Sudhir Kumar:
1. The applicant of this OA was appointed against the post of a Trained Graduate Teacher (TGT, in short) (Science-B) against the posts notified for the year 1983-84 by a Staff Selection Boarded headed by Respondent No.2. In that process of selection, 1492 candidates were selected for appointments on the posts of TGTs in various subjects, including Science-B, and it was specifically mentioned that the panel of selected candidates will remain valid till all the selected candidates were offered appointment. An offer of appointment was issued to the applicant in respect of this panel only four years later, through Annexure R-3 dated 29.1.88, and once she accepted the offer, she was offered the post of TGT Science-B through Annexure A-4 dated 08.02.1988. The applicant accepted this appointment through her letter of acceptance dated 11.2.1988 (Annexure A-5).
2. In the meanwhile, another process of selection had been undertaken by the respondents in the year 1986 in which also the applicant herein had participated and had been selected for the post of TGT Science-B through office order dated 17.4.1986 Annexure A-6, and on the basis of the selection in the year 1986, she had already been appointed and posted as TGT Science-B at a particular school through order dated 25.6.1986 (Annexure A-7), in response to which she had joined on 17.7.1986.
3. The applicant has submitted in Para 4.5 of the OA that when she accepted the offer of appointment for the second time, on the basis of her selection in the 1983-84 panel, she had brought to the notice of the Respondent No.3 that she had already accepted an earlier offer of appointment, and was already working on the same post since the year 1986. The applicant has contended that since the respondents had a responsibility to exhaust the panel of selected candidates prepared in the year 1984 for all the vacancies that fell vacant for being filled up in the years 1984, 1985 or 1986, till the date the last candidate of the earlier panel had been exhausted her entitlement to occupy that post had arisen in 1984, and was valid and current all through. But the applicant has not stated in the OA that she had taken this objection before responding to the advertisement in the year 1986 and participating in the interview held thereafter, and getting selected as a Teacher in the year 1986, and joining as a teacher on 17.07.1986.
4. Some of the candidates who had been selected in the panel in the year 1983-84, but had not been appointed by the time the fresh process of selection was undertaken in the year 1986, had approached the Hon’ble Delhi High Court seeking directions to the respondents to the effect that they be appointed as per their selection in the panel prepared in the year 1983-84. The Hon’ble High Court accepted this contention in the case of Ishwar Singh Khatri and others Vs. Union of India and others in its order dated 04.08.1989 in CA No. 1900/1987. The respondents however approached the Hon’ble Apex Court, which ultimately decided the case through its judgment in the case of Union of India and others Vs. Ishwar Singh Khatri and Others 1993 (2) SCALE 730, which has been produced by the applicant as Annexure A-8. Thereafter, on the basis of the aforesaid judgment, even though she was substantively appointed w.e.f. 17.7.1986 only, the applicant claimed that she became entitled to notional fixation of her pay and seniority w.e.f. 20.01.1984, the date of announcement of the 1983-84 select panel.
5. Later, some of the applicants who were not granted such ante-dated seniority and the benefit of retrospective pay fixation approached this Tribunal in OA No.1691/1994 Sohan Bir Singh and others Vs. The Administrator of NCT of Delhi and Director of Education, which came to be disposed of through an oral order dated 14.2.1996 (Annexure A-9). In that order it had been taken note of that the seniority list was then under preparation, and once the seniority list is finalized, the matter of pay fixation shall be taken up, and only when the pay has been so fixed the applicants can have a legitimate claim to point out any irregularities/disparities of pay amongst junior and senior teachers in their cadre. Therefore, that OA was disposed of with directions to the respondents to finalize the seniority list with utmost expedition, and thereafter consider the claim of the applicants therein within six months from the date of receipt of a copy of that order.
6. The respondents prayed for further six month’s time period for doing the same through MA No.1979-A/96, which also came to be allowed on 19.11.1996, allowing time upto 31.3.1997. However, the respondents could thereafter issue the necessary instructions to finalize the seniority for TGTs only through their letter dated 22.4.1997 (Annexure A-11). When still no action followed in her case for nearly 11 years, the present applicant came before this Tribunal and filed an OA No.1790/2008 Smt. Krishana Kumari Vs. Directorate of Education and Anr, which came to be disposed of on 15.5.2009, allowing the OA and directing as follows:-
“3. Resultantly, OA is allowed. Impugned order is set aside. Respondents are directed to accord notional pay fixation to the applicant as TGT from 1984 and as a consequence, this would also include grant of two increments in the benefit of notional pay fixation and also grant of senior scale of Rs.6500-10500 on account of completion of 12 years of regular service in the entry scale of TGT. This shall be done by the respondents within a period of three months from the date of receipt of a copy of this order. This seniority shall also hold good for all other benefits as admissible to the applicant. No costs”.
