Central Administrative Tribunal - Delhi
Mrs. Pratibha Prashar vs Union Of India on 13 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1678/2007 Order Reserved on: 24.07.2013 Order Pronounced on: 13.08.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Mrs. Pratibha Prashar Library and Information Officer National Museum Janpath, New Delhi. -Applicant (By Advocate: Shri J.M. Kalia) Versus Union of India Through Director General National Museum, (Ministry of Culture) Janpath, New Delhi. -Respondent (By Advocate: Shri Rajesh Katyal) O R D E R Mr. Sudhir Kumar, Member (A):
This is the fourth time orders are being passed by this Tribunal in the case of the applicant, who is before us aggrieved by the respondents having denied her the benefit of the Assured Career Progression (ACP, in short), and has prayed for setting aside the impugned order dated 20.01.2006, which has been produced by her at Annexure A-15. The applicant had filed this O.A. on 13.08.2007. On 22.08.2008, the Division Bench in Court Hall No.1 of the Principal Bench of the Tribunal was pleased to pass the following order:-
Mrs. Pratibha Prashar, applicant herein, has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relevant reliefs:
(a) To set aside the impugned order dated 20.01.2006.
(b) To direct the respondent to consider the case of the applicant for promotion under ACP Scheme and grant the promotion to her along with all consequential benefits.
(c ) In the alternative, the department be directed to implement the recommendation of 5th Pay Commission pertaining to promotion for class-A officer and/or to frame any other rule, regulation or guideline for promotion for class-A officer as promotion is a fundamental right of the applicant.
2. Pursuant to notice issued by this Tribunal, respondents have entered appearance and have filed the reply. It is, inter alia, pleaded therein that applicant has already got one promotion to the post of Senior Librarian and then upgradation to the post of Library and Information Officer and further that the applicant is a Group A officer to whom the ACP is not applicable. Prima facie, it appears that applicant may not have any case for reliefs as mentioned, however, as no one has chosen to appear on behalf of the applicant, Original Application is dismissed in default.
2. Later on, MA No.1504/2008 was filed praying for recalling of the order dated 22.08.2008, and restoration of the O.A to its original number. This MA having been allowed on 19.09.2008, the case once again started its long journey. After seeking numerous adjournments, the reply had been filed by the respondents, and an additional affidavit had also been filed on 26.05.2009, and time was sought for on behalf of the applicant for filing the rejoinder during the course of the day. But when once again nobody appeared for the applicant on 21.07.2009, the case was again dismissed in default. Again a restoration application was filed through MA No.1533/2009, in which notices were issued, and it was ordered that the restoration application will be decided along with the main OA. Finally, the arguments in the case were heard on 05.11.2009, and order was reserved and pronounced on 11.11.2009. However, while pronouncing the order, the Bench found that the pleadings did not have any clarity, and the matter would need re-hearing, and, therefore, the matter was ordered to be listed again for hearing on 23.11.2009 by the Bench, after recording as follows:-
Arguments in this case were heard on 5.11.2009 and judgment was reserved. The applicant seeks setting aside of the order dated 20.01.2006 and in consequence thereof, to consider here case for promotion under ACP scheme and grant promotion to her along with all consequential benefits. In support of the relief as mentioned above, counsel representing the applicant has placed reliance upon a decision of this Tribunal in OA No.432/2005 decided on 29.05.2008 in the matter of Hari Om P.Sharma v Union of India. While preparing the judgment, however, we find that the primary plea raised by the respondents in opposing the cause of the applicant is that the post held by the applicant, i.e., Library & Information Officer, is a Group A post and as such the benefits under ACP Scheme cannot be given to her, and that the ACP Scheme is applicable to government servants belonging to categories B, C and D only and isolated posts belonging to Group A category. The applicant has also claimed the relief on the basis that persons similarly situate have been given the desired relief. There are pleadings on that count as well, but there is no clarity. The matter would need re-hearing.
2. List again on 23.11.2009. Copy of this order be given to counsel for parties forthwith.
3. Later, on 30.11.2010, the Bench further noted as follows, giving a direction for further additional affidavit to be filed:-
The pleadings are inadequate to find out whether there are any promotional avenues available to a person holding the post of Library & Information Officer. Whereas it may appear that the post of Library & Information Officer is not a promotional post but it does not appear from the pleadings on record as if there is no promotional post which may be occupied by a person holding the post of Library & Information Officer. Respondents would be the best to give answer. A responsible officer of the respondents shall file an additional affidavit confirming as to whether there is promotional avenue available to a person holding the post of Library & Information Officer.
4. Finally the case was heard in detail, and the order was reserved on 09.05.2011, which came to be pronounced on 16.05.2011, by stating as follows:
The question which has arisen for consideration in this OA is whether upgrading of pay scale of a post in a library, following the restructuring of the libraries under the Government, whereby the posts have been re-designated and pay scales at all levels upgraded, would amount to promotion of the incumbent of the post, who has got the benefit of the upwardly revised scale of pay on such restructuring.
