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Judgment
Brief facts of the present case are that the applicant while working as Chief Medical Officer (CMO) at Deen Dayal Upadhyay (DDU) Hospital with respondent No.4 submitted three months notice on 12.09.2011 seeking voluntary retirement from service in terms of Rule 48-A(ii) of Central Civil Services (Pension) Rules, 1972. The respondents disputed the same on the ground that disciplinary proceedings are contemplated against him. The applicant approached the Tribunal in OA-3212/2014 praying for release of his pensionary benefits w.e.f. 11.12.2011 i.e. on expiry of 03 months of the notice period as provided under the Rules. Vide order dated 04.08.2015 in the aforesaid O.A., the Tribunal held that the applicant stands retired as per Rules on 11.12.2011 and directed the respondents to pay the retiral dues to the applicant within three months from the date of the order and in the event of delay to make payment of interest at the rate as paid in the matter of GPF.
When the applicant did not release the pensionary benefits, the applicant filed CP-100/2016. At the time of contempt proceedings, it was averred that Government of National Capital Territory of Delhi (NCTD) was responsible for disbursement of pensionary benefits. GNCTD challenged the order of the Tribunal dated 04.08.2015 before the Hon'ble High Court of Delhi in Writ Petition (C)-5236/2016, which was dismissed vide order dated 21.07.2016. Pursuant to the dismissal of the Writ Petition, GNCTD passed an order dated 02.09.2016 accepting the voluntary retirement of the applicant retrospectively w.e.f. 11.12.2011 and paid the emoluments of the applicant vide orders dated 06.09.2016, 08.09.2016 and 09.09.2016.
The applicant states that it was pointed out to the Tribunal in contempt proceedings that the compliance claimed by the respondents is post haste without any calculation and without payment of interest. Vide order dated 15.09.2016 in CP-100/2016, liberty was granted to the petitioners to challenge the validity of the order dated 09.09.2016 to avail remedies by filing a fresh OA (Annexure A-7), in accordance with law.
After the order of the Tribunal dated 04.08.2015 in OA-3212/2014, the Ministry of Health sought vigilance clearance from Delhi Government in respect of the CMOs posted with GNCTD including the applicant. They were asked to indicate whether the applicant fell in the following three categories:-
(i) Under suspension.
(ii) Disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings, in case chargesheet has been issued date of issue of charge sheet may be indicated.
(iii) Prosecution for a criminal charge is pending or sanction for prosecution has been issued or decision has been taken the accord sanction for prosecution.
It is further averred that the Tribunal in its order dated 04.08.2015 had already held that there are no suspension or disciplinary proceedings pending against the applicant on 11.09.2011 or on 11.12.2014 (seems a typographical error and should be 11.12.2011). No charge sheet had been issued to the applicant and nor was the applicant facing any criminal prosecution, therefore, GNCTD could not have given any negative report of the vigilance in respect of the applicant.
However, despite this, the name of the applicant was not cleared for grant of Supertime Administrative Grade under Dynamic Assured Career Progression (DACP) Scheme due to which his name did not figure in the order dated 20.07.2016, seriously effecting his pension emoluments. The applicant stood retired on 11.12.2011.
It is the contention of the applicant that after grant of benefit in Supertime Administrative Grade under DACP Scheme, the pension of the applicant would be Rs. 1,04,805/-. The present pension being granted to him is Rs. 81,400/-, hence, the difference of pension would be Rs.23,405/-. In view of this, the applicant has prayed for the following reliefs:-
"(a) That the Respondents may be directed to issue the orders of promotion and recalculate and release the pay and pensionary benefits of the Applicant in the higher grade of pay of Rs.37,400-67,000 in Pay Band-4 with grade pay of Rs.10,000 plus Non-Practising Allowance (NPA) at the prescribed rates from 5/6/2009 to 11/12/2011 and pay the balance emoluments of retirement accordingly.
(b) Pay the pensionary benefits to the Applicant on the higher emoluments alongwith interest at the rate between 9 to 12% as deemed fit by the Hon'ble Tribunal.
(c) Any other order in the interest of justice."
In the counter-affidavit, the respondents state that the applicant Dr. Yograj Handoo was placed under suspension vide order dated 24.11.2011. The applicant remained absent from duty w.e.f. 11.12.2011 claiming that he had applied for voluntary retirement from duties w.e.f. from the said date. The case remained under protracted litigation and finally his notice for voluntary retirement from service was accepted by the competent authority on 02.09.216 with retrospective effect (w.e.f. 11.12.2011).
