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)

J U D G M E N T

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

Sreekala P.V., respondent Nos. 1, 2 and 3 respectively before us.

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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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