2. The facts of the case, in a nutshell, are that the Applicant was appointed as Assistant Librarian under the Respondent, Director General, National Museum, in the year 1977. When the vacancy of Senior Librarian in the scale of Rs. 2000-3500 occurred in the year 1987, she was directed to officiate against the post. On the recommendation of the Fourth Pay Commission the post of Senior Librarian was re-designated as Assistant Library and Information Officer. Instructions had also been issued to categorise libraries as Category I, Category II, Category III et cetera depending on the load of work and the number of books in each library. By order dated 13.08.1997 the library of the Respondent, National Museum, was categorised as Category III library and the post was also upgraded to Library and Information Officer in the scale of Rs. 3000-4500 (pre-revised), in accordance with the instructions contained in the Office Memorandum dated 24.07.1990 of the Ministry of Finance. The benefit of restructuring and upgrading of the scales of pay was given to other staff of the library also, as per the order dated 14.08.1997 placed at Annex A-5. The Recruitment Rules for the post of Library and Information Officer were revised. The revised Recruitment Rules have been placed at Annex A-9. The post of Library and Information Officer under the Respondent, National Museum, is an isolated post as seen from the Recruitment Rules. On completion of 24 years of service the Applicant gave a representation to the Respondent for second financial upgradation under the Assured Career Progression Scheme initiated in August 1998. Her representation was rejected by the impugned order dated 20.01.2006 by stating that her request could not be acceded to as it was not permissible under the rules. During the course of the arguments the learned counsel for the Respondent urged that (a) the Applicant was Group A officer and was not entitled for upgrading of her pay under the ACP Scheme and (b) the Applicant had received two promotions, one in 1987 as Senior Librarian and the other on restructuring of the posts as Library and Information Officer.
3. In so far as the argument regarding the post of the Applicant being Group A post, it may be mentioned that such posts are eligible for grant of upgrading under the ACP Scheme, if the post is an isolated post. It could not be disputed during the course of arguments that the post, the Applicant is holding, is an isolated post.
In so far as the controversy about whether upgrading could be considered as promotion, the issue stands fully covered by the judgement of this Tribunal in a case based on identical facts in Shri Hari Om Sharma Vs. Secretary, Ministry of Home Affairs and others, OA number 432/2005, decided on 29.05.2008. In paragraph 7 of the judgement in the case it was observed that:
The only defence projected in the reply and so canvassed by learned counsel defending the respondents that it was not a case of upgradation but of promotion, has no substance both on the basis of reading of the contents of Memo dated 24. 07. 1990, as also the judgement of Chandigarh Bench in the matter of Jatindra Prasad Singh (supra), as mentioned above, has already been implemented."
4. In the light of the above discussion the OA is allowed and the impugned order dated 20.01.2006 is quashed and set aside. The Respondents are directed to consider the Applicant for upgrading her scale under the Assured Career Progression Scheme of 1998, considering the post to be an isolated post. The above direction would be complied with within four weeks of the receipt of a certified copy of this order. No costs.
(Emphasis supplied)
5. The applicant filed an execution application No.2883/2011 thereafter, but the respondents approached the Honble Delhi High Court in its writ jurisdiction in W.P. (C) No.8284/2011 in which notices were issued on 05.12.2011, and the Honble High Court noted that the Union of India had in the Writ Petition, placed reliance upon the judgment of the Honble Apex Court in Uday Pratap Singh & Ors. v. The State of Bihar & Ors. [1994] Supp. 4 SCR 72, and the above order passed by the Tribunal on 16.05.2011 was stayed. On 22.12.2011, the Tribunals Bench noted that since a Writ Petition had already been filed, MA No.2883/2011 for execution of the order was closed, with liberty to the applicant to file a fresh one, if the occasion arose.
6. The said Writ Petition finally came to be decided by the Honble High Court on 18.07.2012, in which the Honble High Court held that the order of this Tribunal dated 16.05.2011 impugned before them did not adequately address the issues, which were sought to be raised by the learned counsels before them. The Honble High Court further noted that great reliance has been placed by the learned counsel for the respondents (applicant before the Tribunal) on the O.M. dated 24.07.1990, particularly on the impact of Para 4.1 thereof, but that there was no discussion on that aspect of the matter in the order of the Tribunal impugned before the Honble High Court. It also noted that there was no discussion with regard to Annexure-I to the said O.M., and particularly to serial No.8 thereof, which indicates that there was a requirement of a particular length of service for the post of Library & Information Officer, which point had to be read with point No. 35 of OM dated 18.07.2001, which aspect had not been considered by the Tribunal. Counsel for the parties had submitted before the Honble High Court that these documents were in fact placed before the Tribunal, but they have unfortunately not found mention in the impugned order. The High Court, therefore, felt it proper to set aside the impugned order, and to remit the matter back to the Tribunal, to give the parties opportunity to place all the points before the Tribunal afresh, and to raise all issues based upon the existing pleadings and documents. The Honble High Court also made it clear that they have not expressed any view either way on the merits of the case.
