Central Administrative Tribunal - Delhi
Ashu Gupta vs M/O Health And Family Welfare on 8 January, 2024
1
Item No. 12 (C-4)
O.A. No. 1539/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1539/2019
This the 08th day of January, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Ashu Gupta, Age - 43, Group B,
S/o Sh. R.K. Gupta, R/o J-185, Reserve Bank Enclave,
Paschim Vihar, New Delhi - 110063.
Working as Physio Therapist
In Sports Injury Centre,
Safdarjung Hospital,
New Delhi.
...Applicant
(By Advocate: Mr. S.M. Arif, Mr. S.M. Aatif and Ms.
Shabnam Perween)
Versus
1. Union of India,
Through the Secretary,
Ministry of Health,
Nirman Bhawan,
New Delhi.
2. The Medical Supdt.
Safdarjung Hospital & VMM College,
New Delhi.
3. The Deputy Director (Admn.)
Safdarjung Hospital &
VMM College, New Delhi.
...Respondents
(By Advocate: Mr. Hilal Haider)
2
Item No. 12 (C-4)
O.A. No. 1539/2019
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):-
The applicant is aggrieved that his qualifying service for determining his eligibility/entitlement for grant of financial upgradation under the Modified Assured Career Progression Scheme (MACPS) has been computed with effect from 01.03.2005 rather than 09.09.2000, that is, the date on which he was initially appointed as a 'Physiotherapist'. The order dated 09.02.2019 vide which his application to this effect has been rejected reads as under:-
"With reference to your application dated 04.09.2018, regarding grant of 1 MACP w.e.f. 09.09.2010, Sh. Ashu Gupta, Physiotherapist is hereby informed that his application has been considered but not acceded to as the post on which he was appointed was "temporary post"
between 09.09.2000 to 28.02.2005. Hence, his service during the said period could not be considered for MACP as he was regularized w.e.f. 01.03.2005. Therefore, the grant of 1st MACP to Sh. Ashu Gupta w.e.f. 01.03.2015 i.e. after 10 years of his regular service is in consonance with 3 Item No. 12 (C-4) O.A. No. 1539/2019 DOPT O.M. No. A.35034/3/2008-Estt. (D), dated 19.04.2009.
This issues with the approval of Medical Superintendent." He challenges the said order in the instant O.A. seeking the following relief(s):-
" (a) Direct the respondents to quash and set aside the impugned order dated 09.02.2019 directing the respondents to grant MACP Benefits from 09.09.2010 instead of 01.03.2015 and respondent be further directed to pay the arrears of MACP from 09.09.2010 to 01.03.2015.
(b) Allow the OA with all consequential benefits.
(c) Any other relief which this Hon'ble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant."
2. The applicant's initial appointment as a Physiotherapist was on 31.08.2000, however, on temporary basis against a temporary post. However, it was in the regular scale of pay attached to the post. The applicant assumed his duties on 09.09.2000 and has been continuing 4 Item No. 12 (C-4) O.A. No. 1539/2019 as such uninterruptedly. During this period, his services were also confirmed on regular basis with effect from 01.03.2005. The applicant bases his claim for determination of qualifying service in the present O.A., and as argued by his counsel Mr. S.M. Arif, upon the instructions issued by the DoP&T governing the subject.
3. During the course of the arguments, Mr. S.M. Arif, learned counsel has brought to our notice an order dated 14.03.2023 passed in O.A. No. 3495/2015. A copy of this order is annexed to the rejoinder affidavit dated 20.11.2023. He has argued that the subject and issue in the aforesaid O.A. is identical to the present one and therefore, this O.A. should also be disposed of on the same analogy.
