Central Administrative Tribunal - Delhi
Shri K.M.Agrahari vs Union Of India Through on 16 November, 2011
CENTRAL ADMINISTRTIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2577/2008
OA 2578/2008
OA 2579/2008
OA 2580/2008
and
OA 2581/2008
New Delhi this the 16th day of November, 2011
Honble Mr. G.George Paracken, Member (J)
Honble Dr. Veena Chhotray, Member (A)
OA 2577/2008
Shri K.M.Agrahari, S.R.E.O (Retired),
K/P 295, Maurya Enclave,
Pitampura, Delhi-110088 Applicant
(By Advocate Shri P.C.Mishra)
VERSUS
Union of India through
1. Director (Employment),
Directorate of Employment,
Govt. of NCT of Delhi,
2, Battery Lance, Delhi.
2. Chief Secretary,
Govt. of NCT of Delhi,
5th Wing. Delhi Secretariat,
Delhi.
3. Secretary to Govt. of India,
Ministry of Home Affairs,
UTS-II (Delhi), North Block,
Central Secretariat,
New Delhi. Respondents
(By Advocate Shri Vijay Pandita )
OA 2578/2008
Shri K.M. Agrahari, S.R.E.O (Retired),
K/P 295, Maurya Enclave,
Pitampura, Delhi-110088 Applicant
(By Advocate Shri P.C.Mishra)
VERSUS
Union of India through
1. Director (Employment),
Directorate of Employment,
Govt. of NCT of Delhi,
2, Battery Lance, Delhi.
2. Chief Secretary,
Govt. of NCT of Delhi,
5th Wing. Delhi Secretariat,
Delhi.
3. Secretary to Govt. of India,
Ministry of Home Affairs,
UTS-II (Delhi), North Block,
Central Secretariat,
New Delhi. Respondents
(By Advocate Shri Vijay Pandita )
OA 2579/2008
Shri K.M. Agrahari, S.R.E.O (Retired),
K/P 295, Maurya Enclave,
Pitampura, Delhi-110088 Applicant
(By Advocate Shri P.C.Mishra)
VERSUS
Union of India through
1. Director (Employment),
Directorate of Employment,
Govt. of NCT of Delhi,
2, Battery Lance, Delhi.
2. Chief Secretary,
Govt. of NCT of Delhi,
5th Wing. Delhi Secretariat,
Delhi.
3. Secretary to Govt. of India,
Ministry of Home Affairs,
UTS-II (Delhi), North Block,
Central Secretariat,
New Delhi. Respondents
(By Advocate Shri Vijay Pandita )
OA 2580/2008
Shri K.M. Agrahari, S.R.E.O (Retired),
K/P 295, Maurya Enclave,
Pitampura, Delhi-110088 Applicant
(By Advocate Shri P.C.Mishra)
VERSUS
Union of India through
1. Director (Employment),
Directorate of Employment,
Govt. of NCT of Delhi,
2, Battery Lance, Delhi.
2. Chief Secretary,
Govt. of NCT of Delhi,
5th Wing. Delhi Secretariat,
Delhi.
3. Secretary to Govt. of India,
Ministry of Home Affairs,
UTS-II (Delhi), North Block,
Central Secretariat,
New Delhi. Respondents
(By Advocate Shri Vijay Pandita )
OA 2581/2008
Shri K.M. Agrahari, S.R.E.O (Retired),
K/P 295, Maurya Enclave,
Pitampura, Delhi-110088 Applicant
(By Advocate Shri P.C.Mishra)
VERSUS
Union of India through
1. Director (Employment),
Directorate of Employment,
Govt. of NCT of Delhi,
2, Battery Lance, Delhi.
2. Chief Secretary,
Govt. of NCT of Delhi,
5th Wing. Delhi Secretariat,
Delhi.
3. Secretary to Govt. of India,
Ministry of Home Affairs,
UTS-II (Delhi), North Block,
Central Secretariat,
New Delhi. Respondents
(By Advocate Shri Vijay Pandita )
O R D E R
Honble Mr. G. George Paracken, Member (J) All these Original Applications are interlinked and, therefore, they are disposed of by this common order. All of them are emanating from the respective orders in OA Nos. 1209/2008, 1345/2008, 1346/2008, 1347/2008 and 1348/2008 filed by the applicant earlier.
2. In OA-1209/2008 (supra), his prayer was to direct the respondents to release the third stagnation increment of Rs.200/- w.e.f. 01.1.2002 and re-calculate the subsistence allowance payable to him and to pay the arrears. In OA-1345/2008 (supra), his grievance was against the respondents letter dated 5.1.2007 regarding calculation of average emoluments for the purpose of determining the pensionary benefits payable to him. His prayer was to direct the Respondents to compute the provisional pension by releasing 3rd stagnation increment and two higher pay scales, first in the scale of Rs.10,000-15200/- and the 2nd in the scale of Rs.12,000-16500/- w.e.f. 9.8.99 under ACP Scheme and declare that the Leave Encashment being a one time settlement, it cannot be subject to revision and, therefore, to direct the Respondent No.1 to recalculate his entitlement for leave encashment as per Rules and also to direct the respondents to release the gratuity and pension commutation. In OA-1346/2008 (supra), he was seeking a direction to the respondents to set aside the pension calculation sheet dated 17.3.2008 and to re-compute the same taking into account the third stagnation increment of Rs.200/- w.e.f. 1.1.2002 and two higher pay scales as per ACP Scheme w.e.f. 19.8.99. In OA-1347/2008 (supra), he was seeking a declaration that the provisional pension is the full and final pension as per Pension Rules. Other reliefs sought therein were for a declaration that leave encashment is one time settlement and it was not subject to revision and, therefore, to set aside the leave calculation sheet dated 17.3.2008, to release the third stagnation increment of Rs.200/- w.e.f. 1.1.2002 with consequential benefits including arrears of subsistence allowance, to grant the benefit of ACP Scheme w.e.f. 19.8.99 with arrears and to re-calculate the last pay thereafter. In OA-1348/2008 (supra), he sought the declaration that he was entitled to second ACP scheme of Rs.10,000-15,200 and 12,600-16500 w.e.f. 9.8.1999. The reliefs sought in all those OAs were as under:
OA-1209/2008 (1) release the third stagnation increment of Rs.200/- w.e.f. 01.1.2002 so that arrears of subsistence allowance could be recalculated and arrears paid to him.
