Shailendra Pandey, Member (A):
1. In this OA, the applicants (three in number) are aggrieved by the action of the respondents in non-implementation of Establishment Order (EO) No.85 dated 15.01.2010 [Annexure A1] issued by Respondent No.3 (Vice Chairman Delhi Development Authority) [even copies of which have been circulated to all the concerned], in terms of which the Stenographers recruited before 01.01.1979 who were placed in the unified scale of Rs.330-15-405-EB-455-455-15-500-20-700 would be entitled to the benefits of 1st and 2nd ACP in the pay scale of Rs.6500-10500 and Rs.10000-15200 at the time of eligibility in their hierarchy on completion of 12 and 24 years of service respectively. However, while doing so, the benefit of fixation of pay under FR-22(C) if given earlier would have to be adjusted.
2. The applicants have sought the following reliefs:
pass orders for the grant of first and second ACP by directing the respondents to implement the EO No.85 dated 15.01.2010 with all consequential benefits.
Pass orders for grant of first ACP after completion of 12 years of service in the hierarchy as per admissibility and eligibility criteria w.e.f. 09.08.1999 when all other categories of employees were granted ACP alongwith arrears of pay and allowances as well as interest accrued thereon @ 12% per annum till the date of final payment w.e.f. 09.08.1999.
Pass orders to allow the second ACP as and when due/admissible as per eligibility in the hierarchy after completion of 24 years of service alongwith all consequential benefits including arrears of pay and allowances and 12% interest P.A. accrued thereon till the date of final payment.
Pass orders to allow penal interest of 24% P.A. w.e.f. 25.06.2009 when the juniors of the applicants were allowed the benefit of A.C.P. and the applicants were denied the first A.C.P.
Pass orders to allow penal interest @ 48% P.A. till its final payment w.e.f. 15.01.2010 when final orders for grant of 1st and 2nd ACP were issued but not implemented till date.
Pass orders of heavy cost in favour of the applicants against the respondents for withholding the ACP benefits to the applicants without any rhyme/reason and forcing the applicant to seek legal remedy.
Any other relief as this Tribunal may deem fit and proper in the interest of justice.
3. The brief facts of the case, as are relevant to the controversy involved in this case and as set out in the OA, are that the applicants were recruited as Junior Stenographers prior to 1979, and now all of them occupy the position of Private Secretaries with senior officers of the Delhi Development Authority.
3.1. It is stated that on 09.08.1999, the Government of India, after accepting the recommendations of the 5th Central Pay Commission, introduced the Assured Career Progression Scheme (hereinafter called as `ACP Scheme of 1999). The Delhi Development Authority (Respondent No.1) also vide its Establishment Order No.1331 dated 14.10.1999 agreed to implement the said recommendations mutatis-mutandis. On 10.02.2000, the Department of Personnel and Training issued certain clarifications (Clarification No.1) to the effect that while applying the ACP Scheme, any promotion from a lower pay scale to a higher pay scale as a result of promotion before merger of pay scales shall be ignored. Since the respondents were not implementing the ACP Scheme, as per the aforesaid EO No.1331 dated 14.10.1999, some of the employees had preferred Writ Petitions (Civil) No.15699-15701 of 2004 before the High Court of Delhi, which was allowed vide its Judgment dated 2.08.2006 directing the respondents to grant the benefit of the ACP Scheme to the petitioners therein, and it was also observed that any imbalance between the petitioners and pre 1979 recruitees can be rectified by other means. The respondents challenged the aforesaid order of the High Court in LPA No.2115/2006 which was dismissed by the Division Bench of the High Court vide its Judgment dated 15.04.2009 wherein it was also held that the next promotional post for Stenographers was that of Private Secretary and further thereon of Deputy Director, and in the absence of such regular promotions, the Stenographers were entitled to ACP Scheme benefits. Thereafter, on 25.06.2009, in compliance of the aforesaid Judgment, the respondents issued Establishment Order No.1368 of 25.06.2009 but while doing so, they treated the pre 1979 Stenographers and post 1979 Stenographers differently. It is stated that the discrepancy started from this day by giving eligibility for the 1st and 2nd financial upgradations under the ACP Scheme of 1999 to the Stenographers recruited post 1979, whereas the pre-1979 recruitees were made eligible for only the 2nd ACP, but till date even the 2nd ACP has not been granted. The applicants (pre-1979 recruitees) made representations against the said arbitrary/discriminatory action. Thereafter a Committee under the Chairmanship of Director (P) was constituted by the Vice Chairman of DDA, vide EO No.2205 dated 5.11.2009 to look into the matter which after considering the same submitted its report in January, 2010 by recommending that the pre-1979 Stenographers would also be entitled for grant of 1st ACP under the ACP Scheme. Thereafter, the respondents issued Establishment Order No.85 dated 15.01.2010 in terms of which the respondents resolved to modify its previous E.O.No.1368 dated 25.06.2009 to the extent that Stenographers recruited prior to 01.01.1979 were also held eligible for 1st and 2nd financial upgradations under the ACP Scheme of 1999.