4. On the other hand, relying upon the averments made in the counter reply, Mr. Hilal Haider, learned counsel for the respondents, has argued that for determining the qualifying service for the purpose of financial upgradation under the MACP, the benefit of only regular service can be extended in favour of the employee and certainly not of the period spent on adhoc/casual/temporary service. He argues that there is no ambiguity as far as the rule position and the 5 Item No. 12 (C-4) O.A. No. 1539/2019 instructions governing the same are concerned. He submits that if there was any doubt, the same gets adequately clarified by the DoP&T O.M. bearing No. 350234/3/2008- EsH.(D) dated 19.05.2019. Para 9 of the same reads as under:-
"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. "
5. Learned counsel also draws attention to the judgment of the Hon'ble High Court of Judicature at Madras dated 6 Item No. 12 (C-4) O.A. No. 1539/2019 07.07.2023 in WP No. 35465/2019 (Susamma Koshy Vs. Union of India & Others) vide which the order of the Tribunal was upheld wherein the Tribunal had clearly settled that the benefit of adhoc service could not be extended for determining qualifying service for the purpose of MACP. The learned counsel argues that the judgment of the Hon'ble High Court read with the instructions of the DoP&T on the subject make it abundantly clear that the claim of the applicant as outlined in the present O.A. is misplaced.
6. We have heard the learned counsels at great length and also carefully gone through the pleadings on record. We have also given a thorough reading to the relevant DoP&T circular and the judgment being quoted by the learned counsel.
7. The limited issue involved in the present O.A. is the date which would be relevant for determining the qualifying service for the purpose of financial upgradation under the MACP.
7Item No. 12 (C-4) O.A. No. 1539/2019
8. We have no doubt in our mind that this issue has been elaborately considered and thrashed out in O.A. No. 3495/2015 which has been placed on record by the learned counsel for the applicant. It would be worthwhile and pertinent to reproduce the order dated 14.03.2023 passed in the said O.A. verbatim:-
"The applicants are aggrieved by denial of their claim for financial upgradation under the MACP Scheme. They seek the following relief by virtue of the present OA :-
"(a) Pass an order directing the respondent to take appropriate proceedings declaring that the applicant is entitled to get benefits of MACP Scheme with effect from 01.09.2008 by fixing the seniority of the applicants from the date on which they are appointed on adhoc basis.
b) pass an order directing the respondent to take appropriate proceedings for fixing the correct scale of pay by granting the benefits of 3rd MACP Schemes from the date of entitlemernt and to give the salary the dues.
c) Pass an order directing the respondents to take appropriate proceedings tor giving correct amount of pension from the date of retirement and to pay the pension dues;
d) Pass such other order and further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Learned counsel for the applicants narrating the history and background of the case submits that the applicants were appointed on adhoc basis as Staff Nurse on 8 Item No. 12 (C-4) O.A. No. 1539/2019 15.04.1981/22.03.1982/07.09.1982 on regular scale of pay attached to the post. Accordingly, they are entitled to get the benefit of the service w.e.f. their entry into service on the said date, although they were regularised four years (approx.) later on 25.10.1985. Drawing support from the judgment of the Hon'ble High Court of Calcutta in W.P. (CT) No. 497/2013 titled Sunity Chakraborty Vs. Union of India & Others, she submits that the said judgment categorically states that for the benefit of MACP, the date to be reckoned with is the date of initial entry into service. She further substantiates this contention from the documents she has annexed with her rejoinder which are consolidated instructions with respect to MACP issued by DoP&T on 09.09.2010. The relevant instructions state that benefits under MACP Scheme would be available from the date of actual joining of the post in the entry grade. Accordingly, she submits that the applicants would be entitled to MACP Scheme with reference to their date of entry into service which is 15.04.1981/22.03.1982/07.09.1982.