7. The remanded matter came to be listed on 29.08.2012, and after some adjournments, it was heard in detail, thereafter, on two dates, and reserved for orders. We gave given our anxious consideration to the facts of the case, more so in view of the observations of the Honble High Court.
8. The facts of the case, as already narrated by the Coordinate Bench in its order dated 16.05.2011, as reproduced in para 4/above, are that the applicant admittedly joined the respondent office in 1977 in a Group C post as an Assistant Librarian. Thereafter, when her senior, the incumbent Senior Librarian of the National Museum Library, which was then a Group B post in the pay scale of Rs. 2000-3500, retired, through office Notification dated 19.11.1987 (Annexure A-1), the Competent Authority promoted the applicant and appointed her to the said Group B post, initially in a purely temporary capacity w.e.f. 12.11.1987, until further orders, and it was further ordered that she will start drawing her salary in the higher pay scale at Rs.2000/- per month + allowance, beginning at the minimum of the pay scale of Rs.2000-3500/-. Since this was an appointment to a Group B Gazetted post, though in a temporary capacity, the Annexure A-1 was sent to the Manager, Govt. of India Press, Faridabad (Haryana), to be published in Part-I Section-2 of the Gazette of India, with copy being marked to the applicant and other concerned persons. The applicant had, thus, within 10 years of her joining service as a Group C employee, moved on promotion into a Group B Gazetted post, by virtue of this promotion and appointment to officiate as a Senior Librarian, though initially in a temporary capacity, as is wont in such situations.
9. The IV Central Pay Commissions recommendations came to be implemented thereafter in respect of the library staff of the National Museum Library, though with considerable delay, through Office Order dated 18.07.1996 (Annexure A-2), which involved re-designation of the posts also, and the Group-B Gazetted Senior Librarian post held by the applicant came to be now re-designated as Assistant Library and Information Officer. Her earlier post, on which she had been first appointed in the year 1977 as an Assistant Librarian in the pay scale of Rs.1400-2300/-, came to be re-designated as Library and Information Assistant, in the pay scale of Rs.1400-2600/-. This apparently was only a change in nomenclature, as the applicants pay scale in her substantive post by now of Senior Librarian, in the pay scale of Rs.2000-3500/-, remained the same.
10. Later on, when based upon the recommendations of the same IV Pay Commission itself, when the Libraries of different sizes were getting categorized on the basis of the size of the Library concerned, the National Museum Library came to be categorized as a Category-III Library. Since the Pay Commissions recommendations had prescribed that a Category-III Library will be headed by a Library & Information officer, in the pay scale of Rs.3000-4500, the Respondent National Museum passed the Office Order dated 13.08.1997, giving effect to that recommendation also, and upgraded the post held by the applicant from the Group B/Class II Gazetted designation of Assistant Library and Information Officer, in the pay scale of Rs.2000-3500/-, as per Annexure A-2, to the post of Library and Information Officer, in the associated higher pay scale of Rs.3000-4500/-, to be effective retrospectively from 17.05.1996, for all purposes, i.e., to operate from a date even prior to the issuance of Annexure A-2 itself.
11. This was followed by an Office Order dated 14.08.1997 (Annexure A-4), by which the post of the applicant, which was till then that of Assistant Library & Information Officer in the pay scale of Rs.2000-3500/-, itself stood upgraded to that of Library & Information officer in the pay scale of Rs. 3000-4500/-. Annexure A-5 was also issued, noting that the applicant and the persons working under her, i.e., all the incumbents in the National Museum Library, fulfill the required criteria of the respective minimum qualifications and experience laid down in Annexure-I of the Ministry of Finance Circular dated 24.07.1990, and that the National Museum Library has since been categorized as Category-III Library. All the incumbent officials of the Library were placed on the revised grade structure, with retrospective effect from 17.05.1996, except the person immediately below the applicant, who took her promotion from the date of her joining service on 08.07.1996. The applicants placement in the new pay scale also followed, through the Office Order dated 26.08.1997 (Annexure A-6), and her pay was fixed at Rs.3000/-, at the minimum of the pay scale of Rs.3000-4500 w.e.f. 17.05.1996, with the date of her next increment being indicated to be 01.05.1997. The applicant was, therefore, now firmly stated as a Class-I Gazetted Officer w.e.f. 17.05.1996 F/N. Since the designation of the applicants post as Library and Information Officer in the pay scale of Rs.3000-4500 was so newly created, with the categorization of the National Museum Library in Category-III, the respondents also adopted the model Recruitment Rules for the post, through Annexures A-8 & A-9, which would obviously operate for all future recruitments against that post, since the applicant had by then already been placed in substantive capacity in that post.
