Central Administrative Tribunal - Ernakulam
Najeeb C O vs The Administrator Union Territory Of ... on 11 May, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.181/00713/2018
Wednesday, this the 11th day of May 2022
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Najeeb.C.O.,
Police Constable 430,
Police Q.M. Store, Kavaratti,
U.T of Lakshadweep - 682 555.
2. Mohammed Yaseen,
Police Constable 428,
Kalpeni Police Station, Kalpeni,
U.T of Lakshadweep - 682 557.
3. Abdul Hassan M,
Police Constable 427,
Androth Police Station, Androth,
U.T of Lakshadweep - 682 551.
4. Hussainali.B,
Police Constable 433,
Minicoy Police Station, Minicoy,
U.T of Lakshadweep - 682 559.
5. Mohammed Razakudeen A,
Police Constable 429,
Agatti Police Station, Agatti,
U.T of Lakshadweep - 682 553.
6. Thajudheen T.I.,
Police Constable 431,
Amini Police Station, Amini,
U.T of Lakshadweep - 682 552.
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7. Mukthar Hussain P,
Police Constable 432,
Police Q.M Store, Kavaratti,
U.T of Lakshadweep - 682 555. ...Applicants
(By Advocate Mr.Shaji Thomas)
versus
1. Administrator,
Union Territory of Lakshadweep,
Kavaratti, Lakshadweep - 682 555.
2. Superintendent of Police,
Union Terriotry of Lakshadweep,
Kavaratti, Lakshadweep - 682 555. ...Respondents
(By Advocate Mrs.Sreekala.K.L.)
This application having been heard on 1 st April 2022, the Tribunal on
11th May 2022 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The seven applicants in the O.A are all Police Constables in the Lakshadweep Police Department. They are aggrieved by the Annexure A-11 order awarding them the first financial upgradation under Modified Assured Career Progression (MACP) Scheme to the Grade Pay (GP) of Rs.2400/- in Pay Band (PB) Rs.5200-20200/- as per 6 th Central Pay Commission (CPC) from the GP of Rs.2000/- as well as in the Pay Matrix from Level 3 to 4 (7th CPC) with effect from 26.03.2016. They submit that they had completed 10 years of regular service as Police Constables on 11.10.2013. It is also submitted that the 2 nd respondent (Superintendent of -3- Police, Lakshadweep) had not counted their notional seniority in their service with effect from 11.10.2003 to 25.03.2006, while granting them financial upgradation vide the Annexure A-11 order.
2. The background of the case is required to be understood. The applicants had applied for the post of Police Constables in the Lakshadweep Police Department on the basis of a notification dated 18.03.2003 issued by the Police Department inviting applications from eligible candidates for the post of Police Constable. They were selected along with 21 other candidates as the total number of vacancies in the rank of Police Constables was 28. However, later the Department took a view that there were only 21 vacancies and they appointed only the first 21 candidates leaving them aside. Aggrieved by this, the applicants had filed O.A.No.179/2005 and O.A.No.528/2005 before this Tribunal. The Tribunal, after hearing, allowed the O.As by an order dated 10.11.2005 which has been produced at Annexure A-1 in this O.A. It was ordered as follows :
"10. ...........Even though the position of the anticipated vacancies for the year 2003 was available with the respondents and the decision to fill up 28 vacancies was taken by the respondents on file on 13.08.2003, they did not disclose those facts to this Tribunal in their reply in O.A.No.812/2003 as a result of which the issues raised in the said O.A could not be adjudicated conclusively and the applicants were forced to approach this Tribunal again with the present Original Applications.-4-
11. In the result both the Original Applications are allowed. The impugned order of the respondents dated 24.05.2004 is quashed and set aside. The respondents are directed to appoint all the 5 applicants in the two O.As as Police Constables in Lakshadweep Police Department in terms of the Annexure A-4 notification dated 26.04.2003. However, we are informed that the first 21 candidates of the Annexure A-4 list were already taken on the rolls of the Lakshadweep Police Department with effect from 24.09.2003 and they have been deputed to the basic training and the respondents have again invited applications for the post of Police Constables for direct recruitment vide notification dated 01.05.2005. The respondents are, therefore, directed to depute the applicants in the present two O.As for basic training along with the next batch of candidates to be selected, for which the respondents have already initiated action vide their notification No.1/9/2001-Estt. Dated 01.05.2005. The applicants will be further entitled for notional seniority along with the 21 candidates already taken on the rolls as per their respective position in the Merit List. The respondents within 4 weeks from the date of receipt of this order, shall issue necessary orders to the applicants individually in terms of the above directions......"
(emphasis added)
3. The matter was then taken up by the respondents before the Hon'ble High Court of Kerala in W.P.(C) No.34571/2005. The Hon'ble High Court in its judgment dated 12.11.2005, produced in this O.A at Annexure A-2, did not find any reason to take a different view from the Tribunal. Later, the respondent Lakshadweep Administration preferred to file a Special Leave to Appeal (Civil) No.4247/2006 before the Hon'ble Supreme Court of India arising from the judgment of the Hon'ble High Court of Kerala dated 12.11.2005 in W.P.(C) No.34571/2005. The Apex Court in its order dated 10.03.2006 produced at Annexure A-3 observed as follows : -5-
" Although there is some force in the submissions of Mr.Doabia, learned counsel appearing for the petitioners but in view of the statements made at the bar that the judgment of the Tribunal has fully been implemented, we are of the opinion that no fruitful purpose will be served in entertaining this special leave petition. The special leave petition is dismissed accordingly."
