Central Administrative Tribunal - Delhi
Mr.Suresh Chang Garg vs The Chief Secretary Government on 6 November, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4475/2011 Reserved on 22.05.2012 Pronounced on 06.11.2012 Honble Mr. George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) Mr.Suresh Chang Garg, S/o Shri Shiv Charan R/o 30, Harsukh Apartments, Plot No.4, Sector-7 Dwarka, New Delhi. Applicant. (By Advocate: Ms.Nandita Rao) Versus 1. The Chief Secretary Government NCT of Delhi Secretariat, New Delhi. 2. Government of NCT of Delhi Through Directorate of Education Old Secretariat, Delhi-54. Respondents. (By Advocate: Shri Vijay Pandita) O R D E R
Shri Sudhir Kumar, Member (A) The applicant of this OA is before us aggrieved by the order of the respondents in having denied him the financial upgradation benefits under the ACP Scheme from the date it was due to him as per his computation.
2. The applicant joined the Directorate of Education in the post of Trained Graduate Teacher (TGT for short) on 21.11.1973 in the pay scale of Rs.250-550/-. He was later granted Senior Scale of TGT Rs.1640-2900 with effect from 01.01.1986. Thereafter, through the process of a direct recruitment, without any break in service, the applicant was appointed as a Post Graduate Teacher (PGT, for short) (Maths) on 15.02.1992, in the same pay scale of Rs.1640-2900/-, which had already been granted to him earlier as Senior Scale of TGT since 01.01.1986.
3. When the ACP Scheme was made applicable since 09.08.1999, since he had completed 24 years of continuous regular service, he was granted 2nd financial upgradation of TGT under the ACP Scheme to the pay scale of Rs.7500-12000/-. The applicant has contended that this financial upgradation corresponds to the first ACP financial upgradation in the pay scale of PGT, since his service in the pay scale of Rs.1640-2900 has to be counted as regular service with effect from 01.01.1986. Later the applicant was promoted to the post of Vice-Principal with effect from 08.01.2008, in the same pay scale of Rs.7500-12000/-, which has now been converted to Grade Pay of Rs.5400/-, in PB-3 while implementing the 6th Central Pay Commission (6th CPC, for short) recommendations.
4. The applicant has contended that since he had completed 30 years of continuous regular service on 21.11.2003, and had completed 10 years of regular service in the same pay scale of Rs.7500-12000/- on 09.08.2009, on both these counts, he was entitled to the upgradation of his Grade Pay from Rs.5400/- to Rs.6600/- in the Pay Band-3 with effect from 09.08.2009. He had approached the Respondent No.1 praying for being granted 3rd financial upgradation under the Modified Assured Career Progression (MACP, in short) Scheme. However, the same was rejected by the impugned order dated 14.02.2011 through Annexure A-1, which is an extract from a file noting of the ACP Cell of the respondents, which he has produced to have stated as follows:
Regular service for the purpose of MACP Scheme shall commence from the date of joining of the post in direct entry grade on a regular basis either of direct recruitment basis or on a absorption/re-employment basis.
In the instant matter, Shri Suresh Chand Garg, Vice-Principal was directed appointed on post of PGT (Maths) vide order No.183 dated 06.03.1992 w.e.f. 15/02/1992 (copy of 28/c, as such the requisite service for ACPS/MACP with continue from 15/02/1992.
5. The applicant retired from service on 28.02.2011 from the post of Vice-Principal, Government Boys Senior Secondary School, Khaira, Najafgarh, New Delhi. On 19.04.2011 and 27.09.2011, the applicant represented to the respondents seeking grant of 3rd MACP financial upgradation as TGT after 10 years of regular service in the same Grade Pay of Rs.5400/ in Pay Band-3 under the MACP Scheme. However, no response was received by him in response to his aforesaid representations. The applicant has, therefore, approached this Tribunal on the ground that since he had been working in continuous regular service of the respondents with effect from 1973, and his direct recruitment in 1992 as PGT (Maths) was in the same pay scale as that of Senior TGT, in the pay scale of Rs.1640-2900/-, which he had been receiving with effect from 01.01.1986, and there was no break in service, thus his service in the Senior Scale of TGT prior to his direct recruitment as PGT in 1992 constitutes regular service for the purpose of the ACP/MACP Schemes, and denial of the benefit of that period to him is arbitrary and contrary to the mandate and clarifications repeatedly given and issued under the said Schemes. The applicant has pressed for grant of benefit under the ACP/MACP Schemes because the office orders pertaining to the ACP Scheme had clearly stated that past service in the same scale shall be counted as regular service for the purpose of eligibility for grant of financial upgradation under the ACP Scheme, and denial of the same to him is in violation of principles of natural justice and equality. In support of his contention, he has cited the clarification issued in respect of the ACP Scheme in response to the Point of Doubt Numbers 4 to 6 issued by the DoP&Ts OM dated 10.02.2000 stating as follows:
Point of Doubt Clarification
4. In a case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise.
5. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit?
