Central Administrative Tribunal - Ahmedabad
Mihirbhai V Mehta vs All India Radio on 10 September, 2020
(CAT/AHMEDABAD BENCH/OA/28/2018) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH, AHMEDABAD
Original Application No.28 of 2018
This the 10th day of September, 2020
CORAM :
HON'BLE SHRI JAYESH V BHAIRAVIA, MEMBER (J)
HONBLE DR A K DUBEY, MEMBER (A)
Shri Mihirbhai,
Son of Shri Vinayakrao Mehta, Age 56 uyears,
Working as PEX in the office of the respondents,
Residing at - M 14/159, Vidyanagar Flats,
132 Feet Ring Road, B/H Himmatlal Park II,
Ahmedabad - 380 015. ... Applicant
Shri M S Trivedi
V/s
1 Union of India through
The Director General,
O/O. DG, All India Radio,
Akashwani Bhavan,
Parliament Street, New Delhi - 110 001.
2 The Additional Director General (I&B),
Ministry of Information and Broadcasting,
O/o. The Additional Director General (I&B),
All India Radio Broadcasting House,
Backbay Reclamation,
Churchgate, Mumbai - 400 020.
3 The Assistant Director (Programme),
O/o. Assistant Director,All India Radio, Bhuj,
Kachchh - 370 001. ... Respondents
By Advocate Shri H D Shukla
ORDER (ORAL)
Per Dr A K Dubey, Member (A) 1 In the present OA the applicant seeks to get the impugned order No.1/28/2013/SVII/424 dated 31.10.2013 (Annexure A/1) set aside. Vide the impugned order the applicant was informed that his case could not be (CAT/AHMEDABAD BENCH/OA/28/2018) 2 considered for grant of second financial upgradation under MACP for want of vigilance clearance; his eligibility would be examined after vigilance clearance was obtained for which the respondents had requested the vigilance section to finalise the pending enquiry proceedings as soon as possible. The applicant requests to quash this order on the ground of denial of legitimate benefits of 1st ACP/2nd MACP to him. The applicant had earlier filed OA 202/2013 before this Tribunal which vide its order dated 25.06.2013 had directed the respondents to consider the applicant's representation before it and communicate to the applicant the decision with a reasoned order within eight weeks. Accordingly, the respondents considered the matter and passed a speaking order dated 30.10.2020 (Annexure A/1). Thus, the respondents have complied with the order i.e. have considered the matter and rejected the request for grant of second MACP for want of vigilance clearance. Respondents have also mentioned in the impugned order that the applicant's case of grant of second financial upgradation may be considered as soon as vigilance clearance is obtained. With a view to strengthen the basis of the request, the applicant has quoted a decision of this Tribunal in a similar matter where another applicant had approached this Tribunal in OA No.07/2014 requesting for grant of MACP. This Tribunal, vide its order dated 30.06.2017 in that OA directed the respondents to consider the request of the applicant. The relevant para of that order reads as under:-
"21 By applying the above proposition of the Hon'ble Supreme Court, we cannot sustain the validity of the impugned order for the reasons assigned by the respondents in their reply, since the same is contrary to the principles laid down by the Hon'ble Supreme Court in K V Janakiraman (supra). Therefore, we reiterate that the impugned order deserves to be quashed and is, accordingly, quashed. The respondents are directed to (CAT/AHMEDABAD BENCH/OA/28/2018) 3 consider the case of the applicant for grant of first financial upgradation strictly in terms of the provisions contained in the O.M. dated 09.08.1999 which provides for grant of financial upgradation under the ACP Scheme.
In the process, if found that the applicant is entitled for the first financial upgradation, the same shall be granted and the arrears thereon shall be paid along with interest at the rate applicable to GPF. If not, a reasoned and speaking order shall be passed stating the grounds on which she is not entitled for the financial upgradation under ACP. The exercise shall be completed as soon as possible but not later than three months from the date of receipt of this order."
2 We observe that the OM No.35034/1/1997-Estt(D) dated 09.08.1999 of DOPT cited in this Tribunal's order quoted above has not been placed on record here.
