Kiran Kumar v. Union Of India

PER: HON'BLE SHRI M.NAGARAJAN, JUDICIAL MEMBER The applicant is a retired employee of Postal Department, having attained superannuation on 31.5.2014. He entered into services of the Postal Department as a Postman on 01.2.1980 and by then he was called as K.A.Parmar, but later he changed his name as K.A.Kapadiya as per Gazette notification vide Annexure A-4. His grievance in this OA is as to the revision of his date grating MACP from 01.9.2008 to 04.5.2011 through memo dated 08.5.2014 vide Annexure A1.

2. The Department of Posts had its own Scheme of Time Bound One Promotion (TBOP) and Biennial Cadre Review (BCR) for its employees. The TBOP was introduced with effect from 30.11.1983 vide circular dated 17.12.1983. Biennial Cadre Review was introduced with effect from 01.10.1991. The TBOP and BCR Schemes were available in the Department of Posts for higher scale on completion of 16 years and 26 years of service.

3. The aforesaid TBOP and BCR Schemes stood withdrawn with effect from 01.9.2008 in pursuance of the O.M. dated 18.9.2009 bearing No. 4-7/(MACPS)/2009-PCC issued by the Directorate General, Department of Posts, New Delhi.

4. The Government has considered the recommendation of the Sixth Pay Commission on MACPs and accepted the same with further modification to grant IIIrd financial upgradation under the revised scheme at the intervals of 10, 20 and 30 years of continuous regular service and the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) vide their O.M. No.35034/3/2008- Estt. (D) dated 19.5.2009 issued the order. The Scheme is known as Modified Assured Career Progression Scheme (MACPS) for the Central Government Civilian Employees. The MACPs has come into operation with effect from 01.9.2008 and the same is in supersession of the previous ACP Scheme and clarifications issued there under.

5. The service particulars of the applicant such as the date of entry into service, promotion to the cadre of Postal Assistant, the date of grant of TBOP, the date of grant of financial upgradation of IIIrd financial upgradation in the review DPC under the MACPs are as under: Cadre and date of entry into service Date of promotion to the cadre of Postal Assistant Date of grant of TBOP Result of the review DPC Postman 01.2.1980 06.4.1985 01.4.2003 The date of placement of IInd MACP was revised from 01.9.2008 to 19.2.2010

6. On the premises that the applicant had completed 30 years of service the applicant was given second financial upgradation and placed in the next higher grade under MACPs with effect from 01.9.2008 which came to be revised with effect from 19.2.2010 vide Annexure A/1. The promotion of the applicant from the cadre of Postman to Postal Assistant and placement under TBOP with effect from 01.04.2003 were respectively treated and adjusted against the Ist and IInd financial upgradations under MACPs. Consequently, the IInd financial upgradation granted to the applicant under MACP with effect from 01.09.2008 with grade pay of Rs.4,200/- by the memo dated 04.5.2011 (Annexure A/8) came to be revised with effect from 19.2.2010. Being aggrieved by the action on the part of the respondents in reviewing the said IInd financial upgradation and treating the promotion of the applicant to the cadre of Postal Assistant as Ist financial upgradation, the applicant has presented the instant OA with a prayer to quash the order bearing (i) Memo No. B2/15/MACPs 11/2009-10 dated 08.5.2014 ( Annexure A/1) (ii) the order bearing Memo No.Pen-II/KAK/5-14/GR-IV/410 dated 1.5.2014 respectively at Annexure A/1 and A/2 and for a direction to the respondent No.3 to decide MACP III with reference to the Rule and clarifications.

7. We have heard Shri S.C.John, learned counsel for the applicant and Ms.Prachi Upadhyay, learned counsel for the respondents. Perused the pleadings and the documents annexed thereto.

8. Ms.Prachi Upadhyay learned counsel for the respondents submitted that the issue involved in this O.A. has already been decided on 30.07.2015 by this Tribunal in O.A. No.413/2013. As such, she submitted that this O.A. may also be disposed of on the same lines. Shri S.C.John did not dispute the fact that the issue involved in this O.A. was already decided by this Tribunal on 30.07.2015 in O.A. No.413/2013.

