Karnataka High Court
Union Of India And Ors vs Fairaz Hussain on 8 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF FEBRUARY -2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
WRIT PETITION NO.226628/2020 (S-CAT)
BETWEEN:
1. Union of India
Represented by Secretary,
Department of Post,
(Postal & Accounts wing)
Dak Bhavan, New Delhi-110 001.
2. Chief Postmaster General,
Karnataka Circle, Bangalore,
Bengaluru-560 001.
3. Postmaster General,
N.K.Region, Dharwad,
Dharwad-580 001.
4. Sr. Superintendent of Post Offices,
Kalaburagi Division,
Kalaburagi-585 101.
... Petitioners
(By Sri. Sudhirsingh.R.Vijapur, Advocate)
AND:
Faiyaz Hussain S/o Abdul Quayam,
Age: 62 years,
Retired SPM,
Shahapur Town-585223
2
Residing at H.No.16-41,
Near Mulla Maszid, Adilapur,
Shahapur, Dist: Yadgir-585 223.
... Respondent
(By Sri.Shambuling S.Salemath, Advocate)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to call for the records from the Hon'ble
Central Administrative Tribunal, Bangalore and Quash the order
dated 25th February-2020 of the Hon'ble CAT, Bangalore in
O.A.No.170/00589/2019 on its file (Annexure-A to the W.P.) and to
direct the respondents to Benefits to be made available within two
months next. To issue such order writ / order / orders as this
Hon'ble Court may deem fit to grant or pass in the circumstances of
the case and in the interest of justice and equity.
This petition coming on for orders this day,
K.S. Hemalekha J., made the following:
ORDER
The Union of India has preferred this petition assailing the
order dated 25.02.2020 passed in O.A.No.170/00589/2019 by the
Central Administrative Tribunal, Bengaluru (hereinafter referred to
as 'the CAT' for the sake of brevity).
2. The parties are referred to as per their ranking before
the CAT for the sake of convenience.
3. The applicant filed an application for grant of MACP-II
from 13.04.2006 instead of 01.09.2008 with all consequential
benefits and MACP-III from 13.04.2016 with all consequential and
monetary benefits and further direction to re-fix his pension and
retrial benefits.
Brief facts of the case:
4. The Government of India, Ministry of Personnel Public
Grievances and Pensions, the Department of Personnel and
Training, vide Office Memorandum No.35034/3/2008-Est(D) dated
19.05.2009, introduced Modified Assured Career
Progression Scheme ("MACPS") for the Central
Government Civilian Employees. The applicant being appointed as
a Postman and later been promoted as a Postal Assistant from
13.04.1996 was granted under MACP-II with effect from 01.09.2008
and the applicant retired from service on 01.05.2017. The
applicant, on his retirement, gave representation to the authority for
financial upgradation under MACP-II from 13.04.2006 since he had
completed twenty years of service in the Postal Assistant Cadre as
on 13.04.2006 and MACP-III from 13.04.2016. The authority
rejected the representation holding that the applicant has already
earned two financial upgradation and for further financial
upgradation under MACP-III, the applicant was not entitled as per
the Rules of MACPS. Being aggrieved by the rejection of his
representation, seeking for grant of upgradation under MACP-II
from 13.04.2006 instead of 01.09.2008 with all consequential
monetary benefits and sought for a direction to re-fix his pension
and retrial benefits before the appellate authority and MACP-III
from 13.04.2016. The CAT, vide order dated 25.02.2020, allowed
the application holding that the application relates to MACP and its
implementation is squarely covered by the order of the High Court
of Mumbai in W.P.No.1763/2013 in the case of M.P.Joseph vs.
Union of India (M.P.Joseph) and the judgment of the Hon'ble Apex
Court in Union of India & others vs. Balbir Singh Turn [(2018)
11 SCC 99] (Balbir Singh Turn), wherein it was held that the benefit
of MACP is applicable with retrospective effect and MACP is a part
of pay structure which will not only affect the grade pay, but also
the pension. Thus, it is not the part of allowance and it would be
applicable from 01.01.2006. Considering the judgment in the case
of M.P.Joseph and Balbir Singh Turn stated supra, the CAT
allowed the application on the similar terms. Aggrieved by the order
of the CAT, the Union of India is in appeal.
5. Heard Sri Sudhir Singh R. Vijaypur, learned ASGI for
the petitioners and Sri. Shambuling S. Salemath, learned counsel
for the respondent.
6. Learned ASGI appearing for the petitioners would
contend that the order of CAT is without considering the
recommendation of 6th CPC formulation for implementing the
MACPS and the order of the CAT to hold that the MACP has to be
given retrospective effect as the MACP is the condition in service is
not sustainable in view of the fact that the order passed by the CAT
is contrary to the judgment of the Hon'ble Apex Court. In support of
his contention, he has relied upon the decision of the Hon'ble Apex
Court in C.A.No.1579/2021 in the case of Union of India vs. R.K.
Sharma & Ors. and in Civil Appeal No.442/2022 in the case of
The Director, Directorate of Enforcement & Anr. vs. K.
Sudheesh Kumar & Ors.
7. Per contra, learned counsel for the respondent would
contend that the benefits of financial upgradation under MACP is
applicable to the applicant in view of the Office Memorandum dated
06.09.2021 issued by the Ministry of Communication, Department
of Posts, Government of India.
8. Having given our anxious consideration to the
submission of the learned counsel for the parties and having
perused the memorandum and the judgments in R.K. Sharma and
Sudheesh Kumar's case supra, the Hon'ble Apex Court at
paragraph No.9 of R.K. Sharma's case has held as under:
"9. In view of the judgment of this Court in M.V.
Mohanan Nair (supra), the Respondents and other
similarly situated employees are entitled for financial
upgradation under MACPS only to the next grade pay
and not to the grade pay of next promotional post. It is
clear from the resolution dated 30.08.2008 that the
recommendation of the 6th Pay Commission was
accepted by the Government and was made effective
from 01.01.2006 in respect of civilian employees with
regard to revised scales of pay and dearness allowances.
In so far as the revised allowances other than dearness
allowance, recommendation of the 6th Pay Commission
were given effect from 01.09.2008. The judgment in M.V.
Mohanan Nair (supra) clinches the issue. Benefits
flowing from ACP & MACP Schemes are incentives and
are not part of pay. The resolution dated 29.08.2008 is
made effective from 01.09.2008 for implementation of
allowances other than Pay and DA which includes
financial upgradation under ACP & MACP Schemes.
Therefore, the Respondents and other similarly situated
officers are not entitled to seek implementation of the
benefits of MACPS w.e.f. 01.01.2006 according to the
resolution dated 29.08.2008. Moreover, the
implementation of MACPS by granting financial
upgradation only to the next grade pay in the pay band
and not granting pay of the next promotional post w.e.f.
01.01.2006 would be detrimental to a large number of
employees, particularly those who have retired. We find
force in the submission made by the learned Additional
Solicitor General that uniform implementation of MACPS
for civilian employees w.e.f. 01.01.2006 would result in
large scale recoveries of amounts paid in excess."
And at paragraph No.8 of Sudheesh Kumar's case, the
Hon'ble Apex Court has held as under:
"8. By the impugned judgment and order and while
granting grade pay of Rs.6600 to respondent Nos.1 & 2
virtually, the High Court has modified the MACP
Scheme which has been framed by the Government on
the recommendations of the expert body like the pay
commission and its recommendations for the MACP
Scheme. As observed and held by this Court in the
case of M.V.Mohanan Nair (supra) the ACP which is
now suspended by 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. It is further observed that the
recommendations of the pay commission for the MACP
Scheme have been accepted by the Government and
implemented. It is further observed that therefore the High
Court has no jurisdiction to interfere with the Government
policies in the form of MACP Scheme which was after
accepting the Sixth Central Pay Commission. In view of
the above and for the reasons stated above and the
binding decision of this Court in the case of M.V.
