Rakesh Prakash Srivastava vs Union Of India & Ors.

By Hon’ble Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned order dated 26.03.2021 passed by respondent No. 3, and to direct the respondents to grant MACP-II since 01.10.2011 (level-8) with GP of Rs. 4800/- and MACP –III (level-9) with GP of Rs. 5400/- since 01.10.2021 and for payment of arrears to the applicant alongwith interest @ 12% per annum from the date it became due till the actual date of payment, and to issue any order as deemed fit and to award cost.

The fact of the applicant is that the applicant was appointed as Postal Assistant on 01.10.1991 and then he passed fast track exam of LSG (Lower Selection Grade) in the year 2005 and qualified; and was posted in the grade of LSG from 02.05.2005. Then he took a second departmental exam in the year 2007 and qualified, and was posted as Inspector on 31.08.2008. On 31.08.2018 the applicant was given MACP-III but the applicant contends that the said MACP-III was wrong as the department has construed his fast track appointment through exam as LSG as MACP-I on 02.05.2005 and through Limited Departmental Exam appointment as Inspector on 31.08.2008 as his MACP-II. And so after 10 years of the second MACP as per the department they have given the applicant the third MACP benefit on 31.08.2018 which as per the applicant is incorrect as both fast track LSG appointment and Inspector grade appointment through Limited Departmental Exam cannot be considered against MACP and that the applicant was eligible for three distinct MACP which he should now get. And he contends that he should get his second MACP from 01.10.2011 in level 8 with Grade Pay of Rs. 4800/- and MACP-III in level 9 with Grade Pay of Rs. 5400/- from 01.10.2021 i.e. after 20 and 30 years of his service and so as per the applicant the respondents have wrongly calculated and considered his promotion and upgradation and arrived at wrong third MACP grant, so his OA should be allowed and he should be granted the benefit of two MACP.

On notice the respondents have filed their counter affidavit wherein they don’t dispute the basic facts of the case and they say that the applicant was appointed as Postal Assistant on 01.10.1991 in the Grade Pay of Rs. 2400/-. And through fast track LSG exam, he got a grade of Rs. 2800/- w.e.f. 02.05.2005 in the post of LSG, and then through Limited Departmental Exam in 2007 he got into the post of Inspector w.e.f. 31.08.2008 with a Grade Pay of Rs. 4200/-. Thereafter, as these two promotions he had already got in first seventeen years of his service he was given the benefit of MACP-III as per rule. The respondents contend that in 2005 the applicant had completed 14 years of service when he got his first promotion as LSG, and the second one in the 17^th year on 31.08.2008 he got his second promotion by LDCE as Inspector and hence he was only eligible for only third MACP after a lapse of 10 years of those 17^th year of his service i.e. at 27 years on 31.08.2018 in the Grade Pay of Rs. 4800/-. Hence, they reiterate that they have rightly granted only third MACP to the applicant as the applicant had already got two promotions and there is no illegality in their action and as per the existing circular they have sanctioned him the third MACP and considered his two promotions as first MACP and second MACP which is correct and as per rule. Hence, they request that the OA should be dismissed.

The applicant has filed rejoinder affidavit wherein he reiterated his stand as in the OA. He further contends that the Grade Pay of Inspector Rs. 4200/- has been merged with Grade Pay Rs. 4600/- by the 6^th Pay Commission revision w.e.f. 01.01.2006 and hence, the said upgradation through LDCE cannot be considered and there was no fixation with increment only difference of Grade Pay was given. Hence, it cannot be considered equivalent to MACP as pay has not been re-fixed as per FR 22 (1) (a) (1). Hence, he is eligible for second MACP as well as third MACP. The second one after 20 years from his date of appointment i.e. 1991 in 2011 with Grade Pay Rs. 4800/- at level 8 and the second one in 2021 with Grade Pay Rs. 5400/- (level 9). Hence, his OA should be allowed and all the prayers should be granted.

The case came up for final hearing on 26.02.2024. Shri Ashok Kumar Shukla, learned counsel for the applicants and Shri Chakrapani Vatsyayan, learned counsel for the respondents were present and heard. We have gone through the records carefully and considered the rival contentions.

On the day of hearing the applicant has also filed written submissions.

From the pleadings of both the parties it is evident that following facts are not denied or disputed. That the applicant was appointed as Postal Assistant on 01.10.1991 in the Grade Pay of Rs. 2400/- and then he took fast track exam of (Lower Selection Grade) LSG in 2005 and qualified and joined the LSG grade on 02.05.2005 with Grade Pay of Rs. 2800/-. Further, the applicant took Limited Department Competitive Examination (LDCE) in 2007 and qualified and took charge of Inspector’s post on 31.08.2008 in the Grade Pay of Rs. 4200/-. After that the department has given, considering his fast track LSG as his first upgradation and appointment as Inspector, as his second upgradation, the third MACP w.e.f. 31.08.2018 in the Grade Pay of Rs. 4800/-.

