Withdrawal of MACP in modification of date of appointment in case of Casual Laborer Temporary Service – CAT Bangalore Order dated 31-01-2020

CENTRAL ADMINISTRATIVE TRIBUNAL 
BANGALORE BENCH: BANGALORE

ORIGINAL APPLICATION NO.170/01707/2018

DATED THIS THE 31st DAY OF JANUARY, 2020 
HON’BLE DR.K.B.SURESH, JUDICIAL MEMBER
HON’BLE SHRI C.V.SANKAR, ADMINISTRATIVE MEMBER

M.Lingaraju
S/o H.Manchaiah Aged about: 59 years
Working as MTS Basavanagudi HO Bangalore-560004.
Residing at: No.117, II Main
III Cross, Kastribadavane Kamalanagar
Bangalore-560079. ………………………………………………………………Applicant
(By Advocate Sri P.Kamalesan)

Vs.

1. Union of India
Reptd by Director General of Posts
Department of Post
Dak Bhavan
New Delhi-110001.

2. Post Master General
Bangalore Region
Bangalore-560001.

3. Chief Post Master
General Karnataka
Circle Bangalore-560001.

4. Senior Superintendent of Post Offices
Bangalore South Division
Bangalore-560001.

5. Senior Post Master
Basavanagudi HO
Bangalore-560004. …………………………………………………Respondents

(By Advocate Sri M.Vasudeva Rao, Sr.PC for CG )

O R D E R

(PER HON’BLE SHRI C.V.SANKAR, MEMBER (ADMN)

The case of the applicant is that he was engaged as a casual labour during the year 1984 and conferred temporary status from 1.12.1989. After completion of 3 years as Temporary status casual labour, he was treated on par with Group-D status from 1.12.1995 and he was posted as LR Group-D at Basavanagudi HO from 23.1.2009 and placed under new pension scheme.

Aggrieved by placing him under new pension scheme, the applicant has filed OA.No.1436/2014 which was allowed by this Tribunal vide order dtd.16.6.2015 holding that the applicant was eligible to be placed under CCS Pension Rules 1972(Annexure-A1). The respondents challenged the said order before the Hon’ble High Court of Karnataka in WP.No.54224/2015 which was dismissed by the High Court vide order dtd.1.2.2016(Annexure-A3). Thereafter, the 3rd respondent issued orders dtd.1/4.7.2016 to comply with the orders of this Tribunal(Annexure-A4). The 4 th respondent issued order dtd.22.7.2016 to modify the date of appointment of the applicant from 23.1.2009 to 1.12.1995(Annexure-A5). The applicant was granted 1st financial upgradation under MACP w.e.f. 1.9.2008 vide Memo dtd.16.8.2016 of the 4th respondent(Annexure-A6). Vide Memo dtd.16.8.2016, the applicant was granted 2nd MACP w.e.f. 17.12.2015. Thereafter, the 4th respondent issued orders dtd.12.2.2018(Annexure-A8) for modifying the date of appointment of the applicant from 1.12.1995 to 10.1.2012 and order dtd.3.7.2018 (Annexure-A9) for withdrawing the 1st and 2nd MACPs. Then the applicant submitted a petition to the Secretary, Dept. of Posts, New Delhi on 4.7.2018 against the orders of the 4th respondent (Annexure-A10). Thereafter, the 5th respondent issued an order dtd.10.7.2018 (Annexure-A11) to the applicant directing to credit the overpaid pay and allowances working out to Rs.2,06,491/- from 1.9.2008 to 30.6.2018 due to withdrawal of 1st & 2nd MACPs. The applicant submitted representation dtd.16.7.2018(Annexure-A12) requesting not to resort to any recovery. But the 5 th respondent resorted to effecting recovery at the rate of Rs.5000/- per month from the salary of June, 2018 (Annexure-A13). The applicant submits that the Hon’ble Apex Court in Civil Appeals No.1855-1857/1971 held that promotion/upgradation made on permanent basis and so reversion of the promoted/upgraded incumbents is violative of Article 311(2) of the Constitution of India(Annexure- A14). In Civil Appeal No.11527/2014(State of Punjab vs. Rafiq Masih), the Hon’ble Apex Court has declared that any recovery from Group C and D is impermissible in law(Annexure-A15). The applicant submits that the financial upgradations were withdrawn unilaterally without providing any opportunity of hearing which is in violation of principles of natural justice. Therefore, the order of modifying the date of appointment, withdrawing the financial upgradations under MACP and the order of recovery are arbitrary and unsustainable under law. Accordingly, the applicant has filed the present OA seeking the following relief:

I. (a) Quash the Senior Superintendent of Post Offices, Bangalore South Division, Bangalore-560041, vide No.B2/MACP/Dlgs/17-18 dated 12.2.2018 vide Annexure-A8

(b) Senior superintendent of post office, Bangalore South division, Bangalore-560041, Memo No.B2/MACP I & II/MTS/Dlgs/18-19 dated 3.7.2018 vide Annexure-A9

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Held 

5. We agree with the contention of the applicant and inasmuch as the two MACPs have been given without any juncture from the applicant, the respondents have erred in withdrawing the same without giving any opportunity to the applicant and therefore the recovery orders issued against the applicant are quashed. Any amount recovered from the salary of the applicant has to be repaid to the applicant within a period of two(2) months from the date of issue of this order.

6. The OA is allowed to this extent. No costs.

(C.V.SANKAR)
MEMBER (A)

(DR.K.B.SURESH)
MEMBER (J)

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