Madhana Kesari v. The Chairman And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/223/2023 Madhana Kesari Vs.

The Chairman, Rubber Board and another Mr. Rakesh Kumar ... for the petitioner Ms. Babita Das ... for the respondents March 20, 2024 [AKB] Item No.1 The petitioner joined as an Electrician on February 25, 1994, under the respondents and was awarded a financial up-gradation under the Assured Career Progression Scheme (ACP in short) on completion of 12 years of service in same post with effect from February 26, 2006.

He was offered a promotion against a regular vacancy of Caretaker on February 22, 2008. He declined the offer by a letter dated March 3, 2008.

As a consequence, by an order dated March 12, 2008, he was debarred from promotion for a period of one year from March 3, 2008.

The relevant part of the said order is quoted below : "Shri Madhana Kesari, Electrician, NRETC Andamans was provisionally promoted to the post of Caretaker vide OM 2nd cited with instruction to inform his willingness to accept the offer of promotion within 7 days on receipt of the order. Since he has informed his inability to accept the offer vide submission dated 03.03.2008, the promotion ordered is hereby cancelled. He is informed that he will not be considered for promotion for a period of one year from 03.03.2008, ie the date of refusal of the offer." It appears that subsequently, the petitioner appeared for an interview on November 9, 2012 and again on September 12, 2015 for his promotion to the post of Caretaker. However, he was not selected.

The petitioner was not given benefit of the second financial up-gradation under the Modified Assured Career Progression Scheme (MACP in short), on completion of his twenty year's service on February 26, 2014, which prompted him to file a writ petition before this Court. The writ petition was disposed of on November 9, 2021 giving a direction upon the authorities to consider his case for giving him the benefit of MACP.

Following the order of this Court the relevant authority passed an order dated December 17, 2021, granting the second financial up-gradation under MACP with effect from November 4, 2018.

The relevant part of the order dated December 17, 2021 is quoted below:

"Further to the direction of the Hon'ble High Court of Culcutta (Circuit Bench at Port Blair) in WPA/236/2021, a screening Committee constituted by the Boart met on 17.12.2021, considered the representation dated 14.09.2020 in accordance with the law for assessing the suitability of Sri. Madhanakesari, Electrician for awarding financial upgradation under MACP Scheme. Based on the recommendations of the Screening Committee, the Executive Director, Rubber Board is pleased to grant 2nd financial upgradation under MACP Scheme to Sri. Madhanakesari, Electrician raising the existing pay level 5 to the immediate nest pay level 6 in the pay matrix with effect from 04.11.2018."

The petitioner made a representation against the said order and by an order dated November 3, 2022 the authority confirmed the order dated December 17, 2021. The relevant segment of the order dated November 3, 2022, is quoted below: "As per DoPT order No.35034/3/2008-Estt(D) dated 19/5/2009, clause 25 on MACP "If a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal."

By appearing the interview on 09.11.2012, Sri. Madhana Kesari had agreed to be considered for promotion.

Considering the said DoPT guidelines, the 2nd financial upgradation under MACP was awarded to Sri. Madhana Kesari, w.e.f. 04.11.2018 after adding the period of debarment to the due date, raising his pay to level 6, vide OM no. 3/3/2021/CPS dated 17.12.2021. Accordingly the due date for 2nd financial upgrdation under MACP was extended from 26.02.2014 to 04.11.2018. In view of the above it is seen that the 2nd financial upgrdation awarded to Sri. Madhana Kesari, Electrician with effect from 04.11.2018 is found to be in order."

Mr. Rakesh Kumar, learned Advocate appearing for the petitioner, submits that clause 25 of MACP is not applicable to the petitioner. He relies upon clause 9 of MACP, which provides as follows:

"Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational w.e.f. 01.09.2008. In other words, financial upgradations as per the provisions of the earlier ACP scheme (of August, 1999) would be granted till 31.08.2008."

Mr. Kumar submits that since the petitioner was offered promotion on February 22, 2008, and MACP was operative from September 1, 2009. He further submits that the applicable scheme in this case would be clause 9 of ACP dated August 9,1999. Ms. Babita Das, learned Advocate appearing for the respondents, on the other hand, submits that the petitioner was offered promotion on February 22, 2008. He refused the offer, subsequently he appeared in the interview for promotion on November 9, 2012. Therefore, it has to be construed that the petitioner was effectively debarred from promotion from February 22, 2008 to November 9, 2012. The authorities have added the said period about four years and eight months to his due date of second financial up-gradation, i.e. February 26, 2014 and conferred him the benefit from November 4, 2018. She further submits that the petitioner is governed by the MACP only. There is not pleading in the writ petition that the case of the petitioner will be governed by ACP.

I am unable to uphold the reasoning provided in the order impugned dated November 3, 2022. Even if I accept that the case of the petitioner was covered by the clause 25 of the MACP Scheme, the petitioner's promotion could not have been deferred for more than one year.

The order dated March 12, 2008, debarred the petitioner from promotion for a period of one year from March 3, 2008, i.e., the date of refusal of the offer.

It cannot be said that the petitioner could be debarred from the second financial up-gradation till the date of his interview for the promotion. For an employee, who declined to accept his promotion, the period of debarment cannot continue till he appears in the selection process for the next available promotion. The initiation of the selection process is in the hands of the authority. If the selection process for the next promotion is delayed for an indefinite period, an employee's benefit under MACP cannot be denied.

Clause 25 of the MACP Scheme makes it clear that the next financial up-gradation shall be deferred "to the extent of period of debarment due to the refusal." When the authority itself debarred the petitioner for one year, his second financial up-gradation could not have been extended beyond one year from the due date. Accordingly, the order dated December 17, 2021, and November 3, 2022 issued by the Rubber Board are set aside. The authority shall grant the second financial up-gradation under the MACP after one year from the due date, i.e., 26.02.2015 along with arrears. Such exercise shall be completed within a period of two months from the date of communication of this order. ( Kausik Chanda, J. )