Central Administrative Tribunal - Delhi
Jasmer Singh vs The Director on 30 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.3256/2011
With
O.A. No.2747/2011
Order reserved on 19.03.2012
Order pronounced on 30.04.2012
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
1. Jasmer Singh
s/o Shri Umed Singh
363, 3rd Floor, Rishi Nagar, Rani Bagh,
Delhi-110034. -Applicant
Versus
1. The Director
Central Bureau of Investigation (CBI)
Block No. 3, CGO Complex,
Lodhi Road, New Delhi-110003.
2. The Secretary,
Ministry of Personnel PG & Pensions
Dept. of Personnel & Training, North Block,
New Delhi-110001.
3. The Director General of Police
Rajasthan, Police Head Quarters, Jaipur
Rajasthan. -Respondents
OA NO.2747/2011
Girbar Singh
House No.48-C, CBI Colony
Vasant Vihar, New Delhi
Jagbir Singh
22-7, Sector 4,
Pushp Vihar, MB Road,
New Delhi
Phool Singh
C/o 48-C, CBI Colony,
Vasant Vihar, New Delhi
Rameshwar Sharma
House No.53-C, CBI Colony,
Vasant Vihar, New Delhi.
Behari Lal
House No.52-A, CBI Colony,
Vasant Vihar, New Delhi
6. Ved Singh
144-D, Sector 4, Pushp Vihar,
M.B.Road, New Delhi.
7. Vinod Kumar
House No.75, Sector 12
R.K.Puram, New Delhi.
Durga Singh
House No.46J, CBI Colony,
Vasant Vihar, N.Delhi.
Jagbir Singh
C/o CBI, AC-II Zone 8th floor.
Lok Nayak Bhawan, New Delhi.
10. Balvir Singh,
C/o CBI Office, Panama Chowk
Jammu
11. Nagendra Singh Juyal
391/92 III Sector 3, Vaishali, Ghaziabad
12. T.N.Tripathi
738 Sector 3, Pushp Vihar, M.B.Rd.
N.Delhi. -Applicants
Vs.
Union of India through
The Director
Central Bureau of Investigation (CBI)
Block No.3, CGO Complex, Lodi Rd.
New Delhi 110 003.
The Secretary,
Ministry of Personnel PG & Pensions
Dept. of Personnel & Trg. North Block,
New Delhi 110 001.
The Chief Secretary,
To the Govt. of Rejasthan, Sachivalya
Jaipur (Rajasthan)
The Chief Secretary
To the Govt. of Haryana, Sachivalya
Chandigarh.
The Chief Secretary
to the Govt. of Uttar Pradesh,
Sachivalya, Lucknow (Uttar Pradesh) . Respondents.
(By Advocate: Shri Deepak Verma, for the applicants)
Shri S.M. Arif and Shri B. Banerjee, for
Respondents)
O R D E R
Mr. Sudhir Kumar, Member (A) These two cases cover similar set of facts, came to be heard together, and are, therefore, being disposed off by a common order.
OA-3256/2011
2. The applicant in this case was earlier an employee of the State Government of Rajasthan. He had joined service in the State of Rajasthan as a Constable in the Rajasthan State Police (GRP) on 11.06.1993. Later, he came on deputation in public interest to the Central Bureau of Investigation (CBI, in short) w.e.f. 19.06.2011 in the same and equivalent post of Constable, carrying the same pay/grade Rs. 3050-4590 (pre-revised), in which he was placed in the State Government of Rajasthan also.
3. Subsequently, the applicant requested for his deputation to CBI to be converted into permanent absorption, and got absorbed in CBI in the rank of Constable on 17.04.2006, in public interest, through Annexure A-7. The applicant had, thus, completed nearly 5 years of service on deputation also, before his services came to be absorbed in the CBI on 17.04.2006.
4. When the Govt. of India introduced the Assured Career Progression Scheme (ACP Scheme, in short) w.e.f. 9.8.1999, as a welfare measure, to grant two financial upgradations to mitigate the hardships faced by its employees, stagnating in their posts & pay scales for a long time without any promotions on a substantive basis for 12/24 years, the case of the applicant was considered for grant of the first financial upgradation admissible after 12 years of stagnation, and the first financial upgradation was granted to the applicant w.e.f. 11.06. 2002 by an order dated 31.12.2008, after taking into account and counting the past services of the applicant in the State Police w.e.f. 11.06.1993 onwards also for the grant of such ACP benefit.
5. In the meanwhile, the State Government of Rajasthan had also introduced a similar ACP Scheme of its own, providing for three financial upgradations being provided to its State Government employees, after 9 years,18 years and 27 years of service with stagnation without any promotions, through their order dated 17.02.1998 effective from 01.09.1996, a date on which the applicant was still in service with the State Government of Rajasthan.
6. Following the case of the applicant, some other similarly situated Constables, who had also come on deputation from the respective State Police Departments to the CBI, and had later got absorbed, filed an OA No.2503/2010 before this Principal Bench of the Tribunal itself, which was disposed of through order dated 18.02.2011 (Annexure A-2), directing the respondents to review the cases of those applicants also, who are similarly situated, for considering grant of ACP benefits to them at par with the applicant herein.
7. However, the respondents thereafter passed an order dated 08.04.2011 (page-15 of the OA), and instead of granting similar financial upgradation to Shri Phool Singh & Others, who were the applicants in OA No.2503/2010, they went ahead to review the case of the present applicant himself and the Respondent No.2 DOP&T, opined as follows:-
Subject: OA No.2503/2010, filed by Shri Phool Singh and others Vs. Union of India and others in the matter of grant of financial upgradation under ACP/MACPS CBI may please refer to their ID No. DP/Pers.3/2011/734/A-18011/5/2010 dated 11.03.2011 on the above noted subject.