The contention of the respondents is that final decision of DACP Scheme was to be taken by Ministry of Health & Family Welfare in the light of vigilance status received from the Cadre Controlling Authority i.e. GNCTD. They state that Deen Dayal Upadhyay Hospital complied with the orders of the Hon'ble High Court of Delhi and pensionary benefits were released to the applicant on 06.09.2016. However, the question of re-fixing his pension etc. would only arise after the order of promotion is received. The pension is to be calculated on the basis of last pay drawn by the officer, which has already been done and the emoluments paid to the applicant. It is further contended that pension can only be revised after the DACP orders are received, which are not there in case of the applicant.
In the rejoinder, the applicant states he was eligible for DACP for the post of CMO/SAG in 2009 in the pay scale of Rs.37,500-67,00 with Grade Pay of Rs.10,000/-, whereas the calculation of last pay drawn was computed as on 11.12.2011 (paid in September, 2016) denying the benefits of promotion and higher scale to him.
I have gone through the facts of the case and perused the record carefully.
The applicant had filed an OA-3212/2014 seeking voluntary retirement from service w.e.f. 11.12.2011 with all consequential retiral dues. This resulted in the order dated 04.08.2015 of the Tribunal by which the applicant was held to have been retired as per rules on 11.12.2011. The said order was challenged before the Hon'ble High Court of Delhi in WP(C)-5236/2016 wherein the order of the Tribunal was upheld vide order dated 21.07.2016.
In the aforesaid O.A. and the Writ Petition, the issue to be adjudicated was only regarding acceptance or otherwise of the voluntary retirement application in terms of Rule 48-A(ii) of Central Civil Services (Pension) Rules, 1972 submitted by the applicant and grant of consequential retiral benefits.
During the course of hearing as well as in the written submissions, the applicant has tried to hammer home the point that in the Tribunal's order dated 04.08.2015, a specific finding has been given by the Tribunal that there was no disciplinary case pending against the applicant. That this is factually incorrect, is borne out from the following paragraphs:-
14.1 In para-18 of the judgment passed in OA-3212/2014 the two issues which the Tribunal considered were:-
(a) whether in terms to the notice for voluntary retirement given by the applicants in both the OAs, they can be declared to stand voluntarily retired from services and ceased to be a member thereof upon such retirement w.e.f. 02.12.2011 in OA No.3206/2014 and 11.12.2011 in terms of the provision to sub-rule (2) of Rule 48-A of the CCS (Pension) Rule, 1972; and to further determine whether the orders dated 02.01.2012 in both OAs are legally sustainable or not; and
(b) if the answer to the first question is in the affirmative, whether the applicants are entitled to retiral benefits as claimed as per the relief sought in the two OAs."
14.2 After going through the facts of the case, the Tribunal in paras- 26 & 27 held that:-
"26. The argument of the applicants seems to be correct that the respondent no.2 while issuing the order of suspension had sought confirmation from the respondent no.1 on the ground that the officers in question, i.e. applicants were CHS officers. It is admitted by both parties that no such confirmation was received from respondent no.1 which was the competent level. In the absence of any such confirmation, the order of suspension cannot be treated to be valid. Vide order dated 09.07.2012, this order was revoked w.e.f. 22.02.2012. The suspension order not been legally valid, could not come in the way of acceptance of the notice for voluntary retirement of the applicants.
Regarding the disciplinary proceedings said to have been initiated against the applicants, it appears that the order passed by Govt. of NCT of Delhi, Health and Family Welfare Department (Respondent No.2), whereby suspension order against the Applicant (never confirmed by Respondent No.1) was revoked by Respondent No.2 retrospectively w.e.f. 22.2.2012 (Annexure-A/15), the last para of the order reads as follows:-
"However, the revocation of suspension will not effect ongoing enquiry in the matter contemplated by Anti Corruption Branch, Dte. of Vigilance, GNCTD."
On the one hand, this letter mentions of "ongoing enquiry" and at the same time it states as "contemplated". An enquiry can either be ongoing or contemplated. As has been mentioned by the applicants in their rejoinder (to which there is no rebuttal by way of further response to the two rejoinders), and as was admitted by the counsel for respondents no.2 and 3, no charge sheet had issued to the applicants in both the OAs. Non-issuance of charge sheet was also accepted by the learned counsel Mr. Vijay Pandita appearing for respondents no.2 and 3 at the time of hearing in the matter on 14.07.2015. No disciplinary proceedings or major penalty proceedings can be assumed to have been initiated under the CCS (CCA) Rules unless a charge sheet is issued to the concerned Government servant. This is further corroborated by the fact that even in the OM dated 12.06.2013 issued by respondent no.2 conveying the decision of the CVC to allow the matter to set at rest, it was stated that the "issue of charge sheet is in the process". In the absence of any such charge sheet, the applicants in both the OAs cannot be deemed to be facing disciplinary proceedings or undergoing disciplinary proceedings for major penalty."