OA-1345/2008 (1) Set aside leave encashment calculation & pension calculation sheet dated 17.3.2008 (Annex.I) and 3.3.2008 (Annex.II);
(2) Set aside communication F.Emp/1(211) /96/ Admn/ Vig./159 dated 05.01.07 Appex.II(B);
(3) Direct the Respondents to compute the provisional pension by releasing 3rd stagnation increment and two higher pay scales of Rs.10,000-15200/- and 2nd pay scale of Rs.12,000-16500/- w.e.f. 9.8.99 under ACP Scheme;
(4) Declare that leave encashment is one time settlement and is not subject to revision and direct the Respondent No.1 to recalculate the leave encashment as per Rules;
(5) Direct the respondents to release the Gratuity and Pension Commutation and (6) Award exemplary cost and damages and interest on the above delayed payment/amount to the applicant and (7) Any other order/direction in the facts and circumstances of this case. OA-1436/2008 In OA No. 1346/2008 (supra), the applicant sought the following reliefs:-
(a) Set aside leave encashment calculation & pension calculation sheet dated 17.3.2008 (Annex.I) and:
Set aside Provisional pension calculation sheet dated 03.03.2008 vide Annex.11, and:
Set aside the orders dated 28.06.2002 and 11.07.2002 vide Annex.III & III(a), and Direct the respondents to compute the provisional pension taking into consideration of (I) release the third stagnation increment of Rs. 200/- w.e.f. 01.01.2002, (II) two higher pay scales, as per A.C.P. Scheme w.e.f. 19.8.1999. Direct the respondents to give two higher pay scales, as per A.C.P. Scheme w.e.f.19.8.99, and give arrears accrued thereon and Any other order/direction in the facts and circumstances of this case. OA-1347/2008
1) Declare that leave encashment is one time settlement and is not subject to revision and (2) Set aside the leave encashment sheet dated 17.3.08, Annex.I and, (3) Declare that Provisional Pension is the full and final pension as per Pension Rules.
(4) Set aside Leave Encashment calculation sheet dated 17.03.08, Annex.I and, (5) Direct the respondents to release the third stagnation increment of Rs.200/- w.e.f. 01.01.2002 so that arrears of subsistence allowance could be recalculated and arrears be paid to the applicant and (6) Direct the Respondents to give two higher pay scales, as per A.C.P. Scheme w.e.f. 19.8.99, and give arrears accrued thereon and (7) Direct the Respondents to re-calculate the last pay after giving two A.C.P. in higher pay scales and then calculate leave encashment payments and release the same with interest and (8) Award exemplary cost and damages and interest on the above delayed payment/amount to the applicant and (9) Any other order/direction which this Honble Court may deem fit and proper in the facts & circumstances of this case. OA-1348/2008 (1) Declare that Provisional Pension is the full and final pension as per Pension Rules.
(2) Set aside pension calculation sheet dated 17.3.08, Annex.I and, (3) Declare that Respondents to grant two higher pay scales of Rs.10,000-15200/- and 2nd pay scale of Rs.12,000-16500/- w.e.f. 9.8.99 under ACP Scheme w.e.f. 9.8.99, and (4) Direct the Respodnents to compute the provisional pension by including two higher pay scales of Rs.10,000-15200 and 2nd pay scale of Rs.12,600-16500/- w.e.f. 9.8.99 under ACP Scheme, (5) Award exemplary cost and damages and interest on the above delayed payment/amount to the applicant and (6) Any other order/direction which this Honble Court may deem fit and proper in the facts & circumstances of this case.
3. All the above OAs were disposed of by this Tribunal by identical but separate orders dated 1.9.2008 directing the respondents to grant an opportunity of personal hearing to the applicant and thereafter to pass reasoned and speaking orders on all the issues raised by him in the OAs.
4. Pursuant to the directions in OA-1209/2008, the respondent rejected the applicants representation and passed the order dated 10.11.2008 which is as under:
GOVT. OF NCT OF DELHI DIRECTORATE OF EMPLOYMENT 2-BATTERY LANE: DELHI-110054 No.F.57(13)/2008/Lit./Emp./8990 Dated 10.11.08 ORDER The O.A. No. 1209/2008 of the applicant/representationist was disposed of by the Honble CAT on 1.9.2008 directing the respondent to treat his OA as his representation and dispose of the same within a period of six weeks from the date of receipt of the order.
Accordingly, Sh. K.M. Agrahari was requested to appear before me along with matter and documents in support of his claim. Accordingly, he appeared before me on 30.10.2008 at 10.30 a.m. in my office.
According to Sh. K.M. Agrahari the competent authority has erred in not releasing third stagnation increment of Rs. 200/- which according to him became due w.e.f. 1.1.12002 . He has demanded that the third increment be released to him and the difference in subsistence allowance be also paid to him along with interest.
After hearing him at length and going through the records of the case, I notice an Office Order No.1923 dated 24.12.2002 was passed by E.O. (Admn.) wherein applicant/representationist pay had been refixed by the competent authority following his reversion to the post of AEO (Technical).
As per FR 26, a government servant is entitled to earn the stagnation increment only after completion of two years of duty after reaching the maximum stage of scale of pay held by the government servant. As per Office Order No.1923 dated 24.12.2002 the scale of pay and stage therein for the representationst was placed as on 01.01.1996 at Rs. 9000/- in the pay scale of Rs.5500-175-9000. He was allowed first stagnation increment of Rs.175 w.e.f. 01.01.1998 raising his basic pay to Rs.9175/-. Second stagnation increment of Rs.175/- was also granted to him w.e.f 01.01.2000 raising his basic pay from Rs.9175/- to Rs.9350/-. For getting third stagnation increment represntationist was required to prove that he had rendered duty for a period of two years of service after 01.01.2000 when he earned last stagnation increment raising his pay from Rs.9175/- to 9350/-.
It is on record that Sh. K.M.Agrahari was placed under suspension by the competent authority on 03.08.2001 and he remained under suspension up to 26.06.2002. Although he was reinstated in service, his two departmental proceedings are pending under consideration of the President of India. Therefore, this suspension period as on date cannot be considered as having been spent on duty, to be considered under FR 26 for grant of increment. Any such decision could violate provisions of FR 54 (1). This decision can be taken only when we know the decision of the President of India.
Sh. Agrahari claims he is entitled to be given stagnation increment at the rate of Rs.200/-. This preposition is not acceptable. Since the quantum of increment in this scale of pay attached to the post of AEO (T) is limited to Rs.175. He cannot claim increment at the rate of Rs.200/- which he would have been entitled if he was not reverted from the post of SREO. Although Sh. Agrahari had approached to the Supreme Court of India in Civil Appeal No.2678-79 of 2003 and requested for stay of operation of orders reverting him, his request was not accepted by the Supreme Court of India.
In view of above, I am of the view that Sh. K.M.Agrahari has been rightly denied the third stagnation increment. However, his request for the same can be considered after necessary orders under FR 54 (1) regulating his suspension period w.e.f. 03.08.2001 to 26.06.2002 are passed by the competent authority.
( K.S.Wahi ) Secretary-cum-D.E. Sh. K.M.Agrahari KP-295, Maurya Enclave, Pitampura, Delhi-110034.
