Central Administrative Tribunal - Delhi
Shri Bal Kishan Son Of Late Shri Hari ... vs The Union Of India on 27 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3243 of 2010 New Delhi this the 27th day of May, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Shri Bal Kishan son of Late Shri Hari Chand, working as Sub Postmaster Shakarpur, Delhi under Delhi East Postal Division, R/o MPT 503, Sarojini Nagar, New Delhi-110023 & address for Service of notices is C/o Shri Sant Lal, Advocate, C.A.T. Bar Room, New Delhi-110001. .... Applicant ( By Advocate Shri Sant Lal) VERSUS 1. The Union of India, through the Secretary, M.O. Communication & I.T. Dept. of Posts, Dak Bhawan, New Delhi-110001. 2. The Chief Postmaster General, Delhi Circle, Meghdoot Bhawan, New Delhi-110001. 3. The Sr. Supdt. of Posts Offices, Delhi East Dn. Delhi-110051. .. Respondents ( By Advocate Shri Hilal Haider) O R D E R Dr. Dharam Paul Sharma, Member (J) :
The Applicant joined services with the respondents as a Packer in Group D cadre w.e.f. 1.3.1973. He was promoted to the cadre of Postal Assistant in Group C w.e.f. 23.9.1980 after passing the departmental examination for such promotion. He was granted promotion to the next higher pay scale of L.S.G w.e.f. 23.9.1996 on completion of 16 years satisfactory service in the Postal Assistant cadre under Time Bound One Promotion Scheme vide order dated 12.3.1997. He completed 26 years of service in the basic cadre of Postal Assistant whereupon he became eligible for consideration and placement in the next higher scale of Rs.5000-8000 of HSG-II under the B.C.R. Scheme. However, his case was not considered by the respondents. The applicant learnt that DPC was held on 31.7.2008 and considered the cases of the officers eligible for grant of next higher pay scale of Rs.5000-8000 and granted such placement to nine officials w.e.f. 1.1.2007 under the B.C.R. Scheme. The same DPC also considered and granted placement to other officers with effect from their respective due dates, i.e., w.e.f. 1.7.2007 and 1.1.2008 vide Memorandum dated 1.8.2008, copies of which are at Annexures A/3 and A/4. All of these persons who have been given higher placement were juniors to the applicant. Feeling aggrieved the applicant submitted his representation on 20.8.2008 followed by another representation dated 20.11.2008, copies of both these representations are at Annexures A/7 and A/8 respectively. These were followed by reminder dated 26.12.2008. The applicant did not receive any reply to these representations. However, in response to information received under RTI, the applicant learnt that his case for placement under B.C.R. Scheme has been ordered to be considered in Review DPC by the competent authority vide order dated 31.3.2009 and his representations have been disposed of accordingly. A copy of reply received from the respondents under RTI Act is at Annexure A/5. However, no Review DPC was held for about one year. The Review DPC was ultimately held on 29.3.2010 when the case of the applicant was considered and rejected as per communication dated 29.3.2010, a copy of which is at Annexure A/2. However, the reason for the same was not conveyed to the applicant. The applicant, therefore, applied for the minutes of the Review DPC under RTI. Upon receipt of a copy of the minutes of the Review DPC, it is learnt that the applicants case was rejected by the Review DPC in view of an FIR lodged against him on 29.10.2007. It is more than a year after the applicant completed 26 years of satisfactory service entitling him to financial upgradation under the B.C.R. Scheme. Feeling aggrieved, the applicant has filed the present OA, praying, inter alia, for grant of financial upgradation to the next higher pay scale of Rs.5000-8000 under B.C.R. Scheme from the due date, i.e., 1.1.2007 without giving any consideration to the FIR registered subsequently on 29.10.2007 with all consequential benefits.