7. The respondents challenged this order dated 15.5.2009 (supra) before the Hon’ble High Court of Delhi in Writ Petition (Civil) No.13987/2009 which came to be decided on 21.12.2009, in which, while upholding the Tribunal’s order and allowing notional fixation of her pay from the date of her initial empanelment on 20.01.1984, the Hon’ble High Court clarified that such notional fixation of pay, by itself, would not entitle her to seek arrears of pay for the period, for which she had actually not worked (i.e. from 20.01.1984 to 16.07.1986). Still, a Review Application was filed by the respondents before the Hon’ble High Court in RA No.2/2011 and CM No.119/2011, which also came to be decided and disposed of by the Hon’ble High Court on 07.01.2011, observing that there was no error apparent in its judgment on the face of the record, and under review it was not permissible for an erroneous decision in a case to be re-heard and corrected, and an error which is not self-evident, and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record (Annexure A-13A).
8. The respondents had, in the meanwhile, even before filing the RA, complied with the order of the Hon’ble High Court through an order fixing the pay of the applicant notionally w.e.f. 20.01.1984 through their order dated 25.1.2010 (Annexure A-14), and had also paid her the actual arrears due. But the applicant alleges that they still did not implement the second part of the order of this Tribunal in OA No.1790/2008 dated 15.5.2009, which had ordered for grant of senior scale to her on completion of 12 years of regular service in the entry scale of TGT, which had not been traversed by the Hon’ble High Court in its judgment dated 21.12.2009 (supra).
9. Her contention is that the date of her entry into regular service, and 12 year’s period from that, should be counted from the date of her initial empanelment and notional appointment w.e.f. 20.1.1984, and on completion of 12 years from that date, on 20.01.1996 she was eligible for grant of senior scale. The respondents however appear to have taken a view that the Tribunal’s order concerning completion of 12 years of regular service in the entry scale of pay could have related only to the date from which she actually entered into the service from 17.7.1986, but not from the date of 20.1.1984, from which date she had only notionally been granted fixation of pay, since she had not been even offered an appointment, and had not entered regular service at all for two and a half years thereafter.
10. Aggrieved by this, the applicant had again approached this Tribunal by filing a CP No.608/2009 in OA No.1790/2008, which came to be disposed of on 02.02.2010. However, the Bench that day issued further directions, clarifying its earlier order in the O.A., and passed the following order in that Contempt Petition:
“Though the office order has been passed by the respondents on 25.1.2010 but the later part of the directions i.e. grant of senior scale on completion of twelve years of regular service in the entry scale of TGT would fall in the year 1996 whereas this has been given in the scale of Rs.6500-10500 from 17.7.1998. We now direct the respondents to rectify this and pass a fresh order within two weeks from today. It is also directed that payment shall also be released to the applicant within the aforesaid period.
With this, C.P. stands disposed of. Notices are discharged. No costs”.
11. The respondents obeyed this order of the Tribunal also, by passing the modified fixation of pay in favour of the applicant through Annexure A-16 dated 22.02.2010, amending her earlier pay fixation issued through Annexure A-14 on 25.1.2010, and also paid her the further arrears.
12. Thereafter, through their Notification dated 25.8.2003 (Annexure A-17) the Respondent No.2 issued orders replacing the then prevalent three tier pay scale system (entry scale, senior scale and selection scale) applicable in respect of Teachers with an Assured Career Progression (ACP, in Short) Scheme retrospectively w.e.f. 9.8.1999, through which, as per recommendations of 5th Pay Commission, two financial upgradations were directed to be given on completion of 12 years or 24 years of regular service in all cases of stagnation without increment, in accordance with the general instructions issued in this regard by the DOPT, Govt. of India dated 9.8.1999.
13. The applicant’s contention is that she became eligible for grant of second ACP benefit and pay fixation in the pre-revised pay scale of Rs.7500-12000 w.e.f. 20.01.2008 in accordance with the ACP Scheme Notification, since she had already completed 12 year’s regular service as on 20.01.1996, from which date she had already been granted the senior scale of Rs.6500-10500/-, in accordance with the directions given by this Tribunal vide order dated 15.5.2009 in OA No.1790/2008, read with the order dated 02.02.2010 in C.P. No.608/2009 in OA NO.1790/2008.