5. Pursuant to the directions in OAs 1345/2008, 1346/2008, 1347/2008 and 1348/2008, the respondents passed the common impugned order dated 10.11.2008, which reads as under:-
GOVT. OF NCT OF DELHI DIRECTORATE OF EMPLOYMENT 2-BATTERY LANE: DELHI-110054 No.F.57(16)/2008/Lit./Emp./8991 Dated 10.11.08 ORDER The Central Administrative Tribunal while disposing of O.A. No.1345, 1346, 1347 and 1348 of 2008 filed by Sh. K.M. Agrahari has directed that the applications of Sh. K.M. Agrahari before this Tribunal may be treated as representations and be disposed of with in a period of six weeks from the date of the receipt of the Order.
Since, it was not possible to dispose of these representations without hearing Sh. Agrahari, he was requested to assist the undersigned in understanding his grievance. Sh. Agrahari appeared before the undersigned on 30th October, 2008 when the officers of the Department of Employment were also present. According to Sh. Agrahari, his dues on account of leave encashment and pension etc. have not been calculated/correctly. He states that his dues should have been calculated, ignoring the orders of the Chief Secretary reverting him to the post of Assistant Employment Officer (Technical) a few days before his superannuation. Further that consequential Office Order No.1923 dated 24.12.2002 should not operate since it was passed after his retirement from government service. Besides that his dues on account of leave encashment and payable pension be calculated after releasing third stagnation increment in the scale of pay of SREO and granting him benefit under the Assured Career Progress (ACP) of Government of India.
I have heard Sh. Agrahari at length. I have also heard Employment Officer (Admn.) and gone through the documents produced by both of them. I observed as follows:-
Sh. K.M. Agrahari had been reverted to the post of A.E.O.(T) by and under the orders of Chief Secretary dated 28.06.2002 that was passed following order of the Honble Delhi High Court in a CWP No.2883 of 1999. Being aggrieved of this order of Chief Secretary above referred Sh. Agrahari had filed a petition in the Supreme Court of India which is listed Civil Appeal 2678-79, wherein the Supreme Court of India is reported to have declined his request for grant of stay order.
I have seen a copy of Office Order No.1923 dated 24.12.2002 which was passed by the competent authority following reversion of Sh. Agrahari from the post of SREO to the AEO (T). As per this order Sh. Agrahari was placed in the pay scale of Rs.5500-175-9000 and his pay was fixed at Rs.9000/-i.e. maximum stage of the scale of pay as on 01.01.1996. Further that the competent authority had allowed Sh. Agrahari two additional increments as stagnation increments in the scale, (i) with effect from 01.01.1998 and (ii) with effect from 01.01.2000 raising his pay from Rs.9000/- to Rs.9175/- and from Rs.9175/- to Rs.9350/- respectively.
On careful consideration of the matter, I decide his representation as follows:-
1. It was not possible to ignore the order of reversions passed by the competent authority, more particularly in view of the fact that the Supreme Court of India where this order was challenged, had declined to say operation of that order.
As per the provisions made in rule 39 of CCS(Leave) Rules 1972 maximum period of leave that can be encashed on superannuation of a government servant is 300 days and the rate at which encashment is done is equivalent to basic pay plus dearness allowance last drawn. I have seen records and observed that Sh.Agrahari has been given the benefit of leave encashment of 300 days. Further that encashment has been allowed at the rate allowed under rule 39. There is no infirmity in the leave encashment order.
I note that Sh. Agrahari has been paid provisional pension under rule 69 of the CCS(Pension) Rules, 1972 and he has accepted the same under protest as per the directions of the Honble Supreme of India. Two factors that regulate the quantum of pension are:- (i) 10 monthly average pay as on the date of superannuation, and (ii) length of service. The pension computing authority while calculating provisional pension has adopted Rs. 5280/- as 10 months average pay and length of service as 31 years 11 months 03 days. This dispute centers around what was the correct 10 monthly average pay of Sh. Agrahari and whether correct factor has been used to work out payable pension in his case. I note that it has been worked out differently than what should have been calculated in accordance with the order No. 1923 dated 24.12.2002. Sh Agrahari had taken up issue regarding correctness of payable pension before the Supreme Court of India in LPA No. 22862-00863/2002 (Civil Appeal No. 2678-2679 of 2003). Stand of the Department before the Honble Supreme Court of India was that third stagnation increment for the present cannot be considered because, it depends on the outcome of departmental proceedings at present pending before the President of India and passing of an order under FR54 (1) by the competent authority. The Honble Supreme Court of India had considered pleading of Sh.Agrahari. After hearing Sh. Agrahari the Supreme Court of India did not give him any concessions either on account of claim for release of 3rd stagnation increment or ACP benefit or stay of operation or order reverting him from the post of SREO to AEO (T). The Honble Supreme Court of India vide its order dated 04.02.2008 had directed Sh. K.M.Agrahari to accept the payment under protest and in the event of proceedings going in his favour the government shall be liable to pay the difference with interest. In view of the Supreme Court of India decision, it is difficult to take any contrary review in the matter.
This leaves only one question yet to be answered and it relates to whether Sh.Agrahari in the facts and circumstances of the case is entitled to be given the benefit of ACP under scheme of the Government of India. The benefit under ACP scheme is regulated at par with promotion in the hierarchy. The only difference between regular line promotion and grant of benefit under ACP scheme, being that in later case it is restricted to financial benefit without raising the status of government servant, in other words, before granting either promotion in the hierarchy or granting benefit under ACP, all requirements of promotion have to be complied with. In this case, it is on record that Sh. Agrahari is facing one criminal case (FIR No. 274/2001 u/s 409 of IPC, investigation by Economic offence Wing) and two departmental proceedings under rule 14 of CCS (CCA) rules, 1965. Therefore, he is not free from vigilance angle. In these circumstances, in my view, he is not entitled to ACP hence his request is rejected.
6. The applicant again challenged both the aforesaid orders dated 10.11.2008 in these OAs. The brief facts common to all of them are delineated here. The applicant was initially appointed as Assistant Employment Officer (Technical) [AEO (Tech.) for short]. Later on, he was promoted as Sub Regional Employment 0fficer (SREO for short) on 18.03.1994 but with retrospective effect from 03.09.1974. The said promotion was the cause of contention in various litigations filed by the Applicant, Private respondents and Official respondents in different fora upto the Apex Court.
7. One of the colleagues of the Applicant, namely, Mrs. Manju Karmeshu, inter-alia,, challenged the aforesaid order of promotion of the applicant in OA. 353/1996. Thereafter, the official respondents decided to set up a Departmental Promotion Committee (DPC for short) to review the aforesaid promotion. The applicant, inter-alia, challenged the said decision in OA 2518/1996. This Tribunal, by its common order dated 21.12.1998 in both the aforesaid OAs, held that the aforesaid promotion of the applicant as SREO has raised number of fundamental issues but finally upheld the decision of the Respondents to constitute a Review DPC to reconsider the said promotion.
