Madras High CourtWP/38326/2015allowed

R.Gangadara Perumal v. Union Of India, Rep. By

2017-04-06Honourable Mr Justice K.K. Sasidharan,Honourable Mr Justice V. Parthiban10 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 27.02.2017 Delivered on : 06.04.2017 Coram The Honourable Mr. JUSTICE K.K.SASIDHARAN, and The Honourable Mr.JUSTICE V.PARTHIBAN W.P.No.38326 to 38328 of 2015 and 40842 of 2016 R.Gangadara Perumal ...

Petitioner in W.P.38326 of 2015 K.R.Mani ...

Petitioner in W.P.38327 of 2015 K.Ganesan ...

Petitioner in W.P.38328 of 2015 V. Subbarayalu ...

Petitioner in W.P.40842 of 2016 versus

1. Union of India, Rep. by The Deputy Director, Pay Commission-IV, Railway Board, New Delhi.

2. General Manager (A), Integral Coach Factory, Chennai - 600 038.

3. The Senior Personnel Officer/ WS, Integral Coach Factory, Office of the Chief Personnel Officer, Personnel Branch, Chennai - 600 038.

4. Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel & Training), New Delhi.

5. The Registrar, Central Administrative Tribunal, Chennai Bench.

... Respondents 1 to 5 in WP.38326 of 2015 ... Respondents 1,2,4 &5 in WP.38327 of 2015 ... Respondents 1 to 3&5 in WP.38328 of 2015 ... Respondents 1,2 &4&5 in WP.40842 of 2016

6. Senior Assistant Financial Advisor Furnishing Administration, O/o financial Advisor and chief Accounts officer, Integral coach factory, Chennai 600 038.

...3rd Respondent in WP.38327 of 2015

7. The Deputy Secretary to Government of India Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel and Training), New Delhi.

...4th Respondent in WP.38328 of 2015

8. The Senior Personnel Officer(WS) Integral Coach Factory, Office of the chief personnel officer, Personnel Branch, Chennai-600 038.

...3rd Respondent in WP.40842 of 2016 Prayer in W.P.Nos.38326 to 38328 of 2015: These Writ Petitions are filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, to call for the records relating to O.A.Nos.26 of 2012, 17 of 2012, 25 of 2012 and O.A.No.1341 of 2014 and quash the orders passed therein dated 8.1.2015.

W.P.No.40842 of 2016: Certiorarified Mandamus Calling for the records relating to OA.No.1341 of 2014 dated 15/07/2016 passed by the 5th Respondent Tribunal, quash the same and to allow OA as prayed for For Petitioners : Mr.Giridhar For Respondents : Mr.V.Haribabu, for R1 to R3 Mr.Su.Srinivasan for R4 COMMON ORDER V.PARTHIBAN, J.

These Writ Petitions have been filed against the order

passed by the Central Administrative Tribunal (in short, 'the Tribunal'), Madras Bench in O.A.Nos.26 of 2012, 17 of 2012, 25 of 2012 and O.A.No.1341 of 2014 dated 8.1.2015 and dated 16.7.2016 dismissing the Original Applications filed by the petitioners herein.

2. For the sake of clarity, the parties are referred to as 'the applicants' and 'the respondents' as arrayed before the learned Tribunal.

3. The applicants have approached the Tribunal, seeking the following relief:

"i) To call for the records pertaining to Order PCV/2009/ACP/13/ICF, dated 03.02.2011, passed by the 1st respondent and Order No.AAD/MACPs, dated 19.2.2011 passed by the 3rd respondent, quash the same;

"ii) To direct the respondents to grant III Financial Upgradation to the applicant under the MACP Scheme to pay the band of Rs.9300-34800 with Grade Pay of Rs.4600 w.e.f.01.09.2008 with all other consequential benefits including arrears of pay and allowances arising therefrom."

