Central Administrative Tribunal - Delhi
Viveka Nand Sharma vs Govt. Of India Press on 29 July, 2024
1
OA No. 3686/2017
Item No. 76 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3686/2017
This the 29th Day of July, 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Vivekanand Sharma, SREO / Adhoc DANICS
Aged 49 years, Mob. No. 9650382588
S/o Late Sh. C.M. Sharma
R/o A-72, Captain Gaur Mark,
East of Kailash,
New Delhi-65
....Applicant
(Applicant in person)
VERSUS
1. Chief Secretary, Govt. of NCT Delhi 5th Level, Delhi
Secretarial, I.P.Estate New Delhi-110 002
2. Director Employment Govt. of NCT of Delhi IARI
Complex, Pusa, New Delhi
Employment Exchange Building
3. Principal Secretary Services Department, Delhi
Secretariat I.P. Estate, New Delhi-110 002
4.Principal Secretary
Vigilance
Delhi Secretariat
New Delhi
.... RESPONDENTS
(By Advocate : Mr. Ritank Kumar with Mr. Raghav
Sharma and Mr. R.K. Sharma)
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OA No. 3686/2017
Item No. 76 (C-4)
ORDER (ORAL)
By Order : Hon'ble Mr. Manish Garg, Member (J) The applicant who appears in person seeks discharge of his counsel in the matter.
2. Permission is granted.
3. In the instant OA, the applicant seeks the following reliefs :
i) Set-aside the order F.NO. 9(5)2003/ACP/Services/Pt.File- III/821-823 dated 20.4.2017 with consequential benefits;
ii) direct the respondent to sanction 3rd MACP to the applicant w.e.f. 9.12.2010.
iii) direct the respondent to make payment of arrears of MACP within four weeks.
iv) Award of Rs.20,000/- cost of litigation expenditure.
v) or any other order or directions as deemed fit in the facts and circumstances of the case may be passed.
4. Learned counsel for the applicant highlighting the case would contend that OA No 100/2016 was preferred before this Tribunal which was disposed of by virtue of an order dated 02.02.2017. The said order, for ready reference, is reproduced as under :
Heard learned counsel for the applicant as well as learned counsel for the respondents. The applicant is an OBC candidate and had applied for the post of Astt. Teacher (Nursery) (Female) advertised by Delhi Subordinate Services Selection Board (DSSSB) in the year 2010 under post code 68/10 in the Municipal Corporation of Delhi. She also applied for same post of Astt. Teacher (Nursery) in the Directorate of Education, GNCT of Delhi in the year 2013 under post cost 03/13. The examination for both the posts was held on 31.08.2014 as a common examination.3 OA No. 3686/2017
Item No. 76 (C-4)
2. The applicant had received admit card for only post code i.e. 68/10 and not for post code 03/10. Admittedly, the applicant was not selected for post code 68/10 as cut off of marks for OBC candidates was more than 100.25 the marks obtained by the applicant. 3. The applicant did not receive the admit card for post code 03/13 and the reason for rejection was indicated by the respondents are "incomplete or illegible or incorrectly filled up application". He is aggrieved that his application has been rejected for post code 03/13 on such vague and non-specific reasons. Otherwise, since the cut-of-marks for OBC candidate was 99.75 for post code 03/13, he would have got the job.
4. The applicant thereafter made a representation before the DSSSB dated 21.08.2014 i.e. before the exam to be held on 31.08.2014, seeking that she be also issued an admit card for post code 03/13 under GNCT of Delhi.
5. Apparently, nothing happened after that the applicant felt that since the examination is common, perhaps, the result would be declared based on the common examination for both the posts.
6. Learned counsel for the respondents stated that the admit card is issued for each post separately. Application form of the applicant for post code 68/10 was found in order and, therefore, she was issued admit card for post code 68/10. But since the application of the applicant for post code 03/13 was found to be in the category "incomplete or illegible or incorrectly filled up application" it was rejected. It is the case of the respondents that once the applicant did not receive the admit card for post code 03/13, and according to the applicant there was no response to his representation dated 21.08.2014, the applicant should have approached Tribunal before the exam itself.