8. The Applicant challenged the aforesaid Order of this Tribunal before the Honble High Court of Delhi, vide CWP No. 2883/99 and the High Court, vide its judgment dated 30.05.2002, dismissed the same with certain directions as follows:
The relief is still illusory as the petitioner is again thrown at the mercy of the official respondents who would consider his case in accordance with the directions of the learned Tribunal contained in the impugned judgment. Having regard to these peculiar facts and circumstances, we would like to issue the following directions:
The case of the petitioner for further promotions to various posts as per the Recruitment Rules applicable to him, to be considered forthwith and in any case, before the retirement of the petitioner.
II. It is hoped that while considering the case of the petitioner, the official respondents shall keep in view the aforesaid peculiar facts which made the petitioner struggling for his legitimate rights in his entire career and also keeping in view the fact that the petitioner was after all found suitable for promotion to the post of SREO, and therefore, he would not be deprived of his legitimate promotions now in his own cadre and his case would be considered objectively, dispassionately and without any bias.
III. The petitioner shall be entitled to cost of Rs.10,000/- even when we are dismissing the writ petition of the petitioner. We only hope that the official respondents shall not be wanting in their solemn duty which they have to discharge and the petitioner would find a smile on his face at least at the end of his career and would go home as a happy person.
9. The Applicant filed Civil Appeal No. 2678-79 of 2003 before the Honble Supreme Court against the aforesaid judgment of the High Court but it was dismissed on 03.02.2010 i.e. during the pendency of these OAs.
10. During the pendency of the CWP 2883/99 (supra), the Respondents placed the applicant under suspension w.e.f.3.8.2001 pending departmental enquiry. During the period of suspension, they have also held the Review DPC on 24.06.2002 to re-consider his case for promotion. According to the said Review DPC, the promotion of the Applicant as SREO was not valid and consequently he was also not eligible for further promotion to the post of Assistant Director or Joint Director. Thereafter, the respondents revoked his suspension, vide order dated 26.6.2002, and issued a notice dated 27.06.2002 to him proposing to revert him to the post of AEO (Tech)-II with retrospective effect from 3.9.1974 and calling upon to show cause against it, if any, by 1.00 PM on 28.06.2002. According to the Applicant, the said notice was never served upon him and, therefore, he could not reply to the same within the stipulated time of one day. The respondents, however, passed the impugned order dated 28.06.2008 observing that he failed to submit any representation and revoked the order dated 18.03.1994 promoting him to the post of SREO ( ex-cadre) w.e.f. 3.09.1974) and reverted him to the post of AEO (Tech.) w.e.f. the same date. However, the pay and allowances drawn by him in the promoted post from the date of his promotion till date was not to be recovered. The aforesaid order dated 28.06.2002 in reproduced as under:-
GOVT. OF NCT OF DELHI DIRECTORATE OF EMPLOYEMENT 2-BATTERY LANE; DELHI.
No.F.5(77) Admn. /99/ 5581-92 Dated: 28.6.2002. O R D E R
Whereas as per the directions contained in the judgment dated 30.5.2002 of the Honble Delhi High Court in CWP No. 2883/99 read with judgment dated 21.12.1998 of the Honble C.A.T. in OA no. 393/96 and 2518/96, meeting of Review DPCs of the Directorate of Employment and Directorate of T&TE was held in a composite manner on 24.06.2002.
And whereas the Review DPC has observed that the promotion of Sh.K.M. Agrahari from the post of AEO(T) to the post of SREO(Ex-cadre) w.e.f. 3.9.1974 as per recommendations of the DPC held in the month of March, 1994 was irregular as the RRs dated 6.5.1965 on the basis of which he was promoted were not applicable to him.
And, whereas as per the direction of the Honble CAT, the aforementioned recommendations of the DPC were formally made known to him by way of a Show Cause Notice. He was further directed to submit his representation, if he so desired, against the aforesaid Show Cause Notice by 1.00 P.M. of 28th June, 2002.
And whereas, Shri K.M. Agrahari has failed to submit any representations in response to the said Show Cause Notice.
Now, therefore, I Shailaja Chandra, Chief Secretary, Govt. of NCT of Delhi hereby revoke the orders dated 18.3.1994 promoting Shri K.M. Agrahari to the post of SREO(Ex-cadre) w.e.f. 3.9.1974 and revert him to the post of Assistant Employment Officer (Technical) w.e.f. 3.9.1974. However, the pay and allowances drawn by Shri K. M. Agrahari in the promoted post from the date of his promotion till date shall not be recovered.
Sd/-
(SHAILAJA CHANDRA)
CHIEF SECRETARY
GOVT. OF NCT OF DELHI
No. F.5(77)/Admn./99/5581-92 Dated 28.06.2002
Copy to the
1. OSD to the Chief Secretary, Govt. of NCT of Delhi.
2. Director (Employment), GNCT OF DELHI, 5-Sham Nath, Delhi-54.
11. After two days, the Applicant retired on superannuation on 30.06.2002. Later, vide order dated 11.07.2002, he was transferred and posted as Assistant Employment Officer (Tech.) in District Employment Exchange (West), Pusa, New Delhi for all purposes. Again, vide their subsequent office order No.1923 dated 24.12.2002, they have refixed his pay notionally at Rs.9000/- w.e.f. 1.1.1996 in the scale of Rs.5500-175-9000. He was also allowed the first and second stagnation increments of Rs.175/- each from 1.1.1998 and 1.1.2000 respectively. However, the third stagnation increment due to him w.e.f 1.1.2002 was denied to him for the reason that he did not render duty w.e.f. 3.8.2001 to 26.6.2006 during which period he was under suspension. Further, even after he was reinstated w.e.f. 26.6.2006, two departmental proceedings were pending against him and finally he retired from service after two days on 30.6.2002. Consequently, they have also refixed his pension on the basis of the pay as refixed above notionally as AEO (Tech), vide their letter dated 23.1.2008 with the result that his entitlement of his pension has been reduced substantially.
