Central Administrative Tribunal - Delhi
Mahajabeen Akhtar vs Union Of India on 25 February, 2014
Central Administrative Tribunal
Principal Bench
MA No.905/2013 in
R.A. No.69/2013 in
O.A. No.799/2009
with
O.A. No.668/2013
Order reserved on: 08.10.2013
Order pronounced on: 25.02.2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Mahajabeen Akhtar
Daughter of Late Ranaq Ali Siddiqui
1478, Ajmal Khan Street
Ballil Maran, Delhi-110006. -Applicant
(By Advocate: Shri Arun Bhardwaj)
Versus
1. Union of India
Secretary, Ministry of Culture
Shastri Bhawan, New Delhi.
2. The Director
National Gallery of Modern Art
Jaipur House, New Delhi-110 003. -Respondents
(By Advocate: Shri H.K. Gangwani)
O R D E R
Per Mr. Sudhir Kumar, Member (A):
RA No.69/2013 with MA No.905/2013 for condonation of delay MA No.905/2013 has been filed praying for condonation of delay in filing the Review Application, praying for a review and recall of the order dated 11.05.2010 passed in OA No.799/2009. The order passed in the applicants OA No.799/2009 had stated as follows:-
We have heard both the learned counsel.
2. A perusal of the impugned order shows that the applicant is supposed to have received two promotions one as Research Assistant and the second as ALIO. Perusal of the Supreme Court judgment confirms that the appointment as Research Assistant was a promotion. The promotion as ALIO is not disputed. As such we find that the applicant has received two promotions. Therefore in terms of the material on record the case of the applicant for grant of ACP is not found tenable and OA is dismissed.
3. Learned counsel for the applicant, however, states that others have been granted such ACP. No details or particulars of such persons are available in the pleadings. We leave it open to the applicant to approach the respondents by detailed representation within four weeks from the date of receipt of a certified copy of this order which should be considered in the normal course and applicant informed. No costs.
2. The powers of this Tribunal to entertain review are not only hemmed in by the time limit prescribed for filing such review but are also quite limited inasmuch as no Review Application can be filed seeking to re-argue the matter, as under powers of review, this Tribunal is not competent to re-hear the matter.
3. In Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160 and in Subhash vs. State of Maharashtra and Another, AIR 2002 SC 2537, it was categorically held by the Honble Apex Court that in the garb of Review Application, the Tribunal cannot re-examine the issue, and a review is allowable only if the error pointed out is plain and apparent, on the face of the record. We do not find that the review applicant before us has been able to point out an error apparent on the face of the record, which is plain and apparent. We are bound by the Apex Court judgments cited above.
4. In Ajit Kumar Rath Vs. State of Orissa (1999 (9) SCC 596), the Apex Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:-
The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment.
5. Further in Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], the Apex Court has held as under:-
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"."
6. The applicant has submitted in the MA filed for condonation of delay in filing the Review Application that after the judgment dated 11.05.2010, she had filed a detailed representation before the Director, National Gallery of Modern Art (NGMA, in short) on 14.06.2010. However, after considering her representation on 16.10.2010, the Authorities of the NGMA again issued orders to the same effect, like which had already been challenged by her in the earlier OA No.799/2009 assailing the earlier orders, and issued another Office Order dated 09.09.2009. The applicant represented before the respondents on 24.12.2010 for rectifying the Office Order issued on 09.09.2009 but received no response.
7. On 22.01.2011 she again filed a detailed representation before the Director, NGMA against the erroneous order issued on 16.10.2010, and she reminded again on 26.04.2011, but of no avail. Thereafter, the applicant filed another OA No.841/2012, with MA-699/2012 praying for condonation of delay in filing the said OA. The MA for condonation of delay was allowed, and the case filed by the applicant in OA No.841/2012 against the order dated 16.10.2010 denying grant of Assured Career Progression (ACP, short) to her was entertained, and a final order was passed in that OA No.841/2012 on 14.03.2012, from a perusal of which it appears that the applicant had not brought to the notice of the Bench hearing that OA the order dated 11.05.2010 already passed in OA No.799/2009 by an earlier concurrent Bench, and the following orders came to be passed:-
MA-699/2012 This MA has been filed for condonation of delay in filing the OA. The MA is allowed for the reasons stated therein and in the interest of justice.OA.841/2012
1. The grievance of the applicant is that vide order dated 16.10.2010 his representation for grant of ACP was wrongly been rejected by the respondents.