6. An employee appointed initially on deputation to a post gets absorbed subsequently, whether absorption may be termed as promotion or direct recruitment. What will be the case if an employee on deputation holds a post in the same pay-scale as that of the post held by him in the present cadre? Also, what will be the situation if he was holding a post in the parent cadre carrying a lower pay-scale?
6. The applicant has also sought shelter behind the Circular No.F.30-1(28)/99/AR/3355/3455 dated 25.08.2003 issued by the Directorate of Education, in which, while discussing the eligibility for the applicability of the ACP Scheme to the teachers, in para 14 of the circular, it had been stated as follows:
14. ELIGIBILITY - So long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale or not. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption/transfer basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of the scheme so long as he is in the same pay scale.
7. The applicant did not cite paras 15 to 18 of the same Circular, but the same are also being reproduced here for the purpose of appreciating the facts for the case:
15. In other words, past promotion as well as past regular service in the same pay scale, if it was on different posts for which appointment was made by different methods like direct recruitment, absorption/transfer / deputation or at different places should be taken into account for computing the prescribed period of service for the purpose of the scheme.
16. Also, in case of absorption transfer/deputation in the aforesaid situation promotions earned in the previous/ present organizations, together with the past regular service shall also count for the purpose of the scheme.
17. However, if the appointment is made to higher pay scale either as on direct recruitment or on absorption/ transfer basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/ promotion shall not count for benefits under the scheme.
18. The up-gradation under ACPs is to be allowed in the existing hierarchy notwithstanding the fact that the next two promotional grades carry the same pay scales.
8. In the result, the applicant had prayed for the following reliefs:
a. To direct the Respondents to grant the Applicant the Grade Pay of Rs.6600/- in PB-3 as 3rd financial upgradation of TGT or 2nd Financial upgradation of PGT under the MACP with effect from 01.09.2008;
b. To direct the Respondents to calculate the pensionary benefits of the Applicant in the Grade Pay of Rs.6600 in PB3/-.
c. Direct the Respondents to release the arrears of the ACP Scheme for the period 01.09.2008 in the Grade Pay of Rs.6600 in PB-3.
d. grant the Applicant the Grade Pay of 7600/- for the period 3.9.2008 till 28.2.2011 as Head of the school;
e. Direct the Respondents to release the arrears of the payment due to the Applicant as Head of the School vide prayed (d) above;
f. Pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case.
Award of costs.
9. The respondents filed their counter reply on 01.05.2012. Through this, they had raised a preliminary objection that the instant application is barred by Sections 19, 20 and 21 of the Administrative Tribunals Act, 1985, and is liable to be dismissed with costs in favour of the answering respondents. It was further submitted that while the applicant was granted 2nd financial upgradation of TGT under the ACP Scheme with effect from 09.08.1999, he was actually not eligible for his second financial upgradation under the ACP Scheme of TGT with effect from 09.08.1999, which was wrongly granted to him. They have submitted that the applicant was rather eligible for grant of 1st ACP financial upgradation as PGT with effect from 15.02.2004, i.e. after completion of 12 years of continuous service as PGT with effect from 15.02.1992, the date of his entry as PGT on direct recruitment. It was further submitted that his service as Senior Scale TGT since 01.01.1986 cannot be counted for the 1st ACP of PGT, as he was not holding the same post, carrying the same scale, but that his substantive post as TGT was carrying the pay scale of Rs.1400-2900/-, whereas pay-scale of PGT was Rs.1640-2900/-. Citing the very same Clarification issued in response to Point of Doubt Nos. 4 to 6 through the DoP&T dated 10.02.2000, as already re-produced above, the respondents had stated that this clarification specifically states as follows:
Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. xxx However, if the appointment is made to higher pay scale either on direct recruitment or on absorption (on transfer basis), such appointment shall he treated as direct recruitment and past service/promotion shall not count for benefit under ACPS. (Copy annexed as Annexure R-1)
10. It was pointed out by the respondents that the applicant was appointed first to the post of TGT, and later as PGT as a direct recruit, and both the posts carried different scales of pay. Because of his direct appointment as PGT in the higher pay scale, his past service on the post of TGT cannot be counted for the purpose of ACP, in accordance with the clarification as cited above, and also as per the provisions of para 17 of the said OM, already reproduced above, in which it is specifically stated as follows:
17. However, if the appointment made to higher pay scale either as on direct recruitment or on absorption/transfer basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/ promotion shall not count for benefits under the scheme.(Copy annexed as Annexure R-2).