2. The matter has been considered in this Department in consultation with Est. (D) Division who has stated that the service of Shri Jasmer Singh would be counted as regular for the purpose of ACP/MACPS only from the date of his absorption in CBI on permanent basis w.e.f. 17.4.2006. Hence his pay under MACPS is to be fixed accordingly. He is therefore not entitled for notional fixation of pay on the basis of his financial upgradations under ACPS in the State Govt. of Rajasthan.
8. This was followed by an office order dated 16.06.2011 (page-16 of the OA), re-fixing his pay by granting him fixation of pay on notional basis w.e.f. 19.06.2001 to 16.04.2006, the period of his being on deputation prior to the date on which he stood permanently absorbed in the CBI, as per Para-10 of the Govt. of Indias decision under FR 22. It was, however, ordered that the pay fixation shall have effect only from 17.04.2006, the date of his permanent absorption in CBI, and that such notional fixation of his salary during the period of his deputation did not involve any recovery of over payment and payment of arrears of pay etc. whatsoever.
9. Since Phool Singh and others, who had sought parity with the present applicant were denied such parity, it had been stated in that order that they have further challenged the said order in another OA No. 2747/2011, which is pending adjudication (which is the second case clubbed in this common order).
10. The applicant herein is aggrieved that while his service rendered in the State Police in the equivalent rank is duly taken into account for determining his seniority, respondents were at fault in denying him the benefit of financial upgradation after taking into account the period of his service under the State Government for the purpose of grant of such financial upgradation to him, though they had done so initially, before the earlier orders of the respondents were modified by a subsequent order.
11. The applicant has assailed the Modified Assured Career Progression Scheme (MACP Scheme, in short), which has since been introduced by the respondents w.e.f. 1.9.2008, through OM dated 19.05.2009, and he is, in particular, aggrieved by Paragraphs 9,10 & 11 of that MACP Scheme Circular, which has stated in para-10 that the past service rendered by a Government employee in a State Government/Statutory Body/Autonomous Body/Public Sector Organization, before appointment in the Central Government, shall not be counted towards regular service under the Union of India. The applicant has assailed that the action of the respondents is in violation of Articles 14,16 & 39(d) of the Constitution of India, and has submitted that the MACP Scheme being a welfare Scheme must be construed harmoniously, and the service spent in a same and equivalent post in a State Government, as well as the period of service spent on deputation in the Central Government, prior to absorption, should be counted as Continuous Regular Service, as the same is neither ad hoc, nor stop-gap or fortuitous. He has prayed that the conflicting points in the two Schemes need to be set aside/suitably amended, in order to achieve the objective of the Scheme. He has submitted that since the previous service of the applicant in the State Government qualifies as service for the purpose of CCS (Pension) Rules, 1972, it should also qualify for all other concomitant benefits, and the same cannot be denied to him.
12. The applicant has also cited the case of K. Madhvan Vs. Union of India: (1987) 4 SCC 566 to state that deputation has to be regarded as a transfer from one Government Department to another, and it will be against the rules of service jurisprudence, if the period of service in a post before his such transfer on deputation is not taken into consideration in computing his seniority in the transferred post. The applicant has further submitted that it would be prudent and logical to give the benefits of Central Governments ACP/MACP Schemes to the applicant, and other similarly placed persons, who were drawn from different States, with effect from the date of their initial appointment in the same/equivalent grade in their respective State Police Departments. It was submitted that the concept of regular service is well defined in service jurisprudence, and if a particular period of service is treated as regular for the purpose of grant of seniority or for his pension, it cannot become irregular for the purpose of grant of ACP Scheme financial upgradation, or MACP Scheme financial upgradation, and that the withdrawal of the first ACP benefit given to the applicant after taking into account the nine years of his service in the State of Rajasthan also is a clear violation of the principles of service jurisprudence, and in the result the applicant had prayed for the following reliefs:-
(a) to quash and set aside Orders dated 16.8.2011, 16.6.2011, 6.1.2010 and 8.4.2011 (impugned as Annexure AI colly).
(b) direct respondents to restore the Ist financial upgradation given to applicant after 9 years of service w.e.f. 11.6.2002 under the Rajasthan State ACP/Scheme as applicable to him till he was absorbed in CBI on 17.4.2006.
OR In the alternative re-fix pay of the applicant giving benefits of Central Govt. ACP/MACPS from the date of his appointment as Constable in his parent cadre (Rajasthan State Govt./Police.) treating the same as continuous regular service by construing point 10 (Annexure-I) to the O.M. No. 35034/3/2008-Estt. (D) dated 19.5.2009 in a harmonious manner and/or quash & set aside/modify the same as the Honble Tribunal may deem fit & necessary to achieve the aim & object of the Scheme.
(c ) Pay all consequential benefits on account of the above.
(d) any other or further orders the Honble Tribunal may deem fit and necessary in the interest of justice along with cost.
13. In their reply written statement, the respondents stoutly defended the actions of the respondents, and took shelter behind the clarificatory DOP&T OM dated 10.02.2000 issued in regard to the earlier ACP Scheme itself, in which, in reply to the points of doubt in regard to the past service rendered in an Autonomous Body/Statutory Body/State Government prior to appointment in Central Government as a direct recruit, at Serial Nos. 4,5, 6 & 43, the point of doubt and clarifications were stated as follows:-
S. No. Point of doubt Clarification 4.
In a case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise.
The benefits under ACPS are limited to higher pay scale and do not confer designation, duties and responsibilities of the higher post. Hence, the basic criterion to allow the higher pay scale under ACPS should be whether a person is working in the same pay scale for the prescribed period of 12/24 years. Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale. In other words, past promotion as well as past regular service in the same pay scale, even if it was on different posts for which appointment was made by different methods like direct recruitment, absorption (transfer)/ deputation, or at different places should be taken into account for computing the prescribed period of service for the purpose of ACPS. Also, in case of absorption (transfer)/deputation in the aforesaid situations, promotions earned in the previous/present organisations, together with the past regular service shall also count for the purpose of ACPS.. However, if the appointment is made to higher pay-scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS.
