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2021 DIGILAW 405 (CAL)

Union of India v. M. Devendran

2021-09-20

HARISH TANDON, SHIVAKANT PRASAD

body2021
JUDGMENT : H. Arish Tandon, J. 1. The instant writ petition has been filed by the Administration challenging the order dated 29th December, 2020 passed by the Central Administrative Tribunal, Calcutta Bench in OA No.351/01286/2020, by which the direction was passed upon the petitioners to examine the claim of the respondent in the light of the decision rendered in OA No.167/ 2015 and OA No.1522/2013 and grant them the benefits at par with the similarly situated persons within three months from the date of the order. 2. The respondent/applicant was engaged on casual basis and on from 4th January, 1995 which was extended from time to time. Subsequently, the service of the respondent/applicant was regularized with effect from the initial date of appointment at the pay scale of Rs.2250-3200/-. According to the respondent/applicant after the regularization of his service the respondent/applicant was paid all the service benefits accrued to him from the date of the initial appointment. 3. Indubitably, such appointment was made against an existing vacancy and after regularization of the casual service from the date of the initial appointment, the respondent/applicant was entitled under the pension scheme. Subsequently, the said order was modified to the extend that the respondent/applicant would be governed under the new pension scheme and not under the old pension scheme. Even if held so that the casual service was regularized from the date of the initial appointment as per the rule in force. The respondent/applicant felt aggrieved by such modified order and made a representation to the authority that his casual service prior to the regularization should be counted for the purpose of availing the benefit under the said scheme when the similarly circumstanced persons have already been granted the benefit. The said representation was disposed of with a finding that the casual service prior to the regular appointment would not be counted for any purpose. 4. The respondent/applicant moved an application before the Central Administrative Tribunal being OA No.97/AN/2009 challenging the aforesaid decision of the authority which was disposed of with a direction that the respondents would make a fresh representation before the concerned authority and the authority will consider it taking into account the past service and if the policy decision has been taken to extend the benefit under the said scheme to the similarly circumstanced persons, the respondent/applicant should also be treated equally. 5. 5. There were a spate of litigations before the Central Administrative Tribunal by several employees who were denied the benefit on the ground that the past service on casual basis cannot be counted for the purpose of granting the benefits under the said scheme. One of the applicants namely, M.Ponnuswamy and others moved an application before the Central Administrative Tribunal claiming that the period of casual service should be counted for the purpose of the scheme since the services were regularized with effect from the initial date of appointment on casual basis. The Tribunal on 28th December, 2015 set aside the order of the Administration by which the prayer for counting the period spent on casual service and remitted the matter to the competent authority to look into the grievance with regard to the grant of benefit under the scheme reckoning the casual service which has already been regularized by the Administration. 6. In due implementation of the said order a decision was taken by the Administration on 24th April, 2017 granting financial up-gradation under the MACP scheme in the following manner:- “3. Based on the recommendation of Departmental Screening Committee, the competent Authority has approved the grant /advancement of 1st/2nd/3rd Financial Upgradation under MACP Scheme to the following personnel in the pay scales and date of effect as shown against each (i.e. on completion of 10/20/30 years of service from the date of initial appointment or from date of introduction of MACP Scheme, i.e. 01 Sep 2008. Whichever is later):- Sl. No. Name (S/Shri/Ms.) Design Unit Whether 1st /2nd/3rd MACP Date of effecting Pay Band & Grade Pay (1) (2) (3) (4) (5) (6) (7) 1. M Ponnuswamy (RTD) MTS(Min) INS Jarwas II & III 1-Sep-08 & 01-Mar-13 Rs. 5200- 20200/- + GP Rs. 2000/- Rs. 5200- 20200/- + GP Rs. 2400/- 2. V. Selvaraj MTS(Min) SHO (PB) II 12-Dec-08 Rs. 5200- 20200/- + GP Rs. 2000/- 3. A Arjunan MTS(Min) INHS D’vantri II 01-Sep-08 Rs. 5200- 20200/- + GP Rs. 2000/- 4. S Chinappan MTS(Min) INS Kardip II 01-Sep-08 Rs. 5200- 20200/- + GP Rs. 2000/- 5. S Thirvalyam MTS(Min) INHS D’vantri I & II 01-Sep-08 & 27-Jul-09 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 6. S Rama Murthy MTS(Min) INHS D’vantri I & II 01-Sep-08 & 04-Oct-09 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 5200- 20200/- + GP Rs. 2000/- 5. S Thirvalyam MTS(Min) INHS D’vantri I & II 01-Sep-08 & 27-Jul-09 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 6. S Rama Murthy MTS(Min) INHS D’vantri I & II 01-Sep-08 & 04-Oct-09 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 7. G Vijay Kannu MTS(Min) INHS D’vantri I & II 01-Sep-08 & 06-Sep- 11 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 8. V Sethuraman MTS(Min) SHO(PB) I & II 01-Sep-08 & 06-Sep-11 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 9. R Velumurugan MTS (Min) INS Jarawa I & II 01-Sep-08 & 26-Sep-14 Rs. 5200- 20200/- + GP Rs. 1900/- Rs. 5200- 20200/- + GP Rs. 2000/- 10. J Santhi Murthy (*) MTS (Min) ND(V) III 10-Feb-12 Rs. 5200- 20200/- + GP Rs. 2400/- 5 11. B Ramulu (RTD) MTS (Min) ND(V) III 10-Apr-11 Rs. 5200- 20200/- + GP Rs. 2400/- 12. N Appa Rao (RTD) MTS (Min) ND(V) III 10-Apr-11 Rs. 5200- 20200/- + GP Rs. 2400/- 13. K Nookayya (**) MTS (Min) ND(V) III 09-Jan-12 Rs. 5200- 20200/- + GP Rs. 2400/- 14. D Krishna (RTD) MTS (Min) ND(V) II 01-Sep-08 Rs. 5200- 20200/- + GP Rs. 2000/- 15. S Yellamma MTS (Min) ND(V) III 23-Jan-11 Rs. 5200- 20200/- + GP Rs. 2400/- 16. O Maheswari MTS (Min) ND(V) II 01-Sep-08 Rs. 5200- 20200/- + GP Rs. 2000/- 7. However, when the grievances of the respondent/applicant came for consideration, the administration took a decision on 4th June, 2020 to maintain the status