Central Administrative Tribunal - Delhi
Smt Rajeshwari Chauhan vs N.C.T. Of Delhi on 28 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3153/2010 New Delhi, this the 28th day of September, 2011 CORAM: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Smt Rajeshwari Chauhan, W/o Shri R.S. Chauhan, R/o B-21, Delhi Administration Flats, Timarpur, Delhi Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. N.C.T. of Delhi Through the Chief Secretary, New Sectt. I.P. Estate, New Delhi 2. The Director, Department of Social Welfare, Govt. of NCT of Delhi, GLNS Complex, Delhi Gate, New Delhi Respondents (By Advocate: Shri N.K. Rastogi for Shri Vijay Pandita) O R D E R
By Dr. Veena Chhotray:
The applicant superannuated as Superintendent/CDPO in the Department of Social Welfare, GNCTD on 30.4.2010. She is aggrieved at non-grant of the benefit of MACP on completion of 30 years of service. By way of relief the OA seeks directions for grant of benefits of MACP Scheme w.e.f. 1.9.2008 by way of granting two next grade pay to the applicant with all consequential benefits including arrears with interest. Besides, revisionary benefits with arrears and interest have also been sought.
2. The learned counsels Shri Yogesh Sharma and Shri N.K. Rastogi for Shri Vijay Pandita would argue the case respectively for the applicant and the respondents.
3. The brief facts are that the applicant had been initially appointed as a Supervisor w.e.f. 30.6.1978. She was promoted as Dy. Superintendent/Dy.CDPO in 1987. The next promotion as CDPO was done w.e.f. 11.4.2000 in pursuance of the Tribunals directions in an earlier OA (Annex. R/1). On merger of the posts of Dy. Superintendent/Dy.CDPO with the post of Supervisor, the applicant became entitled for the benefit of 2nd ACP under the old ACP Scheme (on completion of 24 years of service). Though the case of the applicant was considered by the DPC, however, as she did not fulfill the prescribed qualification of Post Graduation as per the RRs, the applicant was not granted the benefits of the 2nd ACP.
These facts are not disputed.
4. Subsequently in the year 2009 the applicant acquired her Post Graduation qualification. However, by that time the old ACP Scheme had been replaced by the Modified Assured Career Progression Scheme (MACP). Coming in the wake of the 6th CPC recommendations, this Scheme was given effect from 1.9.2008. As per this Scheme three financial upgradations at intervals of 10, 20 and 30 years of continuous regular service were to be granted, subject of course to fulfillment of the prescribed conditions. Since the applicant completed 30 years of her service on 3.7.2008, she claimed entitlement for the benefit of 3rd financial upgradation under the MACP w.e.f. 1.9.2008. An application for the purpose in the prescribed proforma was submitted (Annex. A/1). Besides, representations were also made. Copies of these representations have been enclosed along with the OA.
Though nothing has been communicated to the applicant in writing, non-according the MACP benefits has occasioned the present OA.
5. In their Counter Affidavit, the respondents have raised the objection of the applicant not being entitled to the claimed MACP financial upgradation, as she had been named in two FIR cases by the Anti-Corruption Branch. In the FIR No.19/2008 dated 24.6.2008, the applicant is stated to have been arrested on 9.9.2008 and also directed to be sent by the Criminal Court for judicial custody from 9.9.2008 upto 23.9.2008. The applicant had been placed under deemed suspension vide orders on 31.10.2008, which were subsequently revoked by the order dated 25.11.2009. The other FIR was No.03/2009, again registered by the Anti-Corruption Branch, Delhi. It is submitted in the CA that as per the proposal received from the Anti-Corruption Branch, the matter for according sanction of the competent authority for criminal prosecution is under process after which the charge-sheet would be filed.
5.1 Another objection raised is the case of the applicant being covered as per Clarification No.07 of the MACP Reference O.M. No.35034/3/2008-Estt (D) dated 9.9.2010 (Para 4.3 / CA). This is regarding consequential effect on the 2nd / 3rd financial upgradation under the MACP in cases where the financial upgradation had been deferred earlier on account of not being found fit or due to departmental proceedings.
5.2 Para 4.3/CA also raises a question mark about the applicants acquiring post graduation, stating that as per the records she had not been granted the requisite permission.
On all these grounds the learned counsel for the respondent Shri Rastogi would oppose the claims in the OA.
