CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.1811/2011 Order reserved on 28.03.2012 Order pronounced on 11.04.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) Shri Ram Kishan Verma S/o Late Shri Dalbir Singh R/o 2997, Main Road, Tri Nagar, Delhi-110035. -Applicant (By Advocate: Shri T.N. Tripathi) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary, Play Ground Building I.P. Estate, New Delhi. 2. The Director of Education Directorate of Education Govt. of NCT, Old Secretariat, Delhi-110054. 3. The Assistant Director Directorate of Education ACP Cell, Lucknow Road, Delhi-110054. 4. The Principal, Govt. Sr. Sec. School, D-Block, Ashok Vihar, Phase-I, Delhi-110052. -Respondents (By Advocate: Ms. Alka Sharma) O R D E R
Mr. Sudhir Kumar, Member (A) The applicant, in this OA, is before us aggrieved by the Order/Circular dated 29.04.2010 (Annexure A-8) issued by the respondent authorities whereby it has been notified that the service rendered by any teacher/official in any Aided School, before his/her absorption in the Directorate of Education, shall not be counted for the purpose of grant of financial upgradation under the ACP/MACP Schemes. He has prayed for relief in this OA as follows:-
i) To direct the respondents to grant the financial upgradation after the completion of requisite length of service under the ACP/MACP scale as the same was granted by this Honble Tribunal in similarly situated persons in OA No.1761/2010 titled as Rati Ram Singh & Ors. Versus Govt. of NCTD & Others ;
To direct the respondents to re-fix the pay scale of the applicant from the date requisite for completion of 2nd ACP i.e. in the year 1996 and thereafter in the year 2008 respectively with entire arrears.
2. The brief facts of this case are that the applicant was appointed as a senior P.E.T in a private school through appointment letter dated 21.07.1977 (Annexure A-1). This being an Aided school, with the permission of the respondent authorities, even the Selection Grade was allowed to be sanctioned to him through the Office Order dated 22.10.1985 (Annexure A-2), w.e.f. 01.04.1982, as clarified through the Corrigendum dated 17.10.1985 (Page 15 of the OA).
3. Thereafter, the private school got converted into a Government school vide Governments order dated 16.09.1996 and through order dated 28.10.2006, the respondent authorities ordered the absorption of the applicant along with all other staff members of the Aided school in which he was working on the rolls of the Directorate of Education w.e.f. 12.09.1996, which was the date of the tripartite agreement signed among the Government authorities and the employees of the schools. The case of the applicant is that one of the conditions in para 4 (b) of that Agreement dated 12.09.1996 was that the service rendered by the employees shall be taken into account for the purposes of the pay, pension, gratuity and provident fund etc.
4. The applicant has further pointed out that through Annexure A-5 dated 11.06.2007, the respondent authorities notified their decision to extend the benefits of the Assured Career Progression (ACP, in short) Scheme (formulated after the 5th Central Pay Commissions Report) to the teaching employees of the Aided Schools also, which had come under the Directorate of Education, Govt. of NCT of Delhi. Thereafter, through Annexure A-6 dated 31.12.2009, much after the implementation of the recommendations of the 6th Pay Commission, which had recommended certain modifications in the earlier ACP Scheme, and a Modified Assured Career Progression (MACP, in short) Scheme had been notified by the Union of India, the Government of NCT of Delhi decided to extend the benefit of MACP to the Teaching, Non-Teaching and Ministerial staff of the Aided Schools, who came under the Directorate of Education, Govt. of NCT of Delhi, w.e.f. 01.09.2008, and directed that it shall be implemented strictly in accordance with the instructions of the OM No.35034/3/2008-Estt.(D), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training dated 19.05.2009, through which such MACP had been notified. The applicant has pointed out that the respondents further issued instructions through Annexure A-7 dated 26.03.2010 to all the Deputy Directors Education to clear all pending cases of grant of ACP/MACP to employees of Government Aided schools. Therefore, the issuance of the impugned Annexure A-8 dated 24.04.2010, clarifying that the service rendered by any teacher/official of any Aided school before his/her absorption in the Directorate of Education, shall not be counted for the purpose of grant of financial upgradation under the ACP/MACP Scheme, has forced the applicant to approach this Tribunal.
5. It is not as if this issue had not come before this Tribunal earlier. A Concurrent Bench of this very Principal Bench had considered the issue in OA No.1761/2010 and MA No. 1437/2010, and through its order dated 21.04.2011 in Rati Ram Singh & Others Vs. Government of NCT through its Chief Secretary and Others, the findings recorded by the Bench were as follows:-
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. However, in the counter filed by the respondents in this case, the respondent authorities have taken objections even in the face of this judgment dated 21.04.2011 in OA No.1761/2010 Rati Ram (supra).
