Per: Hina P. Shah, Judicial Member
1. Since common question of law and facts are involved in OA No. 779/2015, OA No. 783/2015 and OA No. 668/2018, the same are taken up together for disposal.
2. For the sake of convenience, brief facts of OA No. 779/2015 are taken up. OA No. 779/2015 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs: -
“(i) That the respondents be directed to allow second financial upgradation to the applicant under provisions of MACP Scheme in grade pay Rs. 4200 w.e.f. 01/10/2010 taking into consideration of letter dated 26/12/2014 Annexure-A/2) and further orders in similarly cases upheld by Hon’ble High Court Rajasthan (Jodhpur) (Annexure-A/3) with all consequential benefits.
(ii) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(iii) That the costs of this application may be awarded.”
3(a). Brief facts of OA No. 779/2015, as stated by the applicant, is that he was initially appointed as Gramin Dak Sevak (GDS) and further Group-D on 07.06.1979 and thereafter he became Postman on 30.06.1983. After passing departmental examination against direct recruitment quota, he was appointed as Postal Assistant after prescribed training on 01.10.1990 and presently he is working in Jaipur City Postal Division, Jaipur. As per One Time Bound Promotion (OTBP) Scheme, which provides financial up-gradation in promotional scale after completion of 16 and 26 years of service, the applicant was granted benefits of 16 years of service w.e.f. 17.10.2006 vide Memo dated 28.11.2007. On account of up-gradation in old scheme after completion of 16 years, he was allowed pay band Rs. 5200-20200 with Grade Pay Rs. 2800 w.e.f. 17.10.2006 and in view of this position, applicant earned only one up-gradation after appointment as Postal Assistant.
3(b). The applicant further states that Govt. of India promulgated Modified Assured Career Progression Scheme (MACP Scheme) for Central Government Civilian Employee for placement in higher scale after completion of 10, 20 and 30 years of service and respondent-department also adopted the same vide OM dated 18.09.2009 (Annexure A/5) and taking into consideration of the same, respondent no. 3 from time to time allowed the said benefits w.e.f. 01.09.2008 onwards. However, when applicant was not allowed the said benefits, he made a request on 04.08.2014 (Annexure A/6) stating therein that he is entitled for the benefits of second financial up-gradation in the Grade Pay of Rs. 4200 after completion of 20 years of service as on 01.10.2010 from the post of Postal Assistant.
3(c). The applicant also states that he was appointed as Group ‘D’ and further as Postman and thereafter Postal Assistant, which is entry into the grade from Postal Assistant cadre and prior to Group ‘D’ to Postman and Postman to Postal Assistant that promotion cannot be counted as there is no channel of promotion from Postman cadre to Postal Assistant Cadre and lower staff always became Postal Assistant after passing departmental examination meant for the same against direct recruitment vacancies. The applicant further made a request on 10.11.2014 (Annexure A/7) and respondent no. 3 after considering the matter and taking into consideration MACP Scheme, forwarded the same to respondent no. 2 vide letter dated 26.12.2014 (Annexure A/2) for guidance. The applicant has also made request on 27.04.2015 (Annexure A/1) but without any base, the said matter is kept pending. It is settled law that the selection for appointment to the post of Postal Assistant is not an up-gradation / promotion under MACP Scheme. As such, applicant is entitled for the benefits of second financial up-gradation under the provisions of MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 01.10.2010 after completion of 20 years of regular service in Postal Assistant Cadre as on 30.09.2010. But respondents have failed to consider the same, which has been considered by the various Benches of this Tribunal and upheld by the Hon’ble High Courts and Hon’ble Supreme Court. Therefore, being aggrieved by the action of the respondents, applicant has filed the present O.A. for redressal of his grievance. In support of his contentions, the applicant has relied upon the following judgments/ orders:-
“(i) C.A.T., Jodhpur Bench’s order dated 22.05.2012 passed in the case of Bhanwar Lal Regar & Ors. vs. Union of India & Ors., (OA No. 382/2011), and other connected OAs and upheld by the Hon’ble High Court of Rajasthan at Jodhpur in DBCWP No. 11336/2012 vide its order dated 10.08.2015.
(ii) C.A.T., Chennai Bench’s order dated 14.03.2013 passed in the case of D. Sivakumar vs. Union of India & Ors. (OA No. 1088/2011) which is upheld by the Hon’ble High Court of Madras in WP No. 30629/2014 dated 04.02.2015 and by Hon’ble Supreme Court in SLP (C) No. 4848/2016 dated 16.08.2016.
