Central Administrative Tribunal - Delhi
Shri Shiv Kumar Kaushik vs Govt. Of Nct Of Delhi & Ors. Through on 14 February, 2013
Central Administrative Tribunal Principal Bench OA No.3983/2011 New Delhi, this the 14th day of February, 2013 Honble Mr. G. George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Shri Shiv Kumar Kaushik S/o Shri B.N. Sharma R/o 3/54, Sector-2, Rajinder Nagar, Sahibabad, Ghaziabad, U.P. .Applicant (Through Shri M.K. Bhardwaj, Advocate) Versus Govt. of NCT of Delhi & ors. Through
1. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat, I.P. Estate, New Delhi
2. The Secretary (Education) Govt. of NCT of Delhi Delhi Secretariat, I.P. Estate, New Delhi
3. The Director Directorate of Education Govt. of NCT of Delhi Old Secretariat, New Delhi
4. Regional Director of Education (East) Rani Garden School Building, Geeta Colony, Delhi
5. The Deputy Director of Education Distt. North East, B-Block, Yamuna Vihar, Delhi .Respondents (Through Shri Vijay Pandita, Advocate) Order Mrs. Manjulika Gautam, Member (A) The present OA has been filed by the applicant seeking the following reliefs:
(a) To quash and set aside the order dated 22.09.2011 and direct the respondents to grant the 2nd Financial up gradation to the applicant in grade pay of Rs.7500-12500/- under ACP w.e.f. May 2008 with all consequential benefits including arrears of pay with 18% interest.
(b) To direct the respondents to grant senior scale to the applicant from 1996 with all arrears.
) To allow the OA with exemplary cost.
2. The applicant was appointed as TGT (Sanskrit) in the year 1984. He was due for grant of senior scale in the year 1996 but it was not given to him whereas his juniors were given the senior scale. Being aggrieved, he filed OA 218/2003 and the same was allowed in favour of the applicant vide order dated 15.12.2003. The applicant then moved a Contempt Petition No.79/2005 and after issue of notice, the respondents passed order dated 12.09.2005 for releasing the arrears on account of grant of revised scales. Vide orders dated 14.02.2006, the respondents released the arrears of fixation and granted first financial upgradation under the ACP Scheme. Again the respondents did not release arrears of first financial upgradation under ACP in favour of the applicant. The applicant filed OA 669/2011 and after receipt of notice in the said OA, the respondents issued impugned order dated 22.09.2011. In the above mentioned order, the applicant was not found suitable for grant of MACP-II on the basis of work and conduct report issued by HOS which did not find his work satisfactory and the integrity certificate issued by the HOS which was doubtful. In view of this development, the applicant withdrew OA 669/2011 and filed the present one.
3. In the counter affidavit filed by the respondents, it has been stated that the applicant joined as TGT (Sanskrit) with effect from 8.03.1988 in pursuance of a Court order although he belonged to the panel of 1984. According to the respondents, the applicant was not due for grant of senior scale with effect from 1996 as he was granted first ACP benefit after completion of twelve years of service with effect from 8.03.2000. As per the respondents, the applicants claim for second MACP with effect from 1.09.2008 cannot be granted as he had neither completed 24 years of regular service and nor was MACP Scheme in operation before 2008. It is also stated by the respondents that the case of the applicant for second MACP was considered by the competent authority and on the recommendations of the Screening Committee which met on 30.06.2011, his case was rejected on the basis of work and conduct not being found satisfactory and his integrity being doubtful. The same was conveyed to him vide order dated 22.09.2011. It is the contention of the respondents that the relief of grant of senior scale being sought by the applicant is time barred as he has claimed it from 1996. In support of this, they have cited the case of State of Punjab vs. Gurdev Singh, (1991) 4 SCC 1, UOI vs. Ratan Chandra Samanta, JT 1993 (3) SC 418 and many others. Thus it is the contention of the respondents that since the applicant physically joined on 8.03.1988, twelve years of regular service was completed on 8.03.2000 and vide orders dated 14.02.2006, he was granted first ACP with effect from 8.03.2000. His claim for senior scale from 1996 is not only time barred but also not maintainable as he had not completed regular service of twelve years upto 1996. As per rules, the applicant was granted first financial upgradation under the ACP Scheme with effect from 8.03.2000. The applicant completed 24 years of regular service on 8.03.2012. The respondents have stated that MACP Scheme was introduced with effect from 1.09.2008 where under three financial upgradations are mandated after completion of 10, 20 and 30 years of regular service in the government. Hence the case of second MACP with regard to the applicant was put up before the Screening Committee but he was not found suitable vide orders dated 22.09.2011. It has also been stated by the respondents that OA 699/2011 filed by the applicant challenging the charge sheet issued to him on 7.10.2010 has been disposed of by the Tribunal upholding the charge and directing the applicant to extend his cooperation so that the proceedings are completed within three months.