7. Apart from the objections regarding there being no proper cause of action for the present applicant, and the applicant not having exhausted the alternative remedies available to him to file a representation in this regard, the following submissions were made in para 21 and 22 of the reply:
21. That Paragraph 4.8 of the OA is a matter of record and needs no reply. It is submitted that as per the agreement entered into by the Government of NCT of Delhi with the School Authorities, the Respondents will not be liable for the past salaries etc. of the Employees and it is also clear that the employees had acquiesced their rights in this regard. It is also clear from the agreement that past service of the teachers shall not count for seniority and that these teachers shall be juniors to the teachers already in position in the Government. Therefore, the Applicant would be placed junior to a person appointed to the Government Service in 1996 and this senior will not be eligible for grant of Assured Career Progression till 2008. Hence, the Applicant, being a junior cannot claim such a benefit. It is humbly submitted that the Respondents have taken over the School as a Welfare measure, but that cannot mean that the Respondents will spread disenchantment amongst the regular Government Employees by granting higher salary to the juniors.
22. That Paragraph 4.9 of the OA is a matter of record. It is, however, submitted that the said judgment has not attained finality. In this regard, the Respondents would like to humbly submit that the present case is an appropriate one to be referred to a larger Bench in view of the submissions made in the preceding paragraph.
8. The respondents had also filed along with the reply as Annexure R-1 the OM dated 09.08.1999, notifying the ACP Scheme for Central Government Civilian Employees, and had filed as Annexure R-2 the order dated 19.04.2011 in the Review Application No.112/2011 in OA No.2691/2010, Dr. Shivanjay Sahay Verma Vs. Union of India & others, order dated 01.03.2011 in OA No.234/2010 with MA No.3044/2010, Ranbir Singh Vs. Govt. of NCT of Delhi and another, order in OA No. 4195/2010 dated 16.12.2010, Prof. P.C. Agarwal Vs. Secretary, Department of Information Technology & Others, and order dated 15.11.2010 in OA No. 3261/2010 with MA No. 2741/2010, Dalip Singh Sisodia Vs. National Buildings Construction Corporation Ltd., & Others and Union of India, as well as order dated 10.11.2010 in OA No.3581/2010, Rajesh Kumar Nimesh Vs. Union of India & Others in support of their contentions. Citing the judgment in the case of Dr. Shivanjay Sahay Verma (supra) on the point of limitation and exhaustion of alternative remedies, it was pointed out that it was held that provisions as regards limitation shall have precedence. In the case of Ranbir Singh (supra), once again the case was regarding limitation, and it was held that if the application is greatly delayed, and is barred by limitation as well, then the benefit of the impugned circular therein could not have been given retrospectively, because of which the OA was dismissed. In the case of Prof. P.C. Aggarwal (supra), once again the OA was rejected as it was held that it is an old and stale claim of the applicant, and is barred by limitation. In the case of Dalip Singh Sisodia (supra), once again, while citing the case of Karnataka Power Corporation Ltd. through its CMD V. K. Thangappan and Another, (2006) 4 SCC 322, it was held that limitation does not abate by repeated representations. The case in Rajesh Kumar Nimesh (supra) also related to limitation and it was held that when the case is barred by limitation, the OA has to be dismissed in limine. Therefore, it is seen that none of these cases filed by the respondents have touched upon the aspect of ACP and its modified form in MACP.
9. It is well settled law that beneficial schemes started by the Union of India or a State Government as a model employer, like the ACP Scheme, or its modified form, the MACP Scheme, do not per se give a right to the applicant to claim them as a matter of right, unless all the requisite conditions are fulfilled. As the opening paragraph of the ACP Scheme dated 09.08.1999 (Annexure R-1) itself states, the intention of the Union of India for granting this ACP Scheme was as a Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues, because of which, even after having granted the monetary benefits of revised pay scales under the Fifth Central Pay Commission (5th CPC), the further recommendation of the 5th CPC to introduce the ACP Scheme was accepted by the Union of India, and the Scheme was started for granting two financial upgradations to Group B, C and D employees, on completion of 12 years and 24 years of regular service respectively, provided they fulfilled all the requisite qualifications and eligibility for grant of promotions themselves, but were being denied such promotion due to stagnation in their cadre. In parallel, a Dynamic Assured Career Progression Mechanism had been granted to the stream of Doctors also.