12. After the V Central Pay Commissions recommendations were accepted, the Govt. of India introduced the ACP Scheme for the Central Government Civilian Employees through their OM dated 09.08.1999 (Annexure A-10). When certain doubts were raised regarding the finer aspects of the implementation of the Scheme, the Govt. of India issued certain clarifications, through their OM dated 10.02.2000 (Annexure A-11), and further clarifications, through OM dated 18.07.2001, the first one covering 32 points of doubt, and the second one covering points of doubt No. 33 to 56.
13. The order of the Honble High Court has mentioned that great reliance had been placed before it upon para 4.1 of the Circular dated 24.07.1990. This O.M. was pointed out and detailed arguments were advanced on this before us also. During the arguments, the learned counsel for the applicant relied upon Para-3.1,3.2,3.3 of this O.M., while the respondents relied upon Para 4.1, 4.2.,4.3 of this O.M., which states as follows:-
F.No.19(I)/IC/86 Government of India Ministry of Finance Department of Expenditure (Implementation Cell) New Delhi, the 24 July, 1990 OFFICE MEMORANDUM Subject: Report of the Review Committee of Library Staff under purview of Central Government.
The undersigned is directed to refer to the recommendations of Fourth Central Pay Commission contained in para 11.63 of the Report wherein it was suggested that a Committee may be constituted to undertake review of the pay scales, qualifications and recruitment levels of responsibility of the Library Staff. In pursuance of the above suggestion, a Review Committee was set up by the Department of Culture in September, 1987.
2.1 After careful consideration of the recommendations made by this Committee and also keeping in view the overall policy, the Government have decided to introduce following pay structure for Library Staff:
Sl. No. Designation Existing pay scale Revised pay scale Remarks (1) (2) (3) (4) (5) 1 to 6.xxxxxxxxxx(Not reproduced here).
7. Assistant Library& 2000-3200 2000-3500 Promotion/Direct Information Officer 2000-3500 Recruitment. 2200-4000
8. Library & Information 3000-4500 3000-4500 -do-
Officer
Senior Library & Information 3700-5000 3700-5000 -do-
Officer
Principal Library & 4500-5700 4500-5700 -do-
Information
Office/Director
11. 5900-6700 -do-
12. 7300-7600 -do-
2.2 xxxxxxxxxxxxxx(Not reproduced here).
Placement of Existing Library Staff in the Revised Grades
Relied upon by the Applicant
3.1. The employees in the scales of pay indicated in column 3 of table under para 2.1 may be placed in the revised scales shown there against in column 4 provided the incumbent fulfils the recruitment qualifications as indicated in Annexure I to this O.M. In case existing incumbent docs not fulfil the qualification as laid down in Annexure I he will continue in the existing scale of pay on personal basis. However, as and when the post falls vacant, it will be filled up in the appropriate scale in accordance with the rules of recruitment.
3.2. The existing incumbents will also have an option to opt for the revised grade structure or continue in the existing scales of pay. Where an option is for the existing scale of pay, it will be on personal basis and in the event of vacancy the post will be filled up in the appropriate scales in accordance with the rules of recruitment. The employees in whose case the scales of pay have been revised may desired to exercise an option to continue in the existing scale of pay or come over to the revised scale of pay within a period of three months from the date of issue of this order.
3.3. In case of grades where the scales of pay has been revised and the existing incumbents are placed in revised scale, the pay in the revised scales may be fixed in terms of the provisions of Fundamental Rules 23 read with rule 22(a) (ii).
Categories of the Libraries Relied upon by the Respondents 4.1 After placement of the existing incumbent in the grade structure indicated in para 2 above, each administrative Ministry may initiate action to categories the Libraries under their control in consultation with F.A. concerned based on the parameters indicated in Annexure II to this O.M. Based on the categorisation of the Libraries so determined the designation and scale of pay of the Librarian Incharge of each category of Library may be adopted on the lines indicated below :
_______________________________________________________ Category Post with Designation Pay Scale(Rs.) _______________________________________________________ I Library & Information Assistant 1400-2600 II Asstt. Library & Information Officer 2000-3500 III Library & Information Officer 3000-4500 IV Director (Library & Information) 4500-5700 V Director 5900-6700 4.2 In case the existing incumbent (viz. Librarian Incharge) is in a lower scale of pay than the scale determined based on the categorisation, he may be considered for appointment in the higher scale provided he fulfils the recruitment qualifications laid down for that post in Annexure I to this O.M. subject to the provisions of para 4.3.
4.3 Where based on categorisation the post of the head of a Library gets upgraded by more than one grade, the post will be upgraded only by one step initially. Its upgradation to the appropriate higher grade may be reviewed after three years in consultation with Ministry of Finance.