Mohanan Nair (supra) with which we also agree, the
impugned judgment and order passed by the High Court
granting grade pay of Rs.6600 to respondent Nos.1 & 2 is
unsustainable and deserves to be quashed and set aside.
However, we observe that the view which we are
taking is on the premise that neither the MACP Scheme
nor Clause 8.1 is under challenge and as per the law laid
down by this Court in M.V. Mohanan Nair (supra), an
employee is entitled to the higher grade pay as provided
under MACP Scheme, more particularly, as per Section
1, Part A of the First Schedule of the CCS (Revised Pay)
Rules, 2008. Therefore, so long as Clause 8.1 and the
grade pay mentioned as per Section 1, Part A of the First
Schedule of the CCS (Revised Pay) Rules, 2008 stands,
the employee shall be entitled to the grade pay
accordingly. Therefore, if any of the employees is
aggrieved by Clause 8.1 and if in his opinion, there is any
anomaly the same has to be challenged by the aggrieved
employee, which can be considered in accordance with
law and on its own merits. However, as the same is not
under challenge, we have to go by the MACP Scheme as
it is."
Where as the Circular dated 06.09.2021 issued by the
Ministry of Communication, Department of Posts, Government of
India produced by the learned counsel for the respondent at para 2
reads as under:
"2. The matter has been examined and it is clarified
that if a Central Govt. employee who is promoted to
either Postman/Mail Guard or Postal/Sorting Assistant
or Inspector Posts cadre (i.e. to the post which carry
higher Grade Pay / pay Level in Pay Matrix than what is
available under MACPS and have the element of direct
recruitment) through Limited Department Competitive
Examination (LDCE) immediate after availing the
benefits of 1st financial upgradation under MACP
Scheme (not TBOP/BCR Scheme), the benefit of 2nd
financial upgradation under MACP Scheme (in the next
Grade Pay w.r.t. Grade Pay / pay Level held by
Government servant) shall be admissible to him/her on
completion of 20 years service from direct entry grade
in terms of para-28(B) of OM dated 19.05.2009 & para-
27(B) of OM dated 22.10.2009, if otherwise, admissible
and the employee fulfils the other eligibility conditions.
In such cases, fixation on such regular promotion
immediate after availing the benefit of financial
upgradation under MACP, shall be subject to the
provisions of para-4 of the OM on MACP Scheme as
this Directorate OM No. 20-27/2015 SPN-II dated
20.08.2018 stands withdrawn vide OM No, 20-27/2016-
SPN-II dated 29.06.202). As such, no pay fixation
benefit with increment would be available and only
difference of grade pay would be available or shall be
placed in the level to which he/she is promoted at a cell
in the promoted level equal to the figure being drawn by
him/her on account of MACP. If no such ceil is available
in the level to which promoted, he/she shall be placed at
the next higher cell in that level. Provided the Basic Pay
on Promotion to these posts where entry pay for direct
recruits appointed on or after 01.01.2008, as per
Section-II of Part-A of First Schedule of CCS (RP)
Rules, 2008, becomes applicable by virtue of the
provision of the element of direct recruitment in the
relevant recruitment rules, shall not be lees than such
entry pay w.e.f. 01.01.2006 in terms of D/o Expenditure
OM No. 8-23/2017-E.IIIA dated 28.08.2018 as clarified
vide DoP&T OM No. 36034/9/2015-Estt.(D) dated
08.00.2020. Further in 7 CPC pay structure, the pay
cannot be lees then the first stage of the relevant level
to which promoted as provided vide Department of
Expenditure OM No. 1-6/2016-1C dated 03.08.2017.
