Promotion through LDCE (Postman to Postal Assistant) is not promotion for the purpose of MACP: Important CAT Order
CENTRAL ADMINISTRATIVE TRIBUNAL
AMHEDABAD BENCH, AHMEDABAD
Original Application Nos.93/19, 94/19, 95/19, 96/19, 97/19, 98/19, 99/19, 100/19, 101/19, 102/19, 103/19, 104/19, 105/19, 106/19, 107/19, 108/19, 109/19, 110/19, 111/19, 112/19, 113/19, 114/19, 115/19, 116/19, 118/19, 119/19, 136/19, 137/19, 138/19, OA 491/16, OA 273/18, OA 90/18, OA 121/18, OA 375/17, OA 91/18, OA 95/18, 157/18, 299/18, 94/18, 209/18, 96/18, 120/18, 92/18, 93/18, 282/18, 208/18, 503/17, 167/18, 122/18, 97/18, 119/18 and 86/18.
Reserved on : 24.07.2019 Pronounced on : 17.09.2019
Hon’ble Shri Pradeep Kumar, Member(Administrative)
Hon’ble Shri M.C.Verma, Member (Judicial)
For Applicants : By Advocate(s) : Mr. A.D.Vankar,
Mr. Joy Mathew & Ms. Vilas Purani.
For Respondents : By Advocate : Ms R. R. Patel
Per : Shri M C Verma, Judicial Member
1. Grievances of applicants of some OAs of this set are that TBOP/ BCR/ MACP granted earlier to them has been cancelled and adjusted as set off treating the post of Postal Assistant as promotion post of Postman whereas grievances of applicants of rest OAs of this set are that treating the post of Postal Assistant as promotion post of Postman they were not granted their due MACP. It is the contention of each applicants of this set of 52 OAs that the post of Postal Assistant is not a promotional post for the post of Postman whereas the stand of respondents is that it is a promotional post and that entry from Postman cadre to Postal Assistant has rghtly been adjusted and set off against TBOP / BCR/MACP.
2. As the outcome of all OA of this set would be a direct sequetur of the controversy, namely „whether the post of Postal Assistant is a promotional post for the post of Postman‟, hence all these OAs were heard together and a common Order is being passed. As far as facual aspect qua joining of post of Post Man or of Postal Assistant etc. relates, the same are undisputed.
3. A note of written arguments signed by Sh. A.D. Vanker Advocate , who is appearing for applicants of 17 OAs (O.A. Nos. 375/2017, 503/2017 90 to 97, 119 to 122, 167, 208, 209 of 2018), by Sh. Joy Mathew Advocate, who is appearing for applicant of thirty OAs (OA Nos. 491 of 2016, 93 to 116, 118, 119, 136 to 138 of 2019) and by Ms. Vilas Purani, Advocate, who is appearing for applicants of five OAs (O.A. No. 86, 157, 273, 282 and 299/2018) have been submitted. In addition to said Joint Note of written arguments learned counsel Sh. A.D. Vankar has also placed on record an another written note of submissions and has placed reliance on pleas taken therein also.
4. Learned counsel Shri Vanker orally has submitted that entry from cadre of Postman to Postal Assistant is by way of selection and applicants did pass Limited Departmental Competitive Examination (LDCE) and therefore it is not a promotion. He urged that under MACP Scheme, for grant of MACP, entry from cadre of Postman to Postal Assistant was required to be ignored. He, to fortify his submission placed reliance upon the judgment of Hon‟ble Madras High Court passed in Writ Petition No. 30629/2014 and added that decision passed in said Writ Petition was also impugned on the file of Hon‟ble Supreme Court and Hon‟ble Supreme Court has dismissed the SLP. He explaining factual data‟s, submitted that the applicants were recruited against 50% quota reserved for departmental candidates for this LDCE Examination for the post of Postal Assistant and they were entitled for grant of Grade Pay of Rs. 2800/-, Rs. 4200/- and Rs. 4600/- on eve grant of 1st, 2nd and 3rd MACP respectively and, therefore grant of Grade Pay only of Rs. 4200/- for 3rd MACP to them is discriminatory and against the Rules.