3.2. It is stated that even though more than two years have elapsed, the respondents are not implementing their own EO No.85 dated 15.01.2010. Hence, the present OA has been filed seeking the aforesaid reliefs, mainly on the following grounds:
that although all the contentions raised by the respondents were already discussed in the Judgment of the High Court of Delhi in LPA No.2115 of 2006 filed by the DDA and thereafter Establishment Order No.85 dated 15.01.2010 was issued, after the recommendations of the Committee constituted for the purpose, non-implementation of the said order even after more than 14 months has greatly prejudiced the applicants, and smacks of highhandedness, arbitrariness, caprice, whims and fancies of the authority concerned.
That although the benefits under the ACP Scheme of 1999 have been granted to the post 1979 recruitees, the same have not been extended to the pre-1979 recruitees, which is discriminatory as all the Stenographers form part of the same feeder cadre which further opens up the channel of promotion as Private Secretary and Deputy Directors. Therefore, the act of the respondents in making a division in the same cadre into pre-1979 and post-1979 recruited stenographers, is in violation of Article 14 of the Constitution of India.
That all other categories and class of employees borne on Group `B’ , `C’ and `D’ and in isolated cases of Group `A’ have already been benefited with the grant of first ACP w.e.f. 09.08.1999 in all the Central Government Departments including DDA and also got their arrears w.e.f 09.08.1999 but the applicants have been denied the same benefit even after intervention of the High Court of Delhi and after clear cut advice given by the Finance Department as well as the Legal Department to allow this benefit to the applicants. As a result, the applicants have been denied not only their legitimate right in the matter but also the benefit of the resultant arrears and interest accrued thereon for the last 12 years.
That although the respondents held a DPC on 10.02.2011, in respect of the applicants for grant of financial upgradations under the ACP Scheme of 1999, but nothing has come out for the reasons best known to them.
4. The respondents have opposed the OA and have stated that the case of the applicants is without any basis and justification or cause of action and that the applicants have concealed and suppressed some material facts. It is also stated that the case decided by the High Court of Delhi in Writ Petition No.s15699-15071 of 2004 is ‘factually on a different footage’. The Stenographers who were granted relief therein had been appointed in a higher pay scale than the applicants, whereas the applicants were originally appointed in the pay scale of Rs.330-560 and were promoted vide order dated 10.10.1979 w.e.f. 01.01.1979 to the pay scale of Rs.330-700. Therefore, they are not entitled for first financial upgradation under the ACP Scheme. It is also stated that the High Court of Delhi in the aforementioned case did not direct the respondent (DDA) to give the 2nd ACP to the applicants therein in the pay scale of Rs.10000-15600, and the only issue decided was that of Stenographers, who had not got any upgradation and were, therefore, eligible under ACP Scheme w.e.f. 09.08.1999. It is also stated that the DDA had granted the scale of Rs.10000-15600 to some Private Secretaries, who have joined the department in a higher scale than the applicants. However, during the course of financial audit, this was held to be irregular, vide Audit paras dated 05.08.2010 (Annexure R-I). The audit objections are as under:
S.No. Para No. Audit Short contents of serious irregularities 1 Para-1 Erroneous pay fixation of Stenographers who were appointed on post other than Stenographers on regular basis.2 Para-2 Benefit of ACP Scheme is not admissible to PA/PS. 3 Para-3 Glaring irregularities in ACP Orders issued by DD(CR) vide E.O.No.1955 dated 30.9.2009 dated 08.10.2009 granting 1st ACP to Stenographers Grade-C.4 Para-4 Entire pay fixation is wrong under the ACP Scheme. 5 Para-5 Comments on the A.G.(Audit) Para No.8 regarding wrong pay fixation of pay and allowances. 6 Para-6 Pay fixation of Sh. Naresh Kumar Sharma, Stenographer, Grade C.