Needless to say, in cases of transfer on administrative ground, involving only change of station within the same department, the service rendered in the same grade at two stations may count for ACPS, as such transfers are within the same organisation, ordered generally for administrative/personal considerations and the service rendered in the earlier station counts as eligibility service for promotion.
5. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit?
6. An employee appointed initially on deputation to a post gets absorbed subsequently, whether absorption may be termed as promotion or direct recruitment. What will be the case if an employee on deputation holds a post in the same pay-scale as that of the post held by him in the present cadre? Also, what will be the situation if he was holding a post in the parent cadre carrying a lower pay-scale?
Xxxxxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxx
43. Whether service rendered in an autonomous body/statutory body/State Government prior to appointment in Central Government as a direct recruit prior to appointment in the Central Government will be counted while computing regular service for the purpose of grant of financial upgradations under the ACP Scheme. ACP Scheme is applicable to Central Government Civilian employees and for the purpose of financial upgradation under the ACP Scheme, only the regular service rendered after regular appointment in a Central Government civilian post is to be counted. Therefore, service rendered in an autonomous body/statutory body/State Government is not to be counted for the purpose. Correspondingly, promotions earned in these bodies prior to appointment in the Central Government are also to be ignored. The clarification in reply to point of doubt no. 4 to 6 in DOP&T O.M. dated 10.2.2000 providing for counting of past service in another organization in the same grade is only in relation to past service in a civilian post held in the Central Government.
14. The Respondents also cited the Clarification given on point of doubt No.5 of the Annexure to the MACP Scheme issued on 09.09.2010, in respect of which the Establishment (D) Section of the DOP&T had issued the following clarifications on 25.07.2011:-
Reference notes at pre-page.
2. Clarification given on point of doubt no. 5 of Annexure to the MACPS dated 09.09.2010 provides that where a person is appointed to an ex-cadre post in higher scale initially on deputation followed by absorption, while the service rendered in the earlier post, which was in a lower scale cannot be counted, there is no objection to the period spent initially on deputation in the ex-cadre post prior to absorption being counted towards regular service for the purposes of grant of financial upgradation under MACPS, as it is in the same pay band/grade pay of the post.
3. This clarification is applicable in the cases of deputation from one department to another Department under the Central Governments only. Hence, the personnel who have/had been joined ex-cadre post under Central Government on deputation from various State Governments would not be benefited under this clarification. As such, the continuous regular service for the purpose of MACPS would only be counted from the date of their absorption.
4. With the above remarks, we may return the file to the AVD Section for further necessary action.
15. Respondents have also filed a copy of the earlier clarification dated 07.05.2010, issued specifically in respect of grant of financial upgradation under MACP Scheme to incumbents joining CBI on deputation from various State Police Departments by the AVD-II Section of Department of Personnel & Training, stating as follows:-
Subject:- Grant of financial upgradation under MACP Scheme to incumbents joining CBI on deputation from States Police reg CBI may please refer to their ID No. DP/Pers.III/2009/112/A-23022/9/2009 dated 12.1.2010, n the subject mentioned above.
The proposal of the CBI regarding grant of financial upgradation under MACP Scheme to incumbents joining CBI on deputation from States Police was taken up with the Estt.(D) Section/DOPT. They have stated that this Scheme is viewed as a safety net to provide relief in cases of acute stagnation. The benefits of the Scheme is applicable only to Central Govt. civilian employees and not to employees of State Govt., PSU, Autonomous bodies etc. Therefore, it is not possible to accede to the said proposal of the CBI.
16. The respondents also relied upon the willingness given by the applicant for his absorption in the CBI in accordance with the DOP&T letter dated 29.05.1980 with regard to fixation of seniority, and the declaration given by him was filed as Annexure R-6, by which the applicant herein had agreed that the lien held by him on the post of Constable/GD in his parent department in the office of DG Rajasthan may be terminated from the date of his confirmation in the CBI.
17. The respondents further submitted in reply to para 4.6 of the OA that while the entire previous service of the applicant and the other similarly placed absorbees would be treated as qualifying service for the purpose of pension/other benefits, as per instructions/guidelines of the Government of India on the subject matter in implementation of the ACP Scheme/MACP Scheme, the Respondent No.1 is merely following the instructions/guidelines of the Union of India. In reply to Para 4.16 of the OA, the respondents stoutly defended the paragraphs 9 to 11 of the MACP Scheme OM dated 19.05.2009, and clarified that the safety net benefit against stagnation introduced by the Central Government is only for the Central Government Civilian Employees, and cannot be extended to the employees of the State Govt./Statutory Body/Autonomous Body/Public Sector Organizations during the period in which they were in service with those Organizations. It was further submitted that the Cadre and lien of a deputationist is changed only after his permanent absorption in the borrowing department, and during the period of their deputation prior to being absorbed, the persons concerned continued to hold lien with and belong to their respective parent cadres. Since seniority and qualifying service for pension are being dealt with under a separate set of rules, not in the nature of a safety net/benevolent Scheme for countering the problem of stagnation (through the ACP Scheme and MACP Scheme), it was submitted by the respondents that the period of service under the State Government was personal to the applicant, and it cannot be counted for the purpose of pay fixation under ACP/MACP Schemes of the Central Government.
18. It was also submitted that no recovery of over paid pay and allowances was being made, and hence there was no requirement of the issuance of a show cause notice to the applicant, as on the discovery of discrepancies, the pay of a Government servant can be re-fixed suo-moto. In the result, it was prayed that the OA is not maintainable, and the same is liable to be rejected with exemplary costs.