5. Learned Counsel Sh. Joy Mathew adopting the submissions of Mr. Vanker Advocate that entry from cadre of Postman to Postal Assistant by way of passing LDCE is not a promotion post, has also urged that there is no promotion avenue in the cadre of Postman and that Postman is not the feeder cadre of the post of Postal Assistant. That the selection of Postal Assistant is not made from feeder category of Postman alone and several other categories of employees are also eligible to appear in said Limited Departmental Competitive Examination (LDCE). He also argued that the post of Postal Assistant is an ex cadre post of Postman and, therefore, selection is not in the hierarchy line of Postman and thus cannot be said to be a promotion in the eye of law. He, placing reliance on judgment of Hon‟ble Supreme Court titled Director General, Rice Research Institute, Cuttack & Anr. Vs. Khetra Mohan Das [1994 (5) SLR 728 contended that promotion is different from fitment by way of rationalisation and initial adjustment and that the promotion means, appointment of a person of any category or grade of a service or a class of service to a higher category or grade or such service or class. He also stressed that several coordinate Benches of this Tribunal as well some High Courts have held that post of Postal Assistant is not a promotional post for the post of Postman.
6. Learned counsel Ms. Vilas Purani while adopting the submissions made at Bar by learned counsel Sh. A.D.Vankar Advocate and by learned counsel Sh. Joy Mathew Advocate has added that in identical matters, both on facts and on law, the coordinate Benches and some High Courts have taken the view that entry from cadre of Postman to Postal Assistant by way of passing LDCE is not a promotion. She referred decision dated 22.05.2012 passed by Hon‟ble High Court of Rajasthan in case titled – Union of India and Ors. Vs. Bhanwar Lal Regar in Writ Petition No. 11336/2012, decision dated 04.02.2015 passed by Hon‟ble High Court of Madras in UOI Vs D. Sivakumar in Writ Petition No. 30629/2014, judgment of Bangalore Bench of the Tribunal passed in case titled P.G. Mathad Vs. Department of Posts in OA No. 952/2016 and urged that contrary view would not be legal.
7. Learned counsel Ms. R.R. Patel appearing for respondents in all the OAs has also placed on record written arguments and she orally urged that prescribed criteria for educational qualification and age as condiction precedent is there for direct recruitment to the post of Postal Assistant / Sorting Assistant but as far as 50% quota of said posts, which is filled up by promotion relates, there is no educational qualification or age criteria and every postal employees in Group „D‟, Postman and the Mail Guards who do full-fill the criteria of length of service in regular cadre can appear in the examination and on successful clearance of LDCE they are promoted to the post of Postal Assistant. She also submitted that for direct fresh recruits, there is a separate system of selection, but for promotion from the cadre of Postman and from other Group D posts, a competitive LDCE test is held.
That if a direct recruited candidate appointed to the post of Postal Assistant fails to complete the probation successfully, he has to be sent back whereas in case of candidates appointed from the cadre of Postman or from other Group „D‟ posts fails to complete the probation successfully then in that case, he has to be reverted back to his original post. She referred the Rules regarding recruitment of Postal Assistant and Postman and that order impugned are just and proper and that treating the post of Postal Assistant as promotion post, applicants have rightly been denied the benefit of MACP.
She concluded that the question of law; whether joining as Postal Assistant from the post of postman is in nature of promotion is still res integra. She explained that mere dismissal of SLP is not the approval of law laid down by High Court and as far present controversy relates, the order passed by the Hon‟ble High Court of Madras was challenged before Hon‟ble Supreme Court in SLP (C) No. 4848/2016 and though
Hon‟ble Supreme Court has dismissed the SLP, however while dismissing SLP, the question of law was kept open.
8. We have considered the rival submissions and have perused the records of each case carefully. Before we shall advert to the question “Whether the post of Postal Assistant is a promotional post of Postman?”, we would firstly take note of decisions relied upon by the parties or having bearing upon the issue.
