Central Administrative Tribunal - Delhi
Rakesh Chankya vs The Director General Of Works on 11 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.3672/2009 New Delhi, this the 11th day of January, 2010 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Rakesh Chankya Junior Engineer (Civil), R/o 8/556, Lodhi Colony, New Delhi. Applicant By Advocate: Shri J.B. Mudgil. Versus 1. The Director General of Works, CPWD, Nirman Bhawan, New Delhi. 2. Deputy Director of Administration, CPWD, Nirman Bhawan, New Delhi. 3. Chief Engineer, CPWD, Ist Floor, MSO Bhawan, I.P. Estate, New Delhi. ..Respondents ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to grant him second financial upgradation under the Assured Career Progression (hereinafter referred to as ACP) Scheme with effect from the date applicant had completed 24 years in service, i.e., 5.11.2003 or to decide his representation dated 1.11.2009.
2. It is submitted by the applicant that he was appointed in the Junior Engineer cadre on 5.11.1979. He was charge-sheeted on 30.10.2001 whereupon penalty was imposed on the applicant vide order dated 3.5.2005 for reducing his salary by two stages from Rs.9100/- to Rs.8700/- with effect from 20.4.2005 for a period of 2 years up to 20.4.2007. However, in the order it was specifically mentioned that the order would not have any effect on future increments. Yet, respondents granted the benefit of 2nd Financial up-gradation under the ACP Scheme to the applicant in the pay scale of Rs.10,000-15200 with effect from 20.4.2007 vide order dated 18.2.2008, i.e., after the expiry of the penalty period though applicant had completed 24 years of service with effect from 5.11.2003. According to the applicant his benefit of ACP could not have been postponed on account of the penalty, as it amounts to second punishment for the same offence. Being aggrieved, he had given a representation but the same was rejected vide order dated 29.7.2008 without giving any reason. He, therefore, gave another representation on 1.11.2009 but the same has not been decided till date, therefore, he had no other option but to file the present OA.
3. We have heard counsel for the applicant.
4. Applicants whole argument is that he should have been granted the benefit of second financial upgradation immediately on completion of 24 years irrespective of the penalty because it amounts to double jeopardy. The contention is absolutely misconceived because benefit of ACP is granted under the Scheme which was introduced vide OM dated 9.8.1999, therefore, naturally the benefits would be given as per the terms and conditions mentioned in the aforesaid Scheme. The conditions for grant of benefit under the ACP Scheme specially deal with this situation in paras 4 and 11. Para 4 stipulates that if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc., this would have consequential effect on the second upgradation which would also get deferred accordingly. Similarly in para 11 it is specifically mentioned 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 there-under. It is thus clear that though benefit under the ACP Scheme is given by way of up-gradation in the scale for removing the stagnation, but the same process is to be followed as is done in the case of normal promotion.
5. As far as normal promotions are concerned, Government of India has already issued OM dated 14.9.1992. The Honble Supreme Court in the case of Union of India vs. K.V. Jankiraman etc., 1991 (4) SCC 109 has laid down the law that if on the date when the DPC meets for considering the person who has been served with a charge-sheet, his name has to be kept in the sealed cover which can be opened only if the person is ultimately totally exonerated. In case penalty is imposed on the person pursuant to the charge-sheet served on him, then the recommendations of the DPC are not to be given effect to and such a person can be considered only in the subsequent DPC after the penalty is over. In the instant case admittedly, applicant was given a penalty on 3.5.2005 for a period of 2 years, therefore, currency of penalty came to an end on 20.4.2007 and respondents have already given benefit of second financial upgradation with effect from 20.4.2007. We find no illegality in the orders passed by the respondents. Counsel for the applicant could not show us any instructions issued by the Government which state that financial upgradation should be given to a person under the ACP scheme in spite of his being given the penalty in a charge sheet.
6. We, therefore, find no merit in the OA. The same is accordingly dismissed at the admission stage itself. No order as to costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh