High Court of KeralaDivision Bench2020-01-21The petition is allowed; CAT order set aside; n...

Union of India and others v. V.S. Joseph

Case / Petition Number:OP (CAT) No. 288 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2020-01-21
Court Decision / Holding: The order of the Tribunal is set aside and the original petition is allowed. No order as to costs.
Final Disposition: The petition is allowed; CAT order set aside; no costs.

Parties to the Case

Appellants / Petitioners

Union of India represented by the Secretary to the Government of India, Ministry of Fisheries, Animal Husbandry and Dairy, Department of Fisheries, Krishi Bhavan, New Delhi-110001.
The Pay and Accounts Officer, Central Pension Accounting Office, Ministry of Finance, Government of India, Trikoot-11 Complex, Bhikaji Cama Place, New Delhi-110 066.
The Director, Central Institute of Fisheries, Nautical and Engineering Training (CIFNET), Ministry of Fisheries, Animal Husbandry and Dairy, Department of Fisheries, Foreshore Road, Kochi-682 016.
The Senior Administrative Officer, Central Institute of Fisheries, Nautical and Engineering Training (CIFNET), Ministry of Fisheries, Animal Husbandry and Dairy, Department of Fisheries, Foreshore Road, Kochi-682 018

Respondents

V.S. Joseph S/o Sebastian V.A, Retired Carpenter (CIFNET), Valiyapparambil House, Water Land Road, Palluruthy, Kochi-682 006.

Legal Representation & Advocates

Counsels for Petitioners

• Shri P. Vijayakumar, ASG of India

Case Synopsis & Summary

This petition under OP CAT challenges a Central Administrative Tribunal Ernakulam Bench order dated 04-02-2019 in OA 863/2015 regarding the claim for the second financial upgradation under the Assured Career Progression Scheme (ACPS) or MACPS. The petitioner, Union of India, sought to set aside the CAT order granting the second upgradation to V.S. Joseph, who retired on 30.01.2008. The court notes that the applicant had a long tenure of adhoc appointments beginning 1984 and regularised in 1985. The first ACP upgrade occurred on 09.08.1999 after 12 years of regular service. The claimant asserted that 24 years of service culminated in January 2008, and thus he was eligible for the second up-gradation. However, the tribunal rejected counting adhoc service for ACP purposes. The court cites Union of India v. P.J. Mary (2011) for the proposition that adhoc service cannot be reckoned for ACP, and that regular service for time-bound upgradation must be treated as eligible service for promotion. The bench agrees with that approach and holds that allowing the second upgradation would result in stagnation counter to the scheme's objective. It sets aside the CAT order and allows the petition, clarifying there will be no costs.

Provisions of Law Cited

Assured Career Progression Scheme (ACPS)Modified Assured Career Progression Scheme (MACPS)

Legal Doctrines & Maxims

Adhoc service cannot be counted for ACP under ACPS.
Regular service for purpose of time-bound up-gradation means eligible service counted for regular promotion.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the second financial upgradation under ACPS is due on completion of 24 years of regular service, and that the calculation should include the period of adhoc service leading to regularisation. They urge that MACPS, implemented in 2008, does not negate entitlement accrued under ACPS. The delay in approaching the Tribunal (retired 2008, approached in 2015) should not automatically bar eligibility, and the regular appointment being an exception due to age should not defeat the core upgradation mechanism.