The audit objection related to erroneous pay fixation of Stenographers who were appointed on posts other than Stenographers on regular basis. It is stated that these Stenographers had been directly recruited on posts other than Stenographers (i.e. Peon, LDC, Beldar, Asst. Typist, Hindi Typist, NTS, etc.) and had later been promoted as Stenographers. Further, as per Condition No.5.1 under the ACP Scheme of 1999, two financial upgradations in the entire service career shall be counted against regular promotion (including `in situ promotion’ and fast track promotion availed through Limited Departmental Competitive Examination) availed from the grade in which an employee is appointed as a direct recruit. Since these officials had already got one/two regular promotions, benefits of 1st ACP/2nd ACP granted to them was objected to in audit. Again, it was pointed out that in terms of Condition No.7 for the grant of benefit under the ACP Scheme of 1999, financial upgrdation is to be given in the next higher grade in accordance with the existing hierarchy in a Cadre/Category of post without creating a new post for the purpose. Clarifications in this regard have been issued by the DoPT vide OM dated 17.07.2001, vide clarification point No.41, wherein it has been clarified that the benefit of the ACP Scheme is to be allowed, as per the hierarchy existing as on the date the employee become eligible for financial upgradation under the ACP Scheme. This means that the hierarchy of the eligible employees as on 09.08.1999 has to be taken into account, when the benefit is to be given w.e.f. 09.08.1999. It is stated that because of the aforesaid audit objections the order dated 15.01.2010 was not implemented.
It is submitted that the applicants herein are distinctly different than the applicants in the earlier petitions decided on 02.08.2008 vide Writ Petitions No.15699-15701/2004 - Applicant No.1 (Shri S.P.Chaudhary) was appointed in DDA as Jr. Stenographer in the pay scale of Rs.330-560, Applicant No.2 (Sh. Gopal Dass Gupta) was appointed as LDC/Typist in the pay scale of Rs.260-400/- and thereafter as Jr. Stenographer in the scale of Rs.330-560/- and Applicant No.3 (Ms. Sunita Sethi) was appointed as Jr. Stenographer in the pay scale of Rs.330-560/-. Further, the applicants were promoted from Junior Stenographers to Stenographers and the benefit of FR-22C was also given to the applicants. The ACP Scheme stipulates two financial upgradations to Group `B’, `C’ and `D’ employees on completion of 12 year and 24 years of regular service respectively. According to the respondents, the applicants have got first financial upgradation in the original scale of Rs.330-560/- vide EO No.3271 dated 10.10.1979 w.e.f. 01.01.79 and thereby have already had their pay fixed in the scale of Rs.330-700/- under FR 22 (C). It is further submitted that DDA vide order dated 12.04.2010 (Annexure RII) has also informed that those Stenographers who have got non-functional scale of the grade pay of Rs.5400/- are not eligible for Rs.10000-15600 scale but would instead be eligible for MACP after 30 years of service as per the Modified Assured Career Progression Scheme (MACP) and shall get grade pay of Rs.6600/-.
Therefore, it is stated, that there were valid reasons for non-implementation of the order dated 15.01.2010 till date. It is also highlighted that the applicants were promoted from Junior Stenographers to Stenographers and the benefit of FR 22(C) was also given to them and, therefore, they have already received the first financial upgradation. Further, the applicants have been granted Non-Functional Selection Grade of Rs.8000/- (with revised Grade Pay of Rs.5400), and that the allegation that Junior Stenographers recruited after 1.01.1979 are getting higher pay and allowances and pay scale as a result of caprice, whims and fancies of the authorities concerned, is denied as being baseless and misleading. It is pointed out that the DoPT vide order dated 12.04.2010 (R-II) has clearly stated that those who got the non-functional selection grade pay of Rs.5400/- (Rs.8000/- (Pre-revised)) are not entitled for second financial upgradation under the ACP Scheme.