14. The applicant has further submitted that vide order dated 19.5.2009 (Annexure A-18), the earlier ACP Scheme has now been replaced by a Modified Assured Career Progression (MACP in short) Scheme, which became applicable w.e.f. 1.9.2008, whereby employees became entitled for three financial upgradations, at the intervals of 10,20 and 30 years of continuous regular service. As a result, the applicant is now aggrieved that through Annexure A-1 dated 08.03./16.03.2010, she has wrongly been categorized to have been granted 2nd MACP benefit w.e.f. 01.09.2008, by counting her date of entry into regular service as on 17.07.1986. She had represented to the respondents soon thereafter, through Annexure A-2 dated 04.05.2010, praying for being granted second ACP financial upgradation w.e.f. 20.01.2008, instead of being granted her second financial upgradation under MACPS w.e.f. 01.09.2008. However, the respondents have not paid heed to her request so far. She has pleaded that she has been wrongly allowed the MACP Scheme benefit of second financial upgradation with effect from the date 01.09.2008, when the MACP Scheme became operational, while she had actually become entitled to such second financial upgradation under the old ACP Scheme itself w.e.f. 20.01.2008, much prior to the MACP Scheme becoming operational from 01.09.2008.
15. The applicant had first filed a second Contempt Petition No. 476/2011 in OA NO.1790/2008, but by this Tribunal’s order dated 12.03.2011 in CP No.476/2011 in OA No.1790/2008, the same was allowed to be withdrawn by her, with liberty to approach this Tribunal by way of a fresh OA, which is the present OA.
16. In this O.A., the applicant is aggrieved that her representation dated 4.5.2010 (Annexure A-2) has not been acted upon by the respondents, and she has had to approach this Tribunal on the ground that since the ACP Scheme earlier stipulated a second financial upgradation to be granted after 24 years of service, and since in her case the period of service of 24 years was completed on 20.01.2008, by treating her empanelment on 20.01.1984 as her notional date of appointment, hence she had become entitled for the grant of second ACP benefit even before the MACP Scheme became operational.
17. Further, she has taken the ground that the respondents had in the impugned order erroneously taken the date of her appointment as 17.07.1986, which is not in accordance with the judgment and order dated 15.5.2009 passed by this Tribunal in her earlier OA No.1790/2008 (A-12), and the order dated 2.2.2010 (Annexure A-15) passed in CP No.608/2009 in the aforesaid OA No.1097/2008. She has further stated that not granting her the benefit of second ACP w.e.f. 20.01.2008 is illegal, specifically because she had been granted the benefit of Senior Scale w.e.f. 20.01.1996, as per her revised pay fixation order dated 22.02.2010 (Annexure A-16). It was also submitted by her as a ground of appeal that through order dated 18.8.2007 (A-21), her seniority number No.1052 has also been fixed by taking her date of appointment as 20.01.1984. Therefore8 she pleaded that her seniority w.e.f. 20.01.1984 will hold good for all benefits, particularly in view of the respondent’s own order dated 18.8.2007 (Annexure A-21).
18. The respondents stoutly defended all their actions as having been taken in obedience of orders of the Honble Supreme Court, the Hon’ble High Court, and this Tribunal, and notional seniority w.e.f. 1984 has been granted to her, and she has also been granted Senior Scale w.e.f 1996 in obedience of this Tribunal’s orders, even though she was entitled for the same only w.e.f 17.07.1998. They had also defended their actions in terms of Condition No.4 of the ACP Scheme, whereby the first financial upgradation can be allowed only after 12 years of regular service, and under Condition No.6 of the ACP Scheme, a harmonious reading of which reveals that in so far as the requirement of ‘eligibility service’ is concerned, the regular service of 12 years, or 24 years, as the case may be, can be counted only from the date of direct entry into the grade.
19. It had once again been pointed out by the respondents that the applicant had joined her duty actually only on 17.07.1986, and therefore 12 years of her regular service got completed only on 17.07.1998, counting from the date of her actually joining as an employee, and that therefore the benefit of second MACP had been rightly granted to her w.e.f 01.09.2008, and that it was wrong for her to submit that she had completed 24 years of regular service earlier, on 20.1.2008, as averred by her. The respondents stated that there was nothing wrong in granting her second MACP benefit by treating her date of appointment as 17.7.1986, the date from which she actually started working, and then only her regular service could have been counted. In the result, the respondents had submitted that the applicant is not entitled for the grant of second ACP financial upgradation w.e.f. 20.01.2008, as prayed for by her, and the OA is liable to be rejected.