9. The question that has been raised in set of these OAs has previously arisen before the Jodhpur Bench of the Tribunal in OA No. 382/2011 & a batch, in case titled Bhanwar Lal Regar Vs. UOI & Ors and the Jodhpur Bench of the Tribunal in its decision dated 22.05.2012 passed in said OA, laid down that applicants have faced the LDCE to become Postal Assistant and, therefore, their joining as Postal Assistant was not in nature of promotion in earlier existing service or cadre but was career advancement through the process of selection. Applicant before Jodhpur Bench of the Tribunal in said OA No. 382/2011 was recruited on 15.01.1978, as a Group „D‟ employee, was promoted/appointed thereafter on 19.08.1978 to the post of Postman, and after passing the LDCE was appointed, on 15.01.1990 as Postal Assistant. He was granted TBOP on 05.02.2006 and MACP-II on 16.02.2010 but later on, on 26.05.2011 said benefit of financial up-gradation, given on 16.02.2010 under MACP was withdrawn stating that first promotion was from category D to Postman, second promotion was from Postman to Postal Assistant and therefore TBOP was the 3rd financial upgradation. Para 16 to 19 of decision of Hon‟ble Jodhpur Bench are relevant and are reproduced here-in-below:-
“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 though 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 case 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 a 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 or such service or class. In C. C. Padnianabhan V. Director of Public Instructions, 1980 (Supp) SCC 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 of the two conditions namely that the new post is in a 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, (1996) 1 SCC 562, at p.567; 1995(7) Scale 168; 1995 (9)JT 523; 1996 SCC (L&S) 340; 1996 (1)SLR 1, the Hon‟ble Apex Court findings can be paraphrased and summarized as follows:-
“In the literal sense the word „promotes means‟ to advise to a higher position, grade, or honour. So also „promotion‟ means “Advancement or preferment in honour, dignity, rank 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 though a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and ACP financial upgradation now, the only 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 the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when the Postman appears at the LDCE, and gets selected to a new Cadre as a Postal Assistant, then 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 cannot be called to be promotions within the definition of the word „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.”
9.1. The decision of Jodhpur Bench of the Tribunal was impugned by the respondents of the OA, in CWP 11336/2012 before Hon‟ble High Court of Rajasthan and the Hon‟ble High Court having held that the respondent (applicant of OA) faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment and their joining as Postal Assistants was not at all in the nature of promotion, dismissed the Writ Petition. Their Lordships observed as under:-
“Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant/Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion.
The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed.”
9.2. The matter did not rest herein, the U.O.I. impugned the judgment passed by Hon‟ble High Court of Jodhpur on the file of Hon‟ble Supreme Court but Special Leave Petition (Civil) Diary No. 23260/2018 preferred by the Union of India was dismissed in limine, vide order dated 10.08.2015.
10. In year 2011 the issue “whether the appointment of the applicant to the post of Postal Assistant is to be treated by way of promotion or direct recruitment”, was also posed before Principal Bench of this Tribunal in OA No. 3756/2011 and the Principal Bench of this Tribunal, observing that if relevant Recruitment Rules provides for filling up of the vacancies in the promotional quota from amongst more than one category, held that the same may be treated as direct recruitment. Paras 8 and 11 of aforesaid decision of Principal Bench, having relevancy are reproduced herein below:-
“8. Apparently, it is not so that the incumbents of only one feeder category are eligible to participate in the test for promotion to the post in question. Ex facie, all the permanent or quasi-permanent officials below the time-scale clerical and sorters grade are eligible to participate in the test for the post in issue in the present Original Application, thus the appointment of applicant to the post of Postal Assistant made in the year 1976 has to be treated as direct recruitment and he should be given the benefit of Modified Assured Career Progression Scheme (MACP) accordingly.
11. In view of the aforementioned, the respondents are directed to treat the appointment of the applicant as Postal Assistant w.e.f. 02.11.1976 as direct recruitment and give him benefit of MACP/ACP Scheme accordingly. It goes without saying that while giving the benefit of financial upgradation to the applicant in accordance with the aforementioned view, they will make the calculation of the benefits payable to him and would refund any such amount recovered from the applicant on the ground that his appointment to the post of Postal Assistant in 1976 was promotion and not direct recruitment. Needful may be done within three months from the date of receipt of a copy of this Order.”
11. We also find that almost similar matter was considered by Hon‟ble High Court of Delhi in W.P.(C) 4131/2014 in the case of Union of India and Ors Vs. Shakeel Ahmad Burney. While upholding the order of the Principal Bench of this Tribunal the Hon’ble High Court of Delhi, in its order dated 05.08.2014 observed as under :-
“There is no magic in the use of the expression “Promotion” or “Direct Recruitment”; whether, in fact, the mode of entry to the service is through direct recruitment or promotion would certainly be dependent on facts of each case and the structure of the Rules. If one analyzes Rule 3, it would be OA.No.170/ 00853/ 2016/CAT/Bangalore Bench apparent that recruitment is through “a competitive examination which will be open” to both departmental candidates and outside candidates. During the course of submissions, the Union of India has exphasized that syllabus for departmental candidates was prescribed in 1964; even this fact nowhere indicates that a differential treatment is accorded to direct recruits who are drawn from the open market. The absence of any clearly stipulated and defined feeder post for promotion by way of seniority, or any other known method like seniority-cum-merit, selection etc., the mode prescribed in Rule 3 (a) (i.e., departmental candidates also having to qualify in the competitive examination, along with outsiders) in this Court’s opinion clinches the matter. To that effect, the CAT’s decision that the entry of departmental candidates to the cadre of Postal Assistant is by way of direct recruitment is unexceptionable. We consequently affirm the findings of the CAT in the impugned order.”
