Allahabad High Court
Janardan Lal vs U.P State Public Services Tribunal ... on 22 March, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Case :- SERVICE BENCH No. - 23156 of 2016 Petitioner :- Janardan Lal Respondent :- U.P State Public Services Tribunal Indira Bhawan Lucknow and two others. Counsel for Petitioner :- Rakesh Kumar Nigam Counsel for Respondent :- C.S.C Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. This Writ Petition was dismissed for the want of prosecution vide order dated 11.12.2017. Thereafter, on the Recall Application No.1946 of 2018 filed by the Petitioner, order dated 11.12.2017 was recalled vide order dated 06.02.2018 and this writ petition was heard on merits.
2. Heard Mr. Rakesh Kumar Nigam, learned Counsel for the petitioner and learned Standing Counsel.
3. This Writ Petition has been instituted on behalf of the Petitioner assailing order dated 05.05.2016 passed by U.P. State Public Services Tribunals (hereinafter referred to as "Tribunal") in Claim Petition No. 1918 of 2014: Janardan Lal Vs. State of U.P., whereby his claim regarding grant of 2nd Assured Career Progression (hereinafter referred to as "A.C.P.") has been dismissed vide impugned judgment dated 05.05.2016.
4. It is pleaded in the grounds of Writ Petition that the petitioner after direct appointment joined on the post of Assistant Glass Technologist under the Directorate of Industries, Uttar Pradesh of 22.02.1992 and was granted selection grade vide order dated 18.10.2001 w.e.f. 22.02.2000 on completion of 08 of years service. He was promoted to the post of Deputy Director, General Manager vide order dated 11.10.2000.
5. It is mentioned by the Petitioner that State Government of U.P. issued a Government Order dated 04.05.2010 allowing the benefit of 1st, 2nd and 3rd A.C.P. to its employees on completion of 10,18 and 26 years of service w.e.f. 01.12.2008. The aforesaid period was subsequently modified to 10, 16 and 26 years of service. This Government Order dated 04.05.2010 further provides that if the concerned employee has been promoted before grant of 1st A.C.P., then the next Grade Pay to grade pay, admissible on the promoted post, shall be allowed as of 2nd A.C.P. on completion of 08 years service after the promotion and then 3rd A.C.P. shall be allowed on further completion of 08 years service or total service of 26 years, whichever occurrs first.
6. It is contended by the petitioner that Government Order dated 04.05.2010 provides in Clause 6 that if disciplinary proceeding/criminal proceedings against an employee has been instituted then the grant of A.C.P. shall be governed by the same rules, by which the process of promotion is being governed.
7. Government Order dated 28.05.1997 issued by State Government prescribes the procedure of promotion in case of persons, against whom, the disciplinary proceeding/criminal proceedings are pending. It further provides that the cases of all persons including the person, against whom, the criminal proceeding/disciplinary proceedings are pending shall be placed before the Promotion/Selection Committee for consideration and the recommendation in respect of persons, against whom, the disciplinary proceeding/criminal proceedings are pending, shall be kept in sealed cover.
8. It is further contended that since the petitioner was promoted w.e.f. 11.10.2000 on the completion of 08 years of satisfactory service, therefore, as per provision of Sub-Clause (kha) of Clause 2 (i) of Government Order dated 04.05.2010, the Petitioner was entited for next grade pay in the form of 2nd A.C.P. on completion of 08 years of service from the date of promotion.
9. It is further mentioned that opposite parties/respondents had considered on 17.04.2012 the grant of 2nd A.C.P. to officers of the department as per provisions of Government Order dated 04.05.2010.
10. The petitioner has also contended that persons, namely, O.N. Trivedi, Ram Avatar, Praveen Kumar, D.P.Tewari and Surendra Singh mentioned at Serial No. 12,13,14, 15 and 16 in list of order dated 06.07.2012, were juniors to the petitioner and were granted next higher grade pay of Rs.7600/- w.e.f. 01.12.2008. The petitioner has relied upon Seniority List (Annnexure-7) prepared by the department and it is alleged that petitioner has been placed at Serial No. 09, whereas the name of the above said junior persons are at Serial No. 30,41, 42, 45 and 48.
11. The petitioner has further pleaded that he has retired on 30.04.2011. During service period his services were satisfactory except some period, in which, the petitioner along with 13 other officers was allegedly found at fault in recommending the Directorate of Industries for allotment of Coal to some of the Glass Units at Firozabad. An F.I.R. was lodged in 2001 and sanction of prosecution was given on 29.03.2011, but the charge-sheet in the above case was filed only on 30.06.2014 in the Court of District and Sessions Judge, Meerut, after retirement of the petitioner.
It is further contented by Learned counsel for the Petitioner that the petitioner was entitled for benefit of A.C.P. w.e.f. 01.12.2008 and the grant of which was considered on 17.04.2012, hence the benefit of A.C.P. cannot be denied as per Government Order dated 04.05.2010. No charge-sheet was filed until 17.04.2012, hence the opposite parties had no authority to deny the benefit of 2nd A.C.P., which was to be allowed whereof 01.12.2008.
12. It is further mentioned that the respondents vide letter dated 03.01.2013 informed the petitioner that since vide Office Memorandum dated 29.03.2011 the sanction for prosecution has been given, hence he has been denied the benefit of A.C.P. This information was given to the petitioner under Right to Information Act on the basis of his application dated 05.11.2012. The petitioner made various representations for grant of 2nd A.C.P. contending that on the basis of sanction for prosecution 2nd A.C.P. cannot be withheld, as no charge-sheet has been filed on the date of consideration. The respondents on 12.08.2014 issued a letter that since the permission for prosecution has been given and charge-sheet has been filed, hence his services are not satisfactory and benefit of A.C.P. is not permissible. These letters dated 03.01.2013 and 12.08.2014 were illegal, as the date of entitlement of the petitioner for 2nd A.C.P. was 01.12.2008 and his matter in this regard was considered on 17.04.2012. The charge-sheet was filed in the Court on 30.06.2014, after his retirement on 30.04.2011.
13. The petitioner has further pleaded that the grant of A.C.P. is governed for completing certain years of satisfactory service and the cut off date for consideration of satisfactory service is the date on which a person has completed requisite service for grant of A.C.P. and hence the record is liable to be taken into consideration up to that period only. The petitioner completed requisite service on 11.10.2008. Since scheme of A.C.P. was effective from 01.12.2008, therefore, the petitioner was entitled to get benefit of 2nd A.C.P. from this date and it could not be denied on the ground of sanction of prosecution.
