Ram Kumar Thakur vs Union Of India And Ors

Through the medium of this writ petition, the petitioner is seeking to quash Office Memorandum dated 17.08.2013 (annexure “J†to the writ

petition) vide which financial up-gradation was granted to the petitioner under Modified Assured Career Progression Scheme from 01.04.2011 instead

of 2006. The petitioner is also seeking a direction to the respondents in the nature of mandamus for grant of financial up-gradation under Modified

Assured Career Progression Scheme from 2006 along with all consequential benefits including different allowances during the period 23.05.2000 to

14.02.2005, i.e., the intervening period of petitioner which is dismissal from service to reinstatement in service.

The facts in short, as averred in the writ petition, are that the petitioner was appointed as a Constable in CISF on 21.06.1994. He applied for leave

on 27.12.1999 and the same was granted to him upto 30.01.2000. It is averred that during the leave period the petitioner fell ill and he applied for

extension of leave from time to time and the same was extended by the respondents. It is averred that during the period of service, i.e., on 24.07.1999

some false and frivolous allegations were levelled against the petitioner and he was dismissed from service vide order dated 22.05.2000 when he was

on leave and the order of dismissal was served at his residential address. The petitioner challenged the said order in SWP No.1953/2000, which came

to be allowed on 25.05.2004; order of dismissal came to be set aside and the respondents were directed to reinstate the petitioner. Accordingly, the

respondents reinstated the petitioner on 14.02.2005. In the meanwhile, the respondents also filed LPASW No.52/2009 against the order of learned

Single Judge, however, the appeal came to be dismissed vide judgment and order dated 16.08.2010. After the dismissal of appeal, the respondents vide

order dated 07.10.2010 regularized the intervening period of petitioner with effect from 23.05.2000 to 14.02.2005, i.e., dismissal from service to

reinstatement in service as on duty with all consequential benefits.

The grievance of petitioner is that although the respondents have paid an amount of Rs.4,08,468/- towards the salary for the intervening period from

dismissal to reinstatement, but the respondents till date have not released ration allowance, washing allowance, SCA, SDA, ECL and TPT arrears for

the said period. The further grievance of petitioner is that although vide Office Memorandum dated 17.08.2013 financial up-gradation under Modified

Assured Career Progression Scheme was granted to the petitioner with effect from 01.04.2011, but the petitioner was entitled to the same from the

year 2006. Hence, the present writ petition.

Learned counsel appearing for petitioner argued that after the dismissal of appeal filed by the respondents, besides salary, the petitioner is also

entitled to all consequential benefits for the intervening period, i.e., dismissal from service to re-instatement in service. Although the respondents have

released the salary for the said period in favour of petitioner, but the respondents till date have not released ration allowance, washing allowance,

SCA, SDA, ECL and TPT arrears for the said period, though respondent No.6 himself vide communication dated 08.04.2011 addressed to the

petitioner has stated that process for payment of arrears to the petitioner is under process and the same would be shortly paid to him. Learned counsel

appearing for petitioner also argued that although the Deputy Commandant vide communication dated 24.09.2012 addressed to the Commandant has

admitted that since the petitioner has completed 12 years of service in CISF upto 20.06.2006, as such he is entitled to ACP with effect from

21.06.2006, but despite that the petitioner was given the effect of Modified Assured Career Progression Scheme from 01.04.2011 instead of

21.06.2006.

Objections have been filed on behalf of respondents averring therein that Transportation Allowance (TPT) and DA thereon, Encashment of Leave

(ECL), Washing Allowance (WA), Special Compensatory Allowance (SCA), Special Duty Allowance (SDA) are related to actual performance of

duty and subject to fulfilling all other conditions under which such allowances are admissible and, as such, the same were not admissible to petitioner in

terms of Rule 54 of FR. Similarly, Cost of Ration (COR) is not part of pay and allowance. Further, it is averred that on completion of 12 years regular

service, the case of petitioner was considered by the Screening Committee constituted for grant of financial up gradation to higher pay scale under

ACP Scheme on 30.08.2006 and was found not eligible. Again, in the years 2007, 2009 and in 2010 the case of petitioner was considered for grant of

financial up gradation under the ACP Scheme and found not yet fit. However, the Screening Committee found him fit with effect from 01.04.2011. It

is averred that the petitioner had submitted his unwillingness when he was detailed for Promotion Cadre Course (PCC) from 02.05.2005 to 18.06.2005

held at CISF RTC Mundali. Further, it is averred that earned leave and half pay leave as per entitlement of the petitioner with effect from 23.05.2000

to 14.02.2005 have been credited into his leave account.

I have heard learned counsel appearing for the parties, considered their rival contentions and also perused the writ file as well as the record so

produced by the learned CGSC.

Before proceeding further, it would be appropriate to reproduce the relevant portion of judgment dated 25.05.2004 passed by the Writ Court in

SWP No.1953/2000, which was filed by the petitioner against his dismissal order:

“The writ petition of the petitioner is, therefore, allowed and the order impugned dated May 22, 2000 by which the petitioner has been dismissed

from service is quashed with a direction to respondents to re-instate the petitioner. The petitioner shall be entitled to all the consequential benefits.â€​

Against the said judgment, the appeal filed by the respondents herein also came to be dismissed on 16.08.2010.

