Central Administrative Tribunal - Delhi
Constable Dharam Pal vs The Govt. Of Nct Of Delhi on 26 August, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2133/2012 Order reserved on 31st July 2013 Order pronounced on 26th August, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Constable Dharam Pal s/o Mr. Jai Chand, age 46 years r/o E-16/1120, Tank Road Karol Bagh, New Delhi .. Applicant (By Advocate: Mr. Sachin Chauhan) Versus 1. The Govt. of NCT of Delhi Through Commissioner of Police Police Headquarters, IP Estate New Delhi 2. The Dy. Commissioner of Police (Estt.) Police Headquarters, IP Estate New Delhi 3. The Addl. Dy. Commissioner of Police (PCR) Through the Commissioner of Police Police Headquarters, IP Estate New Delhi 4. The Addl. Dy. Commissioner of Police (GA) Police Control Room Through the Commissioner of Police Police Headquarters, IP Estate New Delhi ..Respondents (By Advocate: Ms. Renu George O R D E R
Mr. A.K. Bhardwaj:
As can be gathered from the pleadings of the parties, the applicant, Constable (Driver) Dharam Pal No.6311/PCR was appointed in Delhi Police on 12.1.1988. He was granted benefits under Assured Career Progression (ACP) Scheme on 12.1.2000. He was thereafter considered for such upgradation by the duly constituted Departmental Promotion Committee (DPC) and was considered unfit. He was again considered for such benefit and was declared unfit in terms of the order dated 21.7.2003 on account of indifferent service record, i.e., three ACRs being satisfactory and his name being brought on the agreed list of doubtful integrity w.e.f. 14.10.1998 for a period of one year vide order No.7956-57/Vig./CA dated 5.3.1999 and secret list of doubtful integrity w.e.f. 31.1.2000 for a period of three years vide order No.7635-36/Vig./CA dated 15.3.2000, as he was arrested in case FIR No.54/94 under Sections 307/34 IPC at PS Prashad Nagar, Delhi. Subsequently his name was removed from agreed list w.e.f. 14.9.1998 (i.e. from the date of inception) vide order 5.3.1999 and also removed from secret list of doubtful integrity w.e.f. 31.1.2000 (i.e. from the date of inception) vide order dated 22.9.2003. His name was again considered for financial upgradation by the DPC, which declared him fit w.e.f. 27.3.2006.
2. Seeking the financial upgradation under the ACP Scheme from the due date, i.e., on completion of 12 years of service, the applicant approached this Tribunal by filing O.A.No.1016/2012, which was disposed of in terms of the order dated 28.3.2012 with a direction to the respondents to take a final view on the representation of the applicant while treating the O.A. itself as a supplementary representation, and pass a reasoned and speaking order within two months from the date of receipt of a copy of the order. In these circumstances, the respondents passed the impugned order dated 8.6.2012 canvassing that in implementation of the order of the Tribunal, the meeting of the Departmental Screening Committee under the Chairmanship of Additional Commissioner of Police/PCR, Delhi with Additional Deputy Commissioner of Police/PCR and Deputy Commissioner of Police/Communication, Delhi as members was held on 5.6.2012 to consider the service particulars of the applicant and on scrutiny of the service record, it could be noticed that (i) the applicant was censured vide order No.400-16/R-ACP/PCR, dated 1.9.1992, (ii) a departmental inquiry was initiated against him vide order No.3536-48/HAP/P&L dated 8.10.1997, (iii) he was involved and arrested on 24.2.1994 in case FIR No.54/94 under Sections 307/34 IPC at PS Parshad Nagar, Delhi and was placed under suspension w.e.f. 24.2.1994, (iv) the conduct of the applicant was censured vide order No.3383-97/HAP/P&L dated 14.19.1998, (v) his name remained in the agreed list of doubtful integrity w.e.f. 14.10.1998 to 14.10.1999 and in secret list of doubtful integrity w.e.f. 31.1.2000 for a period of three years; and (vi) he was involved in case FIR No.332/06 dated 24.9.2006 under Sections 325/324/341/34 IPC at PS Parshad Nagar in which case he was arrested on 10.1.2008 and was subsequently placed under suspension w.e.f. 10.1.2008, i.e., the date of his arrest.
3. Having mentioned the afore incidences in the impugned order, the Additional Deputy Commissioner of Police : GA, Police Control Room, Delhi finally viewed that the result of the DPC held on 5.6.2012 be kept in sealed cover as per the existing instructions for the grant of ACP Scheme and will be acted upon on the finalization of the criminal case/departmental inquiry/suspension period pending against the applicant.
