Union of India & Others v Govindan K.P. (OP (CAT).1866 of 2013)

_**OP(CAT).1866/13**_ 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 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **OP (CAT).No.1866 OF 2013(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 385/2012 DATED 17-12-2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY,DEPARTMENT OF**| ||**POSTS,NEW DELHI 110001**| |**2**|**DIRECTOR GENERAL(POSTS)**| ||**DAK BHAVAN,NEW DELHI 110001**| |**3**|**THE POSTMASTER GENERAL**| ||**NORTHERN REGION,KERALA CIRCLE,KOZHIKODE 673 011**| |**4**|**THE SUPERINTENDENT**| ||**RAILWAY MAIL SERVICE,C T DIVISION,KOZHIKODE 673 032**| ||**BY ADV. SRI.P.VIJAYAKUMAR, ASG OF INDIA**| ## **RESPONDENT/S:** **GOVINDAN.K.P. AGED 61 YEARS S/O.KEERAN,SORTING ASSISTANT(RETD),HEAD RECORD OFFICE,KOZHIKODE,RESIDING AT PANANGOTTUCHALIL,CHENNAMANGALLUR POST,KOZHIKODE 673 602 R1 BY ADV. SRI.MARTIN G.THOTTAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CAT).1866/13**_ 2 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** **----------------------------------------------O.P (CAT).No.1866 of 2013 ----------------------------------------------Dated this the 5[th] day of November, 2019** ## **JUDGMENT** ## _**Vinod Chandran, J.**_ The question arising for consideration in the above original petition is as to whether the applicant who was covered under an earlier scheme of time bound one promotion (TBOP) is disentitled to that by reason of the introduction of a Modified Assured Career Progression (MACP) Scheme which, though introduced on 18.9.2009, had retrospective effect from 1.9.2008. The Tribunal found that though the MACP Scheme was introduced as a more beneficial scheme in the case of the applicant, he is denied the benefit of old scheme as also not entitled under the new scheme. 2. It is to be noted that the applicant was appointed as a Mail Man GDS on 21.1.1978. He was promoted as Mail Guard on 11.4.1980 and then as a Sorting Assistant on 14.6.1983. Since he was stagnated in the post of Sorting Assistant as per the earlier scheme, TBOP was granted to him on completion of 16 years. If he stagnates in the very same post, he would be entitled to one other financial upgradation by _**OP(CAT).1866/13**_ 3 way of a Biennial Cadre Review (BCR) after 10 further years (in a total of 26 years). He was entitled to BCR on 22.6.2009. However, the grant of such higher grade would take some time in the usual course. Immediately thereafter, on 18.9.2009 the new MACP scheme was put in place. As per the new MACP scheme, any person who had three upgradations in his service would not be entitled for benefit under the scheme. The applicant had been promoted as Mail Guard and then as Security Assistant as also granted a financial upgradation on TBOP. The applicant hence stood disentitled from consideration under the MACP scheme. The applicant however claimed BRC on 22.6.2009 even before the scheme had come which was allowed by the Tribunal. 3. The learned Assistant Solicitor General of India would contend that the MACP scheme having been introduced retrospectively from 1.9.2008, even the applicant would be covered under the said scheme. The specific reliance is placed on Annexure A3 where the office memorandum implements the MACP scheme with retrospective effect from 1.9.2008. The learned ASG also specifically points to paragraph 13 of the scheme to contend that there could be no concurrent running of the two schemes. Reliance is also placed on _**State of Kerala v. Philomina**_ [2008 (1) KLT 666] to contend that when a concession made by way of upgradation is extended to employees, who was stagnating in a particular post for want of regular promotion, the courts cannot widen the scope of such concession by judicial _**OP(CAT).1866/13**_ 4 interpretation. This would invite unexpected burden on the public exchequer. 4. We bow to the principle propounded by the Full Bench in _**Philomina's case (supra)**_ and are definite that if there is no benefit accruing to the respondent, definitely it has to be denied to him. We hence look at the Modified Assured Career Progression Scheme especially paragraph 13 which is extracted here under: _“13. Existing time-bound promotion scheme, including in-situ promotion scheme, Staff Car Driver Scheme or any other kind of promotion scheme existing for a particular category of employees in a Ministry/Department or its offices, may continue to be operational for the concerned category of employees if it is decided by the concerned administrative authorities to retain such Schemes, after necessary consultations or they may switch-over to the MACPS. However, these Schemes shall not run concurrently with the MACPS.”