(iii) C.A.T., Jaipur Bench’s order dated 05.05.2022 passed in the case of Jairam Luniwal vs. UOI & Ors. (OA No. 114/2019).
(iv) C.A.T., Jaipur Bench’s order dated 26.08.2022 passed in the case of Narayan Singh Chauhan vs. UOI & Ors. (OA No. 381/2017).”
4. After issue of notices, respondents have filed their reply stating that applicant was initially appointed as M.T.S. (earlier Group ‘D’) cadre on 07.06.1979. Thereafter, on qualifying departmental examination, he was promoted in Postman cadre on 30.06.1983. He further qualified in the departmental examination for promotion to the post of Postal Assistant and was posted as Postal Assistant w.e.f. 01.10.1990. On completion of 16 years of regular service in the Postal Assistant Cadre, applicant was granted financial up-gradation under TBOP Scheme w.e.f. 17.10.2006. After implementation of 6th CPC, pay of the applicant was fixed in Pay Band Rs. 5200-20200 + Grade Pay Rs. 2800 in Postal Assistant cadre. For further financial up-gradation on completion of 20 years of service, the applicant applied vide his applications dated 04.08.2014 and 10.11.2014. The said applications were forwarded and as per letter dated 23.05.2016, applicant was informed that Chief PMG Jaipur vide letter dated 10.05.2016 clarified that as per OM dated 18.09.2009, second financial up-gradation under MACP Scheme is not admissible to him.
4(b). Respondents further state that in the case of the applicant, promotion to Postman cadre was off-set against 1 st MACP and second promotion to the cadre of Postal Assistant was off-set against 2nd MACP and the applicant was up-graded in TBOP after completion of 16 years of service of Postal Assistant Cadre. Thus, such up-gradation under TBOP was off-set against 3rd MACP. Therefore, the applicant is not entitled for any further financial upgradation under the MACP Scheme. Respondents further state that the said orders passed by the Coordinate Benches of this Tribunal including C.A.T., Jodhpur and Chennai Bench are not applicable to the present case as the said orders are made applicable in respect of those particular cases only. As far as the decisions of several Hon’ble High Courts and Hon’ble Supreme Court are concerned, the same are applicable only to those respective cases. The respondents have also relied upon following judgments / orders: -
“(i). C.A.T., Jaipur Bench’s order dated 12.08.2021 passed in O.A. No. 469/2011 (Onkar Mal vs. UOI & Ors.) and connected matters.
(ii). Hon’ble High Court of Rajasthan, Jaipur Bench’s order dated 10.05.2018 passed in the case of Union of India & Ors. vs. Dev Karan Mahala & Ors., (D.B. Civil Writ Petition No. 18488/2016) and connected matters.
(iii). Hon’ble High Court at Madras order dated 06.06.2022 passed in the case of N. Selvan vs. UOI & Anr. (W.P. No. 16818/2017) and connected matters. “
The respondents, therefore, prayed that the present Original Application deserves to be dismissed being devoid of any merits.
5. The applicant has also filed M.A. No. 857/2019 praying for condonation of delay in filing O.A. No. 779/2015 stating that matter relates to grant of MACP and its consequential pay & allowances, therefore, it is a recurring cause of action, thus, he prays that the delay in filing the O.A. may be condoned in the interest of justice. The respondents have filed reply to the said M.A. stating that the O.A. deserves to be dismissed on the ground of delay.
6. Further, brief facts of OA No. 783/2015 are also taken up. OA No. 783/2015 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs: -
“(i) That the respondents be directed to restored the benefits of second financial up-gradation to the applicant under provisions of MACP Scheme in grade pay Rs. 4200 as granted w.e.f. 01/09/2008 vide memo dated 25/03/2010 (Annexure-A/2) by quashing letter dated 08/10/2012 (AnnexureA/1) and memo dated 19/04/2011 (AnnexureA/3) in respect of applicant with all consequential benefits.
(ii) That the respondents be further directed to restored fixation of pay & allowance as allowed in the year 2010 and to pay amount so recovered with further benefits upto retirement on 31/12/2012 and thereafter revised retirement benefits taking into consideration of grade pay Rs. 4200 w.e.f. 01/09/2008 with all consequential benefits including arrears of pay & allowances and difference of retirement benefits with pension.
(iii) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(iv) That the costs of this application may be awarded.”
