Central Administrative Tribunal - Delhi
Pawan Kumar Gupta vs M/O Communications on 12 September, 2023
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Item No. 57
Court-3 OA No. 476/2019
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 476/2019
This the 12th day of September, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Pawan Kumar Gupta, aged 55 years, „C‟
S/o late Sh. B.D. Gupta
Working as Postal Assistant
In Shahdara Post Office, Delhi-32
R/o Y107, Gali No. 8, Arvind Nagar
Gonda, Delhi-110053 ... Applicant
(By ADVOCATE: Sh. Yogesh Sharma)
VERSUS
1. Union of India through the Secretary
Ministry of Communication & IT, Govt. of India
Sanchar Bhawan, Ashoka Road, New Delhi
2. The Director Postal Services (O)
Office of the Chief Postmaster General
Department of Posts, Delhi Circle
New Delhi-110001
3. The Senior Superintendent of Post Offices
Delhi East Division, Delhi-51.
...Respondents
(By Advocate: Sh. J.P. Tiwari and Dr. Ch. Shamshuddin Khan)
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Item No. 57
Court-3 OA No. 476/2019
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) The applicant is aggrieved by denial of financial upgradation under MACP Scheme to him. He agitates his grievance in the present OA seeking the following relief:
"(i) That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 16.2.2018 and recommendation of the DPC (Annex. A/1), declaring to the effect that the same are illegal, against the rules and against the principle of natural justice and consequently, pass an order directing the respondents to consider and to grant the 2nd and 3rd financial upgradation to the applicant from due dates with all the consequential benefits including with arrears of difference of pay and allowances with interest.
(ii) any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
2. Briefly narrating the history and background of the case, learned counsel for the applicant informs that the limited ground on which the claim of the applicant has been rejected vide communication dated 16.02.2018 (Annexure A/1) is a pending FIR No. 483/06. He clarifies that even though the FIR was registered in the year 2006, it is only in the year 2009 that the chargesheet was issued by the investigating agency in the appropriate criminal court. The claim of the applicant for MACP is w.e.f. 01.09.2008 and on the said date neither any criminal proceeding nor any disciplinary 3 Item No. 57 Court-3 OA No. 476/2019 proceeding was pending against him. He clarifies that merely the fact of applicant‟s name figuring in the FIR cannot be a ground to deny the legitimate claim of financial upgradation in terms of the DoP&T instructions governing the subject. The relevant extract of the said DoP&T instructions reads as under:
"2. 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 a charge sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending.
For the purpose of pendency of prosecution for a criminal charge, the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 [Now Explanation 1(b)((i) under Rule 8 of CCS (Pension) Rules, 2021] is adopted. The Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 [Now Explanation 1(b)(i) under Rule 8 of CCS (Pension) Rules, 2021] provides as under:-
"(b) judicial proceedings shall be deemed to be instituted -
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made"
[Para 2 of OM No. 22011/4/91-Estt.(A) dated 14.09.1992; and Para 8 of OM No. 22034/4/2012-Estt.(D) dated 02.11.2012]"
3. He further goes on to elaborate that the instructions on the subject are unambiguous that in case of disciplinary 4 Item No. 57 Court-3 OA No. 476/2019 proceedings, chargesheet should have been issued and in the case of pending criminal proceedings, an appropriate criminal court should have taken cognizance of the charges against the person. In the instant case chargesheet was filed in the court in the year 2009 and framing of charges took place subsequent to that. Further, even the disciplinary proceedings against the applicant were initiated on 04.06.2009 i.e. much after the date of his entitlement for financial upgradation under MACP. Accordingly, the action of the respondents in denying the claim is in contravention to the statutory rules.
