AI Structured Summary
Not yet generated for this judgment
Judgment
Per: Dr. Lata Baswaraj Patne, Judicial Member
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief(s):
“a)To quash and/or set aside the impugned order of cancellation of MACP benefit dated 09.11.2021 issued by the Senior Assistant Financial Advisor /Administration, South Eastern Railway, Garden Reach, Kolkata- 700043 in respect of the applicant whose name of the applicant appeared at Serial No. 38 in the said impugned order which has been issued without issuing any show-cause notice to the applicant and by violation of the natural justice, equity and fair play and the aforesaid impugned order has been issued without giving any opportunity of hearing to the present applicant which cannot be sustainable in Central Administrative Tribunalthe eye of law being Annexure A-2 of this original application.
b)To declare that the impugned cancellation order of MACP benefit dated 09.11.2021 is utter violation of the office memo issued by the DoP&T as well as Circular issued by the Railway Board and also violates the principle of natural justice, equity and fair play which was issued without issuing any show-cause notice which may be liable to be quashed and/or set aside in the eye of law;
c)To pass an appropriate order directing upon the respondent authority to restore your applicant's pay as well as benefit of MACP which was granted in favour of him vide office order No. 41 of 2012 dated 22.02.2012 and to declare that the office order No. 41 of 2012 dated 22.02.2012 in respect of granting benefit of MACP in favour of the applicant is legally valid.”
Brief facts of the case in a nutshell are as under:
The applicant was initially appointed to the post of Junior Clerk in the South Eastern Railway in 1989 after being selected through Railway Service Commission and was posted in the South Eastern Railway, Garden Reach Headquarter Office, Kolkata-700043.
Subsequently the applicant was promoted to the post of Junior Accounts Assistant in the year 1995 in the South Eastern Railway, Garden Reach, Kolkata. The applicant was thereafter assigned the duty to the post of Junior Cashier in the same scale of pay. After discharging such duties and responsibilities in that particular post, the applicant got promoted to the post of Senior Cashier in December, 2001.
After completion of 10 years' service in a particular post, the applicant has got benefit of MACP in the Grade Pay of Rs. 4600/- in terms of the office memorandum issued by the DoP&T as well as in terms of the Railway Board's circular.
Thereafter the applicant was promoted to the post of Senior Travelling Inspector of Accounts in the month of June, 2016 in the Grade Pay of Rs. 4800/-after qualifying in the departmental examination. After that the applicant was assigned the duty of Senior Section Officer (Accounts) in the present place of posting.
Since with effect from 2001 to 2010, the applicant had been performing duty in the post of Senior Cashier without any promotion in terms of the MACP Scheme, the applicant got the said benefit of MACP vide office order No. 41 of 2012 dated 22.02.2012 and such benefit of MACP was granted in favour of the applicant in accordance with circular of the Railway Board and the office memo issued by the Department of Personnel & Training (DoP&T) regarding grant of benefit of MACP.
Thereafter, the applicant was enjoying such benefit without any disturbances. However, all on a sudden, by violation of the natural justice, equity and fair play, the Senior Assistant Financial Advisor/Administration, South Eastern Railway, Garden Reach, Kolkata without issuing any show-cause notice to the applicant cancelled the said MACP benefit vide office order dated 09.11.2021 in respect of the applicant and other employees wherein the name of the applicant appeared at Serial No. 38 in the said impugned order and because of such cancellation, the applicant will face a huge amount of recovery. The respondents can take action at any point of time because of the impugned cancellation order of MACP benefit dated 09.11.2021.
Immediately the applicant, vide his representation dated 11.11.2021, raised a serious objection before the competent authority against the cancellation order of MACP benefit dated 09.11.2021. Since the applicant's pay can be affected because of such cancellation, there is no other alternative but to pray for stay of such arbitrary cancellation order. Hence, the applicant has filed the instant Original Application for setting aside and/or quashing the same.