To illustrate-
i. If a Central Gove. employees, who was
appointed (direct entry) as Postal Assistant (in the
corresponding scale to Grade Pay Rs.2400/-) on
01.01.1997 and granted 1st financial upgradation under
MACP Scheme w.e.f. 01.08.2006 (in Grade Pay
Re.2800/-), earns 1st regular promotion through LDCE
to Inspector Posts cadre on 01.09.2010 in Grade Pay
Re.4600/- Level-7 and completes 20 years of service on
01.09.2017, the 2nd financial upgradation under MACPS
in the Level-8 of Pay Matrix (in the next Grade Pay w.r.t.
Grade Pay / pay Level held by Government servant) will
be granted on completion of 20 years of service i.e.
01.00.2017. The modalities shall be as follows:-
Event w.e.f Pay Scale Remarks
Postal 01.09.1997 Grade Pay Entry Grade
Assistant Rs.24,00
st
1 MACP 01.09.2008 Grade Pay On completion of 10
Rs.2800 years service. Pay
fixation as per FR-
22(I)
st
Inspector 01.09.2010 Grade Pay 1 regular promotion
Posts Rs.4600 (through LDCE). No
pay fixation with
increment. Only
difference of GP i.e.
Rs.1800 is to be
added in the basic
pay (para-4 of
MACPS) Provided
the basic pay shall
not be less than the
entry pay i.e. Rs.
17140/- (DoP&T OM
dated 08.09.2020)
nd
2 MACP 01.09.2017 Level-8 (GP On completion of 20
Rs.4800/-) years service. Pay
fixation as per FR
22(I)(a)(1)
ii. If a Central Govt. employees, who was
appointed (direct entry) as MTS (in the corresponding
scale to Grade Pay Rs.1800/-) on 01.08.1990 and
granted 1st financial upgradation under MACP Scheme
w.e.f. 01.09.2008 in term of para-5 of MACPS (in Grade
Pay Rs.1900/-), earns regular promotions, 1st to
Postman on 01.08.2009, 2nd to Postal Assistant
(through LDCE) on 01.09.2013 & 3rd to Inspector Posts
cadre (through LDCE) on 01.01.2021 and completes 20
and 30 years of service as on 01.08.2010 & 01.08.2020
respectively, the modalities for financial upgradation
under MACPS and pay fixation thereon shall be as
follows:-
Event w.e.f Pay Scale Remarks
MTS 01.08.1990 GP Entry Grade (initial
Rs.1800 scale Rs.2650-4000
stands merged with
TOBP scale Rs.2750-
4400 w.e.f.
01.01.2006 to
corresponding GP
Rs.1800/- as a result
th
of 6 CPC
recommendations)
st
1 MACP 01.09.2008 GP In terms para-5 of
Rs.1900 MACPS on merger of
various scales of
MTS as a result of
recommendation of
6th CPC. Pay fixation
as per FR-22(I)(a)(1)
st
Postman 01.09.2009 GP 1 regular
Rs.2000 promotion. No Pay
fixation. Only
difference of GP i.e.
Rs.100 is to be added
in the basic pay
provided it shall not
be less than the entry
pay i.e. Rs.8460/-
nd
2 MACP 01.08.2010 GP On completion of 20
Rs.2400 years service. Pay
fixation as per FR-
22(I)(a)(1).
nd
Postal 01.09.2013 GP 2 regular promotion
Assistant Rs.2400 (through LDCE). No
fixation benefit with
increment would be
available provided the
basic pay on
promotion shall not
be less than the entry
pay i.e. Rs.9910/- (in
term of DoP&T OM
dated 08.09.2020)
rd
3 MACP 01.08.2020 Level-5 On completion of 30
years service. Pay
fixation as per FR-
22(I)(a)(1)
Inspector 01.01.2021 Level-7 3rd regular promotion
Posts (through LDCE). No
pay fixation with
increment. Only
simple replacement
to the Level-7 at a
cell equal to the
figure being drawn
him on account of
MACP. If no such
cell is available in the
Level-7, he shall be
place at the next
higher cell in that
Level. Provided pay
cannot be less than
the first stage of the
Level 7 i.e.
