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Supreme Court of India
Union Of India vs Rosamma Benny on 4 February, 2020Author: Sanjiv Khanna
Bench: N.V. Ramana, Sanjiv Khanna, Krishna Murari
NON-REPORTABLE
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:
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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
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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
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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
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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
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(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.
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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.
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