4. Subsequent to the above judgment vide an Order dated 16.10.2008, produced at Annexure A-4, read with a Corrigendum dated 05.08.2014, produced at Annexure A-5, both issued by the Superintendent of Police, Union Territory of Lakshadweep, seven candidates, who are now the applicants herein, were taken on the rolls of the Police Department giving them notional seniority along with 21 other candidates and showing notional appointment with effect from 11.10.2003. It was also noted in the order at Annexure A-4 that the Police Department had issued the appointment order to the seven candidates as per F.No.1/9/2001-Estt.(Pol) dated 25.03.2006. Thus, it appears that the candidates after the basic training with the next batch of candidates selected vide notification dated 01.05.2005 were first given appointment as Police Constables on 25.05.2006. However, later, date of notional appointment of these seven candidates was fixed with effect from 11.10.2003 in line with the orders of this Tribunal, as confirmed by the Hon'ble High Court of Kerala and also not interfered with by the Hon'ble Supreme Court. To establish further their seniority in the rank of Police Constables in Lakshadweep Police, the applicants have also produced the seniority list of Police Constables of the -6- Lakshadweep Police as published on 02.08.2011 at Annexure A-6. It is submitted by them that in the Annexure A-6 seniority list of Police Constables who were recruited in the year 2003 and 2006, the 21 candidates who were appointed vide the order dated 03.10.2003 are at Sl.No.379 to 398 of the list. The applicants' names then appear at Sl.No.399 to 405. It is also self evident that the date of entry in Government service and date of appointment in the present grade are shown as 11.10.2003 for them as well as the previous 21 candidates. Further, the Police Constables who were recruited subsequent to them and appointed on 26.03.2006 are shown in the list at Sl.No.406 to 445. It is further submitted by the applicants that as they are shown with notional appointment from 11.10.2003, they are governed under Central Civil Service Pension Rules and not under the National Pension Scheme by the respondents.
5. Inspite of the above, the applicants submit that the respondents, while granting financial upgradation under MACP Scheme, have refused to grant first MACP to them with effect from 11.10.2013 ie., the date on which they have completed 10 years of regular service. On the other hand, they have been given financial upgradation by the Annexure A-11 order only with effect from 26.03.2016, perhaps on the ground that their appointment order was issued on 25.03.2006. It is their submission that they are legally entitled to get their first financial upgradation with effect from 11.10.2013 -7- as had been given to the 21 other candidates, whose names appeared at Sl.No.379 to 398 in Annexure A-6 seniority list. They have submitted a series of representations protesting against this and asking that their financial upgradation under MACP Scheme to be fixed with effect from 11.10.2013 by taking into account their notional appointment and seniority with effect from 11.10.2003 to 26.03.2006. However, all these representations were turned down by the Office Memorandum dated 20.02.2016 produced at Annexure A-9. This was followed by the impugned order dated 29.08.2017 at Annexure A-11. Their contentions are that the Tribunal, in O.A.No.179/2005 and O.A.No.528/2005, had specifically directed the respondents that they would be entitled for the notional seniority along with the 21 candidates already taken on rolls as per their respective position in the Merit List. Since the 21 candidates were taken on rolls with effect from 11.10.2003, they too should be treated at par with all others who had joined duty with effect from that date, for all purposes, including pay, financal upgradation under MACP Scheme, grade promotion, pension and all other service benefits. They might have completed their training with the next batch of candidates; however, that does not mean that their appointment has to be considered with effect from the date they were issued the appointment order to the Lakshadweep Police. -8-
6. The applicants have brought to notice a series of judgments/orders of the Hon'ble Supreme Court, various High Courts as well as various Benches of this Tribunal for making their case. The implications/impact of these judgments will be brought out in some detail later in this order. Meanwhile, the respondents in their reply statement have contested the assertions made by the applicants. They have accepted that the applicants were appointed as Police Constables and deputed for training on 25.03.2006 and that they were awarded notional seniority with effect from 11.10.2003, which is the date on which the 21 other candidates were taken on the rolls. It is accepted that their pay was fixed in the scale of pay of Rs.2750-4400/- with effect from 11.10.2003 notionally and that they are also governed by the Old Pension Scheme along with the other 21 candidates. However, it is submitted that since they actually joined the post on 26.03.2006, they are eligible for first financial upgradation under the MACP Scheme only with effect from 26.03.2016. The applicants have been, therefore, awarded first financial upgradation reckoning their service from 26.03.2006. The respondents have also produced, in this connection a letter, at Annexure R-1(b) issued by the Ministry of Home Affairs addressed to the Collector, UT of Lakshadweep Administration. This letter is a response to their query regarding the date from which the service of the applicants for the purpose of MACP would taken to commence. It appears that the Ministry of Home Affairs had -9- examined the issue in consultation with the Department of Personnel and Training (DoP&T) and clarified that "the benefit of MACP Scheme is to be granted by counting the service from the actual date of joining in the direct entry grade only. There is no concept of counting of service from the date of notional seniority for grant of financial upgradation under MACP Scheme." (emphasis added)
7. The respondents have also filed a detailed counsel statement along with argument notes to further establish their case. The details produced by them in this regard include orders of the Hon'ble High Court of Delhi and Hon'ble Supreme Court in a few cases. The respondents are placing reliance on these cases and we will examine their contentions later. Meanwhile, oral arguments were heard by this Tribunal in its Circuit Sitting at Lakshadweep on 03.03.2022. These were followed by hearings on 10.03.2022, 18.03.2022 and 01.04.2022. Shri.Shaji Thomas, learned counsel appeared for the applicants while Smt.Sreekala.K.L., learned counsel appeared for the respondents. Both sides have submitted written submissions in detail in support of their contentions.
