Mohan Pyare, Member (A)
1. Shri Rakesh Verma, learned counsel for the applicant and Shri Raj Pal Singh, learned counsel for the respondents are present.
2. By way of this original application the applicant has sought the following reliefs:-
“(i) To issue a writ, order or direction in the nature of Mandamus directing the respondents to consider and allow the applicants herein the benefit of third financial upgradation under the M.A.C.P. Scheme on completion of 30 years' regular service in the Grade Pay of Rs.4200/- in Pay Band-2 of Rs.9300-34800 with reference to the date of entry in the Railway service in the pay-scale of Rs.260-400 in Artisan category in Skilled Grade-III following and extending the benefits of judgment and order dated 17.11.2016 rendered by this Tribunal in respect of similarly situated persons in O.A. No. 1120 of 2013- Jugul Kishor and 64 others versus Union of India and others wherein similar controversy was involved and has been resolved by this Tribunal which has duly been implemented by the respondents, within a period as may be fixed by this Tribunal.
(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to carry out re-fixation of pay from the due date in the Grade Pay of Rs.4200/- together with usual allowances as admissible under the rules and further to pay the arrears thereof and to recalculate and revise the resultant fixation of pension and other pensionary benefits and to pay the arrears thereof together with interest thereon @ 12% per annum on the aforesaid total amount of arrears, within a period as may be fixed by this Tribunal.
(iii) To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Tribunal may deem fit and proper.
(iv) To award cost of the petition in favour of the applicants.”
3. The brief facts of the case are that the applicants upon qualifying the Trade Apprenctices Examination at the local level, were appointed on 06.09.1980 in the capacity of Substitute Khalasi in the pay-scale of Rs.196-232 (3rd C.P.C.) and were posted under the control of the Chief Mechanical Engineer (Works), North Central Railway, Jhansi. A copy of the appointment order dated 06.09.1980 wherein the names of applicant Nos. 2 & 4 are placed at Sl. Nos. 10 & 7 and similar orders were also passed in respect of applicant Nos.1, 3 & 5 also. An Office Order No.312/1981 dated 13.11.1981 and an Office Order No.96/1982 dated 03.03.1982 was issued by the respondents. Upon qualifying the All India Vocational Examination the applicant were appointed against Group ‘C’ post in the Skilled Grade-III Artisan category to which the pay scale of Rs.260-400 (3rd C.P.C.) was attached. In due course of time, all these applicants earned two regular promotions to the next higher post of Skilled Grade-II and Skilled Grade-1 in Artisan category on different dates in the years between 1994-1997. The pay-scales attached with the said posts are as under:-
|
(a) Skilled Grade-III - |
Rs.260-400/Rs.950-1500 (3 & 4th C.P.C.) |
|
(b) Skilled Grade-II - |
Rs. 1200-1800/Rs.4000-6000 (4th & 5 C.P.C.) |
|
(c) Skilled Grade-I - |
Rs. 1320-2040/Rs.4500-7000 (4th & 5h C.P.C.) |
4. Vide Railway Board Circular dated 10.06.2009 Μ.A.C.P. Scheme was circulated. Applicants have preferred representation dated 26.12.2012. In reply to the representation the respondent No. 2 passed order dated 30.07.2013. Again order dated 08.08.2013 was passed by the Respondent No.2. Feeling aggrieved with the orders passed by the respondents, Jugul Kishor and 64 others filed O.A. No.1120 of 2013 before this Tribunal. Aforesaid original application was allowed by this Tribunal vide order dated 17.11.2016, the same was duly implemented by the respondents and the benefits were extended to the applicants, who are exactly similarly placed with the present applicants. The applicants herein preferred representations dated 01.07.2017, 26.07.2017 and 02.08.2018. The applicants herein again preferred representation dated 17.08.2018 claiming the benefit of third financial upgradation under the M.A.C.P. Scheme in the Grade Pay of Rs.4200/-. Vide a letter dated 05.09.2018, applicant No. 1 has been informed by the respondents under Right to Information Act, 2005 that he has been allowed three regular promotions during the whole service and, therefore, he is not entitled for being granted the benefit of 3 financial upgradation under the M.A.C.P. Scheme. Vide letter dated 14.09.2018, passed by the Respondent No.2, the claim of the applicants have been rejected intimating the same to the applicant No.2. The applicants are seriously aggrieved by the aforesaid impugned action of the respondents as their services rendered as Substitute Khalasi have wrongly been considered and referred in the aforesaid orders as Khalasi as if the applicants were regularly appointed on the said posts. The respondents have failed to understand the fact that the applicants are exactly similarly placed persons with Shri Jugul Kishor and 64 others in whose favour, in the similar circumstances, this Tribunal has allowed the claim holding the above referred action of the respondents as illegal and arbitrary. Aggrieved by the action of the respondents the applicants have filed the present original application.