9. While admitting that the issue was already decided as stated, Shri S.C.John, learned counsel for the applicant submitted that subsequent to the orders of the Tribunal dated 30.7.2015 in the said O.A.No.413/2013, the Honble High Court of Rajasthan has held that appointment to the post of Postal Assistant through LDCE is by way of direct recruitment. He submitted that the decision of Honble High Court of Rajasthan is against the orders passed by this Tribunal already decided.

10. According to Ms.Prachi Upadhyay the action on the part of the respondents, in treating the appointment of the applicant to the cadre of Postal Assistant and the grant of financial upgradation under the TBOP and MACP respectively as Ist and IInd financial upgradations is in accordance with the clarification at point No.3 of the memo dated 18.9.2010 issued by the Government of India, Ministry of Communication & IT, Department of Posts, New Delhi. She submitted that the said memo clarified the matter for eligibility of MACPs to a promoted official to Postal Assistant/ Sorting Assistant (PA/SA). It is clarified that in the case of lower grade official promoted to PA/SA cadre having got one promotion to PA/SA cadre before completion of 10 years of continuous service, it will be set off against first MACPs and on rendering 10 years of continuous service in the clerical grade/ scale or on completion of 20 years of service from the date of entry, they would become eligible for IInd MACPs whichever date is earlier. However, financial upgradation under the MACPs cannot be conferred from a date prior to 01.9.2008 as the Scheme came into force from 01.9.2008.

11. The specific stand of Ms.Prachi Upadhyay is that the appointment of the applicant to the cadre of Postman and Postal Assistant is by way of promotion. Under the MACPs, three financial upgradations are admissible after 10, 20 and 30 years of continuous regular service and for this purpose regular service by the applicant would be counted from the date he entered into service in the Department. It is her specific argument that the contention of the applicant that such service should be counted only from the date of his appointment as Postal Assistant for grant of IInd financial upgradation under MACPs is wrong. It is submitted by her that since the applicant was promoted as Postal Assistant after qualifying through LDCE, the TBOP granted to the applicant requires to be set off against Ist financial upgradation under the MACPs. Therefore, the placement in IInd financial upgradation under MACPs granted by the order dated 04.06.2011 vide Annexure A/8 is erroneous and hence, the same came to be revised vide the impugned order dated 08.5.2014 vide Annexure A/I. Consequently, the financial upgradations granted to the applicant under MACPs came to be reviewed as per impugned order dated 08.5.2014 vide Annexure A/1 on the ground that:

(i) Promotion from Postman to Postal Assistant with effect from 15.04.1985 in G.P. Rs.2400/- has been treated as MACP-I; and (1st promotion)

(ii) TBOP promotion / financial upgradation granted with effect from 01.4.2003 has been treated as MACP-II.

12. Shri S.C.John, learned counsel for the applicant vehemently argued that by the memo dated 04.5.2011 the applicant was already conferred with the benefit of IInd financial upgradation under MACPs with effect from 01.9.2008 and as such postponing the effective date as 19.2.2010 by way of conducting review DPC is totally illegal and arbitrary. He further argued that the impugned order revising the benefits already granted to the applicant is totally illegal, arbitrary and against the sprit of the MACPs instructions issued by the Government of India and, therefore, the same is liable to be set aside. To elaborate his submission he submitted that the appointment of the applicant to the post of Postal Assistant cannot be treated as promotion as his appointment from Postman to Postal Assistant was subject to the condition of fulfilling eligibility and after qualifying the competitive examination. Therefore, it cannot be said that he got promotion from Postman to Postal Assistant. The specific contention of Shri S.C.John is that the appointment of the applicant from the cadre of Postman to the cadre of Postal Assistant cannot be termed as promotion, because he was promoted as Postal Assistant after passing the competitive examination. Therefore, the stand of the respondents cannot be accepted, he argued. To buttress his submission, he placed reliance upon the following orders:

(i) The orders of the Jodhpur Bench of this Tribunal in the case of Bhanwar Lal Regar v. Union of India & Ors. in O.A.No.382/2011 decided on 22.5.2012

(ii) The orders passed by the Principal Bench of this Tribunal in O.A.No.3756/2011 in the case of Shakeel Ahmad Burney v. Union of India & Ors. decided on 21.12.2012.

(iii) The order dated 05.8.2014 in W.P.(C). No.4131/2014 of the Honble High Court of Delhi by which the order of the Tribunal dated 21.12.2012 in O.A. No.3756/2011 was confirmed.

