Telangana High Court
The Union Of India, vs K.S.Neelakantham, on 7 June, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K.SUJANA
WRIT PETITION No.22192 OF 2015
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard learned Deputy Solicitor General of India appearing for the petitioner and Sri M.Venkanna, learned counsel appearing for the 1st respondent.
2. The case of the 1st respondent herein is that he was appointed as Branch Postmaster, Karakambed Branch Office on 10.10.1979 and he was subsequently appointed as Group-D on 29.02.1984. He went on deputation to A.P.S. He was promoted to the cadre of Postal Assistant on 16.10.1989. He got Time Bound One Promotion (for short, 'TBOP') on 05.11.2005.
3. The Department of Posts introduced a promotional scheme called Modified Assurance Career Progression Scheme (for short, 'MACP') w.e.f. 01.09.2008 in supersession of the earlier promotions namely Time Bound One Promotion (for short, 'TBOP') and BCR which were used to be extended after completion of 16 and 26 years of service. Previously there were only two Financial Up-gradations in situ 2 promotions and the said promotions were replaced by three promotions in the intervals of completion of ten, twenty and thirty years of service. The 1st respondent had completed twenty (20) years of service in the present cadre of Postal Assistant and he was given 2nd Financial Up- gradation vide Memo No.2/MACP/II/DIGS dated 22.4.2010 in the pay band of Rs. 5200-20,200 with a Grade Pay of Rs. 4200/- with effect from 10.11.2009. Thereafter, vide Memo No.B2/MACP/II/DLGS dated 16.07.2010 the petitioners herein have withdrawn the 2nd Financial Up- gradation of MACP as cancelled on the ground that the 1st respondent herein has already got two (2) promotions i.e. Postal Assistant on 16.10.1989 and T.B.O.P on 05.11.2005 and does not complete 30 years of service during the period from 01.09.2008 to 20.09.2010. The amount drawn on account of fixation of pay was also recovered from him. The 1st respondent herein submitted representation dated 24.12.2010 followed by several representations and the latest being on 11.12.2013 to the 4th respondent. 3rd respondent without considering his claim in the light of the scheme and settled principles, cancelled the 2nd Financial Up-gradation of MACP given vide memo dated 22.4.2010 and not considered his representations for grant of 2nd Financial Up-gradation of MACP.
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4. Feeling aggrieved and dissatisfied with Memo No.B2/MACP/II/DLGS, dated 16.07.2010 issued by the 4th respondent, 1st respondent filed O.A.No.989 of 2014 to set aside the said memo dated 16.07.2010 before the learned Central Administrative Tribunal, Hyderabad Bench ( for short, 'the Tribunal'),
5. Learned Tribunal, placing reliance on the order dated 11.11.2011 in O.A.No.1253 of 2011, allowed the said O.A.No.989 of 2014 vide order dated 04.12.2014 setting aside the impugned Memo No.B2/MACP/H/DLGS, dated 16.07.2010 issued by 4th petitioner herein. Learned Tribunal also directed the petitioners herein to extend the Second Financial Up-gradation of MACP to the 1st respondent herein with effect from 10.11.2009 and to refund the so called excess paid pay and allowances amount with interest at the rate of 9% p.a. The petitioners herein shall complete the entire exercise within a period of 45 days from the date of receipt of a copy of the order.
6. Challenging the said order dated 04.12.2014 passed in O.A.No.989 of 2014 by the Tribunal Hyderabad Bench, the petitioners filed the present writ petition on the following grounds:-
i. The Tribunal failed to consider that the Department has followed guidelines issued vide Directorate Letter No.4-7 4 (MACPS)/2009-PCC dated 18.09.2009, Annexure-1.1, according to which there shall be three Financial Up-
gradations under MACP Scheme counted from the direct entry grade on completion of 10/20/30 years of continuous service respectively. In case of the Respondent, the entry grade is Group -D (now called as MTS).
ii. The Tribunal ought not have taken into consideration the fact that the entry grade of the 1st respondent in the Department as Group-D and subsequently he got two promotions, one as Postal Assistant, other as TBOP and he would not become eligible till he completes 30 years of service in view of above and thus the orders of the Tribunal are against the Departmental guidelines on the Scheme.
iii. The Tribunal did not appreciate the contention of the petitioners that the Financial up-gradations under MACP cannot be conferred from a date prior to 01.09.2008, as the scheme became operational from that date only.
7. With the said contentions, they sought to set aside the impugned order passed by the Tribunal.
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8. In the light of the aforesaid contentions, it is relevant to note that recognizing the need for Career Progression among the officers within the same cadre, the Department of Posts introduced MACP w.e.f. 01.09.2008 superseding previous promotion mechanisms like TBOP and Biennial Cadre Review (BCR). Under MACP, officers are entitled to three Financial Up-gradations at intervals of ten, twenty, and thirty years of service, as opposed to the previous system which offered promotions after 16 and 26 years of service.
