Union of India & Director, National Institute of Fisheries Post Harvest Technology and Training (NIFPHATT), Cochin v. Lekha & Padmakumari

_**OP(CAT).75/17**_ 1 # **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.75 OF 2017(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 180/2015 DATED 28-06-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT OF**| ||**INDIA, MINISTRY OF AGRICULTURE, DEPARTMENT OF**| ||**ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, NEW**| ||**DELHI.**| |**2**|**THE DIRECTOR**| ||**NATIONAL INSTITUTE OF FISHERIES POST HARVEST**| ||**TECHNOLOGY AND TRAINING (NIFPHATT), P.B.NO.1801,**| ||**COCHIN-16.**| **BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC** ## **RESPONDENT/S:** |**1**|**R.LEKHA**| |---|---| ||**AGED 45 YEARS, D/O.RAMAN, SALES MAN, NATIONAL**| ||**INSTITUTE OF FISHERIES, POST HARVEST TECHNOLOGY AND**| ||**TRAINING (NIFPHATT), COCHIN-682016.**| |**2**|**S.PADMAKUMARI**| ||**43 YEARS, D/O.SANKARAN, UPPER DIVISION CLERK,**| ||**NIFPHATT, COCHIN-682016.**| **R1-2 BY ADV. SRI.P.A.AZIZ R1-2 BY ADV. SRI.I.G.MANOHARAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16-12-2019, THE COURT ON 21-01-2020 DELIVERED THE FOLLOWING:** _**OP(CAT).75/17**_ 2 ## **VINOD CHANDRAN & V.G.ARUN, JJ.** ## **----------------------------------------------O.P(CAT).No. 75 of 2017 ----------------------------------------------Dated this the 21[st] day of January, 2020** ## **JUDGMENT** ## _**Vinod Chandran, J.**_ Applicants are the respondents herein and we refer to the parties and documents as available from the original application. Both the applicants claimed reckoning of their _adhoc_ service in the department for the purpose of grant of Assured Career Progression Scheme (ACPS) and Modified Assured Career Progression Scheme (MACPS). Both the applicants were appointed for various spells on an _ad hoc_ basis, the 1[st] applicant as a Salesman and the 2[nd] applicant as a Lower Division Clerk. 2. The 1[st] applicant was, after various spells, appointed on 18.6.1994, again on an _adhoc_ basis, which appointment continued up to 23.2.1998. On 23.2.1998, she was appointed provisionally in the very same post and later on 26.5.1998, she was regularised. The 1[st] applicant hence claimed that her appointment from 18.6.1994 being continuous and without any break in service has to be reckoned for the purpose of ACPS and MACPS. Admittedly, the 1[st] applicant was granted first financial _**OP(CAT).75/17**_ 3 up-gradation under MACPS on 1.9.2008. Her claim is for reckoning the service from 18.6.1994 for the purpose of ACPS as also MACPS. There is also a claim for regularisation from 18.6.1994, which, at this point, cannot at all be permitted. 3. We cannot but observe that even if the 1[st] applicants service from 1994 is reckoned, her claim for first financial upgradation arises in the year 2006, after completion of 12 years. The 1[st] applicant did not raise any challenge against the denial of benefit under ACPS at the relevant time. In any event she cannot have any claim for second up-gradation as per the ACPS since even on reckoning her service from the date of adhoc appointment in the year 1994, that arises only in 2018, after 24 years, when ACPS stood modified. The ACPS was introduced with effect from 09.08.1999 and MACPS was with effect from 1.9.2008. Reckoning her regular service from 26.5.1998 on which date she was regularised, when the MACPS was introduced in the year 2009, with effect from 1.9.2008, the 1[st] applicant was granted the said benefit from that date itself. Later, joining with the 2[nd] applicant, an original application was filed before the Tribunal which was disposed of by Annexure A1 order. Annexure A1 indicates representations preferred by the 1[st] applicant as on 03.08.2011 and the 2[nd] applicant as on 27.06.2011. _**OP(CAT).75/17**_ 4 4. With reference to facts relevant to the 2[nd] applicant, she had various spells of adhoc appointments from 4.7.1987 onward. Her appointment, on adhoc basis on 07.03.1988, was continued uninterruptedly, till her regularisation as on 23.11.1990. The 1[st] applicant also did not seek for ACPS on completion of 12 years of service, counted from 1988, in the year 2000 when it was allegedly due. The second financial up-gradation as per the ACPS would have inured to the applicant only in the year 2012 on completion of 24 years by which time MACPS had come into force on 01.09.2008. The applicant was granted the second financial up-gradation as per the MACPS on completion of 20 years; with effect from 23.11.2010. 