20. The applicant thereafter filed a rejoinder on 24.1.2011, more or less reiterating her contentions already described above in detail. She reiterated that in terms of this Tribunal’s order dated 15.5.2009 granting her the benefit of ante-dated notional pay fixation, treating her date of empanelment on 20.01.1984 as her date of joining, and also granting the benefit of seniority from that date, such seniority shall hold good for all the other benefits also, as are admissible to the applicant. In Para-4 of the rejoinder, the applicant made the following submission:- “A review application bearing RA No. 2/2011 was preferred and the same was dismissed vide orders dated 07.01.2011 (Annexure A-13a) holding that the applicant is to be treated as being in service from 1984 onwards, the said fiction has to be given its full effect including for the purposes of pay fixation and the benefit of wage revision. It was also clarified in the said order that when the applicant is assigned seniority from 1984, the plea of the respondents to the effect that the Hon’ble Supreme Court granted the notional seniority only and not the notional pay fixation was rejected. Hence all the contentions raised by the respondents in their reply have no legal validity and are liable to be rejected”. (Emphasis supplied).
21. It was, therefore, reiterated in the rejoinder that when she has been granted ante-dated notional seniority from 20.01.1984, and based upon that the Senior Scale also w.e.f 20.01.1996, she has to be treated as having completed 24 years of regular service as on 20.01.2008, and she should be declared to be eligible for the benefit of the second financial upgradation under ACPS from that date.
22. Heard. The case was argued vehemently by both the sides. We have given our anxious consideration to the facts of the case. It appears to us that the applicant has not approached this Tribunal with fully clean hands.
23. She had assailed the order dated 18.8.2007 (Annexure A-21) in her earlier OA No.1790/2008, and by the order dated 15.5.2009, reproduced in para 6/above, this Tribunal had set aside that order. Still, the applicant has now sought relief from this Tribunal on the basis of that very same order (Annexure A-21) in Ground-5 (f) of her OA, without even bothering to mention that this order has already been set aside by this Tribunal on 15.05.2009, on her own prayer made in her earlier OA, and is non-est as on today !!
24. Secondly, we have to appreciate the order of this Tribunal dated 15.5.2009 in the light of the orders of the Hon’ble High Court of Delhi in WP (C) No.13987/2009 filed by the respondents in which the order dated 21.12.2009 (Annexure-A-13) was passed by the Hon’ble High Court as follows:-
“4. Once the respondent had been granted notional seniority from 1984, i.e., she is being treated as being in service from 1984 onwards, the said fiction has to be given its full effect, including for purposes of pay fixation. Therefore, the pay of the respondent ought to have been fixed as if she had joined in the year 1984 and on the basis that she had earned the increments, and benefited from wage revision, which may have taken place in the meantime. She would also be entitled to benefits under the Assured Progression Scheme.
5. In our view, there is no error in the order of the Tribunal, and the same appears to be perfectly legal and justified. We may, however, clarify that the pay fixation from 1984 is only notional and that, by itself, would not entitle the respondent to seek arrears of pay for the period for which she has actually not worked. Accordingly, the writ petition is dismissed”. (Emphasis supplied).
25. As had been very appropriately observed by the Hon’ble High Court, when the applicant has been treated as being in service from 1984 onwards, the said fiction has to be given its full effect, including for the purposes of pay fixation, and ACPS benefits. But in the same judgment, the Hon’ble High Court had further clarified that the pay fixation from 1984 is only notional, and that, by itself, would not entitle her to seek arrears of pay for the period which she had actually not worked. Also, the Hon’ble High Court had never laid down or stated in so many words in clear terms that the period of her not having worked, but only having remained in the select panel, must necessarily count towards counting the period of her stagnation in service for the grant of financial upgradation A.C.P. benefit. Therefore, from a conjoint reading of the two orders, of this Tribunal and of the Hon’ble High Court of Delhi, as cited above, it is clear that the notional fixation of her ante-dated seniority from 20.01.1984 is only a fiction, such fixation of pay being done only on a notional basis, and that it could never have resulted in any change in the actual date of her joining the service, as was clarified in ample measure by the Hon’ble High Court in its order.