2. It is the case of the applicant that his upgradation from the post of Librarian in the pay scale of Rs. 55-175-9000/- to the post of ALIO in the pay scale of Rs. 6500-200-10500/- was not a promotion but merely an upgradation but that it has been wrongly treated as a promotion by the respondents.
3. He has also stated that the order dated 16.10.2010 has been issued without consulting the DOP&T which, in para 11 of ACP Scheme (Annexure A-15) has clearly provided that:-
11. Any interpretation /clarification of doubt as to the scope and meaning of the provisions of ACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The learned counsel requests that a direction be given to the respondents to re-consider his case after reference to the DOP&T and then take a decision in the matter in accordance with the clarifications received.
4. In view of the above limited request, this OA is disposed of at the admission stage itself (without going into the merits of the case) by directing the respondents to refer the case of the applicant to DOP&T (Estt.D) for necessary clarification and thereafter to pass appropriate orders in accordance with the clarification received. The final order passed may be communicated to the applicant through a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order.
5. The OA stands disposed of as above. No costs.
8. This order of the Tribunal also was considered by the respondents, and they passed their final order dated 06.07.2012, with the Director, NGMA, again reiterating the same position which had already been assailed by her twice before this Tribunal. She thereafter sought certain information under the RTI Act from the Department of Personnel & Training (DoP&T, in short), which was supplied to her through letter dated 14.08.2012. She then applied for information under RTI Act from the NGMA itself, and was supplied the same along with photo copies of the Note Sheet etc. through the NGMAs letter dated 29.10.2012.
9. Applicant has submitted that she took some time in studying and arranging all the documents, and found that the plea taken by the respondents was erroneous, and then she again decided to approach the Courts of law, and engaged another counsel in January, 2013, who thereafter took some more time to go through the entire set of papers of various OAs, and the orders passed therein, and then decided to file a review against the order dated 11.05.2010, as it was based totally on wrong facts. By giving such long explanation and history, the review applicant had sought condonation of delay of 31 months in filing the Review Application No.69/2013 in OA No.799/2009.
10. In the main Review Application itself the applicant has taken the ground that there were factual and legal errors apparent on the face of record in the order dated 11.05.2010 passed by this Tribunal in her OA No.799/2009, and the Tribunal had failed to decide all the points raised and argued by the applicants counsel, and all the facts had not been adjudicated upon. She has submitted in the RA that she had approached the Tribunal for a direction to the respondents to grant her the benefit of ACP Scheme, by granting her next higher scale of pay of Rs.10,000-15200 w.e.f. 27.01.1994, the date on which she completed 12 years of her service. But the Tribunal had dismissed the OA through the order already reproduced above erroneously holding that the applicant had received two promotions, one as Research Assistant and the second as Assistant Librarian and Information Officer (ALIO, in short), and that the Tribunal had erroneously relied upon the Honble Apex Court judgment to hold that appointment as Research Assistant was a promotion, and it was further erroneously held by the Tribunal that the promotion as ALIO was not disputed.
11. The applicant has further taken the ground in the RA that her appointment as Research Assistant was not by way of promotion at all, but that it was a case of direct recruitment, and later the conferment of the post of ALIO upon her was also not a result of any promotion, but rather it was only a re-designation as per Govt. of India order dated 20.10.1999, and in terms of which facts, the order of the Tribunal dated 11.05.2010 was erroneous, both on facts as well as on law.
