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P.N. Alexander v/s Union of India, Rep. by Secretary to the Government, New Delhi & Others

    Original Application No. 1123 of 2012

    Decided On, 03 November 2015

    At, Central Administrative Tribunal Ernakulam Bench

    By, THE HONOURABLE MR. U. SARATHCHANDRAN
    By, JUDICIAL MEMBER & THE HONOURABLE MR. P.K. PRADHAN
    By, ADMINISTRATIVE MEMBER

    For the Applicant: V. Sajith Kumar, Advocate. For the Respondents: Brijesh A.S., ACGSC.



Judgment Text

U. Sarathchandran, Judicial Member.

1. Applicant is aggrieved by the withdrawal of MACP placement granted to him vide Annexure A/1 on the ground that his service in Army Postal Service (APS) cannot be taken into account as 'regular service' for the purpose of MACP. According to him he came to the postal service as a Reserved Trained Pool candidate in 1983. He was selected for appointment to APS vide Memo dt. 10.3.1987. After two months training he was deputed to the APS against a regular vacancy of Postal Assistant. While working in APS he was appointed as regular Postal Assistant in the civil side vide Annexure A/2 Memo dt. 23.5.1990. His service in the APS was considered as regular service for all purposes including for grant of increments, qualifying service for pension, Time Bound One Promotion (TBOP) scheme etc. He worked in APS on deputation till 19.12.1992. The TBOP was granted to him vide

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Annexure A/3 Memo on completion of 16 years of regular service wherein his service in APS was also taken into account. The 2nd MACP was granted vide Annexure A/5 order dt. 22.6.10. Thereafter, vide Annexure A/6 he received a Memo proposing to cancel the MACP as the ad hoc service rendered in the APS cannot be counted for financial upgradation under MACP scheme. He sent Annexure A/7 representation. Respondent No.3 sent Annexure A/1 rejecting the representation and cancelling MACP-II granted to him vide Annexure A/5 Memo. Applicant has approached this Tribunal seeking relief as under:

(i) To quash Annexure A1.

(ii) To declare that the service rendered by the applicant in APS on deputation basis, continuously without brake is eligible to be counted for the purpose of MACPS and any provision in Annexure A4, which prohibits qualifying service (Pensionable service) with APS for the purpose of MACPS is highly arbitrary and unconstitutional,

(iii) To direct the respondents to count the service rendered by the applicant in APS on deputation basis, continuously without brake for the purpose of MACPS and consequential benefits and to retain the benefits already granted to the applicant,

(iv) Grant such other reliefs as may be prayed for and as the court may deem fit to grant, and

(v) Grant the cost of this Original Application.

2. Respondents filed reply statement contending that the applicant's service in the APS was ad hoc in nature and hence in view of the clause 9 in the MACP scheme the said service cannot be reckoned as regular service. Respondents have produced Annexure R/1 copy of the communication dt. 10.03.87 posting the applicant as Postal Assistant for a period of two months w.e.f. 12.3.87 making it clear that appointment is purely temporary and on ad hoc basis. Respondents have also produced Annexure R/2 administrative instructions dt. 12.4.12 issued by respondent No.1 directing that persons recruited under the RTP scheme and sent to the APS on ad hoc basis cannot be permitted to count the service rendered by them under the RTP scheme prior to their regular appointment as Postal Assistant. A similar order was issued by Respondent No.2. Respondents have produced R/3 communication issued by Respondent No.2 reiterating the same.

3. A rejoinder was filed by the applicant stating that applicant had earned increments in APS against a regular vacancy and pointing out that ad hoc or contract appointment usually does not earn any increment. It is also contended by the applicant that the description in Annexure R/1 that applicant’s appointment in APS is temporary and ad hoc does not actually mean that his services in APS was ad hoc or temporary since every fresh posting to a service will be initially temporary or provisional.