6. These objections on the part of the respondents would be rebutted by the applicants learned counsel Shri Yogesh Sharma. It would be submitted that as per the provisions of the MACP Scheme, acquiring the post graduation qualification was no more required. On the point of the criminal cases, it would be submitted by the learned counsel that all these had taken place subsequent to the relevant date i.e. 1.9.2008. Since on the date the applicant became entitled for the 3rd MACP benefit, she was neither under suspension, nor facing any charge sheet or disciplinary proceeding; these could not be construed as valid impediments. Shri Sharma would further argue that, in any case, mere registration of an FIR could not be a ground for depriving an otherwise eligible Government servant of the MACP benefit. Even the Clarification No.07/2009, being relied upon by the respondents, would be submitted not to be applicable in the present case. It would be the stand of the learned counsel that this was because the deferment of the applicants 2nd ACP under the old Scheme was not on account of any departmental proceeding, but due to non-fulfillment of the prescribed qualification.
Hence, as per the applicants learned counsel, the respondents action in withholding the grant of the 3rd MACP benefit is not sustainable in law. Besides depriving the applicant of the due financial claims relating to the service period, it would also be contended to have adversely affected the retrial dues.
7. A copy of the MACP Scheme has been enclosed with the OA as Annex. A/2. Its perusal shows that the Scheme was in supersession of the previous ACP Scheme and the clarifications issued thereunder. Further, along with the new Scheme, specific conditions had also been prescribed. The Condition No.18 relevant in the present context is extracted below:
18. 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 thereunder. 7.1 As per the settled law, in the matter of promotions, the relevant guidelines for dealing with cases of Government servants under cloud have been prescribed vide the DOP&T OM dated 14.9.1992. Issued in pursuance of the decision of the Honble Apex Court in Union of India etc Vs K.V. Janakiraman etc. {AIR (1991) SC 2010}, in three categories, the names of the concerned employees were to be kept under sealed cover i.e. (i) placement under suspension; (ii) pendency of a departmental proceeding; (iii) pendency of a criminal prosecution. The relevant date for the purpose was the date of consideration by the DPC. This meant that such employees were not to be immediately given the benefit of promotion, and the recommendation of the DPC in respect of the fitness of the employee for promotion, irrespective of any of the aforesaid disabilities, was to be kept in a sealed cover. The same was to be given effect to only after the disability in question ceased to be operational.
Further, the matter regarding what should be cut off point for the purpose of determining the pendency of a criminal prosecution, in the sealed cover procedures, came in for consideration of the Honble Apex Court in Union of India & Ors Vs Sangram Keshari Nayak {(2007) 6 SCC 704}. The law laid down was: Where the charge-sheet is issued subsequent to the recommendation for promotion that would not be a bar for promotion in the period prior to the issuance of the charge-sheet.
7.2 We find a merit in the contention of the applicants learned counsel that in the instant case mere registration of FIR would not pose a hurdle. As has been admitted by the respondents, in neither of the FIRs even now a charge-sheet has been issued. Similarly, the placement of the applicant under suspension was on 31.10.2008, which was later in point of time to the date the applicant became eligible for the MACP i.e. on 1.9.2008. Thus, these averments by the respondents would not stand in the way of the applicants case being considered for the financial upgradation as per the MACP Scheme.
7.3 Even the other argument of the respondents regarding the present case not being permissible on the grounds of the clarification no. 07 of MACP is not found to be tenable. The relevant extracts are as below:
S.No. Point of doubt Clarification 7 In a case where 1st and 2nd financial upgradions are postponed on account of the employees not found fit or due to departmental proceedings, etc. whether this would have consequential effect on the 2nd and 3rd financial upgradation. Yes. If a financial upgradation has been deferred/postponed on account of the employee not found fit or due to departmental proceedings, etc. the 2nd/3rd financial upgradations under MACPS would have consequential effect. (Para 18 of Annexure-1 of MACPS referred). Since the above clarification has been issued specifically with reference to para 18 of the Annex. I of the MACP Scheme, as extracted above, the earlier deferment of the 2nd ACP to the applicant would also not have an impact in the present case. In this context, it would be pertinent to mention that para 15 of the same Annex. has a much wider scope as mentioned below:
15. If a financial upgradations under the MACPS is deferred and not allowed after 10 years in a grade pay, due to the reasons of the employees being unfit or due to departmental proceeding, etc., this would have consequential effect on the subsequent financial upgradation which would also get deferred to the extent of delay in grant of first financial upgradation. As the clarification no. 07 does not refer to this para but only para 18, the contention of the learned counsel, Shri Sharma in this regard is also found to have merit.
7.4 The remaining argument regarding the applicant not obtaining prior permission of the competent authority before acquiring post graduation is not really of any relevance, considering that such a condition is no more a stipulation for grant of benefits under the MACP.
8. To conclude, for the detailed reasons as mentioned in para 7 above, we find the claims in the OA as justified. The OA is disposed with directions to the respondents to grant the benefit of financial upgradation to the applicant as per the provisions of the MACP Scheme. Needless to say, this would also include payment of arrears of differences of pay and allowances as well as corresponding revision of pensionary benefits of the applicant. Considering the facts of the case, the prayer for interest is not found acceptable.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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