14.3 It is not disputed that the applicant was placed under suspension on 24.11.2011, which order was subsequently revoked on 22.02.2012. Charge sheet had not been issued to the applicant, at the time when the issue regarding his voluntary retirement was sub-judice.
It has nowhere been mentioned in the order of the Tribunal dated (04.08.2015) or of the Hon'ble High Court in their order dated (21.07.2016) that the applicant was clear from vigilance angle, as mentioned by the applicant. It was merely observed that there was no disciplinary proceeding/charge sheet issued to the applicant at that point of time, which is a matter of record. However, this fact was discussed in the limited context of grant of permission for acceptance of voluntary retirement in view of provisions of Rule 48(A)(ii) of the CCS (Pension) Rules, 1972. It was observed in para-29 of the order dated 04.08.2015 that:-
"29. From the foregoing, it is clear that the applicants were neither under legal proceedings nor under any disciplinary proceedings in the absence of any charge sheet having been issued for penalty of removal from service. No averment is made by the respondents that any criminal case has been instituted against either of the applicants. According to the guidelines of the DOP&T referred to above, in the absence of any or one of the conditions mentioned above on the basis of which acceptance of notice for voluntary retirement can be withheld, respondent no.1 could not have withheld acceptance of notice of VRS under Rule 48-A (2) of the CCS (Pension) Rules. It is thus seen that in the absence of any decision having been communicated to the applicants in both OAs to withhold acceptance of the notice of voluntary retirement, the presumption must be that the applicants are deemed to have voluntarily retired with effect from the date of expiry of notice. For the reasons aforenoted, it is also clear that in so far as the order of decadrement dated 02.01.2012 with retrospective effect from 24.11.2010 is concerned, it cannot be held to be operative qua the applicants. The applicants were, therefore, working under respondent no.1 on the date on which the notice for VRS was issued. Respondent no.1, therefore, must be treated as the Appointing Authority for the purpose of relief claimed in these OAs. The order dated 02.01.2012 being not sustainable is quashed and set aside qua the applicants in OA No.3206/2014 and OA No.3212/2014."
Thus, it was rightly held that since no charge sheet had been issued to the applicant, no disciplinary or major penalty proceedings can be assumed to have been initiated, in the absence of which, notice for voluntary retirement could not be withheld by the respondents.
The applicant is wrongly attempting to take the benefit of order dated 04.08.2015 of the Tribunal, which was on the limited issue of non acceptance of voluntary retirement from service, and applying it to his request in the current O.A. for grant of promotion under DACP Scheme, and consequential revision of pensionary benefits in the higher grade pay.
The name of the applicant was not cleared for grant of Super Time Administrative Grade under DACP since at that point of time disciplinary proceedings were contemplated against him. This fact stands affirmed by the suspension order dated 24.11.2011 (subsequently revoked on 22.02.2012). The respondents state that the applicant was eligible for DACP in the year 2009 for the post of CMO (SAG) in the claimed pay scales, but could not figure in the promotion list due to adverse vigilance status, as received from the cadre Controlling Authority. The issue remained sub-judice till 21.07.2016, whereas the promotion orders for Dynamic Assured Career Progression Scheme had already been issued on 20.07.2016 by the respondents. The request of the applicant for Dynamic Assured Career Progression Scheme was thus denied to the applicant, due to absence of vigilance clearance.
The pensionary benefits have been paid to the applicant as per the orders of Tribunal dated 04.08.2015 after voluntary retirement was effected by the respondents (retrospectively) w.e.f. 11.12.2011. For this purpose, his last pay drawn (on the said date) has been taken into account, as per law. Question of refixing of pension will arise if and when his orders of promotion are received. Since the applicant was not clear from vigilance angle his name was not included in the promotion list, though, admittedly, he was eligible for DACP in 2009.
In view of the foregoing facts, I feel that the claim of the applicant for recalculating his pay and pensionary benefits in the higher grade of pay at the prescribed rates from 05.06.2009 to 11.12.2011, lacks merit. The O.A. is accordingly dismissed. No costs.