Central Administrative Tribunal - Delhi
Om Prakash vs Govt. Of Nctd on 28 April, 2022
1 O.A. No.3228 of 2015
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.3228
3228 of 2015
Orders reserved on : 19.04.2022
Orders pronounced on : 28.4.2022
.2022
Hon'ble Shri A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Om Parkash aged 67 years
S/o Late Sh. Shish Ram,
Retired TGT (Hindi)
R/o 1655C, Opp. Bharat Petrol Pump,
Main Road, Najafgarh, New Delhi
Delhi-110043.
...Applicant
(through Advocate Shri Yogesh Sharma
Sharma)
Versus
1. Govt. of N.C.T. of Delhi through the Chief Secretary,
New Sectt. New Delhi.
2. The Director,
Directorate of Education,
Govt. of NCT of Delhi, Old Sectt.,
Delhi.
3. The Dy. Director of Education,
Directorate of Education,
Distt. South-West-13,
South 13, Najafgarh,
New Delhi-43.
Delhi
4. The Principal
Govt. Boys Senior Secondary School No.3,
Najafrgarh, New Delhi-43.
Delhi
... Respondents
(through Advocate Shri Anuj Kumar Sharma
Sharma)
2 O.A. No.3228 of 2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J) By way of present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Memorandum dated 21.1.2015 (Annexure A/1) vide which the request of the applicant for grant of benefit of 2nd financial upgradation w.e.f. 98.1999 under the ACP Scheme has been rejected.
2. The applicant has sought for the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 21.01.2015 (Annex.A/1) declaring to the effect that the same is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to grant the benefit of 2nd financial upgradation under old ACP scheme w.e.f. 9.8.99 by way of granting the scale of Rs.6500-10500/- w.e.f. 9.8.99 to the applicant, with all consequential benefits including the arrears of difference of pay and allowances, with interest on the payment.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to revise the retirement benefits of the applicant after granting the 2nd ACP to the applicant with arrears and interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."3 O.A. No.3228 of 2015
3. This is the second round of litigation. Brief facts of the case are that the applicant was appointed as Assistant Teacher on 19.12.1974 under the respondents. Thereafter he was appointed/promoted as Trained Graduate Teacher (Hindi) in Govt. of NCT of Delhi on 1.4.1992 and has served the respondents till his retirement on the same post of TGT (Hindi) on 31.8.2008. The applicant possessed a qualification of Post Graduate Degree in Pol. Science. According to the applicant, as per Recruitment Rules existed as on 9.8.1999 for promotion to the post of PGT, TGT, who is possessing the education qualification prescribed for direct recruitment was eligible for promotion to the post of PGT but was not promoted to the post of PGT (Pol. Science) for want of vacancy in the promotion quota or otherwise reasons best known to the respondents. However, as per the amended Recruitment Rules for the post in question notified vide Gazette notification dated 4.11.1999, TGT will be considered for promotion in his concerned subject only. The said notification is applicable prospectively and nowhere it is stated that the same is applicable retrospectively. 4 O.A. No.3228 of 2015 3.1 It is averred by the applicant that Govt. of NCT of Delhi, Directorate of Education vide Notification dated 25.8.2003 also decided to implement the Assured Career Progression Scheme (ACP Scheme) from retrospective date, i.e., w.e.f. 9.8.1999 and the financial upgradation for the TGT was introduced in the scale of Rs.6500-10500 and Rs.7500-12000.
3.2 According to the applicant, he had completed 24 years of service as on 19.12.1998 and till 9.8.1999, he was not granted second promotion and, therefore, he became eligible to be considered for granting 2nd Financial Upgradation in the scale of Rs.6500-10500 w.e.f. 9.8.1999.
3.3 The applicant made a representation to the competent authority under the respondents on 12.1.2006 seeking grant of benefits of 2nd financial upgradation under ACP Scheme w.e.f. 9.8.1999 and the said representation of the applicant was forwarded by the concerned Principle/H.O.D. to the competent authority vide letter dated 12.1.2006 (Annexure A-2) for consideration of his claim. After waiting for sufficient time, the applicant approached the higher authorities, i.e., 5 O.A. No.3228 of 2015 respondent no.3 to ascertain about the decision on his aforesaid claim. The officers of the respondent no.3 told the applicant that the issue is pending before the Hon'ble Delhi High Court in the case of Mahipal Singh vs. Govt. of NCT of Delhi (WP (C) No.2945/2005) decided on 20.4.2009 and Balwant Singh vs. Govt. of NCT of Delhi (WP (C) No.17871/2004) decided on 20.4.2009 and his claim will be considered after disposal of the said cases. The said cases were decided in favour of the petitioners therein and SLPs preferred by the respondents against the aforesaid order/judgment of the Hon'ble Delhi High Court have been dismissed by the Hon'ble Supreme Court and that the judgments have been implemented as the benefits of the aforesaid judgments have been extended by way of granting financial upgradation under 2nd ACP w.e.f. 9.8.1999 to all the similar situated person but till date the applicant has not been granted his due benefits of ACP Scheme.