7. Learned counsel for the respondents also clarify that the admit card specifically mentioned post code 68/10. She also drew our attention to the eligibility criteria for post cost 68/10 which is as follows:-
"Essential Qualifications: i) Senior Secondary (10+2) or intermediate or its equivalent with 45 % marks from a recognized board. ii) Two year Diploma/Certificate course in Nursery Teacher Training or Bed (Nursery) from a recognized institution or its equivalent. Desirable : (i) Knowledge of Hindi (ii) Experience as a Nursery Teacher (as per NCTE regulation 2001).4 OA No. 3686/2017
Item No. 76 (C-4) Pay Scale: Rs 9300-34800+GP 4200 Group: B, Non Gazatted, Probation period: 02 years Age Limit: 32 years relaxable for SC 5 years, OBC 3 years, PH 10 years, PH&SC 15 years, PH&OBC 13 years, Departmental candidates/Govt. employees 05 years the age relaxation as admissible to such Govt. Servants as are working in posts which are in the same line or allied cadre and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised).
8. She also drew our attention eligibility criteria to post code 03/13 which is as under : -
"Essential Qualifications: i) Senior Secondary School (Class Twelve) certificate or intermediate OR its equivalent with at least 45 % marks from a recognized board/university. 2. Diploma /Certificate in Nursery Teacher Education Programme of a duration of not less than two years OR B. Ed (Nursery) from a recognized institution. Must have passed Hindi at secondary level.
Pay Scale: Rs 9300-34800/- +GP 4200 GP Age Limit: Not exceeding 30 years. (Age relaxation will be given as per note regarding age relaxation) The post is identified suitable for OH/VH persons only as per the requisition of the User Department. R.No. F.EE. 4(6)(254)/E-IV/2004/70 dt. 09/04/2012."
9. The learned counsel stated that while Hindi is compulsory for post code 03/13, it is only desirable for post code 68/10. Moreover, the age limit under post code 68/10 is 32 years whereas it is 30 years for 03/13. Therefore, it is her contention that it cannot be said that if the application form of the applicant is in order for post code 68/10, the same will be in order for 03/13 as well.
10. Briefly the facts are that DSSSB held a common exam for both post codes. The applicant appeared in the exam and obtained 100.25 marks. The applicant was issued admit card for post code 68/10. She was not issued admit card for post code 03/13 as there were certain defects in her application. 10. We have heard learned counsel for the parties and perused the various documents produced before us as well as pleadings on record. The applicant appeared in 5 OA No. 3686/2017 Item No. 76 (C-4) the examination on 31.08.2014 and obtained 100.25 marks, which is higher than the cut-of-marks of OBC candidate for post code 03/13 i.e. 99.75 marks. The ground for rejection is vague and does not state specifically what was wrong in the application form. The respondents have also taken no action apparently on the petition dated 21.08.2014 and the applicant denied the opportunity for consideration for post code 03/13. The test held by the respondents DSSSB is to judge the merit of the candidate. She has qualified in merit for post code 03/13. To reject his candidature on vague and non-specific grounds does not seem to be a fair procedure. However, we concede the argument of learned counsel for the respondents that the eligibility criteria for both the posts are not identical.
11. In view of this, we dispose of this OA by directing the respondents to consider the case of the applicant for appointment under post code 03/13, in case she is qualified as per the eligibility conditions as specified and quoted above for post code 03/13. If held eligible for appointment, the respondents shall issue appointment letter to the applicant for the post Astt. Teacher (Nursery) under Directorate of Education, GNCT of Delhi from the date her juniors were appointed and grant her notional benefit of seniority and pay fixation from that date. However, it is made clear that salary etc. will be payable from the date she joins. The order shall be complied within 90 days from the receipt of a certified copy of this order. There shall be no order as to costs.
5. Admittedly, the Screening Committee was set up pursuant to the order dated 20.04.2017 wherein the impugned order has been passed interalia highlighting as under :
And whereas, the Administrative Department vide letter dated 7.3.2017 (Received on 16.3.2017) forwarded fresh MACP proforma in respect of Sh. Vivekanand Sherma indicating that the officer was under suspension with effect from 15.9.2009 to 9.12.2010 and again from 2.12.2015 to 24.1.2016 along with copy of vigilance report issued by of Vigilance, GNCTD vide letter dated 3.9.2015.