8. We will take up first the arguments preferred by the applicants. They have relied, as was indicated earlier, on a series of judgments/decisions in support of their contention that the actual date of -10- joining duty is not the relevant factor for grant of financial upgradation under MACP Scheme. It is sought to establish that the applicants are entitled to get financial upgradation under MACP Scheme with effect from the date of their notional seniority and that the 10 years period should count from the date of their notional appointment. At the outset, they have largely relied on the judgment of the Hon'ble Supreme Court in Union of India vs. K.B.Rajoria reported in 2000 (3) SCC 562. In this matter, the 4th appellant therein (one Shri.Krishnamoorthy) had been notionally promoted to the post of Additional Director General (Works) of CPWD with effect from 22.02.1995 by an order dated 10.06.1998. The post of Director General (Works), CPWD had fallen vacant on 01.07.1997. The said 4 th appellant made a claim to the post of Director General which is a selection post to be filled up by promotion from amongst Additional Director General (Works) with two years 'regular service' in the grade. The High Court of Delhi rejected the claim of the 4th appellant holding that the word 'regular service' contained in the Rules meant actual service and that the fiction of notional promotion could not be considered as the two years' experience. It was held by the High Court that the notional seniority granted to the 4 th appellant by order dated 10.06.1998 was not a substitute for the actual requirement of two years' regular service as Additional Director General (Works). However, the Hon'ble Supreme Court in its judgment set aside this decision and allowed -11- the Appeal filed by the Union of India and Shri.Krishnamoorthy. At paragraph 9 of the decision it was, inter-alia, observed by the Hon'ble Supreme Court as follows :
"9. Third, the High Court erred in construing the words 'regular service in the grade' as actual physical service....."
Further, in paragraph 11 the Apex Court held that "the word 'regular' therefore does not mean 'actual' and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in accordance with the Rules or it was irregular in the sense that it was contrary to any principle of law." In paragraph 13 it was held that "It is nobody's case that the notional promotion granted to Krishnamoorti was 'irregular'. By giving him notional promotion as Additional Director General with effect from 22.02.1995, Krishnamoorti was in fact regularly appointed to the post on that date." Further, in paragraph 20 it was held that "In the context of this case, the High Court erred in equating the words 'regular service' with 'actual experience' relying on the decision in Union of India vs. M.Bhaskar (1996) 4 SCC 416. In that case the eligibility criterion expressly was of 'completion of 2 years' experience in Grade II. The case is therefore entirely distinguishable." The Hon'ble Apex Court further held in the matter in paragraph 21 as follows :
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"21. The notional promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22.02.1995. If Krishnamoorti is denied the right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done."
The appeal was, therefore, allowed and the impugned order of the High Court set aside insofar as the finding regarding Krishnamoorti was concerned.
9. The applicants have submitted that this decision of the Hon'ble Supreme Court has clearly covered the question raised in the above O.A., ie., whether the notional service of the applicants during the period from 11.10.2003 to 25.03.2006 should be treated as 'regular service'. The guidelines for the initial MACP Scheme dated 19.05.2009 which have been brought out in the O.A at Annexure R-1 (d) by the respondents have indicated in paragraph 9 as follows :
"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 -13- (and not for the regular promotions). However, beneflts under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
Similarly in the new consolidated guidelines regarding MACP Scheme issued by the DoP&T on 22.10.2019, produced at Annexure R-1(e), after the 7th CPC, it is also indicated at paragraph 9 as follows :
"9. 'Regular service' for the purposes of the MACPS shall commence from the date of joimng 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 casual, adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in same/another Central Government Department in a post carrying same pay level in the Pay Matrix 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. It is submitted by the applicants that since the term 'regular service' has not been defined specifically in either of the above two O.Ms of the DoP&T, produced at Annexure R-1(d) and Annexure R-1(e), the above decision of the Hon'ble Supreme Court has full relevance in addressing the question raised ie., whether notional service is also to be included/treated as regular service? It is submitted that the applicants have continuously been treated as persons in regular service with effect from 11.10.2003 for all -14- purposes. This is also evident from the date of entry in Government service shown in the Annexure A-6 seniority list of Police Constables, which clearly shows their date of appointment/date of entry in Government service as 11.10.2003. Similarly, the respondents themselves have admitted in their reply statement that the applicants are governed by the Old Pension Scheme which further proves that they have considered the applicants as persons who had joined the service with effect from 11.10.2003.