12. Trying to re-argue the facts of her case, she had submitted that her case before the Tribunal was that she was working as Technical Assistant in the Bureau of Promotion of Urdu (BPU, in short) from 1978, and when on 03.07.1981, the Department of Education in the Ministry of Education and Culture wanted to fill up the post of Research Assistant on an ad hoc basis, she had also applied along with many others, and was subjected to written test and interview, and thereafter selected to the post of Research Assistant, and appointed to that post first on ad hoc basis on 27.01.1982, and was regularized later, and, therefore, it could not be a case of her promotion as Research Assistant, as no DPC was held, and no ACR folders were seen and analysed. She submitted that the Tribunal had erred in holding that her appointment as Research Assistant was a promotion. In the result, she had prayed for the RA to be allowed, and the order passed in the OA No.799/2009 dated 11.05.2010 to be recalled.
13. Under Rule-17 of the CAT (Procedure) Rules, 1987, it has been clearly provided that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of a copy of the orders of the Tribunal sought to be reviewed. An exception could perhaps have been made by us if the applicant had been able to prove that she was not aware of the order passed in her case by a concurrent Bench on 11.05.2010, and had then explained the delay in filing the R.A. on day today basis when any such M.A. for condonation of delay could perhaps have been considered, if it had not been hit otherwise by any decided case law. However, this case stands on an entirely different footing. The applicant has been fully aware of the 11.05.2010 judgment in her case. She represented on the basis of this on 13.06.2010 before the respondents, and had later also resorted to filing of another OA No.841/2012 thereafter, with more or less similar prayers, though we have not examined the OA paper-book as filed in OA No.841/12 to see as to whether she had actually disclosed in that about her earlier OA No.799/2009 having been decided by a concurrent Bench in a particular manner or not.
14. In these circumstances, when admittedly there is a delay of 31 months in filing the R.A., to our mind the Review Application is not maintainable, and both the MA No.905/2013 praying for condonation of delay in filing the Review Application, and the Review Application No. 69/2013 seeking a review and recall of the order dated 11.05.2010 are, therefore, rejected.
OA No.698/201315. This OA has been filed by the applicant in the fifth round of original side litigation before this Tribunal, as she had earlier filed OA No.2464/1994, OA No.52/2000, OA No.799/2009 and OA No.841/2012 before this Tribunal, apart from RA No.69/2013 filed in OA No.799/2009. Most of the facts of the case of the applicant have already been discussed above while considering her Review Application No.69/2013.
16. On 22.11.1978, the applicant was appointed as Technical Assistant (Library) on temporary basis in the BPU, Ministry of Education & Culture, Department of Education, and as per her own submissions, when the Department of Culture advertised for filling up three posts of Research Assistants on Direct Recruitment basis on 03.07.1981, she had applied, got selected and joined the post on 27.01.1982. Her appointment was regularly/confirmed in 1985.
17. On the basis of the recommendation of IV Central Pay Commission (CPC, in short) w.e.f. 01.01.1986, her pay scale was revised from Rs.550-900 to Rs.1640-2900, and later, w.e.f. 01.01.1996, as per the recommendations of the V CPC, her pay scale was revised from Rs.1640-2900 to Rs.6500-10500. We have gone through the case of the applicant in detail. Her appointment on 27.01.1982 was purely on ad hoc basis, and did not confer on her any right for regular or long term appointment as Research Assistant, and her pay was fixed to remain only at the minimum of the pay scale of Rs.550-900, at Rs.550. Therefore, such an order of her ad hoc appointment cannot be called an order of substantive appointment. The BPU later on considered her case through a Committee, and appointed her to officiate as Research Assistant in the scale of Rs.550-900 on regular basis w.e.f. 24.05.1985. BPU was abolished in 1996, and was merged in a newly constituted National Council for Promotion of Urdu Language (NCPUL, in short), a Society under the administrative control of the Department of Education in the Ministry of Human Resource Development. Even before such merger, the applicant had filed OA No.2464/1994, apprehending difficulties on the likely conversion of BPU into an Autonomous Body. That OA was dismissed as premature on 14.12.1994, indicating that the dismissal would not bar any remedy being sought by the applicant later, if difficulties came her way on any such an eventuality arising.