3 On the basis of the order of this Tribunal dated 30.06.2017 in OA 07/2014, the applicant seeks parity and action. Applicant has also filed MA No.18/2018 for condonation of delay of three years. He has preferred another MA No.219/2018 to place on record the Respondents communication No.BHJ:1(8)2013-S dated 10.07.2013 in which his Head of Office, Bhuj had forwarded his request for grant of MACP financial upgradation in view of order of CAT, Ahmedabad Bench (Annexure A1 to MA) and communication no.10/02/2018/S-VII/180 dated 19.03.2018 (Annexure A2 to MA) which is a communication from DG, AIR to AIR Station/Doordarshan Kendras concerned asking for information in the prescribed proforma and CR dossiers for the purpose of ACP/MACP to TREX and PEX(In-Situ)/PEX (Ad hoc).
4 Respondents have filed their reply where they have submitted that the Programme Staff Association of AIR and Doordarshan and others had filed OA 2293/2001 before Hon'ble Principal Bench of CAT for grant of ACP to Programme Executives. Vide its order dated 05.12.2002 Hon'ble Principal Bench of CAT allowed the petition in favour of the petitioners. (CAT/AHMEDABAD BENCH/OA/28/2018) 4 Against this a Writ Petition was filed in the Hon'ble High Court of Delhi by the Department. The Hon'ble High Court vide its order dated 13.07.2017 disposed the Writ Petition with a direction to release the payments due and payable towards grant of ACPs. The relevant portion of the judgment is quoted below:-
"On an undertaking given by the petitioners that they shall abide by the timeline noted above for release of the payments due and payable to the respondents towards grant of ACP in terms of the impugned judgment the present petition is disposed of. File be consigned to record room."
5 By way of compliance with this judgment the department decided that the financial upgradation under ACP would be granted as per the guidelines of DOPT envisaged in OM No.35034/1/1997-Estt.(D) dated 09.08.1999, to all the members of Programme Staff Association of AIR and Doordarshan which included Programme Executives and Transmission Executives who were serving during the period from 09.08.1999 to 31.08.2008. The Department accordingly constituted a Screening Committee wherein the name of the applicant who was a Programme Executive (adhoc) was also included for consideration for grant of ACP. As part of the screening procedure, ACR dossiers, vigilance clearance, AIPR & Major/Minor penalty statement of all the PEXs (Ad hoc & in situ) and TREXs from AIR stations were called for. Meanwhile, order dated 26.06.2018 was passed by Hon'ble Principal Bench, CAT in MA No.100/2681/2018 in OA No.100/3046/2015 filed by Programme Staff Association of AIR & Doordarshan v/s Union of India which reads as follows:-
"List the MA along with the main OA on 18.09.2018. In the meanwhile, the respondents shall maintain status quo in respect of fixation off pay as well (CAT/AHMEDABAD BENCH/OA/28/2018) 5 as recovery." The matter came for hearing in CAT, PB, New Delhi on 18.09.2018 and further listed for hearing on 08.07.2019."
Consequent to the above order Respondent's contention is that the status quo has to be maintained which will cover the applicant also. 6 Apart from the issues discussed in the foregoing paragraphs, the respondents have also submitted in their reply that the applicant was issued with two separate charge sheets of two separate CBI cases. First one is a Charge Sheet vide memorandum No.7/64/2007-Vig. dated 11.09.2009 and the second one is a Charge Sheet vide Memorandum No.6/8/2009-Vig. dated 22.10.2012. Both were for major penalty proceedings. The applicant was under suspension w.e.f. 26.12.2007 to 03.09.2011. Respondents have submitted in their reply that in both these disciplinary proceedings, Inquiry Officer has been appointed but the applicant was not co-operating and had been resorting to filing Court cases and making representations. Respondents have placed on record their communication No.310/173/97-B(D) dated 25.02.1999 (Annexure R/1) about upgradation of pay scales in Prasar Bharati, Letter to the CEO Prasar Bharati from the Ministry of Information and Broadcasting No.503/05/2014-BA(E) dated 31.01.2018 regarding clarification on admissibility of MACP to TREX (Annexure R/2) and copy of official note sheet discussing the matter of the applicant (Annexure R/3). 7 The counsel for the applicant has filed an affidavit in rejoinder on behalf of the applicant reiterating that his request for grant of first and the second financial upgradation under ACP & MACP respectively is legitimate and therefore it should be given to him.