OA-2747/2011
19. In this OA also, the cases of the 12 applicants are exactly parallel to the case of the applicant in OA No.3256/2011. The applicants of this case also were holding posts of Constables in various different State Police Forces and had come on deputation to the CBI in public interest, in the same and equivalent post of Constables, carrying the same pay/grade Rs.3050-4590. They had prayed for being allowed to file the application jointly, which prayer was allowed. These 12 applicants had come before this Tribunal earlier also, in OA No. 2503/2010 with MA No.406/2011, in which orders were passed on 18.02.201, on consensual basis, with a direction to the respondents to review the cases of the applicants in the light of the order dated 31.12.2008 passed in the case of Jasmer Singh, the applicant of OA No.256/2011, on the ground that these applicants were also stated to be similarly placed as Jasmer Singh. It was further ordered that the decision taken in the matter may be communicated to the applicants of that OA through a reasoned and speaking order on the subject, to be issued within a period of six weeks from the date of receipt of a copy of that order. Thereafter, the respondent authorities had passed the order dated 08.04.2011 stating as follows:-
Subject: OA No. 2503/2010, filed by Shri Phool Singh and others Vs. Union of India and others in the matter of grant of financial upgradation under ACP/MACPS.
CBI may please refer to their ID No. DP / Pers. 3/2011/734/A-18011/5/2010 dated 11.03.2011 on the above noted subject.
2. The matter has been considered in this Department in consultation with Estt. (D) Division who has stated that the service of Shri Jasmer Singh would be counted as regular for the purpose of ACP/MACPS only from the date of his absorption in CBI on permanent basis w.e.f. 17.4.2006. Hence his pay under MACPS is to be fixed accordingly. He is therefore not entitled for notional fixation of pay on the basis of his financial upgradations under ACPS in the State Govt. of Rajasthan.
20. It appears that the cases of all the 12 applicants stand almost on the same footing. Applicant No.1 was appointed as a Constable in a State Police (State not specified anywhere in the pleadings) on 23.6.1977. Applicant No.2 Jagbir Singh was appointed on 06.12.1971 in Haryana Police. Applicant No.3 Phool Singh was appointed on 11.04.1979 in Rajasthan Police. Applicant No.4 Rameshwar Sharma was appointed on 15.07.1978 in U.P. Police. Applicant No.5 Behari Lal was appointed on 17.01.1978 in Kolkata Police. Applicant No.6 Ved Singh was appointed on 29.10.1974 in Haryana Police. Applicant No.7 Vinod Kumar was appointed on 11.07.1978 in Punjab Police. Applicant No.8 Durga Singh was appointed in a State Police (State not specified in the pleadings). Applicant No.9 Jagbir Singh was appointed on 15.11.1989 in Arunachal Pradesh Police. Applicant No.10 Balbir Singh was appointed on 30.04.1988 in Arunachal Police. Applicant No.11 Nagender Sharma Juyal, was appointed on 01.09.1988 in U.P. Police. Applicant No.12 T.N. Tripathi, was appointed on 27.01.1989 in Arunachal Pradesh Police. The applicants of this case had tried to take shelter behind the clarification on Point of doubt No.5, on MACP Scheme, on which the clarification was issued through OM No. 35034/3/2008-Estt. (D) dated 09.09.2010 as follows:-
S. No. Point of doubt Clarification
5. In case where a person is appointed to an ex cadre post in higher scale on deputation followed by absorption, whether the period spent on deputation period would be counted as continuous service in the grade or not for the purpose of MACPS. (i) Where a person is appointed on direct recruitment/deputation basis from another post in the same grade, then past regular service as well as past promotions/ACP, in the earlier post, will be counted for computing post, will be counted for computing regular service for the purpose of MACPS in the new hierarchy.
(ii) However, where a person is appointed to an ex cadre post in higher scale initially on deputation followed by absorption, while the service rendered in the earlier post, which was in a lower scale cannot be counted, there is no objection to the period spent initially on deputation in the ex cadre post prior to absorption being counted towards regular service for the purposes of grant of financial upgradation under MACPS, as it is in the same Pay Band/Grade Pay of the post.
21. However, they did not mention that this clarification deals with deputation on an ex-cadre post in higher scale within the Govt. of India, and that this clarification is not applicable to the deputation of the employees of other State Governments with the Govt. of India. They have also produced a copy of the Government of Rajasthan Order No. F. 16(2)FD(Rules)/98 dated 17.02.1998, through which benefits similar to the ACP benefits had been sanctioned by the Government of Rajasthan, for providing relief against stagnation by grant of Selection Grades to employees in Class-IV, Ministerial and Subordinate Services, and those holding isolated posts. It is seen that in the entire rules as framed by the Rajasthan Government, there is no disqualification from earning the eligibility for the grant of the first (after 9 years), second (after 18 years) and third (after 27 years) Selection Grade during the periods the concerned Rajasthan Government servant is on deputation outside the State of Rajasthan itself. Therefore, it is clear that, at least, the Rajasthan Government employees, who were on deputation with the CBI, were all eligible to claim relief against stagnation through the Selection Grade benefit under the above cited order of Rajasthan Government dated 17.02.1998.
