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2017 DIGILAW 427 (GAU)

Union of India v. Utpal Saikia

2017-04-05

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : Manojit Bhuyan, J. The Modified Assured Career Progression (MACP) Scheme, as recommended by the Sixth Central Pay Commission, received consideration and acceptance of the Government of India with modifications. Accordingly, the Office Memorandum dated 19.05.2009 was issued by the Ministry of Personnel, Public Grievances and Pensions granting 3(three) financial upgradations under the Scheme to the Central Government civilian employees at intervals of 10, 20 and 30 years of continuous regular service. The MACP Scheme was brought in super-session of the previous Assured Career Progression Scheme (ACPS). The three financial upgradations are to be counted from the direct entry grade on completion of the interval periods. It has been made admissible whenever the employee has spent 10 years continuously in the same grade-pay. The Scheme also envisages that promotions earned/upgradations granted under the erstwhile ACP Scheme in the post to those grades which now carry the same grade-pay due to merger pay scales/upgradations of post recommended by the Sixth Pay Commission, shall be ignored for the purpose of granting upgradations under the MACP Scheme. "Regular service", for the purpose of the Scheme, commences from the date of joining in a post in direct entry grade on a regular basis, either on direct recruitment basis or on absorption/re-employment basis, thus dispensing with service rendered on ad-hoc/contract basis before regular appointment on pre-appointment training. 2. The respondents herein were initially employed on ad-hoc basis as Assistant Compiler/Lower Division Clerk (LDC)/Computer in the year 1990/1991 during the 1991 Census operation. The said temporary employment in Assam was discontinued on and from 1994-1995. In the year 1995 a Data Centre for the entire North-Eastern States was established requiring recruitment of about 52 staff for entry of census data. Recruitments were made through the National Informatics Centre (NIC), Guwahati, which also included some retrenched persons as well as through selection by the Staff Selection Commission, Regional Office, Guwahati. The Office of the Director of Census Operation, Assam, being faced with mounting work-load, engaged all the 13 respondents on ad-hoc basis as Data Entry Operators Grade-'A' against vacant posts which were meant to be filled up by way of direct recruitment through selection by the Staff Selection Commission or alternatively by issuance of No Objection Certificate (NOC) by the Commission for regularizing the service of the said ad-hoc Data Entry Operators. As no recruitment exercise was conducted or NOC issued by the Commission, the respondents came to be appointed on regular basis in temporary capacity with effect from 01.01.1998 on probation for a period of two years. By subsequent Office Order dated 31.12.2001, the respondents were promoted on ad-hoc basis to the post of Data Entry Operator Grade-'B' with effect from 01.01.2002 in the scale of pay of Rs. 4500-125-7000/- per month. The said Office Order dated 31.12.2001 clarified that the ad-hoc promotion will not give rise to any claim for regular appointment in the post and their service as Data Entry Operator Grade-'B', on ad-hoc basis, will not count for the purpose of seniority or promotion to the next higher grade. Subsequently, by different orders dated 31.07.2003, 08.03.2004 and 28.01.2005 the respondents were granted promotion to the post of Data Entry Operator Grade-'B' on regular basis. In respect of the Original Applicant Nos. 1 to 4 and 6 to 10, they were granted promotion on regular basis w.e.f. 30.07.2003; the Original Applicant Nos.11 and 13 w.e.f. 26.02.2004 and Original Applicant Nos. 5 and 13 w.e.f. 20.01.2005 respectively. 3. The cause of action constraining the respondents to move the Central Administrative Tribunal, Guwahati Bench were in respect of (i) the findings of the Departmental Promotion Committee (DPC) dated 16.07.2012 rejecting their claim for grant of the second financial up gradation w.e.f. 01.01.2012, despite the fact that they had been promoted to the Grade-'B' post w.e.f. 01.01.2002 and by 01.01.2012 had completed the required interval period entitling them to the second grant; (ii) the Office Order dated 17.10.2012 clarifying that ad-hoc service cannot be counted for benefits under ACP or MACP; (iii) the Office Memorandum dated 25.03.2013 which was issued in respect of one of the respondents/Original Applicant i.e. Utpal Saikia clarifying with reasons that he would be eligible for the second MACP from his first regular promotion, made effective from 20.01.2005; and (iv) the Office Memorandum dated 23.04.2013, which had been issued on the information sought by Utpal Saikia under the Right to Information Act, clarifying that none of the 13(thirteen) Data Entry Operators Grade-'B' were found eligible to get financial up gradation with effect from 01.01.2012. 4. 4. The Tribunal noticed the relevant dates by observing that the respondents were initially appointed as Data Entry Operator Grade-'A' on ad-hoc basis on different dates i.e. 01.12.1993/01.01.1997 and thereafter regularized in the said post with effect from 01.01.1998. Also, they had been promoted on ad-hoc basis as Data Entry Operator Grade-'B' with effect from 01.01.2002 and granted promotion on regular basis effective from different dates i.e. 30.07.2003/26.02.2004/20.01.2005. The Tribunal while interpreting Clause 9 of the MACP Scheme relating to "Regular service" held that regular service shall commence from the date of joining of a post in direct entry grade on a regular basis, either on direct recruitment basis or on absorption/re-employment basis. In the case in hand, the Tribunal observed, regular service commenced with effect from 01.01.1998 on the appointments of the respondents on regular basis to the post of Data Entry Operator Grade-'A'. As the Scheme envisaged regular service only at the entry grade, the Tribunal held that for the fact that the ad-hoc promotion of the respondents were given with effect from 01.01.2002 and that they had continuously served, the said date has to be taken into account for grant of the second benefit under the Scheme. Direction was accordingly made to the writ petitioners herein to grant the second MACP to the respondents. Aggrieved, the present writ petitions were instituted against the common judgment and order dated 27.05.2014 in O.A. No.131/2013 and O.A. No.159/2013. 