MITALI GHOSH Vs. UNION OF INDIA

JUDGEMENT

(1.) The primary bone of contention among the warring litigants is whether the benefits of Modified Assured Career Progression Scheme (hereinafter referred to as MACPS) can be extended beyond the hierarchy of the posts of the cadre and can be of a quantum more than the grade pay of the promotional post.

(2.) Initially one Mitali Ghosh (Sarkar) approached the learned Tribunal by an original application being O.A. 350/00589/2014 challenging the railway board's circulars dated 13th Dec., 2012, 30th July, 2013 and 16th Sept., 2013 by which it was sought to be clarified that the financial up gradation under Assured Career Progression Scheme (hereinafter referred to as ACPS) and MACPS cannot be a higher grade than what can be allowed to an employee on his normal promotion and a decision was adopted to deduct the alleged excess amount already paid to the applicant. The contention of the applicant in the said original application was that she was initially appointed as a Staff Nurse and that thereafter promoted to the post of Nursing Sister. Subsequent thereto, she was promoted to the post of Chief Matron in the grade pay of Rs. 5,400.00. After completion of 10 years of continuous service in the promotional post she was granted the third financial up gradation under MACPS in the grade pay of Rs. 6,600.00 with effect from 1st Sept., 2008. After about five years thereafter the fixation of pay was modified/rectified and the applicant was placed in the grade pay of Rs. 5,400.00 and thereafter the respondents proceeded to recover the excess payment made. In support of the decision towards modification of grade pay, the respondents placed reliance upon a clarificatory memorandum issued on 13th Dec., 2012 (RBE No.142 of 2012) in which it was, inter alia, clarified that the grade pay would be admissible under MACPS to an employee holding feeder post in a cadre where promotional post is in the same grade pay. It was the contention of the respondents that employees earn promotion as per their cadre hierarchy and even in the event the promotional post is in the same cadre it cannot be construed that the employees have been stagnated. By an order dated 20th April, 2015 the learned Tribunal dismissed the claim of the applicant therein by observing that the post of Assistant Nursing Superintendent/Officer is a promotional post for an incumbent holding the post of Chief Matron and that a Chief Matron not getting promotion to the post of Assistant Nursing Superintendent cannot on the basis of the MACPS be placed in a grade pay higher than that which is enjoyed by an incumbent in the promotional post of Assistant Nursing Superintendent. The learned Tribunal also observed that the applicant had not challenged the 6th Pay Commission Report and that the recommendation of the Commission is not mandatorily binding upon the Government and its department. The said order dated 20th April, 2015 passed in O.A. 350/00589/2014 has been challenged in the writ petition being WPCT 98 of 2015 and during pendency of the same, employees similarly situated with Mitali Ghosh (Sarkar) also approached the learned Tribunal by filing O.A. No.350/00804/2014 (Martha Xalxo & Others Vs. Union of India & Others), O.A. No.350/00675/2014 (Bhut Nath Verma & Others Vs. Union of India & Others) and O.A. No.350/00678/2014 (Kamalesh Kumar Pandey & Others Vs. Union of India & Others) and 25 others. In the original application being O.A. No.350/00804/2014 the claim of the applicants therein pertaining to grant of grade pay of Rs. 6,600.00 was rejected by an order dated 13th May, 2016. In original applications being O.A. No.350/00675/2014 and O.A. No.350/00678/2014 the applicants while working as Loco Pilots were granted financial up gradation under MACPS in the grade pay of Rs. 4600.00 which was sought to be withdrawn by an order dated 9th April, 2014. The said original applications were dismissed by orders dated 7th Dec., 2016 and 23rd Dec., 2016 respectively observing, inter alia, that the benefits of MACPS cannot be extended beyond the hierarchy of the posts in the cadre and cannot be more than the grade pay of promoted post. It further needs to be mentioned that all the applicants in the said original applications also prayed for a restrain order upon the respondents not to recover the payments already disbursed in favour of the applicants.

(3.) Records would reveal that placing reliance upon the order passed in the case of Mitali Ghosh & Others Vs. Union of India & Others in O.A. No.350/00589/2014, the other original applications filed subsequent thereto were dismissed and it was, inter alia, observed that "this contention advanced by the applicant in the present OA was also the contentions before this Bench in the earlier O.A. No.598 of 2014 but this Bench of the Tribunal had rejected this issue in O.A. No.598 of 2014. So, issue is settled that movement from Chief Matron to ANO is promotion". While dismissing the original applications being O.A. No.350/00675/2014 and O.A. No.350/00678/2014, the learned Tribunal observed, inter alia, that "we have also taken this view in OA no.1020 of 2015 where with reference to OA No.598 of 2014 we have held that as the order in OA No.598 of 2014 has not been challenged, we cannot take any view other than the view taken earlier on 20.0.2015 by the same Bench".