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
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16.07.2010 the petitioners herein have withdrawn the 2nd Financial Up-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.
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
(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.
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
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.
CDJ 2015 MHC 4401
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
2018 (5) ALT 494
(2020) 5 SCC 421
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
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,
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
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
(2022) 3 SCC 133
(2023) 3 SCC 649
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
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.
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.
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