18. When the National Council for Promotion of Urdu came into being as an Autonomous Body w.e.f. 01.04.1996, the applicant, who was a Government servant while in BPU opted to remain in the Ministry, as a Government servant, rather than joining the newly constituted Autonomous Body. Since there was no work for her remaining in the Ministry, as was noted by the Bench while deciding her second O.A. No.52/2000 on 11.09.2000, she was declared a surplus Government employee on 19.08.1997, though her pay was fixed in the pay scale of Rs.5500-9000 w.e.f. 01.01.1996.
19. The question before the Bench then was as to when the revision of pay scales subsequent to the IV Pay Commission had taken place from 01.01.1996, and the BPU had ceased to exist only from 01.04.1996, when the newly constituted Autonomous Body National Council for Promotion of Urdu came into being, could the V Pay Commissions pay scale have been implemented w.e.f. 01.04.1996 in the case of the applicant, and similarly placed people, like done in the case of Central Hindi Directorate, and Central Institute of Indian Languages, and two other Subordinate Offices of the Education Department of the Union of India. Union of India had pleaded that since BPU had ceased to exist, there was no question of granting its staff the revised pay scale. It was further pointed out that a similar order had been passed on 05.05.2000 by a coordinate Bench of this Tribunal in OA No.1287/99 filed by one Shri Bashir Ahmed, dismissing a similar application, and it was further pointed out that even the Pay Commission had not made any recommendation in regard to pay fixation of the employees of such an organization, which had already been closed. The Bench that day concluded that when in all the institutes similar to BPU the recommendations of the V Pay Commission were implemented as on 01.01.1986, and the BPU came to be abolished only on 31.03.1996, therefore, there is no reason why a Research Assistant in BPU should have been treated in a different manner. Distinguishing the case from OA No.1287/99 Bashir Ahmed decided on 05.05.2000, the applicants OA No. 52/2000 had been allowed, and the respondents had been directed to consider the grant of replacement pay scale of Rs.6500-10500 to her. But since she had in the meanwhile opted to remain in the Ministry itself, she had nothing to do with the Respondent No.2 of the OA. The Bench had noted that she had been declared as a surplus Government employee on 19.08.1997, and on 28.10.1997 two months after her having been declared as surplus on 19.08.1997, her pay had, therefore, been fixed in the pay scale of Rs.5500-9000 w.e.f. 01.01.1996, while she was continued in the Surplus Cell.
20. The applicant remained in the Surplus Cell of the DoP&T for about 8 months, and vide Office Order dated 07.04.1998, she was re-deployed and appointed as Librarian in the National Gallery of Modern Art (NGMA, in short), in the same pay scale of Rs.5500-9000, since in terms of the DoP&T Notification dated 28.02.1990, redeployed surplus staff are entitled to draw the same basic pay and scale of pay, as they were drawing in their parent department prior to such redeployment. The applicant had, however, not been satisfied with all this, and the Union of India also had, in the meanwhile, filed a Writ Petition No. 3179/2002 before the Honble Delhi High Court, against the orders passed by this Tribunal. It appears that this judgment went against the contentions of the Government, even though we have not been extended the benefit of the judgment of the Honble Delhi High Court being filed before us for our perusal and consideration by either side.
21. A letter dated 13.05.2009 (Page-32 of the paper book) discloses that the Union of India had then approached the Honble Apex Court, and filed a Civil Appeal No.5087/2007 arising out of SLP (C) No.6635 of 2005 Union of India and another vs. Mahajabeen Akhtar, the applicant before us. In that, the Honble Apex Court judgment was pronounced on 01.11.2007, in which the Honble Apex Court had upheld the contention advanced on behalf of the Union of India, and the issue had been decided in favour of the Government. However, in exercise of its discretionary jurisdiction under Article 142 of the Constitution of India, the Honble Apex Court had decided to allow to maintain the benefit granted to the respondent before it, the applicant before us in the present OA.