26. It would be relevant here to quote the following meanings of the words ‘notion’ and ‘notional’ from the Chambers 20th Century Dictionary and Concise Oxford Dictionary:
‘Notion means qualities of an object, an idea, an opinion’
‘Notional means theoretical, ideal, fanciful, imaginary unreal’ (Chambers 20th Century Dictionary)
‘Notion means idea, conception, view, opinion, theory, faculty, capability or intention’
‘Notional means existing only in thought, imaginary, conveying its own meaning.’
(Concise Oxford Dictionary)
27. It is clear that the meaning of the word ‘notional’ includes theoretical, ideal, fanciful, imaginary, existing only in thought, or unreal, and the meaning of the word ‘notion’ includes mental apprehension, in idea, in opinion and in conception, but not in reality. The Tribunal had in its order dated 15.5.2009 in OA No.1790/2008, as reproduced above, in para-6, nowhere ordered for her date of actual entry into service to be changed to be that date when her name was included in the select panel of 1983-84. When it was ordered that she would be entitled to grant of Senior Scale of Rs.6500-10500 on completion of 12 years of regular service in the entry scale of TGT, no mention was made by the Tribunal about counting the period of her not having worked also to be clubbed for the purpose of counting the completion of such 12 years of regular service. This was upheld by the Hon’ble High Court also, as already cited in para-24 above, making it further clear about the notional fixation of salary that the applicant is eligible for only notional pay fixation to be ante-dated from 1984, by fictional seniority, but that she cannot seek arrears of pay for the period for which she had actually not worked, but was only one of the candidates included in the select panel of 1983-84. Also, as mentioned above also, the Hon’ble High Court never directed in clear terms, in as many words, that even though she was not entitled for arrears of salary for the period over which she had not actually worked, yet still that fictional working period would be counted for the purpose of counting her having stagnated in service, for the grant of ACP benefit. We have not found anything to the contrary having been said even in the orders of the Hon’ble High Court in RA No.2/2011 and CM No.119/2011 passed on 7.01.2011 (Annexure A-13a). Therefore, from a conjoint reading of all the above three substantive judicial findings, apparently there was nothing wrong in the first order of her pay fixation issued by the respondents through Annexure A-14 dated 25.1.2010. Judicial discipline demands of us that we also agree and concur with the judgment dated 15.5.2009 of a coordinate Bench in the OA, which was further re-inforced and approved by the Hon’ble High Court also, and we are bound down by that discipline.
28. The problem has however arisen because of the interpretation and explanation of the order of this Tribunal at Annexure A-15 in C.P. No.608/2009 in OA No.1790/2008. In contempt jurisdiction, no finding on fact can be arrived at by this Tribunal, or directions in the nature of mandamus issued, as is done in an OA. In contempt jurisdiction, the Tribunal has only to see whether a contumacious act has been committed or not by the respondents/alleged contemnors, and as to whether the contempt lies or not. Then, either the CP has to be dismissed, or the respondents have to be declared as contemnors, and then punished. Any observation on facts in an order on a Contempt Petition can only be an over-reach, and cannot be a binding order for the parties in respect of facts, and can at best be only an observation, or an obiter dicta. The Hon’ble Apex Court has clearly laid down the law in this regard in a catena of cases. We may cite here only from one of those judgments in Prithawi Nath Ram Vs. State of Jharkhand and Ors. - AIR 2004 SC 4277; 2004 (3) Supp. SCR 740 as follows:-
“8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should al-ways either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for con-tempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or other-wise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible”. (Emphasis supplied)
29. Therefore, judicial discipline does not require us to agree or concur with such an order in a contempt proceedings, and it appears to us that the Bench that had passed the order in C.P. on 02.02.2010 had perhaps not only over-reached its own jurisdiction in that contempt proceedings, but had even over-reached the judgment dated 21.12.2009 of the Hon’ble High Court also, when it had gone ahead to issue a further additional direction to the respondents, traversing beyond its earlier order. Also, it is clear that direction did not flow directly from its earlier orders on the OA dated 15.5.2009, in which mention had been made only of 12 years of regular service, and not of any notional service also. To our mind, such an order giving additional direction, clarifying its earlier order, was in the nature of an order on a review petition, which it was not considering then, and therefore that order was outside the scope of contempt jurisdiction of this Tribunal, as has been held by the Hon’ble Apex Court also, as cited above. The respondents, however, obeyed that observation in the CP and issued a pay re-fixation order as Annexure A-16, since they are bound to obey any order which is passed by any Bench of this Tribunal.