22. The applicants of this OA No.2747/2011 had also issued a legal notice on 20.05.2010 through their Counsel, addressed to Director, CBI, regarding grant of benefits under the MACP Scheme. Respondent No.1 Director CBI had replied to the said Counsel through Annexure R-6 dated 20.07.2010, clarifying as follows:-
The clarifications to Point of Doubt No. 4 to 6 as contained in DP&Ts O.M. No. 35034/1/97-Ess. (D) dated 10.2.2000 has further been clarified by DP&T vide point of doubt No. 43 of DP&Ts subsequent O.M. No. 350-35/1/97-Estt (D) (Vol.IV) dated 18.7.2001, which inter-alia says that ACP Scheme is applicable to Central Govt. Civilian employees and for the purpose of financial upgradations under the ACP Scheme only the regular service rendered after regular appointment in a Central Government Civilian post is to be counted. It also made clear that service rendered in an Autonomous Body/Statutory Body/State Government is not to be counted for the purpose. Correspondingly, promotions earned in these bodies prior to appointment in the Central Government are to be ignored. The clarification of point of doubt Nos. 4 to 6 in DOPT OM dated 10.02.2000 providing for counting of past service in another organization in the same grade is only in relation to past service in a civilian post held in the Central Government. Therefore, in fact the cases of incumbents who have earlier been allowed benefit of ACP by taking into account their past service rendered in State Police, before joining CBI on deputation have to be reviewed/rectified in the light of clarifications contained in DP&Ts subsequent O.M. dated 18.7.2001.
23. Heard. We have given our anxious consideration to the facts of this case. As the applicant of the first OA has admitted, his services were borne on the Rajasthan State Police from 11.06.1993 till the date of his absorption in the CBI on 17.04.2006 on permanent basis. Therefore, from 11.06.1993 to 17.04.2006, the applicant had held his lien in the State Government of Rajasthan for a total period of 13 years, and, obviously, in accordance with the above cited Rajasthan State Government Scheme for grant of financial upgradations after stagnation of 9 years, 18 years and 27 years, issued on 17.02.1998, and effective from 1.9.1996, the applicant was entitled to receive financial upgradation on completion of 9 years of his service on 11.06.2002, even while he was on deputation with CBI from the Rajasthan State Police. No averment has been made by the applicant anywhere in the OA that he did not receive such a financial upgradation under the much more beneficial Scheme of three financial upgradations introduced by the State of Rajasthan. Entitlements of a Government employee flow to him on the basis of the lien held by him, and the applicant herein held his lien with the State Government of Rajasthan from 11.06.1993 to 16.04.2006, prior to the date of his permanent absorption in CBI w.e.f. 17.04.2006. Nobody can snatch away his right for his first financial upgradation, on completion of 9 years of his service in the State Government of Rajasthan, even though on the date of completion of 9 years of service, he was on deputation with the CBI already for almost one year.
24. Just like nobody can deny the applicant his right to claim his first financial upgradation from the State Government of Rajasthan in respect of the whole period of maintenance of his lien with the Rajasthan police, in the same manner, it cannot be held that the applicant could have simultaneously continued to become eligible for another parallel set of benefit against stagnation with the Union of India also, during the same period, while his lien was still being maintained with the Rajasthan police.
25. It is well settled law that beneficial schemes started for its employees by the Union of India or a State Government as a model employer, by way of a safety net against stagnation, like the Rajasthan Governments Scheme dated 17.02.1998, or the Union of Indias ACP Scheme, or its modified form, the MACP Scheme, do not per se give a right to the applicant to claim those safety net benefits as a matter of right, unless all the requisite conditions are fulfilled. As the opening paragraph of the ACP Scheme dated 09.08.1999 (Annexure R-1) itself states, the intention of the Union of India behind formulating this ACP Scheme was as a Safety Net to deal with the problem of genuine stagnation and hardship faced by its employees, due to lack of adequate promotional avenues for them, because of which, even after having granted the monetary benefits of revised pay scales after accepting the recommendations of the Fifth Central Pay Commission (5th CPC), the further recommendation of the 5th CPC to introduce the ACP Scheme was accepted by the Union of India. The Scheme was started for granting two financial upgradations to Group B, C and D employees, on completion of 12 years and 24 years of regular service respectively, provided they fulfilled all the requisite qualifications and eligibility for grant of promotions themselves, but were being denied such promotions due to stagnation in their cadre. In parallel, a Dynamic Assured Career Progression Mechanism had been granted to the stream of Doctors also.
26. Later on, on the recommendations in the report of the 6th Central Pay Commission (6th CPC), wherein some modifications were suggested, the Govt. of India came out with the MACP Scheme. There are substantial differences in the old ACP Scheme and the new MACP Scheme. The ACP Scheme was drafted when the Govt. of India was following a pattern of pay scales numbered from S-1 to S-24 for Group B, C & D employees. All the earlier five Central Pay Commissions set up by the Union of India had gradually brought in a reduction in the total number of pay scales. The 6th CPC, however, brought about the most radical change, inasmuch as it has eliminated the concept of different pay scales altogether, and has introduced the entirely new and alternative concept of Pay Bands, and associated different levels of Grade Pay. The Union of India is empowered under Article 73 of the Constitution of India to bring about such changes in its policy decisions, both with regard to pay scales, as well as with regard to any extra benefits or perquisites, which the Union of India may decide to provide to its employees, for example the introduction of benevolent and safety net schemes in order to save them from stagnation, as was done by introducing ACPS earlier, and MACPS now.
27. It will be relevant here to compare certain paragraphs of the old ACP Scheme with the new Modified ACP Scheme, to try to elicit the differences between the two as follows:-
ACP SCHEME MACP SCHEME
1. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up-gradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second up-gradation which would also get deferred accordingly;
1. The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations, financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group A whether isolated or not. However, organised Group A services will not be covered under the Scheme
2. Two financial up-gradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-track promotion through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him;
2.The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.
3. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit;
3. In case a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment will be granted at this stage.
4. Financial up-gradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial up-gradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-III, will be eligible for the proposed two financial up-gradation only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts, which have no avenues of promotion at all. Since financial up-gradation under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
4 Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
28. As can be seen from above, the ACP Scheme introduced on the basis of the recommendations of the 5th CPC was for providing only two financial upgradations in the case of stagnation, after 12 years and 24 years of regular service. In the MACP Scheme, introduced through Govt. of India, Department of Personnel & Training OM dated 19.05.2009, the Scheme has been modified to provide for three financial upgradations, at the intervals of 10, 20 & 30 years of continuous regular service under the Government of India. In para-3.1 of the ACP Scheme, the word continuous was not there, and only the words regular service were used.
