Central Administrative Tribunal - Delhi
Mrs. Sushma Rani Jain vs Govt. Of Nct Of Delhi Through on 2 April, 2013
Central Administrative Tribunal
Principal Bench
OA No.1967/2012
Reserved on: 13.03.2013
Pronounced on: 02.04.2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
Mrs. Sushma Rani Jain
w/o Mr. D.S. Jain,
r/o F-267, Saraswati Kunj Aptts.,
Plot No.25, I.P. Extn.,
New Delhi-110092.
Working as Lecturer under Respondent No. 3 &
Posted at SKV, East Vinod Nagar, New Delhi-110091.
-Applicant
(Applicant present in person)
Versus
1. Govt. of NCT of Delhi through
Chief Secretary,
Delhi Secretariat (5th Floor), I.P. Estate,
New Delhi-110002.
2. Secretary (Education),
Govt. of NCT of Delhi, Old Secretariat,
Delhi-110054.
3. Director of Education,
Govt. of NCT of Delhi,
Directorate of Education, Old Secretariat,
Delhi-110054. -Respondents
(By Advocate: Mrs. Renu George)
O R D E R
Mr. Sudhir Kumar, Member (J):
The applicant of this O.A. argued this case in person before us. She is aggrieved by the respondents having denied her the benefit of the Modified Assured Career Progression (MACP) Scheme, introduced for the Central Government Civilian employees w.e.f 19.05.2009, and adopted by the Government of NCT of Delhi (NCTD, in short), Department of Education subsequently. She is before this Tribunal praying for the following reliefs:
1) The Respondent may be directed to release all MACP III benefits already granted vide their MACP Order dated 25.03.2010 & consequential increase in financial allowances etc. immediately i.e. within reasonable time schedule which may be allowed by the Honble Bench from date of order.
2) The Respondents may be directed to issue orders for revision of all Retirement Benefits [Gratuity, Leave Salary, Pension & Commutation of Pension etc] immediately, i.e., within reasonable time schedule which may be allowed by the Honble Bench from date of order.
3) The Respondents may be directed to pay all past financial arrears of pay till date of actual payment i.e., including period of Re-employment & Retirement Benefits with 15% interest thereon w.e.f. 25.03.2010 within one month period from date of your order.
4) The Applicant submits that all officials of Respondent are highly qualified & experienced and as such may be expected to be capable enough to have implemented the unambiguous clear instructions of DOPT. In view of this, if considered reasonable & equitable by the Honble Court, the Respondents may be directed to
a) fix responsibility of all officials responsible for withholding financial benefits for such long time &
b) recover the amount of interest from them, so that they do not cause similar agony & harassment to any other employee now.
5) The Respondents may be directed to file Compliance Report of Orders of this Honble Court within reasonable time specified by the Honble Bench from date of said order.
6) Any other relief/order considered fair & equitable by the Honble Bench may also be given so as to prevent similar mental agony & harassment to other employees.
2. The applicant had joined the services in the Department of Respondent No.3 on 11.02.1972 as a Trained Graduate Teacher (TGT). She was promoted as a Post Graduate Teacher (PGT) w.e.f. 26.11.1983 in the then pay scale of Rs.550-900. The applicant was further granted Senior Scale of Rs.2000-3500 as such P.G.T. w.e.f. 26.11.1995. She has submitted that she had reached the end of the said Senior Scale also, and she was stagnating w.e.f. 1.11.2006.
3. After the introduction of the VI Central Pay Commissions recommendations, the applicant was placed in Pay Band 3 (Rs.15600-39100) with Grade Pay of Rs.5400/-. In between the MACP Scheme had been notified, to be given effect to with retrospective effect from 1.9.2008. The case of the applicant is that since she had completed 30 years of regular service on 11.02.2002, and, therefore, she became eligible for grant of 3rd financial upgradation w.e.f. 1.9.2008 under the MACP Scheme. Her submission is that the respondents also recognized this, and through their order dated 25.03.2010 (Annexure A/2, pages 35-39 of the OA), they had ordered for the grant of the 3rd financial upgradation to her in the grade pay of Rs.6600 in P.B. 3 w.e.f. 1.9.2008. However, even after issuance of that order, the respondent No.3 has, through his subordinate offices, managed to withhold release of the 3rd MACP benefit financial upgradation to her, on the ground that she had earlier refused an offer of regular promotion, and her contention is that refusal of offer of regular promotion should be distinguished from the request for non-consideration of her name in the draft eligibility list, which the respondents have failed to appreciate. Her contention is that in doing so, the respondents have flouted the instructions of DoP&T issued in regard to the Departmental Promotion Committee (DPC) and related matters through the OM dated 10.04.1989 (Annexure A/3, pages 40-82 of the OA).