11. In addition to the above decision of the Hon'ble Apex Court in K.B.Rajoria (supra), the applicants have also brought to notice the judgment of the Hon'ble High Court of Kerala in Ibrahim vs. Commissioner and Secretary to Government, 2003 (1) KLT 534. The Hon'ble High Court held therein that whether a person was in actual discharge of duties attached to a post is not a consideration relevant in the matter of higher grade. This case related to an Assistant Motor Vehicle Inspector (AMVI), whose date of appointment was on 15.01.1982 but was given an effective appointment as AMVI with effect from 23.08.1973. The Hon'ble High Court directed the respondents in the petition to grant the petitioner the benefit of higher grade for the period of 10 years treating the petitioner to have been in service in the cadre of AMVI with effect from 23.08.1973. This judgment of the Hon'ble High Court was also relied upon by another Bench in the judgment dated 30.11.2009 in W.P.(C) No.34287/2008. In that judgment the Hon'ble -15- High Court also held that the period of notional promotion given to the petitioner therein (for a period of 8 years) must be reckoned as qualifying service for grant of time bound higher grade in State service. It is submitted by the applicants that their matter is also covered by these two decisions of the Hon'ble High Court of Kerala, Ibrahim [supra] as well as the judgment dated 30.11.2009 in W.P.(C) No.34287/2008. The applicants were similarly given appointment as Police Constables on 26.03.2006 with notional seniority with effect from 11.10.2003. They were not in actual service for the period from 11.10.2003 to 26.03.2006, but were granted the same scale of pay as that of the 21 candidates, who were appointed on 11.10.2003. It is submitted that their period of service on 11.10.2003 to 26.03.2006 was also reckoned for the purpose of fixation of pay scales. Their scale of pay was fixed in the year 2006 at the same scale as that of the 21 persons who were appointed on 11.10.2003. Thus, though they were granted only notional benefits, they have been in the same scale of pay as the 21 other Police Constables during the 10 years period from 11.10.2003. Hence, in terms of the decision of the Hon'ble High Court in Ibrahim (supra), the question of whether the applicants were in actual discharge of duties is not a consideration relevant in the matter of granting higher grade. It is submitted that having been denied appointment along with other 21 candidates on 11.10.2003 and later given the appointment with the notional seniority with effect from 11.10.2003 pursuant to the directions issued by the Tribunal in -16- Annexure A-1 order, it is only natural and in the interest of justice that the applicants had been granted the higher grade, taking the period of notional service as service for the purpose of granting higher grade.
12. Other than the above judgments, applicants have also brought to notice the order dated 30.04.2007 of the Principal Bench of this Tribunal in O.A.No.1959/2006, in the matter of Kishan Lal Kamboja vs. Union of India. In this order which is relating to the grant of benefit of first financial upgradation under ACP Scheme the issue of counting the period of notional appointment/regularization has been addressed. It is submitted that the Principal Bench had found that the question raised in the O.A was no longer res-integra as the term qualifying service has been interpreted by the Hon'ble Supreme Court in K.B.Rajoria (supra). It was found as follows at paragraph 8 :
"8. In our considered view, aforesaid law would be squarely attracted in the facts and circumstances of present case. If the eligibility for grant of first financial upgradation under ACP Scheme is counted with effect from 23.11.2000, instead of 23.01.1993, as noticed hereinabove, this would tantamount to perpetuating a wrong done to him which was set right later on, particularly in view of direction of this Tribunal. In the circumstances, we are of the considered view that 12 years of regular service has to be counted from 23.01.1993 instead of 23.11.2000 and, accordingly, applicant would have to be considered for grant of ACP on such basis with effect from 24.01.2005."-17-
It is submitted that this Bench of the Tribunal too has passed similar orders on 03.08.2015 in O.A.No.262/2014. In that case the applicants were appointed on 13.01.2004 with effect from 13.03.2003 with pay fixation benefit and seniority. They claimed for first MACP taking their date of entry in service as 13.03.2003. The applicants therein submitted that this Tribunal in O.A.No.110/2013 had given the applicants the same benefits as in O.A.No.620/2003 ie., antedated their appointment to 30.01.2003, the date on which Gramin Dak Sevak and departmental candidates under merit quota had been declared to have passed the examination for appointment as Postmen and their pay had been fixed notionally, while their actual pay would be from the date they have assumed charge. It was submitted that the Tribunal in the above order has already fixed the seniority of the applicants and antedated their appointment to 30.01.2003. Hence, it was found that their ten years of continuous service should count from 30.01.2003 for the purpose of MACP. The Tribunal relied on this order while granting MACP taking into account date of entry into service as 13.03.2003. Similarly, the Jodhpur Bench of this Tribunal in O.A.No.290/222/2013 in the matter of Veera Ram vs. Union of India and another decided on 28.02.2020 held as follows :
"9. ........... In our considered view, the word regular herein will not mean actual as the appointment of the applicant was retrospective pursuant to observation of Hon'ble High Court to correct the wrong committed by the respondents as applicant despite being higher in order of merit, persons -18- lower in merit were appointed by the respondents..........The expression 'regular service' herein would mean the appointment to the post on a regular basis in contradistinction to appointment on adhoc or stopgap or purely temporary basis. It is not the case of the respondents that notional appointment of the applicant with effect from 25.01.2002 is illegal or irregular. We are fortified in our view by the judgment of Hon'ble Supreme Court in the case of Union of India & Ors. vs. K.B.Rajoria (2000) 3 SCC 562. In our considered view, if applicant is denied the right to be considered for MACP for financial upgradation from the notional date of appointment, it would result in perpetuating the wrong done to him.
