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2024 Supreme(Online)(KER) 56161
HIGH COURT OF KERALA
AMIT RAWAL, K. V. Jayakumar, JJ
THE CHIEF ENGINEER, HEAD QUARTERS, SOUTHERN COMMAND, PUNE-411001. – Appellant
Versus
SHRI. M.V. ELIAS MES-109755, S/O. PAILY VARGHESE, FITTER PIPE HS-I, O/O. THE ASSISTANT GARRISON ENGINEER, B/R III, KATARIBAGH, NAVAL BASE P.O., KOCHI-682004. – Respondent
OP (CAT) NO. 333 OF 2017 | OP (CAT) NO. 11 OF 2018
For the Appellants/Petitioners: SRI.T.V.VINU, CGC
For the Respondents: SRI.P.M.BINOY KRISHNA, SRI.P.K.MADHUSOODANAN
Restructuring of posts with the same pay scale does not constitute a promotion for financial upgradation under the Modified Assured Career Progression Scheme.
Headnote:(A) Central Administrative Tribunal Act, 1985 - Assured Career Progression Scheme (ACP) - Modified Assured Career Progression Scheme (MACP) - The respondents, after 30 years of service without promotion, were entitled to financial upgradation under MACP to the grade pay of Rs.4600, as restructuring did not constitute a promotion. (Paras 10, 11)
(B) Promotion Definition - Restructuring of posts with the same pay scale does not equate to promotion for the purpose of financial upgradation under MACP. (Paras 10, 11)
Facts of the case:
The respondents, having served for 30 years without promotion, claimed financial upgradation under MACP after their posts were restructured. The Union of India contended this restructuring was a promotion, thus denying the requested benefits.
Findings of Court:
The Tribunal ruled in favor of the respondents, granting them the third MACP benefit of Rs.4600, clarifying that restructuring did not equate to promotion.
Issues: Whether the restructuring of posts constituted a promotion and the entitlement to financial upgradation under MACP.
Ratio Decidendi: The court concluded that restructuring was a re-designation without promotion, affirming the Tribunal's decision that the respondents were entitled to the financial upgradation under MACP.
Result: Petitions dismissed.
| Table of Content |
|---|
| 1. overview of cases and background of applicants in mes. (Para 1 , 2) |
| 2. dispute over restructuring and promotion eligibility under macp. (Para 3 , 4 , 5 , 6 , 7) |
| 3. clarification on macp provisions and financial upgradation. (Para 8 , 9) |
| 4. court's conclusion on entitlement to macp benefits. (Para 10 , 11) |
JUDGMENT
[OP (CAT) Nos.333/2017, 11/2018]
Amit Rawal, J.
1. This order shall dispose of O.P.No.333/2017 and 11/2018 against the judgment of the Tribunal dated 20.03.2017 in O.A.No.958/2014 and 17.08.2017 in O.A.No.3 of 2016 as the question of law and the point of consideration involved in both the cases are identical. For facilitation, we take the facts from O.P.(CAT)No.333/2017.
2. Respondents – applicants before the Tribunal had joined the Military Engineering Service (MES) long time back as carpenter, wireman, lineman and plumber (artisans staff). There was no promotional avenues in the aforementioned posts. Accordingly, the Assured Career Progression Scheme (ACP), in vogue, was extended to the aforementioned applicants by according them a financial upgraded benefits after completion of twelve(12) years with effect from 09.08.1999 and after twenty four(24) years, were also granted the benefit of second ACP. When the benefit of first ACP was granted, the pay scale was Rs.4000- 6000 and grade pay under ACP was Rs.2400 and at the time of grant of second ACP, the pay scale was Rs.9300-34800 and Rs.4200 as grade pay, was granted. Central Government, to overcome the stagnation in the absence of promotional avenues, came out with a Modified Assured Career Progression Scheme (MACP) for according benefit to the employees where there was stagnation in the job. Paragraph No.8 of the scheme is worth reliance, for, it prevented the employees to enjoy the benefit in case of promotion earned in the post carrying the same pay scale.
3. The case of the applicants before the Tribunal was that at the time of the restructuring of the Cadre in June 2011, when the post of Fitter Pipe (HS) was restructured as Master Craftsman (MCM) with the same pay scale and grade pay, sought the benefit of MACP by granting the grade pay of Rs.4600 next grade pay as they had already completed by that time thirty(30) years. It was not a promotion but only restructuring and assignment of new duties.
4. Union of India opposed the aforementioned stand by taking up the plea that on restructuring of the cadre it amounted to promotion even if it involve the same pay scale and therefore, rightly accorded the grade pay of Rs.4200 which they were drawing at the time of grant of second ACP. In support, also relied upon clause 8 of the MACP.
5. Other than Clause 8 respondents also relied upon a letter dated 23.07.2012 Ext.R1 stating that maximum benefit by way of promotion is upto Rs.4200 as there is no promotion beyond that for entitlement to claim financial upgradation to the grade pay of Rs.4600. The representation of the petitioners before institution of claim before the Tribunal was rejected by the competent authority vide order dated 10.03.2014 Ext.A11, on the same premise as per the stand taken before the Tribunal. Learned Administrative Tribunal allowed the aforementioned claim by noticing certain fallacies in the defence, by treating restructuring not to be promotion and accorded the benefit of third MACP ie., grade pay of Rs.4600.
6. Sri.T.V.Vinu, learned counsel for Union of India in the present OP(CAT) stated that the restructuring of the cadre amounted to promotion when they were accorded the status of MCM fitter with the same pay scale of Rs.9300-/34800 with grade pay of Rs.4200 and in support, had also again relied upon contents of letter Ext.R1 which clarified that the financial upgradation to the eligible Master Crafts Man will be in the same grade pay of Rs.4200 and not to Rs.4600 as the financial upgradation under ACP or MACP cannot be more than what can be allowed to an employee on his normal promotion, thus, there is a fallacy in the judgment an