quo with regard to the extant government policy and the benefit of the judgment rendered in the case of M.Ponnuswamy cannot be extended to the similarly circumstanced persons unless there is a specific direction from the Court. The said order was challenged by the respondent/applicant before the Tribunal. By an order dated 29th December, 2020 the Tribunal held that once the benefit has been granted to the similarly circumstanced persons, the authorities cannot withheld such benefit to the similarly circumstanced persons simplicitor on the ground that there is no Court order in their favour. The said order was challenged by the respondent/applicant before the Tribunal. By an order dated 29th December, 2020 the Tribunal held that once the benefit has been granted to the similarly circumstanced persons, the authorities cannot withheld such benefit to the similarly circumstanced persons simplicitor on the ground that there is no Court order in their favour. The Tribunal application was thus disposed of directing the writ petitioners/authorities to examine the claim of the respondent/applicant in the light of decision rendered in OA No.167/2015 and 1522/2013 and grant them with the benefits at par with the similarly circumstanced persons. 8. We do not find any difficulty either on the facts or on the law as the administrative action cannot withstand if it aimed at a discriminatory action denying the right of the similarly circumstanced persons. The authorities must act fairly, transparently and equality must be maintained as the discriminatory action offends Article 14 of the Constitution of India. However, the instant writ petition is taken out on a new document i.e. the office memorandum dated 5th April, 2021 issued by the Government of India, Ministry of Personnel, Public Grievance and Pension. 9. It is contended that a resolution has been taken in terms of the direction passed by the Supreme Court in SLP(C) No.21803 of 2014 (Union of India and others Vs. M.V.Mohanan Nair decided on 5th March, 2020 and the office memorandum dated 5th April, 2021 envisaged that 50% of the service rendered under the temporary status is to be counted only for the purpose of retirement benefits after their regularization. It is thus contended that though regularization has been made from the date of initial appointment on casual basis but the entire period cannot be counted for availing the benefit under the said scheme and it is only the half of such period which shall be counted. The reliance appears to have been made on the said judgment of the Supreme Court wherein the certain anomaly was found in implementing the MACP scheme because of the decision of the Joint Committee, Union of India. Reliance is heavily placed upon the paragraph 51 of the said judgment to the extent that once the earlier scheme i.e. ACP scheme has been superseded by MACP scheme, which is a matter of Government Policy, no interference is required. 10. Reliance is heavily placed upon the paragraph 51 of the said judgment to the extent that once the earlier scheme i.e. ACP scheme has been superseded by MACP scheme, which is a matter of Government Policy, no interference is required. 10. We have carefully perused the judgment of the Apex Court and it is discerned therefrom that the question which was in consideration relates to the following:- “4. The main questions falling for consideration in these appeals are:- (i) Whether MACP scheme entitles financial upgradation of pay to the next grade pay or to the grade pay of the next promotional post as envisaged under the ACP scheme? Whether MACP Scheme envisages grant of financial upgradation in Grade Pay Hierarchy and not in promotional hierarchy? (ii) As contended by the respondents, whether MACP scheme is disadvantageous to the employees in comparison to ACP scheme as long as the financial upgradation is granted in hierarchy of grade pay under MACP scheme? (iii) Whether respondents are entitled to stepping up of their grade pay to be at par with grade pay of their juniors who were getting the higher grade pay on account of implementation of MACP Scheme?” 11. The Apex Court held that those schemes are framed because of stagnancy in the service career where the promotional avenues are not available and in order to give boost to such employees a financial supports are given by way of the increments but such financial support cannot be regarded as the scale for a promotional post. Our endeavour has failed to find out whether the point involved in the instant appeal has been a matter of consideration in the M.V.Mohanan Nair’s case. The said case was on a different perspective where the parity in the scale of pay was claimed but never relates to the computation of the period or the tenure of service as involved in the instant case. 12. We thus find that the instant writ petition is misplaced because of the office memorandum issued in terms of the direction of the Supreme Court in the said case. 12. We thus find that the instant writ petition is misplaced because of the office memorandum issued in terms of the direction of the Supreme Court in the said case. The services of the respondent/applicant was regularized with effect from the initial date of appointment to the similarly circumstanced personal namely, M.Ponnuswamy who filed OA No.167/2015 before the Central Administrative Tribunal by extending the benefits upon counting the tenure from the date of the initial appointment including the period rendered on casual basis and the respondent/applicant standing on the same footing cannot be discriminated. The equality amongst the equal is the hall-mark of constitutional wisdom and not the equality amongst the ‘unequal’. 13. The Administration has extended the benefit to the similarly circumstanced persons but kept the application of the respondent/applicant in suspended animation solely on the ground that such benefit was granted to the said persons in terms of the order of the Court. It is a matter of great concern that the authorities cannot keep its decision in abeyance and wait for the blessings of the Court. Such decision simply explodes the docket of the Court and encourages the litigation. We, thus, do not find any grounds for interference against the order of the learned Tribunal. 14. The writ petition is thus dismissed. 15. There shall be no order as to costs. Shivakant Prasad, J.-I agree.