Raj Kunwar vs Govt. Of NCT And Ors

A.K. Bishnoi, Member (A)

Briefly stated, the facts of the case as per the applicant are that he was initially appointed with the respondents, i.e., Delhi Water Supply and Sewage Disposal Undertaking (now Delhi Jal Board) (DJB, in short) as Work Assistant on muster roll basis in June, 1978. He was regularized in January 1992 on the post of Fitter second class. He has been serving with the respondents and having an unblemished service record.

1.1. Subsequently, in terms of the recommendations of the 5th Central Pay Commission, the Assured Career Progression (ACP) Scheme came into force, according to which an employee would be entitled to two financial upgradations on completion of 12/24 years of regular service vide Memorandum dated 09.08.1999. The said Scheme has also been extended by the respondents to its employees. It is submitted that the case of the applicant for grant of ACP has been ignored on account of non-fulfilment of the terms and conditions stipulated in the said Scheme.

1.2. It is further submitted that an order was issued by the Delhi Development Authority (DDA) dated 15.10.2009, in terms of which the total length of work charged (regular) service rendered by the work charged (regular) employees would be counted while calculating the required 12/24 years of service for extending the benefit of 1st/2nd ACP Scheme.

1.3. The applicant further submitted that similarly situated persons who had also been initially appointed on muster roll were subsequently made work charged employee and lastly regularized in their respective services, approached the Hon'ble High Court of Delhi in W.P. (C) No.976/99, which was transferred to this Tribunal and registered as TA No.29/2010-Vinod Kumar Sharma & Ors. vs. Delhi Jal Board.

1.4. The Tribunal, after examining the issue whether the work charged period can be counted to reckon 12/24 years of service for the purpose of 1st/2nd financial upgradation under ACP Scheme, disposed of the TA No.29/2010 (supra) vide order dated 24.12.2010, with the following directions:-

"9...........we are of the considered opinion that the mother establishment of the Applicant being DDA and the said DDA having adopted the principle of work charged period to be reckoned for the purpose of 1st/2nd ACP, the DJB is, therefore, directed to take into account the work charged period spent by the Applicants to grant them 1st/2nd ACP as the case may be subject to the other conditions being fulfilled by the Applicants, as per law."

1.5. Thereafter the respondents issued an order dated 08.03.2011, seeking clarification from DDA pertaining to the service conditions of work charged employee to comply with the directions issued by the Tribunal in the aforesaid TA.

1.6. In the meanwhile, the respondents issued an order extending the benefits of 1st ACP to the applicant w.e.f. 20.01.2004 on the recommendation of the departmental screening committee vide order dated 19.04.2011. Thereafter the respondents issued an order dated 04.05.2011, with the contention that the DDA has adopted the principle of work charged period to be reckoned for the purpose of 1st/2nd ACP.

1.7. After receiving the clarification from DDA, the DJB decided that the period of work charged spent by the employees transferred from DDA to DJB would be taken into account while considering the grant of 1st/2nd ACP benefits. Thereafter the respondents extended the benefits to the similarly situated persons but denied the same to the applicant.

1.8. Being aggrieved by the inaction of the respondents for not considering his case for grant of financial upgradation under ACP/MACP Scheme, the applicant has made representations to the respondents in this regard but till date no action has been taken thereon.

1.9. In support of the reliefs claimed, the applicant has taken the following main ground:-

The respondents informed him that the services rendered by him as Work Assistant on muster roll and subsequently on work charge from June 1978 to December 1991 would be regularized for pensionary benefits only and will not be counted for purposes of promotion and financial upgradation under ACP/MACP. This is contrary to the judgment dated 24.12.2010 issued by the Tribunal in TA No.29/2010 in case of similarly placed persons namely, Vinod Kumar Sharma & Ors. (supra).

1.10. The applicant has stated that his case is covered by the following judgments: -

(i) Decision of the Madras Bench of this Tribunal in the case of Skariah Thomas vs. Union of India & Ors., OA No.85/2006, which has been followed in OA No.954/2008 in the case of A. Marcus Clarie & Ors. vs. OIC Records & Ors. decided on 23.07.2008, in the case of All India Defence Civilian Clerks Association of AOC Records Office & Anr., OA No.2089/2008 & also in the case of S.P. Manik vs. Union of India, [1999 (2) (CAT) SLJ 247];

(ii) Decision of the Hon'ble Supreme Court in the case of Food Corporation of India & Ors. vs. Parashotam Das Bansal & Ors., [(2008) 5 SCC 100];

1.11. Briefly, the applicant has prayed for the following reliefs:-

"(a) Respondents be directed to place the relevant records pertaining to the present O.A. before the Tribunal;

(b) Declare the action of the respondents in not promoting the applicant as illegal and directing them to finalize his case for further promotion."

In the reply, the respondents have contested the claim of the applicant and stated that his claim is not maintainable and liable to be dismissed on the ground that for extending the benefit of ACP/MACP Scheme, only the regular service of an employee is considered. In the instant case, applicant's service was regularized from 20.01.1992 as Fitter-II and after his regular appointment to the said post, he was given the benefit of 1st ACP immediately after completion of 12 years on 20.01.2004. It is further stated that the service of the applicant as muster roll employee is not to be considered for granting the benefit of ACP. Hence, the claim of the applicant is liable to be dismissed on this ground alone.

