D XAVIOUR vs M/o Culture on 30 December 2022

O R D E R

r: Justice S.Sujatha pplicant has filed this applica tive Tribunals Act, 1985 seeking “set aside the impugned letters N dated 04.01.2017 (Annexure A (B)(NG) dated 11.04.2017 (A wrongly applied condition 25 of the OM dated 28.09.2016 (Ann not considered the administrati dated 10.11.2014 (Annexure A years, direct the respondents-01 and 0 the applicant for granting the terms of office order dated 30 on the facts and circumstances o the interest of justice and equity

...........Member(J) ation under Section 19 of g for the following reliefs: No.1-60/2009/Estt (B)(NG)

18) and No.1-60/2009/Estt Annexure: A21) as illegal, f OM dated 19.05.2009 and nexure A23 and A24) and ive requirement vide letter A14) and retiring within 03 03 to consider the case of benefits of 3rd MACP in 0.12.2016 (Annexure A17) of the case on the records in .”

2. The fa 13.11.1986 applicant w Grade Pay a per office o while he wa the post of and posted per the orde A3). Th Respondent the fag end So far as t national pr Sustainable Life style D work under of data unde to consider expenditure Respondent

acts in a nutshell are that the ap as Research Associate – Phys was granted first ACP on 22.05.2 and the 2nd MACP was granted w order dated 17.05.2010 in the as working as RA. Thereafter, Assistant Anthropologist in the from Mysore to Port Blair, An er dated 11.03.2014 issued by th he applicant filed representatio t No.1 against the promotion or of his service, left with hardly the work was concerned, he h rojects viz., 1) Bio-Cultural Development – Village Study a Diseases-Mysore Family Diabet r the first project in Hebbal Vill er the second project are in half his posting at SRC, Mysore, e of the Government. It was al t No.1 that he was already wo

pplicant initially appointed on sical (‘RA’ in short). The 2000 in the scale of Rs.4600/- with effect from 01.09.2008 as scale of Rs.4800/- Grade Pay the applicant was promoted to e scale of Rs.4600/- Grade Pay ndman and Nicobar Islands, as he Respondent No.1 (Annexure on dated 26.03.2014 to the rder conveying that he was at two and half years of service. having been involved in two Diversity, Environment and and 2) Community Genetics of tes Study, in addition to field lage in Karnataka and analysis way and in progress, requested which also would reduce the so brought to the notice of the orking with the Grade Pay of

Rs.4800/- w the lower G

3. The sa issued letter Mysore ha Mysore. F No.1 but th Finally the applicant st Assistant A applicant re (Physical) b was granted in terms of was withdr representati the benefit impugned o 07.11.2014

with effect from 01.09.2008 and Grade Pay of Rs.4600/- to the exis aid representation was consider r dated 30.05.2014 stating that s no vacancy for the post of Further, the applicant filed repre he said representations have no e Respondent No.1 issued let ating that the promotion order d Anthropologist has been withdraw equested for promotion to the po before retirement from service d the benefit of 3rd MACP in the the OM dated 19.05.2009 and 2 rawn on 04.01.2017 by issu on dated 12.01.2017 was submi of 3rd MACP. However, the order dated 11.04.2017 stating was for refusal of promotion a

d the promotional post was on sting scale of pay. red by Respondent No.1 and the Southern Regional Centre, f Assistant Anthropologist at esentations to the Respondent ot yielded any positive results. tter dated 05.12.2014 to the dated 11.03.2014 to the post of wn. Again on 19.07.2016, the ost of Assistant Anthropologist on 31.01.2017, the applicant e scale of Rs.5400/- Grade Pay 28.09.2016. Further, the same uing a corrigendum. The itted by the applicant to restore e Respondent No.1 issued the g that the representation dated and as such the applicant is not

eligible for this Origina

4. This T that the app assumed, i month next W.P.No.2334 matter to this observing th aspects and while passing earlier order Hon’ble High matter afresh in the light of

5. Learne submitted th Respondent period of one year, if his c

grant of 3rd MACP in terms of O al application. Tribunal vide order dated 16.01.2 plicant is eligible for MACP o it will be granted to him with . Being aggrieved, the 44/2019 and the same came to s Tribunal to decide afresh on m at the Tribunal has not at all has also not looked into Claus g the impugned order. However passed by the Tribunal as we h Court of Karnataka will not co h as directed. Hence the matter f the observations made by the H ed Counsel Shri S.K.Ravi a hat the order of withdrawal o No.1 on 05.12.2014 (Annexur e year. The applicant was not case was considered as refusa