The only difference between the contentions of the two parties is, “Whether the fast track joining at LSG after a departmental examination will qualify for first upgradation under MACP and secondly the LDCE appointment as Inspector through exam in 2008 will qualify for second upgradation under MACP? And if these two upgrades would qualify as MACP I and II? And if so, or if not so, then, when will the third MACP or any other MACP be falling due for the applicant?”.

As per the respondents the applicant’s fast track LSG appointment through examination and his taking over in the Grade Pay of Rs. 2800/- on 02.05.2005 was equivalent to his first MACP upgradation (promotion) after his 14 years of service. And then on the 17^th year on 31.08.2008 the applicant further through LDCE qualified for Inspector’s post and joined in the Grade Pay of Rs. 4200/- so that will also qualify as the second ACP. And as the applicant has got two upgradation (promotion) within 20 years of his service, hence he was eligible for only third MACP after 10 years of the second upgradation that was on 31.08.2008. So the respondent department contended that, rightly the department has given to the applicant his 3^rd MACP upgradation on 31.08.2018.

The applicant has taken a different interpretation and taken a contrary plea in the OA and in the rejoinder and in the written submission. In the OA he tries to argue that both this appointment by fast track LSG which was through an examination and his appointment as Inspector through LDCE was also through examination, so these as per the precedent and citations will not be considered as upgradation as MACP. He has specifically cited the order in OA 752 of 2021 – Rajesh Kumar Gaur vs. Union of India and others in the coordinate Bench dated 25.11.2023, wherein it was ruled following:-

Hence, the applicant contended that the two posts i.e. LSG and Inspector were not a promotional post similar to the case in OA No. 752/2021, hence he had to be granted two promotions/financial upgradation by the respondent.

The contention of the applicant is that as in that case OA 752 of 2021 because the appointments were by the departmental competitive exam. But it is evident that the OA was allowed with reference to the Hon’ble Madras High Court judgment which is with reference to the other OA No. 1088 of 2011 decided on 14.03.2013 – D. Shivkumar vs. Union of India and others and which is quoted in OA No. 93 of 2019 of Ahmadabad Bench. The Hon’ble Madras High Court judgment is said to be challenged in the Hon’ble Apex Court in SLP (C) 4848 of 2016 and thereafter the Hon’ble Apex Court dismissed the aforesaid SLP vide order dated 16.08.2016 which read following:-

But the crux of the said judgment as has been clearly illustrated in the Hon’ble High Court judgment was following:-

From simple reading of the above Hon’ble High Court judgment we gather that it was a case of new appointment as Postal Assistant through Limited Departmental Competitive Examination. The person who was appointed in the cadre of Postman on 22.09.1973 through the departmental selection was appointed as Postal Assistant on 12.11.1977 and his case was accordingly decided. Clearly it was a case of Limited Departmental Examination leading to a new appointment in a new grade and it was not a case of promotion. Limited Departmental Examination can lead an employee to both the situations. In first case, where a person is getting merely promoted to a next higher grade or the person could get reappointed in a new grade altogether which is not the promotional post of the original grade. Simple reading of the cited Hon’ble High Court judgment clearly shows the facts of that case which was very different having a Limited Departmental Competitive Examination (LDCE) leading to a new appointment in a non promotional grade. Hence, all the order passed based on the said Hon’ble High Court judgment are not relevant for the present case as in that case the applicant is not someone in the cadre of Postman who got promotion through the Limited Departmental Examination but got fresh appointment in the grade of Postal Assistant. And so such fresh appointment could not have been considered promotion or upgradation equivalent to ACP or MACP, and counted against them. And accordingly additional benefit under the MACP was granted to the applicant. Hence, those judgments are not relevant to the present case.

In the present case it is clear that applicant through exam got into the grade of LSG by fast track examination on 02.05.2005 in the Grade of Rs. 2800/- from his original grade of Rs. 2400/- when he was appointed on 01.10.1991 as Postal Assistant. And clearly this was equivalent to his first promotion and not new appointment, so it cannot be discounted for the purpose of counting as his first MACP. And in the written submissions also the applicant has used the word. “that the applicant was promoted as LSG (Lower Selection Grade) since 02.05.2005 and worked as LSG after 14 years of service in the department, and he further confirms that his pay was fixed as per FR 22 (1) (a) (1) and hence it may be treated as a promotion given to him by the department. Thus it is first promotion given by the department”, so he agrees that it was his first promotion and not a fresh appointment as in the citation of the Hon’ble High Court.