3. Learned counsel for the respondents, on the other hand, submits a chart and a brief, giving the background and the relevant dates. The said chart indicates that the applicants got one promotion as Sister Grade -I on 01.03.1992 and another one as Assistant Nursing Superintendent on 9 Item No. 12 (C-4) O.A. No. 1539/2019 22.08.2005/24.01.2009/22.01.2007. The MACP Scheme was introduced in the year 2008 and in terms of the said scheme, three financial upgradations are available in case regular promotion cannot be awarded on completion of 10, 20 and 30 years of service respectively. He argues that as on 01.09.2008, the date from which the applicants are seeking benefit of MACP, the applicants had completed only three years subsequent to their promotion as Assistant Nursing Superintendent and hence, they were not eligible for grant of MACP. Thereafter, the applicants retired on 31.01.2012/30.11.2013/30.11.2013 without attaining the eligibility for the same. Accordingly, the relief as sought for cannot be awarded to the applicants being contrary to the provisions of MACP Scheme.
4. Learned counsel for the respondents further draws support from the judgments rendered by the Hon'ble Supreme Court. He argues that the gist of all the judgments is that service rendered on adhoc basis does not confer any right for various consequential benefits including financial upgradation under MACP. He particularly draws attention to the judgment in the case titled STATE OF HARYANA Vs. HARYANA VETERINARY & A.H.T.S. ASSOCIATION AND ANR. in which the Hon'ble Apex Court had held that service rendered on adhoc basis cannot be held to be a regular service 10 Item No. 12 (C-4) O.A. No. 1539/2019 for getting the benefit of revised scale of pay or of any other higher grade pay. The relevant paragraph of the same reads as under :-
"A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the Government Memorandum dated 2nd June, 1989 and 16th May, 1990, and therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently cannot be sustained. The initial letter of appointment dated 6.12.1979 pursuant: to which respondent Rakesh Kumar joined as an Assistant Engineer on ad hoc basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad hoc basis and Clauses 1 to 4 of the said letter further provides that the appointment will be on ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs. 400 p.m. in the scale of Rs. 400 to Rs. 1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. In view of the aforesaid stipulations in the offer of appointment itself we really fail to understand as to how the aforesaid period of service rendered on ad hoc basis can be held to be service on regular basis. The conclusion of the High Court is contrary to the very terms and conditions stipulated in the offer of appointment and, therefore, the same cannot be sustained. The regular letter of appointment dated 29.1.1982 in favour of Rakesh Kumar was also produced before us and that letter indicates that the respondent Rakesh Kumar alongwith others had applied to the Secretary, Haryana Public Service Commission for being appointed as an Assistant Engineer and the Service Commission after selecting the number of persons prepared a list and appointment letters were issued by the Government from the said list on the basis of the merit position of different candidates. Thus the appointment of respondent Rakesh Kumar was a fresh appointment in accordance with the Statutory Rules after the 11 Item No. 12 (C-4) O.A. No. 1539/2019 Public Service Commission adjudged their suitability and the regular service of the respondent Rakesh Kumar must be counted from the date he joins the post pursuant to the offer of appointment dated 29.1.1982 and the prior service rendered by him on ad hoc basis cannot be held to be regular service nor can it be tagged on to the later service for earning the benefit under the Government Circular dated 2nd June, 1989 as well as the Clarificatory Circular dated 16th May, 1990. The conclusion of the majority judgment of the High Court, therefore, is wholly erroneous and cannot be sustained."
5. Learned counsel for the respondents submits that the instructions of the DoP&T dated 09.09.2010 have to be read in conjunction with the DoP&T Office Memorandum 19.05.2009. He argues that the circular dated 19.05.2009 abundantly clarifies as to what would be the determining factor for the date of actual joining of a post in entry grade. He quotes from paragraph 3 of the relevant circular; the relevant extract reads as under:-
"Casual employees, including those granted 'temporary status' and employees appointed in the Government only on adhoc or contract basis shall not qualify for benefits under the aforesaid Scheme. The details of the MACP Scheme and conditions for grant of the financial upgradation under the Scheme are given in Annexure-
1."
Further paragraph 9 to the Annexure to the circular further categorically stipulates as follows:-
"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 12 Item No. 12 (C-4) O.A. No. 1539/2019 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."