OM dated 19.05.2009 . Hence 2019 allowed this OA declaring on the date of which he has h all consequences within one respondents had preferred be disposed of, remitting the merits after hearing the parties, taken into account the factual se-25 of the MACP Scheme r, it has been recorded that the ell as the order passed by the ome in the way for deciding the r is taken up for hearing afresh Hon’ble High Court. appearing for the applicant of promotion was issued by re A15) i.e., within the panel eligible for promotion for one al of promotion and the DPC

recommende MACP on 30 said OM was argued that applicant wa effect from 0 scale of Rs.4 11.03.2014 i MACP, whic grade. The 3 Grade Pay af was granted same post o successive g promotion to does not aris perspective i debarred for withdrawn p effect from 1 dated 08.04.2

ed the name of the applicant f 0.12.2016 in terms of OM dated s very much available before th Clause No.25 was not applicab as granted first ACP in the scale 09.08.1999 and 2nd MACP with 4800/- Grade Pay. The regul in the scale of Rs.4600/- Grad ch is against the fundamental ru 3rd MACP was granted on 30.12 fter completion of one year of de to the post of Research Assistan on stagnation. The so calle grade i.e., Rs.4800 – Rs.5400 o the scale of Rs.4600/- Grade p se. Respondent No.1 has not in respect of OM dated 19.05.2 r promotion for one year, the rior to the recommendation of 3 13.11.2016. Learned Counsel a 2017 (Annexure A27) and argu

for granting the benefit of 3rd d 19.05.2009. Clause-25 of the he DPC. The learned Counsel ble to the applicant since the e of Rs.4600/- Grade Pay with h effect from 01.09.2008 in the lar promotion was granted on de Pay i.e., lower to the 2nd ules for pay fixation of higher 2.2016 in the scale of Rs.4800/- ebarred period. The 3rd MACP nt while he was working in the ed promotion was not in the Grade pay. If there is no pay, then refusal to promotion applied his mind in a right 2009. The applicant was not promotion order was itself 3rd MACP on 30.12.2016 with also placed reliance on the OM ued that Clause 25 of the OM

dated 19.05.2 and not in i Principal Be H.C.Mittal v

6. Per co respondents d 19.05.2009 s refused by upgradation, employee ha however, not till he agree upgradation w to the refusal review DPC MACP) gran 3rd financial was not in co corrigendum

2009 has to be read along with isolation. Reliance was place ench, New Delhi in OA No.4

s. Ministry of Agriculture . ontra, learned Counsel Shri S.Pr drawing attention of the Bench ubmitted that if a regular promo the employee before becom no financial upgradation will as not been stagnated due to la t be eligible to be considered fo es to be considered for promot was also be deferred to the exte

l. It was argued that the app C found that the earlier financ nted to the applicant prior to the o upgradation under MACP Sche onformity with Clause-25 of OM dated 04.01.2017 was issued w

the said OM dated 08.04.2011 ed on the order of the CAT, 111/2011 dated 02.11.2012 – rakash Shetty representing the to Clause-25 of the OM dated otion has been offered but was ming entitled to a financial l be allowed and as such an ack of opportunities. It was, or further financial upgradation tion again, the next financial ent of period of debarment due plicant was not stagnated. The ial upgradations (1st ACP/2nd offer of promotion, the offer of eme extended to the applicant M dated 19.05.2009, hence the withdrawing the same in partial

modification dismissal of t

7. We ha Counsel for b

8. The c applicability 19.05.2009 a by th finan stagn been prom shall upgra secon perio

9. The af be read conj regular prom before becom shall be allow

of the order dated 30.12.201 the application. ave carefully considered the riv both sides and perused the mater controversy now revolves aro of Clause-25 of the MACP Sch and the same is quoted hereunder

“25. If a regular promotion he employee before becoming entit ncial upgradation shall be allowed a nated due to lack of opportunities. If, n allowed due to stagnation and the motion, it shall not be a ground to with , however, not be eligible to be adation till he agrees to be consid nd the next financial upgradation sha od of debarment due to the refusal.” foresaid Clause-25 though has th junctively for analysing the sam motion has been offered but w ming entitled to a financial upgra wed as such an employee has no