(iv) The order dated 10.08.2015 in D.B. Civil Writ Petition No.11336/2012 Union of India & Ors. v. Bhanwar Lal Regar by which the order of the Jodhpur Bench of the Tribunal at Sl.No.(i) above was confirmed. Shri S.C.John argued that the case on hand being identical to that of the case decided by Jodhpur Bench and the Principal Bench of this Tribunal (supra), the present OA also requires to be allowed in terms of the same.

13 Per contra, Ms.Prachi Upadhyay argued that due to wrong notion by the orders at Annexure A/8, the applicant was granted IInd financial upgradation under MACPs. Therefore, the same was revised, which is in consonance with the policy and instructions of the MACPs. Since the applicant has already got two promotions, the placement in MACP II in G.P. Rs.4200/- from 01.9.2008 which was wrongly granted to him was withdrawn. He is eligible for IIIrd MACP on completion of 30 years of service from the date of appointment in the cadre of postman with effect from 19.2.2010.

14 Upon hearing the learned counsel for both the parties and on perusal of the pleadings and the materials available on record, the question that arises for our consideration is: whether appointment of an employee who got financial upgradation / promotion after passing departmental examination is to be treated as fresh appointment and entitled for benefit under the MACP Scheme or to be treated as promotion and not entitled for further financial upgradation under the MACP Scheme?

15 Shri S.C.John by placing reliance upon orders of Jodhpur Bench judgment in Bhanwar Lal Regar (supra) and the Principal Bench of this Tribunal in Shakeel Ahmad Burney (supra), which came to be confirmed by the High Court of Judicature for Rajasthan at Jodhpur (supra) and Honble High Court of Delhi (supra) argued that appointment of the applicant from the cadre of Postman to the cadre of Postal Assistant is to be treated as fresh appointment. We have carefully gone through the decision of the Jodhpur Bench of this Tribunal in Bhanwar Lal Regar (supra) and Shakeel Ahmad Burney (supra). The finding of the Jodhpur Bench of the Tribunal is at paragraph 19 and the same is as under: 19. In a similar manner, while being Postmen, the three applicants in these three OAs faced the Limited Departmental Competitive Examination (LDCE, in short) and qualified to become Postal Assistants. Their joining as Postal Assistants was not in the nature of promotion in their earlier existing service or cadre, but was a career advancement through a process of selection. Therefore, for the purpose of grant of TBOP/BCR financial upgradations earlier, and MACP financial upgradation now, the only dates which are relevant to be taken into account for the purpose of counting the periods of their stagnation is the period spent by the applicants as Postal Assistant. In that sense, the clarification issued by the Pay Commission Cell of the Department of Posts, Ministry of Communications & IT on 25.04.2011 through file No.4-7/MACPS/2009/-PCC, as cited in para 8 above, is correct. The only problem with that clarification is that it stopped at the point of clarifying that when the GDS first joined in a Group-D post, and was later declared as successful in the Postman examination, the regular service for the purpose of MACP would be deemed to commence from the date of his joining as a Postman in the main cadre on direct recruit basis. But it is obvious that the corollary would follow, and when the Postman appears at the LDCE, and gets selected to a new Cadre as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements cannot be called to be promotions within the definition of the word promotion, as is required for the grant of TBOP/ BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.

16. The above finding of the Jodhpur Bench of the Tribunal was a subject matter before the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.11336/2012. The operative portion of the same is as under: Having considered the argument advanced we do not find any merit with the same. Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. On the other hand, from perusal of the orders of appointment to the post of Postal Assistant/ Sorting Assistant, it is apparent that the respondent original applicants faced an examination, may that be a limited competitive examination, i.e. nothing but direct recruitment. Their joining as Postal Assistants was not at all in the nature of promotion, hence their services for the grant of benefits under modified assured career progression has to be counted only from the date they were appointed as Postal Assistants/Sorting Assistants. The services rendered by them on earlier post prior to their appointment as Postal Assistants/Sorting Assistants are absolutely inconsequential for the purpose of grant of modified assured career progression. At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant/Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion. The writ petitions, thus, are having no merit, hence dismissed. The orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in respective original applications stand affirmed.