_ We also notice Annexure A2 Office Memorandum dated 19.5.2009 which was the O.M bringing in the scheme which also clarified in paragraph 11 that no past cases would be reopened. 5. As we noticed above, on 22.6.2009, when the applicant became entitled to the BCR on completion of total 26 years in the post of Sorting Assistant, he ought to have been conferred that benefit as per the then existing scheme. Though an upgradation was not actually extended, due to administrative delays; the Government having issued orders extending such upgradation, there accrues a right on the employees also to get such upgradation at the time when it is due to _**OP(CAT).1866/13**_ 5 them. 6. On 22.6.2009, as we noticed earlier, there was no MACP Scheme and the applicant had a vested right to obtain the benefits under the scheme. True, there was a retrospective implementation of a scheme effective from 1.9.2008. This however cannot take away the vested right which accrued on the applicant as per the earlier scheme. In this context, we notice the extract we made from the scheme which speaks of the concerned administrative authority being competent to decide continuance of the operation of the earlier scheme for certain categories of employees. It is an admitted fact that in the case of drivers in the department, the earlier scheme was continued. We also notice from the extract that the only prescription is that the scheme shall not run concurrently. The applicant's case is that he would be denied of the benefit both under the earlier scheme and the MACP scheme introduced. As rightly found by the Tribunal, this was an apt case in which the concerned authority ought to have exercised its power under paragraph 13 of the scheme to grant the applicant the benefit under the earlier scheme of BCR. We also notice that if the authorities had acted with expediency and granted the benefit on 22.6.2009, there could have been no review of the upgradation granted on implementation of the scheme. We also feel that the retrospective effect given as declared by the Government itself is to confer more benefits on the employees. It would normally have _**OP(CAT).1866/13**_ 6 benefited a large category of employees, but persons who like the applicant who stand on the threshold would be denied of the benefit which is a valid reason for us to extend equitable consideration in favour of the employee which even otherwise he is legally entitled. It is submitted by the learned Assistant Solicitor General that the applicant had been wrongly granted an MACP with effect from 1.9.2008 which was withdrawn only in the year 2011. Definitely the grant of MACP cannot be sustained and on withdrawal of the same, the applicant's pay at first will have to be fixed under the BCR and if there is any adjustment made, it shall be made either as refund to the authority or as payment of arrears paid to the applicant. The original petition is dismissed. No order on costs. Sd/- ## **K.VINOD CHANDRAN** **JUDGE** Sd/- **V.G.ARUN JUDGE** _vgs_ _**OP(CAT).1866/13**_ 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE OM NO.22-1/89-PT.I DATED 11/10/1991.** - **ANNEXURE A2 TRUE COPY OF THE OM NO.35034/3/2008-ESTT(D) DATED 19/05/2009.** - **ANNEXURE A3 TRUE COPY OF THE OM NO.4-7/MACPS/2009-PCC DATED 18/09/2009.** - **ANNEXURE A4 TRUE COPY OF THE MEMO NO.B1/136/MACP/CORR II DATED 30/07/2010.** - **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 12/01/2011.** - **ANNEXURE A6 TRUE COPY OF THE PENSION PAYMENT ORDER NO.20435/2011-12 OF THE APPLICANT.** - **ANNEXURE A7 TRUE COPY OF THE MEMO NO.B1/136/MACP/09-10 DATED 20/06/2011.** - **ANNEXURE A8 TRUE COPY OF THE ORDER DATED 17/12/1986 OF THE HON'BLE SUPREME COURT IN T.R. KAAPUR AND OTHERS VS. STATE OF HARYANA AND OTHERS (1986 SC 1092)** - **ANNEXURE A9 TRUE COPY OF THE ORDER DATED 05/08/2011 IN OA O.10.75/2010.** - **ANNEXURE R1 TRUE COPY OF THE FUNDAMENTAL RULE 31-A. EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO 385 OF 2012 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT TO THE ORIGINAL APPLICATION NO 385 OF 2012 FILED BY THE PETITIONERS.** - **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED IN O.A NO 385 OF 2012** - **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT** 8 _**OP(CAT).1866/13**_ **FILED BY THE RESPONDENT ALONG WITH M.A FOR ACCEPT ADDITIONAL REPLY STATEMENT** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 17-12-2011 IN O.A NO 385/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH**