Union of India v. Shri V.K. Vasu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941** ## **OP (CAT).No.286 OF 2019** **ORDER IN OA 223/2016 DATED 18-02-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY (DIRECTOR GENERAL OF NAVAL ARMAMENT), INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE (NAVY), NEW DELHI-110 001** - **2 THE FLAG OFFICER COMMANDING-IN-CHIEF SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI-682 004** - **3 THE CHIEF GENERAL MANAGER, NAVAL ARMAMENT DEPOT, ALUVA-683 563** **BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **RESPONDENT/S:** **SHRI.V.K.VASU,** **S/O. KUNJAN, STOREKEEPR (RETIRED), NAD,ALUVA, RESIDING AT MUTHIRAKKATTUMUKAL HOUSE, NAD P.O., EDTHALA, ALUVA, KOCHI-683 563** ## **OTHER PRESENT:** **SRI.M.A.SHAFIK** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 01.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No.286 of 2019 -2- ## **JUDGMENT** Dated this the 1[st] day of November 2019 ## **K.VINOD CHANDRAN, J.** The Union of India is before us challenging the order of the Tribunal. The issue was as to whether the applicant before the Tribunal; an ex-service man, who was discharged on medical grounds on his own request, would be entitled to count the Combatant-service for the purpose of ACP/MACP. The Tribunal relied on a judgment of the Principal Bench in O.A.No.1445 of 2010 as also certain orders quoted in the judgment of the Karnataka High Court in _**T.P.Thomas v.**_ . _**Union of India [1977 (1) Kar LJ 325]**_ 2. The learned ASG submits that the Tribunal erred insofar as ACP/MACP are benefits which can be allowed only if there is service after joining the civil employment. No prior O.P.(CAT) No.286 of 2019 -3- service even in the Armed Forces can be reckoned for the purpose of granting ACP/MACP in civil employment, is the argument. 3. Admittedly, the applicant was discharged on 1.4.1984; after service of ten years and two months, on medical grounds, but on own request and he was not entitled to pension. He was serving as Combatant Storekeeper in the Indian Army. He was re-employed on 11.8.1987 as a Casual Assistant Storekeeper at Headquarters, Southern Naval Command in Navy. On 16.12.1992, his service was regularised and posted at NAD, Aluva. He was not drawing any pension for the service rendered in the Armed Forces. We also have to notice pertinently that he was carrying on duties of a Storekeeper in the Armed Forces, which was continued in civil employment too. 4. In this context, we have to note the O.P.(CAT) No.286 of 2019 -4- communications of the Ministry of Defence as extracted by the Karnataka High Court and the Tribunal, dated 4.12.1959 ## and 1.6.1963, which we extract hereunder: ## _“_ _**In MOD letter 13034/D (Appts.), dated 4.12.1959 reads as follows:**_ _"In amplification of the provision of AI 241/50 and corresponding orders on the Air Force and Navy sides, it has been decided in consultation with the Ministry of Home Affairs that in determining seniority of Government Servants on appointment in civil posts, benefit of all previous service rendered in the same or equivalent posts (including service rendered in combatant capacity) should be given and for this purpose the posts should be treated as equivalent if the nature and duties attached to them are similar, irrespective of the rate of pay drawn in the previous posts."_ ## _**MOD memo No. 10(1)63/6039/D(Appts.), dated 1.6.1963 reads as follows:**_ _"In clarification of the provisions of the Ministry's No. 13034/D(Appts.) dt. 4[th] December, 1959 on the above, it has decided that persons, who were employed in clerical duties in combatant posts and may be re-employed in civil posts under this Ministry in clerical capacity may be given benefit of their combatant services for seniority in the civil post irrespective of the rates of pay drawn by them in combatant posts._ _The formula of equivalence of duties, is, however, not to be applied in the case of ex-servicemen re-employed as LDCS or in the grads who had rendered service in posts/grads other than clerical. These orders will not have any retrospective effect and promotion/confirmation already made will not be disturbed.”_ O.P.(CAT) No.286 of 2019 -5- 5. This clearly indicates that when a discharged defence personnel is re-employed in civil services, for the purpose of his seniority and all other benefits, his prior service should also be reckoned. In this background, we have to look at Annexure A10 produced in the O.A, which has been issued by the Commander, JDCP(Pay) on the specific request made by the applicant. Annexure A10 specifically looked at the order of the Principal Bench of the Central Administrative Tribunal at New Delhi in O.A.No.1445 of 2010 and found that in an identical case, the Principal Bench had directed consideration of the prior service for the purpose of ACP. In fact, the said consideration made by the Principal Bench of the Central Administrative Tribunal Bench was also on account of the clarification issued by the Ministry, which we extract hereunder:- O.P.