12. Madras Bench of this Tribunal also, in its decision dated 14.3.2013 passed in OA No. 1088/2011 while following the order passed by the Jodhpur Bench hold that :- “As we have already stated that the orders of the Jodhpur Bench will apply to the case of the applicant herein, the OA is to be allowed as prayed for the applicant. Accordingly, we allow the OA by setting aside the impugned order dated 28.9.2010…”.
The order passed by the Madras Bench was impugned on the file of Hon‟ble Madras High Court in Writ Petition No. 30629/2014 and Hon‟ble Madras High Court vide its decision dated 04.02.2015 dismissed the Writ Petition holding that to adjust the appointment of the first respondent to the Postal Assistant against Modified Assured Career Progression-II, is erroneous. The relevant paras 9 and 10 of decision of Hon‟ble Madras High Court are reproduced hereinbelow:-
“9. What the Department had done is to adjust the appointment of the first respondent as the Postal Assistant on 12.11.1977, as the first financial upgradation under Modified Assured Career Progression-I. This is clearly erroneous in view of the fact that the appointment as Postal Assistant was not granted to the first respondent after mere completion of 10 years in the Cadre of Postman. From the Cadre of Postman, to which, the first respondent got appointed on 22.9.1973, he participated in a selection to the post of Postal Assistant and got appointed. Therefore, to adjust the said appointment against Modified Assured Career Progression-II, is clearly erroneous. Once that error is removed, it will be clear that the first respondent would be entitled to three modified assured career progressions for every ten years. Hence, we are of the opinion that the Tribunal was right in directing the Department not to take into account the appointment granted to the post of Postal Assistant and to adjust it against Modified Assured Career Progression-I.
10. Moreover, it is to be pointed out that even the second modified assured career progression was granted under the Modified Assured Career Progression Scheme only after 16 years and the third is said to have been granted after 26 years. If the first appointment is adjusted against Modified Assured Career Progression-I, this could not have actually happened. For doing so, the Department has counted the first appointment as 12.11.1977. Therefore, they cannot do so for the Modified Assured Career Progression Scheme in a different manner”.
13. The order passed by the Hon‟ble High Court of Madras, in aforesaid SCA was impugned before Hon‟ble the Supreme Court, in SLP (C) No. 4848/2016 but it was also dismissed in limine, however, the question of law was kept open. The Order dated 16.08.2016 passed by Hon‟ble the Supreme Court in SLPl (C) No. 4848/2016 reads:-
“We see no reason to entertain this petition under Article 136 of the Constitution of India. The special leave petition is, accordingly, dismissed. However, the question of law is kept open.”
14. As far as Hon‟ble High Court of State, having territorial jurisdiction over this Bench of the Tribunal, i.e. Hon‟ble High Court of Gujarat relates, some decisions of this Bench of the Tribunal wherein the Tribunal has taken the view that post of Postal Assistant is a promotional post of Postman/Mail Guard, were impugned before Hon‟ble High Court of Gujarat, in SCA No. 22652/2017 and a batch. Hon‟ble High Court of Gujarat set aside the Order passed by the Tribunal and directed the respondents to reconsider the issue of MACP of applicants of OA in the light of judgment passed by Hon‟ble High Court of Madras, in aforesaid SCA.
15. Recently Ernakulam Bench of the Tribunal, in its decision dated 29.05.2019 delivered in case, titled A. M. Jayarajan Vs. UOI & Ors. in OA No. 967/2017 held that the rules of promotion is quite different as the basic criteria is seniority-cum-fitness in order to get the promotion and only the employees from the feeder category is eligible who comes under the consideration zone so fixed by the DPC but this is absent in the case of appointment to the Sorting Assistant from the Limited Departmental Competitive Examination quota as it is only by way of merit alone. The Bench did not accept respondents‟ contention that since applicant is coming through 50% LDCE quota so the appointment to the post should be treated as promotion post assigning reason that the selection is made not from feeder category alone but on the basis of seniority and several other categories of employees are also eligible to appear in the said examination who are not at all in the feeder categories and further selection would be on the basis of percentage of marks alone.
16. It is the contention of learned Counsel for respondents that since inception past practice consistently is of treating Postal Assistant from the post of postman in nature of promotion and it also is settled law that while interpreting a Recruitment Rule a past practice consistently followed by the department needs to be kept in view by the Court, and that the issue is still res integra and if the matter is analysised in its entirety a different view, that joining as Postal Assistant from the post of postman is in nature of promotion could be there. She has contended that the judgment, reference of whom has come ibid, are accidental and per incurium. She has referred the Rules regarding recruitment of Postal Assistant and has urged that prescribed criteria for educational qualification and age as condition precedent is prescribed for direct recruitment to the post of Postal Assistant / Sorting Assistant but as far as 50% quota of said posts is concerned, which is filled up by LDCE promotion relates, there is no educational qualification or age criteria. She also has contended that for direct recruits there is a separate system of selection however some judgments are based upon premises that one common test is held for direct recruits as well as for the persons appointed from the cadre of the Postman but factually the situation is not as has been observed and added that though there is different procedure is provided by Rules for candidates who fails to pass confirmation examination, after appointment, but no note of it was taken in those judgments.
We did find some substance in the submission of learned counsel. Though various High Courts have held that that Postal Assistant from the post of postman is in nature of promotion but the Order dated 16.08.2016 passed by Hon‟ble Supreme Court in SLPl (C) No. 4848/2016, preferred against the order passed by the Hon‟ble High Court of Madras wherein Hon‟ble High Court of Madras has held that it is a not a promotional post, shows that Hon‟ble Supreme Court having seen no reason to entertain that petition under Article 136 of the Constitution of India though dismissed the SLP in limine however, the question of law was kept open by Hon‟ble Supreme Court.
It can thus be said that the issue that Postal Assistant from the post of postman is in nature of promotion or not, cannot yet be said to have attained finality nor it can be said as not res integra. It is the contention of respondent that the decisions, reference of whom has come ibid, are accidental and per incurium.
17. The Rules, regarding recruitment of Postal Assistant, prescribes criteria for educational qualification as well as age, as a condition precedent for direct fresh recruitment to the post of Postal Assistant / Sorting Assistant but as far as 50% quota of said posts, which is filled up by promotion on the basis of LDCE relates, there is no educational qualification or age criteria prescribed. There is no common test for out- sider fresh recruits and the persons appointed from the cadre of the Postman and rather for direct fresh recruits there is provision for written test and the persons appointed form the cadre of the Postman have to qualify the LDCE written test.
Consequence relating to for outsider fresh recruits and the persons appointed from the cadre of the Postman who failed to pass the confirmation test is also different. Rules for Recruitment for Recruitment to the Post of Time Scale Clerks and Sorters in Indian Posts and Telegraph Department 1971, which were in force at the time of appointment to applicants to the post of Postal Assistant, provides that the period of Probation would be of four years or of passing of the confirmation examination which- ever is earlier. The note attached shows that :- In the case of direct recruits, failure to pass the confirmation examination in six chances within four years result in their discharge from service while in the case of departmental candidates they will be reverted to their former lower post. The Rules for Recruitment to the Post of Time Scale Clerks and Sorters in Indian Posts and Telegraph Department 2002 provides that the period of Probation would be of two years or of passing of the confirmation examination specified in the Director General Posts and Telegraph Letter No. 63-56/67- SPB-1 dated 21st June 73, whichever is earlier. The note attached thereto shows that :- In case a direct recruits fails to pass the confirmation examination in four chances within two years, the probation period will be extended to a maximum period of four years , within which he shall be allowed two additional chances of normal confirmation examination and/or two special chances and failure to do so entail stoppage of increments or confirmation or both and in case of recruitment by promotion or deputation or absorption, grade from which promotion or deputation or absorption to be made. It is the contention of respondent that the decisions, reference of whom has come ibid are accidental and per incurium.