5. The applicants' prayers are for a declaration that their appointments have to be from the date on which they were appointed on an _adhoc_ basis and continued without break in service leading to regularisation. As we noticed, the regularisation occurred in the case of the 2[nd] applicant in the year 1990 and the 1[st] applicant in the year 1998. There was no request for retrospective regularisation at the time of appointment. Even when the financial up-gradations as per the ACPS arose, there was no claim made. The claim was made for the first time in the year 2012, after the MACPS was introduced. We find that the claim for ACPS is grossly delayed. _**OP(CAT).75/17**_ 5 6. In any event 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 categorically found that for the purpose of financial up-gardation 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 up-gradation. As a corollary it has also to be noticed that if a promotion was possible for the _adhoc_ period, then that would disentitle financial up-gradation on account of stagnation. 7. On the question of MACPS, we have to look at the terms of the scheme, which expressly excludes any temporary or _adhoc_ service. We extract paragraph 2 of the O.M dated 19.5.2009 and the definition of 'regular service' as seen from paragraph 9 of the MACP Scheme as follows: _**OP(CAT).75/17**_ 6 “ _2. The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.”_ _“9. '_ _**Regular service** ' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment or preappointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and ot for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.”_ _(_ underlining by us for emphasis) A reading of the above would clearly indicate that there is no question of reckoning of service other than regular service for the purpose of MACPS. In the result, we allow the original petition setting aside the order of the Tribunal. No order as to costs. Sd/- ## **VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN** **JUDGE** _vgsx_ _**OP(CAT).75/17**_ 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1-** **TRUE COPY OF THE OA. NO.180/00870/2015 DATED 19/10/2015 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.** - **EXHIBIT P2TRUE COPY OF THE REPLY STATEMENT IN OA.NO.180/00870/2015 DATED 08/01/2016 FILED BY THE PETITIONERS.** - **EXHIBIT P3TRUE COPY OF THE ORDER IN OA.NO.180/00870/2015 DATED 28/06/2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **ANNEXURE A6 TRUE COPY OF THE LETTER NO.F.NO.513/2012-FY DATED 04/03/2015 ADDRESSED TO R2 BY R1 AND TRUE COPY OF MEMO NO.A3-OA/400/2012/279 DATED 16/03/2015 ISSUED BY R2.** - **ANNEXURE A1 TRUE COPY OF THE ORDER IN OA NO.400/2012 DATED 16/07/2014 BY HON'BLE CAT, ERNAKULAM.** - **ANNEXURE A2 TRUE COPY OF THE MEMO NO.A3OA/400/2012/1194 DATED 18/11/2014.** - **ANNEXURE A3 TRUE COPY OF THE ORDER IN OA NO.105/2010 BY HON'BLE CAT, MADRAS DATED 28/04/2011.** - **ANNEXURE A4 TRUE COPY OF THE OFFICE ORDER NO.143/2010-ADMN DATED 14/08/2014.** - **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE R2 DATED 28/01/2015.** - **ANNEXURE R1(A) TRUE COPY OF THE MEMO DATED 16/06/2011.** - **ANNEXURE R1(B) TRUE COPY OF THE NOTE ISSUED TO THE APPLICANTS FOR SUBMITTING SUPPORTING DOCUMENTS.** **ANNEXURE R1(C) TRUE COPY OF THE LETTER NO.A3OA/497/2014/1905 DATED 27/08/2014.** _**OP(CAT).75/17**_ 8 **ANNEXURE R1(D)** **TRUE COPY OF THE LETTER NO.5-13/2012ADMN.V. DATED 17/11/2014.** **ANNEXURE R1(E)** **TRUE COPY OF THE LETTER NO.5-13/2012ADMN.V. DATED 04/03/2015.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A** **TRUE COPY OF THE JUDGMENT IN WP NO.24104/2011.** **EXHIBIT R1 B** **TRUE COPY OF OFFICE MEMORANDUM NO.35034/1/97SST (D) DATED AUGUST 9, 1999 OF GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.** **EXHIBIT R1 C** **TRUE COPY OF OFFICE MEMORANDUM NO.35034/3/2008(D) MAY 5, 2009 OF GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.**