3.4 Applicant has further averred that some similarly situated persons also filed their OAs being OA No.1734/2009, titled M.R. Sharma vs. GNCT of Delhi decided on 8.2.2010 and OA No.2808/2010, titled Ranjit 6 O.A. No.3228 of 2015 Singh Negi vs. GNCT of Delhi, decided on 27.8.2010, wherein the directions were issued to the respondents to consider the cases of the applicants therein and in compliance of the said Orders/Judgments, the respondents granted the 2nd financial upgradation under ACP Scheme to those similarly situated persons but the case of the applicant has not been finalized and has not been considered.
3.5 Being aggrieved by the inaction on the part of the respondents, the applicant had earlier approached this Tribunal by way of OA No.2764/2013 and this Tribunal vide Order/Judgment dated 8.9.2014 (Annexure A/8), disposed the said OA with directions to the applicant to make a self contained representation to the respondents and the respondents would take a decision on the same within eight weeks. In compliance of the said directions of this Tribunal, the applicant preferred his representation dated 29.9.2014 (Annexure A/9). When nothing has been done by the respondents, the applicant filed a Contempt Petition, being CP No.59/2015 and only after issuance of notices, the respondents have passed the Memorandum dated 21.1.2015 rejecting the claim of the applicant, 7 O.A. No.3228 of 2015 which is impugned in the present OA. Hence the present OA.
4. Pursuant to notice, the respondents have filed their reply in which they have raised the preliminary objection of limitation on the ground that the applicant has prayed for grant of 2nd financial upgradation w.e.f. 9.8.1999 under ACP Scheme whereas it is an admitted fact that his first representation was forwarded vide letter dated 12.1.2006 which was not decided till his retirement on 31.8.2008. The applicant was required to adopt legal course after the lapse of reasonable time but he did not approach the court even upto the date of his retirement and got his all retiral benefits and thus the claim of the applicant is barred by time. However, after a lapse of five years from his retirement, the applicant filed the aforesaid OA which was disposed of without hearing on merit with directions to take a decision on the aforesaid representation, which was decided vide Memorandum dated 21.1.2015, which is under challenge in the present OA. The aforesaid Order/Judgment of this Tribunal and its compliance will not give fresh cause of action to the applicant. Therefore, the present OA deserves to be dismissed being barred by 8 O.A. No.3228 of 2015 limitation on the ground of delay and laches. The aforenoted factual position has not been disputed by the respondents. However, they have averred that the applicant being TGI (Hindi) was required to obtain Post Graduate Degree in Hindi but he obtained Post Graduate Degree in Political Science and hence, his claim for grant of financial upgradation under ACP Scheme was not admissible.
5. In the rejoinder, the applicant has contended that the aforesaid OA preferred by the applicant was not decided on admission stage but was decided after issuing the notice and after hearing both the parties at length and in compliance of which the respondents have passed the Memorandum dated 21.1.2015 only after filing of the aforesaid CP and this Tribunal disposed of the said CP with liberty to the applicant to challange the said Memorandum dated 21.1.2015 in the original proceedings and once, the liberty was granted by this Tribunal, there is no justification for raising the objection of delay at this stage and otherwise, also the cause of action of the applicant is a recurring cause of action and not barred by limitation. While reiterating the averments of the OA, the 9 O.A. No.3228 of 2015 applicant has denied the averments made by the respondents of the counter reply.
6. We have perused the pleadings available on record and have also considered the submissions made by the learned counsels for the parties.