29. In the ACP Scheme, the term regular service was defined in Para 3.2 of the Scheme to be interpreted to mean the eligible service liable to be counted for regular promotions in terms of the relevant Recruitment/Service Rules. This provision has since been slightly modified in MACPS, to state that the financial upgradation under the MACP Scheme will be admissible when a person has spent 10 years continuously in the same grade pay.
30. Para 5.2 of the ACP Scheme provided that the residency period (regular service) for the grant of benefits under the ACP Scheme shall be counted in the grade in which an employee was appointed as a direct recruit. All the financial upgradations allowed under the ACP Scheme were clarified to be purely personal to the employees, and having no relevance to the seniority position, and were to be based only upon the condition of the employee concerned stagnating in the pay scale in which he found himself trapped for a period of 12 years without a regular promotion (for getting the first financial upgradation), and for 24 years without getting any promotion at all for getting the second financial upgradation. It was clarified in the ACP Scheme that in order to rationalize the unequal levels of stagnation, the benefit of surplus regular service (not taken into account for the first financial upgradation under the ACP Scheme), shall be given at the subsequent stage of consideration of his case for second financial upgradation, as a one time measure.
31. Even though the ACP Scheme introduced for the Central Government Employees had nowhere mentioned its applicability in respect of the employees who had entered into the Central Government service laterally, either by way of absorption after deputation from other State Governments, or from Public Sector Undertakings, or by way of a lateral entry permitted in any such manner, numerous clarifications had to be issued by the Union of India to clarify the different types of complications which arose later in implementation of the ACP Scheme. Many of these complications have been tried to be ironed out this time, and explained in advance even by way of illustrations, while notifying the MACPS. Further, the applicability of the MACPS is now extended not only upto Class-I, Group A officers, but is also available to the officers upto the HAG Pay Band of Rs.67,000-79,000, which was not the case in the ACP Scheme earlier, which was applicable only to Group B, C & D employees. In order to harmonize the financial upgradations given in the ACP Scheme earlier with the prescription of the MACPS, it has been provided for in Para-5 of the MACPS that the upgradations granted under the ACP Scheme in the past to those grades, which now carry the same grade pay due to merger of pay scales/upgradation of posts recommended by the Sixth Central Pay Commission, shall be ignored for the purpose of granting upgradations under the MACPS. One crucial point, which had not been expressly stated earlier in the ACP Scheme OM dated 09.08.99 has now been clarified upfront in the MACPS OM dated 19.05.2009 in Paras-9,10.11 & 12 of the Scheme as follows:-
9. Regular Service for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.
10. Past service rendered by a Government employee in a State Government/statutory body/Autonomous body/Public Sector organization, before appointment in the Government shall not be counted towards Regular Service.
11. Regular service shall include all periods spent on deputation/foreign service, study leave and all other kind of leave, duly sanctioned by the competent authorities.
12. The MACPS shall also be applicable to work charged employees, if their service conditions are comparable with the staff of regular establishment.
32. With these clarifications, it has now been made clear that while past continuous regular service in another Central Government Department, in a post carrying same grade pay prior to regular appointment in a new Department of the Central Government through lateral entry, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only, though it does not count for regular promotions under the regular service rules. However, such financial upgradation benefits under the MACPS cannot be considered till the satisfactory completion of the probation period in the new post in the new Department of the Union of India, where the employee has got absorbed.
33. Further, in ample measure, it has been clarified that the past service rendered by a Central Government employee in a State Government/Statutory Body/Autonomous Body/Public Sector Undertaking/Organization, before his (regular and substantive) appointment in the Government of India through lateral entry shall not be counted towards Continuous Regular Service (for the purpose of MACPS).
34. Further, it has been clarified through Para-11 of the O.M. dated 19.05.2009 as cited above that regular service shall include all periods spent by the employees of Union of India on deputation/foreign service, study leave and all other kinds of leave, duly sanctioned by the competent authorities.
35. Further relief has been granted through Para-12 of the O.M. to the work charged employees also by making MACPS applicable to them also, if their service conditions were comparable with the staff of regular establishment.
36. It is, therefore, clear from Para-10 of the MACP Circular as cited above that in a departure from the earlier ACP Scheme, which was applicable till the issuance of the MACPS OM on 19.09.2009, now, under the MACPS, past service rendered by a Government employee in a State Government/Statutory Body/Autonomous Body/Public Sector Undertaking/ Organization, before his lateral entry appointment in the Central Government on substantive basis shall not be counted towards Continuous Regular Service for grant of MACP.
37. It appears that there is a sound and legally correct logic behind this stipulation, as now prescribed under the MACPS. As was the ACP Scheme earlier, this MACP is also a benevolent safety net Scheme floated by the Union of India for protecting its employees from stagnation, from the date when they are in substantive/regular service with the Union of India. In view of this, the Union of India cannot be forced to count that period of service and stagnation also, which any employee may have suffered while he was not in the service of the Union of India, and held a lien in another service.
38. Many State Governments have adopted the MACPS of the Union of India mutatis mutandis. Therefore, in respect of those State Governments, the length of Continuous Regular Service within their respective State Government cadres would count only for the purpose of grant of MACPS financial benefits as granted by those State Governments. It is further clear that the entitlement of an employee to claim the benefits of stagnation as a State Government employee, or as an employee of the Union of India, cannot begin or start to be counted unless and until he gets substantively appointed, or obtains through lateral entry the status equal to a regularly appointed Government employee, by virtue of absorption in a service under such State Government, or the Central Government, as the case may be.
