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Judgment
O R D E R
Hon’ble Mr. Rajveer Singh Verma, Member (J) :
The brief facts of the case, as narrated by the learned counsel for the applicant, are that the applicant was initially appointed as an Auxiliary Nurse Midwife (ANM) in the Haryana Government on 02.07.1988. She was selected on deputation as ANM in the Rural Health Training Centre (RHTC), Najafgarh, under the Ministry of Health & Family Welfare on 21.02.2006 and was permanently absorbed in the Central Government service with effect from 18.03.2008.
Learned counsel for the applicant submitted that despite her long and continuous service since 1988, the respondents granted the applicant only the 1st financial upgradation under the MACP Scheme vide order dated 30.07.2019/01.08.2019 with effect from 18.03.2018 by counting only ten years of service from the date of absorption in the Central Government. He contended that this fixation ignored her earlier regular service in the State Government, thereby placing her juniors at a higher level of pay and seniority and causing her continuing financial loss. Learned counsel for the applicant further alleged that the pay of the applicant was wrongly fixed and even recovery proceedings were initiated because of such erroneous fixation.
The applicant repeatedly represented before the respondents requesting that her regular service under the Haryana Government be counted for the purpose of ACP/MACP benefits. As no decision was taken on her representations, she approached the Tribunal by filing O.A. No. 2587/2021. By order dated 26.11.2021, the Tribunal disposed of the said Original Application without examining the merits and directed the respondents to consider the pending representations and pass a reasoned and speaking order within the stipulated period.
Pursuant to the Tribunal's directions, the respondents passed a speaking order dated 22.02.2022 rejecting the applicant's claim for counting her State Government service towards ACP/MACP. Being Aggrieved by the same, the applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s) :-
“(i)quash and set aside impugned order dated In 22.02.2022 (Annexure A-1).
(ii). Direct the respondents to count previous service rendered before the state government for the purpose of granting ACP/MACP benefits w.e.f 2.07.1988.
(iii). Direct the respondents to grant 1st ACP, 2nd ACP and MACP to applicant as per entitlement and Pay and allowances be accordingly fixed.
(iii). All consequential benefits may be granted to the Applicants.
Or any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”
Learned counsel for the applicant submitted that not counting of the past service of the applicant for the purpose of ACP/MACP is arbitrary, illegal and unjustified and is in violation of the principles of natural justice.
In addition to the pleadings on record, the applicant has also filed written synopsis. In support of her contentions, the applicant has relied upon the order of the Jodhpur Bench of the Tribunal in Kishan Lal v. Union of India & Others (O.A. No. 279/2010, decided on 13.05.2015), wherein the Tribunal, following the judgment of the Rajasthan High Court in Union of India & Ors. Vs. D.K. Sharma & Ors.(D.B. Civil Writ Petition No. 405/2008), held that regular service rendered in a State Government prior to absorption in the Central Government is liable to be counted for the purpose of ACP/MACP and struck down the clause 10 (para 10) of the MACP Scheme. The applicant has also relied upon the fact that the Special Leave Petition filed against the judgment in D.K. Sharma (supra) was dismissed by the Hon'ble Supreme Court, thereby according finality to the principle laid down therein.
Pursuant to notice, the respondents have filed their reply opposing the OA. The learned counsel for the respondents contended that the OA is devoid of merit as the applicant has already been granted the 1st financial upgradation under the MACP Scheme with effect from 18.03.2018 after completion of ten years of regular service in the Central Government following her absorption on 18.03.2008. The benefit was extended through Office Order dated 30.07.2019/01.08.2019 in accordance with the applicable Government of India instructions.
The learned counsel for the respondents stated that although the applicant initially joined the Haryana Government on ad hoc basis on 02.07.1988 and her services were regularized on 03.12.1990, she entered Central Government service on deputation only on 21.02.2006 and was permanently absorbed on 18.03.2008 after accepting all the terms and conditions governing absorption. Consequently, only her regular service under the Central Government can be taken into account for grant of MACP benefits. He further submitted that the governing provision is the DoPT Office Memorandum No. 35034/3/2015-Estt.(D) dated 22.10.2019. He relied specifically upon paragraph 9 of Annexure-I thereof, which provides that :
“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…”
He further relied on paragraph 10 of Annexure-I of the aforesaid OM, which expressly stipulates that past service rendered in a State Government, Statutory Body, Autonomous Body or Public Sector organization before appointment in the Central Government shall not be counted towards regular service under the MACP Scheme. On this basis, it is contended that the applicant's claim is contrary to the governing policy.