5 to 7. xxxxxxxxxxxxxxxx(Not reproduced here)
14. Further, during the course of the arguments before us, and before the Honble High Court also earlier, a mention was made of the Point of Clarification No.35 contained in OM dated 18.07.2001, clarifying the 35th Doubt on the ACP Scheme. We may do well to reproduce the same here, different portions of which were relied upon by the applicant and the respondents:-
35. Whether placement/ appointment in higher scales of pay based on the recommendations of the Pay Commissions or Committees set up to rationalise the cadres is to be reckoned as promotion/financial upgradation and offset against the two financial upgradations applicable under the ACP Scheme? Where all the posts are placed in a higher scale of pay, with or without a change in the designation; without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rules for the existing post, and without involving any change in responsibilities and duties, then placement of all the incumbents against such upgraded posts is not be treated as promotion/upgradation. Where, however, rationalisation/restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level taking into consideration their length of service in existing pre-structured/pre-rationalised grade, then this will be taken as promotion/upgradation.
(Relied upon by the Respondents) If the rationalised/restructured grades require possession of a specific nature of qualification and experience, not specified for the existing posts in pre-rationlised set up, and existing incumbents in pre-rationalised scales/pre-structured grades, who are in possession of the required qualification/ experience are placed directly in the rationalised upgraded post, such placement will also not be viewed as promotion/upgradation. However, if existing incumbents in the pre-rationalised grades who do not possess the said qualification/ experience are considered for placement in the corresponding rationalised grade only after completion of specified length of service in the existing grade, then such a placement will be taken as promotion/upgradation.
(Relied upon by the Applicant)
15. The applicants counsel also relied upon the case decided by the Honble Delhi High Court in Writ Petition No.7881/2008 and CM No.15193/2008 Union of India vs. Hari Om P. Sharma. In that case, when the matter had come up before the Tribunal earlier in OA No.432/2005 on 29.05.2008, the OA of the applicant (Shri Hari Om P. Sharma) had been allowed with the following observations:-
4the Committee has recommended the BPR&D Library as Category-II Library. We may also mention that the plea raised by the respondents that since vide OM dated 24.07.1990 a higher level post has been created, appointment of the existing incumbent holding a post at lower level against such newly created higher level post is a clear case of appointment by promotion, has since already been rejected by a co-ordinate Bench of this Tribunal at Chandigarh in OA No. 1217/HR/2001 decided on 24.01.2003 in the mater of Jatindra Prasad Singh v. Union of India & Anr. Original Application aforesaid was filed challenging the validity of Annexure A-1 by which upgradation to the applicant as Assistant Library Officer was denied on the grounds that a ban had been imposed by Ministry of Finance for such upgradation. It was the case of the applicant therein that by a scheme framed as Annexure A-4 on 24.07.1990, various officials heading the libraries had to be given the pay scale mentioned in the said circular in accordance with the category of the library. Categorization of libraries had been done by a committee by giving points to various facts of the libraries, i.e. number of books in the library, the annual intake of books, titles of serials etcThe question that thus arose was that as to whether the upgradation claimed by the applicant amounted to promotion and needed creation of a post or not, and did it come under the ban as mentioned in circular dated 23.10.2000. The said question was answered as follows:-
We are of the opinion that the scheme initiated vide Annexure-4 dated 24.07.1990 was merely of financial upgradation in accordance the status of the library. It did not have anything to do with creation of new posts. It is similar to the ACP scheme where persons are given higher pay scales in-situ. We are, therefore, of the opinion that the applicant was definitely entitled to his first upgradation on 24.07.1990 as mentioned in Annexure A-11 by the Desk Officer on 7.9.94 to the scale of 1640-2900, and, if found eligible.. 5..The plea raised by the respondents that vide OM dated 24.7.1990, it is not a case of upgradation but of promotion, has thus to be rejected. The relevant provisions contained in Memo dated 24.07.1990, on which rests the case of the applicant need to be noted. In the memorandum aforesaid under caption Report of the Review Committee on Library Staff under Purview of Central Government, Government of India in reference to recommendation of Fourth Central Pay Commission contained in para 11.63 of the Report, suggested that a Committee may be constituted to undertake review of the pay scales, qualifications and recruitment levels of responsibility of the library staff. In pursuance of the above suggestion, a review committee was set up by the Department of Culture in September, 1987. It is recorded that after careful consideration of the recommendations made by the Committee and also keeping in view the overall policy, Government have decided to introduce following pay structure for Library staff. We may only make a mention of the post occupied by the applicant, which has been mentioned in the pay structure as follows:-
Sl.No. Designation Existing Pay scale Revised pay scale Remarks
5 Library Information Assistant 1200-1800
1200-2040
1320-2040
1350-2200
1400-2300
1400-2600 1400-2600 Direct entry Graduate with Bachelor in
Lib.Science/ Promotional Grade for Lib. Clerks.