4. In support of her contention, the applicant also cited the judgment dated 20.06.2003 of Mumbai Bench of this Tribunal in OA No.129/2000 in the case of V.R. Patil & Others v. Union of India & Others, which had been published in the Dixits School Manual, extracts from which she has produced at Annexure A/4, pages 83-84 of the OA), in which it was stated that if an employee has refused the promotion before the enforcement of the same, the fact would remain that he has actually not been given promotion. On refusal of promotion, she remains on the same scale of pay, still stagnating. Thereafter, in the context of the erstwhile Assured Career Progression (ACP) Scheme, the Mumbai Bench had gone on to hold that the very motive, intention and purpose of ACP Scheme would be lost for such an employee, who, may be because of domestic reasons, or geographical reasons, may have refused regular promotion, if the ACP benefit is also denied in such circumstances, and the respondents therein were directed to restore the ACP benefits w.e.f. 8.9.1999, which were granted to the applicants, in the context of the erstwhile ACP Scheme, which has now been modified and notified as MACP Scheme (Annexure A/1). In support of her contentions the applicant had in particular pointed out para-25 of the MACP Scheme, which states as follows:
25. If a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal.
5. The applicant also relied upon the judgment of the Tribunal in OA No.2839/2004 dated 8.6.2006 (Annexure A/5, pages 85-94 of the OA) in the case of Kanta Suri v. Union of India.
6. The applicant also relied upon the printed portion of the judgment in the case of Mrs. P.C. Revathy and others v. Union of India, dated 26.10.2007, which is a partial reproduction of the Ernakulam Bench judgment in an OA, the number of which O.A. has not been mentioned by the publisher. That judgment was also delivered in the context of the erstwhile ACP Scheme, and it was held that just because the applicant has refused regular promotion prior to 9.8.1999, they could not be refused benefits under the ACP Scheme introduced on 9.8.1999, irrespective of the fact of their refusal for regular promotion prior to the date.
7. The applicant has also filed as Annexure A/7, (pages 99-101 of the OA), the judgment of the Honble High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.10225/2009 (O&M) dated 10.11.2010 Smt. Jogoinder Sethi v. State of Haryana & others, which was also delivered in the context of the ACP Scheme only. The contention of the applicant is that there is no difference between the ACP Scheme and the MACP Scheme, and that para-25 of the MACP Scheme, cited by her and reproduced above, comes to her rescue.
8. During arguments the applicant emphasized on the point that merely the appearance of her name in the provisional eligibility list for consideration for promotion, by the DPC cannot be considered as a deemed offer of promotion, and after much dithering the respondents have issued to her the clarification dated 26.06.2011 in response to her request for clarification of effective date, through Annexure A/12, clarifying that the date of issuance of promotion order is stated as an effective date of refusal of promotion for one year. The applicant, thereafter, requested for release of her 3rd MACP, sanctioned through the MACP order dated 25.03.2010, through her letter dated 16.12.2011 (Annexure A/13), and again reminded the respondents through Annexure A/14 dated 9.5.2012, but to no avail, forcing her to file the present OA.
9. In their reply/written statement filed on 3.10.2012, the respondents denied the contentions and averments of the applicant, and submitted that the benefit of 3rd MACP to the applicant was withheld because the applicant had refused to accept a regular vacancy based promotion. It was stated that the MACP Scheme OM clearly prescribes for three upgradations on completion of 10, 20 and 30 years of service respectively, but since the applicant had refused a vacancy-based promotion, therefore, within the MACP guidelines, the case of the applicant cannot be considered for the grant of 3rd MACP benefit. It was further submitted that the provisional seniority list was circulated only so that no eligible candidates were left over when the Departmental Promotion Committee considers the cases for promotion. But the applicant had, even before the meeting of the DPC itself, declined to accept the promotion, and had requested for not considering her case, and as such her name was not included in the final seniority list submitted to the DPC, and when she had refused a regular vacancy-based promotion, her case cannot be considered for grant of the third MACP benefit. The respondents had, therefore, prayed that there is no merit in the OA, and the same deserves to be dismissed with exemplary cost.