13. According to the applicant, the sole purpose of issuing the order of reversion dated 28.6.2002 was to reduce his pensionary benefits and to ruin him at least in his retired life as respondents could not do so during his service period. He has also submitted that no order which is adverse to a Government servant could be passed with retrospective effect as the same is in violation of the principles of natural justice. Further, he has invited our attention to the advice of the Accounts Officer (Tech) tendered to the respondents vide U.O. No. F.4/Adv./16/PrAO/T-I/07/5829 dated 29.03.2007 according to which, as per provision of rule 34 of the CCS (Pension) Rules, 1972, average emoluments shall be determined with reference to the emoluments drawn by the Govt. servant during the last 10 months of its service and as per the provision of Rule 33 of said Rules the expression emoluments means basic pay as defined in rule 9 (21) (a) (1) of F.R which a Government servant was receiving immediately before his retirement. He has also submitted that there is no provision under the CCS (Pension) Rules, 1972 for calculation of average emoluments notionally.OA 2577/2008
14. The reliefs sought by the applicant in this OA are as under:
(1) Set aside the order No. F.57 (18)/2008/Lit/Emp./8992 dated 10.11.2008 (2) Set aside the orders dated 28.06.2002 (3) Award exemplary cost and damages
15. The Applicant has once again challenged the order dated 28.6.2002 revoking the order dated 18.3.1974 promoting him as SERO w.e.f. 3.9.1974 retrospectively and reverting him to the post of Assistant Employment Officer (Technical) on the ground that the mandatory provisions contained in the CCS (Pension) Rules 1972 have not been complied with and the provisional pension already granted to him shall be the final pension as the same cannot be less than the provisional pension. Further, the respondents have given effect to their orders dated 27.6.2002, 28.06.2002 and 11.07.2002 only on 11.07.2002 i.e. after he has already retired from service. As all those orders have never been served upon him during his service, they are illegal and not maintainable. Further, the order dated 28.6.2002 is against the provisions of the Constitution of India and in violation of Rule 3111(2) of the Constitution, principles of natural justice and the statutory pension rules. The other order dated 10.11.2008 sought to be set aside in this OA has also been sought to be set aside in other OAs No.2577/2008, 2578/2008, 2579/2008 and 2581/2008 and it has already been extracted earlier in this order. According to the said order, (i) There is no infirmity in the leave encashment order issued to the applicant under rule 39 of CCS (Leave) Rules, 1972. (ii) The provisional provision sanctioned to the applicant under rule 69 of the CCS Pension Rules, 1972 is in order and (iii) The applicant was not entitled for grant of neither the ACP benefits nor promotions either from the post of SREO or AEO (Tech.)
16. The respondents in their reply have submitted that, aggrieved by the judgment of the Honble High Court dated 30.5.2002 and the consequential order dated 28.6.2002 passed by the respondents reverting the applicant as AEO (II), he had already filed Review Petition No. 6806/2002 but the same was dismissed on 3.9.2002. Thereafter, he had filed SLP No.22862-63/2002 (Civil Appeal No. 2678-79/2003) before the Honble Supreme Court and the same has also been dismissed but he has concealed those facts from this Tribunal in OA 1346/2008 (Supra) filed by him earlier.OA 2578/2008
17. The reliefs sought by the applicant in this OA are as under:
(1) Set aside the orders dated 10.11.2008, Annex-I to the OA.
(2) Direct the Respondents to re-calculate the leave encashment on the basis of the last pay which became due after release the third stagnation increment of Rs.200/- w.e.f. 01.01.2002 and further giving two A.C.P; first ACP in higher pay scale in the next two pay scale of Rs.10,000-15,200/- and 2nd ACP in the pay scale of Rs.12,000-16,500/- w.e.f. 9.8.99.
(3) To order for payment of penal interest @ 24% on delayed payment of leave encashment w.e.f. 01.07.2002 till the date of actual payment.
(4) Award exemplary cost and damages and interest on the above delayed payment/amount to the applicant and.
18. This OA has been filed against the very same order dated 10.11.208 challenged in OA-2577/2008. But he has also sought a direction to the respondents to re-calculate his leave encashment dues on the basis of last pay which he would draw after giving him two upgradations under Assured Career Progression Scheme (ACP for short) scheme, first in the next higher pay scale of Rs. 10,000-15200/- and second in the next pay scale of Rs.12000-16500/- w.e.f. 9.8.1999 and after releasing him the third stagnation increment of Rs.200/- w.e.f. 01.01.2002. He has also sought a direction for payment of penal interest @ 24 % on delayed payment of leave encashment w.e.f. 01.07.2002 till the date of actual payment.
19. According to the respondents, the applicant was reverted from the post of SREO to AEO (Tech) by the orders of the Competent Authority after the consideration of the recommendations of the Review DPC as per the directions of the Honble High Court in CWP No. 2883/1999 vide order dated 30.05.2002 and, therefore, he is not entitled for the aforesaid relief since he has retired from the post of AEO (Tech), and not from the post of SREO. He was paid the leave encashment as per the pay fixed for the post of AEO (T).OA 2579/2008
20. The reliefs sought by him in this Original Application are as under:
(A) Set aside the orders dated 10.11.2008, Annex.-1 to the OA.
(B) Direct the Respondents to grant arrears of two higher pay scales of, under ACP Scheme, Ist in the pay scale of Rs. 10,000-15200/- and 2nd pay scale of Rs.12,000-16,500/- w.e.f. 9.8.99, (C) Order to release the arrears, to recalculate the Pensionary dues at the above rates and (D) To order for payment of penal interest @ 24% on delayed payment w.e.f. 09.08.99 ( in case of A.C.P) and w.e.f. 01.07.2002 in case of increment till the date of actual payment.
21. According to the respondents, though the applicant was acquitted in the criminal case FIR No. 274/2001 on 22.10.1999, the charges framed against him were proved in the departmental proceedings and the competent authority has imposed the penalty of 5 % cut in his pension upon him. He is, therefore, not entitled for any of the reliefs for the reasons:-
(i) that he was not free from vigilance angle and the Dte. of Vigilance has refused to issue Vigilance Clearance which is mandatory for grant of ACP, (ii) the ACRs of the applicant were not up to bench mark, (iii) he was considered for promotion for the post of Principal/Vice Principal in his own feeder line and was found unfit and (iv) his promotion to SREO w.e.f. 03.09.1974 was also held illegal by Honble High Court. OA 2580/2008
22. The reliefs sought by the applicant in this Original Application are as under:
(A) Set aside the orders dated 10.11.2008, Annex.-1 to the OA.
(2) Direct the Respondents to release the third stagnation increment of Rs.200/- w.e.f. 01.01.2002 so that arrears of subsistence allowance could be recalculated and arrears be paid to the Applicant.
(3) Direct the respondents for payment of penal interest @ 24% on delayed payment of arrears of subsistence allowance w.e.f. 01.01.2002 till the date of actual payment.
In view of the facts mentioned in Para (6) the applicant prays that the Honble Tribunal may graciously be pleased to direct the Respondents to release the third stagnation increment of Rs.200/- w.e.f. 01.01.2002 so that arrears of subsistence allowance could be recalculated and arrears be paid to the Applicant.