7. Brief facts of OA No. 783/2015, as stated by the applicant, is that he was initially appointed as GDS in the year 1974 and further Group ‘D’ on 17.10.1978 and further he became Postman in the year 1983. Thereafter, after qualifying departmental examination against direct recruitment quota, he was appointed as Postal Assistant after prescribed training on 29.09.1987. He was granted the benefits of 16 years of service under one time bound promotion (OTBP) scheme w.e.f. 13.10.2003 vide Memo dated 21.11.2003. The applicant was also allowed the benefits of second financial up-gradation MACP Scheme w.e.f. 01.09.2008 vide Memo dated 25.03.2010 (Annexure A/2) but the respondents without any base, withdrawn the same vide Memo dated 19.04.2011 (Annexure A/3) on the ground that the applicant already earned three promotions and amount so paid also recovered from the applicant. The applicant made a representation on 16.07.2012 (Annexure A/7) against the said withdrawal of 2nd MACP requesting for restoring the same. But the respondents have rejected the request of the applicant vide letter dated 08.10.2012 (Annexure A/1). The applicant states that he was appointed as Postal Assistant on 29.09.1987 and thereafter he was allowed higher scale on completion of 16 years of service under old Scheme on 13.10.2003. In view of this position, he is entitled for second financial upgradation w.e.f. 01.09.2008 in Grade Pay Rs. 4200 after completion of 20 years of service as Postal Assistant as granted and third financial up-gradation is not available to the applicant as he stands retired on 31.12.2012. Therefore, the applicant has filed the present O.A. for redressal of his grievance.
8. After issue of notices, the respondents have also filed their reply refuting the claim of the applicant. The respondents state that the applicant was granted three financial up-gradations / promotions, therefore, second MACP granted w.e.f. 01.09.2008 vie Memo dated 12.03.2010 in Pay Band 5200-20200 Grade Pay Rs. 4200 w.e.f. 01.09.2008 communicated vide its Memo dated 25.03.2010 was irregular and in the contravention of letter dated 18.10.2010. The applicant submitted his representation dated 16.07.2012 vide which he requested for financial up-gradation under MACP Scheme w.e.f. 01.09.2008, which was withdrawn vide Memo dated 17.03.2011. The said representation of the applicant was considered and rejected by the competent authority in the light of Directorate letter dated 18.10.2010 by the Postmaster General, Raj. WR Jodhpur letter dated 04.10.2012. Therefore, plea of the applicant is baseless and not tenable and, thus, the O.A. filed by the applicant deserves to be rejected.
9. The applicant has also filed M.A. No. 454/2015 praying for condonation of delay in filing O.A. No. 783/2015 stating that matter relates to grant of MACP and its consequential pay & allowances, therefore, it is a recurring cause of action, thus, he prays that the delay in filing the O.A. may be condoned in the interest of justice.
10. Also, brief facts of OA No. 668/2018 are also taken up. OA No. 668/2018 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs: -
“(i) That the respondents be directed to allow / holdgood second financial up-gradation to the applicant under provisions of MACP Scheme in grade pay Rs. 4200 w.e.f. 01/09/2008 (Annexure-A/5) as allowed by quashing Memo dated 19/04/2011 (Annexure-A/6) with the memo dated 30/07/2018 (Annexure-A/1) in respect of applicant taking into consideration of orders in similar cases passed by Hon’ble High Court Jodhpur and Jaipur Bench and upheld by Hon’ble Supreme Court with all consequential benefits
(ii) The respondents be further directed to allow due pay & allowance till retirement i.e. 31/10/2011 after due fixation of pay and further to revise pension and pensioner benefits and to allow difference of the same alongwith interest @ 12% per annum with all consequential benefits.
(iii) The respondents be further directed to refund Rs. 87,099/- along with interest @ 12% per annum with all consequential benefits
(iv) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(v) That the costs of this application may be awarded.”