4. In the rejoinder filed by the applicant, he has stated that his case for grant of second financial upgradation under MACP Scheme was considered by the DPC and he was found fit for it in December 2009 but thereafter the concerned Principal tampered with the original record and incorporated one more line stating not grant MACP due to W&C. Copy of the relevant noting is annexed at Annexure RJ-1. The applicant has also noted that his services are required to be counted from 2.05.1984 and not from 8.03.1988 as he has been granted seniority along with his batchmates from the year 1984. He has also stated that all similarly placed persons were given pay fixation from 1984 in spite of their joining from March 1988 whereas he has been denied the same benefit. According to the applicant, as per the orders of the Honble Supreme Court dated 4.08.1989 in CA No.1900/1987, the respondents were directed to give seniority and joining to the applicants as per their rank and over and above the persons appointed between the years 1984 and 1988 and the respondents were bound to count the service of the applicant from 1984. The applicant had completed 12 years of service in 1996 and was eligible for grant of senior scale. He was granted first financial upgradation in the year 2000 but since he had completed 24 years of service in May 2008 itself, he was eligible for grant of second financial upgradation under ACP Scheme dated 9.08.1999 and not MACP Scheme and, therefore, the impugned orders dated 22.09.2011 are illegal.
5. We have heard both the counsel and perused the record on file.
6. While perusing the rejoinder filed by the applicant, we had occasion to glance at page 10 of the rejoinder and page 86 of the paper book and we noted that some interpolation has been made on the note sheet. The case of the applicant has been forwarded for necessary approval for grant of second MACP stating that ACRs for preceding five years, vigilance clearance, certificate regarding EOL/break in service, no penalty, integrity, work and conduct report etc. have been submitted and there is no adverse entry in the above said documents. At the end of the page, it has been written that file has been scrutinized and found fit for IInd MACP and further that the file is being submitted for approval and further necessary action. But strangely between the first noting and the second noting, the following has been interpolated:
Not grant MACP due to W&C. and later on re-examine the case.
7. It was strange indeed to note that after all formalities had been complete and certificates had been found satisfactory, there is reference to not grant MACP on the ground of work and conduct certificate and also for reexamining the case. In the interest of justice, we thought it necessary to summon the original records to ascertain the correct facts. The records have accordingly been produced before us. It is seen that the case of the applicant for grant of second MACP was recommended by the office on 5.01.2010 and was submitted for approval and further necessary action on 16.02.2010. Two interpolations quoted earlier regarding not granting MACP on the ground of work and conduct not being satisfactory, have been recorded in a different handwriting and without any date. The noting at page N/2 states that the file has been reexamined and found that work and conduct report of teacher given by H.O.S. is not satisfactory. There is no mention here of reasons for unsatisfactory report. It is again noted on 24.02.2010 that The work & conduct report in r/o Sh. S.K. Kaushik T.G.T. (Skt) is not satisfactory and his integrity is also doubtful and there is no change in this regard. So, the file is resubmitted for necessary action. There is direction asking HOS to give comments on work and conduct report and on integrity. On 30.03.2011, the following noting is made:
The HOS of GBSSS Gokul Pur Village was asked to comment on work and conduct Report and on integrity certificate. The HOS placed w/c and i/c in the covered envelope. This envelope was opened by the DPC on 18.05.2011. The DPC also asked for ACR grading for the year 2009-10 and the file was again put up before the Screening Committee on 30.06.2011. The minutes of the DPC held on 30.06.2011 read as follows:
A meeting of Screening Committee for deciding MACP cases of the officials of District North East was held in the chamber of RDE (East) on 30/6/2011 and the instant case of Sh. Shiv Kumar Kaushik TGT (Sanskrit) of GBSSS Gokal Pur Village Delhi was placed before the committee members. The members scrutinized the following records which were essential for awarding MACP-II:-
No Penalty Certificate against the employees.