14. The petitioner has mentioned that being aggrieved by the illegal and arbitrary action of respondents, the petitioner instituted Claim Petition No. 1918 of 2014 :Janardan Lal Vs. State of U.P. before Tribunal for quashing the order dated 12.08.2014.
15. The written statement was submitted by the respondents on the main plea that the charge-sheet in criminal case has been filed on 30.06.2014 for which permission to prosecution was given on 29.03.2011. Another objection was also taken by the respondents that Government Order dated 05.11.2014 provides that if criminal proceedings is pending, then the benefit of A.C.P. shall be postponed till finalization of proceedings and if the employee is exonerated, then the benefit of A.C.P. shall be given.
16. The petitioner has further contended that in Rejoinder Affidavit, before Tribunal, the petitioner pleaded that he was entitled for 2nd A.C.P. w.e.f. 01.12.2008 and charge-sheet has been filed in the Court on 30.06.2014, hence subsequent filing of charge-sheet after 6 years has no relevancy for grant of 2nd A.C.P., whereof 01.12.2008. The petitioner has further submitted that Government Order dated 05.11.2014 was modified vide Government Order dated 26.08.2015 and it was provided that if the 2nd A.C.P. could not be granted to an employee on account of conditions and restrictions contained in Government Order dated 05.11.2014 inspite of completion of 16 years service, then the same shall be granted to such employees.
17. It is further pleaded that learned Tribunal has also relied upon Government Order dated 05.11.2014 Clause 14 and dismissed the Claim Petition of the petitioner by holding that authority was justified in not granting 2nd A.C.P., because of his un-satisfactory services.
18. It is further mentioned that Government Order dated 05.11.2014 was prospective in nature and was applicable only upon the cases, in which, the A.C.P. was to be granted after issuance of Government Order. Government Order dated 04.05.2010 was applicable in the case of petitioner, because he was entitled to get 2nd A.C.P. according to scheme w.e.f. 01.12.2008. The Tribunal has committed illegality in applying the Government Order dated 05.11.2014.
19. On the above mentioned grounds, the following reliefs has been sought by the petitioner:
"I. issue an order setting aside the impugned Judgment and orders dated 05.05.2016 passed by U.P. State Public Services Tribunal in Claim Petition No. 1918 of 2014: Janardan Lal Vs. State of U.P. contained in annexure No.1 to this writ petition.
II. issue an order or direction setting aside the letters dated 3.1.2013 and 12.8.2014 contained in annexure No. 9 and 10 respectively to this writ petition with all consequential benefits.
III. issue an order or direction, directing the opposite parties to grant 2nd A.C.P. to the petitioner w.e.f. 1.12.2008 and pay arrears of salary thereof with 18 % interest per annum calculable w.e.f. 1.12.2008 till date of actual.
IV. issue an order or direction, directing the opposite parties to revise the pension and payment of arrears of retiral benefits consequent to grant of 2nd A.C.P. and pay the same to the petitoner with interest of 18% per annum from the date of retirement till date of actual payment."
20. The respondents 2 and 3 have filed counter affidavit by pleading that learned Tribunal has delivered impugned judgment and order dated 05.05.2016 after considering all the relevant material available on record and the arguments advanced by learned Counsel for the petitioner. There is no illegality or infirmity in the impugned judgment. No interference is required by this Court.
21. It is further submitted that learned Tribunal while dismissing the Claim Petition has observed that if criminal proceedings is pending against any employee, then he may again represent the matter for grant of 2nd A.C.P. and revision of pension, if these proceedings concluded in his favour.
22. It is further contended by the respondents that criminal cases were pending against the petitioner and authority was fully justified for not granting 2nd A.C.P. to the petitioner. In Case Crime No. 273 of 2001 charge-sheet has already been filed on 30.06.2014, which relates to serious crime of corruption, therefore, his services could not be said to be satisfactory. The State Government granted prosecution sanction on 29.03.2011 against the petitioner in this case.
23. It is further submitted that in Case Crime No. 271 of 2001 prosecution has also been sanctioned by the State Government vide its order dated 07.10.2014, therefore, petitioner was not entitled to get benefit of 2nd A.C.P..
24. It is further mentioned that in pursuance of Government Order dated 05.11.2014 as well as other orders issued by Government, a meeting of Screening Committee was held in which the name of the petitioner was at Serial No.19 and as such it was recommended that criminal cases are pending against the petitioner, therefore, the benefit of grant of 2nd A.C.P. could not be given to the petitioner.
25. It is further pointed out by respondents that while the petitioner was posted at Firozabad, certain allegations in the allotment of Coal was leveled against the petitioner as well as other persons, for which, F.I.R.s were lodged against the petitioner and the prosecution was sanctioned against the petitioner and thereafter charge-sheet was filed in the concerned Court against the petitioner on 30.06.2014.
26. It is also pointed out by the respondents that the petitioner is claiming the benefit of 2nd A.C.P. in pursuance of Government Order dated 04.05.2010, which has already been superseded by another Government Order dated 05.11.2014. As per Clause 14 of this Government Order, the petitioner is not entitled for 2nd A.C.P. during the pendency of criminal cases against him. The services of the petitioner were not found satisfactory and as such in a meeting of Screening Committee benefit of 2nd A.C.P. was not recommended to the petitioner due to pendency of criminal cases against him. The respondents has pointed out that as per provisions of paragraph 14 of the Government Order dated 05.11.2014, if any disciplinary proceeding and criminal proceedings is pending against any employee and in case employee is exonerated from the proceedings, then thereafter Screening Committee can recommend his name for grant of A.C.P. and thereafter appropriate decision will be taken by the competent authority.
27. On these grounds, it is contended by respondent that the Writ Petition is devoid of merit and liable to be dismissed.
28. The petitioner has submitted rejoinder affidavit reiterating his earlier contentions and contended that the case of the petitioner was covered by Government Order dated 04.05.2010 and not by Government Order dated 05.11.2014, which was not in existence on the date, when his case of grant of 2nd A.C.P. was considered on 17.04.2012. Government Order dated 05.11.2014 was prospective in nature and not retrospective.
29. Learned Counsel for the petitioner has relied upon decision of Hon'le Apex Court in State of Rajashthan Vs. R. Dayal and others (1997) 10 SCC 419. It is argued that Hon'ble Apex Court in para 8 and 9 has observed as follows:
"8.Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A(11-B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith.