Admittedly, as per the directions of Writ Court, the petitioner was entitled to all consequential service benefits. Respondent No.6 too vide order

dated 21.01.2005 reinstated the petitioner in service with immediately effect. Thereafter, vide order dated 07.10.2010, the intervening period of

petitioner with effect from 23.05.2000 to 14.02.2005, i.e., dismissal from service to reinstatement in service came to be regularized as on duty with all

consequential benefits, relevant portion whereof is reproduce hereunder:

“Now, in compliance to the judgment order dated 16/08/2010 passed by Hon’ble High Court of J&K in LPASW No.52/2009 and as per

directions of the CISF HQs, New Delhi message No.V-14013/398/2000/L&R/2554 dated 23/09/2010, the intervening period i.e. dismissal from

service to re-instatement in service i.e. from 23/05/2000 to 14/02/2005 in respect of No.942292871 Constable Ram Kumar Thakur has been

regularized as on duty and he is entitled to all the consequential benefits.â€​

However, as per own admission of respondents, they have only released Rs.4,08,468/- towards salary of petitioner as well as credited into his

leave account earned leave and half pay leave as per his entitlement.

Now the question arises for consideration is: whether releasing the salary of petitioner from the period of dismissal to re-instatement in service and

crediting into his leave account the earned leave as well as half pay leave for the said period, while withholding other allowances would suffice to

mean that the respondents have released all the consequential benefits in favour of petitioner or not.

In my view all consequential benefits imply that the employee, besides arrears of salary, shall also be entitled to count the lapse period in seniority,

promotion, gratuity, leave encashment, other allowances etc. Not only this, the lapse period shall also be included in the length of service as if the

employee had continuously served the department; meaning thereby the petitioner was also entitled to all the benefits which have been granted to

other similarly placed persons who were working at that time.

However, the argument of learned counsel for respondents is that the petitioner was not entitled to other allowances in terms of Rule 54 of

Fundamental Rules (Vol.-1). As such it would be relevant to reproduce Rule 54-A of Fundamental Rules (Vol.-1) hereunder:

F.R. 54-A.- (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government

servant is re-instated without holding any further enquiry, the period of absence from duty shall be regularised and the Government servant shall be

paid pay and allowance in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.

[(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-

compliance with the requirements of the clause

(2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall subject to the provision of sub-rule (7)

of rule 54, be paid such [amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed,

removed or compulsorily retired or suspended prior to such dismissal, removal, or compulsory retirement, as the case may be, as the competent

authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any,

submitted by him in that connection, within such period, [which in no case shall exceed sixty days from the date on which the notice has been served

as may be specified in the notice:

Provided that any payment under this sub-rule to a Government servant other than a Government servant who is governed by the provisions of

Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of three years immediately preceding the date on which the judgment of the

court was passed or the date of retirement on superannuation of such Government servant, as the case may be.

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such

dismissal, removal or compulsory retirement, as the case may be and the date of judgment of the court shall be regularised in accordance with the

provisions contained in sub-rule (5) of Rule 54.]

(3) If the dismissal, removal, or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period

intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or

compulsory retirement, as the case may be, and the date of re-instatement shall be treated as duty for all purposes and he shall be paid the full pay and

allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired, as the case may be.

(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) Any payment made under this rule to a Government servant on his re-instatement shall be subject to adjustment of the amount if any, earned by

him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of re-instatement. Where

the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the

Government servant.â€​

Rule 54-A(2) does not apply in the instant case because the Writ Court in earlier SWP No.1953/2000 had not set aside the impugned order therein

solely on the ground of non-compliance with the requirements of clause (2) of Article 311 of the Constitution of India, rather, while allowing the said

writ petition, the learned Judge was of the view that the material witness had not supported the charge. However, a bare reading of provisions of Rule

54-A(3) clearly entitles the petitioner of full pay and allowances for the period to which he would have been entitled to, had he not been dismissed

from service by the respondents. It appears that the powers are being used and rules are being interpreted in a manner so as to deprive the petitioner

of his rightful claims and make him suffer for agitating his rights before the Court in the earlier writ petition. It shows misuse of powers and bias

against the petitioner. Otherwise too, once the judgment delivered in SWP No.1953/2000 has attained finality and the respondents also vide order

dated 07.10.2010 regularized the intervening period of dismissal from service to reinstatement in service of petitioner as on duty with all consequential

benefits, the respondents cannot re-agitate the same or reopen the judgment so as to review it on their own. All the consequential benefits means the

employee would be entitled to all the benefits which at the relevant time were being released to other similarly situated employees. The respondents

cannot be allowed to play a second inning. The judgment in SWP No.1953/2000 was delivered after taking into consideration all the facts and legal

aspects of the matter. If the respondents were aggrieved of any of the directions passed by the Writ Court, they ought to have raised the same before

the Division Bench. Once the contention of respondents has already been rejected, then they are bound to implement the judgment in its totality. The

respondents have no power to change the decision of the Court. Thus, the respondents have not only defied the directions of the Court passed in SWP

No. 1953/2000, even they have also not adhered to the spirit of order dated 07.10.2010 holding the petitioner entitled to all the consequential benefits.