10. The applicant filed a rejoinder on 07.12.2012. She had reiterated that the respondents have failed to state any thing in regard to the various judgments cited by her in support of her case, and that they have failed to appreciate the fact that MACP Scheme was introduced with retrospective effect from 1.9.2008, even though it was notified on 19.5.2009, and that they have wrongly stated that they had ever made any vacancy-based roster after 1.9.2008, i.e., after introduction of MACP Scheme, and thus the fact remains that her entitlement to the 3rd MACP benefit, which arose w.e.f. 1.9.2008, could never be taken away from her, and that the respondents have illegally and maliciously withheld the same.
11. Heard the case in detail, and we have given our anxious consideration to the facts of the case, as well as the case-laws cited by the applicant. All the case-laws cited by her relate to the ACP Scheme, which had come into effect w.e.f. 9.8.1999, and none of the cases relates to MACP Scheme, which has come into effect from 1.9.2008.
12. It is well settled law that beneficial schemes started for its employees by the Union of India or a State Government as a model employer, by way of a safety net against stagnation, like the Union of Indias ACP Scheme, or its present modified form, the MACP Scheme, do not per se give a right to the applicant to claim those safety net benefits as a matter of right, unless all the requisite conditions are fulfilled. As the opening paragraph of the ACP Scheme dated 09.08.1999 (Annexure R-1) itself states, the intention of the Union of India behind formulating this ACP Scheme was as a Safety Net to deal with the problem of genuine stagnation and hardship faced by its employees, due to lack of adequate promotional avenues for them, because of which, even after having granted the monetary benefits of revised pay scales, after accepting the recommendations of the Fifth Central Pay Commission (5th CPC), the further recommendation of the 5th CPC to introduce the ACP Scheme was accepted by the Union of India. That Scheme was started for granting two financial upgradations to Group B, C and D employees, on completion of 12 years and 24 years of regular service respectively, provided they fulfilled all the requisite qualifications and eligibility for grant of promotions themselves, but were being denied such promotions due to stagnation in their cadre. In parallel, a Dynamic Assured Career Progression Mechanism had been granted to the stream of Doctors also.
13. Later on, on the recommendations in the report of the 6th Central Pay Commission (6th CPC), wherein some modifications were suggested, the Govt. of India came out with the MACP Scheme. There are substantial differences in the old ACP Scheme and the new MACP Scheme. The ACP Scheme was drafted when the Govt. of India was following a pattern of pay scales numbered from S-1 to S-24 for Group B, C & D employees. All the earlier five Central Pay Commissions set up by the Union of India had gradually brought in a reduction in the total number of pay scales. The 6th CPC, however, brought about the most radical change, inasmuch as it has eliminated the concept of different pay scales altogether, and has introduced the entirely new and alternative concept of Pay Bands, and associated different levels of Grade Pay. The Union of India is empowered under Article 73 of the Constitution of India to bring about such changes in its policy decisions, both with regard to pay scales, as well as with regard to any extra benefits or perquisites, which the Union of India may decide to provide to its employees, for example the introduction of benevolent and safety net schemes, in order to save them from stagnation, as was done by introducing ACPS earlier, and MACPS now.
14. It will be relevant here to compare certain paragraphs of the old ACP Scheme with the new Modified ACP Scheme, to try to elicit the differences between the two as follows:-
ACP SCHEME MACP SCHEME
1. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up-gradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second up-gradation which would also get deferred accordingly;
1. The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations, financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group A whether isolated or not. However, organised Group A services will not be covered under the Scheme
2. Two financial up-gradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-track promotion through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him;
2.The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.
3. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit;
3. In case a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment will be granted at this stage.
4. Financial up-gradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial up-gradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-III, will be eligible for the proposed two financial up-gradation only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts, which have no avenues of promotion at all. Since financial up-gradation under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
4 Promotions earned/ up-gradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
15. As can be seen from above, the ACP Scheme, introduced on the basis of the recommendations of the 5th CPC, was for providing only two financial upgradations in the case of stagnation, after 12 years and 24 years of regular service. In the MACP Scheme, introduced through Govt. of India, Department of Personnel & Training OM dated 19.05.2009, the Scheme has been modified to provide for three financial upgradations, at the intervals of 10, 20 & 30 years of continuous regular service under the Government of India. In para-3.1 of the ACP Scheme, the word continuous was not there, and only the words regular service were used.
16. 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.
17. Para 5.2 of the ACP Scheme provided that the residency period (regular service) for the grant of benefits under the ACP Scheme shall be counted in the grade in which an employee was appointed as a direct recruit. All the financial upgradations allowed under the ACP Scheme were clarified to be purely personal to the employees, and having no relevance to the seniority position, and were to be based only upon the condition of the employee concerned stagnating in the pay scale in which he found himself trapped for a period of 12 years without a regular promotion (for getting the first financial upgradation), and for 24 years without getting any promotion at all for getting the second financial upgradation. It was clarified in the ACP Scheme that in order to rationalize the unequal levels of stagnation, the benefit of surplus regular service (not taken into account for the first financial upgradation under the ACP Scheme), shall be given at the subsequent stage of consideration of his case for second financial upgradation, as a one time measure.
18. Even though the ACP Scheme introduced for the Central Government Employees had nowhere mentioned its applicability in respect of the employees who had entered into the Central Government service laterally, either by way of absorption after deputation from other State Governments, or from Public Sector Undertakings, or by way of a lateral entry permitted in any such manner, numerous clarifications had to be issued by the Union of India to clarify the different types of complications which arose later in implementation of the ACP Scheme. Many of these complications have been tried to be ironed out this time, and explained in advance even by way of illustrations, while notifying the MACPS. Further, the applicability of the MACPS is now extended not only upto Class-I, Group A officers, but is also available to the officers upto the HAG Pay Band of Rs.67,000-79,000, which was not the case in the ACP Scheme earlier, which was applicable only to Group B, C & D employees. In order to harmonize the financial upgradations given in the ACP Scheme earlier with the prescription of the MACPS, it has been provided for in Para-5 of the MACPS that the upgradations granted under the ACP Scheme in the past to those grades, which now carry the same grade pay due to merger of pay scales/upgradation of posts recommended by the Sixth Central Pay Commission, shall be ignored for the purpose of granting upgradations under the MACPS.
19. We are clear in our mind that the basic premise on which the erstwhile ACP Scheme and the new MACP Scheme have been based are themselves entirely different, though they are both based on the principle of providing relief to the Government servant suffering on account of lack of promotion in the employment, and only their names are similar sounding, but the underlined philosophy between the two schemes are entirely different.
20. Para-25 of the MACP Scheme cited by the applicant herself states that if a regular promotion had been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed, since such an employee cannot certainly be held to be stagnating due to lack of promotional opportunities in the usual course. The applicant tried to distinguish her case by saying that in her case, her refusal was not after an offer of regular promotion had been made to her, but was communicated by her even before the DPC meeting itself had been held. However, for considering the impact of this clarification in para 25 of MACP Scheme upon the case of the applicant, we have to also examine as to what has been the stand of the applicant in regard to the vacancy-based promotion, for which she had become entitled in the normal course itself, and her case was going to be considered by the DPC, as she has herself stated in her letter dated 6.5.2011 (Annexure A/11). Her submissions in the said letter were as follows:
My Employee Code is 19720101 & was working as Lecturer in Chemistry in RSKV East Vinod Nagar, New Delhi-110091.
My name appeared in Provisional Eligibility List for promotion from PGT to Vice Principal in 2008. I submitted by REQUEST dt. 27.08.2008 for NON consideration of my name for promotion in that list of 2008. I understand that DPC considered & accepted my request vide its minutes dated 24.10.2008. The Competent/Appointing Authority is understood to have approved the DPC Minutes on 31.12.2008. The consequent Promotion Order for successful candidates was issued on 31.12.2008.