11. It was further submitted that now the applicant is seeking financial upgradation under the provisions of OM dated 19.05.2009, notifying the MACP Scheme, which the respondents had filed through Annexure R-3, and it was pointed out that para 9 of the MACP OM clearly states 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 ( 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.
12. It was submitted that according to this provision, the service rendered in another post can only be counted together for the purpose of grant of MACP benefit, if the two posts were carrying the same grade pay. However, it was clarified that the 6th CPC recommendations as accepted have placed the posts of TGT and PGT in the same Pay Band, but with different Grade Pay of Rs.4600/- and 4800/- respectively. It was, therefore, submitted that the applicant cannot be allowed to claim to have completed 30 years of continuous service as on 29.11.2003, since once he was directly recruited as PGT (a post in the higher Grade Pay of Rs.4800/-) on 15.02.1992, his past service rendered on the post of TGT, a post in the lower Grade Pay of Rs.4600/-, cannot be counted for MACP Scheme benefit. It was, therefore, submitted that the grant of ACP to him on 09.08.1999 itself needs to be rectified, as he was eligible for 1st ACP on 15.02.2004 on completion of service of 12 years as PGT, but before his case could come up for consideration for the grant of 2nd MACP on 15.02.2012, on completion of 20 years as PGT, before that he stood retired on superannuation on 28.02.2011. Therefore, it was submitted that the action taken by the respondents was justified in rejecting his demand, as past service of the applicant in the post of TGT, being in a lower Grade Pay, cannot be counted for the purpose of consideration of MACPS financial upgradation. It was therefore, submitted that he is not entitled to the reliefs, as prayed for in the OA, which is liable to be dismissed.
13. The applicant filed a rejoinder on 18.05.2012. He denied that the second time bound ACP financial upgradation given to him w.e.f. 09.08.1999 was wrong. It was submitted that since he was already working in the Senior Scale of TGT in the pay scale of Rs.1640-2900/- since 01.01.1986, and had later continued in the same pay scale after his direct recruitment as PGT in 1992, he was entitled to the reliefs, as prayed for. In support of his claim, he had filed a copy of one page of his Service Book fixing his salary in the Senior Scale of TGT in the pay scale of Rs1640-2900/-.
14. We have heard the case in detail, and given our careful consideration to the facts of this case.
15. As a result of the wholesale modification of the erstwhile ACP Scheme brought about through the MACP Scheme, the clarification issued under the ACP Scheme to the Point of Doubt numbers 4 to 6 would apply only for the purpose of ACP Scheme, and do not remain relevant under the MACP Scheme, as the two Schemes are entirely different. Under the ACP Scheme, so long as a person was continuing in the same pay scale during the period in question, it was immaterial as to whether he had been holding two different posts in the same pay scale in that period. As such, if a Government servant had during the period in question been appointed to another post in the same pay scale, either as a direct recruit, or on absorption/transfer basis etc., it was not supposed to make any difference for the purpose of financial upgradations being granted under the ACP Scheme, so long as he held the same pay scale. In other words, past regular service in the same pay scale, even if it was on different posts, for which appointment was made by different methods like direct recruitment, absorption/transfer etc., was to be computed together for considering the prescribed period of service for the purpose of financial upgradations under the ACP Scheme. The position does not remain the same now, after the introduction of the MACP Scheme.