Contentions of Respondents

The respondents argued that adhoc service cannot be counted for ACP; they rely on the principle that regular service for time-bound up-gradation is the basis for eligibility and that counting adhoc service would defeat the scheme’s philosophy and promote stagnation. They also highlighted the delay in filing as fatal to relief sought.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India and others v. P.J. Mary	2011 (1) KHC 861	Positive	Court cites and agrees with the decision that adhoc service cannot be reckoned for ACP; regular service counts for regular promotion, and no reckoning of adhoc service for ACP upgradation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **OP (CAT).No.288 OF 2019** **AGAINST THE ORDER IN OA 863/2015 DATED 04-02-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DAIRYING, DEPARTMENT OF FISHERIES, KRISHI BHAVAN, NEW DELHI-110001.** - **2 THE PAY AND ACCOUNTS OFFICER, CENTRAL PENSION ACCOUNTING OFFICE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, TRIKOOT 11 COMPLEX, BHIKAJI CAMA PLACE, NEW DELHI-110 066.** - **3 THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND ENGINEERING TRAINING (CIFNET), MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DAIRYING, DEPARTMENT OF FISHERIES, FORESHORE ROAD, KOCHI-682 016.** - **4 THE SENIOR ADMINISTRATIVE OFFICER, CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND ENGINEERING TRAINING (CIFNET), MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DAIRYING, DEPARTMENT OF FISHERIES, FORESHORE ROAD, KOCHI-682 018.** **BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** O.P.(CAT) No. 288 of 2019 -2- ## **RESPONDENT/S:** **V.S.JOSEPH S/O SEBASTIAN V.A, RETIRED CARPENTER (CIFNET), VALIYAPARAMBIL HOUSE, WATER LAND ROAD, PALLURUTHY, KOCHI-682 006.** ## **OTHER PRESENT:** **SMT. SMITHA GEORGE** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** O.P.(CAT) No. 288 of 2019 -3- ## **JUDGMENT** Dated this the 21[st] day of January, 2020 ## **K.VINOD CHANDRAN, J.** The claim raised before the Tribunal was with respect to the second financial up-gradation as per the Assured Career Progression Scheme (ACPS) on completion of 24 years with effect from January, 2008. We refer to the parties and documents as are available in the original petition. The applicant retired on 30.01.2008 and approached the Tribunal for the first time in the year 2015, which delay by itself stands against the grant of financial up-gradation as per the ACPS while in service. 2. Even then we look at the facts which indicate that the applicant had been appointed for various periods from 15.12.1975 in different spells on a temporary basis, which however is not claimed for the purpose of grant of ACPS. The applicant's claim is that he was appointed as an adhoc O.P.(CAT) No. 288 of 2019 -4- Carpenter on 13.01.1984 and he was regularised on 7.11.1985 and hence, the adhoc appointment as on 13.01.1984 itself is to be treated as a regular appointment. Admittedly, the applicant's probation was declared by Annexure A3 order dated 23.12.1987. The regular appointment of the applicant too was made as on 7.11.1985; which order is not produced here or challenged at any earlier point of time. It is submitted by the learned ASG that the regular appointment itself was an exception made, since the applicant was over-aged at that point of time. 3. The applicant was granted the first ACP upgradation on 09.08.1999, on completion of 12 years from the date of entry into regular service. The applicant did not make any further claim for the second ACP up-gradation as on the date when it is alleged to have accrued to him on completion of his 24 years service in January 2008, computed from the date of his adhoc appointment. The O.P.(CAT) No. 288 of 2019 -5- applicant continued in service and obtained the second financial up-gradation as per the Modified Assured Career Progression Scheme (MACPS) on 1.9.2008 when the said scheme was The retired on implemented. applicant 31.10.2008 and approached the Tribunal after seven years. 4. The prayer made after seven years for the financial up-gradation while in service cannot at all be entertained. Further we have also found that _adhoc_ service cannot be reckoned for the purpose of ACPS following _**Union**_ . _**of India and others v. P.J. Mary [2011 (1) KHC 861] P.J. Mary**_ , looked at an identical issue of counting of adhoc service for the purpose of ACPS, which, for promotion, is not reckoned as eligible service. The Division Bench specifically found from the terms of the ACPS that regular service for purpose of time-bound up-gradation, has to be interpreted to mean the eligible service counted for regular promotion, in terms of regular recruitment/service rules. It was O.P.(CAT) No. 288 of 2019 -6- categorically found that for the purpose of financial upgardation under the ACPS, there can be no reckoning of adhoc service. We perfectly agree with the finding since, if an adhoc employee is not entitled to count his adhoc service for promotion; then there arises no question of stagnation, on which factum is anchored the very scheme of financial upgradation. In such circumstances, we set aside the order of the Tribunal and allow the original petition. No order as to costs. **sd/K.VINOD CHANDRAN JUDGE** **sd/V.G.ARUN JUDGE** Scl/21. 01.2020 xx O.P.(CAT) No. 288 of 2019 -7- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF OA NO 180/00863/2015 FILED BY THE PETITIONER DATED 11.2.2015 EXHIBIT P1(A5) TRUE COPY OF THE COMMUNICATION NO PF 203/ADM/677 DATED 25.9.2014 EXHIBIT P1(A1) TRUE COPY OF THE MEMO DATED 29.11.1975 EXHIBIT P1(A2) TRUE COPY OF THE OFFICE ORDER NO F1318/83 ADM DATED 20.1.1984** **EXHIBIT P1(A3) TRUE COPY OF THE OFFICE ORFDER NO F.1.14/87 ADM DATED 23.12.1987** **EXHIBIT P1(A4) TRUE COPY OF THE REQUEST LETTER FOR THE GRANT OF 2ND LEVEL FINANCIAL UPGRADATION UNDER THE ACP SCHEME DATED 20.6.2014** - **EXHIBIT P1(A6) TRUE COPY OF THE CERTIFICATE DATED 2.12.2003 REHEARING THE DETAILS OF QUALIFYING SERVICE OF THE APPLICANT ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN OA NO 180/00863/2015 DATED NIL 6.2016** **EXHIBIT P2(R1A) TRUE COPY OF THE DEPT OM NO 35034/97ESTT(D) DATED 9.8.1999** - **EXHIBIT P2(RIB) TRUE COPY OF THE RELEVANT PORTION OF THE DOPT OM NO 35034/1/97-ESTT(D)(VOLIV)DATED 10.2.2000** **EXHIBIT P3 TRUE COPY OF THE IN OA 180/00863/2015 DATED 4.2.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.** O.P.(CAT) No. 288 of 2019 -8-