2.1. The respondents have denied that they have not considered and finalized the case of the applicant for promotion to the next higher post. It is pointed out that the applicant joined DJB as Work Assistant on muster roll basis in June 1978, which was subsequently re-designated as pump driver in the contingencies of work without undergoing any selection procedure. It is also pointed out that the applicant was regularized as Fitter-II vide order dated 18.02.1998 with effect from 20.01.1992. From the perusal of that order, it is clear that the services of four employees were regularized w.e.f. 20.01.1992 in the pay scale of Rs. 950-1400 (Pre-revised) on the terms and conditions contained in the offer of appointment, which had been accepted by the applicant.

2.2. It is further submitted that the applicant was appointed on regular basis w.e.f. 1992, and in terms of the DoP&T guidelines only regular service is to be considered for promotion and extending the benefit of ACP/MACP. Admittedly, the 1st ACP was given to the applicant in 2004. He is not entitled for second financial upgradation inasmuch as he has not completed 24 years of his regular service before the introduction of the MACP Scheme.

2.3. It is pointed out by the respondents that DDA extended the benefit of ACP to its work charged (regular) employees as their service conditions were the same as the service condition of its regular employees. The DoP&T has also issued the same guidelines in respect of work charged (regular) employees wherein it is stated that "ACP/MACP shall also be applicable to work-charged employees, if their service conditions are comparable with the staff of regular establishment".

2.4. It is also stated that some of the work-charged (regular) employee of DDA were transferred from DDA to DJB. Hence, the DJB has also adopted the same action on the work-charged (regular) employees transferred from DDA to DJB.

2.5. The relevant extract of the order dated 04.05.2011 issued by the respondents-Delhi Jal Board is as follows:-

"As per the direction of the Hon'ble Central Administrative Tribunal order dated 24/12/2010, necessary clarification obtained from the DDA i.e., from the mother Establishment of the Applicants. According to reply received vide No. F.2 (01)/Misc./2011/150 dated 25.04.2011 it has been clarified by the DDA that the service conditions of the Work-charged employees are comparable with the staff of Regular (Establishment) and the only difference between both the categories of employees is their respective works on which they are deployed and the pay and allowances of Regular employees are being charged to the Regular (Establishment) of DDA.

The DDA has adopted the principle of work charged period to be reckoned for the purpose of 1st/2nd ACP and issued it vide OO No. 2044 dated 15.10.2009 mentioning the fact that the continuous service from the date of initial appointment in the work-charged cadre be counted for the purpose of reckoning the 12/24 years of service for grant of ACP benefits to the work charged staff subject to the conditions of ACP guidelines as prescribed and conveyed by the DOPT OM No.3504/1.97-Estt (D) dated 09.08.1999. All the Applicants of this matter have demanded that benefit of this order could also be applicable to them.

After examining the matter and as per the clarification received from the DDA, the DJB has no hesitation to take into the account of the period of work charged spent by the Applicants transferred from DDA to DJB can also be applicable to them while considering the 1st/2nd ACP benefit as other conditions are being fulfilled by the Applicants as mentioned in the clarification received from the DDA i.e., mother Department of the Applicants".

2.6. It has been further denied that any similarly situated persons were given the benefit of 2nd ACP and that the applicant has misquoted the case of Vinod Kumar Sharma & Ors. (supra), as the case of applicant has no similarity with that of Vinod Kumar Sharma & Ors. (supra). Accordingly, the respondents have prayed for dismissal of the OA.

The applicant has filed rejoinder more or less reiterating the averments made in the OA.

Heard the learned counsels for the applicant and the respondents.

Though the applicant has cited judgments in certain cases, neither in the pleadings nor during arguments, has the applicant established that the facts of the present case are, in any way, covered by the decisions in the cases mentioned above.

We have considered the pleadings and arguments of both sides. The following points emerge:

(i) The applicant was appointed on muster roll in 1978 and was regularized in 1992. He has referred to the case of other employees, who were covered by the judgment in Vinod Kumar Sharma & Ors. (supra) to ask for similar treatment. From a perusal of the records and facts, it emerges that the judgment referred to in the case of Vinod Kumar Sharma & Ors. (supra) was in respect of employees in DDA, who were transferred from DJB at different points of time. Their position was changed from muster roll employees to that of work charged (regular) employees and then they were treated at par with regular employees in terms of DoP&T guidelines and the order issued by the DDA on 15.10.2009. For granting benefits of the ACP Scheme, it can be seen that the date from which these employees became work charged (regular) employees has been taken as the relevant date and not the date of joining on muster roll employees. Thus, there has been a clear distinction between employees on muster roll and those who were working as work charged (regular) and the two cannot be equated for the purposes of the grant of ACP benefits.

(ii) It is admitted by both sides that the applicant was a muster roll employee from June 1978 till January 1992 when he was regularized. Thus, there was nothing irregular or discriminatory in granting him 1st ACP from 2004 on completion of 12 years of service. The applicant has mentioned in his pleadings that the respondents have informed him that the period from June 1978 to December 1991 spent on muster roll would be counted for pensionary benefits. There is nothing on record to corroborate this statement and even if there was, it would not have any bearing on the present case since the period of regular service is the determining feature of grant of benefits of ACP Scheme and on that there is no doubt.

In view of the above, the OA is without merit and is accordingly dismissed. No costs.