6. As mentioned above, it is admitted position that the library, where the applicant is posted, was categorized as Category-II in 1992. The applicant in terms of Memorandum dated 24.07.1990 was to be given pay scale admissible to libraries categorized as Category-II. The applicant, however, was not straightaway entitled to get the pay scale admissible to Category-II library as the post was to be upgraded only by one step initially.. 7. The only defence projected in the reply and so canvassed by learned counsel defending the respondents that it was not a case of upgradation but of promotion, has no substance both on the basis of reading of the contents of Memo dated 24.07.1990, as also judgment of Chandigarh Bench in the matter of Jatindra Prasad Singh (supra) which, as mentioned above, has already been implemented. Learned counsel appearing for the respondents, we may mention, in all fairness urged that present Application is barred by limitation as representation of the applicant was rejected on 29.11.2000. 8. In view of the observations made above, we allow this Original Application. We quash and set aside impugned order dated 29.11.2000 to the extent it denies the pay scale of Rs.6500-10500 to the applicant w.e.f. 07.10.1996. Respondents are directed to make available the pay scale of Rs.6500-10500 w.e.f. 07.10.1996 to the applicant and the arrears that may be due be calculated and made over to him as expeditiously as possible, and preferably within a period of three months from the date of receipt of certified copy of this order. There shall, however, be no order as to costs.
(Emphasis supplied).
16. The learned counsel for the applicant also relied upon the case of Union of India vs. V.K. Sirothia (2008) 9 SCC 283: 1999 SCC (L&S) 938, which mainly concerned application of reservation in the cases of restructuring, in which in a very short order, the Honble Apex Court had held as follows:-
Order CA No. 3622 of 19951. Heard counsel on both sides.
2. The finding of the Tribunal that "the so-called promotion as a result of redistribution of posts is not promotion attracting reservation" on the facts of the case, appears to be based on good reasoning. On facts, it is seen that it is a case of upgradation on account of restructuring of the cadres, therefore, the question of reservation will not arise. We do not find any ground to interfere with the order of the Tribunal.
3. The civil appeal is dismissed. No costs.CA No. 9149 of 1995
4. In view of the order passed in Civil Appeal No. 3622 of 1995, etc., this appeal has to be allowed as in the order under appeal the Tribunal has taken a contrary view. The appeal is, therefore, allowed. No costs.
(Emphasis supplied).
17. The case of the applicant as put forward by her counsel during arguments, and through her contentions as raised in the O.A., is to the effect that in-situ upgradation of the post does not at all amount to a promotion, and therefore, the respondents are at fault in having denied her the benefit of ACP upgradation, since she had only been upgraded, but not promoted, in the process which took place in 1996, and the only promotion she ever got was in 1987, when she was promoted from her Group C post as a Group B Gazetted officer (supra).
18. On the other hand, in the oral arguments as well as in their written submissions filed by the learned counsel for the respondents, it had been very repeatedly pointed out that the applicant, who was initially, appointed in Group C pay scale in 1977, had moved to a Group B Gazetted post on promotion in 1987, and then due to upgradation of her Library, and with the resultant in-situ upgradation of her post due to that, she became a Class-I officer, in a higher pay scale, which was given to her on 17.05.1996. They, therefore, submitted that applicant having moved first from Group C to Gazetted Group B, and, thereafter, she had again been upgraded from Group B to Group A, in a short span of 19 years from the date of her appointment in a Group C post, and, therefore, she cannot be considered to be eligible for the ACP Scheme. It was further submitted that the applicant is not entitled for the second ACP benefit because she was upgraded from the post of ALIO in the scale of Rs.2000-3500, which is a Group B Gazetted post, to the post of LIO which is a Group A Gazetted post, in the grade of Rs.3000-4500, and the upward movement of the applicant had been described as in the following chart:
APPOINTED PROMOTED UPGRADED Assistant Librarian (Re-designated as Library & Information Assistant) Senior Librarian (Re-designated as Assistant Library & Information Officer) Library & Information Officer.
Rs.1400-2300 Revised 5000-8000 Rs.2000-3500 Revised 6500-10500 Rs.3000-4500 Revised 10000-15200 31.12.1977 12.11.1987 17.05.1996 Group C Non-Gazetted, Non-Ministerial Group B Gazetted, Non-Ministerial Group A Gazetted, Non-Ministerial
19. In support of their contentions, the respondents had relied upon the Honble Apex Court judgment in Udai Pratap Singh & Ors. vs. The State of Bihar and Ors. and D.N. Sinha & Ors. vs. The State of Bihar & Ors. 1994 Suppl. (4) SCR 72 in which the Honble Apex Court has held as follows:-
By a catena of decisions of this court, it is now well-settled that by an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to destroy any right which became crystallised. In this connection, it is profitable to refer a decision of this court in T.R. Kapur v. State of Haryana wherein it is held that rules framed under Article 309 of the Constitution cannot affect or impair vested rights, unless it is specifically so provided in the statutory rules concerned. It is obvious that an executive direction stands even on a much weaker footing. It is true, as laid down in Bishan Sarup Gupta v. Union of India that effect of upgradation of a post is to make the incumbent occupy the upgraded post with all logical benefits flowing therefrom and can be treated as promoted to the post. Still it cannot be gainsaid that no retrospective effect could be given to any merger of erstwhile lower branch into higher branch in the cadre so as to affect the vested rights of incumbents already occupying posts in the erstwhile higher branch of the cadre. (Emphasis supplied).
