar dated 04.02.2015 , W.P. No. 200807 of 2016 Union of India Vs. Basanna Nayak dated 20.09.2016

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OP(CAT) No.57 of 2015

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and W.P. No. 1903 of 2017 Union of India Vs. Amar singh Sahu dated 15.04.2019.

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5. We already considered the said decisions in

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a batch of cases today in O.P (CAT) 23 of 2018 and connected cases, to hold that the appointment as Postal Assistant was found to be a direct recruitment by reason of the Union of India, the petitioner therein, not pointing out any provision for promotion to the post of Postal/Sorting Assistant. It was so held in paragraph 9 to 12:

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“9. The Rajasthan and Karnataka High Courts allowed the claim of the applicants, since it was not demonstrated before them that there was a promotion permissible from the post of Postman to Postal Assistant. Here it has been clearly demonstrated that such a promotional avenue is available. The Madras High Court found the appointment as Postal Assistant was not by virtue of the 10 year service as a Postman, but after participating in a selection process. There is no reference to a LDCE and in that circumstance it has to be assumed that there the applicant was appointed in the direct recruitment quota. The Chhattisgarh High Court followed the other High Courts. We also are placed with an order in SLP of the Hon'ble Supreme Court, from the decision of

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OP(CAT) No.57 of 2015

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the Madras High Court; which though dismissed the SLP, left the question of law open. We hence take a different view especially on the compelling material placed before us by way of the Recruitment Rules.

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10. We extract the Clarification as referred to by the CGSC as below:

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“MACP Scheme for Railway servants - treatment of employees selected under LDCE/GDCE Scheme - clarification

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G.I., Railway Board Letter No.PCV/2009/ACP/2, dated the 12^th September, 2012

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References have been received from Zonal Railways seeking clarification regarding grant of benefits under MACPS in respect of the employees qualifying through LDCE/GDCE. The matter has been examined in consultation with Department of Personnel & Training (DoP&T), the nodal department of Government on MACPS and it has been decided as under:-

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(i) if the relevant RRs provide for filling up of vacancies in a grade by Direct Recruitment, induction of an employee to that grade through LDCE/GDCE may be treated as Direct Recruitment for the purpose of grant of financial upgradation under MACPS. In such cases, past service rendered in a lower pay scale/Grade Pay shall NOT be counted for the purpose of MACP Scheme.

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(ii) If the relevant RRs prescribe a Promotion Quota to be filled on the

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OP(CAT) No.57 of 2015 - 7 -

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basis of LDCE/GDCE, such appointment would be treated as promotion for the purpose of benefit under the MACPS and in such cases, past regular service shall also be counted for further benefits, if any, under the MACP Scheme.

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This issues with the concurrence of the Finance Directorate of the Ministry of Railways.

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11. Clause 9 of the MACPS reads as under:

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“9. Any Interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational with effect from 1.9.2008. In other words, financial upgradations as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008.

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The clarification issued by the Department of Personnel and Training applies to all the Central Government Departments, irrespective of who seeks the clarification.

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12. It is evident from the Recruitment Rules that the appointment to the post of Postal/Sorting Assistant is not by way of direct recruitment alone and it has a 50% promotion quota of in-service candidate selected by way of a LDCE. Hence the induction by LDCE is not covered by clause (i) and Clause (ii) applies; for there is a specific promotion quota spoken of in the Recruitment Rules”.

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OP(CAT) No.57 of 2015 - 8 -

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We are of the opinion that what is stated in the aforesaid decision squarely applies here also and the order of the Tribunal has to be sustained. The Original Petition (CAT) is hence dismissed, leaving the parties to suffer their respective costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

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Sd/P.V.KUNHIKRISHNAN JUDGE

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Vku/-

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OP(CAT) No.57 of 2015

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	EXT.P1: A TRUE COPY OF ORIGINAL APPLICATION NO CENTRAL ADMINISTRATIVE	THE PLEADINGS IN THE .294/2012 FILED BEFORE THE TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT P2	EXT.P2: A TRUE COPY OF RECEIVED ON 05/07/2012	THE REPLY STATEMENT IN O.A.294/2012.
EXHIBIT P3	EXT.P3: A TRUE COPY OF APPLICANT IN O.A.294/20 ADMINISTRATIVE TRIBUNAL	THE REJOINDER FILED BY THE 12 FILED BEFORE THE CENTRAL , ERNAKULAM BENCH.
EXHIBIT P4	EXT.P4: A TRUE COPY OF STATEMENT FILED BY THE O.A.294/2012.	THE ADDITIONAL REPLY RESPONDENTS IN
EXHIBIT P5	EXT.P5: A TRUE COPY OF FILED BY THE APPLICANT BEFORE THE CENTRAL ADMI ERNAKULAM BENCH.	THE ADDITIONAL REJOINDER IN O.A.294/2012 FILED NISTRATIVE TRIBUNAL,
EXHIBIT P6	EXT.P6: A TRUE COPY OF STATEMENT FILED BY THE O.A.294/2012.	THE ADDITIONAL REPLY RESPONDENTS IN
EXHIBIT P7	EXT.P7: A TRUE COPY OF IN O.A.294/2012 OF THE TRIBUNAL, ERNAKULAM BEN	THE ORDER DTD. 20/08/2014 CENTRAL AMINISTRATIVE CH.
EXHIBIT P8	EXT.P8: A TRUE COPY OF DATED 27/12/2010 ISSUED TIRUR DIVISION.	THE MEMO NO.B1/MACPS/DIG BY THE SUPERINTENDENT,
ANNEXURE A1:	A TRUE COPY OF THE MEMO 04/09/1982 OF THE 1ST R	NO.B-2/EXAM/PM/82 DATED ESPONDENT.
ANNEXURE A2:	A TRUE COPY OF THE MEMO 29/10/1988 OF THE VICE CENTRE, MADURAI.	NO.PTC/7-24/SS DATED PRINCIPAL, POSTAL TRAINING
ANNEXURE A3:	A TRUE COPY OF THE MEMO 05/04/2005 OF THE 1ST R	NO.B1/TBOP DATED ESPONDENT.
ANNEXURE A4:	A TRUE COPY OF THE OFFI NO.4-7(MACPS)/2009-PCC ANNEXURE - 1 MACP SCHEM	CE MEMORNDUM FILE DATED 18/09/2009 WITH E OF THE 5TH RESPONDENT.

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OP(CAT) No.57 of 2015

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ANNEXURE A5: A TRUE COPY OF THE CLARIFICATION NO.47(MACPS)2009-PCC DATED 18/10/2010 OF THE 5TH RESPONDENT.

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ANNEXURE A6: A TRUE COPY OF THE REPRESENTATION DATED 20/07/2011 OF THE APPLICANT TO THE 2ND RESPONDENT.

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ANNEXURE A7: A TRUE COPY OF THE COMMUNICATION NO.B1/MACPS/DIG DATED 12/09/2011 OF THE 1ST RESPONDENT ALONG WITH THE REPLY NO.STAFF/98-3/TIR/2010 DATED 02/08/2011 OF THE 2ND RESPONDENT.

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ANNEXURE A8: A TRUE COPY OF THE DATED 22/05/2012 IN OA.382/2011 AND CONNECTED CASES OF THE HON'BLE JODHPUR BENCH, JODHPUR.

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[TRUE COPY]

Krishna Kumaran.E v. Superintendent of Post Offices

Case brief

What is this about?

What did the court decide?

Krishna Kumaran.E v. Superintendent of Post Offices

Case brief

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