5. Per contra, respondents have filed counter affidavit wherein it has been stated that the impugned action with reference to the grievance of the applicant under the 3rd MACP scheme is just and legal. According to service record applicants are initially appointed on the post of Khalasi in September 1980. Subsequently, after the completion of apprentice they joined on Technician III post in year 1981. The service of Khalasi was dispensed with is not mentioned in applicant's service record. Therefore, the financial upgradation under the MACP scheme counted from the direct entry in the grade on completion of 10, 20, and 30 years of service respectively. The Financial upgradation under the scheme will be admissible whenever a person has spent 10 years of regular service continuously in the same grade. In present case Khalasi (GP-1800) is the initial post, Technician III (GP-1900), Technician-II (GP-2400) and Technician-I (GP-2800) is maximum admissible under the MACP Scheme. According to service record, the applicants started his service as Khalasi in September 1980, subsequently after the completion of apprentice he was shifted on the post of technician III in year 1981. The service of Khalasi dispensed with is not mentioned in applicant's service record. According to the entry in service record applicants are initially promoted on the post of Technician III in year 1981. Vide Tribunal order dated 31.10.2018 the competent authority was directed to send the entire matter for the clarification to the headquarters. Subsequently on 28.12.2018 reminder was also sent to the headquarters for clarification. The applicants were initially appointed on the post of Khalasi (in present grade pay 1800) so for the purpose of M.A.CP. Scheme the calculation of service is counted from the post of Khalasi onwards for calculating the interval of 10, 20 & 30 years.
6. It is submitted further submitted by the respondents that "according to service record 03 regular promotions have been provided to the applicants. The pay-scales attached with the said post are as under.
|
1. |
Initial post Khalasi |
-- |
Present G.P.1800 |
|
2. |
First Promotion Technician III |
-- |
Present GP 1900 |
|
3. |
Second Promotion Technician II |
-- |
Present GP 2400 |
|
4. |
Third Promotion Technician I |
-- |
Present GP 2800 |
As per RBE No. 101/2019 dated 10.06.2009 applicants are not entitled for granting MACP in the G.P 4200/-.
7. It is further submitted by the respondents that in first flush in some cases employee benefited under the 3rd financial upgradation under MACP Scheme subsequently, the benefits of GP 4200 was withdrawn from the employee because the Khalasi was the first designated post of such employee. In such cases it was also mentioned in employee's service record that the post of Khalasi was dispensed with and on such ground the first designated post was skilled III, and were given benefits of GP 4200 on the basis of previous GP 1900. It is further submitted that in compliance of Court order dated 17.11.2016 passed in O.A. No. 1120/2013 (Jugal Kishore and others V/s U.O.I. & others) the employees are benefited under the 3rd M.A.CP. It was mentioned in the service record that the service of Khalasi was dispensed with. In the present case above facts are not mentioned in employee service record. So the present case is different from the OA No. 1120/2013. The order passed in OA No. 1120/2013 is not applicable in present case as the facts are totally different. The applicants were initially posted on the post of Khalasi subsequently some employees filed OA No. 1120/2013 (Jugal Kishore & others V/s UOI and others) and the Tribunal was pleased to pass the order on 17.11.2016. In compliance of Tribunal order it was mentioned in service book of applicants that the service of Khalasi was dispensed with, and on such ground they were benefited 3rd MACP. But in present case it is not mentioned in employee's service book that the service of Khalasi was dispensed with, so the Tribunal order dated 17.11. 2016 passed in OA No. 1120/2013 is not implemented in the present case.
8. In their rejoinder affidavit the applicants have reiterated almost the same facts which have been submitted in the original application. It is submitted by the applicant that under the Apprentices Act, 1961, the applicants were imparted training after having been selected, in Artisan category such as Fitter, Trades Man, Electrician, Blacksmith, Carpenter etc, fall in various Engineering Departments of the Indian Railways and as per rules, during such training period stipend is paid to the trainee. All the aforesaid posts under skilled categories fall in Group 'C' post carrying the entry grade pay-scale of Rs.260-400/950-1500/3050-4590/5200-20200+Grade Pay Rs.1900. When the applicants completed the Apprentice training, were appointed in the capacity of 'substitute Khalasi' in the pay-scale of Rs.196-232. The applicants were imparted training under the Apprentice Act, 1961 against skilled categories. As a matter of fact, the applicants were eligible to be appointed against the skilled categories which fall under Group 'C' post. but since at that point of time the matter of appointment against skilled categories was under process and the applicants had already completed training under the aforesaid Act and a certificate to that effect was not issued, hence, the applicants were utilized by appointing them on need basis in the capacity of 'Substitute Khalasi' under Group 'D' category. At this juncture, the applicants have enclosed Para- 159 of the Indian Railway Establishment Manual Vol.1, which deals with the procedure of recruitment in skilled categories (Group "C'). The cases of the applicants are covered under para-(i) of (1) of para- 159.