20. In this context, we may take the liberty to reproduce certain portion of the order passed by a concurrent Bench of this Tribunal in OA No. 4103/2011 - Shri Laxmi Dutt Kaushik vs. Union of India decided on 12.12.2012 :-
It is well settled law that beneficial schemes started by the Union of India or a State Government as a model employer, like the ACP Scheme, or its modified form, the MACP Scheme, do not per se give a right to the applicant to claim them 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 for granting this ACP Scheme was as a Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues, because of which, even after having granted the monetary benefits of revised pay scales under 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, and 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 promotion due to stagnation in their cadre. In parallel, a Dynamic Assured Career Progression Mechanism had been granted to the stream of Doctors also.
Later on, on the recommendations/report of the 6th Central Pay Commission (6th CPC), wherein some modifications were suggested, the Govt. of India came out with the MACP Scheme. 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:-
xxxxxxxxxxxxxxxx(Not reproduced here) As can be seen from above, the ACP Scheme introduced on the basis of the recommendations of the 5th CPC was for providing 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 under the MACPS, 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.
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.
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. The 6th CPC has made a wholesale departure from the concept of different pay scales, and it has now introduced the concept of Pay Bands with different levels of Grade Pay associated with the Pay Bands. All the six Central Pay Commissions set up by the Union of India so far have 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 alternative concept of Pay Bands, and associated Grade Pays. 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 schemes in order to save them from stagnation, as done by introducing ACPS earlier and MACPS now.
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 trailing for a period of 12 years (for getting the first financial upgradation) without a regular promotion, and for 24 years without getting any promotion at all for getting a 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.
(Emphasis supplied).
21. This view was further reiterated by the Tribunal in its order dated 09.05.2012 in OA No.1986/2011 (Smt. Krishna Kumari vs. Govt. of NCT of Delhi), the relevant portion of which order is reproduced below:-
It is not in dispute here that both ACP & MACP Schemes are benevolent schemes, floated as a safety-net against demoralization of employees due to stagnation without increments. Stagnation is related to length of service without promotions. But, one cannot be said to have started stagnating in service even before and without actually joining the service. Stagnation necessarily has to be actual and real. There cannot be any concept of notional, or fictional, or virtual stagnation. While ante-dated higher pay fixation can be provided notionally, and, like in this strange case, even ante-dated fictional seniority has been granted notionally, but obviously neither this Tribunal, nor for that matter even a higher Court, can ever sanction or order for the grant of stagnation notionally, fictionally, or virtually. Once cannot start deriving advantages of the Governments safety-net benefits, without first actually joining as a Government employee, merely by virtue of a benefit of pay fixation granted notionally by a Court or a Tribunal on ante-dated basis.
(Emphasis supplied).
22. The meaning of the word promotion was considered by the Honble Apex Court in the case of Director General, Rice Research Institute, Cuttack & anr v Khetra Mohan Das, 1994 (5) SLR 728, and it was held as follows:-
A promotion is different from fitment by way of rationalisation and initial adjustment. Promotion, as is generally understood, means; the appointment of a person of any category or grade of a service or a class of service to a higher category or Grade of such service or class. In C.C. Padmanabhan v. Director of Public Instructions, 1980 (Supp) SCC 668: (AIR 1981 SC 64) this Court observed that "Promotion" as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in a higher category of the same service or that the new post carries higher grade in the same service or class.
23. Further, in the case of State of Rajasthan v. Fatehchand Soni, (1996) 1 SCC 562, at p.567: 1995 (7) Scale 168: 1995 (9) JT 523: 1996 SCC (L&S) 340: 1996 (1) SLR 1.), the Honble Apex Court findings can be paraphrased and summarized as follows:-
In the literal sense the word promote means to advance to a higher position, grade, or honour. So also promotion means advancement or preferment in honour, dignity, rank, or grade. (See : Websters Comprehensive Dictionary, International Edn., P. 1009) Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression promotion has been understood in the wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
(Emphasis supplied).
24. Since in the context of the present case, the concept of stagnation is also important, we may note here that the word stagnation means:-
i) a state of inactivity (in business or art etc); "economic growth of less than 1% per year is considered to be economic stagnation"
ii) inactivity of liquids; being stagnant; standing still; without current or circulation.