17. The Principal Bench of this Tribunal in Shakeel Ahmad Burney (supra) held as under: 14. .. the corollary would follow, and when a Postman or a Class IV employee appears at the LDCE, and gets selected to a new higher Cadre and post as a Postal Assistant, then it is start of a new innings for him, and for the purpose of counting his stagnation, if any, the date of his joining as Postal Assistant alone would be relevant, and his previous career advancements on the basis of his own merit cannot be called to be promotions within the definition of the word promotion, as is required for the grant of TBOP/BCR benefit consideration, and for consideration for eligibility for financial upgradation on account of stagnation under the MACP Scheme.

15. It is, therefore, clear that the eligibility of the applicant for the grant of TBOP/BCR benefits earlier, and MACP benefit thereafter, and the period of his stagnation, has to be counted only from the date he was substantively appointed as a Postal Assistant.

18. The above finding of the Principal Bench of the Tribunal was a subject matter before the Honble High Court of Delhi in W.P. (C) No.4131/2014 Union of India & Ors. v. Shakeel Ahmad Burney. While dismissing the writ petition preferred by the Government against the order of the Principal Bench, the Honble High Court of Delhi has held : 8. There is no magic in the use of the expression "Promotion" or "Direct Recruitment"; whether, in fact, the mode of entry to the service is through direct recruitment or promotion would certainly be dependent on facts of each case and the structure of the Rules. If one analyzes Rule 3, it would be apparent that recruitment is through "a competitive examination which will be open" to both departmental candidates and outside candidates. During the course of submissions, the Union of India has emphasized that syllabus for departmental candidates was prescribed in 1964; even this fact nowhere indicates that a differential treatment is accorded to direct recruits who are drawn from the open market. The absence of any clearly stipulated and defined feeder post for promotion by way of seniority, or any other known method like seniority-cum-merit, selection etc., the mode prescribed in Rule 3 (a) (i.e., departmental candidates also having to W.P.(C) No. 4131/2014 Page 6 qualify in the competitive examination, along with outsiders) in this Court's opinion clinches the matter. To that effect, the CAT's decision that the entry of departmental candidates to the cadre of Postal Assistant is by way of direct recruitment is unexceptionable. We consequently affirm the findings of the CAT in the impugned order.

19. Ms.Prachi Upadhyay argued that no reliance can be placed either upon Bhanwar Lal Regar (supra) or on Shakeel Ahmad Burney (supra) in view of the fact that the Honble High Court of Delhi by its order dated 29.9.2014 in R.P.No.441/2014 & C.M.No.15847/2014 in the case of Union of India & Ors. v. Shakeel Ahmad Burney was pleased to set aside the order passed by the Principal Bench of the Tribunal and remanded the matter for fresh consideration. She pointed out that the Principal Bench of the Tribunal while passing the order in Shakeel Ahmad Burney (supra) placed reliance upon order of Jodhpur Bench of this Tribunal in Bhanwar Lal Regar (supra) and since the orders of the Principal Bench in Shakeel Ahmad Burney (supra) was set aside by the Honble High Court of Delhi in said R.P.No.441/2014 and C.M.No.15847/2014 and the matter was remanded back, no reliance can be placed upon either of the orders passed by the Jodhpur Bench and the Principal bench, since they were set aside.