6. Accordingly, sought for val submissions of the learned rial on record. ound the interpretation and heme, Annexure-I to OM dated r for ready reference. n has been offered but was refused tled to a financial upgradation, no as such an employee has not been , however, financial upgradation has employees subsequently refuse the hdraw the financial upgradation He e considered for further financial ered for promotion again and the all also be deferred to the extent of hree parts, all the three has to me. The first part viz., if a was refused by the employee adtion, no financial upgradation ot been stagnated due to lack of d

opportunities granted befo Anthropologi the Grade Pa Hence there promotion. shall be allow opportunities arguments of this first par deserves to b

10. The se is allowed du promotion, it Indisputably

11. Howev however, not till he agrees financial upg debarment d

s. In the case on hand, 1st ACP ore offering regular promotio ist in the scale of Rs.4600/- Gr ay of Rs.4800/- which the applic e is no scope for any financ Further the said part contemp wed as such an employee has no

s. That question does not arise f the learned Counsel Mr.S.Prak rt of Clause-25, in our consider be negated. econd part of Clause-25 i.e., how ue to stagnation and the empl t shall not be a ground to withd this is not the controversy involv ver, the third part would be t be eligible to be considered fo s to be considered for promotion gradation shall also be deferred due to the refusal. The off

P and 2nd MACP were already on to the post of Assistant rade Pay, which was lower to cant was already granted with. cial upgradation by the said plates no financial upgradation ot been stagnated due to lack of in the present case. Hence the kash Shetty placing reliance on red opinion has no merit and wever, if financial upgradation loyees subsequently refuse the draw the financial upgradation. ved herein. relevant here i.e., he shall, or further financial upgradation n again and the second the next d to the extent of period of fer of promotion order dated

11.03.2014 before the p debarment du In this contex 17.12, of the “Wh offer and t aspec are a may desir on ev the p cases a nex highe prom in qu will refus

regul

In terms of t from the date decision was

was withdrawn vide office o panel period of one year. N ue to the refusal of promotion w xt, OM dated 08.04.2011 would said OM reads thus: hen a Government employee does not w red to him he may make a written re the request will be considered by the a cts into consideration. If the reason acceptable to the appointing authority be promoted. However, since it m rable to offer appointment to the perso very occasion on which a vacancy ari panel, no fresh offer of appointment o s for a period of one year from the dat xt vacancy arises whichever is later. er grade, such Government servant wi moted to the higher grade earlier irresp uestion are filled by selection or other not apply where adhoc promotions sed.” The order will be effective prosp lar promotions after the date of this O the said OM the debarment wou e of refusal of first promotion. taken by the DPC for granting

order dated 05.12.2014, much No order regarding period of was passed by the respondents. d have some relevancy. Clause want to accept a promotion which is equest that he may not be promoted appointing authority, taking relevant ns adduced for refusal of promotion y, the next person in the select list may not administratively possible or ons who initially refused promotion, ises, during the period of validity of on promotion shall be made in such te of refusal of first promotion or till On the eventual promotion to the ill lose seniority vis-a-vis his juniors pective of the fact whether the posts rwise. The above mentioned policy s against short term vacancies are pectively in all cases of refusal of M.” uld be for a period of one year It is significant to note that no 3rd MACP during the currency

of the promo refusal of firs submitted by members, tw years of ser specifically, considered fo Thus the elig accrue. Hen completing 3 13.11.2016.

12. These the benefit o corrigendum, withdrawal.

13. It is no on 22.05.200 10500; secon Rs.4800/- Gr

otion order dated 11.03.2014 o st promotion i.e., from 26.03.20 y the applicant stating about the wo projects works pending and h rvice. Though no refusal w as per 3rd part of Clause-25 , t or promotion again as per the re gibility to be considered for furth nce the applicant was eligible f 30 years of service as Researc issues having been considered b f 3rd MACP, the same was wron , which is cryptic as no rea ot in dispute that first ACP benef 00 in the scale of Rs.4600/- G nd MACP benefit was granted rade Pay; the promotion offered

of one year from the date of 14, the first representation was health condition of his family his short tenure of two and half was made in express words the applicant has agreed to be presentation dated 19.07.2016. her financial upgradation would for financial upgradation after ch Associate with effect from by the DPC and after extending ngly withdrawn by issuing the asons are assigned for such fit was granted to the applicant Grade Pay i.e., Rs.6500-200- on 17.05.2010 in the scale of to the applicant on 11.03.2014