(CAT/AHMEDABAD BENCH/OA/28/2018) 68 Heard Shri M S Trivedi, learned counsel for the applicant and Shri H D Shukla, learned counsel for respondents. Apart from the foregoing discussions and submissions by the respective counsel, the counsel for the respondents maintained that due to lack of vigilance clearance it was not possible for the respondents to consider the request. 9 We have carefully gone through the records presented before us. Under the ACP Scheme, the eligibility of the applicant for his first financial upgradation in the year 2001 is not in dispute. It appears from the record that when his matter was ripe for processing as stipulated in the ACP scheme, at that point of time, vigilance issue was not there. At the time when the applicant was eligible for the second financial upgradation, he was placed under suspension. The impugned order at Annexure A/1 mentions that this Tribunal vide its order dated 25.06.2013 directed the respondents that if the applicant's representation had not been considered or disposed of, the same should be done by passing a reasoned order within eight weeks. Accordingly, respondents considered the second MACP but declined it for want of vigilance clearance. This order is dated 31.10.2013(Annexure A/1). This order is specifically about second financial upgradation under MACPs. Of course, the issue of vigilance clearance was there at that time as the applicant indeed had CBI cases against him and had been under suspension from 26.12.2007 to 03.09.2011. 10 A careful perusal of the documents, orders and papers presented before us prompts us to perceive a dichotomy between the first financial upgradation under ACP and the second financial upgradation. The (CAT/AHMEDABAD BENCH/OA/28/2018) 7 impugned order is about the second financial upgradation. (Of course, the applicant's prayer includes the issue of first financial upgradation also.) Since the applicant was under enquiry and disciplinary proceedings during the time of second MACP, it is obvious that his candidature could not have been taken as a straight case at that moment even as the apex court's judgment in K V Janakiraman's case is available for guidance. We are of the opinion that not granting him the first ACP even when at the relevant time there were no issues with regard to the applicant's candidature prima facie appears to be an infirm and assailable decision on part of the respondents. In this context, we yet again refer to this Tribunal's observation and direction in para 21 of its order dated 30.06.2017 which has been quoted in the first para above.
11 Taking all these into account, we direct the respondents to consider the applicant's case for the first ACP on the ground that at the relevant time, he did not have any case against him; Similarly the second financial upgradation may also be considered again under DOPT instructions on keeping the criminal proceedings against the applicant in view. We are therefore inclined to dispose of this OA with a direction to the respondents to consider the representation of the applicant keeping the following facts in view:-
(a) At the time of eligibility for the first financial upgradation under ACP scheme, there was no complaint or vigilance issue against the applicant.
(b) The records show that there were CBI cases against the applicant when he became eligible for the second MACP. He was also under suspension for about four years around that time. Therefore his eligibility for second MACP can be (CAT/AHMEDABAD BENCH/OA/28/2018) 8 considered in terms of the extant DOPT instructions on dealing with such issues.
(c) If however, it is not possible to consider the request for the second financial upgradation for whatsoever reason the extant provisions/instructions under which it was not possible to consider, together with reasons may be recorded in writing.
We are aware that Hon'ble Principal Bench of CAT has, in the interim, ordered to maintain status quo in OA 3046/2015 dated 26.06.2018. Therefore after considering the representation of the applicant, they may complete the processing and procedure for the 1st ACP and the 2nd MACP and keep it in readiness in actionable form so that once the order of Hon'ble Principal Bench comes out, it should be possible to conclude the processing and issue necessary order in light of Hon'ble Principal Bench order. This exercise may be completed within six weeks from the date of receipt of copy of this order.
9 With the above directions, the OA stands disposed of. No costs.
(Dr A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
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