20. We have gone through the orders of the Honble High Court of Delhi dated 29.9.2014 in R.P.No.441/2014 and C.M.No. 15847/2014. It reads as under: It is now brought to the notice of the Court that the Rule which prevailed at the time when the respondent appeared in the test and was finally promoted was, in fact, Indian Postal and Telegraph (Time Scale Clerk) Recruitment Rules, 1971. Rule 4 of these rules outlines the method of recruitment, the age limit and other qualifications  which are provided in column 4 to 12 of the Schedule (to the Rules). Column 4 of the said Rules clarifies that the post is a non selection post for which essential educational qualification is matriculation or equivalent. The method of recruitment is 50% by direct recruitment, and 50% by promotion through test. Concededly, the respondent/applicant was promoted in 1976. The UOIs case is that these rules were not brought to the notice of the CAT or to this Court, when the final judgment was made. Having regard to the Rules, the Court is, prima facie, of the opinion that the UOIs claim has some merit and requires consideration. In these circumstances, the judgment and order dated 05.08.2014 is hereby reviewed. W.P.(C) 4131/2014 We have today recalled the final judgment and order dismissing the writ petition. We have heard counsels finally, both in regard to the review petition as well as on the writ petition. We have indicated that the reason for recalling the judgment was that the Indian Posts and Telegraphs (Time Scale Clerks and Sorters) Rules, 1971 were not taken into consideration, since they were not brought to the notice of the CAT or this Court. Learned counsel for the respondent/applicant argues that the applicability of the 1971 Rules is in serious question, as the applicant was not, in fact, promoted to the post of Time Scale Clerk - the category to which the 1971 Rule applies. Having regard to the nature of allegations made, it would be more appropriate that the CAT considers the merits of the case i.e. the claim of the respondent/applicant for the 3rd MACP benefit, in the light of the new development relied upon by the UOI  as to the existence and applicability of 1971 Rules to the respondents case. Accordingly, we set aside the impugned order and remit the case back to the CAT for fresh reconsideration. The parties are granted liberty to file additional affidavit. It is clear that the orders of the Principal Bench of this Tribunal in O.A.No.3756/2011 in the case of Shakeel Ahmad Burney v. Union of India & Ors. decided on 21.12.2012 (supra) has been set aside by the Honble High Court of Delhi. Therefore, we are in agreement with the submission of Ms.Prachi Upadhyay.

21. We have also learnt that the very same question came up for consideration before the Jaipur Bench of this Tribunal in the case of Jagdish P. Sharma v. Union of India & Ors. in O.A.No.321/2011 and other connected OAs which was decided on 04.07.2013. The question that has been articulated by the Jodhpur Bench and the Principal Bench is identical to that of the question considered and answered by the Jaipur Bench of this Tribunal. Jaipur Bench of this Tribunal by following the judgment of the Honble Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. R.Santhakumar Velusamy & Ors. (Civil Appeal No.5286-87 of 2005) reported in 2011 (3) SLJ 353 had taken a contrary view. We have carefully gone through the judgment of the Jaipur Bench of the Tribunal. The relevant portion of the same is as under: The contention of the applicant is that his appointment from Group D to Postman, Postman to Postal Assistant cannot be treated as promotion because he was appointed after passing the departmental competitive examination. We are afraid that this contention of the applicant can be accepted because limited departmental competitive examination is an internal policy for promotion of departmental candidate in accordance with the respective recruitment rules. Perusal of the relevant service rule makes it clear that the applicant was not appointed against the quota of direct recruitment. He was allowed to appear in the departmental competitive examination among the persons who are already in service and they were given benefit of promotion under separate quota only on the ground that if they passed the departmental examination. By no stretch of imagination, it can be held that passing the limited departmental examination for promotion is to be considered a fresh appointment on the higher post and also against quota of direct recruitment, because they are a class within a particular class, who got promotion on passing the departmental examination under relevant quota. Their appointment on passing the departmental examination is a promotion. Our view finds support from the judgment of the Honble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs. R. Santhakumar Velusamy & Ors. (supra) where their Lordships of the Honble Supreme Court in para 21 has held as under: - 21. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both that is advancement to a higher position and advancement to a higher pay scale  are described by the common term promotion, does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.

(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.

(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.

(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though terms as upgradation.

(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.

(vi) Where there is a restructuring of some cadres resulting a creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.

12. Under the MACP Scheme, which was introduced with effect from 01.09.2008, a central Government employee is entitled for three financial upgradations on completion of 10, 20 and 30 years of service, which the applicant has already got. Therefore, the benefit, which was granted to the applicant vide memo dated 10th June, 2010 with effect from 01st September, 2008 has rightly been withdrawn by impugned order dated 01st of July, 2011.

13. With regard to the order passed by the C.A.T., Jodhpur Bench in the case of Bhanwar Lal Regar vs. Union of India & Ors. (supra) relied upon by the applicant is concerned, the same has already been stayed by the Honble Rajasthan High Court at Jodhpur, therefore, the applicant cannot get any benefit.

14. In the aforementioned background, we are of the considered view that the applicants fail and, accordingly, all the Original Applications are dismissed being devoid of merit. No order as to costs.