22. The necessary sequel recognized and mentioned in that letter was that she was held to be entitled to the higher scale of pay wrongly fixed in her case, and the arrears granted to her were also protected, though as per the Honble Apex Court judgment, which was in personam, and not in rem, any other similarly placed employees of the erstwhile BPU, who were now working with NCPUL, unlike the applicant, were held to be disentitled to the benefit of the aforesaid judgment. Therefore, it was decided by the Union of India to implement the judgment and order dated 11.09.2000 passed by this Tribunal in OA No.52/2000 in respect of the applicant only, and continue the wrongly granted pay scale of Rs.6500-10500 w.e.f. 01.01.1996 in her case on personal basis, with all consequential benefits, but it was mentioned that since this higher pay scale had been extended to her as granted by the Honble Apex Court to her not on the basis of merit, but since the Apex Courts directions were under Article 142, and no legal course was available with the Government, and, therefore, it was not to be treated to be in rem, or as a precedent. It was this order of the Honble Apex Court, which must have been perused by the concurrent Bench while passing the order dated 11.05.2010 in OA No.799/2009, although in her R.A., as discussed above, the applicant has submitted that there was no such judgment which could declare the applicant as having been promoted to the post of Research Assistant.
23. However, certain aspects had intervened in between, which the applicant has brought out in her list of dates and events, though she has not brought it out clearly in her main OA. With effect from 20.10.1999, Govt. of India had reorganized the NGMA Library according to their categorization based upon the size of the Library, and the Library of the NGMA was so categorized that the applicants post came to be re-designated as ALIO w.e.f. 20.10.1999. Now, without mentioning that she had been granted some extra-ordinary benefit by the Honble Apex Court in personam, under its extra ordinary powers under Article 142 of the Constitution of India, while deciding her Civil Appeal No. 5087/2007 on 01.11.2007, the applicant has sought to be equated with certain other employees of the NGMA like Smt. Neelam and Shri T.K. Sarkar etc. She has, therefore, challenged the fixation of her pay, and denial of her claimed legitimate right of ACP benefit, which Scheme had been implemented by the respondents w.e.f. 09.08.1999. She has further sought protection under the DoP&T Clarification dated 10.02.2000 in regard to Point of Doubt No. 4,5 & 6, which has been reproduced by her as Annexure A-8.
24. The applicant has assailed the actions of the respondents stating that the word of promotion was never used in Review Committees report for Library Staff, but in order to misguide the DoP&T, the NGMA Authorities had inserted the word Promotion, in order to deny to her the legitimate right of the benefit of ACP Scheme. She has submitted that if it had been a case of promotion, then her pay would have been fixed under FR 22 (1) (a) (i). She has submitted that ever since her direct appointment as Research Assistant, she had remained in the same pay scale of Rs.6500-10500 (pre-revised), and that she had not been granted any higher pay scale, and had also been denied the benefit under the ACP Scheme, and now under the MACP Scheme also, and though more than 31 years have elapsed, she has not been granted any promotion. She has, therefore, claimed that she is entitled to first and second financial upgradations under the ACP Scheme from the date she completed 12 years and 24 years of service, and after completion of 30 years of service, she is entitled to her third MACP benefit, as well as arrears, along with 12% interest. In the result, she has prayed for the following reliefs:-
i) The respondents may be directed to grant benefits of ACP/MACP w.e.f. the date she became eligible, with arrears and interest. Her pay may accordingly be refixed and arrears released with interest.
ii) All consequential benefits may be granted to the Applicant.
iii) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.
iv) Cost of the proceedings be awarded in favour of the Applicant and against the Respondents.