18. It is true that all these aspects in pith and substance were not pressed for in said cases; the reference of whose judgment has come ibid and therefore it is the contention of respondent that the decisions ibid are accidental and per incurium. The matter thus if is analysised in its entirety, there may be possibility of a different view, that joining as Postal Assistant from the post of postman is in nature of promotion. A decision, which is express and is found on reasons and which proceeds on consideration of issue, can only be deemed to be law declared and it will have a binding effect. The issue evolved in all said decisions obviously was whether Postal Assistant from the post of postman is in nature of promotion and therefore the decisions can‟t be said to be accidental.
19. Consistency in interpretation of law alone, can lead to public confidence in our judicial system. Hon‟ble Supreme Court time and again has laid down that deviation from the same should be only on a procedure known to law. „Incuria‟ literally means
„carelessness‟. In practice per incurium appears to mean per ignoratium, in ignoratium of a statute or other binding authority. Principle of per incurium is in relaxation of the rule of stare decisis. Rule of sub-silento is also an exception to the rule of predents. A decision passed sub-silento, in the technical sense that has to be attached that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.
20. It is true that all these aspects in entirety were not pressed for in relied upon cases, the reference of whose judgment has come ibid. This is illustrated by judgment of Hon‟ble High Court of Rajasthan passed in CWP 11336/2012, which was cited as precedent almost in every succeeding decision. Needless to say, their Lordship in CWP 11336/2012 categorically have observed in the judgment that,“ Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant.”
Does principle of per incurium extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration.
21. Ld. Counsel for respondents has urged to analysise the true import of Rule which, according to her, it would yield to conclusion that joining as Postal Assistant from the post of postman is in nature of promotion but the question, at threshold is whether the judgments, reference of whom has come ibid, are not an authority for the proposition canvassed by the applicants and whether this Tribunal needs to analyse the Rules in their entirety to exhaust and to see the possibility of a different view.
Once the entire import of Rule be considered, possibility of contrary view may or may not be there, but the question before this Tribunal is whether after aforesaid pronouncement by Hon‟ble High Court and the coordinate Benches, is it still within the ambit of this Tribunal to reopen the question in this proceedings and to take the view, inconsistent with the law laid down by Hon‟ble High Court and of Larger Bench of this Tribunal, because of the only reasons that some aspects have not been put forward for their consideration in those judgments.
22. It is trite-law that subordinate court is bound by the enunciation of law made by the superior court. Hon‟ble High Courts undoubtedly are superior courts of the Tribunal. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that healthy principles of judicial decorum and propriety warrants this Tribunal to follow the ratio decendi propounded by the High Court, in proper and traditional way and that deviation from the same should be only on a procedure known to law. Said principles illustrates from following decisions of Hon‟ble Supreme court as well coordinate bench of the Tribunal.
23. Hon‟ble Supreme Court in the case of Lala Shri Bhagwan and Anr, v. Shri Ram Chand and Anr 1965 SC 1767 laid down: “It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, lie should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.”
In another case, namely Tribhuvandas Purshottamdas Thakar v. Ratilal Motilal Patel,  1 SCR 455 Hon‟ble Supreme Court while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed :-
“The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai’s case and of Macleod, C.J., in Haridas `s case did not lay down the correct Law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority.”
24. In S.I. Rooplal and Anr. Vs. Lt. Governor AIR 2000 SC 594 Hon‟ble Supreme Court held that a coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench and it can only refer it to a larger Bench, if it disagrees with the earlier pronouncement. Expressing dissatisfaction in regard to the manner in which a coordinate bench of the Tribunal has overruled, in effect, an earlier judgment of another coordinate bench, Hon‟ble Supreme Court observed in para 12:-
“12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal as incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents……………..”
While expressing dissatisfaction in abovesaid words Hon‟ble the Supreme Court in para 13 held as under:-
“13. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and parties to this case have been put to considerable hardship.”
25 As noted above, Hon‟ble Supreme Court in SLPl (C) No. 4848/2016 has kept the question of law open, so the control to analyse the Rules in their entirety, to see possibility of a different view qua the issue whether joining as Postal Assistant from the post of postman, is in nature of promotion or otherwise, thus only vested either in Hon‟ble Supreme Court or in larger bench of the High Court. Therefore, when it is not in the domain of this Bench to take the contrary view, it would only be a futile exercise to go into the import of the Rules and we therefore, by accepting the law laid down by Hon‟ble High Courts and Coordinate Benches of this Tribunal on the issue, and hold that post of Postal Assistant is not a promotional post of the Postman.
