Central Administrative Tribunal - Delhi
Smt. Saroj Dagar vs Govt. Of Nct Of Delhi on 18 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 3434/2011 ORDER RESERVED ON: 10.05.2012 ORDER PRONOUNCED ON: 18.05.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) Smt. Saroj Dagar w/o late Sh. Sanjiv Dagar, R/o E-95, Sarojini Nagar, New Delhi-23. Applicant. (By Advocate Shri Yogesh Sharma) Versus 1. Govt. of NCT of Delhi Through the Chief Secretary, New Secretariat, I.P. Estate, New Delhi. 2. The Secretary (Services), Govt. of NCT of Delhi, New Secretariat, New Delhi. Respondents. (By Advocate Ms. Alka Sharma) O R D E R
Shri G. George Paracken:
The applicants grievance is that the respondents have not given him due consideration for grant of promotion to the post of Stenographer Grade-II. On the other hand, she has alleged that they have placed the recommendation of the Departmental Promotion Committee (`DPC for short) in the sealed cover in an illegal and arbitrary manner violating the provisions of the Constitution of India. She has also alleged that her juniors have been promoted vide the Annexure A-5 order dated 29.08.2008, Annexure A-4 Minutes dated 27.03.2010 and the Annexure A-3 order dated 13.04.2010.
2. The facts in this case are that the applicant is a Stenographer Grade-III under the Govt. of NCT of Delhi and is presently posted in the Department of Delhi Fire Service. According to her, a false criminal case was registered against her in the year 2007 under the Prevention of Corruption Act but till date neither she has been arrested nor any charge sheet has been framed against her. In this regard, she has produced the latest order of the Special Judge (PC Act) (CBI)-II, Rohini, Delhi dated 08.02.2012 according to which the argument on charge was only to be heard on 10.04.2012. However, she was due for promotion to the next higher post of Stenographer Grade-II in the year 2008 according to her position in the seniority list which is at Sl. No. 1236. Accordingly, a DPC was held in the month of August, 2008 to consider and recommend the cases of eligible candidates for the aforesaid promotional post. As vigilance clearance was not available in favour of the applicant, the DPC decided to keep her name in the sealed cover. However, some of her juniors have been promoted vide the Annexure A-5 order dated 29.08.2008. Again, the DPC was held on 29.03.2010 but her case was continued to be placed in the sealed cover. She has also mentioned that after completion of 20 years of service, she became eligible for grant of second financial upgradation under the MACP Scheme w.e.f. 01.09.2008 but the same has also been denied to her while her juniors have been given the aforesaid benefits vide order dated 12.02.2010. She has also submitted that one Shri M. Kandaswamy who was at Serial No.1735 was considered for promotion in the year 2010 and he was given promotion in spite of the fact that a criminal case was registered against him. The applicant has also submitted representation to the competent authority requesting it to open the sealed cover and to promote her to the post of Stenographer Grade-II from the date of promotion of her juniors and also to grant her the MACP benefits from 01.09.2008.
3. The learned counsel for the applicant has also relied upon an order of this Tribunal in OA 3563/2011 Rohit Kumar Vs. Govt. of NCT of Delhi & Anr. by which the said O.A was allowed with a direction to the respondents to grant promotion to the applicant therein to the next higher post from the date his juniors have been promoted except back wages. The aforesaid order was passed after considering another similar case decided by this Tribunal in OA 1604/2009 R.P. Singh Vs. GNCT of Delhi & Ors., judgments of the Apex Court in Dwarka Prashad and Ors. Vs. Union of India & Ors. (2004 (1) ATJ (SC) 591) and Union of India Vs. K.V. Janakiraman (1991 (4) SCC 109). The relevant part of the said order reads as under:
6. We have heard learned counsel for the applicant Sh. Yogesh Sharma and learned counsel for the respondents, Sh. Vijay Pandita. Admittedly the DPC in the present case was held on 19.06.2008. The criminal case No.64/2008 was filed against the applicant and other 10 persons in the same year. It is seen from the reply filed by the respondents that the DPC had considered the case of the applicant on the aforesaid date but as per the information given to them by the Administrative Department that the CBI had informed them that a charge sheet has been filed against the applicant in the court of Smt. Indemeet Kochchar, the then Spl. Judge, CBI Patiala House Court, New Delhi, on 18.12.2007, he was not given the promotion. However, from the records produced by the applicant, it is seen that the aforesaid information given by the Administrative Department to the DPC was factually incorrect. Even as on date, no charge sheet has been filed against the applicant in any criminal case. The criminal court in the matter involving the Applicant has only fixed the case for arguments on charge on 23.04.2012. In other words, it will only on 23.04.2012 or on any subsequent dates, the criminal court would decide whether any criminal charge has to be framed against the applicant or not. As held by the Apex Court in the matter of K.V. Jankiraman (supra), a criminal case would be considered to be pending against a Government servant only after the charges have been framed against him by the Court and a disciplinary proceeding would be considered pending only after the charge sheet has been issued to him. Therefore, in our considered view, the Administrative Department of the respondents have mislead the DPC in the case of the Applicant and made them believe that charge sheet has already been issued to him before the date of the DPC. Therefore, the denial of promotion to the applicant to the post of Grade-III DASS/UDC in the order dated 07.07.2008 along with his juniors and seniors, is absolutely illegal. Consequently, we allow this OA and quash and set aside the impugned order No.178 dated 07.07.2008 qua the applicant. We, therefore, direct the respondents to grant promotion to the applicant to the post of Grade-III (DASS)/UDC w.e.f. 07.07.2008 i.e. from the date his juniors have been promoted, with all consequential benefits except back wages. The respondents shall pass necessary orders in this regard immediately but in any case within a period of one month from the date of receipt of a copy of this order. There shall be no orders as to costs.
4. In the reply filed by the respondents, their only submission was that they are awaiting the final outcome of the criminal case registered against the applicant.
5. We have heard the learned counsel for the parties and perused the documents available on record. It is settled principle that a criminal case would be considered as pending against a Government servant only after the charges have been framed against him by the court and a disciplinary proceeding is considered pending against him only after the charge sheet has been issued to him. As per the records made available by the learned counsel for the applicant, no charges have been framed against the applicant as recent as 08.02.2012. We, therefore, find no justifiable reasons on the part of the respondents in not promoting the applicant from the due date merely on the ground that a criminal case was registered against her.
6. In view of the above position, this O.A is allowed and we declare that action on the part of the respondents in not granting the applicant her due promotion to the post of Stenographer Grade-II w.e.f. 28.08.2008 i.e. the date of promotion of her junior is illegal and contrary to law. Consequently, we direct the respondents to open the sealed cover in which the recommendations of the DPCs held in 2008 and 2010 with regard to the applicants promotion were placed. If she is found otherwise eligible and fit for promotion, she shall be promoted as Stenographer Grade-II w.e.f. 28.08.2008 with all consequential benefits except back wages. The aforesaid directions shall be complied with, within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(Sudhir Kumar) ( G. George Paracken ) Member (A) Member (J) SRD