7. Shri Sharma, learned counsel for the applicant submitted that so far as the contentions of the respondents that the claim of the applicant is barred by limitation is concerned, the same is not tenable in the eyes of law as cause of action of the applicant in the instant case is a recurring cause of action and not barred by limitation as the same is accruing to him on month to month basis. Learned counsel has further argued that it is an admitted fact that this Tribunal while disposing of the earlier OA preferred by the applicant had directed the respondents only to consider the detailed representation to be preferred by the applicant within the stipulated time framed therein and in compliance of the said directions of this Tribunal, the respondents have passed the impugned order vide which they have rejected the claim of the applicant on merit and not on the ground of limitation and as such the objection of limitation now raised by the 10 O.A. No.3228 of 2015 respondents in their counter reply is not sustainable in the eyes of law.
8. Shri Sharma, learned counsel for the applicant submitted that it is an admitted position that after appointment as Assistant Teacher on 19.12.1974, the applicant was granted only one promotion, i.e., to the post of TGT (Hindi) and he retired as such on 31.8.2008, and as per the ACP Scheme, he is entitled for grant of 2nd financial upgradation upon completion of 24 years of service. Learned counsel has invited our attention to Annexure A/6, i.e., Recruitment Rules for various posts of Teachers in the Directorate, one of the essential qualifications for direct recruitment to the post of PGT is Degree/Diploma in training Education. Sl.No.2 above is reliable in case of candidates i) having obtained Ph.D. degree in the subject concerned from a recognised University/Institute; ii) Having obtained 1st division in Hr. Sec. Examination, Graduation degree and Post Graduation degree with the mandatory condition that the candidate will acquire B.Ed./B.T. qualification within a period of three years from the date of his joining the service. The applicant's case is squarely covered under the aforesaid 11 O.A. No.3228 of 2015 Recruitment Rules existed as on 9.8.1999. But the same has been denied by impugned Memorandum dated 21.1.2005. However, in the said impugned Memorandum dated 21.1.2005, the respondents have themselves admitted that before 26.2.1996 when the Recruitment Rules for the post in question were amended by the competent authority, a TGT-Hindi was not eligible for promotion to the post of PGT in Political Science, meaning thereby the applicant was eligible for promotion to the post of PGT in Political Science w.e.f. 9.8.1999 as the Recruitment Rules for the post in question were further amended only on 4.11.1999 and the same are applicable from prospective date and not retrospective date unless the same provides otherwise. In support of this argument, learned counsel for the applicant has drawn our attention to amended Recruitment Rules, notified vide Notification dated 4.11.1999, which does not provide its applicability from retrospective date.
9. Learned counsel for the applicant has invited our attention to the fact that the similar issue has already been settled by the Hon'ble High Court of Delhi in the cases of Mahipal Singh (supra) and Balwant Singh 12 O.A. No.3228 of 2015 (supra), which Orders/Judgments have not only been upheld by the Hon'ble Supreme Court but also implemented by the respondents in the cases of the petitioners therein, however, the applicant, being similarly placed, has not been granted the same benefits. Learned counsel for the applicant has further submitted that similarly situated persons also filed their OAs M.R. Sharma (supra) and Ranjit Singh Negi (supra) decided on 27.8.2010, wherein the directions were issued to the respondents to consider the cases of the applicants therein and in compliance of the said Orders/Judgments, the respondents granted the 2nd financial upgradation under ACP Scheme to those the applicants therein but the case of the applicant has not yet been finalized and has not been considered.
10. On the other hand, learned counsel for the respondents with the assistance of the averments made in the counter reply has submitted that on the face of the facts of the case the claim of the applicant is barred by limitation. In support of the said contention, learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of 13 O.A. No.3228 of 2015 Union of India and others vs. M.K. Sarkar, reported in 2010 (2) SCC 59, as well as of this Tribunal in OA No.1585/2013, titled Rajender Kumar Aggarwal vs. East Delhi Municipal Corporation and another, decided on 15.5.2013. On merit, learned counsel has submitted that the impugned order passed by the respondents is in accordance with the rules on the subject as the applicant being TGI (Hindi) was required to obtain Post Graduate Degree in Hindi but he obtained Post Graduate Degree in Political Science and hence, his claim for grant of financial upgradation under ACP Scheme was not admissible.
11. We have perused the pleadings on record and have also considered the submissions made by the learned counsels for the parties.