4. Sh. J.P. Tiwari, learned counsel for the respondents drawing strength from the averments made in the counter reply submits that not only DPC but also a review DPC was convened to consider the claim of the applicant for MACP and on both the occasions the DPC did not recommend his name on account of pendency of both criminal proceedings as also disciplinary proceedings. He argues that the status of the applicant on the date of meeting of the DPC would be important and on the said date, the applicant had been subjected both to criminal as well as disciplinary 5 Item No. 57 Court-3 OA No. 476/2019 proceedings. He draws attention to the specific averments made to this effect vide Paragraphs 3 and 4 of the counter reply which read as under:
"3. In view of the same, a review DPC was conducted on 13.10.2015 and the screening committee has not recommended the case of the applicant for grant of MACP due to pendency of criminal case against him. Now the official is claiming that the charge sheet has been filed after 22.8.2009 and he is eligible for financial upgradation under MACP w.e.f. 1.9.2008 and he should be granted MACPs with effect from due date.
4. It is clarified that an FIR No. 483 under sections IPC 420/468/471 was registered by Vivek Vihar Police Station o 18.11.2006 in a Monthly Income Scheme complaint case and thus criminal case is pending since 18.11.2006. Hence, criminal case was pending against the applicant as on due date i.e. 01.09.2008 and thus the applicant was not recommended for financial upgradation under MACPs."
5. We have heard the learned counsel for the parties; we have also gone through the pleadings on record. The facts of the case are not disputed. The applicant was named as an accused in FIR No. 483/06; the applicant was also subjected to disciplinary proceedings for major penalty under Rule 14 of the CCS (CCA) Rules, 1965 on 04.06.2009. While taking note of these two dates and the status of the applicant on these two dates, it is also not disputed that the applicant‟s entitlement for financial upgradation in terms of qualifying service was w.e.f. 01.09.2008. The limited issue before us is whether there was any impediment to consider his case on the said date.
6Item No. 57 Court-3 OA No. 476/2019
6. We have gone through the minutes of the DPC also; they merely state that the case of the applicant is not recommended due to a court case which is under trial in connection with FIR No. 483/06. The crucial word used here is „under trial‟. While the DPC is correct in observing that on the date of DPC, the case was under trial but on the other hand is the fact that on the date of eligibility of the applicant, chargesheet had yet to be filed. Further, disciplinary proceedings against him were initiated on 04.06.2009. Therefore, on the date of his eligibility on attaining the qualifying service for financial upgradation under MACP, there was neither a criminal proceeding pending nor any disciplinary proceedings initiated against him.
7. When we say that no criminal proceedings were pending against him, we clarify that the applicant‟s name merely figured in FIR but criminal proceedings, in terms of the instructions for consideration for promotion, were not in place. The DoP&T instructions quoted in one of the preceding paragraphs make it abundantly clear. Moreover, we find that the impugned communication dated 16.02.2018 vide which the applicant‟s claim has been rejected is a very 7 Item No. 57 Court-3 OA No. 476/2019 terse and cryptic communication and does not adduce any detailed reason except a passing reference of a court case. Learned counsel for the respondents has also drawn support from a judgment of Hon‟ble High Court of Delhi in WP(C) No. 2512/2012 titled Uttam Singh vs. MCD & ors. to argue that the applicant is not entitled to the claim he is seeking. We have gone through the said judgment and we find that the subject of the judgment is Limited Departmental Competitive Examination and not the procedure to determine a person‟s claim for financial upgradation. Hence, that judgment would not come to the support of the respondents‟ arguments.
8. In terms of what has been detailed and discussed above, specifically the instructions of DoP&T governing the subject, we cannot sustain the action of the respondents. Accordingly, the impugned communication dated 16.02.2018 is quashed and set aside. The respondents are directed to consider the claim and entitlement of the applicant for grant of financial upgradation under MACP afresh against the background of instructions governing the subject quoted in this order, by way of convening a review meeting of the Departmental Promotion Committee/Departmental Screening 8 Item No. 57 Court-3 OA No. 476/2019 Committee. Needless to say that depending upon the outcome of such a review, necessary consequential benefit, if they accrue, shall also be extended. These directions shall be complied with within a period of twelve weeks from the date of receipt of a certified copy of this order.
9. In the facts and circumstances of the case, there shall be no order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (J) Member (A)
/NS/