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2022 DIGILAW 1055 (KAR)

Union Of India v. Vishwanath

2022-08-11

C.M.POONACHA, H.B.PRABHAKARA SASTRY

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JUDGMENT 1. The present writ petition is filed challenging the order dtd. 26/10/2018 passed by the Central Administrative Tribunal, Bengalore Bench (hereinafter referred to as 'Tribunal' for brevity) in Original Application No.170/00045/2018. 2. Brief facts of the case are that, the Respondent herein was appointed as a Group-D employee in the Postal Department on 17/6/1975. Thereafter, on 13/8/1979 he was selected as Postal Assistant after having appeared in the Limited Departmental Competitive Examination (LDCE). On 22/8/1995, he was granted financial upgradation under the Time Bound One Promotion (TBOP) scheme after completion of 16 years of service as Postal Assistant. On 31/12/2005, he was given financial upgradation under Biennial Cadre Review (BCR) scheme on completion of 26 years of service w.e.f. 1/1/2006. The Respondent retired from service on 31/5/2014 after having attained the age of superannuation. 3. The Government of India introduced the Modified Assured Career Progression (MACP) scheme to the Central Government employees with effect from 1/9/2008, wherein every employee would be eligible for three financial upgradations after completion of ten/twenty/thirty years of service. The MACP replaced TBOP/BCR scheme. 4. In view of the aforementioned, the Respondent submitted a representation on 1/6/2017 for grant of MACP-III. Having been refused, the Respondent herein filed an application before the Tribunal for various reliefs, inter alia to direct the Respondents therein to extend the benefit under the MACP-III scheme. The Petitioners herein contested the said proceedings before the Tribunal and also filed their statement of objections. 5. The Tribunal, by its order dtd. 26/10/2018, noticing that the same was covered by its order dtd. 9/8/2018 passed in O.A.No.377/2017, allowed the application and ordered that the benefits be made available to the Respondent. Being aggrieved by the same, the Petitioners have filed the present writ petition. 6. Learned Assistant Solicitor General of India appearing for the Petitioners contended that the Respondent is not entitled for the benefits under the MACP-III scheme, as the same is prospective in operation and not retrospective. The Tribunal erred in allowing the application of the Respondent by relying on its earlier order passed in a similar case. A Co- ordinate Bench of this Court in the case of Union of India and others vs. Bhimaraya V. Kattimani [W.P.No.226631/2020 C/W W.P.No.226627/2020, D.D: 5/7/2022] has already decided the same and the said order is applicable to the present case. Hence, he sought for allowing of the writ petition. 7. A Co- ordinate Bench of this Court in the case of Union of India and others vs. Bhimaraya V. Kattimani [W.P.No.226631/2020 C/W W.P.No.226627/2020, D.D: 5/7/2022] has already decided the same and the said order is applicable to the present case. Hence, he sought for allowing of the writ petition. 7. Per contra, learned counsel for the Respondent submits that the issue arising in the present writ petition is covered by the order passed by the Co-ordinate Bench of this Court in the case of Union of India and others vs. Faiyaz Hussain[W.P.No.226628/2020, D.D: 8/2/2022] , wherein the matter has been remanded to the Tribunal to decide the matter in terms of the judgments of the Hon'ble Supreme Court in the case of Union of India vs. R.K. Sharma and Others (2021) 5 SCC 579 and The Director, Directorate of Enforcement & Anr. vs. K. Sudheesh Kumar and Others [Civil Appeal No.442/2022, D.D: 28/1/2022] and accordingly, the present matter also requires to be remanded. He further submits that with regard to the MACP scheme, a clarification dtd. 6/9/2021 has been issued by the Government of India which clarifies all the scenarios, which aspect can be considered by the Tribunal. 8. Having regard to the submissions made by both the parties, the question that arises for consideration is: a) "Whether the order dtd. 26/10/2018 passed by the Tribunal in Original Application No.170/00045/2018 required to be interfered with?" 9. We have given our anxious consideration to the submissions made by both the parties as well as perused the material available on record. The essential facts not being in dispute, inasmuch as the Respondent was appointed on 17/6/1975 as a Group-D employee in the postal department (orderly to the Inspector of Posts); was selected as Postal Assistant on 13/8/1979 after having cleared the LDCE; was granted financial upgradation on 22/8/1995 under the TBOP scheme after completion of 16 years of service as Postal Assistant; was granted financial upgradation under the BCR scheme on 1/1/2006 after completion of 26 years of service as Postal Assistant and he retired from service on 31/5/2014 having attained the age of superannuation. Subsequently, on 1/6/2017, the Respondent gave a representation for grant of MACP- III benefits, which having been rejected, he filed an application before the Tribunal, which vide order dtd. 26/10/2018 allowed the application. 