(CAT) No.286 of 2019 -6- |S.No.|Point of doubt|Clarification| |---|---|---| |13|Whether ex-servicemen who<br>have been re-employed after<br>giving relaxation in age and<br>educational<br>qualifications<br>prescribed<br>in<br>relevant<br>Recruitment/Service Rules for<br>particular post as direct recruit<br>are to be allowed ACP benefits<br>on ACP benefits on completion<br>of 12/24 years of service after<br>re-employment in civilian post?|Yes. The ACPS is meant for the<br>Central<br>Government<br>civilian<br>employees. As such, ex-servicemen,<br>re-employed as civilian employees,<br>shall be entitled for upgradation<br>under the Scheme on completion of<br>12/24 years of service after direct<br>recruitment<br>in<br>the<br>civil<br>employment. Also, such category of<br>persons would already be drawing<br>pension on the basis of their<br>service in the Armed Forces.| 6. The reasoning of the Principal Bench, Central Administrative Tribunal was that the specific entitlement for upgradation after completion of 12/24 years of service from the date of direct recruitment in civil employment was made applicable only for persons drawing pension on the basis of their service in the Armed Forces. Such persons having got reckoned their earlier service for pension, they cannot be claiming a further financial upgradation, reckoning their prior service in the Armed Forces, on the ground that they have been stagnating without promotion, even in the prior O.P.(CAT) No.286 of 2019 -7- service. 7. In the case of the applicant here, situation is identical to that found in O.A.No.1445 of 2010 and quite distinct from the case where the clarification, above extracted arose. Obviously, the petitioners have accepted the decision in O.A.No.1445 of 2010 and there is no claim set up either of the same having been reversed or having been challenged before a higher forum. In such circumstances, we do not think that the petitioners herein can take a different stand in the case of one another army personnel who was identically situated as the applicant in O.A.No.1445 of 2010. We make it clear that we have not looked at the entire facts as available in O.A.No.1445 of 2010. However, the official who has issued Annexure A10 seems to have found that it is an identical case and there is no reason for us to doubt what has been stated in Annexure A10. O.P.(CAT) No.286 of 2019 -8- 8. The learned ASG has a further contention that, on the basis of Annexure R1 produced in the OA, which is a clarification issued by the Head Quarters, Southern Naval Command on 27.11.1984, any service personnel discharged from military service at own request, with pension on completion of minimum pensionable service, can get their former military service counted towards central civil (Defence) services subject to the fulfilment of the conditions laid down in Rule 19 of CCS (Pension) Rules, 1972. This benefit, however, is not admissible to service personnel, who are discharged at their own request without completion of minimum service to earn a military pension. 9. We have looked at Rule 19 of the CCS Rules also, which provides that any pensioner from the defence service when re-employed in a civil service, for the purpose of reckoning the past defence service for pension in the civil O.P.(CAT) No.286 of 2019 -9- employment, has to give up his pension and refund the DCRG received at the time of severance, when he is re-employed. However, any person continuing to draw the pension and retaining the DCRG, would not be entitled to reckon the past service. This applies only to pensioner's army personnel and not to persons like the applicant herein, who did not have the minimum qualifying service for pension in the Defence Services. 10. Annexure R1 communication dis-entitles persons similarly situated as the applicant, who do not have prior pensionable service, from reckoning the past service in defence for the purpose of pension in civil employment. We are not concerned with the above issue in the present case. We desist from making any observation on the same since it is for the applicant to work out his remedies if he has a grievance with respect to that. However, we have to O.P.(CAT) No.286 of 2019 -10- specifically notice that Annexure R1 applies only with respect to reckoning of past service for pension from the civil employment and does not take in the aspects of seniority or ACP/MACP. Annexure R1 cannot have any application to the grievance projected here. 11. Modified Assured Career Progression (MACP) scheme appended at Annexure R2 in the O.A has also to be noticed. Our reasoning with respect to the order of the Principal Bench having not been challenged, was in the case of the ACP scheme considered therein and cannot apply to a subsequent MACP Scheme, which will have to be dealt with on its own terms. We looked at the specific provision pointed out by the learned ASG, which we extract hereunder: _“'_ _**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 on preappointment training shall not be taken into reckoning._ O.P.