Now for the second promotion the applicant argued that thereafter the applicant passed departmental examination of Inspector post through LDCE in 2007 and took charge of Inspector of Post since 30.08.2008. But he argues that this is not a fresh recruitment (applicant’s use of words are important). And in this departmental examination of Inspector of Posts any Postal Assistant could appear who had completed 5 years of service in the department. but he submits that when the applicant became Inspector of Posts, no pay fixation with increment was given. Only difference of Grade Pay of Rs. 1800/- was added in the basic pay and pay fixation as per FR 22 (1) (a) (1) has not been done for him. Hence, his joining as Inspector cannot be taken as MACP as has been considered by the respondents. But this plea is quite different than that in the citation relied by the applicant earlier. Whereas, the respondents have consistently said that Grade Pay had changed for the applicant; and on 31.08.2008 when he was appointed as Inspector of Posts through the LDCE exam his Grade Pay which was earlier Rs. 2800/- of LSG became Rs. 4200/-. Clearly in his written argument the applicant has not taken the same plea which he had earlier taken that later-on 6^th Pay Commission have revised with reference to 01.01.2006 the Grade Pay of Inspector of Rs. 4200/- to Rs. 4600/-. But this is also not in any way substantiating the claim of the applicant, that it gave applicant some right to discount his promotion to LDCE as Inspector on 31.08.2008 in Grade Pay of Rs. 4200/- for the purpose of counting it as his second MACP as he automatically gets the benefit of merger or upgradation that level to grade pay of Rs. 4600/-. As the applicant is changing his arguments in the OA, in the rejoinder and in the written argument and there is no consistency and MACP clarity on that as in the next paragraph of the written argument he want to say that, “the case of the applicant is similar to CAT Allahabad order dated 25.11.2023 in OA No. 752 of 2021 (Rajesh Kumar Gaur vs. Union of India and others), as in both cases the applicants have passed departmental examination through LDCE because of their efficiency as has been discussed in the case of D. Shivkumar vs. UOI and others as also and this type of promotion has not been taken as MACP”. But this contention is erroneous and it is a misconception, as in D. Shivkumar’s case (supra) it is clear that it was the case of new appointment in the Grade of Postal Assistant from the cadre of Postman through LDCE and that LDCE is distinct as it is a new appointment to a post which was not in the promotional hierarchy of the Postman. Whereas, in the applicant’s case he has rightly used the word promotion by LDCE to the post of Inspector of Post Offices in 2007 and his joining as Inspector on 31.08.2008, which was a promotion and not a new appointment. The applicant has not placed before us any departmental rules or his cadre details which showed us that his appointment by LDCE to the post of Inspector of Post Offices was not a promotional upgrade but it was a new appointment to a level not in the promotional hierarchy of LSG. Hence, the applicant has failed to convince us about his case. Hence, the said second upgrade also cannot be discounted for the purpose of counting it as equivalent to second MACP.

And if the applicant has already got two regular promotions by 17^th year of his service then he would be only eligible for one further upgradation at 27 years of his service after 10 years of his getting his second upgradation. Which rightly the department has already given to him with effect from 31.08.2018.

Considering the above facts in this case, we do not find the case of the applicant covered by the judgment of D. Shivkumar vs. Union of India and others which went upto the Hon’ble Apex Court in SLP (C) No. 4848 of 2016. And we agree with the contention of the respondents that they have rightly considered his first promotion on 05.05.2005 when he passed the departmental examination of LSG on the 14^th year of his service, which was equivalent to his first MACP and the appointment as Inspector of Post Offices through LDCE on 31.08.2008 in Grade Pay of Rs. 4200/- in the 17^th year of his service as equivalent to MACP-II. And then rightly after 10 years of further service the department gave him MACP-III benefit on 31.08.2018 in the Grade Pay of Rs. 4800/-. We have examined the impugned order dated 26.03.2021 which rightly considers the two regular fast track LSG (FTP) dated 02.05.2005 upgrade and LDCE upgrade dated 31.08.2008 as promotion countable against his first two MACPs. Hence, we have no doubt in our mind in the light of the unique facts of this particular case and the use of word “promotion” by both the parties for fast track LSG as well as Inspector of Post Offices by LDCE as “promotion” to be considered as MACP-I and MACP-II by the respondents. The applicant has failed to substantiate his case and hence we are unable to find any reasons to interfere with the impugned orders.

Considering the above, we pass following orders:-

All associated MAs, if any, also stand disposed of accordingly. No costs.