After notice, respondents have entered their appearance through their counsel, filed their detailed reply and opposed the reliefs on the following grounds:
The applicant was initially appointed as Junior Clerk in the Mechanical Department, Garden Reach, in Grade Pay (GP) Rs. 1900/- and was subsequently absorbed in the Accounts Department on mutual basis in the same grade. He was promoted as Junior Accounts Assistant (Jr. AA) on 04.10.1995 in GP Rs. 2,800/-, which was treated as his first promotion. Subsequently, he was absorbed as Cashier in Cash & Pay Office on 11.03.1996 in Grade Pay Rs. 2,400/- through promotional examination. Since the movement was to a lower Grade Pay, it was not treated as a promotion for MACP purposes. He was promoted as Senior Cashier in GP Rs. 4,200/- on 05.12.2001, which was treated as his second promotion.
After completing 10 years without further promotion from 05.12.2001, the applicant was granted third financial up-gradation under MACPS to GP Rs. 4,600/-w.e.f. 05.12.2011, vide Office Order dated 22.02.2012, based on RBE No. 101/2009. The Applicant was later promoted as Senior Travelling Inspector of Accounts (Sr. TIA) in GP Rs. 4,800/- on 25.07.2014 and is presently holding the equivalent post of Senior Section Officer.
The third MACP in GP Rs. 4,600/- was subsequently partially cancelled on 09.11.2021, along with similarly placed employees, pursuant to Railway Board’s clarification contained in RBE No. 142/2012. RBE No. 142/2012 clarified that MACP cannot provide a higher Grade Pay than what an employee could obtain on normal promotion. Where the feeder and promotional posts carry the same Grade Pay, MACP is to be granted only in that same Grade Pay.
At the relevant time, the applicant was Senior Cashier in GP Rs. 4,200/-, while the promotional post of Inspector of Cashier (IOC) also carried GP Rs. 4,200/-. Therefore, according to the Respondents, his third MACP could not have been granted in GP Rs. 4,600/- and ought to have remained at GP Rs. 4,200/-.
When the Applicant’s MACP was granted in 2011, RBE No. 142/2012 had not yet been issued. The administration therefore acted on the then-existing MACP instructions under RBE No. 101/2009. The subsequent cancellation was made after the 2012 clarification came to light and similar cases surfaced.
Cancellation of the MACP was a routine establishment matter to implement the applicable Railway Board clarification and did not involve misconduct. Hence, no show-cause notice was necessary before issuing the cancellation order.
The administration had already corresponded with the concerned Accounts Branch and Railway Board regarding the issue, however, the Railway Board’s further response was awaited.
It is maintained that the partial cancellation order dated 09.11.2021 was validly issued in accordance with RBE No. 142/2012, and therefore, the applicant’s O.A. has no merit and is liable to be dismissed.
No rejoinder has been filed by the applicant in this matter.
Heard both sides and perused the records.
Ld. Counsel for the applicant has vehemently argued on the point that the benefit which has been granted under the MACP way back in the year 2012 has been withdrawn in the year 2021, i.e. after almost 9 years and that too, without issuing any show-cause notice and affording any opportunity to the applicant.
On the other hand, Ld. Counsel for the respondents vehemently opposes the relief on the said submission of the Ld. Counsel for the applicant on the ground that by mistake, the same had been granted to the applicant along with others who are not eligible and entitled to receive such benefit under Grade Pay Rs. 4600/- under the MACP scheme. The error has been noticed and accordingly, vide order dated 09.11.2021, the earlier order granting the benefit of MACP has been cancelled partially with a direction to recast the pay of the employees as mentioned in the said letter and the salary of that particular month be drawn on the revised pay duly cancelling the MACP benefit of the applicant along with other employees referred to in the said letter dated 09.11.2021. Opportunity has already been offered by virtue of this letter. If at all the applicant is entitled to retain the same, he has to submit his representation first to the authority. However, he has directly approached the Court.
The fact which is not in dispute is that there is no show-cause notice issued to the applicant before cancelling the benefit of MACP vide order dated 09.11.2021 impugned in the O.A. In view of the said, the matter is remanded back to the competent respondent authority with a direction to issue show-cause to the applicant within a period of 04 weeks from the date of receipt of a copy of this order and on receipt of such show-cause, the applicant is directed to submit his detailed representation within 02 weeks thereafter and prove his entitlement to retain such benefit which is granted to the applicant by way of MACP. Subsequently, on receipt of his representation/reply to the show-cause, respondents are directed to pass a reasoned and speaking order following with the rules and RBE circulars in vogue. Till then, recovery should not be effected by the respondents.
With the aforesaid directions, the O.A is disposed of with no order as to costs.