10. In view of discussions hereinabove made, it is held that the applicant is entitled for counting of his 10 years' regular service from his notional date of appointment, ie. 25.01.2002 for the purpose of granting MACP benefits.....The respondents shall consider the case of the applicant for benefit under MACP Scheme with effect from 25.01.2012 taking into account 10 years' regular service from 25.01.2002 as his date of commencement of regular service in the grade and if he found fit, respondents shall grant the applicant financial upgradation with all consequential benefits within three months from the date of receipt of a certified copy of this order."
13. Similar to the above, it is submitted that the Calcutta Bench of this Tribunal in O.A.No.1030/2014 had held that the applicant in the said O.A was entitled to get financial upgradation under MACP Scheme after 10 years of continuing service from the date of notional appointment and not on the basis of the applicant actual date of joining duty. That was in the matter of Asish Bose vs. Union of India and ors. in O.A.No.1030/2014 decided on 25.10.2017. Here too reliance was placed on the observations of the Hon'ble Supreme Court in K.B.Rajoria (supra). Further, the applicants -19- have drawn attention to the decision dated 09.12.2013 of the Hon'ble High Court of Delhi in W.P.(C) No.3534/2012 in Smt.Krishna Kumari vs. Government of NCT of Delhi & Ors. It was held in paragraph 13 as follows :
"13. We accordingly allow the writ petition and set aside the impugned order dated May 09, 2012 and dispose of the writ petition as also O.A.No.1986/2011 directing the respondents to step up Krishna Kumari's pay when person immediately junior to her got benefit firstly of the ACP and then of the MACP Scheme and bring the same at par with the said immediately junior person. Arrears be calculated and paid to Krishna Kumari within 12 weeks from today."
The applicant has also brought to notice the judgment of the Hon'ble High Court of Kerala in 2004 (1) KLT 398 in State of Kerala vs. Sreedharan wherein the Division Bench of the Hon'ble High Court held that the writ petitioner who had physically joined in service on 01.07.1982, was deemed to have been appointed on 16.09.1975 and he is entitled to get his deemed period of appointment also count for qualifying service of 10 years for his time bound higher grade.
14. Opposing the above contentions, the respondents have submitted that on going through the Annexure A-1 order of this Tribunal in O.A.No.179/2005 and O.A.No.528/2005, which was the original order, on the basis of which the respondents had appointed the applicants in this O.A as Police Constables, it should be noted that the third relief sought in that -20- O.A was to direct the respondents to give the applicants all consequential service benefits including due seniority and arrears of salary from 24.09.2003 till the date of his appointment. However, no arrears were granted by the Tribunal and only notional seniority was given by Annexure A-1 orders. Hence, the prayer in the present O.A comes under the purview of res-judicata. It is also contended that what should be taken as the date of regular service has been made clear in the O.M dated 19.05.2009 relating to the MACP Scheme, produced at Annexure R-1(d). It has been provided therein that the regular service for the purpose of the MACP shall commence from the date of joining of a post in direct entry grade. Any doubts regarding the MACP Scheme have again clarified by the DoP&T in its new O.M dated 22.10.2019, produced at Annexure R-1(e), wherein paragraph 9 it is stated that "regular service for the purpose of the MACP Scheme 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 casual, adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning". Thus, it is contended that the MACP Scheme clearly stipulates that the regular service would be only that which commences from the date of joining in a post in direct entry grade on a direct recruitment basis or on an absorption/re-employment basis. Thus, the applicant's direct entry date commences only from 26.03.2006 and not -21- from 11.10.2003. The respondents, in this connection, have also brought to notice three judgments/decisions. In Civil Appeal No.2090/2007 in Union of India & Anr. vs. Kartick Chandra Mondal & Anr., the Hon'ble Supreme Court at paragraph 11 explicitly has stated that : ".....even otherwise, it is a well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of the legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute......" Besides this general contention, the respondents have also brought to notice the orders of the Hon'ble High Court of Kerala in O.P.(CAT) No.241/2019 in Union of India vs. K.S.Sindhu, along with O.P.(CAT) No.284/2019 and O.P.(CAT) No.294/2019. Here the issue related to whether the 'adhoc' service rendered by the respondents (applicants before the Tribunal) should be reckoned for the purpose of granting the first financial upgradation as per the ACP Scheme. In relation to one of the applicants in these O.P.(CAT)s ie., respondent in O.P.(CAT) No.241/2019 (K.S.Sindhu, Assistant Superintendent, Regional Passport Officer, Cochin) the claim was for MACP which was brought in by the O.M dated 19.05.1999. It was observed as follows :
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"8. ........As far as the MACP Scheme is concerned, regular service for the purpose of MACP is to commence from the date of joining in a post in a direct entry grade on a regular basis either on direct recruitment basis or by an absorption or re-employment basis.......It cannot be considered that the earlier service was a regular service as contemplated under the MACP Scheme. We do not think that the Tribunal was correct in having granted the MACP benefits. However, the ACP as granted by the Tribunal is upheld."