4. It is worthwhile first to deal with the Writ Petitions in W.P.Nos.38326 to 38328 of 2015. The details of service particulars of each of the applicants, are extracted herein below:

W.P.No.38326 of 2015 Post Date of promotio n Remarks Direct Entry Grade Constabl e ( initia l appointm ent direct entry IIIPc IVPc V-PC VI-PC Grad e Pay 03.09.19 2008253050520020200 Direct Entry Grade Peon 28.11.19 1967502550520020200 Technici an Grade - III 08.04.19 2609503050520020200 Technici an Grade - II 17.11.19 - 4000520020200

Technici an Grade - I 29.07.19 - 4500520020200 W.P.No.38327 of 2015 Remarks Direct Entry Grade Constabl e (initial appointm ent Post Date of promoti on IIIPc IVPc V-PC VIPC Gra de Pay 25.06.1 200- - 3050- - Direct entry grade Peon 26.04.1 196- - 2550- - Typist 11.08.1 260- - 3050- - Junior Cashier 28.06.1 05000- - Senior Cashier Grade - I cum Asst.Div l.Cashie r 13.08.1 05500- - W.P.No.38328 of 2015 Post Date of appointm ent III -Pc IVPc V-PC VIPC Grad e Pay Remarks Direct Entry Grade

Constabl e (initial appointm ent& direct entry grade 25.06.19 -24 - 3050- - Direct entry grade Lab 07.06.19 - - 2610- --- -- Attendan t Grade - II ( Excadre) Khalasi ( cadre 07.06.19 - - 2550- - Technici an , GradeIII 08.11.19 - - 3050- - Technici an, GradeII 05.08.19 --- 04000 - - Technici an, Grade- I 17.03.19 --- 04500- -

5. The case of the applicants was that they were not granted III Financial upgradation under the Modified Assured Career Progression Scheme (in short, 'MACP Scheme'). According to the applicants, after recommendation of the VI Pay Commission, their grade pay in their original appointment as Constable, was made applicable was Rs.2000 in the Pay Band Rs.5200-20200 on being medically decategorised. Two applicants i.e. Writ Petitioners, viz., in W.P.Nos.30826 and 30827 of 2016 were placed in lower Pay Band, i.e. Rs.1800 and therefore, they got one promotion in Grade Pay of Rs.1900. Therefore, technically their appointment in the lower Grade Pay of Rs.12002040 and promoted to Technician Grade III in Pay Band Rs.1900 for the purpose of grant of financial upgradation under MACP Scheme cannot be construed as promotion for the purpose of grant of financial benefits under MACP Scheme. However, the claim of the applicants was rejected on the ground that they had already earned three promotions and therefore, they are not entitled to any further financial upgradation under MACP Scheme.

6. According to the official respondents, since the applicants had been granted three promotions in their career, their claim for III Financial upgradation cannot be granted and any comparison of their case with other employees cannot support their claim for the grant of financial upgradation, since the case of other employees was different.

7. However, the case of the applicants, viz., the petitioners in W.P.Nos.30826 and 30827 of 2016, as could be seen from the tabular statement extracted supra, after being medically decategorized, they were posted to a lower pay scale than that of initially appointed grade. As far as the applicant, i.e. petitioner in W.PNo.30328 of 2015 is concerned, he was not medically decategorized. However, he was also similarly placed to lower post as that of above said two applicants. In such circumstances, any promotion earned below the Grade Pay, i.e. Rs.2000 attached to the original appointment, has to be ignored and cannot be considered as that of promotion for the purpose of grant of financial benefits under MACP Scheme.

If such promotions earned below the Grade Pay granted to the original post and was ignored, then it is admitted position that the applicants have earned only two promotions in their entire career and therefore, they are entitled to III Financial upgradation under MACP Scheme. Moreover, the applicants have also relied upon Railway Board's instructions dated 5.7.2006 that the employees who were appointed alternatively subsequent to medically decategorization, should be given benefit of MACP Scheme in the existing hierarchy with reference to their initial appointment.

8. After taking note of the rival submissions, the learned Tribunal dismissed the Original Applications on the ground that the claim of the applicants was not maintainable as they had enjoyed pay fixation following their promotion from one level to another in the present cadre. The Tribunal, further held that the instructions of the Railway Board were unambiguous and made it clear that financial upgradation has to be related to the initial appointment in the existing hierarchy only and as such the contention of the applicants going backward relating to earlier appointment in the previous cadre, was not maintainable. The Tribunal also held that the promotions earned with the lessor grade pay than what they were getting in their initial pay need not be counted, the applicants have earned two promotions in the existing hierarchy higher than to their initial pay and therefore, their claim for III financial upgradation under MACP Scheme was found to be not tenable. As against the order passed by the Tribunal as justified, the present Writ Petitions have been filed.