9. It is the specific contention of the 1st respondent herein that as he has completed 20 years of service as a Postal Assistant, he was granted the 2nd Financial Up-gradation as per Memo No.2/MACP/I/DLGS, dated 22.04.2010, entailing a pay band of Rs.200- 20,200/- with a Grade Pay of Rs.4200/- effective from 10.11.2009. By Memo dated 16.07.2010, the petitioners have rescinded the second Financial Up-gradation of the (MACP) attributed to the 1st respondent on the premise that the 1st respondent had already received two promotions, Postal Assistant on 16.10.1989 and TBOP on 05.11.2005, and did not fulfil the requisite 30 years of service during the period spanning from 01.09.2008 to 20.09.2010. The amount drawn by the 1st respondent on account of fixation of pay was recovered by the 6 Department illegally. It is contended by 1st respondent that without considering the object of MACP and the representations submitted by him, 4th petitioner annulled 2nd MACP awarded vide Memo dated 22.04.2010.
10. In the light of the above, it is relevant to note that in Union of India vs. D.Shiva Kumar 1, the Division Bench of Madras High Court pointed out the adjustment made by the Postal Department as against the promotion under MACP as erroneous and upheld the opinion of the Tribunal of directing the Department not to take into account the appointment granted to post of Postal Assistant and to adjust it against MACP. The appointment as Postal Assistant was treated as the first Financial Up-gradation. Such approach is erroneous in view of the fact that the appointment as a Postal Assistant was not granted to the employee after mere completion of 10 years in the cadre of Postman and that he was appointed after he participated in selection process and on being selected and appointed on merit to the post of Postal Assistant. 1 CDJ 2015 MHC 4401 7
11. The said principle was also reiterated by a Division Bench of this Court in Union of India vs. K.Ranganatha Pillai 2. The Union of India preferred SLP (Civil) Diary No.29189 of 2019 against the said order dated 08.08.2017 in W.P.No.26473 of 2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. The Apex Court vide order dated 20.09.2019, granted interim stay of the impugned order. The said SLP is pending and the said interim order is subsisting.
12. In T. Satyanarayana vs. Union of India 3, a Division Bench of this Court while dealing with the employment issue held that the appointment of 1st respondent therein as the Postal Assistant on 13.06.1975 by way of limited departmental recruitment through selection process, cannot be considered as a Financial Up-gradation.
13. In Union of India vs. M.V.Mohan Nair 4, three Judge Bench of the Apex Court in paragraph Nos.28 to32 held as follows:-
28. Though various contentions have been raised assailing the MACP Scheme viz. "financial up-gradation in the next Grade Pay" and "no stepping up of pay on the ground that junior getting more pay", be it noted that the clauses of the MACP Scheme including the clause providing the financial up-gradation in the next Grade Pay have not 2 W.P.No.26473 of 2017 3 2018 (5) ALT 494 4 (2020) 5 SCC 421 8 been challenged by the respondents. In the impugned judgments, the Tribunals/High Courts have only relied upon Raj Pal's case and not gone into the MACP Scheme vis-à-vis erstwhile ACP Scheme and also not considered the merits of the contention of the respondents.
We have therefore, considered the MACP Scheme vis-à-vis erstwhile ACP Scheme in the light of the contentions raised by the respondent.
29. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial up-gradations are granted at three regular intervals on completion of 10-20-30 years of service without promotion. Hence, it is also intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion for want of promotional avenue. The change in policy brought about by supersession of the ACP Scheme with the MACP Scheme is after well-deliberated and well-documented recommendations of the Sixth Central Pay Commission. Considering the various issues in the implementation of the ACP Scheme, the Pay Commission expressed its views "the only other way is to bring systematic changes in the existing Scheme of ACP so that all the employees irrespective of the existing hierarchy structure in their organisations/cadres, get some benefit under it". The Commission therefore, recommended that the existing Scheme of ACP be continued with the modifications indicated thereon in the Report that the financial up-gradation has to be in the next immediate Grade Pay. One of the reasons for the expert body recommending the MACP Scheme was that there were inter- departmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who 9 stagnated for 12 years, was entitled to pay in the Pay Scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with a view to putting an end to the problem ensuing from inter-departmental disparities.
30. The learned amicus and the learned counsel appearing for the respondents urged the court to adopt a "purposive interpretation" that the words "immediate next higher Grade Pay" to be interpreted as "Grade Pay of the next promotional post" in the hierarchy. MACP Scheme envisages merely placement in the immediate next higher Grade Pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are "placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay bands". The term "Grade Pay in the next promotional post" is conspicuously absent in the entire body of the MACP Scheme. The argument of the respondents that the benefit of MACP Scheme is referable to the promotional post, is de hors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the Schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial up-gradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme.
31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, 10 they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy Grade Pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration.
32. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body - Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the 11 government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer.