15. The respondents point out that in K.S.Sindhu (supra) the difference between the ACP Scheme issued under O.M dated 09.08.1999 and MACP Scheme under O.M dated 19.05.2009 with regard to the question of regular service has been clarified. These two O.Ms have been produced as Annexure R-1(c) and Annexure R-1(d). The Annexure R-1(d) has well explained what is regular service for calculating MACP in paragraph 9 of annexure 1. It has also been mentioned in the Annexure R-1(d) O.M dated 19.05.2009 that any interpretation or clarification of doubts as to the scope and meaning of the provision of the MACP Scheme shall be given by the Department of Personnel & Training of the Government of India (DoP&T). This was again reinforced by the Annexure R-1(e) O.M. dated 22.10.2019, which has been issued by the DoP&T after the 7 th CPC. It is only the DoP&T which has the power to give an interpretation or clarification in this regard. The clarification given at Annexure R-1(b) in the matter in this O.A has clearly specified that the benefit of MACP Scheme is to be granted by counting the service from the actual date of joining in the direct entry grade only and that there is no concept of counting of services from the date of -23- notional seniority for grant of financial upgradation under MACP Scheme. In addition to the above, the respondents have also brought to notice O.A.No.1986/2011 of the Principal Bench of this Tribunal in Smt.Krishna Kumari vs. Government of NCT of Delhi decided on 09.05.2012. This O.A has dealt with the matter of commencement of the date for the benefit of the MACP Scheme. In para 34 and 35 of the order it has been indicated as follows :
"34. It is not in dispute here that both ACP & MACP Schemes are benevolent schemes, floated as a safety-net against demoralization of employees due to stagnation without increments. Stagnation is related to length of service without promotions. But, one cannotbe said to have started stagnating in service even before and without actually joining the service. Stagnation necessarily has to be actual and real. There cannot be any concept of notional, or fictional, or virtual stagnation. While ante-dated higher pay fixation can be provided notionally, and, like in this strange case, even ante-dated fictional seniority has been granted notionally, but obviously neither this Tribunal, nor for that matter even a higher Court, can ever sanction or order for the grant of stagnation notionally, fictionally or virtually. Once cannot start deriving advantages of the Government's safety-net benefit, without first actually joining as a Government employee, merely by virtue of a benefit of pay fixation granted notionally by a Court or a Tribunal on ante-dated basis.
35. In the result the present applicant before us cannot be allowed to deny the fact and historical event of her actual date of appointment as a Government servant, and her stagnation in service cannot be said to have started before the actual date of her joining Government service on 17.07.1986, even though both this Tribunal and the Hon'ble High Court of Delhi have given her the benefit of her earlier selection and inclusion in the 1983-84 select panel, by giving her notional benefit of pay fixation with effect from 20.01.1984. But that period of two and a half years from 20.01.1984 till -24- 16.07.1986, when she had not even actually joined Government service, cannot ever count towards her stagnation in service, for the purpose of being considered for the grant of financial upgradations under either ACP Scheme, or MACP Scheme. What is only notional or fictional can never be held to be actual or regular. Both the ACP and MACP Schemes are safety-net Schemes only for those hapless employees who had actually joined service decades earlier, and are then stagnating without any regular promotions. Therefore, in the present case, the applicant before us cannot be allowed to claim that in her case stagnation in Government service had started to accrue even before she had actually joined Government service on 17.07.1986."
16. It is contended that as per these orders the eligibility for the MACP Scheme can thus only be counted in the case of the applicants in this O.A with effect from their date of actual appointment ie., 26.03.2006. In addition to these judgments/orders, the respondents have also produced at Annexure R-1(f), a clarification regarding counting of service rendered by Inspectors of the Central Board of Excise and Customs on notional basis for the purpose of MACP Scheme. This clarification which has been issued by the Department of Revenue (Central Board of Excise and Customs) to all Cadre Controlling Authorities has mentioned that in the matter for clarification, the DoP&T has clarified that "for the purpose of MACP Scheme, service rendered on assumption of charge of the post on regular basis alone will be counted for determining eligibility for next financial upgradation as the MACP Scheme provides that financial upgradation will be admissible to an employee only on spending 10 years after actual joining in the post. Therefore, the period of notional -25- promotion till assumption of charge of the post on promotion shall not count for determining eligibility for a financial upgradation under MACP Scheme."
