Central Administrative Tribunal - Delhi
Shri J P Gupta vs Gnct Of Delhi on 29 July, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1846/2008 Wednesday, this the 29th day of July 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri J P Gupta (retired as ad hoc (DANICS) (VATO) r/o 50 Vivekanand Puri Sarai Rohilla, Delhi-7 Group C, Aged 61 years ..Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. GNCT of Delhi Through Chief Secretary Delhi Secretariat, New Delhi 2. Services Department (Services-I Branch) Through its Additional Secretary (Services) GNCT of Delhi Delhi Secretariat, New Delhi 3. Pay & Accounts Officer Principal Accounts Office GNCT of Delhi, A Block Vikas Bhawan, New Delhi 4. Department of Finance Through its Principal Secretary GNCT of Delhi, Delhi Secretariat New Delhi 5. Controller of Accounts Principal Accounts Office GNCT of Delhi A Block Vikas Bhawan, New Delhi 6. Lt. Governor of Delhi Raj Niwas, Shamnath Marg, Delhi ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R (ORAL)
Shri Shanker Raju:
Heard both the parties.
2. As ruled by the Apex Court in Mohd. Ahmed v. Nizam Sugar Factory & others, 2005 SCC (L&S) 62 that on wrongful denial of promotion, arrears are to be given. Moreover, the Apex Court in Gopi Chand Vishnoi v. State of U.P. & another, (2006) 9 SCC 694 ruled that in case of non-promotion on post-retirement, retrospective promotion with benefits is a fundamental right of a government servant, which has to be given to him.
3. In the above view of the matter, applicant, who retired on superannuation on 31.1.2008, has sought promotion on ad hoc basis on an ex cadre post in DANICS, which had been given to him from 30.1.2008 w.e.f. 11.9.2001 on the ground that at that time the applicant was not placed under suspension and was also facing a disciplinary proceeding.
4. Learned counsel for applicant would contend that as the sealed cover by virtue of DOPT of 1999 has applicability in ad hoc promotion as well, deeming the case of the applicant under sealed cover due to non-vigilance clearance, once his suspension has been revoked on 27.8.2005 and the disciplinary proceedings have been closed by the competent authority, promotion would go back to the principle laid down by the Apex Court in Union of India etc. etc. v. K.V. Jankiraman etc. etc., (1991) 4 SCC 109.
5. On the other hand, Shri Vijay Pandita, learned counsel for respondents would in vogue the principle of no work no pay and stated that as per DOPT OM of 14.9.1992 under clause 7, if before actual promotion one is placed under suspension, the promotion would not be given effect to and in the instant case due to non-vigilance clearance from 2001 to 2007 on exoneration of the applicant from the disciplinary proceedings initiated subsequently on a charge sheet of 14.10.2005, the promotion was given to him from 2008 before his retirement. However, on retrospective promotion, it is stated that the same would not apply in case of a retiree.
6. On a careful consideration of the rival contentions of the parties and perusal of records, we are of the considered view that as a model employer, the Government is not allowed to approbate and reprobate simultaneously. Having treated the case of the applicant as per clause 7 of DOPT OM of 14.9.1992, this is a case where deemed sealed cover has been assumed in the case of the applicant as a legal fiction but on his exoneration on 27.8.2005 the same has not been done and given effect to. As the applicant was exonerated in disciplinary proceedings and the suspension has been treated as spent on duty, the sealed cover should have been opened on the principle laid down in Janakiramans case (supra). Applicant has a fundamental right to be considered even for ad hoc promotion on equitable and lawful basis, which when denied to him is an illegality committed by the respondents.
7. Resultantly, this OA is allowed to the extent that now the respondents shall place the applicant on promotion on ad hoc w.e.f. 25.9.2001 on the date when he was relieved to join the ex cadre post in DANICS without applying the principle of no work no pay. Applicant shall also be entitled to all the difference of arrears of the pay w.e.f. 25.9.2001 till he was actually promoted on ad hoc basis on 30.1.2008. This shall be done within a period of three months from the date of receipt of a copy of this order. Respondents shall also examine in accordance with law and instructions as to re-fixation of his pension on account of his having promoted on ad hoc basis in 2001. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/