Central Administrative Tribunal - Delhi
Dr. (Mrs) Gurpreet Kaur vs Government Of National Capital ... on 16 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1684/2012 New Delhi this the 16th day of January, 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Dr. (Mrs) Gurpreet Kaur W/o Shri Surinder Kumar Singh Aged about 48 years Presently working as Trained Graduate Teacher (Drawing) Government Co-Ed Senior Secondary School Kavita Colony, Nangloi Delhi-110041 Applicant (Through Mr. A.K. Behera, Advocate) VERSUS 1. Government of National Capital Territory of Delhi Through Principal Secretary Department of Education, Delhi Government Secretariat, New Delhi-110002 2. Director of Education Government of National Capital Territory of Delhi Old Secretariat, Civil Lines, Delhi 3. Chief Secretary Govt. of NCT of Delhi, Delhi Government Secretariat, New Delhi-110002 Respondents (Through Mr. Vijay Pandita, Advocate) O R D E R Mr. P.K. Basu, Member (A):
The applicant joined Bhai Joga Singh Khalsa Girls Senior Secondary School, New Delhi (hereafter referred as the Khalsa School) on 26.10.1990 against the permanent post of Drawing Teacher, also designated as Trained Graduate Teacher (Drawing), in the pre-revised pay scale of Rs.1400-2600/- and was placed on probation for a period of one year. The school is an aided school of Government of National Capital Territory of Delhi (GNCTD) and the GNCTD meets 95% of the expenditure of the school as grant-in-aid. The respondents could appoint teachers only with the prior approval of the education department of the GNCTD. Vide letter dated 19.09.1994, the applicant was offered the post of TGT (Drawing) in the pre-revised pay scale of Rs.1400-2600/- under the GNCTD. She was relieved of her duties in the Khalsa School on 24.09.1994 and joined as TGT (Drawing) under the GNCTD. 25.09.1994 being a Sunday, she joined on her new post on 26.09.1994 i.e. there was a break of one day. Vide order number 956 dated 20.11.2001, with the approval of the Honble Lt. Governor of Delhi, she was given the benefit of service rendered by her in the Khalsa School in the matter of fixation of pay and vide order number 990 dated 22.02.2000, the respondents granted sanction for counting of past service rendered by the applicant in the Khalsa School during the period 26.10.1990 to 24.09.1994 for pensionary benefits. The break of one day of 25.9.1994 was also condoned by the respondents vide order No.2022 dated 22.5.2000. If her past service from 26.10.1990 to 24.09.1994 has to be counted, she becomes entitled for first financial upgradation under the ACP Scheme with effect from 26.10.2002. The respondents also granted her the first financial upgradation from 26.10.2002 vide order dated 3.03.2009. Thereafter, the MACP Scheme was introduced and the provision of three financial upgradations after 10, 20 and 30 years of continuous regular service was made. The MACP Scheme became effective from May, 2009. As per the applicant, she became entitled to the second financial upgradation under the MACP Scheme i.e. on completion of 20 years of service, with effect from 26.10.2010. Meanwhile, the respondents issued impugned circular dated 29.04.2010 conveying that service rendered by any teacher/ official in any aided school before absorption in the GNCTD shall not be counted for the purpose of financial upgradation under the ACP Scheme and the MACP Schemes. When the applicant requested for second financial upgradation based on the MACP Scheme, instead of granting the second financial upgradation, the respondents shifted the first financial upgradation date from 26.10.2002 to 26.09.2006. Vide order dated 20.04.2012 her claim for counting of past service in Khalsa School for ACP/MACP was also rejected. This is the reason why this OA has been filed with the prayer to declare that circular dated 29.04.2010 cannot be retrospective in operation and thus is not applicable in the facts and circumstances of the case and, therefore, should be quashed and set aside. The other prayer made is to set aside and quash impugned orders dated 30.01.2012 and 20.04.2012 with all consequential benefits and lastly, direction is sought to be given to the respondents to grant second financial upgradation to the applicant with effect from 26.10.2010.
2. Heard both sides.
3. The grounds on which the applicant stakes her claim are that the Khalsa School is sanctioned grant-in-aid by the GNCTD; the respondents regularized one day break in service on 25.09.1994; gave GPF contribution/ pension for the service rendered in Khalsa School; gave pay fixation benefit for the service rendered by her in the Khalsa School; and counted past service towards pensionary benefits.