26 As noted above, facual aspect qua joining of post of Post Man or of Postal Assistant etc. relates, the same are undisputed. We shall now go into the question and have to consider whether the relief claimed in the O.As can be granted in answer to aforesaid impugned question that the post of Postal Assistant is not a promotional post.
30. Prior to 6th CPC recommendations, which were applicable w.e.f. 01.01.2006, the Government had a scheme known as Assured Career Progression Scheme (ACP Scheme introduced on 09.08.1999). ACP Scheme allowed two financial upgradations subject to fulfilment of prescribed conditions, first on completion of 12 years and second on completion of 24 years. Even before introduction of the ACP scheme, both the departments namely, Department of Posts and Department of Telecommunications provided „First Time Bound Promotion‟ (called as OTBP in Telecom & TBOP in Postal Department) on completion of 16 years of service in the basic grade. These two departments further introduced Biennial Cadre Review (BCR) benefit after completion of 26 years of service in the basic grade including time spent in higher grades/OTBP.
The Sixth Central Pay Commission recommended Modified Assured Career Progression Scheme (MACP). The Government accepted the same with some modification to grant three financial upgradations for the central government employees under this revised Scheme at intervals of 10, 20 and 30 years of continuous regular service and issued orders vide Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) OM No 35034/3/2008- Estt. (D) Dated 19.5.2009. This scheme is in supersession of previous ACP Scheme and clarifications issued there under. The scheme shall be applicable to all regularly appointed Group “A”, “B”, “C” Central Government Civilian Employees except officers of the Organised Group “A” service. The status of Group D employees ceased and they were treated as Group C multi-skilled employees on their completion of prescribed training. Casual employees, including those granted ‘temporary status’ and employees appointed in the Central Government only on adhoc or contract basis, were not granted benefits under the aforesaid Scheme.
With the introduction of MACP scheme OTBP/BCR orders turned obsolete. In that regard it is necessary to take note, that for the purpose of MACP etc., the actual date of joining the post of Postal Assistant/Sorting Assistant is relevant, when it is considered as a promotion post and elevated the position to a different grade. But once it is held that posting as Postal Assistant/Sorting Assistant is not a promotion, the service length of Postman post, cannot be claimed for the purpose of financial upgradation through MACP, because it is only the stagnation for which the financial upgradation is provided under the MACP Scheme.
31. Grievances of applicants as of this set of fifty two OAs are that either TBOP/ BCR/ MACP granted earlier to them has been cancelled & adjusted as set off treating the post of Postal Assistant as promotion post of Postman and they were not granted their due MACP. The stand of respondents is that it is a promotional post and that entry from Postman cadre to Postal Assistant has rightly been adjusted and set off against TBOP / BCR/MACP. The outcome of all OA of this set would be a direct sequetur of the controversy, namely „whether the post of Postal Assistant is a promotional post for the post of Postman‟ and having discussed the legal scenario we have held, as discussed above that post of Postal Assistant is not a promotional post of the Postman (para 25 supra).
32. In view of the foregoing factual and the legal scenario and the rules propounded by the jurisprudence, we hereby quash all impugned orders of this set of OAs whereby either TBOP/ BCR/ MACP granted earlier to them has been cancelled & adjusted as set off or they were declined their TBOP/ BCR/ MACP due treating the post of Postal Assistant as promotion post of Postman. Respondents are directed to place the claim of applicants for examination afresh before the Review Screening Committee treating the date of entry into the cadre/grade of the post of Postal Assistant as the starting point and to release the financial upgradations of 1st , 2nd and 3rd MACP, as the case may be, to which they are entitled, keeping in mind that promotion of the applicants as Postal Assistant was not a „promotion‟, within a period of three months (90 days) from the date of receipt of a certified copy of this order with consequential benefits.
It is made clear that while giving the benefit of financial upgradation(s) to the applicants in accordance with the aforementioned view, respondent will make calculation of the benefits payable to applicants and would refund any such amount which was recovered from them on the reasoning that his/their appointment to the post of Postal Assistant was promotion. Applicants shall be accordingly entitled to all the arrears with interest at the rate permissible under Rules, being payable on the arrears of the financial upgradation benefits admissible to them.
33. With abovesaid observation and direction, all fifty two OAs stand disposed of. Pending MA, if any in either of OA, also stands disposed of accordingly.
(M C Verma)
Source: Ahmedabad CAT Order Search