(CAT) No.286 of 2019 -11- _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 not 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)_ 12. Submission of the learned ASG is that the past continuous regular service and the regular appointment should be without break. The learned ASG argues that MACP can be granted only on the terms of the Scheme, which mandates that the service has to be reckoned from the date of appointment in regular employment. According to us, there are two limbs in the extracted definition of regular service. The first one speaks of reckoning of service for the purpose of MACPs only from the date of joining the post in direct entry grade on a regular basis. The first limb also clarifies that adhoc/contract service prior to regular O.P.(CAT) No.286 of 2019 -12- service will not be reckoned. The second limb deals with the situation of past continuous regular service in a government department, which definitely takes in defence service too, which is reckoned for grant of MACP. The above underlined portion stands against the contentions raised by the ASG. 13. Learned ASG, still argued that the break indicated is of a break in period between the past continuous regular service and the regular appointment in a new Department. We, however, are convinced that it is not; and both the words employed of “ _prior to regular appointment” and “without a break”_ qualifies the prior continued service. In that view, if a defence personnel has a continuous service, also not pensionable, which the applicant has, he is entitled to reckon the same for the purpose of MACP/ACP, which is a benefit given to a person stagnating in a post. The applicant, as was noticed at the outset, was a Combatant Storekeeper O.P.(CAT) No.286 of 2019 -13- in the Defence Services, who was discharging similar duties on re-employment as a Storekeeper in a civil post under the Naval establishment. Writ appeal is dismissed with the above reservation as to we having not spoken about any reckoning of the past service for pension; which is not the subject matter of the above original petition. Our orders shall be complied with, at any rate, within a period of three months from today. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/2.11 x ## **APPENDIX** -14- O.P.(CAT) No.286 of 2019 ## **PETITIONER'S/S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE OA NO 180/00223/2016 FILED BY THE PETITIONER DATED 09.03.2016 FILED BEFORE THE CAT, ERNAKULAM.** - **EXHIBIT P1(A1)** - **TRUE COPY OF THE LETTER NO.CS 2730/11/NAD DATED 05.10.2015 ISSUED ON BEHALF OF THE 2ND RESPONDENT.** **EXHIBIT P1(A2) TRUE COPY OF THE LETTER NO.CP(P)/7837/ ACP/EX-S MAN DATED 25.082015 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **EXHIBIT P1(A3) TRUE COPY OF THE REPRESENTATION DATED 25.05.1993 TO THE 3RD RESPONDENT.** - **EXHIBIT P1(A4) TRUE COPY OF THE CIVILIAN ESTABLISHMENT LIST NO.75/98 DATED 12.08.2011 OF THE NAVAL ARMAMENT DEPOT, ALUVA.** - **EXHIBIT P1(A5) TRUE COPY OF THE LETTER NO.22/ (25)/RTI/II/D (APPTTS) DATED 26.07.2011 OF THE MINISTRY OF DEFENCE.** - **EXHIBIT P1(A6) TRUE COPY OF THE LETTER NO.CS/2760/2 DATED 08.08.2011 OF THE 3RD RESPONDENT.** - **EXHIBIT P1(A7) TRUE COPY OF THE NAVY ORDER (CIV) 4/73 DATED 04.12.1959.** - **EXHIBIT P1(A8) TRUE COPY OF THE REPRESENTATION DATED 24.09.2013 SUBMITTED BEFORE THE 2ND RESPONDENT.** **EXHIBIT P1(A9) TRUE COPY OF THE LETTER NO PIO/130/15/VKV/9/(11) DATED 14.10.2015** O.P.(CAT) No.286 of 2019 -15- **OF THE CPIO OF NHQ.** **EXHIBIT P1(A10) TRUE COPY OF THE LETTER NO.DL/0812/1011 DATED 03.11.2015 CDRAT-ARM,S OF THE INTEGRATED** **EXHIBIT P1(A10) TRUE COPY OF THE LETTER NO.DL/0812/1011 DATED 03.11.2015 CDRAT-ARM,S OF THE INTEGRATED** - **EXHIBIT P2 TRUE COPY OF THE REPLY AFFIDAVIT IN OA 180/00223/2016 DATED FILED BY THE PETITIONER** - **EXHIBIT P2 (R1) TRUE COPY OF HQSNC MEMORANDUM DATED 27.11.84 BY THE CIVILIAN GAZETTED OFFICER** - **EXHIBIT P2 (R2) TRUE COPY OF DOPT OM NO.350-34/3/2008ESTT (D0 DATED 19.5.2009 BY THE DOPT** - **EXHIBIT P2 (R3) TRUE COPY OF DOPT OM NO.35034/3/2008ESTT (D) DATED 09.09.2010** - **EXHIBIT P2 (R4) TRUE COPY OF DOPT OM NO.35014/1/2003ESTT(D) DATED 29.06.2004 BY THE DEPARTMENT OF PERSONNEL AND TRAINING** - **EXHIBIT P2 (R5) TRUE COPY OF NAD (A) LETTER NO.AAE/1019/VKV DATED 28.12.2015 BY ASO (ADMIN)** **EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.180/00223/2016 DATED 18.02.2019 ISSUED BY THE CAT, ERNAKULAM BENCH**