11. Brief facts of OA No. 668/2018, as stated by the applicant, is that he was initially appointed as GDS on 05.07.1973 and he was allowed deputation to serve in Army Postal Services in the year 1978 with designation of Group ‘D’ and thereafter he passed Postman examination as well as Postal Assistant in the year 1982 and 1986, respectively and served Army Postal Services with the designation as Sepoy, Naik and Warrant Officer. On discharge from Army Postal Services in the year 1993, he joined civil post in respondent-department upto his retirement on 31.10.2011 from the post of Sub Post Master, Khoor Sub Post Office, District Sikar. He was granted financial up-gradation in promotional cadre after completion of 16 years of service under OTBP Scheme w.e.f. 24.08.2002 vide Memo dated 24.10.2002. On account of up-gradation in old Scheme after completion of 16 years, he was allowed pay band Rs. 5200-2020 with grade Pay Rs. 2800 w.e.f. 01.01.2006 and in view of this position, applicant earned only one up-gradation after appointment as Postal Assistant. The applicant was allowed second financial up-gradation under MACP Scheme w.e.f. 01.09.2008 vide Memo dated 25.03.2010 and he was allowed due fixation of pay in the grade pay of Rs. 4200. But the respondents in the garb that applicant already earned three promotions, withdrew the benefits of 2nd MACP vide Memo dated 19.04.2011 (Annexure A/6) and also recovered Rs. 87,099/- and thereafter applicant stands retired on 31.10.2011. The applicant made a request before the respondents vide Annexure A/9 for restoring the said benefits already granted. The applicant states that from the cadre of Postal Assistant, he was only allowed one financial up-gradation in the year 2002 after completion of 16 years of service as per provisions of OTBP Scheme and thereafter became due for second financial up-gradation under MACP Scheme w.e.f. 01.09.2008 and the same was allowed but without any base, the same has been withdrawn vide Annexure A/6 just prior to five months of retirement and benefits from 01.09.2008 to April 2011 i.e. Rs. 87,099/- also recovered from the applicant during the course of employment. Due to wrong action of respondents, applicant was drawing less pay and allowances during service and further less pension and benefits after retirement. Hence, the applicant had filed O.A. No. 532/2016 seeking direction to respondents to allow second financial up-gradation under provisions of MACP Scheme in the grade pay Rs. 4200 w.e.f. 01.09.2008 as allowed by quashing memo dated 19.04.2011 with all consequential benefits. This O.A. was disposed of by this Bench of the Tribunal vide its order dated 27.07.2016 with a direction to competent authority to decide the pending representation of the applicant within four months. When no action was taken by the respondents within the stipulated period, he preferred CP No. 24/2017. However, thereafter, the respondents issued Memo dated 25.09.2017 stating therein that similar matters are sub judice and after disposal of the same, matter will be considered. Thereafter, respondent no. 3 rejected the claim of the applicant vide Memo dated 30.07.2018 (Annexure A/1). Therefore, being aggrieved the order dated 30.07.2018 (Annexure A/1) and for agitating his grievance, the applicant has filed the present O.A.
12. After issue of notices, the respondents have filed their reply refuting the claim of the applicant. The respondents state that controversy in the instant matter is that mistakenly granted benefit of 2nd MACP in pay band-II with Grade Pay Rs. 4200 w.e.f. 01.09.2008 under the MACP Scheme vide Memo dated 25.03.2010 was withdrawn vide Memo dated 19.04.2011 on the duly approved recommendations dated 11.01.2011 of the Review Screening Committee for placement of MACP constituted for the purpose as the applicant was initially appointed in the department as erstwhile Group ‘D’ on 13.06.1978 and thereafter he was promoted to Postman Cadre on 01.08.1983 and thereafter again promoted to the cadre of Clerk / Postal Assistant on 06.08.1986 through LDCE against promotion quota vacancies on both the times. He was also granted benefit of financial up-gradation under TBOP Scheme on completion of 16 years of service in Postal Assistant cadre w.e.f. 24.08.2002. As such, being already earned two promotions and one financial up-gradation, he is not entitled for 2nd MACP as prescribed vide Postal Directorate letter dated 18.09.2009. Therefore, the benefits of second financial up-gradation granted to the applicant under MACP Scheme in Grade Pay Rs. 4200 w.e.f. 01.09.2008 was withdrawn vide Memo dated 19.04.2011 (Annexure A/6). Thereafter, assailing the said order dated 19.04.2011, the applicant has filed OA No. 532/2016 and this Bench of the Tribunal vide its order dated 27.07.2016 directed the competent authority to take a view on the pending representation of the applicant. The applicant has also filed CP No. 24/2017. Thereafter, the representation of the applicant has been rejected vide order dated 30.07.2018 (Annexure A/1). Therefore, the respondents state that the O.A. filed by the applicant deserves to be dismissed being devoid of merits.
13. We have heard learned counsels for the parties and examined the pleadings brought on record including the judgments/orders cited by the respective parties.
14. The applicant and respondents have reiterated their stand as taken earlier.
15. In view of the fact that the matter relates to MACP and its consequential benefits like pay and allowance and also in the interest of justice, delay in filing O.A. No. 779/2015 & OA No. 783/2015 is condoned. Accordingly, M.A. No. 857/2019 as well as MA No. 454/2015 are allowed.