5. The facts above, primarily the dates of appointment and promotion, either on ad-hoc basis or regular basis are not in dispute. The MACP Scheme postulates three financial upgradations counted from the direct entry grade on completion of 10, 20 and 30 years of service with further stipulation that the financial upgradations will be admissible wherever a person has spent 10 (ten) years continuously in the same grade-pay. The respondents on their appointment as Data Entry Operator Grade-'A' were put in the scale of pay of Rs.3050-75-3950-80-4590/- per month with effect from 01.01.1998, corresponding to the grade-pay of Rs.1900/- under Pay Band-1 as per the First Schedule to the Central Civil Services (Revised Pay) Rules 2008. On their promotion on ad-hoc basis as Data Entry Operator Grade-'B' with effect from 01.01.2002, they were granted scale of pay of Rs.4500-125-7000/- per month, corresponding to the grade-pay of Rs.2800/- under the same Pay Band-1. On their promotion on ad-hoc basis as Data Entry Operator Grade-'B' with effect from 01.01.2002, they were granted scale of pay of Rs.4500-125-7000/- per month, corresponding to the grade-pay of Rs.2800/- under the same Pay Band-1. There is no dispute that the respondents had been granted and paid the aforesaid scale of pay w.e.f. 01.01.2002, which also finds support from the Office Order dated 15.01.2002 (page 33 of the petition). Under the Scheme, the entitlement to financial up gradation is based on the factor of "grade-pay". There can be different category of grade-pay under one particular pay-band, as in the case of employees under Pay Band-1 who were in receipt of different scales of pay (pre-revised) and thereafter brought under one umbrella at the revised scale of pay of Rs.5200-20200, but made entitled to different grade-pay. In the instant case, the respondents on their promotion were granted scale of pay of Rs.4500-125-7000, revised to Rs.5200-20200, corresponding to grade-pay of Rs.2800/- with effect from 01.01.2002. Subject to the interpretation that is to be given to Clause 9 of the Scheme, the respondents are seen to be entitled to the second up gradation with effect from 01.01.2012, by taking into account the completion of the 10(ten) year interval period from 01.01.2002, during which period they were stagnant at the grade-pay of Rs.2800/-. 6. According to the petitioners, the Tribunal erred in law by overriding Clause 9 of the Scheme. The respondents were promoted as Data Entry Operators Grade-'B' on regular basis with effect from various dates i.e. 30.07.2003/26.02.2004/20.01.2005. As such, eligibility for the second benefit under the Scheme by way of financial up gradation can only run from the effective date of the regular promotion and not on any date earlier, unless the incumbents are promoted in the meantime. This brings us to the provision under Clause 9, which is reproduced hereunder: "9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in 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. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in 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." 7. A close reading of Clause 9 shows that the period of service commencing from the date of joining of a post in direct entry grade on regular basis is to be deemed as "regular service". Such entry can either be on direct recruitment basis or on absorption/re-employment basis. It envisages that service rendered on ad-hoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning for the purpose of the Scheme. Clause 9 does not take stock of a situation where a person whose entry into a grade is declared to be on regular basis, promoted to a higher grade, initially on ad-hoc basis and thereafter regularized, granted a particular grade-pay from day one and then to be denied further benefits. There is no mention in the Scheme or any clarification made by the concerned Ministry that even in respect of promotion, benefits under the Scheme will accrue on and from the date of regularization of the promotion and not otherwise. In any view of the matter, Clause 9 cannot be read in isolation and be left to be conveniently interpreted by the department concerned. Above all, the MACP Scheme with all its intricacies, propounds its object in the very first clause: "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 up gradation under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay (emphasis supplied)." 8. The Scheme has to be given a harmonious interpretation. 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 up gradation under the scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay (emphasis supplied)." 8. The Scheme has to be given a harmonious interpretation. Even if a situation arises where two meanings are possible on the issue of grant or non-grant of benefits, the Scheme being in the nature of a welfare policy, has to be construed in favour of the employee concerned. In the instant case, the petitioners cannot be allowed to take recourse to its own interpretation of "regular service" and ignore the paramount objective of the Scheme envisaging the grant of financial up gradation to the respondents who have spent 10(ten) years continuous in the same grade-pay with effect from 01.01.2002. Under the Scheme they are legitimately entitled to reap the second benefit by way of financial up gradation with effect from 01.01.2012 on having completed the 10 year interval period from 01.01.2002. The respondents' entitlement to the first benefit is not the issue as they had since been promoted to the next higher grade with enhanced grade pay. To reiterate, the respondents have remained stagnant at the grade-pay of Rs.2800/- with effect from 01.01.2002, thus completing the required 10 year interval period and making them entitled to financial up gradation to the next grade-pay with effect from 01.01.2012. 9. We have heard Mr. S.C. Keyal, learned Asstt. S.G.I. for the petitioners as well as Mr. S. Dutta, learned counsel for the respondents. 10. The petitions stand answered on our discussion and findings above. No ground is made out to depart from the end result reached by the Tribunal. As a necessary corollary, the writ petitions are dismissed, however, without any order as to cost.