Central Administrative Tribunal - Delhi
Rati Ram Singh vs Govt. Of Nct Of Delhi on 21 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1761/2010 M.A. NO.1437/2010 New Delhi, this the 21st day of April, 2011 CORAM: HONBLE MRS MEERA CHHIBBER, MEMBER(J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Rati Ram Singh S/o Late Shri Sukhan Singh, R/o V-347, Arvind Nagar, Ghonda, Delhi 110 053 2. Smt Hem Lata W/o Shri Mahabir Singh, R/o C-368, Gali No.16, Bhajanpura, Delhi 110 053 3. Shri S. Joshi (Subodh Joshi), S/o Shri N.B. Joshi, R/o D-23, DDA Flat, Timarpur, Delhi 4. Shri Udai Veer Singh, S/o Late Shri Karam Singh, R/o C-227/1 G.No.10, Bhajanpura, Delhi-110 053 5. Shri Suresh Chand Jain S/o Shri D.C. Jain, R/o A-27/2A, Shastri Marg, Gali No.5, Maujpur, Delhi 6. Shri Vinod Kumar Gupta, S/o Shri Tej Pal Gupta, R/o D-157-A, Bhajanpura, Delhi 110 053 7. Shri Gajraj Singh, S/o Shri Balak Ram, R/o B-380, G.N. 17, Bhajanpura, Delhi 110 053 8. Shri Ramesh Chand Gupta, S/o Shri Shiv Charan Das Gupta, R/o C-502/2, Bhajanpura, Delhi 110 053 9. Shri Rajender Prasad, S/o Late Shri Murari Lal, R/o A-114, Ashok Nagar, Mandoli Road, Delhi 110 093 Applicants (By Advocate: Shri Devesh Singh & Shri T.N. Tripathi) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary, Players Building, I.P. Extension, New Delhi 2. Director of Education, Govt. of NCT of Delhi Old Secretariat, Delhi 3. Assistant Director of Education, ACP Cell, Lucknow Road, Delhi 4. The Chairman, DSC Regional Director, GBSSS, Rani Garden, Near Geeta Colony, Delhi .Respondents (By Advocate: Ms Rashmi Chopra) O R D E R (Oral)
By Dr. Veena Chhotray:
The applicants, 9 in number including some retirees, are teachers of Raghvar Dayal Jan Kalyan Govt. Secondary School (Co-ed), Bhajanpura. The School, initially a private one, had been recognized in 1971; granted an Aided School status since 1.5.1972; and was converted into a Government School w.e.f. 12.9.1996. The OA challenges the respondents decision vide the impugned Circular dated 29.4.2010 not to count the service rendered by any teacher/official in any Aided School, before absorption in the Directorate of Education for the purposes of grant of financial up-gradation under the ACP/MACP Schemes. As some of the applicants had already been granted such benefits, this consequentially means withdrawal of such benefits. Besides, non-grant of further ACP/MACP benefits on the due dates constitutes the grievance of the applicants.
2. In this background, the OA seeks the following reliefs:-
(a) To set aside the circular No.DE-3(1)/ACP Cell/TGT-II./Misc.10/7197-7215 dated 29.04.2010 thereby directing the respondents not be stop/deduct the payment being granted to the above named applicants.
To declare the circular dated 29.04.2010 as null and void abinitio and quashed the same.
Direct the respondents to grant the MACP II and III to the above named applicants after completion of their requisite qualifying service under MACP Scheme by counting their earlier services rendered in Aided school prior to the absorption.
Any other relief which this Honble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant. In response to the prayer for interim relief, directions had been issued to the respondents vide the Tribunals order dated 20.12.2010 not to effect the impugned recovery. This direction had been continued from time to time.
3. On behalf of the applicant, learned counsels, Shri Devesh Singh along with Shri T.N. Tripathi would appear before us. For the Respondents, learned counsel, Ms Rashmi Chopra would make the submissions.