9. Heard both the parties and gone through the records provided by applicant as well as respondents.
10. Learned counsel for the applicants has vehemently argued that the applicants were never appointed as Khalasi in the regular capacity but appointed as Substitute Khalasi. Their recruitment to the post of Skilled Grade III, Group 'C' was a fresh appointment. The Counsel has candidly argued that in case the direct entry grade (initial appointment) is taken the date of appointment as Substitute Khalasi, the applicants would obviously become ineligible and not entitled for III MACP as it shall be taken as if they were granted three regular promotions. This is the point where a fallacy lies. He has stated that the contention of the respondents referred to in the impugned order taking into account the direct entry grade as the date of appointment of the applicants as Substitute Khalasi is misconceived and against the concept of MACP.
11. Learned counsel for the respondents has vehemently opposed the contention of the counsel for the applicants. He has argued that the impugned orders are justified which were passed in accordance with provisions on the subject and clarifications received from higher formations.
12. From rival contentions of the parties, it emerges that the core issue for determination in the present controversy is "whether the engagement of the applicants as Substitute Khalasi would be factored into the calculation of MACP".
13. It is an admitted fact that the applicants were appointed as Substitute Khalasi in the beginning. However, their services as a Substitute Khalasi were dispensed with before their appointment in Skilled Gr. III on the respective dates. The MACP Scheme reckons the date of direct entry into the regular grade as critical. Therefore, direct entry and regular grade are two important determinants of calculation under MACP Scheme. During the old ACP Scheme, the applicants had no grievance as they had already received two promotions. However, the grievance was generated after the VI Pay Commission introduced MACP Scheme at intervals of 10, 20 and 30 years. From the facts of the case, it is evident that the applicants were initially engaged as Substitute Khalasi. Once their services were dispensed with as Substitute Khalasi, they were appointed to Group 'C' as Skilled Grade-III. The clarification issued by the General Manager also mentions the word Khalasi and not Substitute Khalasi. Had the applicants been Khalasies, their appointment to Group 'C' post would have been considered a promotion. But, in the instant case their appointment as Skilled Grade-II employee is an absolutely new appointment.
14. As per DOPT Office Memorandum dated 19.05.2009, the MACP Scheme was designed to be applicable to all regularly appointed Central Government Civilian employees. The casual employees, including those granted "temporary status and employees appointed in the Government only on adhoc or contract basis shall not qualify for benefits under this scheme. The Railway Board Circular No.101/2009 on the subject is merely a reproduction of the DOPT circular relating to this particular aspect."
15. Regarding the issue of recovery from the applicants it can be said without much debate that it is not justified as this amount was paid by the respondents after their earlier calculations. The applicants had no role to play in that. Further, it has been held by Hon'ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih in para 18 of the judgment that:-
Para 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the orders of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the orders of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
16. The appointment of applicants in the Skilled Grade-III posts is the initial and direct entry appointment in a regular sense. It seems that this fact has been over looked while issuing the impugned orders. It is felt that the first order dated 20.03.2010 granting 3rd stage of MACP Scheme was correct.
17. Having regard to the facts and circumstances of the case and legal position, we are of the considered opinion that withdrawal of 3rd stage MACP earlier granted to the applicants is not justified. The MACP is permissible from the direct entry grade in a regular channel which in the case of the applicants was as Skilled Gr. III. Further, the recovery from the applicants for the excess payment made by the respondents is also not tenable. Hence, impugned orders are unsustainable. The OA deserves to succeed.
18. Accordingly, the O.A. is allowed. The impugned orders dated 30.07.2013 and 08.08.2013 are quashed and set aside. The respondents are directed to grant 3rd stage of MACP to the applicants in the Pay Band -2 of Rs. 9300-34800/- with Grade-Pay of Rs. 4200/-. The compliance of this order should be made within three months from the date of receipt of copy of this order. No costs.
All associated MAs stand disposed of.