Learned counsel for the respondents also explained that the applicant had earlier been granted 1st MACP with effect from 21.02.2016 by Office Order dated 26.03.2018, but the said order was subsequently withdrawn on 29.07.2018 pursuant to the observations made by the Pay and Accounts Office, Directorate General of Health Services. Thereafter, upon review, the applicant was correctly granted the 1st MACP with effect from 18.03.2018 after completion of ten years of regular Central Government service.
It is further pleaded that the respondents complied with the earlier order passed by the Tribunal in O.A. No. 2587/2021 by issuing a detailed speaking order dated 22/24.02.2022 rejecting the applicant's representation strictly in accordance with the applicable rules. The respondents denied that the applicant has suffered any discrimination or that her juniors have been placed above her contrary to law, asserting that she is receiving pay, allowances and seniority strictly in accordance with the applicable rules and Government instructions.
We have heard the learned counsel for the parties and perused the material placed on record.
Analysis
Following are the undisputed facts :
Applicant was appointed as an ANM on adhoc basis w.e.f 02.07.1988 and her service was regularized w.e.f. 03.12.1990 in Haryana State Government.
1st ACP in the Pay scale of Rs 5000-150-7100-E B-150-7850/- was granted to the applicant w.e.f 01.01.2001.
Applicant has applied for the post of ANM in the pay scale of Rs 4000-100-6000 at Rural Health Training Centre (RHTC), Najafgarh on deputation to the Union Government and came on deputation after her selection to the post on 21.02.2006. Subsequently she was absorbed w.e.f. 18.03.2008 in the same grade and at the same post.
Applicant willfully accepted lower pay scale of Rs.4000-100-6000 in the Central Government on deputation/absorption inspite of the fact that she was working in the pay scale Rs.5000-150-7100-EB-150-7800.
Respondents granted 1st MACP to the applicant w.e.f. 18.03.2018 only after counting service from the date of her absorption in the Central Government w.e.f 18.03.2008.
The respondents have declined to count the service rendered by the applicant in the State Government of Haryana w.e.f. 02.07.1988 till the date of her deputation with the respondents i.e. up to 20.02.2006 and the period on deputation from 21.02.2006 to 17.03.2008 for the purpose of grant MACP mainly on the ground of paras 9 & 10 of Annexure-I to DoPT's OM. No.35034/3/2015-Estt.(D) dated 22.10.2019 issued on the subject, which are as under :-
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 casual, adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in same/another Central Government Department in a post carrying same pay level in the Pay Matrix 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 Central Government employee in a State Government/Statutory Body/Autonomous body/Public Sector organization, before appointment in the Central Government shall not be counted towards Regular Service.”
It is understood that paras 9 & 10 of the DoPT's OM dated 22.10.2019 are exactly similar and reproduction of paras 9 & 10 of DoPT's OM dated 19.05.2009 issued on the subject.
The Hon'ble High Court of Judicature for Rajasthan at Jodhpur vide its judgment dated 24.08.2016 passed in C.W.P No 1830/2016 titled as Union of India & Others Vs Sh. Kishan Lal & Others has held as under :-
“ACP is not a substantive promotion but an anti-stagnation measure to boost the morale of the employee who otherwise may have had no avenue for promotion, affecting his performance of duties. Earlier, the ACP Scheme provided for the benefit after 12 and 24 years and the MACP Scheme provides for a third benefit after 30 years of service.
The respondents were appointed as Constables either in the Rajasthan Police or in Punjab Police. Respondent No.3 is widow of a deceased employee. They were sent on deputation to the CBI at Jodhpur as Constables on different dates, ranging from March 1986 to August 1991. They were then absorbed in the CBI at Jodhpur. It is not the case of the petitioner that either at the time of deputation or absorption it was made known to them that their past services in the police forces was not to count for what purposes. Had it been intimated they may not have agreed for deputation. Conversely the grant of 1 st and 2 nd ACP to them indicates to the contrary. The MACP Scheme dated 19th May 2009 in clause 11 provides that no past cases would be re-opened. Clause 9 defining 'regular service' for the purpose of the MACP provides that past regular service “in another Government Department” without break shall be counted towards qualifying regular service. Regular service is defined as including the period spent on deputation.
If a person was eligible and had been granted ACP and the MACP Scheme provides that past cases would not be re-opened, it is difficult to fathom how eligibility earlier would now become ineligibility. Regular service has been defined to include deputation. It is primarily an anti-stagnation measure and not a substantive promotion and therefore must be interpreted liberally.
