1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.3577 of 2017 Marut Nandan Singh --- --- Petitioner Versus 1. The Union of India through the Secretary (Posts) & chairman, Postal Service Board, Ministry of Communication and Information Technology, Department of Posts, New Delhi.
2. The Chief Postmaster General, Jharkhand Circle, Ranchi 3. The Director of Postal Service, Jharkhand Circle, Ranchi 4. The Assistant Director of Postal Services (Personnel), Jharkhand Circle, Ranchi 5. The Postmaster General (PMG) Jharkhand Circle, Ranchi --- --- Respondents --- CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE B.B. MANGALMURTI For the Appellant : Mr. Ashutosh Anand, Advocate For the Respondents : Mr. Rajiv Sinha, ASGI : Mr. B.K.Prasad, Advocate 05/12.12.2017 Heard learned counsel for the parties.
2. The applicant in O.A. No.051/00095/2014 is aggrieved by the order dated 10th January, 2017 passed by the learned Central Administrative Tribunal rejecting the Original Application and also the order dated 21 st March, 2017 rejecting his Review Application No.2 of 2017 (Annexure-10 and 11 to the writ petition).
3. The case of the petitioner as borne out from the materials on record in nut shell inter alia is as follows:- He joined as a Hindi Translator, Grade III on temporary ad hoc basis on 25th July, 1983 under Chief Postmaster General, Bihar Circle and his services were regularized by letter dated 7th July, 1989. Thereafter he was upgraded to the post of Hindi Translator, Grade II and re-designated as Junior Hindi Translator with effect from 23rd November, 1993 vide CPMG Bihar Circle, Patna Memo dated 16th May, 1994. He superannuated from service on 30th November, 2008 while working under the office of Chief Postmaster General, Jharkhand Circle, Ranchi. Before his superannuation, he was granted the benefit of 1st A.C.P. with effect from 9th September, 1999 and 2nd A.C.P. with effect from 12th December, 2007. In the 2nd A.C.P. his pay was fixed in the revised scale of Rs.7500-11500 (Pay 2 Band-2) Grade Pay Rs.4600/-. Thereafter, the pension of the petitioner was fixed as per his last pay drawn and his service particulars. His representation dated 18th February, 2013 was addressed by the impugned letter dated 18th March, 2013 issued by the Assistant Director Postal Services (P), Office of the Chief Postmaster General, Jharkhand Circle, Ranchi. Petitioner had sought re-fixation of his pay with effect from 1st January, 2006 in Pay Band-2, Grade Pay-4600 and in the Pay Band-3 Grade Pay of Rs.5400/- with effect from 12th December, 2007. Petitioner’s representation was declined by the impugned letter (Annexure-9) issued by the Respondents by stating that Office Order issued by the Government of India, Ministry of Finance, Department of Expenditure, Implementation Cell dated 24.11.2008 and corrigendum dated 27.11.2008 is not applicable for the financial upgradation in the cadre of Hindi Translator. The said letter is at Annexure-3 series at page 64 of the writ petition. Preceding thereto is the Modified Assured Career Progression Scheme (MACPS). The learned Tribunal observed that his representation for re-fixation of his salary was hopelessly barred by limitation. However, since the pay of the applicant was fixed under instructions contained in Office Memorandum dated 24th November, 2008 and the date of effect was mentioned as 12th December, 2007, there was no illegality calling for interference in the impugned action of the respondent authorities. The applicant had neither moved an application during his service career nor soon after his retirement within a reasonable time. There is nothing wrong in the fixation of pay as per recommendation of the 6 th Central Pay Commission. The learned Tribunal found the application as misconceived without any substantive right being infringed or any illegality in the fixation of pay at any point of time. The applicant had also failed to show differential treatment to any of his similarly placed batch-mates or employees.
4. We have considered the submissions of the learned counsel for the petitioner and also perused the relevant documents including the ACP Scheme dated August 9, 1999 (Annexure-2 series), MACP Scheme (part of Annexure-3 series) dated 19th May, 2009, the Office Memorandum dated 24th November, 2008 and the impugned letter dated 18 th March, 2013 3 (Annexure-9) as well. We have also scrutinized the findings of the learned Central Administrative Tribunal. We find that the entire plea of the petitioner for grant of 3rd MACP is misconceived as the petitioner was treated as a regular employee only with effect from 7 th July, 1989 as per his own averment made at Para-6 of the writ petition and has not completed the mandatory 30 years period from the said date in terms of the MACP Scheme. He was, therefore, not eligible for consideration under the MACP Scheme as per which 3rd financial upgradation would be admissible on completion of 30 years of service provided he has not earned third promotion in the hierarchy. The Office Memorandum dated 24th November, 2008 on its face shows that it is on the subject of revised pay scales for Official Language posts in various subordinate offices of the Central Government. Pay fixation of the petitioner at Annexure-9 dated 7th December, 2009 shows that under the 2nd ACP in the pre-revised scale, petitioner was placed at Rs.6500-200-10500/- and under the revised pay scale granted under 2nd ACP was placed in the scale of Rs.7450-11500 (PB-2) Grade Pay Rs.4600/-. The pay fixation of the petitioner under the revised pay scale compared to Office Memorandum dated 24th November, 2008 itself shows that on grant of 2nd ACP petitioner, who was on the substantive post of Junior Translator, was granted the revised scale of Rs.7450-11500 (PB-2) Grade Pay Rs.4600/-. Apparently there was no illegality in the pay fixation of the petitioner.
5. Considered from another perspective, petitioner enjoyed the superannuation benefit as per his pay fixation since his retirement on 30 th November, 2008 and got into the act in the year 2013 only when his representation dated 18th February, 2013 was rejected by the respondents vide letter dated 18th March, 2013. Learned Tribunal also observed that the plea raised by the applicant was hopelessly barred by limitation. Learned counsel for the petitioner has endeavoured to meet the said observations by submitting that the rejection of the application in March, 2013 gave him the cause of action to approach the learned Tribunal in O.A. in the year 2014.
6. We would only reproduce the opinion of the Hon’ble Supreme Court as rendered in the case of C. Jacob vs. Director of Geology and Mining 4 and Another reported in (2008) 10 SCC115on the very plea of revival of a stale cause of action on rejection of representation of such an employee. Para-8 to 14 of the report is being reproduced hereunder as it is a complete answer to the plea raised by the petitioner :-
“8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.
9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realize the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that 5 failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgment of a jural relationship” to give rise to a fresh cause of action.
12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.
13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages.
14. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for “consideration”. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing “consideration” of such claims.”
7. On consideration of the matter at hand, both on merits as well as the staleness of the claim, we are satisfied that the learned Tribunal has not committed any error in rejecting the Original Application and the Review Application of the petitioner.
8. Accordingly, the instant writ petition is dismissed with a cost of Rs.2,500/- to be deposited by the petitioner in Jharkhand State Legal Services Authority, Ranchi within a period of two weeks. Receipt to be deposited with the Registry of this Court. (Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.) Birendra/R.S.