5. Finally, it is stated that after receipt of the audit paras in question, the entire matter is still under the scrutiny of the administration and a final decision is still to be taken in the matter. Therefore, according to the respondents, the OA is premature and deserves to be dismissed.
6. We have heard the counsel for both sides and have been through the pleadings on record, including the written synopsis filed by the applicants on 12.03.2012/26.04.2012.
7. It would be useful to first refer to the orders passed by the High Court of Delhi in Writ Petition (Civil) Nos.15699-15701/2004, decided on 02.08.2008. The following directions were issued by the High Court:
“5. It is further submitted that in case the ACP Scheme if made applicable to the Stenographers, the same will bring about a imbalance between the Stenographers and others of their rank in the Central Government as the Stenographers/Senior Stenographers with the ACP Scheme will get pay higher than those of similar rank with different designations and others with the same designation appointed prior to 1979. In my opinion, this cannot be a ground to deny the benefit of ACP to which the petitioners have become entitled to in their own right. The imbalance created, if any, by virtue of petitioner’s getting higher salary can be restored by other means.
6. The petitions are accordingly allowed. Respondent is directed to apply the ACP Scheme of 1999 to the petitioners and take the necessary steps for providing them financial upgradation subject to the conditions provided in the circular of 9.8.1999.
Petitions are, accordingly, disposed of.”
7.1. The High Court of Delhi in LPA No.2115/2006 observed the following vide its order dated 15.04.2009:
“12. For all the aforesaid reasons, we do not agree with the contentions of the appellants that the respondents have already received one promotion and therefore, they are not entitled to the benefit under the ACP Scheme. The facts show that the post on which respondents are working was merely re-designated as that of Senior Stenographer as recommended by the Committee itself, and that the respondents were merely ‘placed’, in that post and not promoted to that post. The other contention of the appellants that the respondents, ‘are merely trying to take advantage of chance situation that they joined DDA between 1st January, 1979 and 1st January, 1986 when there was a unified cadre of Stenographers,’ has no force. We are unable to really comprehend what the expression, ‘chance situation’ employed by counsel for the appellant in his synopsis really means in the context. The respondents were recruited against a particular post in a particular cadre. The fact that the cadre came into existence after 1st January, 1979 is really of no consequence. The terms and conditions of the recruitment were unequivocal and the expert Committee has sought to resolve the dilemma by recommending the creation of two cadres at par with the cadres of Stenographers and Senior Stenographers with the Central Government and recommended only the, ‘placement’ of the respondents to the post of Senior Stenographer. Even a ‘deemed promotion’ was not recommended nor was any promotion actually made. This has been done for good reasons.
13. Consequently, we do not find any infirmity in the decision of the learned Single Judge and the same is upheld. The DDA is granted three months time to implement the decision of the learned Single Judge delivered on 2nd August, 2006.
14. The appeal is dismissed. Each respondent shall be paid Rs.7,000/- by the appellant towards costs.”
From the above decisions of the High Court of Delhi, as per the Writ Petitions, it is clear that the benefits of the ACP Scheme cannot be denied to the Stenographers/Senior Stenographers appointed prior to 1979 and ‘the imbalance created’, if any, by virtue of petitioner’s getting higher salary can be restored ‘by other means’. Therefore, the High Court directed the respondents to apply the ACP Scheme of 1999 to the petitioners and take necessary steps for providing them financial upgradation subject to the conditions provided in the Circular of 9.08.1999. Further, in the LPA filed by the respondents, it was specifically observed by the High Court that ‘the facts show that the post on which respondents (the petitioners in the Writ Petitions) are working was merely re-designated as that of Senior Stenographer as recommended by the Committee itself, and that the respondents (the petitioners in the Writ Petitions) were merely ‘placed’, in that post and not promoted to that post’, and accordingly, the High Court held that there was no infirmity in the decision of the learned Single Judge and the same was upheld.
Further, the applicants have brought to our notice a copy the opinion of the Financial Advisor (Housing) dated 04.08.2010, given on a representation dated 03.08.2010 from DDA Secretarial Cadre’s Association (Regd.) regarding non-implementation of E.O. No.85, dated 15.01.2010 issued by Commissioner (Personnel) for grant of ACP to Pre-1979 Stenographers. The Financial Advisor (Housing) observed as under:
“It is observed from the representation that holding of DPC relating to grant of ACP to pre-1979 Stenographers is withheld by the Personnel Department in view of External Audit observation in Housing Finance Establishment. On perusal of Audit observation, it is seen that the observations of External Audit relates to wrong fixation of pay and allowances to post-1979 Stenographers under adoption of 6th Pay Commission whereas the case of grant of ACP to pre-1979 Stenographers relates to ACP under 5th Pay Commission.