16. After hearing the parties and perusing the pleadings, factual matrix of the case is that the applicant in OA No. 779/2015 was initially appointed as Gramin Dak Sevak (GDS) and further Group-D on 07.06.1979 and thereafter he became Postman on 30.06.1983. After passing departmental examination against direct recruitment quota, he was appointed as Postal Assistant after prescribed training on 01.10.1990. It is seen that as per MACP Scheme dated 18.09.2009, there are three financial upgradations counted from direct entry grade on completion of 10, 20 and 30 years of service. The submission of the respondents is that in the case of the applicant, promotion to Postman cadre was off-set against 1st MACP and second promotion to the cadre of Postal Assistant was off-set against 2nd MACP and his up-gradation in TBOP after completion of 16 years of service of Postal Assistant cadre as off-set of 3rd MACP and, accordingly, the respondents find that the applicant is not entitled for any further financial up-gradation under the MACP Scheme. On the other hand, applicant states that as per TBOP Scheme, he was granted financial up-gradation in promotional scale after completion of 16 years of service w.e.f. 17.10.2006 vide Memo dated 28.11.2007 and he was allowed pay band Rs. 5200-20200 with Grade Pay Rs. 2800 w.e.f. 17.10.2006 and in view of this position, he earned only one upgradation after appointment of Postal Assistant. Therefore, applicant states that he is entitled for the benefits of second financial up-gradation under the provisions of MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 01.10.2010 after completion of 20 years of service from the post of Postal Assistant.
17. The claim of the applicant is that he was initially appointed as GDS and further Group ‘D’ on 07.06.1979 and thereafter he became Postman on 30.06.1983. Thereafter, upon qualifying the departmental examination against direct recruitment quota, he was appointed as Postal Assistant on 01.10.1990, which is the entry into the grade of Postal Assistant cadre. There is no channel of promotion from Postman cadre to Postal Assistant cadre and a Postman becomes a Postal Assistant only after passing departmental examination against direct recruitment quota, thus, counting promotion from GDS/Group ‘D’ and Postman to Postal Assistant cannot be accepted as it is against the recruitment rules.
18. After considering the rival submissions of the parties, we are of the opinion that the issue involved in the present case is no more res intergra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon’ble High Courts and Hon’ble Supreme Court on this particular issue. This Bench of the Tribunal vide its order dated 26.08.2022 in the case of Narayan Singh Chauhan (supra), (OA No. 381/2017) has observed and held as under:
“8. We have considered the rival submissions made on behalf of the parties. We are of the opinion that the issue involved in the present case is no more res integra as we have come across several judgments passed by several Coordinate Benches of this Tribunal as well as the Hon’ble High Courts and Hon’ble Supreme Court on this particular issue. The very first judgment which we have come across is of Jodhpur Bench of this Tribunal passed in the case of Bhanwar Lal Regar (supra), wherein this Tribunal at paras 19 & 20 has held as under: -
“19. In a similar manner, while being Postmen, the three applicants in these three OAs faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become Postal Assistants. Their joining as Postal Assistants was not in the nature of promotion in their earlier existing service or cadre, but was a career advancement through a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and MACP financial upgradation now, the only dates which are relevant to be taken into account for the purpose of counting the periods of their stagnation is the period spent by the applicants as Postal Assistants. In that sense, the clarification issued by the Pay Commission Cell of the Department of Posts, Ministry of Communications & IT on 25.04.2011 through file No. 4- 7/MACPS/2009/-PCC, as cited in para 8 above, is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when the Postman appears at the LDCE, and gets selected to a new Cadre as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements cannot be called to be promotions within the definition of the word ‘promotion’, as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.
20. It is, therefore, clear that Para-2 of the impugned order in all these three OAs at Annexure A-1 dated 10.08.2011, passed by the Supdt. of Post Offices, Churu Division, Churu was incorrect, and the eligibility of these three applicants for the grant of TBOP/BCR benefits earlier, and MACP benefit thereafter, has to be counted only from the date they were substantively appointed as Postal Assistants. Therefore, the impugned Annexure A-1 dated 10.08.2011 in all the three OAs are set aside, and the grant of MACP benefit correctly granted to the three applicants earlier through the order dated 31.03.2010 is upheld. The applicants shall be accordingly entitled to all the arrears, with interest at the GPF rate of interest being payable on the arrears of the financial upgradation benefit admission to the applicants, correctly granted earlier on 31.03.2010.”
It is also seen that against the said order of this Tribunal, the respondent-Union of India had approached the Hon’ble High Court of Rajasthan, Jodhpur Bench by way of filing D.B. Civil Writ Petition No. 11336/2012 (Union of India & Ors. vs. Bhanwar Lal Regar) and connected Writ Petitions, but the Hon’ble High Court vide its order dated 10th August, 2015 had observed, while dismissing the same, which reads as follows:-
“Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant / Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed.”
We have also been informed that aggrieved by the aforesaid orders of the Hon’ble High Court of Rajasthan, the Union of India had moved to the Hon’ble Supreme Court but the Hon’ble Supreme Court has also upheld the orders passed by this Tribunal as well as Hon’ble High Court of Rajasthan.
9. We have also noted that Chennai Bench of this Tribunal vide its order dated 14.03.2013 passed in the case of D. Sivakumar (supra) while dealing with the same issue had allowed the Original Application. Aggrieved by the decision of Chennai Bench of this Tribunal, the respondent-Union of India had taken up the matter before the Hon’ble High Court of Judicature at Madras by way of filing Writ Petition No. 30629 of 2014 and M.P. No. 1 of 2014, (Union of India & Ors. vs. D. Sivakumar & Anr.), and the Hon’ble High Court vide its order dated 04.02.2015 while dismissing the Writ Petition, has held as under: -
“9. What the Department had done is to adjust the appointment of the first respondent as the Postal Assistant on 12.11.1977, as the first financial upgradation under Modified Assured Career Progression-I. This is clearly erroneous in view of the fact that the appointment as Postal Assistant was not granted to the first respondent after mere completion of 10 years in the Cadre of Postman. From the Cadre of Postman, to which, the first respondent got appointed on 22.9.1973, he participated in a selection to the post of Postal Assistant and got appointed. Therefore, to adjust the said appointment against Modified Assured Career Progression-II, is clearly erroneous. Once that error is removed, it will be clear that the first respondent would be entitled to three modified assured career progression for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the Department not to take into account the appointment granted to the post of Postal Assistant and to adjust it against Modified Assured Career Progression-I.
10. Moreover, it is to be pointed out that even the second modified assured career progression was granted under the Modified Assured Career Progression Scheme only after 16 years and the third is said to have been granted after 26 years. If the first appointment is adjusted against Modified Assured Career Progression-I, this could not have actually happened. For doing so, the Department has counted the first appointment as 12.11.1977. Therefore, they cannot do so for the Modified Assured Career Progression Scheme in a different manner.
11. Accordingly, the writ petition is dismissed. No costs. Consequently, the above MP is also dismissed.”
Thereafter, against the said order/judgment of the Hon’ble High Court, the respondent-Union of India has filed Petition for Special Leave (C) No. 4848/2016 (Union of India & Ors. vs. D. Sivakumar) before the Hon’ble Supreme Court wherein the Hon’ble Supreme Court vide its order dated 16.08.2016, while dismissing the same, has held as under: -
“We see no reason to entertain this petition under Article 136 of the Constitution of India. The special leave petition is, accordingly, dismissed.
However, the question of law is kept open.”
10. We have also come across the orders passed by Coordinate Benches of this Tribunal. The Bangalore Bench of this Tribunal, while dealing with the very same issue in the case of C.F. Tagadinamani (supra) has held as under: -
“4. It is evident from the orders passed by different Benches of the Tribunal as well as Hon’ble High Courts and Hon’ble Supreme Court on this particular issue as highlighted in the preceding para that the appointment of the applicant to the post of Postal Assistant on 01.09.1987 based on the LGO’s examination cannot be considered as promotion. Following his appointment to the Postal Assistant cadre, the applicant got one financial upgradation under TBOP on completion of 16 years. He completed 20 years of service in Postal Assistant cadre in 2007. Accordingly, his claim for 2nd financial upgradation w.e.f. 1.9.2008 appears to us as justified. Therefore, we hold that the applicant is entitled to get 2nd financial upgradation w.e.f. 1.9.2008 when he had completed 20 years of service in the Postal Assistant cadre. Accordingly, we direct the respondents to pass necessary orders granting the applicant 2nd financial upgradation under MACP w.e.f. 1.9.2008 as claimed by him in place of 3rd financial upgradation granted from Oct., 2011. This shall be done within a period of two (2) months from the date of receipt of a copy of this order. All the consequential benefits should also be granted within the said period.
5. The OA is accordingly allowed in terms of aforesaid direction. No order as to costs.”
The Bangalore Bench of this Tribunal vide its order dated 22nd November, 2017 passed in the case of G.B. Kulkarni (supra) has dealt with the same issue and held that the appointment of the applicants to the post of Postal Assistant based on the LGO’s examination cannot be considered as promotion.
11. The Ernakulam Bench of this Tribunal while examining the identical issue, vide order dated 04th April 2019 passed in the case of V.T. Easow (supra) had held that the selection to the post of Postal Assistant / Postman is by way of an exam and which is a direct recruitment and the same shall not be counted as promotion for the purpose of MACP. Therefore, all the applicants are entitled for the financial upgradation as per the MACP scheme on completion of respective period of service. The impugned orders in all the OAs to extent it denies the benefit of financial upgradation under MACP scheme to the applicants treating the appointment to the post of Postal Assistant / Postman as one promotion were quashed and set aside.
12. We have also come across the judgment of Ahmedabad Bench of this Tribunal which while dealing with the identical / similar issue, vide order dated 17.09.2019 passed in the case of Natvarbhai S. Makwana (supra) has quashed all impugned orders whereby either TBOP/BCR/MACP granted earlier to the applicants has been cancelled and adjusted as set off or they were declined their TBOP/BCR/MACP due treating the post of Postal Assistant as promotion from the post of Postman. The respondents were directed to place the claim of the applicants for examination afresh before the Review Screening Committee treating the date of entry into the cadre/grade of the post of Postal Assistant as the starting point and to release the financial upgradations of 1st, 2nd and 3rd MACP, as the case may be, to which they are entitled, keeping in mind that promotion of the applicants as Postal Assistant was not a ‘promotion’.
13. From the aforesaid orders/judgments passed by different Coordinate Benches of this Tribunal as well as Hon’ble High Courts and Hon’ble Supreme Court on this particular issue, it is quite clear that appointment of the applicant as Postal Assistant on 28.03.1995 based on departmental competitive examination cannot be considered as promotion. Since the applicant is similarly situated employee to that of the cases as discussed above, he is entitled for grant of benefit of 2nd MACP in grade pay Rs 4200/- w.e.f. 28.03.2015 treating upgradation allowed w.e.f. 01.09.2008 in GP-Rs.2800/- as first upgradation.
14. We are not in agreement with the submissions made on behalf of the respondents that the said orders/judgments, as discussed above, is applicable to the applicants of the said cases only. But we are of the considered view that since the applicant herein is similarly situated person, he is also entitled to get the same benefits as have been given to the applicants therein. So far as the judgment of the Hon’ble Supreme Court passed in the case of R. Santhakumari Velusamy (supra), as relied upon by the respondents, is concerned, the same is not applicable to the facts of the present case.”
We have noticed from the order dated 10th August, 2015 passed by the Hon’ble High Court of Rajasthan, Jodhpur Bench in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) that while granting appointment to the post of Postal Assistant/ Sorting Assistant, original applicants therein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression. The said ratio decided by the Hon’ble High Court of Rajasthan in the case of Union of India & Ors. vs. Bhanwar Lal Regar (supra) has also been followed by this Bench of the Tribunal while deciding the case of Narayan Singh Chauhan (supra). Therefore, the ratio decided by this Tribunal in the case of Narayan Singh Chauhan (supra) is squarely applicable to the facts and circumstances of the present case. The same ratio has also been followed by this Bench of the Tribunal while deciding the case of Jairam Luniwal (supra). Therefore, in view of the above position, the present Original Applications deserve to be allowed.
19. Coming to the judgments relied upon by the respondents, in the case of Onkar Mal (supra), it is clear that the issue raised by the applicant in the said matter was pertaining to the issue of recovery and, therefore, the said matter cannot be co-related with the present matter. As far as judgment in the case of Dev Karan Mahala (supra) is concerned, the Hon’ble High Court at para 13 has clearly observed as under: -
“13. The very object of Modified Assured Promotion Scheme is to avoid stagnation. If in every 10 years any employee is not granted any promotion, he will be given selection grade. In this way, the employee will be entitled for three selection grades. If he is not being given a promotion within 10 years, he will be given next promotion scale and if after 10 years and upto 20 years he is not getting any promotion then next benefit will be given to him on completion of 20 years from the date of appointment and thereafter if he is not getting further promotion till 30 years, he will be entitled for benefit of promotional scale after completion of 30 years. The original applicant/s will be granted the benefits accordingly.