4. Assailing the aforementioned orders, the applicant filed the present O.A., praying therein:-
(i) To set aside the impugned order at A-1 dated 8.6.12 whereby the claim of the applicant of granting benefit of ACP Scheme w.e.f. 12.1.2000 has been rejected and to further direct the respondents to grant the benefit of the First ACP scheme to the applicant w.e.f. 12.1.2000 with all consequential benefits including pay and allowances and arrears.
(ii) Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
5. Mr. Sachin Chauhan, learned counsel for applicant submitted that the first financial upgradation in terms of the ACP Scheme was due to the applicant on 12.1.2000, thus the respondents could not have taken into account the subsequent record to keep the outcome of the meeting of the DPC held on 5.6.2012 in abeyance. He also contended that the review DPC ought to have taken into account the record of the applicant only for the relevant period, i.e., upto 12.1.2000 and not beyond that. The memo dated 19.7.2011 relied upon by him to espouse the factual position reads as under:-
It is submitted that Const. (Dvr.) Dharam Pal, No.6311/PCR was enlisted in Delhi Police as Constable (Driver) on 12.1.988. As per record he was due for next higher promotional scale under ACP/Scheme w.e.f. 12.1.2000 on completion of 12 years of service. But his case was not found eligible fit for promotional scale under ACP/Scheme by PHQ vide order No.13479-505/P, Br. (PHQ) (ACP/Scheme), dated 17.5.2000 as he was not fulfill the required conditions due to his name exists on secret list of D.I. w.e.f. 31.1.2000 for a period of three years vide order No.105-06/P, Sec./DCP/P&L, dated 16.3.2000 and also his three annual confidential report were recorded as Satisfactory B, below bench mark. Thereafter, he was again not found fit for the ACP/Scheme and a order was issued in this regard vide No.9927-10037/CR-V/PCR dated 21.7.2003.
Const. (Dvr.) Dharam Pal, No.6311/PCR was transferred from this unit to P&L, w.e.f. 26.12.2003 vide PHQs order No.30391-412/P, Br. PHQ, dated 26.12.2003. Now he was again transferred from P&L unit to this unit vide PHQs order No.3370-3465/Estt-I, dated 25.2.2005. On removal of his name from secret list of D.I. w.e.f. 31.1.2000 i.e. the date of inception v/o No.8206-07/CA/Vig. dated 22.9.2003 the case of ACP/Scheme was considered by the screening committee and found fit/eligible from the date of D.P.C. i.e. 27.3.2006 v/o No.4260-84/CR-V/PCR, dated 27.3.2006.
Now the Const. (Dvr.) Dharam Pal, No.6311/PCR has submitted an application requesting therein for grant of ACP/Scheme from the due date of removal of his name from secret list of D.I. period i.e. 31.1.2000 (photocopies enclosed). However, at present his name exist on agreed list of D.I. w.e.f. 18.11.2008 v/o No.7843-44/Vig./CA, dated 1.12.2008 and facing a Crl. Case FIR No.332/06 u/s 325/324/341/34 IPC P.S. Prasad Nagar, Delhi.
In view of explained above, the office may kindly be opined/suggest as to whether he may be granted ACP/Scheme from the due date w.e.f. 12.1.2000 or from the date of DPC so a fresh order may please be issued.
6. In the counter reply filed on behalf of the respondents, the contents of the impugned order are reiterated. In paragraph 1 of the reply, under the head parawise reply, it has been stated that the applicant had been considered by the review DPC held on 5.6.2012 but the result of the same had been kept in sealed cover, as at present he is involved in Criminal Case FIR No.332/06 (dated 24.9.2006) under Sections 324/324/341/34 IPC registered at PS Parshad Nagar, Delhi and facing a departmental inquiry for his concealment in the above criminal case vide order No.16590-625/HAP/PCR dated 16.7.2011. For easy reference, the relevant excerpt of the reply is extracted hereinbelow:-
Para 1 (1 & 2) are not admitted. The case of ACP Scheme (12 yrs) of the applicant has been considered by the review DPC held on 5.6.2012 and the result of the same has been kept in sealed cover as at present he is involved in Crl. Case FIR No.332/06 (dated 24.9.2006) u/s 324/324/341/34 IPC PS Parshad Nagar Delhi and facing a departmental enquiry for his concealment in the above Crl. Case vide order No.16590-625/HAP/PCR, dated 16.7.2011 and his suspension period from 10.1.2008 to 14.9.2008 has yet not decided. Hence the order dated 8.6.2012 is not vague and flimsy.
7. The moot question arises to be determined before us is whether the review DPC, which considered the case of the applicant for financial upgradation in terms of the ACP Scheme, could have taken into account the events of the period subsequent to the date of his completing 12 years of service and could be kept in a sealed cover. In condition No.6 of the conditions for grant of benefits under the ACP Scheme (Annexure-I) issued by the DOPT vide G.I. Dept. of Per. & Trg., O.M.No.35034/1/97-Estt. (D), dated 9.8.1999, it is specified that the Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group D employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme.