4. The main contentions on behalf of the applicants are (i) Theirs is a case of absorption under Rule 47 of the Delhi Education Rules, 1973 which has inbuilt protection clauses. (ii) The impugned Circular dated 29.4.2010 is contrary to the Agreement of take over. Particularly clause 4(b) regarding counting the service rendered by employees for various purposes has been adverted to. As at that time no Scheme of ACP/MACP had come into existence, hence those benefits are contented to be complied as per the terminology of this clause. (iii) The date of 12.9.1996 was not the date of appointment, but of absorption and hence their previous service could not be wiped out. (iv) Some of the applicants had already been granted this benefit after due consideration by the competent authorities and withdrawal of the same by the impugned order is not in consonance with law. To substantiate, the Directorate of Educations communication dated 16.11.2006 regarding removal of discrepancies in left out cases of grant of ACP to teachers, particularly serial nos.59, 60 and 61 have been referred where the deficiency shown was terms and condition of absorption required. Their subsequent representation of 23.4.2007 (Annexure A/7) and the final orders dated 1.1.2008 (Annex. A/8) by which applicants 1, 2 and 3 had been given the same by counting initial service have also been cited. (v) Plea of discrimination, violative of Articles 14 and 16 has been raised. Para 4.13 of the OA states names of 4 teachers to reinforce this plea ( Annex. A/6 ) Sl. No.53 Saranjeet Kaur was from the same school as the applicants. Additionally by the rejoinder an order dated 4.10.2010 (Annex. 16) has been submitted showing grant of ACP to 16 teachers from the date of initial appointment in the aided schools.
5. The stand of the respondents, however, is about the claims in the OA being misconceived and untenable in law. It would be emphasized that the school in question had been taken over as a welfare measure. Further, the claims are stated not to be within the ambit of Rule 47 of the Delhi Education Rules, 1973. The ACP Scheme had been given effect only from 1999. Besides, as per the conditions stipulated only regular service rendered after regular appointment in a Govt. civilian post is to be counted. Other services have been excluded from the ACP. The clarificatory point 43 in the DOP&T OM dated 18.7.2001 and the Condition No.12 in the GNCTD Circular dated 25.8.2003 have been adverted too. The same had also been reiterated in the MACP Scheme. Para 10 of DOP&T OM dated 1.9.2008 and Para 6 of the GNCTD Circular dated 19.8.2009 have also been referred.
The grant of ACP given to some among the applicants counting their initial service would be averred to as have been wrongly given. Similar would be the stand in respect of other instances cited in the OA. Further, the submission of such cases being under review for withdrawal would also be made. In any case a benefit granted in contravention of law could not be made a precedent to perpetuate a wrong.
As per the respondents counsel, in case of aided schools also the benefit of ACP has only been extended w.e.f. 11.6.2007. On the point of the takeover agreement, their stand is that any agreement cannot supersede the statutory requirement under law. The Circular dated 29.4.2010 is justified as having been issued superseding all other Circulars, and in the background of the ACP Scheme not being implemented properly in accordance with the rules.
6. Having carefully considered the respective contentions, we find the following aspects relevant.
6.1 The absorption of the applicants was as per the provisions of rule 47 (1)(a) of the Delhi School Education Rules, 1973. This was as a result of closure of an aided School. Sub-rule 2 prescribes specific safeguards regarding protection of salary and allowances, transfer of Provident Fund of the absorbed employees. Most important is the provision under 2 (c). This stipulates the counting of the period of qualifying service in the recognized aided schools before absorption, for purposes of computing the pension and other retirement benefits.
The contention of the respondents learned counsel regarding the absorption of the surplus employees of the closed school being a welfare measure - impliedly an act of condescension is not really relevant in the face of the statutory dispensation. Nor would the plea of such absorbed surplus employees being treated as junior to all the persons of the same category employed in the Govt. Schools on the date immediately preceding that of absorption, would be relevant. This is on the simple ground that inter-se seniority is an entirely different concept from the reckoning of service for the purposes of grant of ACP/MACP benefit.
6.2 The claim of the applicants in the instant OA is on the basis of the bilateral agreement entered into between the Management of the Aided School and the Respondent-Government, on behalf of the President of India. A copy of this Agreement has been enclosed with the OA as Annex A/3. Its perusal reveals that the said Agreement provided for full-fledged conversion of the school being taken over into a regular Govt. school. To quote the extracts from Clause 6:
..The school after the execution of this deed shall run as any other govt. school and shall be entitled for various facilities provided by the govt. to other govt. schools. In the present context Clause 4 (b) is specifically relevant. It ran as under:
4 (b) The service rendered by the employees shall be taken into account for the purposes of pay, pension, gratuity, provident fund etc. This shows that as per the bilateral Agreement the previous service in the aided school had to be counted for all listed purposes. Besides, use of the expression etc indicates the non-restrictive scope and a wider connotation of this clause.