25. Respondents filed their counter reply on 25.09.2013, explaining in detail the facts of the case about the applicants appointment as a Technical Assistant in the BPU on 22.11.1978, and, thereafter, her promotion to the post of Research Assistant in the BPU in the pay scale of Rs. 550-900, w.e.f. 24.05.1985, on regular basis. They had further submitted that on the basis of the recommendations made by the Review Committee on Library staff vide Ministry of Finance, Department of Expenditures OM dated 24.07.1990, the NGMA Library has already been declared Category-II Library, and, accordingly, post of Librarian carrying the pay scale of Rs.5500-9000 (pre-revised Rs.1640-2900) was upgraded to the post of ALIO in the pay scale of Rs.6500-10500 (pre-revised Rs.2000-3500) vide Ministry of Human Resource Development, Department of Culture OM dated 20.10.1999 (Annexure R-3).
26. With this, the post of Librarian in NGMA became a Group B Gazetted post, carrying higher duties and responsibilities, in the pay scale of Rs.6500-10500. It was submitted by the respondents that the promotion of a person to the post carrying higher duties and responsibilities is not automatic, and depends upon the suitability of the person to the post, and thereby the applicant had got another promotion to the post of ALIO. They had submitted that in the light of this, they had re-considered the case of the applicant, in the light of this Tribunals directions dated 11.05.2010 passed in her second OA No.799/2009, and an appropriate reply had been sent to her on 16.10.2010. The applicant had then filed a fourth OA thereafter, OA No. 841/2012, alleging that the reply dated 16.10.2010 furnished after considering her case had been issued without consulting the DoP&T, and the Tribunal had then directed the respondents to refer her case to the DoP&T for seeking clarifications. Even that was done, and the DoP&T clarification also was obtained, and, thereafter, orders dated 04.07.2012 were issued informing her accordingly (Annexure R-7). They had, therefore, submitted that there is no merit in the present (fifth) OA, as the applicant has already got two promotions so far, i.e., first promotion from the post of Technical Assistant to the post of Research Assistant while in BPU, and second promotion from the post of Librarian to the post of ALIO in the NGMA, during her service period of 24 years. However, they had conceded the entitlement of the applicant to third financial upgradation under MACP on completion of 30 years of service. They had, therefore, prayed that the present OA may be dismissed, being devoid of any merit with costs.
27. We may take the liberty to reproduce here the view which has been taken by the same Bench in OA No.1678/2007 Mrs. Pratibha Prashar vs. Union of India on 13.08.2013, by stating as follows:-
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
11.Office/Director 5900-6700 -do-
12. 7300-7600 -do-
2.2 xxxxxxxxxxxxxx(Not reproduced here).
Placement of Existing Library Staff in the Revised Grades
3.1The 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.
3.2The 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 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.
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.
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
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. xxxxxxxxxxxxxxxxx(Not reproduced here)
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. xxxxxxxxxx (Not reproduced here).
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.
28. From the Table below para 4.1 of the OM dated 24.07.1990, reproduced in Mrs. Pratibha Prashar (supra) above, we may see that in all those cases where the designations of Librarians were changed to ALIO, the pay scale fixed was Rs.2000-3500 in the IV Pay Commissions pay scales. The applicant has, as per her own admission, been in the pay scale of Rs.1640-2900, when, as per the IV CPCs recommendations, her pay scale had been revised w.e.f. 1.1.1996 from Rs.550-900 to Rs.1640-2900. Therefore, it is obvious that if she was the Librarian Incharge at NGMA, her being designated as ALIO would have entitled her to promotion from the lower pay scale of Rs. 1640-2900 to the higher pay scale of ALIO Rs.2000-3500, and it would amount to a promotion in her case. Since such promotion in her case took place on 20.10.1999, as per her own submission in the list of dates and events, and in the body of the OA, she has to be held to have already been given one promotion from that date. However, the introduction of the ACP Scheme w.e.f. 09.08.1999 had intervened, making her eligible for grant of ACP benefit from that date, which ought to have been adjusted against her future substantive promotion. But the respondents had not granted ACP from that date of 09.08.1999, but had, instead, fixed her salary on her promotion with re-designation w.e.f. 20.10.1999, in accordance with the terms of Govt. of Indias OM dated 24.07.1990, and the Table below para 4.1 of that OM.
