The Tribunal ruled that notional service should be counted for financial upgradation under the MACP, directing retroactive adjustments from the date of notional appointment.

ORDER (ORAL)

Hon’ble Mr. Manish Garg, Member (J)

The present O.A. has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, seeking following reliefs:-

“8. (a) Call for the records of the case;

(b) Quash and set aside the impugned order dated 19.02.2019 issued by the Respondents.

(c) Direct the Respondents to designate the Applicants to the post of Mali (Gardener) as per their entitlement.

d) Direct the Respondents to grant Rs. 2000/- Grade Pay to the Applicants with arrear w.e.f. their entitlement i.e. 1.10.2008 under MACP Scheme and subsequent benefits too.

e) Direct the Respondents to give all consequential benefits to the Applicant.

f) Direct the respondents to pay the cost of the proceedings to the applicant.

g) Pass any other order or direction which this Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case.”

2. Learned counsel for the applicants impugns the Office Order dated 19.02.2019, wherein the case of the Applicants has been rejected on the premise that the case was submitted to Finance Department, Govt. of NCT of Delhi and FD vide its para 195 and turned down the file vide note dated 16.05.2018 with the remarks that "if no posts were created before 21.3.1991 there should be no question of regular service before 21.3.1991, as no incumbents can be appointed without posts being available." Hence the eligibility of ACP/MACP has to be counted w.e.f. 21.3.1991 and not 01.10.1988.”

2.1. It is not in dispute that the applicants were granted notional seniority w.e.f. 01.10.1988 and they were subsequently regularized on 21.03.1991. It is this period from 01.10.1988 till 21.03.1991 to be looked into for the purpose of granting of MACP, in as to arrive at the conclusion that whether the said period ought to be counted for purposes grant of ACP/ MACP.

3. Opposing the grant of relief, learned counsel for the respondents would rely upon the averments contained in the counter affidavit. It has been highlighted in the counter affidavit that the impugned order dated 19.02.2019 is not illegal, arbitrary, or discriminatory. The impugned order dated 19.02.2019 was passed in compliance with the judgment / order dated 04.12.2018 passed by this Hon'ble Tribunal in OA No.4413/2018 titled Surinder Pal &Ors. vs. GNCTD and Ors. vide order dated 04.12.2018, this Hon'ble Tribunal directed the respondents to decide the applicants' representation. Applicants vide representation, requested a change of designation from labour to mali and also requested the grant of ACP / MACP from a retrospective effect, considering their date of appointment to be 01.10.1988 instead of 01.04.1991. The respondents passed the impugned order dated 19.02.2019, whereby both requests have been rejected on the grounds/ reasons mentioned in the said order dated 19.02.2019.

4. Having heard the submissions urged by the learned counsel for the parties and perused the records.

5. Learned counsel for the applicant has placed on record a copy of the order passed in O.A. No. 1292/2024, decided by this Tribunal on 30.01.2025, wherein an identical issue has already been decided.

6. The contentions of the respondents were also taken, which are akin to the present matter. For ready reference, we would like to refer and rely upon the observations made in O.A. No. 1292/2024 titled as Anil Kumar Vs. Union of India and Others , which read as under:-

“7. We have also considered the judgments/orders passed by the Hon'ble Supreme Court as well as this Tribunal, which are heavily relied upon by the applicant in support of his case. In Union of India (UOI) and Ors. vs K.B. Rajoria dated 28.03.2000 (supra), the Hon’ble Supreme Court observed and held as under:-

“17. The distinction drawn by the High Court between the word ‘service’ used in the eligibility cri