Central Administrative Tribunal - Delhi
Shri Kishan Lal Kamboj S/O Shri Shanker ... vs Union Of India (Uoi), (Through ... on 30 April, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. Whether applicant is entitled to first financial upgradation counting the period of notional appointment/regularization is the question raised in present OA? Applicant seeks direction to Respondents to convene Screening Committee and consider him for grant of first financial upgradation in pay scale of Rs. 6500-10,500/- with all consequential benefits including arrears, interest and costs.
2. Admitted facts of the case are that applicant belonging to Scheduled Caste community commenced his career as a Casual Labour Artist under Respondents on 01-10-1985. When his juniors were being absorbed, overlooking his claim, he filed OA No. 443 of 1993, which was disposed of vide order dated 03-05-1993, directing concerned authorities to consider his case in the light of the scheme. Pursuant thereto, Respondents passed order in July, 1993, stating that as applicant was first engaged on 01-10-1985 when he did not attain age of 21, as prescribed under the Recruitment Rules for Group 'D' post, he was given seniority as Casual Labour Artist only w.e.f. 05-10-1986, his date of birth being 05-10-1965. Said order was challenged by filing OA No. 2484 of 1993. Vide order dated 14-07-1999, said OA was allowed and aforesaid impugned order was quashed with direction to Respondents to count his seniority as Casual Labourer w.e.f. 01-10-1985 and consider him for regularization w.e.f. the date on which third respondent, i.e., Shri Sripal Singh or any person having lesser length of service were considered for regularization. On being found fit for regularization, he was directed to be regularized with all consequential benefits. Since necessary direction had not been complied with, he preferred CP No. 391/1999. Ultimately, vide order dated 08-10-2000, applicant was regularized w.e.f. 23.11.2000 against the shifted post of S.C. category of Doordarshan Kendra, Bhopal. Later, vide order dated 02.03.2001, he was deemed to have been regularized w.e.f. 23.01.1993 and his pay was accordingly fixed on notional basis.
3. Applicant's grievance is that Respondents vide order dated 24.02.2006 allowed first financial upgradation under ACP Scheme in pay scale of Rs. 6500-10500/- to other Floor Assistants, overlooking his claim. Despite representation made, needful has not been done. His specific representation dated 02.04.2006 was rejected vide Memorandum dated 18-07-2006, stating that he was not entitled to first ACP as per rules.
4. Respondents contested the claim laid stating that condition precedent for grant of first financial upgradation is 12 years actual regular service and not deemed/notional service. In the present case, he had not actually worked from 1993 upto 23.11.2000. Therefore, he did not satisfy 12 years of regular/actual service in the grade and hence not entitled to first financial upgradation.
5. We heard learned Counsel for parties and perused the pleadings on record carefully.
6. Before proceeding further, we may note that Assured Career Progression Scheme for Central Government civilian employees was notified by Government of India vide DOP&TOM dated 09th August, 1999 to redress genuine stagnation and hardship faced by employees due to lack of adequate promotional avenues. Under the Scheme, an official who does not earn promotion is entitled to two financial upgradations on completion of 12 years and 24 years of regular service. As per para 3.2 of said OM, regular service for the purpose of ACP has been defined as 'eligibility service counted for regular promotion in terms of relevant Recruitment/Service Rules'. Annexure-I appended to said OM, which deals with conditions for grant of benefits under ACP Scheme, required vide para-4 that: 'The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions'.
7. The issue to which we are precisely concerned is whether in the given circumstances, applicant's eligibility will reckon w.e.f. 23.01.1993, i.e., the date on which he was notionally regularized or the date on which he actually started functioning against regular post w.e.f. 23.11.2000. In our considered view, as noticed hereinabove, ACP Scheme provides regular service as the 'eligibility service' counted for regular promotions in terms of relevant Recruitment Rules. In our considered view, the question raised in present OA is no longer res integra, as the term 'qualifying service' has been interpreted by Hon'ble Supreme Court in 2000 (3) SCC 562 Union of India and Ors. v. K.B. Rajoria. In the said case, Respondent was wrongly superseded on 22-02-1995 for promotion as Additional Director General, which wrong was set right by an order dated 10-06-1998, granting him promotion retrospectively w.e.f. 22-02-1995. In January, 1999, 'K' was considered for further promotion as Director General. Recruitment Rules provided two years regular service as the eligibility condition for promotion to the post of Director General. Respondent therein did not fulfil this condition if two years' period was reckoned from the date of his actual promotion, i.e. 10-06-1998, but he fulfilled the condition if the period was reckoned from the date of his notional promotion i.e. 22-02-1995. Hon'ble Supreme Court, after noticing DOP&T OM dated 10.04.1989 on the subject of DPC, observed that Respondent was wrongly superseded on 22-02-1995. Notional promotion was given to him retrospectively from this date to set right this wrong. If respondent is denied his right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly when relevant provisions so provide, it would result in perpetuating the wrong done to him.
8. In our considered view, aforesaid law would be squarely attracted in the facts and circumstances of present case. If the eligibility for grant of first financial upgradation under ACP Scheme is counted w.e.f. 23-11-2000, instead of 23-01-1993, as noticed hereinabove, this would tantamount to perpetuating a wrong done to him which was set right later on, particularly in view of direction of this Tribunal. In the circumstances, we are of the considered view that 12 years of regular service has to be counted from 23-01-1993 instead of 23-11-2000 and, accordingly, applicant would have to be considered for grant of ACP on such basis w.e.f. 24-01-2005.
9. Thus, OA is allowed. Impugned communication dated 18-07-2006 is quashed and set aside. Respondents are directed to convene Screening Committee and consider applicant for grant of first financial upgradation and accordingly regulate the benefits so accrued. Aforesaid exercise shall be completed within a period of two months. No order as to costs.