10. Later on, on the recommendations/report of the 6th Central Pay Commission (6th CPC), wherein some modifications were suggested, the Govt. of India came out with the MACP Scheme. It will be relevant here to compare certain paragraphs of the old ACP Scheme with the new Modified ACP Scheme, to try to elicit the differences between the two as follows:-
ACP SCHEME MACP SCHEME
1. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up-gradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second up-gradation which would also get deferred accordingly;
1. The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations, financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group A whether isolated or not. However, organised Group A services will not be covered under the Scheme
2. Two financial up-gradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-track promotion through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him;
2.The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.
3. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit;
3. In case a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment will be granted at this stage.
4. Financial up-gradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial up-gradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-III, will be eligible for the proposed two financial up-gradation only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts, which have no avenues of promotion at all. Since financial up-gradation under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
4 Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
11. As can be seen from above, the ACP Scheme introduced on the basis of the recommendations of the 5th CPC was for providing two financial upgradations in the case of stagnation, after 12 years and 24 years of regular service. In the MACP Scheme, introduced through Govt. of India, Department of Personnel & Training OM dated 19.05.2009, the Scheme has been modified to provide for three financial upgradations under the MACPS, at the intervals of 10, 20 & 30 years of continuous regular service under the Government of India. In para-3.1 of the ACP Scheme, the word continuous was not there, and only the words regular service were used.
12. In the ACP Scheme, the term regular service was defined in Para 3.2 of the Scheme to be interpreted to mean the eligible service liable to be counted for regular promotions in terms of the relevant Recruitment/Service Rules. This provision has since been slightly modified in MACPS, to state that the financial upgradation under the MACP Scheme will be admissible when a person has spent 10 years continuously in the same grade pay.
13. There are substantial differences in the old ACP Scheme and the new MACP Scheme. The ACP Scheme was drafted when the Govt. of India was following a pattern of pay scales numbered from S-1 to S-24 for Group B, C & D employees. The 6th CPC has made a wholesale departure from the concept of different pay scales, and it has now introduced the concept of Pay Bands with different levels of Grade Pay associated with the Pay Bands. All the six Central Pay Commissions set up by the Union of India so far have gradually brought in a reduction in the total number of pay scales. The 6th CPC, however, brought about the most radical change, inasmuch as it has eliminated the concept of different pay scales altogether, and has introduced the alternative concept of Pay Bands, and associated Grade Pays. The Union of India is empowered under Article 73 of the Constitution of India to bring about such changes in its policy decisions, both with regard to pay scales, as well as with regard to any extra benefits or perquisites, which the Union of India may decide to provide to its employees, for example the introduction of benevolent schemes in order to save them from stagnation, as done by introducing ACPS earlier and MACPS now.
14. Para 5.2 of the ACP Scheme provided that the residency period (regular service) for the grant of benefits under the ACP Scheme shall be counted in the grade in which an employee was appointed as a direct recruit. All the financial upgradations allowed under the ACP Scheme were clarified to be purely personal to the employees, and having no relevance to the seniority position, and were to be based only upon the condition of the employee concerned stagnating in the pay scale in which he found himself trailing for a period of 12 years (for getting the first financial upgradation) without a regular promotion, and for 24 years without getting any promotion at all for getting a second financial upgradation. It was clarified in the ACP Scheme that in order to rationalize the unequal levels of stagnation, the benefit of surplus regular service: (not taken into account for the first financial upgradation under the ACP Scheme), shall be given at the subsequent stage of consideration of his case for second financial upgradation, as a one time measure.
15. Even though the Scheme introduced for the Central Government Employees had nowhere mentioned its applicability in respect of the employees who had entered into the Central Government service laterally, either by way of absorption after deputation from other State Governments, or Public Sector Undertakings, or by way of a lateral entry permitted in any such manner (like the present case of absorption of private sector Aided School employees into Government service), numerous clarifications had to be issued by the Union of India to clarify the different types of complications which arose later in implementation of the ACP Scheme. Many of these complications have been tried to be ironed out this time, and explained in advance even by way of illustrations, while notifying the MACPS. Further, the applicability of the MACPS is now extended not only upto Class-I, Group A officers, but is also available to the officers upto the HAG Pay Band of Rs.67,000-79,000, which was not the case in the ACP Scheme earlier, which was applicable only to Group B, C & D employees. In order to harmonize the financial upgradations given in the ACP Scheme earlier with the prescription of the MACPS, it has been provided for in Para-5 of the MACPS that the upgradations granted under the ACP Scheme in the past to those grades, which now carry the same grade pay due to merger of pay scales/upgradation of posts recommended by the Sixth Central Pay Commission, shall be ignored for the purpose of granting upgradations under the MACPS. One crucial point, which had not been expressly stated earlier in the ACP Scheme OM dated 09.08.99 has now been clarified upfront in the MACPS OM dated 19.05.2009 in Paras-9,10.11 & 12 of the Scheme 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.
