Union Of India vs Rosamma Benny

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 996 OF 2020 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 17440 OF 2019)

UNION OF INDIA AND ANOTHER ..... APPELLANT(S)

VERSUS

ROSAMMA BENNY AND OTHERS ..... RESPONDENT(S)

JUDGMENT

Leave granted.

2. The impugned order dated 24.05.2018 passed by the Ernakulam

Bench of the High Court of Kerala dismisses the Writ Petition filed

by the Union of India and Senior Divisional Personnel Officer,

Southern Railway, Trivandrum and affirms the order dated

13.10.2017 passed by the Ernakulum Bench of the Central

Administrative Tribunal (‘the Tribunal’, for short) allowing O.A. No.

180/523/2014 filed by Rosamma Benny, Jessy S. Babu and Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date: 2020.02.04 Sreekala P.V., respondent Nos. 1, 2 and 3 respectively before us. 17:14:36 IST Reason: Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 1 of 7

3. The High Court in the impugned order has held that the

respondent Nos. 1, 2 and 3 were entitled to financial upgradation

under the Modified Assured Career Progression Scheme (‘MACP’,

for short) as they have been working as Enquiry-Cum-Reservation

Clerks (‘ECRC’, for short) w.e.f. 01.11.2003 and therefore, have

completed ten years in the cadre of ECRC. Accordingly, the

Tribunal was justified and correct in granting the relief by placing

the three respondents in the pay band- II with grade pay of Rs.

4600 w.e.f. 01.11.2013.

4. The impugned order, however, fails to notice and examine the

circular dated 12.09.2012 issued by the Ministry of Railways

(Railway Board) on behalf of the Government of India clarifying

grant of benefits under the MACP Scheme to employees who had

qualified and were appointed under the promotion quota after

clearing Limited Departmental Competitive Examination (‘LDCE’,

for short). The aforesaid clarification was issued after the matter

was examined in consultation with the Department of Personnel &

Training (DoP&T), the nodal department, and stipulates as under:

“References have been received from Zonal Railways seeking clarification regarding grant of benefits under MACPs in respect of the employees qualifying through LDCE/GDCE. The matter has been examined in consultation with Department of Personnel & Training (DoP&T), the nodal

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 2 of 7 department of Government on MACPS and it has been declared as under:

(i) if the relevant RRs provide for filling up of vacancies in a grade by Direct Recruitment, induction of an employee to that grade through LDCE/GDCE may be treated as Direct Recruitment for the purpose of grant of financial upgradation under MACPS. In such cases past service rendered in a lower pay scale/Grade Pay shall NOT be counted for the purpose of MACP Scheme.

(ii) if the relevant RRs prescribe a promotion Quota to be filled on the basis of LDCE/GDCE, such appointment would be treated as promotion for the purpose of benefit under the MACPS and in such cases past regular service shall also be counted for further benefits, if any, under the MACP Scheme.

The Indian Railway Establishment Manual Vol. I with regard

to the filling of posts to ECRC states as under:

“129. (1) The posts in the category of Enquiry─ Cum─ Reservation Clerks (ECRC) in scale of Rs. 4500-7000 w.e.f 1.1.96 will be filled as under:-

(i) 25% by direct recruitment through Railway Recruitment Board: and

(ii) 75% by promotion by selection from amongst Sr. Commercial Clerks and Sr. Ticket Collectors in the scale of pay Rs. 4000-6000 (RSRP) and Commercial Clerks and Ticket Collectors in the scale of pay Rs. 3200-4900 (RSPP) and Rs. 3050-4590 (RSRP) respectively who are suitable for posting as ECRC involving direct contact with general

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 3 of 7 public. Commercial Clerks and Ticket Collectors in grades Rs. 3050-4590 and 3200-4900 respectively should have completed a minimum of three years service in the respective grade.”

The contention of the appellants is that the three

respondents were appointed to the post of ECRC under the

promotion quota and their appointment cannot be treated as

regular/direct recruitment to the service.

