The Union Of India And Ors vs Sri Vishwanath S/O Laxman ...
2022 Latest Caselaw 11325 Kant

                              1
                                                  R
          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF AUGUST 2022

                         PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                            AND

       THE HON'BLE MR.JUSTICE C.M.POONACHA

       WRIT PETITION No.201842/2019 (S-CAT)

Between:

1.     The Union of India
       Represented by its Secretary
       Department of Posts, Dak Bhavan
       New Delhi - 110 001

2.     The Postmaster General
       North Karnataka Region
       Dharwad-580 001

3.     The Supt. of Post Offices
       Bidar Division, Bidar - 585 401
                                         ... Petitioners

(By Sri Sudhirsingh R. Vijapur, ASGI)

And:

Sri Vishwanath
S/o Laxman Dharmanor
Aged about 63 years
Retired as Sub Postmaster
                                2


Kamthana, Bidar
Residing at Hema Reddy Mallamma Colony,
Gumpa, Bidar - 585 403
                                                 ... Respondent

(By Sri Shambuling S. Salimath, Advocate)


        This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ of
certiorari and quash Annexure-A, passed by the Central
Administrative Tribunal, Bangalore, dated 26.10.2018 in
Original Application No.170/00045/2018 and etc.


        This Writ Petition having been heard and reserved on
25.07.2022, coming on for 'pronouncement of order' this
day, C.M.POONACHA J., made the following:

                          ORDER

The present writ petition is filed challenging the

order dated 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 17.06.1975.

Thereafter, on 13.08.1979 he was selected as Postal

Assistant after having appeared in the Limited

Departmental Competitive Examination (LDCE). On

22.08.1995, 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.

01.01.2006. The Respondent retired from service on

31.05.2014 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

01.09.2008, 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 01.06.2017

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 dated

26.10.2018, noticing that the same was covered by its

order dated 09.08.2018 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 1 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

W.P.No.226631/2020 C/W W.P.No.226627/2020, D.D: 05.07.2022

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 Hussain2,

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 3

and The Director, Directorate of Enforcement &

Anr. vs. K. Sudheesh Kumar and Others 4 and

accordingly, the present matter also requires to be

remanded. He further submits that with regard to the

MACP scheme, a clarification dated 06.09.2021 has

been issued by the Government of India which

clarifies all the scenarios, which aspect can be

considered by the Tribunal.

W.P.No.226628/2020, D.D: 08.02.2022

(2021) 5 SCC 579

Civil Appeal No.442/2022, D.D: 28.01.2022

8. Having regard to the submissions made by

both the parties, the question that arises for

consideration is:

a) "Whether the order dated 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 17.06.1975 as a

Group-D employee in the postal department (orderly

to the Inspector of Posts); was selected as Postal

Assistant on 13.08.1979 after having cleared the

LDCE; was granted financial upgradation on

22.08.1995 under the TBOP scheme after completion

of 16 years of service as Postal Assistant; was granted

financial upgradation under the BCR scheme on

01.01.2006 after completion of 26 years of service as

Postal Assistant and he retired from service on

31.05.2014 having attained the age of

superannuation. Subsequently, on 01.06.2017, 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 dated

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 dated 09.08.2018 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 01.10.1991 were

withdrawn with effect from 01.09.2008 vide Office

Memorandum dated 18.09.2009 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 17.06.1975 as a

Group-D employee. After having cleared the LDCE, he

was selected as a postal assistant on 13.08.1979. On

22.08.1995 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

01.01.2006. Hence, it is clear that the applicant had

the benefit of one promotion on 13.08.1979 and two

financial upgradations on 22.08.1995 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. Shivalingappa5, wherein

this Court held that the selection as a Postal Assistant

W.P.No.57935/2017, D.D: 02.08.2018

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. Kulkarni6, 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. 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.,

W.P.No.102322/2018, D.D.27.11.2018

(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 Regar7 passed by the Jodhpur Bench

of Rajashtan High Court;

(iii) Union of India and others vs.

D. Shivakumar, order dated 04.02.2015

passed by the Division Bench of Judicature

of Madras High Court;

(iv) The Union of India and others vs. Shri

Basanna Naik8 passed by the Division

Bench of Karnataka High Court, Kalaburagi

Bench;

(v) O.A.No.1259/2014 filed by Sri Krishnaiah;

Civil Writ Petition No.11336/2012, D.D: 10.08.2015

W.P.No.200807/2016, D.D: 20.09.2016

(vi) Union of India and others vs. Shakeel

Ahmad Burney9 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 25.03.1978

after clearing the departmental test; financial

upgradation under TBOP was extended on completion

of 16 years of service on 27.03.1994; 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

W.P.No.(C)4131/2014, D.D. 05.08.2014

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 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 another10 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 Nair11 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. Noticing the aforementioned legal position

and applying the same to the facts of the present

case, the respondent being appointed on 17.06.1975

as a Group-D employee and selected as a Postal

Assistant on 13.08.1979 after having cleared the

(2018) 11 SCC 99

(2020) 5 SCC 421

LDCE and having been granted financial upgradation

under TBOP scheme on 22.08.1995 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 dated 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.

Sd/-

JUDGE

Sd/-

JUDGE

LG/RSP