Work and Conduct Report.
Integrity Certificate of Employee.
Denial of vacancy based promotion.
A certificate of continuity in service.
Vigilance Clearance of District Level.
Other details as per prescribed form duly verified from the record available in the file provided by HOS/Principal.
ACR of last 5 years preceding the granting of MACP-II i.e. 01/9/2008.
On perusal of records, it was found that since the Work and Conduct Report and Integrity Certificate issued by the HOS were adverse, hence the District authorities did not forward his case along with other cases of grant of MACP in April 2010.
The case was reportedly scrutinized by District Authority and Work and Conduct Report and Integrity Certificate contained in sealed cover was forwarded to the screening committee in the meeting held on 18/5/2011. The sealed envelope was opened on the same day. The members of the Screening Committee on 18/5/2011 opined that ACR in r/o Sh. Shiv Kumar Kaushik TGT (Sanskrit) for the year 2009-10 may also be obtained.
On scrutiny of ACR for the year 2009-10 today on 30/6/2011 Work and Conduct Report and Integrity Certificate, it has been found that though the ACR of the official under consideration for the year 2009-10 is graded as good yet Work and Conduct is not satisfactory and integrity is doubtful as issued by the HOS. Keeping in view of the above facts the Screening Committee does not find the case suitable for grant of MACP-II to the said official.
Sd/- Sd/- Sd/-
R.N. SHARMA R.P. YADAV NEELAM VERMA DDE (N/E) DDE (North) RDE (East) Member Member Chairperson The ACRs for the year 2008-09 and 2009-10 as well as work and conduct report and integrity certificate of Principal, GBSSS Gokul Pur Village are available on record.
8. It is thus seen that the work certificate and integrity certificate of the applicant were in order in the year 2010 but subsequently on the basis of some interpolation made on file, the letter dated 29.03.2011 was issued to the Principal, GBSSS, Gopal Pur village to issue fresh work and conduct report and integrity certificate. Both these reports are dated 30.03.2011.
9. On the basis of above records, we are forced to come to the conclusion that in the year 2010 when the case of the applicant was examined, the records were all in order and his case was recommended but subsequently the matter was reexamined and fresh reports were sought for by the HOS. They were put in an envelope and placed before the DPC on 30.06.2011. On the basis of these fresh reports, the applicant has been denied grant of second MACP. We are inclined to agree with the contention of the respondents that for purposes of ACP, service was to be counted from 1988 when the applicant physically joined and not from 1984, the year from which he was given seniority. However, we suspect some foul play in the matter of grant of second MACP to the applicant.
10. We, therefore, direct the respondents to get an inquiry done by a senior officer into the entire matter so that it could clearly come out as to how in the year 2010 when the applicants work and conduct certificate and integrity certificate was in order, but in 2011 at the time of holding DPC, the certificates were modified and made inimical. We direct the respondents to hold inquiry within one month from the receipt of a copy of this order and if it is found that justice has not been meted out to the applicant and it is a case of foul play, his case for grant of MACP may be considered again by convening a review DPC, which may take a decision in the matter. With these directions, the OA is disposed of. No costs.
( Manjulika Gautam ) ( G. George Paracken ) Member (A) Member (J) /dkm/