8. In condition No.11 of the said Scheme, it has specifically been mentioned that In the matter of disciplinary/penalty proceedings, grant of benefits under the ACP Scheme shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of relevant CCS(CCA) Rules, 1965 and instructions thereunder. For easy reference, the condition Nos. 6 and 11 are extracted hereinbelow:-
6. Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group D employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme;
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11. In the matter of disciplinary/penalty proceedings, grant of benefits under the ACP Scheme shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of relevant CCS(CCA) Rules, 1965 and instructions thereunder
9. In view of the aforesaid condition Nos. 6 and 11, in the event of there being existence of any situation mentioned in paragraph 2 of the OM No.22011/4/91-Estt.A dated 14.9.1992 before grant of actual financial upgradation, the recommendation of the Screening Committee may be kept in sealed cover but in view of the judgment of the Honble Supreme Court in Union of India & others v. Sangram Keshari Nayak, JT 2007 (6) SC 272, if on the date of financial upgradation of the junior an employee is not found suffering from any of the aforementioned disabilities mentioned in paragraph 2 of the aforesaid OM, i.e., dated 14.9.1992, he may be given the financial upgradation. For easy reference, relevant excerpt of the aforesaid judgment of the Apex Court is extracted hereinbelow:-
5. On or about 27.08.1999, one Shri G.P. Srivastava who was immediate junior to the respondent was promoted to the post of Senior Administrative Grade but only on 24.09.1999, a departmental proceeding was initiated against the respondent by issuance of a chargesheet.
6. An original application filed by the respondent before the Calcutta Bench of the Central Administrative Tribunal, which was eventually transferred to the Cuttack Bench, praying for a direction to the appellants to promote him to the said post from the date when his junior was appointed, was allowed by a judgment and order dated 19.08.2003. A writ petition filed by the appellants thereagainst has been dismissed by the High Court, by reason of the impugned judgment.
7. The Tribunal as also the High Court proceeded to determine the issue on the basis that the term "Government Servant under cloud" would be the employees against whom a chargesheet has been issued, relying on or on the basis of paragraph 2 of the said circular, the relevant portion whereof reads as under:
"2. At the time of consideration of the case of Government Servants for empanelment, details of Government Servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government Servants under suspension;
(ii) Government Servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending;
(iii) Government Servants in respect of whom prosecution for a criminal charge is pending"
8. In arriving at its conclusion the High Court furthermore placed strong reliance upon a judgment of this Court in Union of India and Others v. K.V. Janakiraman and Others [(1991) 4 SCC 109.
9. Mr. R. Mohan, learned Additional Solicitor General appearing on behalf of the appellants would contend that the circular letter received wrong interpretation at the hands of the Tribunal and/ or the High Court inasmuch as upon a proper reading thereof it would appear that a complete procedure has been laid down therein providing for the mode and manner in which the cases of those officers against whom a charge is pending should be considered for promotion. Strong reliance in this behalf has been placed on Union of India and Another v. R.S. Sharma [(2000) 4 SCC 394], Delhi Development Authority v. H.C. Khurana [(1993) 3 SCC 196], and Union of India v. Kewal Kumar [(1993) 3 SCC 204].
10. Mr. S.K. Dholakia, learned senior counsel appearing on behalf of the respondent, on the other hand, would contend that paragraph 6 of the said circular must be read in the context of paragraph 2 thereof.
11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.
12. The terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law.
13. Whereas paragraph 6 of the said circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in paragraph 2 thereof arise after the recommendation of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter ala when one or the other conditions mentioned in paragraph 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a chargesheet had been issued or, in other words, a disciplinary proceeding was pending. Admittedly, a chargesheet was issued as against him only on 24.09.1999.
14. Thus, there was no bar in promoting the respondent during the period 14.01.1999 to 27.08.1999. No material was placed before the DPC to take recourse to the sealed cover procedure. In fact, none existed at the material time. Paragraph 2 of the said circular specifically refers to submission of chargesheet as the cut-off date when a departmental proceeding can be said to have been initiated. Even otherwise such a meaning had been given thereto by this Court in K.V. Janakiraman (supra) holding:
"16 The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure."
15. Reliance placed by Mr. Mohan on R.S. Sharma (supra), in our opinion, does not advance the appellant's case. In that case, cases where sealed cover procedure were applicable were contained in paragraph 2 of the office memorandum dated 12.01.1988 which reads as under:
"Cases where 'Sealed Cover Procedure' applicable.- At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) government servants under suspension;
(ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) government servants in respect of whom prosecution for a criminal charge is pending or a sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any agency, departmental or otherwise."
