In the light of the instructions issued when the ACP Scheme was introduced,the same policy be adopted and accordingly orders will be issued.In other words,those inducted through LDCE/GDCE Scheme, such induction may be counted as appointment and will not be reckoned as promotion.
Confederation: The Official Side agreed to issue orders on the same lines as has been issued under the ACP Scheme. The Staff Side stated that wherever examination is the criterion for promotion/fast track promotion, the service rendered by such employees in the lower post must be ignored and such promotion should be treated as appointment and the promotion scheme to commence from the date of such appointment. This was not agreed to by the official side on the plea that such appointments are against promotion quota and therefore, they are to be considered as promotion only. The Staff Side them pointed out that this issue had been the subject matter of judicial consideration before the Tribunal and the Tribunal has given the decision in favour of the employees. The Official Side wanted a copy of the judgement to react to this.
In the Confederation statement shown above the judicial consideration on the subject matter are now important to consider positively to grant “actual benefit of MACPS” to employees fall under above condition.
The Order of Hon’ble CAT, Jodhpur dated 22-05-2012 on OA No. 382/2011 with O.A. No. 353/2011 with MA No. 19/2012 & O.A. No. 354/2011 with MA No.20/2012 is relevant here. The main facts from the Order related to subject matter are reproduced here:
16. It is obvious that appointment from the civil post of EDA to a regular Government employment as Group-D is a fresh appointment, and that has not been disputed by the respondents either. Thereafter when, as Group-D employees, these three applicants faced a process of selection, and were appointed as Postmen such selection cannot be called a promotion, as it was not done in the course of natural progression through seniority. Any advancement in career which is based on a process of selection especially undertaken for that purpose cannot be called as a promotion. A promotion has to be in higher category in the same cadre, or service, or through a prescribed avenue of promotion, but without an element of a process of selection, through tests or examinations etc.
17. The meaning of the word “promotion” was considered by the Hon’ble Apex Court in the ase of Director General, Rice Research Institute, Cuttack & anr V Khetra Mohan Das, 1994 (5) SLR 728 and it was held as follows:-
A promotion is different from fitment by way of rationalization and initial adjustment, Promotion, as is generally understood, means; the appointment of a person of any category or grade of a service or a class of service to a higher category or Grade of such service or class. In C.C.Padmanabhan v. Director of Public Instructions, 1980 (Supp) SC 668: (AIR 1981 SC 64)) this Court observed that “Promotion” as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either higher category of the same service or that the new post carries higher grade in the same service or class”.
18. Further, in the case of State of Rajasthan v. Fatehchand Soni, (1998) 1 SSC 562, at p.567: 1995 (7) Scale 168: 1995 (9) JT523: 196 SC (L&S) 340: 1996 (1) SLR 1.1., The Hon’ble Apex Court findings can be paraphrased and summarized as follows:-
“In the literal sense the word”promote” means “to advise to a higher position grade, or honour”, So also “promotion’ or grade”. (See Webster’s Comprehensive Dictionary, International Edn. P. 1009) ‘promotion’ thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression ‘promotion’ has been understood in the wider sense and it has been held that ‘promotion can be either to a higher pay scale or to a higher post”.
19. In a similar manner, while being Postmen, the three applicants in these three OAs faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become Postal Assistants, their joining as Postal Assistants was not in the nature of promotion in their earlier existing service or cadre, but was a career advancement through a process of selection therefore for the purpose of grant of TBOP/BCR financial upgradation earlier and MACP financial upgradatrion now, the dates which are relevant to be taken into account for the purpose of counting the periods of their stagnation is the period spent by the applicants as Postal Assistant. In that sense, the clarification issued by the Pay Commission Cell of the department of Posts, Ministry of Commissions & IT on 25-04-2011 through file No. 4-7/MACPs/2009/-PCC, as cited in para 8 above, is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in Postman cadre on direct recruit basis. But it is obvious that the —————-would follow, and when the postman appears at the exams and gets selected to a new Cadre as a Postal Assistant,, even it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements canno0t be called to be promotions within the definition of the work ‘promotion’, as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.
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