Deputation is but another facet of transfer as the place of discharge of duty also changes. The issue fell for consideration in Dwijen Chandra Sarkar v. Union of India, (1999) 2 SCC 119 observing as follows :-
"20.In our view, the Tribunal was in error and its order is set aside. The appellants will be entitled to the higher grade from the date they completed 16 years of service — computing the same by taking into account their past service in the Rehabilitation Department also along with the service in the P&T Department. They will be so entitled as long as they remain in the post of Assistant and till their normal promotion to a higher post according to the Rules. The difference between the emoluments in the grade as due to them and the amount which was actually paid to them, shall be computed and be paid within a month from the date of this order."
The Hon'ble High Court of Delhi at New Delhi vide its judgment dated 22.09.2022 passed in WP(C) 1539/2016 titled as Union of India & another Vs Girbar Singh & Ors. has held as under :
“2.Respondents had filed the subject Original Application before the Principal Bench of the Central Administrative Tribunal seeking benefit of the service rendered in the parent cadre (State Government) while considering the eligibility and suitability for financial upgradation in terms of MACP Scheme issued vide O.M No. 35034/3/2008-Estt. (D) dated 19.05.2009.
3.The only ground on which the petitioners denied benefit of financial upgradation to the respondents with reference to their service rendered in the parent organization, was in terms of clause 10 of condition 4 of the MACP scheme which provided that past services rendered by a permanent employee in State Government/Statutory Body/Autonomous body/Public sector organization before appointment in the Government shall not be counted as regular service for the purposes of the scheme.
4.The Tribunal in the order dated 12.05.2019, impugned herein, has noticed that a bench of the Tribunal at Jodhpur by order dated 13.04.2015 in O.A 279/2010 (Kishan Lal vs. UOI) struck down clause 10 of the MACP Scheme.
5.The Principal Bench of the Tribunal in the impugned order has noticed that the Coordinate bench of the Tribunal at Jodhpur in Kishan Lal (Supra) had relied upon another decision of the Tribunal at Jodhpur dated 12.09.2006 in O.A 97/2004 in the case of D.K.Sharma vs. Union of India & Ors.
6.The decision in D.K.Sharma (Supra) was upheld by the High Court of Judicature for Rajasthan at Jodhpur by its order dated 05.04.2010 in CWP No.504/2008 and the Special Leave Petition against the said order [SLP No.15324/2010] was dismissed in limine on 04.10.2010 by the Supreme Court.
7.The Principal Bench of the Tribunal in the order dated 12.05.2015, impugned herein, had referred to the decision of the Supreme Court in S.I.Rooplal & Anr. vs. Lt. Governor through Chief Secretary Delhi & Ors (2000(1) SCC 644) wherein the Supreme Court has held that the bench of a Tribunal is bound by the view taken by a coordinate bench of equal strength. Referring to the decision in Rooplal (Supra) the Principal Bench of the Tribunal has held that it found no reason to differ with the view taken in Kishan Lal's case.
8.It may further be noticed that the decision of the Rajasthan bench of the Tribunal in Kishan Lal's case was impugned by the Union of India (petitioner therein) before the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.1830/2016. Said writ petition was dismissed by the Division Bench of the Rajasthan High Court by its order dated 24.08.2016 holding that no ground had been urged before it to show that the case of Kishan Lal was different from D.K.Sharma which had been relied on by the Bench of the Tribunal.
9.It is an admitted position that the petitioners have not impugned the decision of the Rajasthan High Court in Kishan Lal any further and have accepted the judgment. It is also not in dispute that both Kishan Lal and Dharmendra Kumar Sharma have been given the benefit which is sought to be denied to the respondents herein.
10.The Principal Bench of the Tribunal by the order impugned herein has merely followed the decision in Kishan Lal whereby the Central Administrative Tribunal, Jodhpur Bench has quashed clause 10 of the MACP Scheme.
11.Once a particular clause of a scheme is quashed and that quashing is upheld by the High Court, said clause ceases to exist in the scheme particularly when the Government has decided to accept the decision of the High Court and implemented the same.
12.For all practical purposes clause 10 ceases to exist from the MACP Scheme and as such the ground on which respondents have been denied the benefit i.e. application of clause 10 is an erroneous application of the said scheme.