2. In support of his claim, the applicant has inter alia submitted that Review DPC did not follow the prescribed rules and standing instructions of the Government in consideration of the case of the applicant. The applicant became entitled to next higher pay scale under B.C.R. Scheme on completion of 26 years of service on 23.9.2006. The service record of preceding five years is required to be considered by the DPC. It was, therefore, not open to the Review DPC to consider the criminal case that was registered on 29.10.2007 more than a year after he became entitled to financial upgradation under the B.C.R. Scheme. Reliance has been placed by the applicant on the case of Central Board of Direct Taxes vs. Dr. O.N. Tripathi and others, 1991 (2) SLJ-70 SC, wherein it has been held that the Selection Committee cannot take into consideration the record of future years for promotion in the earlier year. Reliance has also been made on the case of Union of India and others vs. K.V. Jankiraman, 1992 1) ATJ 373 SC, wherein it has been held that the disciplinary/criminal proceedings can be said to have commenced when the chargesheet in the criminal case or a charge memo in a departmental proceedings is issued to the employee and sealed cover procedure would be resorted to only after the issuance of charge memo/ chargesheet. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. Relying upon the judgment in K.V. Jankiraman case, the Patna High Court in the case of Mr. Aun Mohammed vs. State of Bihar and others, 205 (1) ATJ-215, directed the authorities to consider the case of the petitioner for promotion as mere filing of the FIR would not be a bar. The applicants contention is that his case is on a stronger footing as FIR was registered against him on 29.10.2007 while his promotion to the next higher pay scale was due w.e.f. 23.9.2006/1.1.2007. The applicant also places reliance on C. Chandrasekharan and others vs. Director Postal Services and others, 1989 (2) ATR 380 (CAT Ernakulam Bench), wherein the respondents were directed to get the suitability of the petitioner for promotion to Lower Selection Grade reviewed by a DPC as in 1982 without taking into account any event subsequent to that date.
3. Per contra, in their reply, the respondents maintained that Screening Committee for financial upgradation in B.C.R. Scheme at its meeting held on 28.3.2009 did not recommend the case of the applicant due to pending criminal case against him. It has been submitted that the Screening Committee and Review Screening Committee held on 28.3.2009 and 29.3.2010 respectively and the FIR was lodged on 29.10.2007 i.e. before the dates of meeting of the Screening Committee. It has further been submitted that ACP Scheme guidelines provide that in the matter of disciplinary/penalty proceedings, grant of benefit under ACP Scheme are subject to rules governing normal promotion.
4. The applicant has filed rejoinder, alleging concealment by the respondents of material facts. Accordingly, it has been submitted that DPC was held on 31.7.2008 to consider the cases of the officials for placement in the next higher pay scale under B.C.R. Scheme, who had become eligible w.e.f. 1.7.2007, 1.7.2007 and 1.1.2008. The case of the applicant was not considered in the said DPC. The respondents have admitted that the applicant had completed 26 years of qualifying service on 7.10.2006. Thus, the applicant was eligible for placement in the next higher pay scale under B.C.R. Scheme. The respondents have not given any reasons for not considering the case of the applicant in the said DPC held on 31.7.2008. Had his case been considered by the Committee at its meeting held on 31.7.2008, he would have been granted the benefit of financial upgradation from the due date which would not and could not have been withdrawn upon subsequent registration of FIR after about a year.
5. We have given our careful consideration to the respective submissions made by both the parties and we have also carefully perused the pleadings of the case.
6. The B.C.R. Scheme like the ACP Scheme is more in the nature of a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Financial upgradation to the next higher pay scale under the Scheme does not amount to functional/regular promotion. Nor does it require creation of new post for the purpose. These are distinct from vacancy based regular promotion. Financial upgradation under the Scheme is personal in nature and granted upon completion of prescribed period of service. The Scheme inter alia provides for advance processing of cases by the Screening Committee constituted for the purpose.
7. A plain reading of Office orders dated 1.8.2008 as at Annexures A/1, A/3 and A/4 clearly reveals that placement under the B.C.R. Scheme are subject to two conditions, namely, completion of 26 years of qualifying service on the crucial date and no penalty in currency against the person whose case is under consideration for placement in the next higher pay scale under the B.C.R. Scheme. In the present case, the applicant has completed 26 years of service on 23.9.2006. Under the Scheme, he is eligible for placement in the next higher pay scale w.e.f. 1.1.2007. In case, the applicant has been granted the financial upgradation, the same was not liable to be withdrawn with reference to the subsequent registration of FIR against him. On this date, there was no penalty in currency against the applicant. Had the Committee held its meeting in time, the applicant would have got his placement under B.C.R. Scheme w.e.f. 1.1.2007 on which date no FIR was lodged against him. Furthermore, his placement under B.C.R. Scheme has to be processed on its own merits having regard to satisfactory completion of requisite period of service. The pendency of criminal case, if any, would have bearing on the question as to whether sealed cover needs to be resorted to in the case or not. This by itself would not disentitle the applicant to the grant of financial upgradation to which he is otherwise entitled under the Scheme.