I did not receive any formal communication from authorities confirming acceptance of my request for Non consideration of my name in Eligibility List for promotion. I request that a copy of such communication, if any, may be given to me now.
Further even if no formal communication as above was issued, then I humbly request you to please clarify what is the EFFECTIVE Date of my Request for non consideration of my name for promotion? Is, it 31.12.2008 (Date of approval by Appointing/Competent Authority) or 24.10.2008 [Date of DPC Minutes] or any other date?
I shall be highly grateful to you for this clarification at an early date.
(Emphasis supplied).
21. From the above submissions of the applicant, it is clear that her name did appear in the provisional eligibility list for consideration for promotions from PGT to Vice-Principal in the year 2008, but she sent her request on 27.08.2008 for non-consideration of her name for promotion in that list of 2008, which request was considered and accepted by the DPC vide its minutes dated 24.10.2008. Later on, the Competent/Appointing Authority had also approved the DPC minutes on 31.12.2008, accepting the request of the applicant by implication, and the promotion orders for the other candidates declared successful by the DPC were also issued on 31.12.2008. The applicant has, thereafter, through Annexure A/12, obtained a clarification from the respondents, stating that the date of issuance of promotion order is treated as effective date of refusal of promotion for a period of one year. Therefore, even though she sent her request for non-consideration of her name on 27.08.2008, and the DPC considered and accepted her request vide their minutes dated 24.10.2008, since the Competent/Appointing Authority approved the DPC minutes on 31.12.2008, and the promotion orders of others were issued only on 31.12.2008, the case of the applicant is that the effective date of her refusal of regular vacancy based promotion should be 31.12.2008, and not 1.9.2008, when she had become eligible for grant of 3rd MACP benefit, after having completed the minimum qualifying service of 30 years.
22. We do not find any merit in the contention of the applicant for the clarification obtained by her through Annexure A/12 to be applicable in the context of the MACP Scheme. Here is a case in which the applicant was clearly eligible for a regular vacancy based substantive promotion, from the post of PGT to Vice-Principal, in the year 2008, and even before the DPC could meet on 27.08.2008, she requested for the DPC not considering her name in that list of 2008, which request of hers was considered and accepted by the DPC in its minutes dated 24.10.2008, and accepted later by the Competent/Appointing Authority also on 31.12.2008, while approving the DPC minutes. However, in law, her refusal for being considered for a regular vacancy based substantive promotion became operative from 27.08.2008, the date when she communicated her request for non-consideration of her name for the substantive promotion from the post of PGT to Vice-Principal in the year 2008.
23. Therefore, as on the date 1.9.2008, when the MACP Scheme became operative with retrospective effect, the applicant had already earned two promotions and financial upgradations as per her own admission, and had also refused to be considered for the 3rd sure-shot chance for her substantive promotion from the post of PGT to the post of Vice-Principal, through her request dated 27.08.2008. Therefore, now the applicant cannot be allowed to turn around, and state that even though he had refused to be considered for the said promotion, just because such refusal was in anticipation of the DPC selecting her, her case would go out of the ambit of para-25 of the MACP Scheme, since no regular promotion had actually been offered to her by her employers by that date before she refused to be even considered for such promotion. We find no merit in this argument, because the applicant has herself precluded both the DPC, and then the Competent/Appointing Authority, from even considering her name, and issuing orders for her substantive promotion to the post of Vice-Principal, and she cannot now be allowed to turn around to say that they had actually not made such an offer to her at all, and that her refusal for such a promotion was not after such an offer.
24. Also, as has been mentioned and discussed above, there is a vast difference in the context and the philosophy behind the ACP and MACP Schemes, and none of the judgments cited by the applicant, which had been delivered in the context of the ACP Scheme, would come to her rescue in the context of the MACP Scheme. She had a clear chance for being substantively promoted from the post of PGT to the post of Vice-Principal, but she refused it in advance itself, even before her name came to be considered. Therefore, she cannot now be allowed to reap the financial benefits as would have been admissible to her in that post through the stratagem to her refusal first, and then a claim for the 3rd MACP financial upgradation later.
25. In the result, there is no merit in the OA, and the same is, therefore, rejected, but there shall be no order as to costs.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) cc.