9.It is contended by Shri Das that one of the persons, namely, H.L. Meena was appointed against a carried-forward post as per the existing Rules and, therefore, his appointment cannot be challenged. We find it difficult to give acceptance to the contention. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the Rules as existing on the date the vacancy arose. Since, admittedly, that has not been done, the appointment of Shri Bhatnagar and H.L. Meena must be treated to be only temporary appointments pending consideration of the claims of all the eligible persons belonging to General and Reserved quota separately as per Rules."
30. Learned Counsel for the petitioner has also relied upon Y.V.Rangaiah and others Vs. J. Sreenivasa Rao and others (1983) 3 SCC 284 Civil Appeals Nos. 2954-2955 of 1980 and connected Civil Appeals Nos. 2956-2957 of 1980:State of Andhra Pradesh and others Vs. J. Sreenivasa Rao and others. It is argued that Hon'ble Apex Court in para 8 and 9 has observed as follows:
"8.The contention on behalf of the appellants herein is that by the time the list was prepared in May 1977 Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules was amended and the list prepared was in accordance with the rules then prevailing at the time of preparation, and therefore there was nothing wrong with the preparation of the panel. It was further contended that the petitioners in the two representation petitions having not challenged the validity of the amendment to Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, it was not open to them to challenge the list prepared in May, 1977 which is in accordance with the rules prevailing at that time.
9.Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
31. We have perused Government Order dated 04.05.2010, which provides as under:
"(1½ mDr ubZ O;oLFkk iqujhf{kr osru lajpuk esa fnukad 01 fnlEcj] 2008 ls izHkkoh gksxhA fnukad 30 uoEcj] 2008 rd iqujhf{kr osru lajpuk esa lHkh osru cS.M ,oa xzsM osru es in/kkjdksa gsrq le;eku osrueku dh iwoZ O;oLFkk gh ykxw jgsxhA ifj.kkeLo:i fnukad 01 tuojh] 1996 ls ykxw osruekuksa esa :0 8000&13500 ;k mlls mPp osrueku ds in/kkjdksa ds lEcU/k esa le;eku osrueku dh fnukad 31 fnlEcj] 2005 rd gh izHkkoh iwoZ O;oLFkk vc fnukad 30 uoEcj] 2008 rd ykxw le>h tk;sxhA 'kklukns'k la[;k& os0vk0&2&1314@nl&59 ,e @2008] fnukad 08 fnlEcj] 2008 dk izLrj&4 bl lhek rd la'kksf/kr le>k tk;sxkA (2½ ¼i½ ,0 lh0 ih0 ds vUrxZr lh/kh HkrhZ ds fdlh in ij izFke fu;fer fu;qfDr dh frfFk ls 10 o"kZ] 18 o"kZ o 26 o"kZ dh vuojr~ larks"ktud lsok ds vk/kkj ij] rhu foRrh; LrjksUu;u fuEu izfrcU/kksa ds v/khu vuqeU; fd;s tk;saxs%& ¼d½ izFke foRrh; LrjksUu;u lh/kh HkrhZ ds in ds osrueku@lkn`'; xzsM osru esa 10 o"kZ dh fu;fer lsok fujUrj lUrks"ktud :i ls iw.kZ dj ysus ij ns; gksxkA ijUrq] fdlh in dk osrueku@xzsM osru fdlh le; fcUnq ij mPphd`r gksus dh fLFkfr esa foRrh; LrjksUu;u dh vuqeU;rk gsrq lsokof/k dh x.kuk esa iwoZ osrueku@xszM osru rFkk mPphd`r osrueku@xzsM osru esa dh x;h lsokvksa dks tksM+dj mPphd`r xzsM osru ls vxyk xszM osru vuqeU; gksxkA ¼[k½ izFke foRrh; LrjksUu;u ds :i esa vuqeU; xzsM osru esa 08 o"kZ dh fujUrj lUrks"ktud lsok iw.kZ dj ysus ij f}rh; foRrh; LrjksUu;u ns; gksxkA blh izdkj f}rh; foRrh; LrjksUu;u ds :i esa vuqeU; xzsM osru esa 08 o"kZ dh fujUrj lUrks"ktud lsok iw.kZ dj ysus ij r`rh; foRrh; LrjksUu;u ns;k gksxkA ijUrq] ;fn lEcfU/kr dkfeZd dks izksUufr] izFke foRrh; LrjksUu;u ds iwoZ vFkok mlds i'pkr~ izkIr gks tkrh gS rks izksUufr dh frfFk ls 08 o"kZ dh lsok iw.kZ dj ysus ij gh izksUufr ds in ij vuqeU; xzsM osru ls vxyk xzsM osru f}rh; foRrh; LrjksUu;u ds :i esa vuqeU; gksxkA lEcfU/kr in ij jgrs gq, mDrkuqlkj f}rh; foRrh; LrjksUu;u vuqeU; gksus dh frfFk ls 08 o"kZ dh lsok iw.kZ djus vFkok dqy 26 o"kZ dh lsok iw.kZ djus dh frfFk] tks Hkh igys gks] ls r`rh; foRrh; LrjksUu;u dk ykHk vuqeU; gksxkA