It is also noted that the Hon’ble High Court was of the view that as per Rules, in view of promotion, first benefit is to be granted from 10 years from the promotional post or from the new recruitment taken as confirmed. Further, the Hon’ble High Court was of the view that the benefit will be conferred only after regular 10, 20 and 30 years service and if not promoted, the incumbent will be entitled for next up-gradation. However, it is clear that in the said order, while deciding the issue in the case of Dev Karan Mahala (supra), the Hon’ble High Court has not taken into consideration the judgment passed by the Hon’ble High Court of Rajasthan in the case of Bhanwar Lal Regar (supra), which has been upheld upto the level of Hon’ble Supreme Court. Therefore, it is clear that the said judgment is not applicable to the present case.
20. As far as the judgment passed by the Hon’ble High Court at Madras in the case of N. Selvan (supra) is concerned, the Hon’ble High Court has held that the writ petitioners having availed promotion to the post of Postal Assistant from the lower post of Postman and Group ‘D’ post, are not entitled to the grant of financial up-gradation under MACP-III and they are also not entitled to the consequential benefits thereof. However, we find that there are conflicting judgments of two different High Courts, by the Benches of equal strength, i.e. judgment passed by the Hon’ble High Court of Rajasthan at Jodhpur in the case of Bhanwar Lal Regar (supra), which has been upheld by the Hon’ble Supreme Court and the other judgment passed by the Hon’ble High Court at Madras in the case of N. Selvan (supra). In such a situation, as per decision/order dated 24th March, 2015 in OA No. 569/2009 (Ajay Sharma vs. UOI & Ors.), passed by Larger Bench at C.A.T., Jaipur Bench, if there are conflicting judgments of two different Hon’ble High Courts, by the Benches of equal strength, the Tribunal should be free to take its own view to be in consonance of the view taken in either of the judgments of the Hon’ble High Courts. Therefore, we, in respectful agreement, are of the view that the ratio decided by the Hon’ble High Court of Rajasthan, Jodhpur in the case of Bhanwar Lal Regar (supra) shall be applicable to the present case as the same has also been upheld upto the level of Hon’ble Supreme Court.
21. Accordingly, we are of the view that while granting appointment to the post of Postal Assistant, applicants herein faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence, their services for the grant of benefits under Modified Assured Career Progression has to be counted only from the date they were appointed as Postal Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants are absolutely inconsequential for the purpose of grant of Modified Assured Career Progression.
22. In view of the observations and discussions made herein-above, the following orders are passed:-
“(i) Respondents in OA No. 779/2015 are directed to grant second financial up-gradation to the applicant in the Grade Pay of Rs. 4200 w.e.f. 01.10.2010 with all consequential benefits.
(ii). The impugned order dated 08.10.2012 (Annexure A/1) and Memo dated 19.04.2011 (Annexure A/3), in OA No. 783/2015, qua the applicant, are hereby quashed and set aside. Accordingly, respondents are directed to restore the benefits of second financial upgradation with all consequential benefits under MACP Scheme in the grade pay of Rs. 4200 as granted w.e.f. 01.09.2008 vide Memo dated 25.03.2010 (Annexure A/2). It is also made clear that the respondents shall restore fixation of pay & allowance as was allowed to him in the year 2010 and pay amount if already recovered and also revise the retirement benefits taking into consideration the grade pay of Rs. 4200 w.e.f. 01.09.2008 at the time of his retirement i.e. 31.12.2012 with all consequential benefits.
(iii). The impugned memo dated 19.04.2011 (Annexure A/6) and Memo dated 30.07.2018 (Annexure A/1), in OA No. 668/2018 qua the applicant, are hereby quashed and set aside. Respondents are directed to allow the benefits of second financial up-gradation to the applicant under MACP Scheme in the Grade Pay of Rs. 4200 w.e.f. 01.09.2008 as was allowed vide order dated 25.03.2010 (Annexure A/5). The respondents are further directed to allow due pay and allowances till retirement i.e. 31.10.2011 after due fixation of pay and further revise pension and pensionary benefits to the applicant with all consequential benefits. It is also directed to refund Rs. 87,099/- to the applicant, if already recovered as stated by the applicant.
(iv). This exercise shall be carried out by the respondents within a period of three months from the date of receipt of a certified copy of this order.”
23. With these observations and directions, all aforesaid Original Applications are allowed. No order as to costs.