The reply to this External Audit observation is being sent separately. Hence, implementation of E.O. No.85 dated 15.1.2010 may not be linked to this Audit observation and holding of DPC administratively to grant ACP under 5th Pay Commission to pre-1979 Stenographers may also not be withheld.”
The minutes of the meeting of Senior Level DPC (Group `B’ Officers) held on 10.02.2011 have also been brought to our notice, wherein in para 12 the Committee observed as under:
“12. The DPC was further informed that in view of audit objection, the issue of grant of benefits of 2nd financial upgradation under ACP Scheme in the pay scale of Rs.10000-15200/- was re-examined in Personnel Department in consultation with Finance/Legal Wing. The Chief Legal Advisor, DDA has opined that the orders of Division Bench have not been challenged and have become final and binding and E.O. dated 15.01.2010 has not been withdrawn and stands. Therefore, there is no reason to deny the benefit of 1st and 2nd ACP to the Stenographers who had joined prior to 01.01.1979. The Finance Department has also been consulted and given their concurrence for taking follow up action as per advise of the Chief Legal Advisor, DDA. The Vice Chairman, DDA has also accorded his kind approval for grant of 2nd financial upgradation under ACP Scheme to Stenographers recruited piro to 01.01.1979 in the pre-revised pay scale of Rs.10000-15200/- ass ACP is to be granted in promotional hierarchy scale and not on non-functional scale of Rs.8000-13500/-. It was also observed that the DoPT OM dated 12.04.2010 is regarding MACP and not regarding ACP Scheme. It has no relevance with reference to grant of ACP.”
8. We are not expressing any opinion on the above views in view of the statement of the respondents that the entire matter relating to implementation of the order dated 15.01.2010, ‘is under review because of the audit objections’ and that ‘no final decision has as yet be taken’. It is noticed that the audit objections referred to hereinbefore were not specifically in respect of the applicants but in respect of other officials who have been granted ACP. Whether, these employees are identically placed as the applicants in this OA has to be examined by the respondents.
9. However, it is noticed that after receipt of the audit paras which, as already stated, related to other persons, the respondents are undertaking an exercise to review all the cases of grant of benefits under the ACP Scheme primarily with a view to safeguard Government revenue, and that the matter has not been administratively finally decided by the competent authority. While nobody can question their right to do this in accordance with rules and as per the directions of the Courts, the ‘review’ cannot go on indefinitely and must be concluded within a fixed period of time so that people are accorded the benefits which are actually held to be due to them under the ACP Scheme of 1999.
10. In this connection, it would also be useful to refer the following Clauses of the ACP Scheme of 1999:
"11. Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the ACP Scheme shall be given by the Department of Personnel and Training (Establishment-D).
and the following Clauses of the MACP Scheme of 2009:
9. Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational w.e.f. 01.09.2008. In other words, financial upgradations as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008.
10. No stepping up of pay in the pay band or grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under MACP Scheme.
11. It is clarified that no past cases would be re-opened. Further, while implementing the MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly.” (Emphasis supplied)
Therefore, it would have been expedient for the respondents, if they had/have any doubt with reference to the interpretation of the applicability of the ACP Scheme of 1999 to the applicants, to have first consulted the DoPT formally with reference to the case of the applicants before taking a final decision with regard to implementation of the EO No.85 of 15.01.2010.
11. In view of paras 9 and 10 above, we are of the view that the interest of justice would be met by remitting the matter back to the respondents to take a final decision in the matter with expedition, and for this purpose they should refer the cases of the applicants (after bringing the full facts and all the orders of the High Court of Delhi, referred to above), to the notice of the DoPT for a final decision, and then pass appropriate orders in accordance with rules and the decision of the DoPT. The above exercise should be completed, on priority, preferably within a period of two months from the date of receipt of a copy of this order.
12. The OA is disposed of in terms of the aforesaid directions. No costs.