12. The DoP&T issued OM dated 9.8.1999, vide which Assured Career Progression Scheme was introduced which reads as under:-
"OFFICE MEMORANDUM Subject:- THE ASSURED CAREER PROGRESSION SCHEME FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES.14 O.A. No.3228 of 2015
The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be viewed as a 'Safety Net' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, after careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder:-
2. GROUP 'A' CENTRAL SERVICES 2.1 In respect of Group 'A' Central services (Technical/Non-Technical), no financial upgradation under the Scheme is being proposed for the reason that promotion in their case must be earned. Hence, it has been decided that there shall be no benefits under the ACP Scheme for Group 'A' Central services (Technical/Non-Technical). Cadre Controlling Authorities in their case would, however, continue to improve the promotion prospects in organisations/cadres on functional grounds by way of organisational study, cadre review, etc. as per prescribed norms.
3. GROUP 'B', 'C' AND 'D' SERVICES/POSTS AND ISOLATED POSTS IN GROUP 'A', 'B', 'C' AND 'D' CATEGORIES 3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group 'C' and 'D' employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have 15 O.A. No.3228 of 2015 no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I. 3.2 'Regular Service' for the purpose of the ACP Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant Recruitment/Service Rules.
4. Introduction of the ACP Scheme should, however, in no case affect the normal (regular) promotional avenues available on the basis of vacancies. Attempts needed to improve promotion prospects in organisations/cadres on functional grounds by way of organisational study, cadre reviews, etc as per prescribed norms should not be given up on the ground that the ACP Scheme has been introduced.
5. Vacancy based regular promotions, as distinct from financial upgradation under the ACP Scheme, shall continue to be granted after due screening by a regular Departmental Promotion Committee as per relevant rules/guidelines.
6. SCREENING COMMITTEE 6.1 A departmental Screening Committee shall be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme.
6.2 The composition of the Screening Committee shall be the same as that of the DPC prescribed under the relevant Recruitment/Service Rules for regular promotion to the higher grade to which financial upgradation is to be granted. However, in cases where DPC as per the prescribed rules is headed by the Chairman/Member of the UPSC, the Screening Committee under the ACP Scheme shall, instead, be headed by the Secretary or an officer of equivalent rank of the concerned Ministry/Department. In respect of isolated posts, the composition of the Screening Committee (with modification as noted above, if required) shall be the same as that of the DPC for promotion to analogous grade in that Ministry/Department.16 O.A. No.3228 of 2015
6.3 In order to prevent operation of the ACP Scheme from resulting into undue strain on the administrative machinery, the Screening Committee shall follow a time-
schedule and meet twice in a financial year - preferably in the first week of January and July for advance processing of the cases. Accordingly, cases maturing during the first-half (April-September) of a particular financial year for grant of benefits under the ACP Scheme shall be taken up for consideration by the Screening Committee meeting in the first week of January of the previous financial year. Similarly, the Screening Committee meeting in the first week of July of any financial year shall process the cases that would be maturing during the second-half (October-March) of the same financial year. For example, the Screening Committee meeting in the first week of January, 1999 would process the cases that would attain maturity during the period April 1, 1999 to September 30, 1999 and the Screening Committee meeting in the first week of July, 1999 would process the cases that would mature during the period October 1, 1999 to March 31, 2000. 6.4 To make the Scheme operational, the Cadre Controlling Authorities shall constitute the first Screening Committee of the current financial year within a month from the date of issue of these instructions to consider the cases that have already matured or would be maturing upto March 31, 2000 for grant of benefits under the ACP Scheme. The next Screening Committee shall be constituted as per the time-schedule suggested above.
7. Ministries/Departments are advised to explore the possibility of effecting savings so as to minimise the additional financial commitment that introduction of the ACP Scheme may entail.
8. The ACP Scheme shall become operational from the date of issue of this Office Memorandum.
9. In so far as persons serving in the Indian Audit and Accounts Departments are concerned, these orders issue after consultation with the Comptroller and Auditor General of India.
10. The Fifth Central Pay Commission in paragraph 52.15 of its Report has also separately recommended a "Dynamic Assured Career Progression Mechanism" for different streams of doctors. It has been decided that the 17 O.A. No.3228 of 2015 said recommendation may be considered separately by the administrative Ministry concerned in consultation with the Department of Personnel and Training and the Department of Expenditure.
11. Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the ACP Scheme shall be given by the Department of Personnel and Training (Establishment-D).