23. As the relief sought in this Original Application is the same as in OA-2578/2008, the respondents repeated their reply in the said OA. They have submitted that even though the applicant was acquitted in the criminal case FIR 274/2001 on 22.10.2009 yet he was found guilty in the departmental enquiry proceedings and he has been imposed with a penalty of 5% cut in his pension, therefore, he is not entitled for the 3rd stagnation increment.
OA 2581/200824. The reliefs sought by the applicant in this OA are as under:
(1) Set aside the orders dated 10.11.2008, Annex.-I to the O.A., and erroneous pension recalculation dated 03.03.07, 17.03.07.
(2) Direct the Respondents to re-calculate the provisional pension on the basis of the last pay which became due after release the third stagnation increment of Rs.200/- w.e.f. 01.01.2002 and further giving two A.C.P.; first ACP in higher pay scale in the next two pay scale of Rs.10,000-15200/- and 2nd ACP in the pay scale of Rs.12,000-16,500/- w.e.f. 9.8.99.
(3) To order for payment of penal interest @ 24% on delayed payment.
(4) Direct the respondents to release the Gratuity and Pension and Commutation
25. According to the applicant he was entitled for the pensionary benefits in accordance with the salary he has already drawn against the post of SREO till 28.2.2002.
26. However, according to the respondents, the order of reversion of the applicant from the post of SREO to AEO (Tech) was issued by the competent authority after considering the recommendations of the review DPC. As the applicant has already been reverted from the post of SREO to AEO (Tech) before his retirement, he was not entitled for pensionary benefits as admissible to the post of SREO (Tech). Accordingly, vide Office Order No. 1923 dated 24.12.2002, he was placed in the pay scale of Rs.5500-175-9000 and his pay was fixed at Rs. 9000/- i.e. maximum stage of the scale of pay as on 01.01.1996. Further, the competent authority had allowed him two additional increments as stagnation increments in the scale (i) with effect from 01.01.1998 and (ii) with effect from 01.01.2000 raising his pay from Rs. 9000/- to Rs.9175/- and Rs.9175/- to Rs. 9350/- respectively. He was not entitled for the 3rd stagnation increment because he did not complete the statutory requirement of two years regular service as on the due date, i.e. 1.1.2002. Further, the grant of third stagnation increment to the applicant was not considered thereafter as same was depending upon the outcome of departmental proceedings pending before the President of India and the orders to be passed under FR 54(1) by the competent authority. As regards the quantum of pension was concerned, they have submitted that it is governed by two factors, namely, (i) 10 monthly average pay as on the date of superannuation, and (ii) length of service. According to them, the dispute centers around the question of determination of the correct 10 monthly average pay of the applicant and whether the correct factor has been used to work out the pension payable in his case. The pension computing authority while calculating provisional pension has taken Rs. 5280/- as the 10 months average pay and length of service as 31 years 11 months 03 days and it was the correct calculation. They have also submitted that the applicant has already taken up the aforesaid issue before the Supreme Court of India in LPA No. 22862-00863/2002 (Civil Appeal No. 2678-2679 of 2003) but the Supreme Court after considering the pleadings of applicant did not give him any concession either on account of the claim for release of 3rd stagnation increment or for the grant of ACP benefits or regarding stay of the operation of order reverting him from the post of SREO to AEO (T). As far as the ACP benefits are concerned, they have submitted that it was to be regulated at par with promotion in the hierarchy. The only difference between regular grant of promotion and grant of benefits of ACP scheme is that in later case it is restricted to financial benefit without raising the status of government servant. In other words, before granting him promotion in the hierarchy or granting benefits under ACP Scheme, all the pre-requisites of promotion have to be complied with. In the case of the applicant, it is on record that he was facing one criminal case (FIR No. 274/01 u/s 409 of IPC, and the departmental proceedings under rule 14 of CCS (CCA) Rules, 1965. Therefore, he was not free from vigilance angle. In those circumstances, he is not entitled to the grant of benefits under the ACP Scheme.
27. We have heard Shri P.C.Mishra, learned counsel for the applicant and Shri Vijay Pandita, counsel for respondents. The main reliefs sought by the applicant in all these OAs are regarding grant of ACP benefits, grant of 3rd stagnation increment, calculation of the pensionary benefits and leave encashment. They can be summarized as under:-
To declare that he was entitled to the grant of two higher pay scales of Rs.10,000-15,200 and Rs.12,000-16500 w.e.f 9.8.1999 under the ACP scheme with effect from the same date.
To declare that he was entitled for the grant of Rs.200/- as the third stagnation increment with effect from 1.1.2002 in the scale of Rs.6500-10,500 which he was drawing as SREO.
to direct the respondents to fix his provisional pension and other retirement benefits after granting him the pay scales of Rs.10,000-15,200 and Rs.12,000-16500 w.e.f 9.8.1999 as 1st and 2nd ACP benefits and further grant of Rs.200/- as the third stagnation increment w.e.f. 1.1.2002.
To quash and set aside the Revised pension, calculation sheet dated 5.1.2007 and the leave encashment calculation sheet prepared by the respondents.
To declare that the provisional pension already granted to him shall the full and final pension as per Pension Rules and no changes/reduction could have been made by the respondents.
To declare that leave encashment, being a one time settlement, it shall be as per the actual pay and allowances drawn by the employee and it could not have been reduced on the basis of refixation of the pay from a retrospective date.
28. Before we adjudicate the above issues, it is necessary to consider the following dates and events, which are quite relevant:
Dates Events 3.9.1974 Applicant was promoted from the post of Assistant Employment Officer (Tech.) to SREO with retrospective effect vide order dated 18.3.1994.
1.1.1998 Applicant was granted the first stagnation increment of Rs.200/- in the scale of Rs.6500-105,00 raising his pay to Rs.10,700/-.
21.12.1998 This Tribunal vide order in OA-353/1996 & OA-2518/1996 upheld the decision of the respondents to review the aforesaid petition.
1999 Applicant challenged the order of the Tribunal dated 21.12.1998 before the High Court of Delhi vide CWP No.2883/99.
01.01.2000 The applicant was granted the second stagnation increment in the scale of Rs.6500-10,500 raising his pay to Rs.10,900/-.
3.8.2001 FIR 274/2001 u/s 409 of IPC was filed against the applicant.
3.8.2001 During the pendency of the aforesaid writ petition, the applicant was placed under suspension.
1.1.2002 The applicant was denied the 3rd stagnation increment in the scale of pay of Rs.6500-10,500 to raise his pay to Rs.11,000/- on the ground that the applicant was under suspension w.e.f. 3.8.2001.
4.4.2002 Charge was framed against the applicant for violation of Rule 3 (1)(i)(ii)(iii) of the CCS (CCA) Rules, 1965.
30.5.2002 The High Court dismissed the CWP No.2883/99 with the direction to the respondents to consider the case of the applicant forthwith for further promotion to various posts as per the Recruitment Rules applicable to him keeping in view the peculiar facts which made the petitioner struggling for his legitimate rights in his entire career and keeping in view of the fact that he was found suitable for promotion as SREO.