Rs.44900/- in terms
of Department of
Expenditure O.M. No.
1-6/2016-IC dated
03.08.2017.
On subsequent promotion (4th), if any, fixation benefit under FR-
22/(I)(a)(1) shall be admissible.
iii. If a Central Govt. employee. who was appointed
(direct entry) as Postman on 01.01.1988 and granted
TBOP in the scale (Re.3200-4900) w.e.f. 01.01.2001,
earns regular promotions to the posts vis 1st Postal
Assistant (through LDCE) on 01.09.2002, 2 LSG on
01.01.2009, 3rd HSG-II on 01.03.2016 & PS Gr. 'B' /
AAO (through LDCE) on 01.07.2015 and completes 20
& 30 years of service on 01.01.2006 & 01.01.2015
respectively. the modalities for financial upgradation
and pay fixation thereon shall be as follows:-
Event w.e.f Pay Scale Remarks
Postman 01.01.1985 3050-4590 Entry Grade (initial scale
Rs.825-1200 upgraded to
Rs.3050-4590 w.e.f.
01.01.1996)
TBOP 01.01.2001 3200-4900 On completion of 16 years
of service. Pay fixation as
per FR-22(I)(a)(1).
Postal 01.09.2002 4000-6000 Regular promotion. Pay
Assistant fixation under FR
22(I)(a)(1)
nd
2 MACP 01.09.2008 GP Rs.2800 On completion of 20 years
service in terms of para-5
of MACPS due to
upgradation of the scale of
Postman as a result of
recommendation of
th
6 CPC to Rs.3200-4900
(grade Pay Rs.2000/-).
Pay fixation as per FR-
22(I)(a)(1)
nd
LSG 01.01.2009 GP Rs.2800 2 regular promotion. No
Pay fixation
rd
3 MACP 01.01.2015 GP Rs.4200 On completion of 30 years
service. Pay fixation as
per FR-22(I)(a)(1)
rd
HSG-II 01.03.2015 GP Rs.4200 3 regular promotion. No
pay fixation.
th
PS G.-'B' / 01.07.2015 GP Rs.4800 4 regular promotion
Asstt. through LDCE. Pay
Accounts fixation as per FR-
Officer (AAO) 22(I)(a)(1). Since both the
posts PS Gr. 'B' and AAO
had no element of direct
recruitment. The benefit of
fixation at the minimum of
entry pay i.e. Rs. 18,150/-
in terms of D/o
Expenditure OM dated
28.09.2018 & DoP&T OM
dated 08.09.2020
(ibid), shall not be
admissible. Although, the
provisions of D/o
Expenditure OM No. 1-
6/2016-IC dated
03.08.2017 shall be
applicable.
9. The CAT allowed the application holding that the
scheme of MACP is squarely covered by the judgment of the
Hon'ble Apex Court in Balbir Singh Turn's case and the High Court
of Mumbai judgment in M.P.Joseph (Writ Petition No.1763/2003).
Now, in view of subsequent judgments as held in the case of
R.K. Sharma and Sudheesh Kumar as well as in view of the
subsequent Notification/Circle dated 06.09.2021 produced by the
respondent/applicant, we are of the considered opinion that the
matter requires reconsideration by the CAT. Hence, without
expressing any opinion on the merits/demerits of the contentions
urged by the parties, we pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order dated 25.02.2020 passed in
O.A.No.170/00589/2019 by the Central Administrative
Tribunal, Bengaluru is hereby set aside.
iii. The matter is remitted back to the CAT for
reconsideration afresh, bearing in mind the decision
of the Hon'ble Apex Court in R.K. Sharma's case and
Sudheesh Kumar's case as well as the Circular dated
06.09.2021 issued by the Ministry of Communication,
Department of Posts, Government of India, in
accordance with law within a period of three months
from the date of receipt of a certified copy of this
order.
iv. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