25. In the case before us, the applicant has never faced stagnation in her career at all, and by the retirement of her senior in the year 1997, and by a turn of events in her favour in the year 1996, she had moved from being a Group C to a Group B Gazetted Officer first, and then as a Group A/Class I officer, and she cannot claim to have stagnated in a particular pay scale. The main conditions for grant of ACP benefits, as contained in the opening paragraph of the Circular dated 09.08.1999, were as follows:-
Subject:- THE ASSURED CAREER PROGRESSION SCHEME FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES.
The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be viewed as a Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, after careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder:-
2. GROUP A CENTRAL SERVICES 2.1 In respect of Group A Central services (Technical/Non-Technical), no financial upgradation under the Scheme is being proposed for the reason that promotion in their case must be earned. Hence, it has been decided that there shall be no benefits under the ACP Scheme for Group A Central services (Technical/Non-Technical). Cadre Controlling Authorities in their case would, however, continue to improve the promotion prospects in organisations/cadres on functional grounds by way of organizational study, cadre review, etc. as per prescribed norms.
3. GROUP B, C AND D SERVICES/POSTS AND ISOLATED POSTS IN GROUP A, B, C AND D CATEGORIES 3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group C and D employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group B, C and D employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group A, B, C and D categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the Conditions mentioned in Annexure-I. 3.2 xxxxxxxxxxx (Not reproduced here).
(Emphasis supplied).
26. Since the applicant has never stagnated but has rather progressed very fast, even in her isolated cadre & post, from being a Group C to Group B Gazetted, and then to being Group A officer, she cannot be held to be entitled to the ACP benefit, because of the clarification on point of doubt No.35, in respect of the ACP Scheme on which both sides have tried to rely upon. But since the recognition of her Library as a Category III Library required and involved creation of a number of new hierarchical grade in the rationalized set up, even requiring the respondents to frame a new set of Recruitment Rules for the upgraded posts (para 11/above), and she, as one of the incumbents in the pre-rationalized set up got placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level, taking into consideration her length of service in existing pre-structured/pre-rationalized grade, then she cannot deny that this will be taken as promotion/upgradation, as the respondents have rightly held it to be so on the basis of the above language of the Clarification on point of doubt No.35.
27. The later part of the Clarification on point of doubt No.35 cannot be made applicable to the applicant, as claimed by her counsel vehemently, as no new set of qualifications and parameters of experience were prescribed at the time of the restructuring of the respondents library at the time she was promoted. Further, the lack of any period of the applicants stagnation in the very same pay scale for more than 12 years at a time clearly go to show that she cannot be allowed to derive any benefit from the ACP Scheme. Also, the weight of the ratio in Honble Apex Courts judgment in the case of Uday Pratap Singh & Ors. (supra/para5 above) goes against the very grain of her prayers in the present O.A., where it was held by the Honble Apex Court as follows:-
It is true, as laid down in Bishan Sarup Gupta etc. etc. Vs. Union of India & Ors. Etc. etc., [1973] 3 SCC 1, that effect of upgradation of a post is to make the incumbent occupy the upgraded post with all logical benefits flowing therefrom and can be treated as promoted to the post.
28. The case of the present applicant is further distinguishable from the relied upon case of Union of India Vs. Hari Om P. Sharma (supra), since, as is apparent from the highlighted portion of the Honble High Courts judgment in para 4 and 6 thereof, that matter had resolved upon the need for creation of a new post, or not, after re-structuring of the library, and the applicant therein was not straightaway entitled to get the pay scale admissible to Category-II library, as the post was to be upgraded only by one step initially., which has not been the case in the case of the applicant before us. Not only had a new post been created for accommodating her in a higher post, pay & grade, but even the new Recruitment Rules had been framed for that newly created post, not for her, but for her successors in office, and it was further not that she had been upgraded by only one step initially, within her own Gazetted B Grade pay scale, but she had been rather promoted straightaway to the newly created Group A post, without any scrutiny, D.P.C., or mandatory consultation with the U.P.S.C. for filling up that newly created Group A post. The applicant has tried to rely upon para 3 (3.1, 3.2 & 3.3) of the O.M. dated 24.07.1990 (supra/para 12 above), without realizing that para 3.1, 3.2 and 3.3 were not made applicable in her case, as she never had to face the process of selection for the newly created post of Group A, in accordance with the newly framed Recruitment Rules for that post. The respondents are correct in their submissions that the applicants case is rather covered by para 4 of that O.M. dated 24.07.1990 (supra).
29. In view of the foregoing discussion undertaken by us in detail in the preceding paragraphs, in order to be able to consider all the points and issues as directed by the Honble High Court (Para 6/above), there is no merit in the case as made out by the applicant, and, therefore, the OA is dismissed, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.