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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.

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.

..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.

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.