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¼iv½ larks"ktud lsok iw.kZ u gksus ds dkj.k ;fn fdlh dkfeZd dks foRrh; LrjksUu;u foyEc ls izkIr gksrk gS rks mldk izHkko vkus okys vxys foRrh; LrjksUu;u ij Hkh iMs+xkA vFkkZr vxys foRrh; LrjksUu;u dh vuqeU;rk gsrq fu/kkZfjr vof/k dh x.kuk iwoZ foRrh; LrjksUu;u ds izkIr gksus dh frfFk ls gh dh tk;sxhA ¼v½ ,0lh0ih0 dh O;oLFkk ykxw gksus ds i'pkr~ lh/kh HkrhZ ds fdlh in ij izFke fu;qfDr ds i'pkr laoxZ esa izFke inksUufr gksus ds mijkUr dsoy f}rh; ,oa r`rh; foRrh; LrjksUu;u rFkk f}rh; inksUufr izkIr gksus ds mijkUr r`rh; foRrh; LrjksUu;u dk ykHk gh ns; jg tk;sxkA rhljh inksUufr izkIr gksus dh frfFk ds i'pkr fdlh Hkh n'kk esa foRrh; LrjksUu;u dk ykHk vuqeU; u gksxkA bl lUnHkZ esa ;g Hkh mYys[kuh; gS fd fnukad 01 tuojh] 2006 ls ykxw iqujhf{kr osru lajpuk esa ,d gh laoxZ esa ;fn leku xzsM osru okys in ij inksUufr gqbZ gS] rks mls Hkh foRrh; LrjksUu;u dh vuqeU;rk gsrq inksUufr ekuk tk;sxkA ijUrq] mDrkuqlkj inksUufr izkIr ofj"B deZpkjh dk osru ,0lh0ih0 dh O;oLFkk ls ykHkkfUor fdlh dfu"B dkfeZd ls de gksus dh n'kk esa ofj"B dkfeZd dk osru dfu"B dkfeZd ds cjkcj dj fn;k tk;sxkA
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(6½ ;fn fdlh deZpkjh ds f[kykQ vuq'kklukRed dk;[email protected] dk;Zokgh izpyu esa gks rks ,0lh0ih0 dh O;oLFkk ds varxZr LrjksUu;u ds ykHk dh vuqeU;rk mUgha fu;eksa ls 'kkflr gksxh ftu fu;eksa ds v/khu mi;qZDr ifjfLFkfr;ksa esa lkekU; izksUufr dh O;oLFkk 'kkflr gksrh gSA vr% ,sls ekeys mRrj izns'k ljdkjh lsod vuq'kklu ,oa vihy fu;ekoyh] 1999 ds lqlaxr izko/kkuksa ,oa rr~dze esa tkjh funsZ'kksa ls fofu;fer gksaxsA"
32. We have also perused Government Order dated 28.05.1997, which provides as under"
"(2½ mijksDrkuqlkj fopkj dj p;u lfefr }kjk Li"V laLrqfr dh tk;sxh ijUrq p;u lfefr dh laLrqfr dh fuEufyf[kr ifjfLFkfr;ksa esa ¼pkgs p;u lfefr }kjk lEcfU/kr dkfeZd dh izksUufr ds fy, laLrqr fd;k x;k gks ;k ugha ½vFkkZr~ nksuksa gh n'kkvksa essa dk;Zo`Rr esa vafdr ugha fd;k tk;sxk oju~ ,sls dkfeZd ds lEcU/k esa dk;Zo`Rr esa ek= ;g vafdr djrs gq, fd p;u lfefr dh laLrqfr eqgj can fyQkQs esa j[kh gS] ml dkfeZd ds fo"k; esa p;u lfefr dh laLrqfr ,d vyx 'khV ij vafdr dh tk;sxh] ftls eqgj cUn fyQkQs esa j[kk tk;sxk vkSj fyQkQs ds Åij vafdr dj fn;k tk;sxk fd blesa veqd dkfeZd dh izksUufr ds fo"k; esa p;u lfefr dh flQkfj'k j[kh x;h gS%& ¼d½ ;fn dkfeZd fuyfEcr py jgk gS] ¼[k½ ;fn dkfeZd ds fo:} vuq'kklfud dk;Zokgh ;k iz'kklukf/kdj.k dh dk;Zokgh yfEcr gS] ftlds fy, vkjksi&i= tkjh fd;k tk pqdk gS] ¼x½ ;fn vkijkf/kd vkjksi ds vk/kkj ij dkfeZd ds fo:) vfHk;kstu dh dk;Zokgh yfEcr gS vFkkZr~ U;k;ky; esa vfHk;kstu gsrq vkjksi&i= izLrqr fd;k tk pqdk gSA
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(4½ ;fn fdlh dkfeZd ds fo"k; esa p;u lfefr dh laLrqfr dks eqgj can fyQkQs esa j[kk x;k gks rks mlds fy, ,d in lqjf{kr j[kk tk;sxk rkfd mlds funksZ"k ik;s tkus ij fyQkQs esa j[kh laLrqfr ds vuqlkj vFkok ;Fkk&fLFkfr vxzfyf[kr uhfr ds vuqlkj eqgj cUn fyQkQs esa j[kh laLrqfr ij iqufoZpkj ds vk/kkj ij p;u lfefr }kjk dh x;h iqulaLrqfr ds vuqlkj ¼;fn izksUufr fd;s tkus dh laLrqfr ;k iqulaLrqfr dh xbZ gks ½ mDr lqjf{kr in ds fo:) mls izksUur fd;k tk ldsA (5½ mijksDrkuqlkj lqjf{kr j[ks x;s inksa ds fo:) dke pykÅ izcU/k ds :i esa rSukrh ds lhfer mn~ns'; ls] lanHkZxr ik=rk lwph ls] LFkkukiUu izksUufr gsrq p;u lfefr }kjk mi;qDr dkfeZd dh laLrqfr dh tk;sxh ijUrq ;g dke pykÅ izcU/k vkxkeh p;u vFkok eqgj cUn fyQkQs ds vfUre fuLrkj.k rd tks Hkh igys gks] rd ds fy;s gh gksxhA bl lUnHkZ esa lkekU; ifjfLFkfr;ksa esa LFkkukiUu inksUufr ij yxh jksd f'kfFky le>h tk;sxhA
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(10½ p;u lfefr }kjk izFke ckj vkjksfir dkfeZd dh izksUufr ij fopkj djus ,oa eqgj cUn fyQkQs dh izfdz;k viuk;s tkus ds ckn ,d o"kZ dh vof/k chr tkus ij Hkh ¼bl vof/k esa ,slh vof/k vkxf.kr ugha dh tk;sxh ftlesa vipkjh dkfeZd }kjk vlg;ksx ds dkj.k tkap izfdz;k esa foyEc gqvk½ ;fn vkjksfir dkfeZd ds fo"k; esa iz'kklukf/kdj.k dh tkap@foHkkxh; dk;Zokgh vfHk;kstu dk vfUre ifj.kke izkIr u gqvk gks] rks ,sls dkfeZdksa ds fo"k; esa] tks fuyfEcr ugha gS] p;u lfefr }kjk fuEufyf[kr izfrcU/kksa ds lkFk rnFkZ vk/kkj ij izksUufr ds lEcU/k esa fopkj fd;k tk;sxk%& ¼d½ vkjksfir dkfeZd ds fo:) yxk;s x;s vkjksi D;k brus xEHkhj gSa fd muds vk/kkj ij mls Hkfo"; esa Hkh izksUufr ls ofpr j[kk tkuk mi;qDr@tufgr esa gksxk] ¼[k½ D;k iz'kklukf/kdj.k dh tkap@foHkkxh; dk;Zokgh vfHk;kstu ds vfUre ifj.kke izkIr gksus esa dkQh le; yxsxk] ¼x½ iz'kklukf/kdj.k dh tkap@foHkkxh; dk;Zokgh@vfHk;kstu esa gks jgs foyEc ds fy;s izR;{k ;k ijks{k :i ls vkjksfir dkfeZd rks nks"kh ugha gS] ¼/k½ vkjksfir dkfeZd dks rnFkZ izksUufr fn;s tkus ij og vius in dk nq:i;ksx vFkok tkap dks dqizHkkfor rks ugha djsxk] ¼M½ ;fn l{ke izkf/kdkjh mijksDr [k.M ¼d½ ¼[k½ ¼x½ ¼/k½ ds vk/kkj ij fopkjksijkUr vkjksfir dkfeZdksa dks rnFkZ vk/kkj ij izksUur djuk mi;qDr le>rs gSa rks ml n'kk esa foHkkxh; p;u lfefr ds lkeus ekeys dks j[kk tk;sxk rks vkjksfir dkfeZd ds lEiw.kZ vfHkys[kksa ds vk/kkj ij mlds dk;Z dk ewY;kadu djsxh rFkk rnFkZ :i ls izksUufr nsus vFkok u nsus ds fo"k esa viuh laLrqfr nsxhA ¼p½ ;fn tkap iz'kklukf/kdj.k vkfn fdlh vU; ,tsUlh }kjk djkbZ tk jgh gks rks bl n'kk esa ml ,tsUlh dk ijke'kZ Hkh bl fcUnq ¼rnFkZ vk/kkj ij izksUufr nsus½ ij izkIr fd;k tk;sxkA ¼N½ mi;qZDr izfdz;k ds mijkUr vkjksfir dkfeZd dks rnFkZ :i ls izksUufr fd;s tkus ds vkns'kksa esa ;g Li"V fd;k tk;sxk fd izksUufr vfxze vkns'kksa rd ds fy;s dh tkrh gS vkSj 'kklu dks mDr rnFkZ izksUufr dks dHkh Hkh lekIr dj nsus dk vf/kdkj gS rFkk rn~uqlkj ,sls dkfeZd dks ml ij ij izR;kofrZr fd;k tk ldrk gS ftl in ls mls izksUur fd;k x;k FkkA ¼t½ rnFkZ vk/kkj ij izksUur vkjksfir dkfeZd ds fo:) py jgh iz'kklukf/kdj.k dh tkap@foHkkxh; dk;Zokgh@vfHk;kstu vkfn ds vfUre ifj.kke izkIr gks tkus ij mlds fo"k; esa mlh izdkj vfxze dk;Zokgh dh tk;sxh] tSlh dh tkrh gS ;fn mls rnFkZ izksUufr u nh x;h gksrhA ¼>½ ;fn U;k;ky; }kjk fdlh rnFkZ :i ls izksUur dkfeZd dh rduhdh vk/kkj ij ¼xq.kkoxq.k ds vk/kkj ij ugha½ nks"keqDr fd;k tkrk gS vkSj U;k;ky; ds fu.kZ; ds fo:) vihy ;k mlh vkjksi ds fy;s foHkkxh; dk;Zokgh dk izLrko gS rks ml n'kk esa l{ke izkf/kdkjh bl fcUnq ij fopkj djsaxs fd vkjksfir dkfeZd dks rnFkZ izksUufr ij cuk;s j[kk tk; vFkok ughaA "
33. We have also perused Government Order dated 05.11.2014, which provides as under:
"-----dks ,rn}kjk vodzfer dj muesa nh x;h O;oLFkkvksa dks lesfdr dj vuqHko dh tk jgh folaxfr;ksa dk fujkdj.k djus gsrq fuEufyf[kr O;oLFkk ykxw fd;s tkus dh Jh jkT;iky egksn; lg"kZ Lohd`fr iznku djrs gSa%& ¼1½ iqujhf{kr osru lajpuk esa lqfuf'pr dSfj;j izksUu;u ¼,0 lh0 ih0½ dh O;oLFkk fnukad 01 fnlEcj] 2008 ls ykxw gksxhA ¼2½ osrueku :0 8000&13500 ls fuEu osrueku ds inksa ij ykxw le;eku osrueku dh iwoZ O;oLFkk iqujhf{kr osru lajpuk esa fnukad 30 uoEcj] 2008 rd ykxw jgsxhA blh izdkj osrueku :0 8000&13500 vFkok mPp osrueku ds inksa ij fnukad 31 fnlEcj] 2005 rd ykxw O;oLFkk iqujhf{kr osru lajpuk esa fnukad 30 uoEcj] 2008 rd ykxw jgsxhA 'kklukns'k la[;k&os0vk0&2&1314@nl&59 ¼,e½@2008] fnukad 08 fnlEcj] 2008 dk izLrj&4 bl lhek rd la'kksf/kr le>k tk;sxkA ¼3½ iqujhf{kr osru lajpuk esa lqfuf'pr dSfj;j izksUu;u ¼,0 lh0 ih0½ ykxw fd;s tkus ds fnukad 01 fnlEcj] 2008 dks ;fn dksbZ in/kkjd lh/kh HkrhZ@,d vFkok ,d ls vf/kd inksUufr izkIr dj in ds lk/kkj.k osrueku esa gS vkSj mls ml in ij le;eku osrueku dh iwoZ O;oLFkk esa dksbZ ykHk vuqeU; ugha gqvk gS rks mls lqfuf'pr dSfj;j izksUu;u ¼,0lh0ih0½ dh O;oLFkk ds vUrxZr orZeku esa vuqeU; gks jgs xsszM osru ls vxys xszM osru ds :i esa dqy rhu foRrh; LrjksUu;u dze'k% 10 o"kZ] 16 o"kZ] ,oa 26 o"kZ dh lsok ij fuEufyf[kr 'krksZa ,oa izfrcU/kksa ds v/khu vuqeU; djk;s tk;saxs%& ¼d½ mi;qZDr Js.kh ds dkfeZdksa dks izFke foRrh; LrjksUu;u mDr in ij 10 o"kZ dh fu;fer ,oa fujUrj lUrks"ktud lsok iw.kZ djus ij ns; gksxkA ¼[k½ mi;qZDr Js.kh ds dkfeZdksa dks izFke foRrh; LrjksUu;u esa vuqeU; xszM osru esa 06 o"kZ dh fujUrj lUrks"ktud lsok iw.kZ dj ysus ij f}rh; foRrh; LrjksUu;u ns; gksxk ijUrq ftUgsa izFke foRrh; LrjksUu;u 10 o"kZ ls vf/kd dh lsok ij fnukad 01 fnlEcj] 2008 ls vuqeU; gqvk gS] mUgsa f}rh; foRrh; LrjksUu;u mDr in ij dqy 16 o"kZ dh lsok ij ns; gksxk] Hkys gh fnukad 01 fnlEcj] 2008 ds ckn lEcfU/kr dkfeZd dh lsok,a 06 o"kZ iw.kZ u gq;h gksa vFkok leku xszM osru esa inksUur gks pqdk gksA ijUrq ;fn mDr in/kkjd dh izksUufr izFke foRrh; LrjksUu;u izkIr gksus ds iwoZ fnukad 01 fnlEcj] 2008 ds i'pkr~ gksrh gS rks mls f}rh; foRrh; LrjksUu;u izksUufr dh frfFk ls 06 o"kZ dh lsok iw.kZ djus ij ns; gksxh] fdUrq ;fn mldh izksUufr izFke foRrh; LrjksUu;u izkIr gksus ds i'pkr gksrh gS rks mls f}rh; foRrh; LrjksUu;u] izFke foRrh; LrjksUu;u izkIr gksus ds fnukad ls 06 o"kZ dh fujUrj lUrks"ktud lsok ij ns; gksxkA mnkgj.k&1 fdlh dkfeZd dh lh/kh HkrhZ ls fu;fer fu;qfDr 