39. The term deputation has been dealt with by the Honble Courts in a number of cases. In the case of State of Mysore Vs. M.H. Bellary AIR 1965 SC 868; 1964 (7) SCR 471; 1966 (1) LLJ 50, the Honble Supreme Court had held as follows:-
Promotion of persons on deputation to another department:-
Service on deputation in another department is treated by rule as equivalent to service in the parent department.. So long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis.
(emphasis supplied)
40. Further in the case of State of Mysore Vs. P.N. Nanjundaiah; 1969 SLR 346; 1969 (3) SCC 633; AIR 1968 SC 1113, the Honble Supreme Court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. A case directly on the point of a person on deputation being entitled to promotion only in his parent department was decided by the Honble Apex Court in the case of Rajasthan State Electricity Board, Jaipur vs. Mohan Lal 1967 SLR 573; AIR 1967 SC 1857; 1967 (3) SCR 377; 1968 (1) LLJ 257.
41. It is, therefore, clear that the rights of deputationists differ from those of the direct recruits and since deputation involves voluntary decision of (a) the lending authority, (b) the borrowing authority, and (c) the employee concerned, in all this while, when these employees continued to maintain their lien in their parent cadre in the Police Departments of their States, and in the case any of these three voluntary decisions of either (a) the lending authority, or (b) the borrowing authority, or (c) the employee concerned had been reversed, they could have been reverted back from their status of deputationists in the CBI to their parent cadre in the State Police Departments.
42. Therefore, the applicants of these two cases cannot be allowed to plead that even while they were maintaining their lien in the parent State Government Police Department, they should be counted as beneficiaries of the largesse given by the Union of India to its employees, while at the same time their entitlement to a similar largesse extended to them by their parent State Government was also continuing, and the Union of India could not have prevented the State Government concerned, say the State of Rajasthan, from granting such financial upgradations/Selection Grades to the concerned applicants as its employees, at a much lower eligibility levels of 9 years, 18 years and 27 years of service for the grant of such Selection Grades, while the Union of India followed the much less lenient ACP Scheme of stagnation over 12 years or 24 years of service earlier, and has only now made it lenient under the MACP Scheme by prescribing the entitlement of three financial upgradations after 10,20 & 30 years of service, but it is still less beneficial than the Rajasthan State Governments Scheme of 9,18 & 27 years of service eligibility.
43. In the case of Kulwant Rai Sharma Vs. Union of India & Others 1995 Supp. (4) SCC 451, it was held by the Honble Apex Court that only with effect from the date of permanent absorption in the services of the Union Territory of Chandigarh, the lien of the employee on the permanent post of Clerk in the Punjab Government came to an end. In the case of Satya Narain Pareek Vs. State of Rajasthan and another 1996 (2) SLR 720; AIR 1997 SC 256; 1996 (8) SCC 654 1996 (4) JT 584; 1996 SCC (L&S) 1093, it was held by the Honble Apex Court that even during the period of deputation of an employee, his lien always remains in the parent department, and if, on his repatriation, he goes back to his parent department, he is entitled to all his claims in his own right in his parent department.
44. It is clear that all the 13 applicants of these two OAs have been absorbed in the CBI only after their having given up their lien in the parent department. Such permanent absorption was defined by the Honble Apex Court in the case of Devdutta and ors. vs. State of M.P. & Ors., 1991 supp. (2) SCC 553, as follows:-
Lien- Loss of, on being brought to a post either on deputation or transfer and is absorbed in that post- The term absorbed in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but in holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post.
45. Further, in terms of the Fundamental Rules FR 14 A(a) and 14A(d), lien cannot be held on two posts. While it is a settled principle of service jurisprudence that a Government servants lien on a post can, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post, his lien on a post stands terminated automatically on his acquiring a fresh lien, on another permanent post, outside the cadre on which he was earlier borne. The Honble Apex Court held in the case of Jagdish Lal vs. State of Haryana, 1998 (1) SCT 26 : AIR 1997 SC 2366: 1997 (6) SCC 538 : 1997 (5) JT 387 : 1997 (5) JT 387 : 1997 (4) Scale 202, that a conjoint reading of these rules would thus establish that a Government servant shall always have a lien on the post, and, simultaneously, he shall not have the right to hold any lien on more than one post. In other words, the articulated major premise is that an employee cannot simultaneously be a member of two posts/services/grades/cadres, nor is he eligible to hold lien on two posts. The finding of the Honble Apex Court in the above case is squarely applicable in the instant case. As long as applicants of these two OAs were holding lien against their substantive posts in their parent State Government cadres, they could not have simultaneously acquired a lien under the Union of India also and, therefore, they cannot be held to have become eligible to a largesse granted/sanctioned by the Union of India to its own employees alone.
46. In support of his contentions, the learned counsel for the applicants cited the judgment in the case of O.P. Gauba Vs. Union of India decided in OA No. 3718/2010 by the Principal Bench of this Tribunal on 03.03.2011. That case related to the counting of the services rendered on deputation prior to regular absorption to be treated as regular service for the purposes of eligibility for promotion, and it was very rightly held that such previous service would count for the purposes of eligibility for promotion, but the issue of difference between eligibility for promotion and eligibility for financial upgradation under ACP Scheme or MACP Scheme was not decided in that case, and, therefore, the benefit of that judgment cannot be made available to the applicants of these two cases.