6. He draws attention to an order dated 07.02.2019 passed by a Coordinate Bench of this Tribunal in O.A. No. 562/2013 wherein the facts and circumstances were identical. While deciding the said O.A., this Tribunal had unambiguously held that the expression regular service as explained in paragraph 9 of the O.M. referred to above clearly mentions that adhoc service doesn't count at all. Accordingly, the benefit of this period of adhoc services cannot be given for determining the qualifying service for eligibility of MACP. He submits that identical view has been held by the Ernakulam Bench of this Tribunal in OA No. 48/2012.
7. Learned counsel for the applicants further contests this argument by submitting that the view and judgment of the Hon'ble Calcutta High Court which had held that period spent as adhoc service shall have to necessarily be counted for computing the period of 30 years for the purpose of grant of third financial upgradation under the MACP Scheme is crystal clear. She further draws attention to this judgment and argues that the Court had also expressed the view that once the period spent on adhoc service qualifies to be counted for retiral and 13 Item No. 12 (C-4) O.A. No. 1539/2019 other pensionary benefits, the benefit of same cannot be denied for the purpose of MACP.
8. We also find a document at Annexure A-5 which indicates that while assigning seniority to several employees the date for assigning such seniority has been reckoned as the date for initial appointment, even though adhoc.
9. Learned counsel for the respondents produces before us a table containing the FAQs on MACP wherein against question No. 8 it is mentioned that only continuous regular service is counted towards qualifying services for MACP and regular service shall commence from the date of joining as direct entry grade on regular basis. Accordingly, he submits that the intent of the DoP&T Circulars as also the purpose behind the scheme is absolutely clear, that is, that adhoc service is not to be counted as regular service, thus, benefit of the same cannot be given for computing qualifying service for the purpose of MACP.
10. We have heard the learned counsel for the parties at great length.
11. We have also gone through the pleadings on record and given special attention to the documents as also the judgments relied upon by the respective counsel. 14 Item No. 12 (C-4) O.A. No. 1539/2019
12. Third financial upgradation is to be provided in the absence of a regular promotion on completion of 30 years of service in accordance with the provisions of the MACP Scheme. In the instant case there is no dispute with respect to the fact that at the time of their retirement on 15.04.2011, 22.03.2012 and 07.09.2012 respectively, all the 3 applicants had completed 30 years of service. The issue is whether this entire service will be treated as regular service for the purpose of MACP or not. The case of the respondents is that all the applicants got regularised on 25.10.1985 and accordingly, the period of 30 years shall be counted from this date of i.e., the date on which they got to be appointed on a regular basis. If this is to be treated as the date of their entry into the services then they do not complete 30 years of service on the date of their retirement. Let us see what the rules which have been extensively quoted during the course of the arguments have to say in this regard. The Office Memorandum of DoP&T dated 19.05.2009 on the subject states in paragraph 9 as under:-
"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 15 Item No. 12 (C-4) O.A. No. 1539/2019 such cases shall not be considered till the satisfactory completion of the probation period in the new post."
13. This specific paragraph has been relied upon by the Coordinate Benches of this Tribunal in the earlier round of the O.As. on the subject to which the learned counsel for the respondents has drawn our attention to. We somehow respectfully disagree with the interpretation of this paragraph as arrived at in the earlier O.As.
14. We are clear in our mind that adhoc service mentioned in this paragraph is for appointment on pre-appointment training and not for any other purpose. No matter how many times we read this sentence the only inference we can draw is that in case initial appointment is made for pre appointment training on adhoc basis the same shall not be taken into reckoning for determining the eligibility for MACP.
15. In the present case the appointment letter of the applicants does not make any mention that this appointment is being made on adhoc basis for the purpose of pre-appointment training. Further, there is no doubt and also not disputed that the applicants were direct entrants in the entry grade. Their initial entry may have been on adhoc basis but later on it was followed by regular services and continued so till the date of their retirement on attaining the age of superannuation. As stated earlier, there is a document on record which indicates 16 Item No. 12 (C-4) O.A. No. 1539/2019 that seniority has also been assigned on the basis of the initial entry even though it may have been on adhoc basis. The judgment of the Hon'ble High Court of Calcutta which has been referred to in the preceding paragraphs has also unambiguously held that " interpretation of clause 9 of the Scheme (Clause 9 herein refers to paragraph which we have quoted earlier) would entitle the petitioners of the MACP Scheme as both of them have completed more than 30 years of service in employment from the date they had been appointed as trained staff nurses but on an adhoc basis.".