17. We have gone through these different O.Ms/clarifications issued by different departments, including the Department of Personnel & Training (DoP&T) as well as perused the orders/judgments of various Benches of the Tribunal, High Courts as well as the Hon'ble Supreme Court. We have also seen the detailed written submissions by the learned counsel for the applicants as well as learned counsel for the respondents. Our considered view after going through all these documents is that in the light of the orders of the Hon'ble Supreme Court in K.B.Rajoria (supra) and the decisions of the Hon'ble High Court of Kerala in Ibrahim (supra) as well as the other orders/judgments outlined earlier, it is first of all clear that the term 'regular' service, as understood and also as indicated in the guidelines for the MACP, does not specifically exclude the counting of notional service. On the other hand, it is the import of this judgment that regular service does not mean actual service in the post. Further, it is also clear that the term 'regular' service should not include, as per the guidelines for the MACP Scheme produced at Annexure R-1(d) and Annexure R-1(e), services which are casual, adhoc or contract. The guidelines only indicate that 'regular' service would commence from the date of joining of a post in direct entry -26- grade on a regular basis, which could be either on direct recruitment basis or on absorption/re-employment basis. Thus, we do not see these guidelines on MACP excluding notional service from being counted. Further, as noted earlier, K.B.Rajoria (supra) has laid down that the word 'regular' does not mean 'actual' and, in fact, there is error in equating the words 'regular service in the grade' as actual physical service. This understanding is similar to that in Ibrahim (supra) where the Hon'ble High Court of Kerala had held that the question whether a person was in actual discharge of duties attached to a post is not a consideration relevant in the matter of granting higher grade. Specifically, in relation to the matters covering grant of ACP and MACP, the decisions in Kishan Lal Kamboja (supra) as well as in Veera Ram (supra) and this Tribunal in O.A.No.262/2014 show that various Benches of this Tribunal have also held that financial upgradation under ACP/MACP can be counted with effect from the date of notional appointment being taken as the date of entry in regular service. The Calcutta Bench of the Tribunal had also arrived at the same conclusion. The Hon'ble High Court of Delhi in Krishna Kumari (supra) in W.P.(C) No.3534/2012 had also given similar directions on this basis.
18. On the other hand, we find that the judgments/orders relied upon by the respondents are not relevant while considering this matter. Kartick Chandra Mondal (supra) relates to the language used in a Statute. If the -27- language of the enactment is clear and unambiguous, it is laid down that it would not be proper for the courts to add any words thereto and decipher some legislative intent not found in the statute. However, here, the entire issue relates to the interpretation of the word 'regular service' in the MACP guidelines. Since the guidelines do not specifically mention anything about the notional service being included or excluded, there is obviously sufficient groud for interpreting and understanding the same in the light of the pronouncements of various Courts, most particularly, the Hon'ble Supreme Court. The clearest possible interpretation has been given by the Hon'ble Supreme Court in K.B.Rajoria (supra). Thus, we do not find the general point in Kartick Chandra Mondal (supra) relevant in this particular matter. Similarly the Principal Bench's order relating to stagnation which it is stated has to be actual and real and not notional, fictional or virtual has been later overcome by the orders of Hon'ble High Court of Delhi in W.P.(C) No.3534/2012 in Krishna Kumari (supra) quoted earlier. In any case, this finding is also overcome by the finding of the Hon'ble Apex Court that the notional service does not necessarily need to mean actual physical service in the particular grade/post. Similarly, the judgment of the Hon'ble High Court of Kerala in K.S.Sindhu (supra) in O.P.(CAT) No.241/2019 appears to be in relation to the 'adhoc' service of that employee, which, in any case as we have seen earlier, is completely excluded from the concept of regular service under the MACP guidelines. These guidelines clearly specify that adhoc or -28- contract service before regular appointment or pre-appointment training will not be taken into reckoning. Thus, the findings of the Hon'ble High Court in K.S.Sindhu (supra) appears not relevant in this matter as we are here dealing with notional service being counted or not and not adhoc service.
19. This brings us to the two clarifications issued by the DoP&T and the Department of Revenue at Annexure R-1(b) and Annexure R-1(f). The second clarification at Annexure R-1(f) relating to the Central Board of Excise and Customs (CBEC) issued by Department of Revenue in consultation with DoP&T states that counting of service from the date of notional promotion for grant of financial upgradation under MACP Scheme is not permitted. It is laid down in the clarification that the benefit of MACP Scheme is to be granted by counting the service from the actual date of joining in the direct entry grade only. In this clarification, we note that it is only stated that the period of notional promotion till assumption of charge of the post on promotion shall not be counted for determining eligibility for promotion under the MACP Scheme. However, this does not seem to be similar to matter of notional seniority/service being addressed in the present O.A. Indeed, the issue addressed in the clarification relating to notional promotion appears to be in the nature of adhoc service not being counted, rather than notional service. Adhoc service in any case is excluded in the matter of counting of regular -29- service in the MACP guidelines. The clarification by the DoP&T at Annexure R-1(b) is however more relevant as it was given specifically in the context of the issue addressed in this O.A. This clarification has specifically excluded counting of service on notional basis. It states that the benefit of MACP Scheme can be granted only by counting of service from the actual date of joining. However, as we have earlier noted, this interpretation should be first examined in the context of the fact that the MACP guidelines at paragraph 9 at Annexure R-1(e) and paragraph 9 of Annexure R-1(d) had never specifically excluded notional service unlike other kinds of service. Further, as we have seen, notional service as found by the Hon'ble Supreme Court, can be taken to be counted as part of regular service. This is the only interpretation available and provided to us as to what constitutes 'regular' service. Thus, it appears that the DoP&T has not taken into account the findings of the Hon'ble Supreme Court in K.B.Rajoria (supra) and also other courts by specifically excluding counting of notional service in their clarification.