4. An additional reply statement was filed by the respondents reiterating the contentions and producing Annexure R/4 order of this Tribunal wherein it was held that 2nd MACP will be reckoned only from the date of regular appointment of the persons who have been selected as RTPs.

5. Heard Mr. V.Sajith Kumar, learned counsel for the applicant and Mr.Brijesh A.S., ACGSC. Perused the record. Learned counsel for the applicant relied on a decision of the Apex Court in Union of India v. Mathivanan AIR 2006 SC 2326. He also produced a decision of the Hyderabad Bench of this Tribunal in OA No. 56/2014 and connected cases and also a decision of this Bench in OA No. 856/2012.

6. The controversy in this case is about the withdrawal of benefits given to the applicant on the ground that his service in the APS cannot be counted. Respondents contend that for the purpose of MACP only the service rendered from the date of his regularisation in the Postal Department can be taken into account. According to applicant, the service rendered by him in the APS from 12.3.87 to 19.12.92 was on deputation basis against a regular vacancy in the Army Postal Service and hence he had enjoyed annual increments as if it was a regular service. He further states that he had availed of the TBOP also after completion of 16 years as regular service wherein the service with APS was recognised. He relies on M.Mathivanan case (supra). According to the respondents, Mathivanan case was decided by the Supreme Court of India on the premise that under the TBOP scheme there is no provision for not reckoning the service rendered in the APS. According to respondents the Apex Court in its judgment dt 01.08.97 in Union of India v. K.N. Shivdas and Others (CA 80-123/1996) held that persons included in the RTP cannot claim benefits given to casual labourers such as productivity linked bonus and also eligibility for appearing in departmental examinations and that any service rendered before regular service cannot be counted for eligibility for appearing in the departmental examination.

7. The term 'regular service' for the purpose of MACP has been explained in para 9 of Annexure A/4 MACP scheme. It reads:

'Regular service' for the purposes of the MACPS 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. Service rendered on ad hoc/contract basis before regular appointment or pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.'

8. Learned counsel for the applicant Mr.V.Sajith Kumar referred to a decision dt. 10.4.2015 of this Bench in OA No. 856/2012 (one of us was a Member in the Bench in that case). In that case the question was whether the services rendered by the persons who have been appointed as Warrant Officers in APS should be reckoned by the Department for including them for granting them financial upgradation in the MACP Scheme. In that, this Tribunal held that in view of the fact that applicants therein were enrolled in the regular establishment of APS as Warrant Officers by a Presidential Order such service has to be counted as regular service in direct entry grade while computing their service for benefits under the MACP scheme. However, in this case the record does not indicate that the applicant was appointed in APS by way of a Presidential order. On the other hand, annexure R/1 communication dt. 10.3.87 issued by Respondent No.3 shows that the selection of the applicant to the APS was on the basis of his voluntariness to serve in the APS. It is stated in R/1 that the appointment is purely temporary and on ad hoc basis, making it clear that applicant will get the benefit of regular appointment in civil with effect from the date his immediate junior is appointed on regular basis. Mr.Sajith Kumar submitted that it is usual in all cases of regular appointments to indicate in the appointment order that the appointment is purely temporary and on ad hoc basis and hence such wordings in R/1 will not wipe out the regular nature of the service applicant had put in the APS. This Tribunal is unable to accept this contention. In the cases of Mathivanan (supra), and in OA 856/2012 of this Bench appointments of the applicants therein in the APS was by way of a Presidential order. In the present case Annexure R/1 clearly indicates that applicant had volunteered himself to serve in the APS on a purely temporary and ad hoc basis. In the above circumstances, while distinguishing this case from the other decisions cited above, this Tribunal holds that the applicant cannot claim that the service he rendered in APS was on regular basis.

9. In the light of the clear meaning given to the term 'regular service' in Annexure A/4 MACP scheme and in view of the clear terms of appointment in the APS in Annexure R/1 communication, this Tribunal is unable to sustain the contentions of the applicant. In the result, the O.A. is dismissed. No order as to costs.
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