02 tuojh] 1995 dks gq;hA le;eku osrueku dh iwoZ O;oLFkk ds vUrxZr mls inksUufr@vxyk osrueku vuqeU; ugha gqvkA ,0lh0ih0 dh O;oLFkk es mls izFke foRrh; LrjksUu;u 10 o"kZ ls vf/kd dh larks"ktud lsok ij fnukad 01 fnlEcj] 2008 ls vuqeU; gqvkA mldh 16 o"kZ dh dqy lsok fnukad 02 tuojh] 2011 dks iw.kZ gks jgh gSA ,slh fLFkfr esa mi;qZDr O;oLFkk ds vuqlkj mls 02 tuojh] 2011 ls vuojr larks"ktud lsok iw.kZ djus dh fLFkfr esa f}rh; foRrh; LrjksUu;u ns; gksxk] ;|fi fnukad 02 tuojh] 2011 dks mldh lsok,a izFke foRrh; LrjksUu;u izkIr gksus ds fnukad 01 fnlEcj] 2008 ls 06 o"kZ iw.kZ ugha gks jgh gSaA mnkgj.k&2 fdlh dkfeZd dh lh/kh HkrhZ ls fu;fer fu;qfDr 05 ekpZ] 2000 dks gq;hA 10 o"kZ dh lsok iw.kZ djus ds iwoZ ,oa fnukad 01 fnlEcj] 2008 ds mijkUr mldh izFke inksUufr fnukad 05 Qjojh] 2009 dks gks tkrh gS rks mls f}rh; foRrh; LrjksUu;u fnukad 05 Qjojh] 2009 ls 06 o"kZ dh larks"ktud lsok iw.kZ djus ds fnukad 05 Qjojh] 2015 ls ns; gksxkA mnkgj.k 3& fdlh dkfeZd dh lh/kh HkrhZ ls fu;fer fu;qfDr 05 ekpZ] 2000 dks gq;hA 10 o"kZ dh vuojr larks"ktud lsok iw.kZ djus ds fnukad 05 ekpZ] 2010 ls izFke foRrh; LrjksUu;u Lohd`r fd;k x;kA blds mijkUr mldh izFke inksUufr fnukad 02 twu] 2012 dks gks tkrh gS rks mls f}rh; foRrh; LrjksUu;u fnukad 05 ekpZ] 2010 ls 06 o"kZ dh vuojr larks"kud lsok iw.kZ djus ds fnukad 05 ekpZ] 2016 ls ns; gksxkA ¼x½ mi;qZDr Js.kh ds dkfeZdksa dks r`rh; foRrh; LrjksUu;u] f}rh; foRrh; LrjksUu;u ds :i esa vuqeU; xzsM osru esa 10 o"kZ ls fujUrj larks"ktud lsok vFkok mDr in ds lUnHkZ esa dqy 26 o"kZ dh fujUrj larks"ktud lsok iw.kZ dj ysus ij ns; gksxkA lEcfU/kr in/kkjd dks ;fn izFke vkSj f}rh; foRrh; LrjksUu;u ,d gh fnukad dks ns; gksrk gS] rks ;g ekurs gq, fd mls izFke foRrh; LrjksUu;u dkYifud :i ls izkIr gks pqdk gS] lh/ks f}rh; foRrh; LrjksUu;u vuqeU;rk ds fnukad dks ns; gksxkA blh izdkj f}rh; vkSj r`rh; foRrh; LrjksUu;u ,d gh fnukad dks ns; gksus ij ;g ekurs gq, fd mls f}rh; foRrh; LrjksUu;u dkYifud :i ls izkIr gks pqdk gS] lh/ks r`rh; foRrh; LrjksUu;u vuqeU;rk ds fnukad dks ns; gksxkA dkYifud vuqeU;rk esa osru fu/kkZj.k dk ykHk ns; u gksxkA ¼14½ ;fn fdlh deZpkjh ds fo:) vuq'kklukRed dk;Zokgh@vkijkf/kd dk;Zokgh izpyu esa gks rks ,0 lh0 ih0 dh O;oLFkk ds vUrxZr foRrh; LrjksUu;u ds ykHk dh vuqeU;rk vfUre :i ls fu.kZ; gksus rs LFkfxr jgsxhA vfUre fu.kZ; ds mijkUr funksZ"k ik;s tkus dh n'kk esa vuqeU;rk ds fnukad ls foRrh; LrjksUu;u dk ykHk ns; gksxk ijUrq nks"kh ik;s tkus dh n'kk esa Ldzhfuax desVh }kjk dkfeZd dks fn;s x;s n.M ij fopkjksijkUr ns;rk ds lEcU/k esa laLrqafr dh tk;sxhA Ldzhfuax desVh dh laLrqfr;ksa ij fu;qfDr izkf/kdkjh }kjk fu.kZ; fy;k tk;sxkA"
34. We have also perused Government Order dated 26.08.2015, which provides as under:
",sls in/kkjd ftUgsa ,0lh0ih0 dh O;oLFkk fo"k;d 'kkluns'k la[;k&os0vk0&2&773@nl&62 ¼,e½ 2008] fnukad 05 uoEcj] 2014 esa fufgr 'krksZa ,oa izfrcU/kksa ds dkj.k lh/kh HkrhZ ds in ij izFke fu;qfDr dh frfFk ls 16 o"kZ dh fu;fer lsok iw.kZ gksus ds ckotwn lh/kh HkrhZ ds in ij vuqeU; xszM osru ls nwljs foRrh; LrjksUu;u ds lerqY; xzsM osru okLrfod inksUufr@le;eku osrueku@,0lh0ih0 vuqeU; gksus ds ckotwn ugha fey ik;k gS mUgsa 'kklukns'k la[;k&os0vk0&2&1318@nl&59 ¼,e½ 2008] fnukad 08 fnlEcj] 2008 ds layXud&2v ij miyC/k rkfydk ds LrEHk&6 esa miyC/k lh/kh HkrhZ ds in ds xszM osru ls nwljk mPp xzsM osru lh/kh HkrhZ ds in ij fu;fer fu;qfDr dh frfFk ls 16 o"kZ dh lUrks"ktud lsok iw.kZ djus dh frfFk vFkok fnukad 01 fnlEcj] 2008] tks Hkh ckn esa gks ls f}rh; foRrh; LrjksUu;u ds :i esa Lohd`r fd;k tk;sxkA lh/kh HkrhZ ds in dk vk'k; ml in ls ftl ij lEcfU/kr dkfeZd lh/kh HkrhZ ds }kjk fu;qDr gqvk gksA"
35. On combined perusal of the above mentioned Government Orders issued by Government of State of U.P., it reveal that facility of A.C.P. was provided to the Government employee and officers of State of U.P. under scheme prepared by the State Government on the basis of recommendation made by Finance Committee (2008). According to provision of Clause 6 of Government Order dated 04.05.2010, it is provided that facility of A.C.P. shall be provided to such employees, against whom, disciplinary inquiry or criminal proceedings were being conducted according to applicable Rules for promotion.
36. All the above mentioned Government Orders required that employee would be entitled to get benefit of A.C.P. scheme only if he has completed regular satisfactory service for 10 years for grant of 1st A.C.P.. Regular satisfactory service for further 06 years to get 2nd A.C.P., vide Government Order dated 05.11.2014, it is stipulated that if 1st A.C.P. was sanctioned from the date 01.12.2008, then such employee shall get benefit of 2nd A.C.P. after completing total period of 16 years of satisfactory service. Likewise, it is provided that if employee gets 1st promotion after 01.12.2008 and before of sanctioned of 1st A.C.P. then he will get benefit of 2nd A.C.P. after completion of 06 years of service. 3rd A.C.P. shall be sanctioned to the employee after completion of regular satisfactory service for 26 years.
37. It is pertinent to mention here that Government Order dated 05.11.2014 provides that earlier Government Orders including Government Order dated 04.05.2010 shall be superseded regarding grant of A.C.P. to the employees/officers. Clause 14 of this Government Order specifically provides that such employee, against whom, disciplinary proceeding/criminal proceedings is being conducted then benefit of A.C.P. shall be subject to the outcome of said disciplinary/criminal proceedings. If the employee is not found guilty in disciplinary proceedings or acquitted in criminal proceedings, then such employee shall be entitled to get benefit of A.C.P.. But if such employee is found guilty then Screening Committee shall consider the punishment awarded to the employee and would made its recommendations. Competent Authority shall take decision on the basis of recommendation made by Screening Committee.
There is no substance in the argument of learned Counsel for the petitioner that the Clause 14 of Government Order dated 05.11.2014 has been deleted or superseded by Government Order dated 26.08.2015. According to provisions of Government Order dated 26.08.2015 also regular and satisfactory service of 16 years of the employee is required for grant of 2nd A.C.P. The main thrust of Government Order dated 26.08.2015 is on the fact that if employee has completed regular satisfactory service for 16 years from his initial date of appointment, then such employee be provided benefit of 2nd A.C.P. The effect of Clause 14 of Government Order dated 05.11.2014 has not been suspended, superseded or terminated.
38. Learned Counsel for the petitioner has vehemently argued that no disciplinary proceeding was initiated by the department against him. Neither charge-sheet was served upon him nor submitted before the competent criminal Court on the date i.e. 17.04.2012, when Commissioner and Director Industries, U.P. Karmik Anubhag-3 (Aa), Kanpur forwarded recommendations of employees including the petitioner for grant of 2nd A.C.P.
39. We have perused Annexure R-2 dated 17.04.2012 in which it is mentioned that on the basis of letter dated 12.01.2012 issued by Special Secretary of Government of U.P., Small Scale Industries, Lucknow, matter of employees mentioned in list prepared by the department was forwarded only for consideration of grant of benefit of A.C.P. to these employees at Government level.
40. We have also perused list of Deputy Directors, in which, petitioner is placed at Serial No. 13 and in last column of the entitlement of the petitioner for grant of 2nd A.C.P. is shown from the date 12.10.2010 according to Government Order dated 22.12.2011. Another list of Deputy Directors is also provided by the petitioner, in which it is only mentioned that no disciplinary proceeding is pending against him, but it is not specifically mentioned in this list that Crime No. 271 of 2001 and Crime No. 273 of 2001 were registered against the petitioner and these criminal offences were being investigated by the Investigating Officer.
41. It was also not mentioned in this recommendation dated 17.04.2012 that Government of State of U.P. had sanctioned on 29.03.2011 prosecution of the petitioner relating to Case Crime No. 273 of 2001.
42. The petitioner has himself mentioned in the ground of petition that when he was posted in District Firozabad, a F.I.R. was lodged in the year 2001 against him and 13 other officers and he was found at fault in recommending the Directorate of Industries for allotment of Coal to some of the Glass Units at Firozabad. It is also mentioned in Para 13 of ground of writ petition that sanction for his prosecution was given on 29.03.2011. He has also accepted this fact that charge-sheet has been filed on 30.06.2014 in the Court of District and Sessions Judge, Meerut/Special Judge against him in Crime No. 273 of 2011 under Sections 177, 218, 420, 465, 471 and 120 B I.P.C. and Section 13 (1) (D) read with Section 13 (2) of Prevention of Corruption Act of Police Station Firozabad South, Firozabad.
43. On perusal of this charge-sheet it reveal that the petitioner is involved and charge sheeted in serious offence of corruption.
44. It is also relevant to mention here that in counter affidavit respondent nos. 2 and 3 has contended in para 6 that another crime number 271 of 2001 has already been registered against the petitioner and Government of State of U.P. has sanctioned vide order dated 07.10.2014 prosecution of the petitioner. It is also contended in para 9 that services of petitioner was not found satisfactory and as such the petitioner is not entitled for 2nd A.C.P..