16. We have also given a careful reading to the judgment relied upon by the learned counsel for the respondents. We are of the considered view that the facts and circumstances as contained in the said judgment would not be of much relevance in adjudicating the instant issue. Moreover, in the judgment of the Hon'ble Supreme Court in State of Haryana (Supra) the issue was that the initial appointment had been resorted to without adhering to the prescribed procedure whereas in the instant case the applicants have been appointed in accordance with the procedure laid down and as direct recruits through selection.
17. In view of the discussion detailed above we have no hesitation in allowing the present O.A., and while allowing the same we direct the competent authority amongst the 17 Item No. 12 (C-4) O.A. No. 1539/2019 respondents to consider the sanction and release of 3rd financial upgradation under the MACP Scheme to the applicants on their completion of 30 years of service with effect from the date of their initial appointment, be it on adhoc basis. To clarify the dates of appointment of the three applicants are 15.04.1981, 22.03.1982 and 07.09.1982 respectively.
18. Pursuant to these directions, the applicants shall be entitled to all the consequential benefits including, but not restricted to, revision of pension.
19. The said directions shall be complied with as expeditiously as possible, in no case later than a period of twelve weeks from the date of receipt of a certified copy of this order. The arrears of financial benefits which may accrue shall also be sanctioned and released in favour of the applicants within these twelve weeks.
20. If the directions are complied with within the stipulated period, the applicants shall not be entitled to payment of any interest thereon. However, in the event of any delay in implementing these directions, the financial releases shall be made along with payment of interest at the rate applicable on GPF.
18Item No. 12 (C-4) O.A. No. 1539/2019
21. The O.A. stands allowed against the background of these directions.
22. No order as to costs."
9. After careful consideration, we recognize striking similarlity between the two O.As. Therefore, there is no cause before us to take a view which would be at divergence from the same. We have given consideration to the judgment of the Hon'ble High Court of Judicature at Madras and find that what the Hon'ble High Court had held was that the order passed by the Madras Bench of this Tribunal was correct and it would not interfere in the same. We have to adjudicate the issue on the basis of the pleading available before us. Moreover, it is abundantly and unambiguously clear that adhoc/temporary service will not be counted if it is on pre-appointment training. This surely is not the case here.
10. We have no doubt in our mind that on account of the striking similarity that this O.A. bears with the subject and issue of O.A. No. 3495/2015 whose order has been quoted above verbatim, the present O.A. also deserves to be decided on the same analogy.
19Item No. 12 (C-4) O.A. No. 1539/2019
11. In view of what has been discussed and detailed above, the present O.A. is allowed and the memorandum dated 09.02.2019 is quashed and set aside. The competent authority amongst the respondents shall, after reconsideration, pass a fresh order of sanction and release of financial upgradation under the MACP Scheme in favour of the applicant on completion of the requisite 10/20/30 years of service with effect from the date of his initial appointment be it on adhoc or temporary basis. The said date, undisputedly, is 09.09.2000.
12. The applicant shall also be entitled to all consequential benefits which he would accrue as a consequence of this order. However, he shall not have any claim on payment of interest upon the dues he would be entitled to provided the directions contained herein including release of arrears are complied with within a period of twelve weeks from the date of receipt of a certified copy of the order. However, in the event of delay in making such payment, the applicant shall be entitled to interest payable at the rate applicable upon the deposits in the General Provident Fund (GPF). 20 Item No. 12 (C-4) O.A. No. 1539/2019
13. The O.A. stands disposed of in the aforesaid terms. There shall be no order as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/dd/