4. It is argued that due to above facts, it is clear that the service rendered by the applicant in the Khalsa School is to be considered as service rendered under the GNCTD and, therefore, she was entitled to the first financial upgradation under the ACP Scheme from 26.10.2002. In fact, the Screening Committee found her fit for grant of financial upgradation from 26.10.2002 and she was granted the financial upgradation. Ostensibly, the shifting of date from 26.10.2002 to 26.09.2006 was based on the impugned circular dated 29.04.2010 which provides as follows:
It is hereby brought to the notice of all concerned that service rendered by any teacher/ official in any Aided school, before absorption in the Directorate of Education, shall not be counted for the purpose of grant of financial up-gradation under the ACP/MACP Schemes.
This issues with the prior approval of the Director of Education. According to the applicant, this circular of April, 2010 cannot be applied retrospectively in her case and, therefore, the order dated 30.01.2012 by which the date of financial upgradation has been shifted, needs to be quashed and set aside.
5. It is also argued on behalf of the applicant that under the MACP Scheme OM dated 19.05.2009, regular service commences from the date of joining of a post in direct entry grade on regular basis either on direct recruitment basis or on absorption/ re-employment basis. However, past regular service in another government department in a post carrying same grade pay prior to regular appointment in a new department, without a break, is also to be counted towards regular qualifying service for the purposes of MACP Scheme only (and not for regular promotions). It is thus argued that because of this provision, the applicant became entitled to the second financial upgradation under the MACP with effect from 26.10.2010.
6. The respondents in their counter have stated that it is true that the applicant was awarded first ACP with effect from 26.09.2002 previously but on considering the conditions mentioned in DoP&T order dated 9.08.1999 and clarification dated 10.02.2000, her date of ACP was shifted to 26.09.2006 as ACP is meant for Central Government employees and not for autonomous bodies. The order dated 30.01.2012 was issued pursuant to the order dated 29.04.2010 according to which the aided school service is not considered to be government service. It was argued that in the order for implementation of ACP Scheme in respect of teachers under GNCTD, in para 12, the following has been specifically provided:
12. ACP Scheme is applicable to Government Civilian employees. Only the regular service rendered after regular appointment in a Government civilian post is to be counted. Service rendered in an Autonomous Body (M.C.D./N.D.M.C.)/Statutory Body/State Government, other than Government of NCT of Delhi is not to be counted for the purpose. Similarly, promotions earned in these bodies prior to appointment in the Govt. of NCT of Delhi also to be ignored.
7. Similarly, in the MACP circular dated 19.05.2009, the following has been specifically provided:
9. Regular service for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/ re-employment basis. Service rendered on adhoc/ contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.
10. Past service rendered by a Government rendered by a Government employee in a State Government/statutory body/Autonomous body/Public Sector organization, before appointment in the Government shall not be counted towards Regular Service. The respondents argue that given the provision that past service rendered by an employee other than in government service is not to be counted as regular service both for benefits under ACP Scheme and MACP Scheme, the claim of the applicant is not justified.
8. The applicants counter to the argument of the respondents is that her service in question having been counted for fixation of pay and pensionary benefits and break of one day service also having been regularized, her service for the period 26.10.1990 to 24.09.1994 has to be counted for ACP and MACP benefits.
9. We have examined the provisions of ACP and MACP Schemes. Instructions contained therein clearly narrate that past service not rendered in government shall not be counted as regular service for the purpose of working out 12/24 years service for ACP and 10/20/30 years of service for MACP benefits. The next question to be answered is whether employment with Khalsa School is to be treated as regular government service. It is one thing to give pensionary benefits for that period or protection of pay but that does not automatically entitle the applicant to all benefits at par with regular government servants. ACP and MACP are specific Schemes stipulating specific conditions in order to get benefits under the said Schemes. In a similar case of GNCT of Delhi & Ors Vs. Rati Ram & Ors (WP (C) 6959/2011), the Honble High Court of Delhi passed an order disallowing the petition, in which the petitioners had claimed inclusion of their service prior to takeover of the management of their school by the government on September 12, 1996. The Court held as follows:
18. Thus, looked at from any angle, the employees of the school cannot claim the benefit of service rendered prior to September 12, 1996 in the school, for the reason they acquired the status of employees of a Government School only on September 12, 1996. The ACP as well as the MACP Scheme clearly stipulate that for Government employees past service rendered in private and other autonomous bodies other than those established by the Government would be excluded and so would a promotion earned be excluded.
19..It is declared that the respondents would be entitled to the benefit under the ACP and the MACP Schemes having their service reckoned under the Government of Delhi with effect from September 12, 1996.
10. Following the aforementioned judgment of Honble Delhi High Court, we dismiss the OA.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /dkm