45. It is contended in para 10 of counter affidavit that in a meeting of Screening Committee matter of officers for grant of 2nd A.C.P was considered.. Petitioner was at Serial No. 19 in this list and Screening Committee had recommended that criminal cases are pending against the petitioner, therefore, the benefit of grant of 2nd A.C.P. could not be given to the petitioner.
46. As far as reliance of the petitioner upon Government Order dated 28.05.1997 is concerned, we have perused the said Government Order, which relate to the procedure to be adopted by the Selection Committee, while matter of promotion would be considered by the Committee. Clause 2 of this Government Order dated 28.05.1997 provides that if any preliminary departmental inquiry, vigilance inquiry is being conducted against any employee or criminal proceedings were under consideration or pending, then procedure of seal cover would be adopted by the Selection Committee. Clause 4 provides that a post for such employee shall be reserved and further proceedings shall be conducted, if such employee is not found guilty or acquitted after opening sealed cover.
47. It is further provided that Clause 10 of this Government Order provides that if sealed cover procedure has been adopted by the Selection Committee, then after one year matter of such employee shall be again considered for his promotion on ad hoc basis. It is stipulated in Sub-Clause (Ka) of Clause 10 that nature of criminal allegations or charge shall be considered for denial of promotion to such employee. Sub-Clause (Ga) of Clause 10 provides that it shall also be considered that whether such employee is liable for delay in conclusion of inquiry, disciplinary proceedings and prosecution.
Government Order dated 28.05.1997 also provides that if disciplinary/criminal proceedings are being conducted against any employee, then promotion of such employee can be withheld, until the conclusion of disciplinary/criminal proceedings by the department.
48. Since two F.I.R. Crime No. 271 of 2001 and 273 of 2001 were registered against the petitioner at Police Station Firozabad South, District Firozabad against the petitioner and investigation was being conducted against him. The State Government had sanctioned on 29.03.2011 for his prosecution relating to Crime No. 273 of 2001, therefore, Selection Committee had recommended that he was not entitled to get benefit of 2nd A.C.P. This decision of Selection Committee was informed to the petitioner vide letter dated 03.01.2013 on the basis of his application moved under Right to Information Act, 2005. Answer to required Information No.1, it is mentioned in letter dated 03.01.2013 (Annexure-9) that "since his prosecution was sanctioned, therefore, according to rules, petitioner is not entitled to get benefit of A.C.P."
49. Vide letter dated 22.08.2014 (Annexure-10) also Deputy Director has informed the petitioner that in reference to his letter dated 30.06.2014, which was sent by him for grant of 2nd A.C.P., that "since his prosecution was sanctioned and charge-sheet has been submitted before the Court, therefore, petitioner's services were not found satisfactory, hence, he is not entitled to get benefit of A.C.P."
50. In these circumstances, decision was taken by Screening Committee that the petitioner was not entitled to get benefit of 2nd A.C.P. and this decision was informed timely to the petitioner by the respondent. The State Government vide order dated 06.07.2012 (Annexure-6) granted benefit of 2nd A.C.P. to 18 Deputy Directors. Petitioner is not getting any benefit of seniority list (Annexure-7) dated 30.03.2002, in which he is placed at Serial No. 09. This seniority list of officers in pay scale 8000-13500 was released by the State Government.
There is no substance in the argument of learned Counsel for the petitioner that vide letter dated 17.04.2012 Commissioner and Director Industries, U.P. Karmik Kanpur forwarded his name regarding his entitlement for 2nd A.C.P., because decision for grant of 2nd A.C.P. was to be taken at Government level. This letter dated 17.04.2012 is to no avail as relied upon by the petitioner.
51. As far as the above mentioned Case Law, which is relied upon by the petitioner, these both Case Laws are relating to the promotion of the concerned employees and these Case Laws are not related to the matters of grant of A.C.P.. In these Case Laws Hon'ble Apex Court has held that promotion shall be made on the basis of existing service rules, when the employee became entitle to get his promotion. If service rules has been amended after date of entitlement of promotion of such employee, then this amendment shall not effect the right of the concerned employee.
52. But in the present case facts and circumstances are different. F.I.R. regarding offences of corruption was registered in the year 2001 against the petitioner and State Government on 29.03.2011 sanctioned for his prosecution in Crime No. 273 of 2001 of Police Station Firozabad South, District Firozabad. The Screening Committee found that since Crime No. 271 of 2001 and 273 of 2001 were being investigated against the petitioner, therefore, his services were not found satisfactory for grant to 2nd A.C.P. There is no infirmity in the decision taken by Screening Committee.
53. We have also perused impugned judgment dated 05.05.2016 delivered by Tribunal. Learned Tribunal has considered facts and circumstances, in which, criminal case of corruption was registered against the petitioner. It has also perused the provisions of Government Order dated 05.11.2014 and recorded finding that "the argument of petitioner that on the date of retirement no disciplinary/criminal proceeding was pending, hence the petitioner would be entitled to grant of 2nd A.C.P., becomes totally irrelevant as on the date of Government Order in question, the criminal proceedings were pending against the petitioner. The authority was fully justified in not granting the 2nd A.C.P. to the petitioner because of his un-satisfactory service. Charge-sheet filed against the petitioner related to the serious crime like corruption and as such his services could not be said to be satisfactory, unless he was exonerated in the disciplinary/criminal proceedings." The benefit of A.C.P. can be given only in accordance with the above cited para 14 of Government Order dated 05.11.2014. The Tribunal while dismissing Claim Petition of the petitioner it has further observed that it is made clear that if the criminal proceedings are terminated in petitioner's favour, he may again represent in the matter for grant of 2nd A.C.P. and revision of pension.
54. On the basis of above discussions and provisions of Government Order dated 05.11.2014, there is no infirmity in the impugned judgment and order dated 05.05.2016. The impugned judgment cannot be termed as perverse, against law or evidence available on record.
55. The Case Laws relied upon by the petitioner does not extend any benefit to the petitioner, because these Case Laws are not applicable to the facts and circumstances of the present case. The service rule has not been amended by the State Government for grant of A.C.P., on the other hand facility of A.C.P. has been launched by the State Government vide Government Orders issued time and again. For grant of A.C.P., it is required that vide Government Order dated 05.11.2014 earlier Government Order issued by the State Government has been superseded. The petitioner must have requisite regular satisfactory services for a prescribed period. The services of petitioner were not found satisfactory, because criminal cases of serious offence of corruption are pending against him.
56. The petition is devoid of merits and liable to be dismissed.
57. Dismissed accordingly.
Order Date: 22.03.2018 Arvind