Pay and pos 31.01.2017 o

14. In the an occasion MACP, as pe “5. MAC

by th finan stagn been prom shall upgra secon perio the p year anoth 30 ye accou Sche grant

ting at Port Blair. The applican on attaining the age of superannu case of H.C.Mittal supra, Princi to consider the introduction er OM dated 19.05.2009. It has b The relevant provisions of the DOP& CP Scheme, as per para25 of the Anne

“25. If a regular promotion he employee before becoming entit ncial upgradation shall be allowed a nated due to lack of opportunities. If, n allowed due to stagnation and the motion, it shall not be a ground to with , however, not be eligible to be adation till he agrees to be consid nd the next financial upgradation sha od of debarment due to the refusal.” period of debarment due to non-accept 2001, there would be a consequential her one year. Thus though under the ears of service on 20.6.2003, in this ca unt of debarment, this would be 20 eme was given effect from 1.9.2008, t of its benefit from the date.

nt has retired from service on uation. ipal Bench of this Tribunal had of three upgradations under been observed thus: &T OM dated 19.05.2009 about the ex.I is reproduced as here under: n has been offered but was refused tled to a financial upgradation, no as such an employee has not been , however, financial upgradation has employees subsequently refuse the hdraw the financial upgradation He e considered for further financial ered for promotion again and the all also be deferred to the extent of As per the applicant, even applying tance of the promotion by him in the l deferment of his 3rd due MACP by normal circumstances he completed ase by extending further one year on 0.6.2004. However, as the MACP the applicant would be entitled for

The 25, i woul

........ 8.1 A is co not b consi finan Even

He s upgra secon perio refus have to be rende due t w.e.f ........

9. are o Sche that prom on ac only to th be su

applicant has also tended to argue tha if an employee has been allowed th ld not be withdrawn due to subsequen ............................................................. As far as the interpretation of Para 25 oncerned, once an employee has refu become eligible for further financia idered for promotion again. The is ncial upgradation would arise only aft n at the cost of repetition the relevant e shall, however, not eligible to be adation till he agrees to be consid nd the next financial upgradation sha od of debarment due to the refusal. S sed the offer of promotion, as per th been eligible for next financial upgra e considered for promotion in 2008 ered that after a sheer extension of 1 to the first refusal in 2001, the applic

f. 1.9.2008 is not found acceptable. ..................................... To conclude, after a careful scrutiny of the view that the stipulation under eme would not be applicable in the p it is not found factually correct th motion in the year 2008 as a voluntary ccount of refusal of the promotion in for one year i.e. till 2001. In view o e Applicant from the date of entitlem ustainable in law.”

at as per the stipulations under Para he financial upgradation, the same nt refusal of promotion, if any. ........ 5 of the Annexure to the MACP OM used an offer of promotion, he does al upgradation till he agrees to be sue of deferment of the subsequent ter crossing the hurdle of eligibility. extracts are re-quoted. e considered for further financial ered for promotion again and the all also be deferred to the extent of Since the applicant had once in 2001 he provisions of Para 25, he would adation only in the event of agreeing

8. Thus, the interpretation being 1 year on account of the debarment cant became eligible for 3rd MACP of the entire gamut of the case, we r Para 25 annexed with the MACP present case. This is on the ground hat the Applicant had refused his y act. The debarment of promotion the year 2000 would have its effect of the above, denial of third MACP ment i.e., 01.09.2008 is not found to

15. Hence 25 annexed w refusal of pr year i.e., til submitted by promotion o debarment p denial of 3rd 13.11.2016 a

16. The O the responde the copy of th

(RAKE

sd.

, we are of the considered view with MACP Scheme, debarmen romotion in the year 2014 woul ll 26.03.2015, considering the y the applicant. However, in order on 05.12.2014, even on eriod would come to an end on d MACP to the applicant from after completing 30 years of servi OA is accordingly allowed. Req nts within a period of eight wee his order. No costs. ESH KUMAR GUPTA) MEMBER(A)

OA No.456/2017 that even considering Clause- nt of promotion on account of ld have been in effect for one e date of first representation n view of withdrawal of that ne year period if computed, n 04.12.2015. Accordingly, m the date of entitlement i.e., ice, is wholly untenable. quisite action shall be taken by eks from the date of receipt of (JUSTICE S.SUJATHA) MEMBER(J)

16 OA No.456/2017