5. The appellants in the reply filed before the Tribunal had stated that

Rosamma Benny, respondent No. 1, was appointed as an Office

Clerk on 01.04.1982 under Sports Quota in Western Railways in

the scale of Rs.260-400/Rs.950-1500. Thereafter, she was

transferred to the Palakkad Division in Southern Railway on

13.02.1989 as a Commercial Clerk in the scale of Rs.290-

430/Rs.975-1540. On 14.08.1995 (subsequently revised to

28.12.1993), she was promoted as ECRC-II in the scale of

Rs.1200-2040/Rs.4500-7000. Subsequently, respondent No. 1 was

promoted as ECRC-I in the scale of Rs.5000-8000 w.e.f.

01.11.2003 (proforma) and 02.01.2009 (regular). Similarly, Jessy

S. Babu, respondent No. 2, was appointed as an Office Clerk in

South Eastern Railway on 02.03.1984 in the scale of Rs.260-

400/Rs.950-1500. She was transferred to the Trivandrum Division

in Southern Railway on 25.06.1986 as a Commercial Clerk in the

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 4 of 7 scale of Rs.290-430/Rs.975-1540. Subsequently, on 14.03.1995

she was promoted as ECRC-II in the scale of Rs.1200-

2040/Rs.4500-7000. On 01.11.2003 she was further promoted as

ECRC-I in the scale of Rs.5000-8000. Sreekala P.V., respondent

No. 3, was appointed as an Office Clerk on 13.03.1984 in the scale

of Rs.260-400/Rs.950-1500 in South Central Railway. On

15.07.1987 she was transferred to the Madras Division in Southern

Railway as a Commercial Clerk in the scale of Rs.290-430/Rs.975-

1540. Thereafter, she was promoted as ECRC-II on 22.08.1993 in

the scale of Rs.1200-2040/4500-7000. On 01.11.2003 she was

promoted as ECRC-I in the scale of Rs.5000-8000.

6. We have referred to the aforesaid position as it has to be

examined whether posting on transfer as Commercial Clerks in the

case of the respondents can be and should be treated as the first

promotion. It is also to be examined whether there has been any

merger of pay scales/upgradations which may have a bearing on

application of the MACP Scheme to the present respondents by

taking into account the circular dated 10.06.2009 issued by the

Ministry of Railways (Railway Board) which states that three

financial upgradations would be “counted from the direct entry

grade on completion of 10, 20 and 30 years of service”. A further

circular dated 29.09.2010 issued by the Ministry of Railways

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 5 of 7 (Railway Board) giving point-wise clarifications, inter alia, states

that benefit under the MACP Scheme would be available from the

date of actual joining of the post in the entry grade. As noted,

enquiry in respect of appointment of the three respondents to the

post of ECRC is required in terms of the circular dated 12.09.2012

and Clause 129 of the Indian Railway Establishment, Manual Vol.

I, quoted above.

7. These aspects have not been examined by the Tribunal and the

High Court in the impugned orders. Normally we would have

decided the question but find ourselves in difficulty in absence of

details as there is no clarity on facts. Keeping the aforesaid

aspects in mind and as there is no discussion on the said issues,

we would set aside the impugned orders passed by the High Court

as well as the Tribunal and remand the matter to the Tribunal for a

fresh decision and adjudication on merits without being influenced

by the earlier orders passed by them, the High Court and this

judgment/order. The Tribunal would independently apply their

mind to the facts and the legal position after calling upon the

appellant, that is, the Southern Railway, Trivandrum and the

respondents, that is, the original applicants before the Tribunal to

file additional affidavits, if required and necessary.

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 6 of 7

8. The appeal is allowed in the aforesaid terms, with an order of

remand to the Tribunal, without any order as to costs. To cut short

the delay, parties are directed to appear before the Tribunal on

30.03.2020 when a further date of hearing would be fixed.

…………………………, J.

(S. ABDUL NAZEER)

…………………………, J.

(SANJIV KHANNA) NEW DELHI;

FEBRUARY 04, 2020.

Civil Appeal arising out of SLP (C) No. 17440 of 2019 Page 7 of 7