9. Shri P.V.S.Giridhar, learned counsel appearing for the applicants strenuously contended that the learned Tribunal has completely misdirected itself in holding that the applicants had the benefit of three promotions without appreciating the entire issues in a proper perspective. He would also draw our attention to the provisions of MACP Scheme. As per para 9 of the Scheme, it envisages that the regular service for the purpose of MACP Scheme 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. Moreover, para 1 of the Scheme clearly stipulates that there shall be three financial upgradations under MACP Scheme, counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively.

Moreover, as could be seen from the service details of the applicants, with reference to the position of MACP Scheme that promotions earned below to Grade Pay attached to original post, in which the applicants were appointed, cannot be counted for the purpose of grant of financial benefits under MACP Scheme since that would defeat the very purpose of the Scheme which is no doubt a beneficial scheme framed for welfare of the employees.

10. We find considerable force in the contention of the learned counsel appearing for the applicants that the Tribunal has erred in overlooking the crucial fact that sofar promotions earned by the applicants below their grade pay, which was applicable to the original post to which, all the applicants were appointed can never be counted as for the purpose of denial of benefit under MACP Scheme. Such a position if it is held to be valid, would be per se unreasonable, irrational and contrary to the scheme itself and would take away the substratum of the beneficial scheme promoted by the Government. Needless to mention that the denial of financial upgradation to the applicants in this case, resulted in financial hardship to them and the Railway Administration under no circumstances, can justify such action of denying the applicants their due under MACP Scheme.

11. Be that as it may, the learned Tribunal has lost sight of the fact while concluding the case against the applicants that the initial promotions earned by the applicants below their grade pay as that of original posts in which the applicants were appointed, can never be construed as promotion for the purpose of MACP Scheme and unfortunately, the learned Tribunal failed to address the said issue without critically examining and approaching the issue in proper perspective. The Tribunal merely guided by the fact that there were three promotions granted to the applicants and therefore, they were not eligible

for the grant of financial upgradation under MACP Scheme. Such a simplistic view has resulted in negation of the fundamental rights of the applicants as the right to claim proper pay and to be treated equally is enshrined in the Articles 14 and 16 of the Constitution of India and no stale action can result in arbitrary exercise of the power. In the present case, the denial of financial upgradation under MACP Scheme is therefore, violative or Article 14 of the Constitution besides other instructions of the Railway Board and also contrary to the MACP Scheme. In the above circumstances, the orders passed by the Tribunal cannot be upheld and it requires interference by this Court.

12. Likewise, as regards claim of the applicant, i.e. petitioner in W.P.No.40482 of 2016 is concerned, the details of his service are extracted herein below.

W.P.No.40482 of 2016 Post Date of promotion V-PC VI-PC Grade Pay Constable 5.12.1982 3050-4590 520020200 Mali 19.06.1996 2550-3200 520020200 Helper Gr.I 22.03.1999 2550-3200 520020200 Technicia n Grade III 18.08.2005 2650-4000 520020200 Technicia n Grade II 09.02.2010 4000-6000 520020200

13. A perusal of the above tabular statement would reveal that after being medically decategorized, the applicant was posted to a lower pay scale than that of initially appointed grade. In such circumstances, any promotion earned below the Grade Pay, i.e. Rs.2000 attached to the original appointment, has to be ignored and cannot be considered as that of promotion for the purpose of grant of financial benefits under MACP Scheme. If such promotions earned below the Grade Pay granted to the original post and was ignored, then it is admitted position that the applicant has earned only two promotions in his entire career and therefore, he is also entitled to III Financial upgradation under MACP Scheme.

14. In view of the above discussion, we are of the view that the orders passed by the learned Tribunal in the subject Original Applications are liable to be set aside and

accordingly, the same are set aside. Consequently, the Original Applications are allowed. The official respondents are directed to pass appropriate orders, granting the relief as sought for by the applicants, within a period of three months from the date of receipt of a copy of this order.

In the result, all the Writ Petitions are allowed. No costs.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar suk To

1. The Deputy Director Union of India, , Pay Commission-IV, Railway Board, New Delhi.