DELHI HIGH COURT JUDGEMENT FOR MACP

IN THE HIGH COURT OF DELHI AT NEW DELH
DECIDED ON: 05.08.2014
 W.P.(C) 4131/2014


UNION OF INDIA AND ORS ..... Petitioner
Versus

SHAKEEL AHMAD BURNEY ..... Respondent
Through: Mr R.V. Sinha and Mr R.N. Singh,

Advs. for the petitioner.
Mr S.K. Gupta, Mr Vikram Singh and Mr Shoib
Shakeel, Advs for respondent.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. The petitioner-Union of India challenges an order of the Central

Administrative Tribunal (CAT) dated 21.12.2012 in which the

respondent-applicants’ claim for retention of the Modified Assured

Career Progression (MACP) Scheme benefits, in terms of the Central

Government’s Circular of 28.06.2011, and the proposal to

withhold/withdraw it, was considered.

2. The brief facts of the case are that the respondent-applicant was

initially a Group ‘D’ employee who was subsequently appointed as

Postal Assistant; the petitioner applied the Time Bound One

Promotion (TBOP) Scheme and the Biennial Cadre Review (BCR)

W.P.(C) No. 4131/2014 Page 2

which enabled the respondent-applicant to avail of financial

upgradation. The third, financial upgradation, on account of MACP

Scheme was granted, but subsequently sought to be withdrawn, on the

basis that mobility from Group ‘D’ to Postal Assistant was on account

of promotion. The respondent-applicant contended that this mobility

or upgradation was done on account of direct recruitment and not on

promotion and that as a result, he was entitled to the MACP benefit of

third upgradation.

3. The CAT, in its order, considered the argument and was

influenced by its Jodhpur Bench decision in Bhanwar Lal Regar v.

Union of India & Others in OA No. 382 of 2011. It further noticed

the decision of the Supreme Court in Director General, Rice

Research Institute, Cuttack & anr v Khetra Mohan Das, 1994 (5)

SLR 728, which examined the meaning and scope of the expression

“promotion”. Further decisions such as State of Rajasthan v.

Fatehchand Soni, (1996) 1 SCC 562 and other judgments were also

taken into consideration. On the basis of the judgments cited, the

CAT partly allowed the respondent’s application and directed as

follow:-

“20. Therefore, the OA is only partly allowed, and it is

held that while the respondents were wrong in counting

the applicant’s selection as a Postal Assistant through

LDCE in the year 1976 as promotion/financial

upgradation, they would be free to once again examine

the case of the applicant, and in case any extra financial

benefits, not admissible to him, have been granted to him,

for the less than three months’ period from 05.07.2011,

W.P.(C) No. 4131/2014 Page 3

the date of his substantive norm-based promotion to the

LSG Cadre, to the date of his superannuation on

30.09.2011, the same may be recovered from his retiral

benefits, after giving him a due notice in this regard.

Therefore, the OA is only partly allowed, as above, but

there shall be no order as to costs.”

4. The petitioner-Union of India is aggrieved by the impugned

order to the extent it holds that movement from Group ‘D’ post to the

post of Postal Assistant is direct recruitment; it is argued that such

movement is in fact, a “promotion”. It is contended that the order of

Jodhpur Bench in Bhanwar Lal Regar (supra), has been stayed by the

Jodhpur Bench of the Rajasthan High Court. He also stressed that the

judgment in Bhanwar Lal Regar (supra) itself has been differed from

by the CAT in another Bench’s decision.

5. Learned counsel highlighted that in terms of the Rule, a clear

distinction had been made between recruitment of outsiders and those

within the department. Learned counsel relied upon Rules for

Recruitment to the Clerical Service in Post Office in the Indian Posts

and Telegraphs Department, especially Rule 3, 4 and 5 (which are

produced at page 157 of the paper book), and urged that these Rules

clearly indicate that a differential treatment is accorded to the

departmental candidates and outsider candidates. This distinction has

to be kept in mind while determining whether entry to the cadre of

Postal Assistant was by way of promotion or direct recruitment. Great

stress was laid on the fact that the eligibility condition for

departmental candidates and outside candidates stipulated different

W.P.(C) No. 4131/2014 Page 4

age limits, which indicates that both are not part of the same category

and that departmental candidates are, in fact, to be promoted to the

cadre of Postal Assistant.

6. Learned counsel for the respondent submitted that a look at the

rules would clarify that apart from departmental candidates and direct

recruits being part of the common pool eligible for the recruitment, no

other criterion of promotion such as that of seniority or selection, has

been carved out. It is submitted that both the categories have to

compete through an examination and then even though eligibility

threshold in terms of age limit for departmental candidates is 30 years

(as against 23 years for direct recruits), that alone would not be a

relevant factor. Counsel urged that, taking these into consideration, the

conclusion of the CAT that entry to the cadre of Postal Assistant, was

by way of direct recruitment should not be interfered with.

7. To the extent they are relevant, the Rules are extracted below:

“3-Recruitment-Recruitment will be by a competitive

examination which will be open to-(a) Departmental

officials of all classes below the clerical cadre in the post

offices hereafter called departmental candidates, and

(b) Outside candidates.

4-Condiitons for departmental candidates: A

departmental candidate should have put in not less than

five years unblemished service followed by confirmation.

He must submit his application in the prescribed form in

due time to the Head of Circle through his immediate

superior. It will be at the discretion of the Head of the

W.P.(C) No. 4131/2014 Page 5

Circle whose decision will be final, to permit the

applicant to appear for the examination.

5. Conditions for outside candidates- The following

conditions will apply to outside candidates:

(a) A candidate must be-

(i) a citizen of India, or

(ii) a subject of Sikkim, or

(iii) a person who has migrated from Pakistan with the

intention of permanently settling in India, or

(iv) a subject of Nepal or of a Portuguese or French

possession in India, and if he comes under category (iii)

or (iv), must be a person in whose favour a certificate of

eligibility has been given by the Government of India. A

candidate in whose case such a certificate is necessary,

may however, be admitted to the examination and he may

also be provisionally appointed subject to the necessary

certificate being even tally given to him by the

Government.

(b) He must not be less than 18 years of age and not

more than 23 years of age on the date of commencement

of examination referred to in rule 3.

Exception-I- In regard to Muslims, other Minority

Communities and scheduled Classes (Depressed Classes)

the upper age limit is 22 years.

Exception-II-Departmental candidates referred to in

rule 3(a) above who are not over 30 years of age, are

permitted to appear at the examination as outside

candidates, if they fulfil all other conditions prescribed

for outside candidates. They will not in that case be

allowed to compete for the 50 per cent of the vacancies

reserved for departmental candidates.

W.P.(C) No. 4131/2014 Page 6

(c) He must have passed at least the Matriculation

examination of a recognized university, or one of the

equivalent examinations detailed in Appendix No. 3

(d) He must apply in prescribed form.

(e) Female candidates can appear for the competitive

examination on the same conditions as male candidates

5-A candidates who are permitted to appear for the

examination will receive from the Head of Circle a

written order which should be produced before the

Supervisor in charge at the time of examination.

5-B Candidates, both departmental and outsiders, must

a fee of Rs. 4 which will be refunded if they are not

allowed to sit at the examinations.”

8. 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 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 emphasized 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

W.P.(C) No. 4131/2014 Page 7

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.

9. For the above reasons, no interference is called for with the

impugned order of CAT.

The petition is accordingly dismissed.

S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
AUGUST 05, 2014
BG