29. The applicant has, in the present OA, sought protection behind clarification on points of doubt No. 4, 5 and 6 issued through DoP&T OM dated 10.02.2000 to claim the benefit as prayed for by her. However, as was noted in the aforesaid judgment Mrs. Pratibha Prashar (supra) dated 13.08.2013, the case of Library Staff was a case of rationalization of cadre, and, therefore, the clarification No.35 contained in OM dated 18.07.2001, clarifying the 35th point of doubt in the ACP Scheme was instead applicable, which was discussed in detail in that order dated 13.08.2013 (supra).
30. In that OA No.1678/2007 decided earlier, in the case of Mrs. Pratibha Prashar (supra) also, her case was that the respondents were at fault in having denied her the benefit of ACP upgradation, since she had only been upgraded, but not promoted, in the reorganization and categorization process of the Libraries, which took place in her Organization in 1996. In the present case, the applicant had first become entitled to ACP financial upgradation benefit on the date that Scheme came into force on 09.08.1999, and such financial upgradation being later on adjusted upon her promotion in substantive capacity through Library reorganization, which had taken place in NGMA on 20.10.1999.
31. After having discussed and considered the case of the applicant in great detail above, as flowing from the orders of this Tribunal in her four previous OAs, and the Honble Apex Court judgment in Civil Appeal No.5087/2007 arising out of SLP (C) No.6635 of 2005 Union of India and another vs. Mahajabeen Akhtar, judgment dated 01.11.2007, we have given our anxious consideration to consider as to what prayers of the applicant as made out in this O.A. still survive.
32. The applicant had been appointed as Technical Assistant (Library) in BPU on 22.11.1978, purely on temporary basis. Nothing appears to have been brought on record in all the four previous OAs, as well as in the present OA, and in the facts as narrated by both the sides, that her services were ever confirmed as Technical Assistant, and she had come to occupy a substantive post of Technical Assistant (Library) in B.P.U. For determining her continuous period of employment as a Govt. servant, respondents have, therefore, to examine as to whether the applicant had ever come to occupy the said post of Technical Assistant (Library) in BPU in substantive capacity by 23.05.1985. We direct accordingly.
33. On 03.12.1981, through Annexure A-1, she had been called for an interview on 23.12.1981 for appointment to the post of Research Assistant, got selected, and was appointed as such a Research Assistant purely on ad hoc basis, on 27.01.1982. The applicants appointment as Research Assistant was later confirmed on substantive basis by the order dated 17.07.1985, but ante-dated w.e.f. 24.05.1985 (page-16 of the paper book). It is trite law that the appointment of applicant from her earlier post of Technical Assistant (Library) to the post of Research Assistant in the higher pay scale on substantive basis w.e.f. 24.05.1985 can never be treated as a promotion, even if she had ever been confirmed in her lower post of Technical Assistant (Library) in BPU, before the said date of 24.05.1985. There is no concept in Service Law of promotion when there has been a process of selection for a new Cadre, by way of a substantive appointment. Promotion can only be by the process of Departmental Promotion Committee, from one substantive appointment to another substantive appointment in the same Cadre or Channel or Avenues of Promotions prescribed in appropriate Recruitment Rules. When the applicant came to occupy the higher post of Research Assistant, for which she had been selected through a proper process of selection for recruitment, on regular and substantive basis w.e.f. 24.05.1985, through the orders passed on 17.07.1985, such a change in her designation due to her proper selection under a process of recruitment to a new Cadre cannot be called a promotion, and has only to be called as Direct Recruitment to the said post and Cadre of Research Assistant.
34. Thereafter, on 09.08.1999, when the ACP Scheme came into being, and the applicant was working in the re-deployed post of Librarian in NGMA in the same pay scale of Rs.550-900 to which she had been appointed in the BPU earlier as a Research Assistant substantively, she became entitled to the grant of ACP financial upgradation benefit, which would be her first ACP benefit, since she had certainly completed more than either counting 12 years from the date of her temporary appointment on 22.11.1978 in the post of Technical Assistant (Library), if she had ever substantively occupied, and had been confirmed against that post, or counting 12 years from 27.01.1982, the date she joined the post of Research Assistant on an ad-hoc basis, against which she acquired a lien w.e.f. 24.05.1985, 12 years of substantive service in either of these scenarios as on the date of introduction of the ACP Scheme on 09.08.1999.