20. In addition, we also feel that exclusion of 'notional' service while counting period of regular service for MACP would have another implication which perhaps has not been considered. For example, in the guidelines for MACP produced at Annexure R-1(d), at paragraph 21 it has been mentioned that pay drawn in the pay band and the grade pay allowed -30- under the MACPS shall be taken as the basis for determining the terminal benefits in respect of the retiring employee. Thus, the specific date of grant of MACP benefit becomes important in the future service of the employee, because that becomes the date on the basis of which further financial upgradations under MACP or fixation of pay after promotion or calculation of pensionary benefits/quantum of pension will be based. In this specific case, we have seen (and also taken into consideration) that it was due to no fault of the applicants but due to a mistake committed by the respondents that they had not been appointed in time along with 21 other candidates. This was accepted by this Tribunal as well as by the Hon'ble High Court. Later, this was set right by giving them notional appointments, along with the 21 others, with effect from 11.10.2003. Thus, if the first financial upgradation under MACP Scheme is also not to be given to them from 11.10.2013 and, instead, to be given from 26.03.2016, it would be amount to perpetuating the error committed in the matter by the respondents during their future service. We are of the view that such matters have thus to be dealt with on a case to case basis and DoP&T clarifications have to take into account the facts and circumstances of individual cases and not follow same generalized principle. Thus, in this matter, the spirit of the orders/judgments of this Tribunal, Hon'ble High Court and Hon'ble Supreme Court through which the applicants were given notional appointments with effect from 11.10.2003 will be lost, in case their -31- eligibility for upgradation under MACP is fixed from a later date then the date that the 21 other candidates who were recruited with them had received the upgradation.
21. We, therefore, find that the applicants are eligible for grant of their first financial upgradation with effect from 11.10.2013 under the MACP Scheme. The reliefs prayed for in the O.A are accordingly granted; however, the relief sought for at Sl.No.4 of the relief array to give consequential monetary benefits with interest of 12% cannot be acceded to. We direct that the applicants will be given financial upgradation with effect from 11.10.2013 as given to the 21 other Police Constables but without any arrears being given to them. We find it would not be right in the overall facts and circumstances to give them the benefit of any arrears for a period in which they had not been in service. Their notional service thus should be counted for the purpose of fixing their first financial upgradation under MACP Scheme, as well as for future upgradations in pay on promotion or for financial upgradation under MACP Scheme in future etc. With these directions, we allow the O.A to the extent as indicated. No order as to costs.
(Dated this the 11th day of May 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.181/00713/2018
1. Annexure A-1 : True copy of the common order dated 10.12.2005 in O.A.No.179/2005 and O.A.No.528/2005 of this Hon'ble Tribunal.
2. Annexure A-2 : True copy of the judgment dated 12.11.2005 in W.P. (C) No.34513/2005.
3. AnnexureA-3 : True copy of the order dated 10.03.2006 of the Hon'ble Supreme Court of India in S.L.P.(Civil) No.4247/2006.
4. Annexure A-4 : True copy of the order dated 16.10.2008 issued by nd the 2 respondent.
5. Annexure A-5 : True copy of the corrigendum dated 05.08.2014 issued by the 2nd respondent.
6. Annexure A-6 : True copy of the seniority list of Police Constables recruited in the year 2003 and 2006 (provisional).
7. Annexure A-7 : True copy of the representation dated 01.07.2003 submitted by the 1st applicant before the 2nd respondent.
8. Annexure A-8 : True copy of the representation dated 02.10.2015 submitted by the 7th applicant.
9. Annexure A-9 : True copy of the office memorandum dated 20.02.2016 issued by the 2nd respondent.
10. Annexure A-10 : True copy of the representation dated 17.10.2016 submitted by the 1st applicant before 1st respondent.
11. Annexure A-11 : True copy of the order dated 29.08.2017 issued by the 2nd respondent.
12. Annexure R-1(a) : True copy of the letter F.No.1/3/2011-Estt.(POL) Part I dated 23.10.2018 issued by the 2 nd respondent and addressed to the DoPT.
13. Annexure R-1(b) : True copy of the letter F.No.U-14012/2/2018- ANL dated 31.01.2019 reply from the Ministry of Home Affairs.
14. Annexure R-1(c) : True copy of the Office Memorandum No.35034/1/1997-Estt.(D) Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Dept. of P&T).
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15. Annexure R-1(d) : True copy of the Office Memorandum No.35034/3/2008-Estt.(D) Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Dept. of P&T).
16. Annexure R-1(e) : True copy of the Office Memorandum No.35034/3/2015-Estt.(D) Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Dept. of P&T).
17. Annexure R-1(f) : True copy of the letter F.No.A-26017/214/2017- Ad.HA, Govt. of India, Ministry of Finance, Dept. of Revenue, Central Board of Excise and Customs.
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