(Emphasis supplied)
16. Serious allegations of financial misdemeanours were made against the respondent therein. Central Bureau of Investigation took up investigation. He was suspended on 10.03.1988. Although the said order of suspension was revoked, investigation continued. The DPC considered his case for promotion on 3.04.1991 and resorted to sealed cover procedure. Only in the aforementioned situation, K.V. Janakiraman (supra) and other decisions following the same stood distinguished opining that paragraph 7 of the said office memorandum would be attracted, which is in the following terms:
"Sealed cover applicable to an officer coming under cloud before promotion .-A government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also."
It was held:
"One is that, what the Department did not do is not the yardstick indicated in para 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the government servant who is not "actually promoted" by that time. Second is that, the stand taken up by the Department is that in spite of deletion of clause ( iv ) of the second para, the recommendations of DPC must remain in the sealed cover on account of the conditions specified in clause ( iii ) of the said paragraph by virtue of the operation of para 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991."
17. Therein H.C. Khurana (supra) and Kewal Kumar (supra) were noticed.
18. In H.C. Khurana (supra), the question was as to what would be the meaning of the word 'issued' when a disciplinary proceeding had been initiated by framing the chargesheet and the same had been despatched. Paragraph 2 of the circular letter in question was similar to the case of R.S. Sharma (supra). It is in that context, what would be the meaning of the word 'issued' when the decision has been taken to initiate disciplinary proceeding came up for consideration. As the circular contained a provision of that nature which is absent in the present case, the said decision, in our opinion, also has no application in the instant case.
19. For the self-same reasons, the decision of this Court in Kewal Kumar (supra) is also not attracted.
20. This aspect of the matter has recently been considered in Coal India Ltd. & Ors. v. Saroj Kumar Mishra [(2007) 5 SCALE 724].
21. We, therefore, are of the opinion that there is no infirmity in the impugned judgments. Accordingly, the appeal is dismissed with costs. Counsel's fee assessed at Rs. 25,,000/-.
10. Nevertheless in the present case, it was not the original meeting of the Screening Committee (DPC) but was review DPC. The review DPC is held only when the conditions mentioned in paragraph 18.1 of the O.M.No.22011/5/91-Estt.(D) dated 27.3.1997 are satisfied. The said paragraph is extracted hereinbelow:
where eligible persons were omitted to be considered, or where ineligible persons were considered by mistake, or where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or where some procedural irregularity was committed by a DPC; or
(e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer.
11. In terms of paragraph 18.2 of the said instructions, the review DPC should consider only those persons who were eligible as on the date of meeting of original DPC. Persons who became eligible on a subsequent date should not be considered. Such cases may be considered by the subsequent regular DPC. Further, the review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC. The CRs written for subsequent periods should not be considered. If any adverse remarks relating to the relevant period were toned down or expunged, the modified CRs should be considered as if the original adverse remarks did not exist at all.
12. In terms of paragraph 18.3 of the said instructions, a review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently.
13. As has been provided in general instructions issued vide O.M.No.22011/2/99-Estt. (A) dated 21.11.2002, the sealed cover procedure as contained in the OM dated 14.9.1992 cannot be resorted to by the review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC. For easy reference, the general instructions, referred to above, are extracted hereinbelow:-
Sealed cover procedure not applicable to review DPC. - A question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these instructions are issued after consultation with the Comptroller and Auditor-General of India. Besides the review DPC need to take into account only such record, which was considered by the original DPC.
14. In the present case, the record reveals that the review DPC has taken into account the record of the applicant pertaining to the period subsequent to the date of original DPC. Apparently, the first DPC after completion of 12 years of service renderd by the applicant was held in May 2000. The review DPC could not have taken into account the record subsequent to the said period. However, it could take into account the pending proceedings and position as on the date of original DPC held in May 2000. In the absence of pendency of the cases in the currency year at the time of original DPC, the review DPC cannot resort to sealed cover procedure on the basis of the disciplinary / criminal cases registered/initiated subsequently.
15. Less said is better regarding the minutes of the meeting of the review DPC conducted by the respondents. The review DPC meeting need to re-assess the record of an employee relating to the period relevant at the time of original DPC and make its recommendation on the basis of such report. Only after making such recommendation, the DPC should decide whether to keep such recommendation in sealed cover or not. While doing so, it need to keep in view the provisions of aforementioned OM dated 21.11.2002.
16. In the circumstances, the O.A. is disposed of. Impugned order is quashed and the matter is remitted back to the respondents to act in accordance with relevant rules and instructions on the subject. Needful should be done within a period of three months from the date of receipt of a copy of this order. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/