24.6.2002 The Review Departmental Promotion Committee recommended to reconsider his promotion as SREO with retrospective effect from 3.9.1974.
26.6.2002 The applicants suspension was revoked.
28.6.2002 The applicant was reverted to the post of AEO (Tech.) 30.6.2002 Applicant superannuated from service.
11.7.2002 Applicant was transferred and posted in District Employment Exchange (West).
24.12.2002 Vide office order No.1923 dated 24.12.2002, consequent upon his reversion as SREO on 28.6.2002, he was placed in the pay scale of Rs.5500-175-9000 and his pay was fixed at Rs.9000/- i.e. the maximum stage of the scale of pay as on 1.1.1996 and granted two additional increments of Rs.175/- each w.e.f. 1.1.1998 and 1.1.2000 raising his pay for Rs.9000/- to Rs.9175/- and then to Rs.9356/- respectively.
2003 The applicant challenged judgment of the High Court dated 30.5.2002 before the Honble Supreme Court by filing Civil Appeal No.2678-79/2003.
16.3.2004 Same set of charges were framed against the applicant for the offences punishable under Section 409/420/201 IPC.
22.10.2009 The applicant was acquitted in the criminal case.
3.2.2010 The Supreme Court dismissed the Civil Appeal No.2678-79/2003. The Supreme Court observed that the applicant has already filed OAs before this Tribunal against the rejection of his claim for promotion by the DPC.
4.10.2010 Applicant was imposed with the penalty of 5% cut in pension for two years.
29. With the promotion granted to the applicant as SREO vide order dated 18.3.1994 he was placed in the scale of pay of Rs.650-1200/2000-3500/6500-10,500. In the normal circumstances, applicant would have got the first financial upgradation in the scale of pay of Rs.10,000-15,200 and the second financial upgradation in the scale of pay of Rs.12,000-16500 w.e.f. 9.8.1999 under the ACP Scheme which came into existence on 9.8.1999.. However, since the promotion of the applicant to the post of SREO in the scale of Rs.6500-10,500 itself was under challenge from the year 1996 onwards, the Respondents have not granted him any ACP benefits till his retirement. Ultimately, this Tribunal allowed the respondents decision to review the promotion granted to the applicant as SREO vide its order dated 21.12.1998 and the Honble High Court vide its judgment dated 30.5.2002 upheld the same but directed the respondents to consider him for further promotions to the various posts as per the recruitment rules applicable to him. The respondents, thereafter, reverted the applicant as AEO (T) vide order dated 28.6.002 and placed him in the scale of Rs.5500-175-9000 and vide order dated 24.12.2002 his pay was fixed at the maximum of the scale, i.e. at Rs.9000/-. Further, he was granted two stagnation increments of Rs.175/- each w.e.f. 1.1.1998 ad 1.1.2000 respectively revising his pay to Rs.9175/- and Rs.9350/- respectively. According to the respondents, the DPC had already considered him for promotion from the post of AEO (T) to posts of Vice Principal/Principal in the scale of Rs.2000-3500 w.e.f. 15.9.1984 but being junior in the said cadre, his turn did not come. The next DPC was held on 11.4.1990. It also did not recommend him for promotion as he was found not fit for promotion. The next DPC was held on 28.5.1996. As per the directions of the Honble High Court in its judgment dated 30.5.2002, the review DPC considered whether he could have been promoted as Vice Principal/Principal on 28.5.1996 but for his promotion as SREO. The DPC recommended that since his promotion as SREO was the subject matter of court case and the Tribunal had ordered for maintaining status quo, a post be kept reserved for him and his case for promotion to the said post be taken up by the DPC after the order of this Tribunal. The next DPC for promotion to the post of Principal/Vice Principal etc. was held on 17.1.2001. On that date also applicant was already working as SREO. The Review DPC considered the suitability of the applicant as on the said date and unanimously held that he was not fit for promotion at that stage also. Even on the date of holding the Review DPC, i.e. 24.6.2002, the applicant was not found fit for promotion. He was also denied the ACP benefits in the scale of Rs.5500-175-9000 on the ground that he was not free from vigilance angle as he was facing criminal case and two departmental proceedings under Rule 14 of CCS (CCA) Rules, 1965.
30. We agree with the submissions of the respondents that the applicant was not entitled for the financial upgradation from the scale of Rs.6500-10,500 to Rs.10,000-15,200 and Rs.12,000-16,500 as the Review DPC held on 24.6.2002 noted that AEO (T) was not the feeder line of promotion to the post of SREO (Ex-cadre) at any stage. Moreover, the method of recruitment for the post of SREO (T) was by direct appointment and therefore the same could not be filled up by promotion at all. On the other hand, the post of AEO (T) was the feeder post for promotion to the post of Principal/Vice Principal ITIs/Assistant Inspector of Training/Industrial Liason Officer in the Directorate of T&TE. Therefore, the applicant was not entitled for promotion to the next higher post of Assistant Director and Joint Director in the scale of pay of Rs.10,000-15,200 and Rs.12,000-16500 respectively. But the question is whether respondents were justified in denying him the first and second financial upgradations from the scale of Rs.5500-175-9000 under the ACP Scheme from the due dates. Admittedly, after the refixation of his pay in the said scale, he was stagnating at the maximum i.e. Rs.9000/-Again, according to the DPC held on 28.5.1996 for his promotion as Vice Principal/Principal, since his promotion as SREO was the subject matter of Court case and this Tribunal has ordered status quo, a post of Vice Principal/Principal was kept reserved for him till this Tribunal decides the matter. However, the next DPC held on 17.1.2001 and the Review DPC held on 24.6.2002 did not find him fit for promotion. Later on, ACP Scheme came into effect from 9.8.1999. Since the applicant was not given any promotion, he was entitled to considered for grant of ACP benefits. The reasons given by the respondents in the impugned order dated 10.11.2008 denying him the ACP benefits are that (i) the applicant was facing criminal case filed after FIR No.274/01 under Section 409 of IPC, (ii) investigation by Economic Office Wing was going on and (iii) two departmental proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were pending against him. Undisputedly, the criminal case u/s 409 IPC initiated against him is based on FIR 274/01 which is a subsequent a event. In case, he was acquitted in the said case later on 22.10.2009. Just because the Economic Office Wing had been conducting some investigation against him, it was also not a good and sufficient reason to deny him the ACP benefits. The third reason that two departmental proceedings were initiated against him under rule 14 of CCS (CCA) Rules, 1965 is also very vague. On the other hand, during the relevant period, the respondents themselves have granted him the first and second stagnation increments w.e.f. 1.1.1998 and 1.1.2000 respectively in the scale of Rs.6500-200-10,500. Further, it is on record that the charge against the applicant in the departmental case was issued to the applicant only on 4.4.2002. It, of course, culminated in 5% cut in his pension, vide order dated 4.10.2010. Hence, the respondents should have considered the applicants for grant of ACP benefits w.e.f. 9.8.1999. As they failed to do so, we direct them to do so immediately and grant him the ACP benefits granting him financial upgradations in the scale of Rs.5500-175-9000, if he is otherwise found eligible.