8. Law on the point is well settled that at the time of consideration of the cases of the Government servants for promotion, details of Govt. servants in the consideration zone for promotion falling under the following categories are required to 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.
In terms of the judgment of the Honble Supreme Court in the case of Union of India vs. K.V. Janakiraman, AIR 1991 SC 2010, no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge-sheet etc. If in the matter of corruption/dereliction of duty, etc., there is a serious complaint and the matter is still under investigation of CBI or otherwise, the Government is within its right to suspend the official. In that case, the officers case for promotion would automatically be required to be placed in the sealed cover. DPC is required to consider the cases of all persons, who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, the case of the applicant in the zone of consideration is not covered by any of the three situations, referred to above, only this fact is to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, a simple vigilance clearance would need to be furnished. Vigilance clearance/ status would have no other significance and would not be a factor in deciding the fitness of the officer for promotion on merit. Furthermore, sealed cover procedure cannot be resorted to by the Review DPC, if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC. Reference in this regard may be made to Swamys Complete Manual on Establishment and Administration, Eleventh Edition 2008 pages 883-885.
9. In R.P. Singh vs. Government of NCT of Delhi and others in OA 1604/2009 decided on 23.12.2009, a Coordinate Bench of this Tribunal has observed that It is by now a settled proposition of law that promotion of an employee cannot be stalled by putting his case in sealed cover unless, if the employee is facing a departmental enquiry, charge has been framed against him by the concerned authority, or if he is facing a criminal case, charge has been framed by the concerned criminal court. In this case, the applicant was entitled for first financial upgradation under ACP Scheme on 27.2.1992 and second financial upgradation on 27.2.2010. But the respondents delayed consideration of the same insofar as first upgradation was concerned by almost 10 years and so far as second upgradation was concerned by about 7 years. When ultimately the matter came up for consideration, the applicant was involved in a criminal case and suspended as well and accordingly his case was kept in sealed cover by the respondents. The Tribunal did not find any justification whatsoever for the respondents to keep the case of the applicant therein in sealed cover and accordingly, the same was quashed and set aside and the respondents were directed to make available to the applicant both first and second financial upgradations under the ACP Scheme from the due dates as mentioned above.
10. In view of the aforesaid, the DPC seems to have misdirected itself while holding that the applicant was not entitled to financial upgradation under B.C.R. Scheme with effect from due date, i.e., 1.1.2007 since the FIR under Section 154 of Cr. P.C. lodged in Geeta Colony Police Station on 29.10.2007. The Committee ought to have considered the case of the applicant for placement under the B.C.R. Scheme on its own merits having regard to the provisions of that Scheme as on that date without taking into consideration the factum of registration of an FIR after about more than a year of the crucial date, especially in the absence of any enabling provision to that effect. It needs to be noted that financial upgradation upon completion of prescribed period of service is distinct vacancy based regular promotion. As such financial upgradation is granted from the date due even though Screening Committee meeting has met at a later date. This is clear from the office orders dated 1.8.2008 at Annexures A-3 and A-4 whereunder placement under B.C.R. Scheme has been granted w.e.f. 1.1.2007. 1.7.2007 and 1.1.2008 thought the DPC for this purpose has been held on 31.7.2008.
11. In view of the aforesaid, this Application is allowed. The respondents are directed to have the case of the applicant reviewed by the DPC in accordance with the applicable rules having regard to the observations made hereinabove. In case the DPC recommends the applicant for placement under the B.C.R. Scheme, he shall also be granted all consequential benefits from the due date. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. No order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/ravi/