10. Subsequently, on 1/6/2017, the Respondent gave a representation for grant of MACP- III benefits, which having been rejected, he filed an application before the Tribunal, which vide order dtd. 26/10/2018 allowed the application. 10. The Tribunal allowed the application of the Respondent by observing that the matter was covered by its order dtd. 9/8/2018 passed in O.A.No.377/2017, wherein the order passed by the Jodhpur Bench of the Tribunal in O.A.No.353/2011 and Madras Bench of the Tribunal in O.A.No.1088/2011 were relied upon. It was further noticed that the order passed by the Madras Bench of the Tribunal was affirmed by the Hon'ble High Court of Madras in Writ Petition No.30629/2011 and SLP No.4848/2016 filed against the said judgment was also rejected. 11. In order to ascertain whether the Respondent was entitled to the benefits under the MACP Scheme, it is relevant to notice a brief history of the same. The Government of India with a view to "deal with the problem of genuine stagnation and hardship faced by the employees due to the lack of adequate promotional avenues" have introduced from time to time various schemes for their benefit. The Department of Posts has its own scheme of TBOP/BCR for its employees. The TBOP which was introduced with effect from 30/11/1983 and the BCR which was introduced with effect from 1/10/1991 were withdrawn with effect from 1/9/2008 vide Office Memorandum dtd. 18/9/2009 issued by the Government of India, wherein the MACP scheme was introduced. The MACP Scheme was introduced upon the recommendation of the Sixth Central Pay Commission and provided for grant of three financial upgradations at the intervals of ten, twenty and thirty years of continuous regular service. The financial upgradation under the MACP will be admissible whenever a person has spent ten years continuously in the same grade-pay. 12. Hence, in order to determine as to whether the Respondent would be entitled to the benefits under the MACP Scheme, it is to be noted that the Respondent was appointed on 17/6/1975 as a Group-D employee. After having cleared the LDCE, he was selected as a postal assistant on 13/8/1979. On 22/8/1995 he was granted financial upgradation under TBOP after completion of 16 years of service as Postal Assistant and granted another financial upgradation on 31/12/2005 under the BCR scheme on completion of 26 years of service with effect from 1/1/2006. After having cleared the LDCE, he was selected as a postal assistant on 13/8/1979. On 22/8/1995 he was granted financial upgradation under TBOP after completion of 16 years of service as Postal Assistant and granted another financial upgradation on 31/12/2005 under the BCR scheme on completion of 26 years of service with effect from 1/1/2006. Hence, it is clear that the applicant had the benefit of one promotion on 13/8/1979 and two financial upgradations on 22/8/1995 and 31/12/2005 respectively. 13. The question as to whether selection of an employee as a Postal Assistant after completion of LDCE would tantamount to appointment or promotion is the crux of the issue to determine as to whether the Respondent will be entitled to the benefits of the MACP Scheme. 14. A similar question in an identical fact situation relating to employees of the Postal Department, fell for consideration before a Co- ordinate Bench of this Court in the case of Union of India and others vs. M.G. Shivalingappa[W.P.No.57935/2017, D.D: 2/8/2018], wherein this Court held that the selection as a Postal Assistant of an employee after clearing the competitive examination is required to be treated as a promotion and having treated the said selection as a promotion, the stagnation for which the financial upgradation is provided under the MACP-III scheme cannot be applied when the employee concerned has been granted promotion as well as two financial upgradations under the TBOP and BCR scheme. Hence, the Court rejected the contention of the employee that he was entitled for benefit of the MACP-III Scheme. 15. The same question once again fell for consideration of a Co-ordinate Bench of this Court, Dharwad Bench in the case of Union of India and others vs. Smt. R.K. Kulkarni[W.P.No.102322/2018, D.D.27/11/2018], wherein in an identical factual situation relating to an employee of the Postal Department wherein he, while working as a Postman (Postwoman), was selected as a Postal Assistant and thereafter granted financial upgradations under TBOP and BCR scheme and her entitlement under the MACP-III scheme was in question, after relying upon the judgment in M.G. Shivalingappa's case (supra), this Court held that selection as a Postal Assistant after clearing the competitive examination would tantamount to promotion and that the employee was not entitled for the benefit of MACP-III scheme. 16. 16. In R.K. Kulkarni's case (supra), while deciding the issue regarding the scope and coverage of the MACP scheme, this Court has also noticed the provisions of the Indian Posts and Telegraphs (Time Scale Clerks and Sorters) Recruitment Rules, 1971, as also the relevant case laws on this point i.e., (i) The Union of India and others vs. M.G. Shivalingappa (supra) passed by the Division Bench of Karnataka High Court; (ii) Union of India and others vs. Bhanwar Lal Regar[Civil Writ Petition No.11336/2012, D.D: 10/8/2015] passed by the Jodhpur Bench of Rajashtan High Court; (iii) Union of India and others vs. D. Shivakumar, order dtd. 4/2/2015 passed by the Division Bench of Judicature of Madras High Court; (iv) The Union of India and others vs. Shri Basanna Naik passed by the Division Bench of Karnataka High Court, Kalaburagi Bench; (v) O.A.No.1259/2014 filed by Sri Krishnaiah; (vi) Union of India and others vs. Shakeel Ahmad Burney[W.P.No.(C)4131/2014, D.D. 5/8/2014] passed by the Delhi High Court. 17. In the case of R.K. Kulkarni (supra), the fact situation is identical to the case on hand, wherein the applicant therein was appointed on 25/10/1973 in the Postal Department as a Departmental Staff Vender; appointed as Postal Assistant on 25/3/1978 after clearing the departmental test; financial upgradation under TBOP was extended on completion of 16 years of service on 27/3/1994; and thereafter, benefits under BCR scheme was extended on completion of 26 years service. The Tribunal having allowed her application by holding that she was entitled to the benefits of MACP-III, the Co-ordinate Bench of this Court vide its order passed in the said case allowed the writ petition holding that the applicant therein was not entitled to the MACP-III benefits. In the said decision, it was held that the appointment of the applicant therein to the post of Postal Assistant based on the LDCE cannot be considered as a case of direct recruitment, but as a case of promotion. 18. In the said decision, it was held that the appointment of the applicant therein to the post of Postal Assistant based on the LDCE cannot be considered as a case of direct recruitment, but as a case of promotion. 18. In the case of Bhimaraya V. Kattimani (supra), a Co-ordinate Bench of this Court, Kalaburagi Bench, in an identical fact situation relating to employees of the Postal Department and their entitlement to benefits under the MACP scheme, relying on the judgment of the Hon'ble Supreme Court in the case of R.K. Sharma (supra), allowed the writ petitions and set aside the judgment of the Tribunal, which had granted benefit of the coverage of the scheme to the employee. 19. The contention of the learned counsel for the Respondent that following the decision of the Co-ordinate Bench of this Court, Kalaburagi Bench in the case of Faiyaz Hussain (supra), the matter requires to be remanded to the Tribunal, is liable to be rejected, inasmuch as, the factual matrix is undisputed and the position of law has already been decided as noticed hereinabove. 20. The Hon'ble Supreme Court in the case of Union of India and Others vs. Balbir Singh Turn and another (2018) 11 SCC 99 had held that the Assured Career Progression Scheme (ACPS) which was earlier in force was not an allowance, but part of pay. However, a three Judges Bench of the Hon'ble Supreme Court in the case of Union of India and others vs. M.V.Mohanan Nair (2020) 5 SCC 421 held that MACP is in the nature of an incentive. The decision in the case of M.V.Mohanan Nair (supra) has been followed by the Hon'ble Supreme Court in the case of R.K. Sharma (supra), as well as in the case of Sudheesh Kumar (supra). 21. In view of the aforementioned, the position of law being clear from the judgments noticed hereinabove, the reference to other judgments passed by the Jaipur Bench of the Rajasthan High Court and the Madras High Court is not necessary for the purpose of deciding the question that falls for consideration in the present writ petition. 22. 21. In view of the aforementioned, the position of law being clear from the judgments noticed hereinabove, the reference to other judgments passed by the Jaipur Bench of the Rajasthan High Court and the Madras High Court is not necessary for the purpose of deciding the question that falls for consideration in the present writ petition. 22. Noticing the aforementioned legal position and applying the same to the facts of the present case, the respondent being appointed on 17/6/1975 as a Group-D employee and selected as a Postal Assistant on 13/8/1979 after having cleared the LDCE and having been granted financial upgradation under TBOP scheme on 22/8/1995 and another financial upgradation under BRC scheme on 31/12/2005, it cannot be said that the stagnation for which the financial upgradation is provided under the MACP-III scheme would be applicable to the Respondent also. Hence, we pass the following: ORDER (i) The writ petition is allowed; (ii) The order dtd. 26/10/2018 passed by the Central Administrative Tribunal, Bangalore Bench in Original Application No.170/00045/2018 is set aside. (iii) The Original Application No.170/00045/2018 stands dismissed as devoid of merits. No order as to costs.