35. However, in between, even though the applicant had always remained a Government servant, and had even moved to the Surplus Cell when BPU was closed down, and was re-deployed later on from the Surplus Cell to the NGMA (Library), she had agitated for grant of pay scales to be placed at par with those of her erstwhile BPU colleagues, who had been granted higher grades in the newly created autonomous body of NCPUL. She had claimed parity with her erstwhile BPU counter-parts, who had differed from her, and had moved from the BPU to the NCPUL, rather than deciding to stick with the present applicant, and to remain Government employees, like the applicant. Somehow, a Coordinate Bench of this Tribunal had, through order dated 11.09.2000 in her OA No.52/2000, ordered the upgradation of her pay scale from Rs.5500-9000 to that of Rs.6500-10500, perhaps by somehow having overlooked the fact that the applicant having always remained a Government servant, and having never moved along with her erstwhile BPU counterparts to NCPUL, she could not have claimed parity with her former BPU colleagues, with whom she had differed, and along with whom she had not moved to NCPUL.
36. The error in that order dated 11.09.2000 of this Tribunal in OA No.52/2000 was accepted by the Honble Apex Court while deciding the Civil Appeal No.5087/2007 arising out of SLP (C) No.6635 of 2005 Union of India and another vs. Mahajabeen Akhtar on 01.11.2007, but in exercise of its extra-ordinary jurisdiction to be complete Justice under Article 142 of the Constitution of India, the Honble Apex Court had allowed her to keep and maintain the benefit of the higher pay-scale which had been wrongly granted to her. The letter dated 13.05.2009 (page-32 of the paper book) as discussed in Paragraphs 21&22/above, had, therefore, rightly conveyed the Governments decision that since the judgment of the Honble Apex Court was in personam, favouring the present applicant, and not in rem, its ratio could not be applied to the other employees of NCPUL, who were as it is not at par with her, because she had always remained a Government servant, while they had moved to the newly created autonomous body, NCPUL, when the erstwhile Subordinate office of the Government (BPU) was closed.
37. However, a benefit granted to an individual in benevolence by the Honble Apex Court, in exercise of its Extra-Ordinary powers to do complete justice under Article-142 of the Constitution of India, cannot be called a promotion in any manner whatsoever. Therefore, even though by operation of the Honble Apex Courts order dated 01.11.2007, the order dated 11.09.2000 passed by this Tribunal in OA No.52/2000 became final inasmuch as the applicant is concerned, and her pay scale stood revised from Rs. 5500-9000 to Rs. 6500-10500, by virtue of the operation of the Honble Apex Courts order having granted her this Extra-ordinary relief, in exercise of its Extra-ordinary jurisdiction under Article 142 of the Constitution of India, that was not a promotion.
38. But, as we have discussed by comparing her case with that of Mrs. Pratibha Prashar (supra), w.e.f. 20.10.1999, she indeed got a promotion, by being placed in a Group B service and pay scale of ALIO. Therefore, after examining the status of her selection as Research Assistant in 1982, and regularization in 1985, as being a directly appointed Research Assistant, and treating her being placed in a Group B pay scale w.e.f. 20.10.1999 in NGMA as a promotion, the respondents are directed to examine her case afresh accordingly, and pass suitable orders, considering the fact that under MACP Scheme, she would become entitled to 3rd MACP benefit after completion of 30 years of her service, either from the date of 22.11.1978, if her temporary appointment as a Technical Assistant (Library) had ever been regularized, or by counting 30 years of her service from 27.01.1982, the date she joined the post of a Research Assistant on an ad-hoc basis, though after having faced a due process of selection for fresh recruitment.
39. The O.A. is, therefore, disposed of accordingly, with the above directions to the respondents, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.