13.The contention of learned counsel for the petitioner that the order was implemented in Kishan Lal (Supra) only qua Kishan Lal is not acceptable for the reason that there is no such direction either by the Tribunal or by the Rajasthan High Court that the scheme has to be implemented in the peculiar facts and circumstances of the case. On the other hand in Kishan Lal's case the Tribunal has struck down clause 10 of the scheme which has been upheld by the High Court and such striking down has been accepted by the petitioners. Once the petitioners in the case of Kishan Lal have accepted the striking down of the particular clause they cannot seek to implement said clause qua other similarly situated employees.
14.Attempt was made by learned counsel for the petitioners to distinguish the case of the respondents herein from the case of D.K.Sharma (Supra).
15.We may at this stage notice that in the present writ petition there is no attempt made to factually distinguish the case of the respondents from the case of D.K.Sharma (Supra).
16.The only ground urged in the petition qua D.K.Sharma (Supra) is ground D which reads as under:-
"D. That the Tribunal gave undue weightage to the earlier judgement passed in the case of UOI & Ors V/s D K Sharma and absorbed that the said order has attained finality as the SLP filed by the UOI has been dismissed. However, the fact is that the Hon'ble Apex Court dismissed the said SLP without passing any speaking order and as such it cannot be said with precision that the issues has been settled by the Hon'ble Apex Court conclusively."
17.Perusal of ground D clearly shows that petitioners have not even attempted to distinguish the case of the respondents from that of D.K.Sharma (Supra).
18.It may also be noticed that the Division Bench of the Rajasthan High Court while disposing of Kishan Lal's case also observed that no attempt was made by the petitioner to distinguish the case of Kishan Lal from that of D.K.Sharma.
Central Administrative Tribunal19. Even otherwise as noticed hereinabove, since clause 10 has already been quashed in Kishan Lal's case, petitioners cannot rely upon the same to deny benefit to the respondents herein.
20.Learned counsel for the petitioners contends that being a policy decision the Jodhpur bench erroneously quashed clause 10 of the scheme.
21.We are unable to accept the contention of learned counsel for the petitioners for the reason that the Tribunal in the order impugned herein has not quashed clause 10 of the scheme but has only relied upon a decision of the Jodhpur bench of the Tribunal which had quashed clause 10 of the Scheme, the quashing of which was upheld by the Division Bench of the High Court and that quashing was accepted by the petitioners and the order was implemented.
22.So for all practical purposes, in the scheme that has been applied today, there is no clause 10 existing which could be given effect to for denying benefit to the respondents. As such we find no merit in the said contention also and reject the same.
23.In view of the above, we find no merit in the petition. The petition is accordingly dismissed.”
Our conclusion
On the basis of the judgment dated 22.09.2022 passed by the Hon'ble High Court of Delhi in the case of Girbar Singh & Others (supra), it is concluded that the clause 10 of the M.A.C.P Scheme is not in existence for all practical purposes. Therefore, the regular/continued service rendered by the applicant as ANM in Haryana Government has to be counted for purpose of granting MACP to her i.e. keeping in view the fact the applicant was initially appointed on ad-hoc basis to the post of ANM in Haryana State Government on 02.07.1988 and only was regularized w.e.f. 01.03.1990 and the fact that 1st ACP was granted by the Haryana Government w.e.f. 01.01.2001 but since the applicant has chosen to apply in lower grade on deputation the benefit of 1st ACP cannot be restored. It is settled position of law that if a person is appointed on ad hoc basis on substantive post and he/she is regularized without any break then his service should be reckoned from the date of initial appointment.
We feel that the period of service of the applicant from her initial appointment i.e. 02.07.1988 in Haryana Government should be counted for the purpose of grant of 2nd and 3rd MACPs and the applicant is entitled for 2nd MACP and 3rd MACP after computation of 20 & 30 years of her service i.e. w.e.f. 01.09.2008 & 02.07.2018 respectively and necessary direction needs to be issued to the respondent authority. The impugned order dated 22/24.02.2022 is liable to be set aside as the same has been issued on the basis of a provision i.e. para 10 of MACP scheme which has been declared non-existence for all the practical purposes by the various constitutional courts.
Order
Accordingly, the Original Application is allowed with following directions :-
The impugned order dated 22.02.2009 is quashed and set aside.
The applicant shall be granted the 2nd MACP w.e.f. 01.09.2008 and 3rd MACP w.e.f. 02.07.2018 i.e. after completion of 30 years of service.
The applicant shall be entitled for all the consequential benefits flowing from the aforesaid directions including arrears of salary.
All pending MAs, if any, shall stand disposed of. There shall be no order as to costs.