16. The applicant joined as TGT on 21.11.1973, and he got promotion into Senior Scale of TGT in the pay scale of Rs.1640-2900/- with effect from 01.01.1986. Therefore, he did not suffer any stagnation as a TGT for the purpose of considering his eligibility for grant of ACP benefit while he was a TGT, as he was given one promotion from the Junior Scale of TGT to the Senior Scale of TGT within 1 = months after completing 12 of service as TGT on 20.11.1985. Therefore, for the purpose of the ACP Scheme, the applicant can lay claim for the period of stagnation in the same pay scale only with effect from 01.01.1986 onwards, as he has done rightly in view of the clarification to the point of doubt no.5 issued under the ACP Scheme. When he completed 12 years of continuous service of Senior Scale of TGT in the pay scale of Rs.1640-2900/-, and, without any break, in the same pay scale of PGT, with effect from 15.02.1992, on 30.12.1997, with effect from 01.01.1998, i.e., on the start of his 13th year of continuous service without any break in the same pay scale, he became eligible for 1st financial upgradation under the ACP Scheme w.e.f. 09.08.1999, but even if the ACP Scheme had continued unmodified, and if the applicant had not got his promotion on the post of Vice-Principal with effect from 08.01.2008, in that hypothetical situation, the applicant would have been entitled to the 2nd financial upgradation under the ACP Scheme with effect from 01.01.2010, after completion of 24 years of stagnation of service in the same pay scale continuously with effect from 01.01.1986.
17. However, two things intervened, first was his promotion as Vice-Principal on 08.01.2008, within 10 years of his eligibility for grant of 1st financial upgradation under ACP Scheme, with effect from 01.01.1998, payable to him with effect from 09.08.1999, the date of introduction of the ACP Scheme, and the second thing which intervened was the replacement of the ACP Scheme itself by the MACP Scheme with effect from 19.05.2009 through Annexure R-3. Under the new MACP Scheme, since the element of stagnation within the same Grade Pay was introduced, and the Grade Pay for TGT is different than that of PGT, for the purpose of MACP Scheme, the applicant can start counting his period of stagnation only in the grade of a PGT, from the date of his appointment as PGT i.e. 15.02.1992. Under the MACP Scheme, he cannot count the benefit of the period earlier spent by him under the same 5th CPC pay scale with effect from 01.01.1986 to 14.02.1992 in the Senior Scale of TGT, for the purpose of counting of stagnation, since the two posts of TGT and PGT do not carry the same Grade Pay.
18. The applicant thereafter completed 10 years of service in the Grade Pay associated with the pay scale of PGT on 14.02.2002, and he would have been eligible for grant of his 1st financial upgradation under MACP Scheme after 10 years of continuous service in the post of PGT, with effect from 15.02.2002, and would have been eligible for grant of his second financial under MACP Scheme on completion of 20 years of service as PGT on 15.02.2012, but for the period of his stagnation as PGT being interrupted and cut short on account of his promotion as Vice-Principal on 08.01.2008, and his superannuation thereafter on 28.08.2011.
19. Therefore, it is held that the applicant was entitled to his 1st financial upgradation under ACP Scheme with effect from 09.08.1999, the date of introduction of ACP Scheme, since by then he had already completed 12 years of continuous regular service in the same pay scale of Rs.1640-2900 as Sr. Scale TGT from 01.01.1986 up to 14.02.1999, and then as PGT on 15.10.1992 onwards, but he never became entitled to the 2nd ACP benefit, because before completion of 24 years of continuous service in the post of PGT scale, as pointed out above, he got his promotion as Vice Principal on 08.01.2008, and superannuated on 28.08.2011. Therefore, the applicant never became entitled to the 2nd financial upgradation under ACP Scheme. Further, under the MACP Scheme, his eligibility for financial upgradation arose much later, on 15.02.2002, on completion of 10 years of stagnation with effect from 15.02.1992 in the pay scale of PGT, & by then he had already been given the 1st financial upgradation under the ACP Scheme with effect from 09.08.1999, and, therefore, he could not be held to have become entitled to another financial upgradation under the MACP Scheme within 2 and = years, with effect from 15.02.2002 onwards, and, as mentioned above, he never attained eligibility to claim his 2nd MACP benefit after of 20 years continuous service without any promotion in the pay scale of PGT, because of the intervention of the events of his promotion as Vice-Principal on 08.01.2008, and superannuation on 28.08.2008.
20. In the result, the applicant is not entitled to any of the reliefs as prayed for, and the OA is rejected in view of the aforesaid observations, but there shall be no order as to costs.
(Sudhir Kumar) (George Paracken) Member (A) Member (J) /kdr/