22. We are in full concurrence with the views and findings of the Jaipur Bench of the Tribunal in Jagdish P. Sharma v. Union of India & Ors. in O.A.No.321/2011 (supra). The order of Jaipur Bench of the Tribunal (supra) has not been so far reversed by any High Court. In view of the fact that we have concurred with the views and findings of the Jaipur Bench of the Tribunal (supra), we do not find any reason to interfere with the impugned orders.

23. Shri S.C.John, learned counsel for the applicant specifically contended that selection to the post of Postal Assistant by appearing in the relevant departmental examination (LDCE) cannot be called to be a promotion. Therefore, the respondents cannot treat the financial upgradation granted under the TBOP as IInd financial upgradation under MACPs. He further reiterated that the applicant was appointed to the post of Postal Assistant on his declaring successful in the LDCE, therefore, his appointment to the post of Postal Assistant cannot be called as a promotion, as it was not in the course of and prescribed avenues of promotion or by way of natural progression through seniority. Any advancement in career, which is based on process of selection especially undertaken for that purpose and is over and above the prescribed channels or avenue of promotion through only seniority or seniority-cum-merit criteria cannot be called as a promotion, Ms.Prachi Upadhyay contended. This argument cannot be accepted in view of the dictum of the Honble Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. R.Santhakumar Velusamy & Ors. (Civil Appeal No.5286-87 of 2005) reported in 2011 (3) SLJ 353 (supra). It is already stated that we are in full concurrence with the views and findings of the Jaipur Bench in Jagdish P. Sharma v. Union of India & Ors. (supra). Jaipur Bench has held that appointment on passing the departmental examination i.e. LDCE is a promotion. This view is supported from the following passage of the Honble Supreme Court in R.Santhakumar Velusamy (supra). The Honble Supreme Court at paragraph No.21(iii) held as: Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale. Again at paragraph 21(iv) it is held as under: But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion.

24. Admittedly the applicant while working in the cadre of Postman participated in the LDCE and through selection he was appointed to the post of Postal Assistant. The fact that he was appointed to the post of Postal Assistant is by way of selection is not in dispute. Therefore, we are not prepared to accept the contention of Shri S.C.John that selection to the post of Postal Assistant by appearing at the relevant departmental examination cannot be called to be a promotion. Consequently, we affirm our finding that selection to the post of Postal Assistant by appearing at the LDCE is by way of promotion.

25. We may further observe that the method of recruitment to the post of Postal Assistant/ Sorting Assistant is 50% by direct recruitment and 50% by promotion through LDCE. The very fact that certain percentage of posts is earmarked exclusively for the departmental candidates itself implies an element of promotion. In the 50% of the posts exclusively earmarked for departmental candidates, open market candidate is not entitled to participate and compete. In fact competition in respect of the said 50% of the posts is narrowed down. Such narrowing down competition itself involves an element of uplifting the departmental candidates to get appointment to a higher grade post. On this count also we reject the contention of Shri S.C.John that selection to the post of Postal Assistant cannot be held to be a promotion. Therefore, we again reiterate the views and findings of the Jaipur Bench of the Tribunal and consequently, we do not find any reason to interfere with the review of the order bearing memo No.B2/15/MACP II/2009-10 dated 04.5.2011 by which the applicant was granted IInd financial upgradation under MACPs.

26. Yet another submission of Shri S.C.John was that directly recruited Postal Assistants who got one financial upgradation under TBOP Scheme before 01.09.2008 will become eligible for IInd MACPs on completion of 20 years continuous service from the date of entry into government service or 10 years in TBOP grade pay or scale or combination of both whichever is earlier. However, financial upgradation under MACPs cannot be conferred from the date prior to 01.09.2008. They will also become eligible for IIIrd MACPs on completion of 30 years service or after rendering 10 years of service in IInd MACPs whichever is earlier, whereas the same is denied to the applicant on the ground that he is promoted to the cadre of Postal Assistant. This argument cannot be accepted for the reason that equality can be claimed only amongst equals. A direct recruit was selected and appointed to the post of Sorting Assistant/ Postal Assistant through a tough competition which is wide open whereas the selection of the applicant through LDCE through a competition which is exclusively meant for departmental candidates. Therefore, the promotees and direct recruitees cannot be said equals for the purpose of grant of the financial upgradation under MACPs.

