Central Administrative Tribunal - Delhi
Smt. Suresh Kumari vs Govt. Of Nct Of Delhi on 10 October, 2012
Central Administrative Tribunal Principal Bench O.A.No.4643/2011 New Delhi, this the 10th day of October, 2012 Honble Shri George Paracken, Member (J) Honble Ms. Jayati Chandra, Member (A) Smt. Suresh Kumari w/o Sh. Virendra Singh r/o Village Rangpuri P.O. Mahipalpur New Delhi 110 037. Applicant (By Advocate: Sh. Sudhanshu Tomar) Versus Govt. of NCT of Delhi Through its Chief Secretary Govt. of NCT of Delhi New Secretariat Delhi. The Director of Education Directorate of Education Old Secretariat Delhi. The Deputy Director District South West A C-4, Street, Vasant Vihar New Delhi. Respondents (By Advocate: Mrs. P.K.Gupta) O R D E R (Oral) By George Paracken, Member (J):
The present OA has been filed under Section 19 of the Central Administrative Tribunals Act, 1985 against the alleged arbitrary and discriminatory decision of the respondents not to count her past service rendered in an Aided School for the purpose of ACP/MACP benefits.
2. The brief facts of the case are that the applicant joined Gandhi Harijan Senior Secondary School (GHSSS for short), an aided School under the Government of NCT of Delhi, on 08.02.1975. Later on, the Government of NCT of Delhi took over the management of the aforesaid School and absorbed its 78 employees, including the applicant. The date of absorption of the applicant was 30.12.1978.
3. Later on, two of the aforesaid 78 employees filed Writ Petition No.3744/1999 titled Ranjit Singh & Anr. V. The Administrator & Ors. in the Honble High Court of Delhi and the same was disposed of vide Judgement dated 07.07.1991 and its operative part is as under:
.It may be mentioned also that the School was taken over by Delhi Administration under provision of Section 20 of the Delhi School Education Act and it is still being run under Delhi Administration. That question, however, is not quite relevant for our purpose. It is then submitted that the petitioner was granted pension by letter dated 7th October, 1991 during the pendency of this Writ Petition and that the amount of pension was fixed but the submission of the petitioner is that the calculation should have been made on the basis of annexure `X above mentioned and the service rendered by him in the States of Haryana and U.P. for the period school remained unaided should also be counted. We find the contention raised by the petitioners to be correct. That being so far we are also of the opinion that when increments have been granted to the teachers including the petitioners during the period when the school remained unaided should also have been counted towards their service for the purpose of calculating the pension in the case of the petitioner. Also in view of this interpretation further plea of the second petitioner that she was entitled to seek premature retirement is also correct in as much as any service rendered in the State outside Delhi as per annexure `X that period is to be counted and she has rendered more than 20 years. Accordingly this petition is allowed. As such letter dated 28th September, 1990 (Annexure `G to the Writ Petition) written by Mr. N.S.Tolia, Deputy Director of Education where it is mentioned that benefit of service rendered by the staff members of the school which include the petitioners when the school was unaided could not be given, is, therefore, to be set aside. We so order. A mandamus is issued to the respondents in calculate the pension of the petitioner No.1 on the basis of his having rendered service on the basis of his service in the State of Haryana and U.P. as well as for the period from 1.4.78 to 30.4.79 when the school remained recognized through unaided. As far as the relief claimed by the second petitioner that she has rendered more than 20 years of service, we find that she is entitled to premature retirement as per rules if she so applies. The calculation of pension as above mentioned shall be made within a period of three months from today. Since there is no appearance on behalf of the respondents who remained unrepresented we are not making any order as to costs.
4. On the basis of the aforesaid Order of the Honble High Court, the respondents counted the period of service rendered by both the employees of the Gandhi Harijan Senior Secondary School for pensionary purposes. On her absorption with effect from 30.12.1978, the applicant was posted in a Government School in Mahipalpur, Delhi under Respondent No.3, namely, Deputy Director, South West District. Thereafter, services rendered by her in the GHSSS during the period from 08.02.1975 to 29.12.1978 was also counted for pensionary benefits and necessary orders have been passed. Necessary entries were also made in the service book. Subsequently, the applicant was also granted the benefits of the ACP Scheme taking into consideration of her services w.e.f. 30.12.1978, vide order dated 11.10.2006 (Annexure A5). The Respondent No.3 has also passed an order dated 23.09.2009 for counting the service rendered by her in the GHSSS w.e.f. 08.02.1975 to 29.12.1978. Subsequently, she made a representation on 06.09.2010 through proper channel with request to grant her ACP Scheme benefits taking the date of her initial appointment as 08.02.1975 instead of 30.12.1978. Vide the impugned order dated 06.01.2011, Respondent No.3 rejected her representation stating that the earlier service rendered by the applicant is counted only for the purpose of pensionary benefits and not for other benefits and she is not entitled for counting of past service for grant of ACP. Hence, she has filed the present OA seeking the following reliefs:
A. to direct the respondents to count the previous service of the applicant from her initial date of appointment in the aided school i.e. w.e.f. 08.02.1975 while granting ACP/MACP Benefits.