31. As regards granting the stagnation increments of Rs.200/- in the scale of Rs.6500-10,500 is concerned, the respondents have stated that they have granted him first stagnation increment of Rs.200/- in the scale of Rs.6500-10,500 w.e.f. 1.1.1998 raising his basic pay from Rs.10,500/- to Rs.10,700/-, and the second stagnation increment w.e.f. 1.1.2000 raising his pay from 10,700/- to Rs.10,900/-. The third stagnation increment of Rs.200/- was due from 1.1.2002 but it was not granted to him because he was under suspension from 3.8.2001 to 26.6.2002. Later on, vide office order No.1923 dated 24.12.2002, they have placed him in the lower scale of Rs.5500-175-9000 attached to the post of AEO (T) and his pay was fixed at its maximum of Rs.9000/- w.e.f. 1.1.1996 and granted two stagnation increments of Rs.175/- each w.e.f. 1.1.1998 and 1.1.2000 raising his pay notionally to Rs.9175/- to Rs.9350/- respectively. The respondents have rightly granted him the first and second stagnation increments to the applicant while he was working as SREO in the scale of Rs.6500-200-10,500 till 28.6.2002. The reason for not granting him the third stagnation increment w.e.f. 1.1.2002 as per the impugned order dated 10.11.2008 is that departmental proceedings were pending against him before the President of India and after its conclusion, the competent authority had to pass an order under FR 54 (1). He was also under suspension from 3.8.2001 to 26.6.2002. Admittedly, the disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 were instituted against the applicant only vide Memorandum No.5 (3) 2002/DOV/2210 dated 4.4.2002. Again, the criminal case was based on FIR No.274/01 u/s 409/420/201 IPC based on a complaint dated 3.8.2001 received from one V.K.Jain, SREO (Vigilance). The said case was instituted only on 1.7.2003. The charges were framed against him only on 16.3.2004. The Metropolitan Magistrate vide his aforesaid judgment dated 22.10.2009 acquitted the applicant of all the charges holding that the prosecution has failed to prove the charge. The information given to the DPC that as on 17.1.2001 the charge sheet has already been filed against the applicant in a criminal case was not correct. Therefore, the respondents should have granted him the 3rd stagnation increment of Rs.200/- w.e.f. 1.1.2002 in the scale of Rs.6500-10,500 raising his pay from 10,900 to 11,100/- as he has already been granted two stagnation increments in the same scale. Even otherwise, the issue regarding grant of increments during the suspension period has already been considered by various Courts and this Tribunal. As laid down by the Apex Court in Khem Chand vs. Union of India, AIR 1963 SC 687, the effect of an order of suspension is that a Government servant is is not permitted to work but he continues to be a member of the service. Under FR 53, a government servant under suspension shall be entitled to a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary. In Mritunjai Singh vs. State of U.P. and others, 1971 (2) SLR 523, the Allahabad High Court held that when a government servant was under suspension and as the contract of service of the employee contravenes though he was under suspension, increment should be allowed ordinarily to be drawn unless it is withheld and the subsistence allowance had to be calculated accordingly. A Coordinate Bench of this Tribunal in OA-1056/2008 P.C.Misra vs. Union of India & Ors. decided on 7.11.2008 wherein it has been held that there was no reason as to why the increment due to the applicant therein even during the period of suspension was not released. The applicant has also produced a copy of the judgment of the Honble High Court of Delhi in WP(C) No.9042/2009 decided on 15.2.2010 upholding the aforesaid order of this Tribunal. Relevant part of the said judgment reads as under:
In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs. Again in OA -1056/2010 Saranjit Singh, SREO (Retd.) vs. Direcotr, Employment, this Tribunal held as under:
4. We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
32. The next issues are with regard to fixation of applicants pension w.e.f. 30.6.2002 (AN) i.e. the date of his retirement from service on superannuation and the calculation of leave encashment. Admittedly, the applicant has actually worked as SREO w.e.f 28.6.2008. The next two days of the month of June 2008 i.e. 29th and 30th were closed holidays due to Saturday and Sunday. He then retired on superannuation on 30.6.2002. Admittedly, he was transferred and posted as AEO (Tech) in District Employment (West) only on 1.7.2002 which is an infructuous order. He never worked as AEO (T) after his reversion. The pension and other retirement benefits are to be calculated on the basis of the actual pay drawn/ should have been drawn and not on any notional pay in the lower pay scale arrived at subsequently.
33. Another aspect is that the applicant has claimed the non-functional scale of Rs.8000-275-18500 under FR 22 (1) (a) (2) on completion of 4 years of regular service in Grade-I/DASS as granted to Sh. J.P.Sharma, AEO, Gr. I F(5)/EMP/Admn/2007 dated 19.2.2009 in those OAs but the respondent has not considered it at all.
34. To sum up:-
(i) The applicant is not entitled to the grant of the first and second financial upgradations under the ACP Scheme in the scale of Rs.10,000-15,200 and Rs.12,200-16,500 w.e.f. 9.8.1999 as claimed by the applicant.
(ii) The applicant is entitled for grant of financial upgradations under the ACP Scheme granting him higher py scales than Rs.5500-175-9000, if he was otherwise eligible but ignoring the reasons given by the respondents which are not relevant.
(iii) The applicant is entitled for the stagnation increment of Rs.200/- w.e.f. 1.1.2002 in the scale of pay of Rs.6500-10,500 raising his pay to Rs.11,000/-.
(iv) The respondents shall pass appropriate order under Rule 54 (1) regarding pay and allowances to be paid to the applicant for the period of his suspension w.e.f. 3.8.2001 to 26.6.2002, if they have not already passed any order so far, as the criminal case and the departmental proceedings pending against him have since been finalized. His qualifying service shall also be re-determined accordingly.
(v) The applicant is entitled to be considered for grant of non-functional scale of pay of Rs.8000-275-18,500 under FR 22 (1) (a) (2) on completion of four years of regular service in Grade I/DASS as granted to his colleague Shri J.P.Sharma, AEO.
(vi) The applicant is entitled for pension and other retirement benefits and leave encashment as admissible under the rules on the basis of the actual pay and allowances drawable by him after implementation of the directions at (ii), (iii), (iv) and (v) above and not at any lower stage in a lower pay scale arrived at notionally after the actual date of retirement.
35. The respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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