27. We have carefully gone through the judgment of the Honble High Court of Rajasthan at Jodhpur dated 10.08.2015 in D.B. Civil Writ Petition No.11336/2012 Union of India & Ors. v. Bhanwar Lal Regar upon which Shri S.C.John placed strong reliance. At paragraph 16 above, we have already extracted the operative portion of the judgment of the Honble High Court of Rajasthan. The reason assigned by the Honble High Court for its decision is as under: Learned counsel appearing on behalf of the appellant on asking again and again failed to point out any provision for promotion to the post of Postman/ Sorting Assistant. At the end of the judgment the very same reason is reiterated which is as under: At the cost of repetition it shall be appropriate to mention that the petitioners failed to point out any provision for appointment to the post of Postal Assistant/Sorting Assistant by way of promotion and to point out any order of appointment making appointment of the original applicants on the post concerned by way of promotion. At this juncture, we may point out that the Honble High Court of Delhi in W.P.(C). No.4131/2014 originally declined to interfere with the orders of the Principal Bench of the Tribunal dated 21.12.2012 in O.A.No.3756/2011, but subsequently, on the review petition filed by the respondents in R.P.No.441/2014 by referring to the fact that the respondents have pointed out the rule the Honble High Court of Delhi held as under: Having regard to the Rules, the Court is, prima facie, of the opinion that the UOIs claim has some merit and requires consideration. In these circumstances, the judgment and order dated 05.08.2014 is hereby reviewed. The Honble High Court of Delhi further ordered as under: Having regard to the nature of allegations made, it would be more appropriate that the CAT considers the merits of the case i.e. the claim of the respondent/applicant for the 3rd MACP benefit, in the light of the new development relied upon by the UOI  as to the existence and applicability of 1971 Rules to the respondents case. Accordingly, we set aside the impugned order and remit the case back to the CAT for fresh reconsideration. The parties are granted liberty to file additional affidavit.

28. The order of the Delhi High Court dated 29.9.2014 in R.P.No.441/2014 and C.M.No. 15847/2014 makes it clear that method of recruitment to the post of Sorting Assistant is governed by the Rule called Indian Postal and Telegraph (Time Scale Clerk) Recruitment Rules, 1971. But, somehow neither the said Rules nor the decision of the Honble Delhi High Court in the said R.P. No.441/2014 and C.M. No.15847/2014 was not brought to the notice of the Honble High Court of Rajasthan. In our opinion, had it been brought to the notice of the Honble High Court of Rajasthan, its decision may be otherwise. Therefore, in view of the fact that the Honble High Court of Delhi was pleased to review its order in W.P.(C) No.4131/2014 by its order dated 29.9.2014 in R.P.No.441/2014 and C.M.No.15847/2014 by referring to the said Recruitment Rules, 1971, we find it difficult to grant the relief sought by the applicant by placing reliance upon the judgment of the Honble High Court of Rajasthan at Jodhpur in D.B. Civil Writ Petition No.11336/2012.

29. The other contention of Shri S.C.John which drew our attention, whether the difference of excess amount paid to the applicant consequent upon the review of the IInd financial upgradation granted under the order/memo dated 04.5.2011 (Annexure A/8) is recoverable from him or not?

30. The question whether the amount paid to the government servant in excess of their entitlement can be recovered at a subsequent stage on the ground that they are not entitled to such excess payment, came up for consideration before the Honble Supreme Court time and again. Recently the Honble Supreme Court in the case of State of Punjab v/s. Rafiq Masih (White Washer) etc decided on 18th December, 2014 pointed out the circumstances under which Courts shall not direct Government to make recovery. The relevant portion of the judgment reads as under:- 12 . It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover.

31. By applying the above principles to the facts and circumstances of the case on hand, we find that the applicant is a Group C employee and that the error was detected at a later stage. Hence, we are of the opinion that no amount is recoverable from the applicant consequent upon the cancellation of the order dated 04.5.2011 (Annexure A/8) by which he was granted IInd financial upgradation under MACPs.

32. For the foregoing, the OA is dismissed by holding that no amount can be recovered from the applicant consequent upon the cancellation/ review of the order dated 04.5.2011 vide Annexure A/8 by which he was granted IInd financial upgradation under MACPs.

33. There shall be no order as to costs. (Kailash Nath Shrivastava) (M.Nagarajan) Administrative Member Judicial Member