Devendra Kumar vs GNCT Of Delhi & Others

Manjula Das, J

The present Application was filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):

"(a) Issue appropriate order(s) or directions to the Respondents to quash the order dated 02.07.2014 being without jurisdiction, non-est, void ab-initio and based on extraneous grounds.

(b) Issue appropriate order(s) or directions to the Respondents to consider the case of the applicant in light of Rule 9(6)(b) of CCS (Pension) Rules, 1972 and further direct the Respondents to extend the Assured Career Progression Scheme benefits on completion of 24 years of unblemished service (30.08.2007) and extend Grade Pay of Rs.5400 in Pay Band-2 Rs.9300-34800.

(c) Pass any order/direction in favour of the Applicant and against the Respondents which this Hon‟ble Tribunal deem fit and proper in the facts and circumstances of the case.

(d) Award cost of the proceedings."

Today, there is no representation on behalf of the applicant as well as for the respondents.

This is an old matter pertaining to the year 2015, and the applicant has already retired from service. We are inclined to dispose of the matter, as this Tribunal is set up for speedy disposal of the service matters of the Government employees. However, due to absence of learned counsel for the parties and since no application for adjournment has been moved by the applicant, we perused the pleadings on record.

The brief facts of the case are that the applicant was working as AAO under the respondents. He was initially appointed as Statistical Assistant in the office of respondent No.1, on 30.08.1983. On being qualified in the SAS/Common JAO Examination conducted by the Controller General of Accounts (CGA) in the year 1996, he was posted as Junior Accounts Officer on 22.09.1998. FIR No. RC-DAI-2006-A-0064 dated 29.12.2006 was registered against him in respect of a criminal case registered by the CBI, and Prosecution Sanction dated 25.06.2008 was issued by the Disciplinary Authority. Upon taking cognizance of the offences by the Ld. Special Judge, Rohini Courts, Delhi, the applicant was charge-sheeted vide orders dated 22.12.2011 and 25.10.2013.

The applicant contended that he was entitled for 2nd financial upgradation under ACP Scheme on completion of 24 years of service, i.e. 30.08.2007. However, the benefit was not extended to him. The applicant made repeated requests to the respondents to extend the benefit of 2nd financial upgradation, since no judicial/disciplinary proceedings were pending against him, on 30.08.2007, when he completed 24 years of service. However, the respondents vide impugned order dated 02.07.2014 rejected his request stating that the Screening Committee did not recommend his case due to Prosecution Sanction issued against him.

Respondents filed a counter affidavit. It is averred in the counter affidavit that no proposal for grant of ACP to the applicant or any other Accounts Cadre Officer was ever received from Administrative Department before 2011 and no officer of Accounts Cadre was ever granted benefits under ACP Scheme, due to the reason that either no officer stagnated in a particular post for 12 years, or had got two or more promotions before completing 24 years of regular service. The Cadre Controlling Authority could not place the matter before the Screening Committee on the request dated 09.11.2011 of the applicant, without the recommendations of the Department where service record are maintained.

It is further averred that the case of the applicant was considered by the Screening Committee on 21.05.2014. However, the Committee did not recommend his case keeping in view the fact that FIR No. RC-DAI-2006-A-0064 dated 29.12.2006 registered by the CBI and Prosecution Sanction dated 25.06.2008 was issued against him by the Disciplinary Authority.

In Para G of the counter, it is mentioned that as per para 2 of the Govt. of India, Department of Personnel & Training O.M. dated 14.09.1992, details of Government servants in the consideration zone falling under the following categories should be specifically brought to the notice of the DPC:

"(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 criminal charge is pending."

The respondents further contended that the applicant never took up the matter regarding his becoming eligible in the year 2007, prior to 2011, and due to pending Prosecution Sanction issued against him with reference to criminal case filed by the CBI, in the Meeting held on 21.05.2014, the Screening Committee did not recommend his case for financial upgradation under ACP Scheme. Therefore, the respondents cannot be blamed for inaction on their part and the claim of the applicant is invalid.

In the rejoinder, the applicant denied the averments made in the counter affidavit. It is stated that mere issuance of Prosecution Sanction on 25.06.2008 against him does not preclude the respondents from granting promotion or financial upgradation under ACP Scheme, when the respondents themselves have promoted him to the post of Assistant Accounts Officer on 29.11.2007. It is further stated that on 30.08.2007, there was no criminal/disciplinary proceedings pending against him and judicial proceedings deemed to be instituted in the case of criminal proceedings on the date when the cognizance is taken by the Magistrate; and in his case cognizance was taken by the Ld. Special Judge on 22.12.2011 and 25.10.2013. Thus there was no occasion for the respondents not to extend him the benefit of ACP/MACP.

We have gone through the judgment relied upon by the applicant rendered by this Tribunal in O.A. No. 910/2010 titled as Ashok Kumar Handa vs. Govt. of NCT of Delhi, dated 01.09.2011. The operative para of the judgment reads as under:

"12. In above background, if the facts of present case are seen, we find all that the respondents have stated in the present case to deny promotion to the applicant is that sanction for prosecution was issued against the applicant in 5 cases as back as in 2007-2008 respectively and charge sheet has been filed, but in none of the cases cognizance is stated to have been taken by the Learned Magistrate, therefore, the case of applicant would not be covered under any of the clauses of OM dated 14.9.1992. The defence taken by the respondents in this case has already been dealt with by the co-ordinate bench in Om Prakash (Supra) which has been upheld by the Hon‟ble High Court of Delhi. It has been clarified that issuance of sanction for prosecution has not been stipulated under OM dated 14.9.1992 for putting the case in sealed cover. Though respondents have stated that charges against the applicant are very serious, but they never placed the applicant under suspension which could have been done by the respondents. We agree with the respondents that charges are very serious but we cannot help the respondents when law is in applicant‟s favour, therefore, it can easily be concluded that none of the grounds, as mentioned under OM dated 14.9.1992 existed on the day when the DPC met in this case to consider the applicant for promotion to Grade-II (DASS). It does not exist even now, therefore, neither para 7 of OM dated 14.9.1992 would be applicable nor judgment in R.S. Sharma (Supra) would apply. We, therefore, hold that applicant‟s case could not have been kept in the sealed cover. The respondents are directed to open the sealed cover of the applicant and in case he is found fit, to give effect to the recommendations made by the DPC from the same date when his junior was so promoted with all consequential benefits in accordance with law.

OA stands disposed of with the above directions. No order as to costs."

The facts of the present case are different from that of OA No. 910/2010 as in none of the cases filed against the applicant therein, cognizance was stated to have been taken by the Learned Magistrate. However, in the case of the applicant, he was charge-sheeted vide orders dated 22.12.2011 and 25.10.2013 on the cognizance of the offences by the Ld. Special Judge, Rohini Courts, Delhi. Accordingly, the case of applicant is covered by the OM dated 14.09.1992.

In our considered view, since FIR dated 29.12.2006 was registered by the CBI and Prosecution Sanction dated 25.06.2008 was issued against the applicant by the Disciplinary Authority and he was charge-sheeted vide orders dated 22.12.2011 and 25.10.2013 by the Learned Special Judge, we do not find any fault on the part of the respondents in not extending the benefit of financial upgradation to him. Moreover, the applicant is said to be promoted to the post of AAO on 29.11.2007.

In view of above, we do not find any merit in the O.A. and accordingly the same is dismissed. There shall be no order as to costs.