B. to direct the respondents to refix the pay and other allowances and pension after taking the initial date of appointment dated 08.02.1975, instead of 30.12.1978.
5. The learned counsel for the applicant has relied upon the Order of this Tribunal in OA No.1761/2010 - Rati Ram Singh & Others v. Govt. of NCT of Delhi & Others, decided on 21.04.2011 and stated that the present case is squarely covered by that order. The relevant parts of the said order read as under:
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 present form 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.
6. The respondents have filed their reply stating that the applicant initially joined as an LT(Hindi) on 08.02.1975 in Gandhi Harijan Senior Secondary School at Brahmpuri, Delhi, a Govt. aided School. She was then posted and adjusted in a Government School w.e.f. 30.12.1978 under the Directorate of Education, Government of NCT of Delhi. She retired as PGT (Hindi) on superannuation on 30.11.2009 from S K V Mahipalpur and was then re-employed for another two more years in the said School under the Directorate of Education. Her services rendered from 08.02.1975 to 29.12.1978 in Govt. Aided School were counted for retiral and pensionary benefits but her request for counting the said service for the purpose of ACP/MACP benefits has been rejected.
7. The respondents have further submitted that the orders regarding implementation of the ACP Scheme by the Govt. of NCT of Delhi vide order dated 25.08.2003 (Annexure R1) and as per point No.12 of the said order, the service rendered other than Govt. of NCT of Delhi is not to be counted for ACP purpose. Point No.12 specifies as under:
12. ACP SCHEME is applicable to Government Civilian employees. Only the regular service rendered after regular appointment in a Government civilian post is to be counted. Service rendered in an Autonomous Body (M.C.D./N.D.M.C.)/Statutory Body/State Government, other than Government of N.C.T. of Delhi is not to be counted for the purpose. Similarly, promotions earned in these bodies prior to appointment in the Govt. of NCT of Delhi also to be ignored.
8. They further submitted that taking into account the Govt. of NCT of Delhis order dated 25.08.2003, Rule 47 of the Delhi School Education Act & Rules, 1973 and Rules 14, 18, 19 and 26 of the CCS (Pension) Rules, 1972, the ACP Cell of the Directorate of Education issued a Circular dated 29.04.2010 (Annexure R2) in order to clear any misconceived notion and save as clarification to all regarding counting of past service rendered in aided school for the purpose of ACP/MACP Scheme. The relevant part of the said Circular reads as under:
It is hereby brought to the notice of all concerned that service rendered by any teacher/official in any Aided School, before absorption in the Directorate of Education, shall not be counted for the purpose of grant of financial up-gradation under the ACP/MACP Schemes.
9. We have heard the learned counsel for the applicant Shri Sudhanshu Tomar and the learned counsel for the respondents Mrs. P.K.Gupta and have gone through the pleadings on record. In the case of OA No.1761/2010 (supra), which was relied upon by the learned counsel for the applicant, the applicants (9 in number, including some retired employees) were Teachers of Raghvar Dayal Jan Kalyan Govt. Secondary School (Co-ed), Bhajanpura. The said School, initially was a private School. It was recognized in the year 1971 and granted Aided School status w.e.f. 01.05.1972 and later on converted into a Government School w.e.f. 12.09.1996. The applicants in the said OA challenged the respondents decision vide the impugned Circular dated 29.04.2010 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 upgradation under the ACP/MACP Schemes. This Tribunal, after a detailed consideration of the matter, allowed the OA as stated earlier.
10. In the present case also the impugned order was passed on the basis of the said Circular dated 29.04.2010. The present OA is also squarely covered by the decision of this Tribunal in OA No.1761/2010 (supra). Therefore, we have no hesitation in allowing this OA. Consequently, the present OA is allowed. The respondents are directed to count the previous service of the applicant from the date of her initial appointment in GHSSS w.e.f. 08.02.1975 also for the purposes of granting her the ACP/MACP Scheme benefits. As the applicant has already retired from service, the respondents shall refix her pay/pension and other allowances accordingly, within a period of two months from the date of receipt of a copy of this order. The arrears arising out of such re-fixation shall also be paid to her after passing a reasoned and speaking order with the due drawn statement under intimation to her within the aforesaid period. There shall be no order as to costs.
(Ms. Jayati Chandra) (George Paracken) Member (A) Member (J) /nsnrgp/