12. All Ministries/Departments may give wide circulation to these instructions for guidance of all concerned and also take immediate steps to implement the Scheme keeping in view the ground situation obtaining in services/cadres/ posts within their administrative jurisdiction;"
"ANNEXURE-I CONDITIONS FOR GRANT OF BENEFITS UNDER THE ACP SCHEME
1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;
2. The highest pay-scale upto which the financial upgradation under the Scheme shall be available will be Rs.14,300-18,300. Beyond this level, there shall be no financial upgradation and higher posts shall be filled strictly on vacancy based promotions;
3. The financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later;
4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation 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 upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on 18 O.A. No.3228 of 2015 the second upgradation which would also get deferred accordingly;
5.1 Two financial upgradations 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 availed 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 upgradations 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 upgradation 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;
5.2 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;
6. Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group 'D' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme;
7. Financial upgradation 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 upgradation shall be given by the Ministries/Departments concerned in the immediately 19 O.A. No.3228 of 2015 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-II, will be eligible for the proposed two financial upgradations 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 upgradations 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;
8. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme;
9. On upgradation under the ACP Scheme, pay of an employee shall be fixed under the provisions of FR 22(I) a(1) subject to a minimum financial benefit of Rs.100/- as per the Department of Personnel and Training Office Memorandum No.1/6/97-Pay.I dated July 5, 1999. The financial benefit allowed under the ACP Scheme shall be final and no pay-fixation benefit shall accrue at the time of regular promotion i.e. posting against a functional post in the higher grade;
10. Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. However, as and when he accepts regular promotion thereafter, he shall become 20 O.A. No.3228 of 2015 eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a person has got one financial upgradation after rendering 12 years of regular service and after 2 years therefrom if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+2+1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial upgradation (2+10) in that higher grade i.e. after 25 years (12+2+1+10) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade;
11. In the matter of disciplinary/penalty proceedings, grant of benefits under the ACP Scheme shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of relevant CCS(CCA) Rules, 1965 and instructions thereunder;
12. The proposed ACP Scheme contemplates merely placement on personal basis in the higher pay- scale/grant of financial benefits only and shall not amount to actual/functional promotion of the employees concerned. Since orders regarding reservation in promotion are applicable only in the case of regular promotion, reservation orders/roster shall not apply to the ACP Scheme which shall extend its benefits uniformly to all eligible SC/ST employees also. However, at the time of regular/functional (actual) promotion, the Cadre Controlling Authorities shall ensure that all reservation orders are applied strictly;
13. Existing time-bound promotion schemes, including in-situ promotion scheme, in various Ministries/Departments may, as per choice, continue to be operational for the concerned categories of employees. However, these schemes, shall not run concurrently with the ACP Scheme. The Administrative Ministry/Department -- not the employees -- shall have the option in the matter to choose between the two 21 O.A. No.3228 of 2015 schemes, i.e. existing time-bound promotion scheme or the ACP Scheme, for various categories of employees. However, in case of switch-over from the existing time- bound promotion scheme to the ACP Scheme, all stipulations (viz. for promotion, redistribution of posts, upgradation involving higher functional duties, etc) made under the former (existing) scheme would cease to be operative. The ACP Scheme shall have to be adopted in its totality;
14. In case of an employee declared surplus in his/her organisation and in case of transfers including unilateral transfer on request, the regular service rendered by him/her in the previous organisation shall be counted along with his/her regular service in his/her new organisation for the purpose of giving financial upgradation under the Scheme; and
15. Subject to Condition No. 4 above, in cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the scheme shall be granted directly. Further, in order to rationalise unequal level of stagnation, benefit of surplus regular service (not taken into account for the first upgradation under the scheme) shall be given at the subsequent stage (second) of financial upgradation under the ACP Scheme as a one time measure. In other words, in respect of employees who have already rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of the second financial upgradation and, consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular service without waiting for completion of 12 more years of regular service after the first financial upgradation already granted under the Scheme."
13. From the aforesaid Scheme and conditions therein, it is evident that on grant of the benefits, one gets only financial upgradation and that too remains applicable to 22 O.A. No.3228 of 2015 the official concerned not to the post which he/she may be holding. Non-grant of the same causes monetary loss from month to month and year to year.
14. The Govt. of NCT of Delhi, Directorate of Education, vide Notification dated 25.8.2003 also decided to implement the Assured Career Progression Scheme (ACP Scheme) from retrospective date, i.e., w.e.f. 9.8.1999 and the financial upgradation for the TGT was introduced in the scale of Rs.6500-10500 and Rs.7500-12000. From the aforesaid factual matrix of the present case, it is not in dispute that applicant has neither been granted second promotion nor 2nd financial upgradation under the aforesaid ACP Scheme upon completion of 24 years of regular service as envisaged in the aforesaid OM of DoP&T.