10. 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.
11. Regular service shall include all periods spent on deputation/foreign service, study leave and all other kind of leave, duly sanctioned by the competent authorities.
12. The MACPS shall also be applicable to work charged employees, if their service conditions are comparable with the staff of regular establishment.
16. With these clarifications, it has now been made clear that while past continuous regular service in another Central Government Department, in a post carrying same grade pay prior to regular appointment in a new Department through lateral entry, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS, it does not count for regular promotions under the regular service rules. However, such financial upgradation benefits under the MACPS cannot be considered till the satisfactory completion of the probation period in the new post in the new Department of the Union of India.
17. Further, in ample measure, it has been clarified that the past service rendered by a Government employee in a State Government/Statutory Body/Autonomous Body/Public Sector Undertaking/Organization, before (regular and substantive) appointment in the Government of India through lateral entry shall not be counted towards Continuous Regular Service (for the purpose of MACPS).
18. Further, it has been clarified through Para-11 of the O.M. dated 19.05.2009 as cited above that regular service shall include all periods spent by the employees of Union of India on deputation/foreign service, study leave and all other kinds of leave, duly sanctioned by the competent authorities.
19. Further relief has been granted to the work charged employees also by making MACPS applicable to them also, if their service conditions were comparable with the staff of regular establishment.
20. It is, therefore, clear from Para-10 of the MACP Circular as cited above that in a departure from the earlier ACP Scheme, which was applicable till the issuance of the MACPS OM on 19.09.2009, now, under the MACPS, past service rendered by a Government employee in a State Government/Statutory Body/Autonomous Body/Public Sector Undertaking/ Organization, before his lateral entry appointment in the Government on substantive basis shall not be counted towards Continuous Regular Service for grant of MACP.
21. It appears that there is a sound and legally correct logic behind this stipulation, as now prescribed under the MACPS. As was the ACP Scheme earlier, this MACP is also a benevolent Scheme floated by the Union of India for protecting its employees from stagnation, from the date when they are in substantive/regular service with the Union of India. In view of this, the Union of India cannot be forced to count that period of stagnation also, which any employee may have suffered while he was not in the service of the Union of India.
22. Many State Governments including the State Government of Delhi, under whom the present applicant is serving, have adopted the MACPS of the Union of India mutatis mutandis. Therefore, in respect of those State Governments, the length of Continuous Regular Service within their respective State Government cadres would count for the purpose of grant of MACPS financial benefits, for the grant of the first financial upgradation at the end of 10 years of such period of stagnation, or second financial upgradation at the end of 20 years of Continuous Regular Service, and another third such financial upgradation at the end of 30 years of stagnation in the same pay scale and pay band, without any regular/substantive promotion whatsoever. It is further clear that the entitlement of an employee to claim the benefits of stagnation as a State Government employee, or as an employee of the Union of India, cannot begin or start to be counted unless and until he gets substantively appointed, or obtains through lateral entry the status equal to a regularly appointed Government employee, by virtue of absorption in a service under such State Government or the Central Government, as the case may be.
23. In this case, the applicant herein was an employee of a private school earlier, and entered under the umbrella of employment under the State Government of NCT of Delhi only from the date 12.09.1996, through a lateral entry, when he signed the agreement at Annexure A-4, from which date his rights as a State Government employee have been protected by the respondent authorities through Annexure A-3 order dated 28.10.1996. Therefore, the impugned Circular dated 29.04.2010, stating that the services rendered by a teacher/official in any Aided school, before his/her absorption in the Directorate of Education, shall not be counted for the purpose of grant of financial upgradation under the ACP/MACPS, appears to be in consonance with Para-10 of the MACPS, as notified through Annexure A-I of the OM dated 19.09.2009, & cited above.
24. It appears that the distinction between the structure and the stipulations of the ACPS and the MACPS was not brought to the notice and pointed out before the concurrent Bench, which decided OA No. 1761/2010 with MA No. 1437/2010 on 21.04.2011. Registry is, therefore, directed to place the matter before the Honble Chairman, CAT, for his kind consideration for placing this matter before a Larger Bench, so that there is no conflict in between the orders of one Bench with the orders of the another Bench.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.