Tuesday, 18 August 2015


DECIDED ON: 05.08.2014
 W.P.(C) 4131/2014

UNION OF INDIA AND ORS ..... Petitioner

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.




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Scheme was granted, but subsequently sought to be withdrawn, on the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
“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
(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.
AUGUST 05, 2014

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