15. So far as contention of the respondents that the instant OA is barred by limitation is concerned, the same is not sustainable in view of the fact that in the present case the cause of action for the applicant is a recurring one and the Hon'ble Supreme Court in the following cases held as under:-
23 O.A. No.3228 of 2015
A. State of M.P. vs. Yogendra Shrivastava, reported `in 2010 (12) SCC 538, para 18 thereof reads as under:-
"18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India - 1995 (5) SCC 628, and Union of India vs. Tarsem Singh 2008 (8) SCC 648]"
B. Asger Ibrahim vs. LIC of India, reported in 2016 (13) SCC 797, paras 4 and 21 thereof read as under:-
"4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if 24 O.A. No.3228 of 2015 allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
(emphasis supplied) We respectfully concur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a 25 O.A. No.3228 of 2015 judicial forum. Such claims recur month to month and would not stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh consideration."
"21. We thus hold that the termination of services of the Appellant, in essence, was voluntary retirement within the ambit of Rule 31 of the Pension Rules of 1995. The Appellant is entitled for pension, provided he fulfils the condition of refunding of the entire amount of the Corporation's contribution to the Provident Fund along with interest accrued thereon as provided in the Pension Rules of 1995. Considering the huge delay, not explained by proper reasons, on part of the Appellant in approaching the Court, we limit the benefits of arrears of pension payable to the Appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the Appellant in one instalment within four weeks from the date of refund of the entire amount payable by the Appellant in accordance of the Pension Rules of 1995. In the alternative, the Appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the Appellant. However, if the amount of arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted."
16. From the aforesaid judgments of the Hon'ble Supreme Court, it is clear that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not 26 O.A. No.3228 of 2015 have any adverse repercussions on the settled third-party rights, which is the case in hand. So far as reliance of the respondents' counsel on the decision of this Tribunal in the case of Rajender Kumar Aggarwal (supra) is concerned, in the said case, this Tribunal had recorded that the applicant has not mentioned any justifiable reasons why he has not chosen even to make a representation to the respondents ventilating his grievance for more than about 13 years, which is not the case in hand and as such the said Order/Judgment of this Tribunal is not helpful to the respondents. Further reliance placed by the respondents on the decision of the Hon'ble Supreme Court in the case of M.K. Sarkar (supra) is concerned, in the said case issue was with regard to availability and exercising of the option which is not the case in hand as in the instant case, the applicant is seeking grant of benefit of 2nd financial upgradation under the ACP Scheme and the applicant has represented and the respondents have replied to him that the similar issue in the case of Mahipal Singh (supra) and Balwant Singh (supra) is pending before the Hon'ble High Court of Delhi and after the decision on the same, the claim of the applicant would be considered but even after the decision 27 O.A. No.3228 of 2015 of the Hon'ble High Court of Delhi in the cases of Mahipal Singh (supra) and Balwant Singh (supra), which Orders/Judgments have not only been upheld by the Hon'ble Supreme Court but also implemented by the respondents in the cases of the petitioners therein, the applicant, being similarly placed, has not been extended the same benefits by the respondents. It is settled law that once the issue has been decided by the competent Court of Law and the same has been implemented in respect of a few, all the similarly placed persons deserve to be extended the same treatment which has not been done by the respondents in the instant case.
17. Moreover, from perusal of the impugned order dated 21.1.2015, it is evident that as on 9.8.1999, the applicant was possessing the requisite qualification for promotion to the post of PGT and the Recruitment Rules for the post in question were amended only on 4.11.1999 and that too with prospective effect as such the applicant was eligible for grant of 2nd financial upgradation under the ACP Scheme. Further grant of benefits under ACP Scheme does not create any right in favour of the employee to hold the higher post, rather only upgraded/higher pay scale is 28 O.A. No.3228 of 2015 admissible to an employee granted under the ACP Scheme.
18. In view of the facts and circumstances of the present case, we dispose of this OA with the following directions:-
(i) The impugned order dated 21.1.2015 (Annexure A/1) is set aside;
(ii) The respondents are directed to consider and grant the benefits of 2nd financial upgradation under the old ACP scheme w.e.f. 9.8.1999 to the applicant with all consequential benefits, including arrears of difference of pay and allowances, revision of his pension and revised pensionary benefits within a period of twelve weeks of receipt of a copy of this Order.
19. However, in the facts and circumstances, there shall be no order as to costs.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/