And whereas, as per the ACR folders made available by ACR Cell, out of the relevant period i.e. 2005-06 to 2009-10, 6 OA No. 3686/2017 Item No. 76 (C-4) the ACRS/APARS for the period & 2009-10 were not available. In lieu of the ACRS for the period 2006-07 and 2009-10, the ACRS for the period 2003-04 and 2004-05 were placed before the Screening Committee for consideration.
6. The case of the applicant has been rejected solely on the premise that it has been highlighted in the impugned order that Sh. Vivekananda Sharma would be eligible for the grant of 3rd MACP as on 4.6.2010 i.e. on completion of 10 years stagnation in a single grade pay. However, the same has not been accorded to the applicant for want of vigilance clearance.
7. During the course of arguments, a specific query was put to the applicant in person as well as to the counsel for the respondents as to whether the applicant was facing any suspension w.e.f. 09.12.2010 till 02.12.2015 or was any departmental proceedings contemplated or pending against the applicant. However, to the said query, learned counsel for the respondents would contend that a charge sheet was issued on 17.07.2014.
8. It is not in dispute that the inquiry was held in favour of the applicant. The charges were not proved and disagreement note was issued. However, no final decision has been taken yet in the said charge sheet. 7 OA No. 3686/2017 Item No. 76 (C-4)
9. Opposing the grant of relief, learned counsel for the respondents would rely upon the averments contained in the counter affidavit. He relies upon preliminary objections, the relevant paras of which read as under :
1. That as per service particulars received from the Administrative Department i.e. Directorate of Employment vide letter Dated 15.09.2015, Sh. Vivekanand Sharma was initially appointed as Grade- II (DASS) w.e.f 06.09.1988. The Officer was promoted to the post of Grade-I (DASS) w.e.f. 04.06.1996 and was granted Non Functional Scale (NFS) on completion of four years of regular service as Grade-I (DASS) w.e.f 04.06.2000. A copy of letter dated 15.09.2015 is annexed hereto as ANNEXURE R-1.
2. That the MACP Scheme has been introduced by the DoPT, Govt. of India, vide OM No. 35034/3/2008-Estt. (D) Dated 19.05.2009 w.e.f 01.09.2008. As per Para 1 of the MACP scheme, there shall be three financial up-gradations under the MACP, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. The Financial up-gradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade- pay. The MACP scheme is annexed hereto and marked as ANNEXURE R-2.
3. As per Para 18 of said DoPT, GOI OM dated 19.05.2009 (Annexure R-2), it has been provided that in the matter of disciplinary/ penalty proceedings, grant of benefit under the MACPS shall be subject to rules governing normal promotion.
Such cases shall, therefore, be regulated under the provisions of the CCS (CCA) Rules, 1965 and instructions issued there under".
4. Further, DoPT, GOI vide O.M. No. F. 22034/4/2012-Estt (D), Dated 02.11.2012 issued guidelines that instructions issued vide O.M. No. 22012/1/99-Estt(D) dated 25.10.2004 based on the O.M. No. 22011/4/1991-Estt(A) dated 14.09.1992 (issued on the basis on procedure laid down by Hon'ble Supreme Court in K.V. Jankiraman case AIR 1991 SC 2010) makes it clear that vigilance clearance for promotion may be denied only in the following three circumstances and copy of same is annexed as ANNEXURE R-3:
8OA No. 3686/2017
Item No. 76 (C-4)
(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 criminal charge is pending.
5. Attention is being invited to Para 7 of DoPT OM issued vide no. 22011/4/91-Estt(A) Dated 14.09.1992, which is annexed as ANNEXURE R-4:
"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 the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the 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".