14. The Apex Court further held that supersession of erstwhile ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees in ACP Scheme. The Sixth Central Pay Commission which was accepted by Government is unwarranted.
15. During the course of hearing, it is brought to the notice of this Court after dismissal of SLP, Union of India has implemented the said order of the Division Bench.
16. The petitioners also placed reliance on the principle laid down by the Apex Court in Union of India vs. Alapan Bandyopadhyay 5. But the facts of the said case are different to the facts of the present case.
17. 1st respondent has placed reliance on the principle laid down by the Apex Court in Director, Directorate of Enforcement vs. Sudheesh Kumar 6, wherein the Apex Court held that in any incentive scheme/Clause 8.1 of MACP following the implementation of 6th 5 (2022) 3 SCC 133 6 (2023) 3 SCC 649 12 Central Pay Commission recommendations and Grade Pay of Rs.5400/- in PB-2 and PB-3 which would be treated as separate grade pays for the purpose of grant of up-gradations under the MACP Scheme. The respondents in the said case erroneously granted Grade Pay of Rs.6,600/- for PB-3 under MACP Scheme and it was later modified as correct Grade Pay of Rs.5,400/- as per Clause 8.1 of MACP.
18. On considering the relevant clauses of MACP Scheme, Apex Court held that it appears that MACP Scheme envisages placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay was given in Section-1, Part-A of the First Schedule of the CCS (Revised Pay) Rules, 2008. The Apex Court also considered the principle laid down in M.V.Mohan Nair (supra) wherein it was held that the ACP which is superseded by the MACP Scheme is a matter of Government Policy and interfering with the recommendations of the expert body like the Pay Commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. The recommendations of the Pay Commission for the MACP Scheme have been accepted by the Government and implemented. The High Court has no jurisdiction to 13 interfere with the Government Policies in the form of MACP which was after accepting the Sixth Central Pay Commission.
19. In the light of the above discussion, principles laid down, coming to the facts of the case on hand, it is not in dispute that 1st respondent was initially appointed as Branch Post Master on 10.10.1979. He was specially recruited for Army Postal Service as Group-D w.e.f. 29.02.1984. Later, he was qualified in the departmental (Lower Grade Official (LGO) exam held on 18.12.1988 and was promoted to the cadre of Postal Assistant w.e.f. 16.10.1989. He got TBOP on 05.11.2005. Since, 1st respondent has completed 20 years of service in the cadre of Postal Assistant, he was given 2nd financial up- gradation vide memo dated 22.04.2010. Thereafter, vide memo dated 16.07.2010, the same was withdrawn on the ground that he has already took two promotions i.e. Postal Assistant w.e.f. 16.10.1989, TBOP w.e.f. 05.11.2009 and that he does not complete 30 years of service during the period from 01.09.2008 to 20.09.2010. The petitioners herein ordered to recover the amount drawn by 1st respondent on account of fixation of pay and was recovered the same from 1st respondent. The representation submitted by him was rejected on the aforesaid grounds. 14
20. As discussed supra, 1st respondent was appointed as Branch Post Master w.e.f. 10.10.1979 from feeder cadre. Group-D post held by him would be the Entry Grade for him. The subsequent promotions i.e. Postal Assistant w.e.f. 16.10.1989 was through competitive examination i.e. LGO exam held on 18.12.1988. The promotions have to be considered as direct appointments as the said promotions are not the promotions in the same cadre. Every cadre is to be taken as Direct Entry.
21. As discussed supra, 1st respondent got 1st financial up-gradation in the cadre of Postal Assistant on 05.11.2005 on completion of 16 years of his service as per TBOP Scheme. 2nd Financial Up-gradation under MACP was granted to him on 10.11.2009 on completion of 20 years of his service. As rightly contended by 1st respondent, he could have got his financial up-gradation in the old scheme i.e. Biennial Cadre Review (BCR) on completion of 26 years of his service.
22. In the light of the above discussion, Memo dated 16.07.2010 of 4th respondent cancelling the 2nd Financial Up-gradation under MACP Scheme is illegal, contrary to the object of MACP Scheme and principle laid down in the aforesaid judgments.
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23. On consideration of the said aspects, vide impugned order dated 04.12.2014, learned Central Administrative Tribunal, allowed the O.A.No.989 of 2014 filed by the 1st respondent herein setting the impugned Memo No.B2/MACP/H/DLGS dated 16.07.2010 and directed the petitioners herein to extend the Second Financial Up-gradation to the 1st respondent herein with effect from 10.11.2009 and to refund the so called excess paid pay and allowances amount with interest at the rate of 9% p.a. It is a reasoned order. There is no error in it. The petitioners herein failed to make out any case to interfere and therefore, this writ petition is liable to be dismissed.
24. In the result, the writ petition is dismissed. As a sequel thereto, any miscellaneous petitions pending, if any in this Writ Petition shall stand closed.
_________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE K.SUJANA Date:07.06.2024.
B/o. Vvr