P.H. PRABHAKARA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE above application is filed under Section 19 of A.T. Act, 1985 being aggrieved by the Memo No. B2/27 -1/MACP/Dlgs dated 3.1.2013 (Annexure A -10) in so far as the applicant is concerned issued by the SPOs, Chitradurga and action of the Post Master Chitradurga HO in recovering the amount of Rs. 15011/ - from the month of January, 2013 as alleged excess paid pay and allowance from the applicant. Further relief of direction to the respondents to restore the fixation of higher pay granted to the applicant due to his placement in the 3rd MACP grade with all consequential benefits. We have heard the learned Counsel for the respective parties.

(2.) THE admitted facts from either side are, the applicant was appointed as Postal Assistant in the year 1979, after completion of 16 years of service as Postal Assistant he got first promotion in the month of July, 1995 under TBOP Scheme, thereafter completion of 26 years he got BCR promotion in the month of July, 2005. The MACP Scheme came into force w.e.f. 1.9.2008. Under the said MACP Scheme, the applicant was placed in 3rd MACP w.e.f. 16.4.2009. Earlier to the said date, the applicant was offered promotion to the Cadre of LSG on regular basis w.e.f. 8.8.2008, the applicant declined the said promotion vide his representation dated 4.9.2008. The Circle Office accepted the request of the applicant to decline promotion vide order dated 22.9.2008. Subsequently the applicant was further offered promotion to the cadre of LSG vide letter dated 20.11.2009. Now the applicant accepted the promotion and assumed charge on 10.2.2010. Subsequently there was an inspection by the Internal Check Inspection Team on 31.11.2011. In the Internal Check Inspection, it was found out that the implementation of MACP for the officials who have declined promotion are not eligible for MACP. Accordingly the applicant was served with a show cause notice dated 21.11.2012 to show cause as to why the 3rd MACP given to him should not be withdrawn. The applicant made his representation dated 26.11.2012. The respondents Sr. Supdt. of Post Offices has issued an order dated 31.1.2013 ordering recovery of the amount paid in excess to the applicant, that is challenged in the present OA.

(3.) PER contra the respondents have filed a detailed reply statement and admitted the facts and denied the applicant is eligible for the benefits under the 3rd MACP Scheme. The applicant is presently working as Post Master Grade I, he entered the department as Postal Assistant during 1979. While he was working as such he was granted financial up -gradation under TBOP Scheme during July, 1995 after he completed 16 years of qualifying service. Similarly after completion of 26 years of qualifying service, he was given financial up -gradation under BCR during July, 2005. The MACP Scheme came into force in Department of Posts w.e.f. 1.9.2008. The applicant was placed in the grade pay of Rs. 4600/ - under the 3rd MACP w.e.f. 16.4.2009 with the approval of the 3rd respondent. The applicant was offered earlier the cadre of LSG on regular basis vide order dated 8.8.2008. The applicant declined this promotion vide his letter dated 4.9.2008, that was accepted by the Circle Office on 22.9.2008. Again during November, 2009 he was offered promotion to the cadre of LSG vide Memo dated 20.11.2009 and the applicant accepted promotion and was posted as SPM, he assumed charge on 10.2.2010 on promotion to LSG cadre. Subsequently the 3rd respondent issued letter dated 11.11.2011 conveying the findings of the Internal Check Inspection Team by the Postal Accounts on various divisions, that many division have taken debarred period as 12 months from the date of promotion and not till the acceptance of regular promotion while granting MACP. The 3rd respondent vide letter dated 11.11.2011 reiterating the clarification of CIFA and rules in para. 25 of MACP scheme dated 18.9.2009 that "officials who have declined their promotion prior/subsequent to implementation of MACP are not eligible for MACP benefits till debarred period of 12 months or acceptance of next promotion whichever is later, directing to hold review DPC to review cases accordingly." It was found that financial up -gradation under 3rd MACP given to the applicant was in deviation of the provisions of the scheme and therefore was found to be irregular. The applicant was issued a show cause notice dated 21.11.2012 asking him to show cause as to why recovery of overpayment of pay and allowances should not be done out of irregular financial up -gradation given to him under MACP Scheme, the applicant submitted his written reply on 26.11.2012. In his defence he has contended that he declined LSG Promotion on 4.9.2008 when MACP Scheme was not in existence and that he was kept in dark till 18.9.2009 and 18.10.2010 as the department issued instructions only in August, 2012. The representation of the applicant was considered, it was found that the reply is not convincing as there was no merit in the representation and therefore the 3rd MACP granted to the applicant vide Memo dated 1.7.2011 was ordered to be withdrawn and the excess paid amount and allowances consequent on granting financial up -gradations was ordered to be recovered from his pay and allowances vide Memo dated 3.1.2013. There is nothing wrong in ordering recovery of the amount since applicant was not eligible for benefit of financial up -gradation as per para. 25 of MACP Scheme. There is no illegality or irregularity or infirmity in the impugned order. When the applicant is not legally entitled for financial up -gradation, recovery as ordered under the impugned order is in accordance with the judgment of the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and Others v. State of Uttarakhand, : (2012) 8 SCC 11. The financial up -gradation like TBOP, BCR, MACP etc. are based on the Schemes forgiving in situ financial lifts at certain intervals, in the official career, without binding on them with additional duties and responsibilities. Whereas the actual promotions like LSG/HSG -II etc. are the promotion, though equivalent to TBOP and BCR in monetary terms, they carry higher responsibilities. In view of the policy decision taken by the Department of Personnel and Training, conveyed under Directorate letter No. 4 -7(MACPs)/2009 -PCC dated 18.9.2009, the instructions contained therein have been acted upon in letter and spirit. The case of the applicant is not an isolated case and the orders of the Directorate are made applicable to all 3rd MACP officials who are placed in similar situations on the same analogy as that of the applicant. If such mistakes which have occurred by an honest error of judgment are not set right, it would have wider ramifications throughout the country draining the exchequer of Government of India. Therefore, instead of seeing this case as an isolated one, a holistic approach is made.