The above-said directions have been reiterated further at Para 7(e) of DOPT OM issued vide No. 22011/4/2007-Estt. (D) dated 28.04.2014, which is annexed as ANNEXURE R-5:
"Para 7 of DoPT OM dated 14.09.92 provides that a Government servant, who is recommended for promotion by the DPC, but in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the recommendations of the are received but before he/she is actually will be considered as if his/her case had been placed in a sealed cover by the DPC. He/she shall not be promoted until he/she is completely exonerated of the charges against him/her"
6. Para 7(g) of DoPT OM issued vide No. 22011/4/2007-Estt. (D) dated 28.04.2014 provides that:
"....However, where the DPC considers that despite the penalty the officer is suitable for promotion, the officer will be actually promoted only after the currency of the penalty is over [paragraph 13 of DoPT OM dated 10.4.1989 From the above, it is well settled that MACP benefits cannot be granted till the official concerned is clear from vigilance angle.9 OA No. 3686/2017
Item No. 76 (C-4) On the request of 3rd MACP benefits to the Applicant, it is submitted that Cabinet of GNCTD vide its Decision No. 2125 Dated 13.02.2014 established parity between DASS/Steno Cadres of Delhi Government and CSS/CSSS of Central Government. Accordingly, Govt. of NCT of Delhi with prior approval of Govt. of India, Ministry of Home Affairs and Ministry of Finance granted revised pay structure w.e.f. 01.01.2006 as mentioned in Column (5) and (6) of Part-B Section-II (1) of First Schedule of the Central Civil Services (Revised Pay) Rules, 2008 to Grade-I (DASS) vide order No. 56 Dated 03.02.2015. It was also clarified in Order Dated 03.02.2015 that consequent upon grant of NFS of Rs. 5400/- in PB-3, the Officer will continue to remain in Group-'B' (Gazetted).
18. That the Directorate of Vigilance, Govt. of NCT of Delhi vide letter Dated 30.01.2019 has provided the following Vigilance Status in respect of Sh. Vivekanand Sharma:
"He was charge-sheeted u/r 14 of CCS (CCA) Rules 1965 vide Memorandum Dated 17.04.2014 by Hon'ble Lt. Governor, Delhi. I.O./P.O. have been appointed, Inquiry Proceeding are under progress.
A case FIR No. 61/09 Dated 31.05.2009, u/s 409/420, P.S. Mayapuri was registered against the Officer in the matter.
Officer was charge-sheeted u/r 14 of CCS (CCA) Rules, 1965 vide memo dated 19.12.2014. I.O./P.O were appointed & Inquiry Report submitted by the I.A. Final order in the matter is yet to be issued. FIR 235/95 dated 29.05.1995, PS-Krishna Nagar registered in the matter".
10. Having heard the learned counsel for the parties and perusing the records, we find that in the present factual matrix of the case, there is no departmental proceedings pending or contemplated against the applicant as on 10.12.2010. Even the applicant was not under suspension. The impugned order has been passed without disputing the fact that the applicant was 10 OA No. 3686/2017 Item No. 76 (C-4) eligible as on 04.02.2010 after completion of 10 years of stagnation in single direct grade. It is also highlighted that a case FIR No. 61/2009 dated 31.05.2009 was filed u/s 409/420 at P.S. Maya Puri and the matter is pending trial in the court of law. In another FIR No. 235/95 dated 29.05.1995, lodged at PS-Krishna Nagar, a charge sheeted was served upon the applicant only on 19.12.2014 under Rule 14 of the CCS (CCA) Rules. In the said case, the departmental proceedings have also been concluded wherein the Hon'ble Lieutenant Governor has exonerated the applicant vide order dated 22.05.2019.
11. In view of the above, it is crystal clear that as on date i.e. 10.12.2010, no departmental proceedings or criminal proceedings were pending. The impugned order has been passed contrary to the directions as contained in the earlier round of litigation. Admittedly, it is a case of deferment of the "third financial upgradation". Therefore, the applicant is entitled for grant of third MACP w.e.f. 10.12.2010. We also observe that the FIR pending in criminal proceedings has no bearing to the facts of the present case having no nexus with 11 OA No. 3686/2017 Item No. 76 (C-4) performance of official duties which could be regarded as impediment.
12. In view of the same, the applicant is entitled for the relief. The OA is allowed. The impugned order dated 20.04.2017 is hereby liable to be quashed and set aside. The respondents are directed to grant third financial upgradation to the applicant along with all consequential benefits w.e.f. 09.12.2010 within a period of three months from the date of receipt of a certified copy of this order failing which the applicant shall be entitled to interest at the rate of 6% till the actual payment is paid.
13. With the above observations, the OA is allowed. Pending MA, if any, stands disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/nk/