6.3 The inclusion of the previous services rendered before absorption, for the purposes of ACP/MACP Schemes could not have been specifically included in the bilateral Agreement as the Scheme itself came into existence at a later point of time. However, only on the ground that this was a subsequent Scheme, to exclude their earlier services for ACP/MACP purposes, would not be in consonance with the spirit of the bilateral Agreement, to which the Government stood committed. The respondents argument about this Agreement not superseding the statutory requirement under the law would not be tenable either. This is on the ground that there is nothing to show that the counting of such services for ACP/MACP purposes would be in contravention of The Delhi School Education Act and Rules, 1973. Further, the introduction of the ACP/MACP Schemes being by virtue of executive orders, rather than any statute, would also not create an impediment.
6.4 The allied plea of the applicants about their status being that of absorbees instead of appointees on the take over date in 1996 merits consideration too.
6.5 The reliance placed by the respondents on the excluded categories in the ACP/MACP Circulars of GOI versus GNCTD is not applicable to the applicants.
While responding to the Clarification No.43 by the GOI, DOP&T OM dated July 18, 2001, it had been stated that service rendered in an Autonomous Body, Statutory Body, State Government is not to be counted for the purpose.
Similarly, the GNCTD vide its Circular dated 25.8.2003 on the subject of implementation of the Assured Career Progression Scheme in respect of teachers, vide Para 12 had stipulated regarding the service rendered in an Autonomous Body (MCD, NDMC)/Statutory Body/State Government, other than Government of NCT of Delhi not to be counted for the purpose.
Similar conditions had been reiterated in case of MACP Scheme also. However, vide the GNCTD, Directorate of Educations Circular dated 19.8.2009 an exception had been made in case of MCD. The relevant extracts are reproduced as hereunder:-
6. Past service rendered by a Government employee in a State Government/statutory body/Autonomous body /Public Sector organization, before appointment in the Government shall not be counted towards Regular Service except service rendered in MCD as per Cabinet Decision 1390 communicated vide order dt. 16/05/08. As the above facts show, the case of the applicants stands on a different footing. In any case, the respondents have been making exception to their own stated policy, as is evident in the case of the MCD. Hence, considering the factual gamut of the present case, there seems to be valid ground for their inclusion too in the ACP/MACP ambit taking a broader canvas including their initial services.
6.6 Instances have been brought to our notice where teachers from aided schools have been given the benefit of ACP/MACP taking into account their earlier services. The attempt on the part of the Respondents learned counsel to draw a distinguishing wedge by showing that the same was dependent upon the respective School Managements bearing their corresponding shares would not be applicable in the conspectus of the present case.
6.7 We also do not find the impugned action as satisfying the test of fair play and reasonableness upheld by the Honble Apex Court as the basic touchstone of any administrative action. In Man Singh vs State of Haryana & Ors ( 2008 (7) SCALE 750) the following was observed.
..Any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have had it.
7. In view of the foregoing, in its presentform the impugned Circular is not found to be sustainable in law. Non-counting of earlier services for ACP/MACP purposes is not in consonance with the commitments of the respondents in the bilateral Agreement. As several of the applicants have retired, remitting the matter once again to the respondents would only further prolong the issues. As some among the applicants had earlier been granted such benefits, the matter of withdrawal of benefits already conferred would also evoke the doctrine of equity in their favour.
Resultantly, the OA is allowed partly by setting aside the impugned order dated 29.04.2010 and directing the respondents to count the previous services of the applicants from the date of their initial appointment in the aided schools while granting ACP/MACP benefits. The interim directions against recoveries are also made absolute hereby. The respondents are directed to issue necessary orders and pay arrears to the applicants accordingly, including the re-fixation of the retiral dues of the retirees. This would be done within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(Dr. Veena Chhotray) (Mrs Meera Chhibber)
Member (A) Member (J)
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