30. While it is trite law that judicial discipline demands the judgments and orders of a concurrent Bench of this Tribunal in an O.A., laying down the law in the context of a given set of facts, are followed as being binding on all the other Benches of this Tribunal, the same is not true of orders passed by a Bench in contempt jurisdiction. In itself, contempt jurisdiction of a Court or a Tribunal is a different cup of tea!! What may amount to be a contumacious act in the eyes of one Bench of this Tribunal, may not aggregate to convince another Bench to be convinced about the contumacious nature of the acts alleged to have been committed by the respondents/alleged contemnors. There is no requirement of judicial discipline for us to follow necessarily an order passed by a concurrent Bench in the exercise of its contempt jurisdiction.
31. Therefore, we beg to disagree with the clarificatory orders passed in exercise of its contempt jurisdiction by the concurrent Bench of this Tribunal on 02.02.2010 (Annexure A-15) in C.P. No.608/2009 in OA No. 1790/2008. However, as an exception, we would hasten to hereby clarify that any arrears paid to the applicant on that account, since they were paid in obedience of the specific directions of this Tribunal issued on 2.2.2010, would not be recovered from the applicant herein, in the extra-ordinary facts and circumstances of the present case.
32. However, that does not change the nature and character of the applicant having been only notionally, fictionally, and imaginarily in service from the date of her empanelment on 20.01.1984, prior to actual date of her entry into service on 17.07.1986. Courts and Tribunals cannot provide ‘Time Machines’, and cannot change the course of events, so that something which had actually happened on 17.7.1986, when the applicant had actually joined Government service, can be instead made to happen earlier, to make that event to happen two and half years earlier on 20.01.1984, and that is why, while giving such reliefs to the applicant, only the word ‘notional’ has been used by both this Tribunal, as well as by Hon’ble High Court of Delhi, apart from the use of the word fictional also. What is notional can only be fanciful, fictional, imaginary, and unreal, and can never be actual, and what is actual and is an event which has historically occurred in reality, cannot be denied by anybody as ‘notional’.
33. Both ACP and MACP Schemes are beneficial schemes, in the nature of a safety-net, to provide financial upgradation assistance to employees who have stagnated in a pay scale, without any increment over decade’s long periods, and had prescribed for financial upgradations to be granted to the stagnating Government employees, who had stagnated over a time period of 12/24 years of ‘regular service’ in the case of ACP Scheme, and 10/20/30 years of ‘continuous regular service’ in the case of MACP Scheme, 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. |
35. In the result8 the present applicant before us cannot be allowed to deny the fact and historical event of her actual date of appointment as a Government servant, and her stagnation in service cannot be said to have started before the actual date of her joining Government service on 17.07.1986, even though both this Tribunal and the Hon’ble High Court of Delhi have given her the benefit of her earlier selection and inclusion in the 1983-84 select panel, by giving her notional benefit of pay fixation w.e.f. 20.01.1984. But that period of two and a half years from 20.01.1984 till 16.7.1986, when she had not even actually joined Government service, cannot ever count towards her stagnation in service, for the purpose of being considered for the grant of financial upgradations under either ACP Scheme, or MACP Scheme. What is only notional or fictional can never be held to be actual or regular. Both the ACP and MACP Schemes are safety net Schemes only for those hapless employees who had actually joined service decades earlier, and are then stagnating without any regular promotions. Therefore, in the present case, the applicant before us cannot be allowed to claim that in her case stagnation in Government service had started to accrue even before she had actually joined Government service on 17.7.1986.
36. Therefore, there is no merit in the contentions as raised by the applicant in this OA. Further, the applicant is actually liable for being proceeded against for perjury, for having been cunning and a half, and having cited and tried to take shelter behind the order at Annexure A-21 dated 18.08.2007, knowingly fully well that this order was non-est, as this Tribunal had set aside that order on her own motion, when it was impugned by her in her own earlier OA. But we pardon her from the criminality aspect of the punishment for perjury through this deliberate attempt on her part to hoodwink this Tribunal, subject to the civil liability of payment of costs. In the result the OA is rejected, but cost of Rs.25,000/- is awarded for being paid by the applicant to the C.A.T. Bar Association Library with directions to the applicant to pay this amount within one month of the date of receipt of a copy of this order, and deposit the receipt for that payment in this Tribunal’s Registry, failing which she would be liable for being prosecuted for a contempt of this Tribunal suo moto, on a motion by the Registry of this Tribunal.