47. Learned counsel for the applicants had further filed a copy of the judgment of the Honble High Court of Delhi, in which this Tribunals judgment in OA No. 3718/2010 (of the Principal Bench) had been challenged by the Union of India in Writ Petition (Civil ) No. 4751/2011, and in its order dated 11.07.2011, the Honble High Court had cited its judgments dated 11.10.2006 in Writ Petition (Civil) No. 14097-100/2005, Dr. Rajendra Kumar & Ors. Vs. Govt. of NCT of Delhi, in which a question had arisen as to whether the period of service on deputation before permanent absorption should be counted for qualifying service, and a Division Bench of the Tribunal had on 11.10.2006 held that since the appointment of the petitioners on deputation was admittedly after following due procedure, the non existence of statutory rules, at the relevant time, cannot convert the service rendered by them as irregular, and in the result their service on deputation as Senior Scientific Officer cannot be disregarded from being counted for the purpose of eligibility condition, since each of the petitioners possessed the requisite academic qualifications, and had the requisite experience to meet the eligibility conditions. The Honble High Court had considered the case law as laid down by the Honble Apex Court in Rudra Kumar Sain and Others Vs. Union of India and others (2000) 8 SCC 25 and in O.P. Singla Vs. Union of India reported at (1984) 4 SCC 450 regarding continuous length of service, and had held that simply because a lien was retained by the earlier incumbent to that post while he had gone out on deputation, the subsequent appointment of the respondent O.P. Gauba to that post, which was made otherwise in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap, only because of the lien retained against that post by the earlier incumbent. In view of this, the order of the Principal Bench in the case of O.P. Gauba (supra) was upheld by the Honble High Court, but even that case did not concern itself with the difference between the ACP and MACP Scheme, and, therefore, the benefit of that judgment cannot also be made available to the applicants of these two cases.
48. The learned counsel for the applicants had further cited the judgment dated 03.08.2011 in OA No. 3812/2010 of the Principal Bench of this Tribunal delivered by one of us, in the case of Sohan Singh and others vs. Commissioner of Police & others. In that case the clarification on Points of Doubt 4 to 6 as contained in DOP&T OM dated 18.07.2001 cited above was considered. But since the two spells of employment and the respective liens of the applicants therein were all within the Union of India itself, and it was not a case of a State Government employee having been absorbed in Union of India from a subsequent date, after a period of deputation, following the Apex Court finding in SI Roop Lal and Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Others, JT 1999 (9) SC 597, and considering the case of Antony Matehew Vs. Commissioner of Police in OA No.1643/2010 decided by this Principal Bench of this Tribunal itself on 09.02.2011, it was held that the service rendered by the applicants therein in BSF will be considered for the purpose of grant of ACP and MACP benefit in the Delhi Police, which was not on all fours with the present case as explained by us above.
49. The learned counsel for the applicants had also relied upon the judgment in the case in OA No. 16/2010 with MA No. 10/2010 decided on 02.02.2011, in Government of India Press Workers Union and others vs. Union of India & Others, which was also in the context of ACP Scheme only. That case also related to the counting of past service within the Union of India, and relying upon the Honble Apex Court in Roshan Lal Tandon Vs. Union of India & Ors. AIR 1967 SC 1889, and in the case of General Manager, South Central Railway, Secunderabad and Anr. Vs. A.V.R. Siddhaniti & Ors. 1994 (4) SCC 335, it was held that there could not be any discrimination between employees coming from two different streams or categories, which were merged into one single cadre, and given similar responsibilities and conditions of service. However, it is seen that both the cited judgments of the Apex Court, as well as the case in OA No.16/2010 itself, did not concern with the scenario of State Government servants coming on deputation to Union of India, and then getting subsequently absorbed in the Union of India, which are the facts of the case in the instant case.
50. As was cited by the Bench which delivered the judgment in OA No.16/2010 on 02.02.2011, the Apex Court has ruled in the case of B. Manmad Reddy and Others Vs. Chandra Prakash Reddy and Others, [(2010) 3 SCC 314] that classification was possible only if there were fair and intelligible criteria and differentia, having a clear nexus with the object of classification, since arbitrary classification is against the principle of equality enshrined in the Constitution. The Apex Court findings in that case also do not come to the rescue of the applicants of these two cases, since the applicants coming from the various State Governments cannot obviously be equated with those who had been directly recruited by the Union of India itself, and then if a classification is made in between them, through the Clarifications of Points of Doubt 4 to 6 as issued earlier and further clarified by way of clarification issued on the Point of Doubt No. 43, such classification has to be held to be fair and based upon an intelligible criteria and differentia, which has a clear nexus with the object of the classification. Therefore, the applicants of these two OAs cannot be allowed to derive any benefit from the judgment dated 02.02.2011 in OA No.16/2010, Government of India Press Workers Union (supra) also.
51. The learned counsel for the applicants had in support of the arguments also cited the judgment dated 14.05.2010 in OA No.2121/2009 Smt. Ramesh Thakkar Vs. Government of NCT of Delhi through Director of Education, Old Secretariat, Delhi. It is seen that in that case the applicant had tendered her technical resignation from the State of Haryana before she had joined on an equivalent post under the Government of NCT of Delhi on deputation basis. It is not the case of any of the applicants here before us in these two OAs that they had tendered their resignation (or technical resignation) in respect of their employment with the respective State Governments before joining the CBI on deputation, or even till one day prior to the date of their absorption in the CBI. In such circumstances, the benefit of the cited judgment dated 14.05.2010 in Smt. Ramesh Thakkar (supra) in OA No.2121/2009, cannot also be made available to the applicants of these two OAs.
52. It is, therefore, held that the applicants herein are entitled to claim the benefits in respect of their stagnation during their service within the respective State Governments only against their lien in their State Government services, and they are entitled to the benefits of stagnation, if any in respect of their service in the Government of India only with effect from the date they had made a lateral entry into the Central Government employment, and had acquired a lien within the Central Government service.
53. In the result, both the OAs are rejected, but there shall be no order as to costs.
54. Let a copy of this order be placed in OA No.2747/2011.
(Sudhir Kumar) (G. George Paracken)
Member (A) Member (J)
cc.