Now I come to the second prayer of petitioner for grant of financial up-gradation under Modified Assured Career Progression Scheme from

21.06.2006 instead of 01.04.2011.

The contention of petitioner is that on completion of 12 years of regular service, he was entitled to grant of financial up-gradation under Modified

Assured Career Progression Scheme with effect from 21.06.2006, whereas the stand of respondents is that in the year 2006 the petitioner was found

not eligible for the same by the Screening Committee after the petitioner submitted his unwillingness to undergo Promotion Cadre Course (PCC) from

02.05.2005 to 18.06.2005. As per the stand of respondents, again in the years 2007, 2009 and 2010 the petitioner was found not yet fit for grant of

financial up-gradation.

The objections filed by the respondents appear to be more evasive rather than factual. However, on going through the objections as well as

annexure attached thereto, what the Court understood is that the respondents on two counts did not consider the petitioner for grant of financial up-

gradation with effect from 21.06.2006, first, the petitioner had submitted his unwillingness to go for Promotion Cadre Course from 02.05.2005 to

18.06.2005 and, second, he had earned two minor penalties.

It seems the respondents have purposely not mentioned in the objections as to when the petitioner had passed the Promotion Cadre Course,

although, in paragraph-11 of the writ petition, the petitioner has specifically averred that he passed the Promotion Cadre Course on 10.08.2006, which

fact has not been denied by the respondents in their objections; meaning thereby the respondents have admitted that the petitioner had passed the said

Course on 10.08.2006. As per the stand of respondents, the petitioner completed his 12 years of service on 20.06.2006, whereas the petitioner passed

the Promotion Cadre Course on 10.08.2006; meaning thereby he was not eligible for grant of financial up-gradation with effect from 21.06.2006 as he

had not passed the Promotion Cadre Course on said date. Further, in the meeting held by the Screening Committee on 30.08.2006 (annexure R2), the

petitioner was shown to have earned two minor penalties, i.e., 07 days pay fine vide dated 17.08.2005 and 03 days pay fine vide dated 12.10.2005. As

such the petitioner was not eligible for grant of Financial Up-gradation with effect from 21.06.2006.

However, in the next meeting held by the Screening Committee on 28.02.2007 and 01.03.2007 for grant of financial up-gradation (annexure R3),

again the petitioner was shown to be not eligible for the said up-gradation, although it was admitted by the Screening Committee that the petitioner had

qualified the Promotion Cadre Course (PCC) vide RTC(A) SO Pt. No.231/06 dated 03.11.2006. The reasons given were that the petitioner had

acquired less marks, i.e., 09 marks in the ACRs for the preceding 05 years, as there were no ACRs for the period 2002, 2003 and 2004. Second

reason was that the petitioner had been awarded two minor penalties, i.e., 07 days pay fine vide dated 17.08.2005 and 03 days pay fine vide dated

12.10.2005. And, the third reason given was that the petitioner had been dismissed from service with effect from 22.05.2000 to 23.02.2005 and this

entire period had yet not been regularized in the earlier ACP and he had been declared not eligible vide GHG SO P.1 No.162806 dated 02.09.2006.

As regards the first reason that the petitioner had acquired less marks in the ACRs for the preceding 05 years when the meeting of Screening

Committee was held on 28.02.2007 and 01.03.2007 for grant of financial up-gradation, it is to be seen here that the petitioner had been dismissed from

service with effect from 23.05.2000 to 14.02.2005, which period came to be regularized as on duty vide order dated 07.10.2010. And, it is a well

settled law that when the ACRs of any period are missing, the past ACRs of equivalent period are taken for consideration for the purpose of

promotion. In the present case since the ACRs of the petitioner for the period 2002, 2003 and 2004 were not available, as such his past ACRs of the

equivalent period were required to be taken into consideration while considering his case for financial up-gradation. A perusal of the record so

produced by the respondents reveals that during the period 01.01.1997 to 31.12.1997 the petitioner was awarded the grading as “goodâ€. During

the period 01.01.1998 to 31.12.1998 the petitioner was awarded the grading as “goodâ€. During the period 01.01.1999 to 30.04.1999 the petitioner

was awarded the grading as “very good†For rest of the period of 2009, the petitioner was awarded the grading as “goodâ€. Thus, if the

respondents have taken into consideration the past three years’ ACRs of the petitioners while considering his case for grant of financial up-

gradation during the meeting of the Screening Committee held on 28.02.2007 and 01.03.2007, the petitioner could have certainly acquired the required

marks for grant of financial up-gradation, that too when the respondents themselves in communication dated 17.08.2013 (annexure “Hâ€​ to the writ

petition) have admitted that the ACRs of the petitioner for the years 2001, 2002, 2003 and 2004 were considered as very good/good based on the

ACR for the year 1999. However, as per the said communication, the respondents in the year 2006 denied financial up-gradation to the petitioner as

he had been awarded two minor punishments during the year 2005, as such could not secure 50 passing marks.

Anyhow, to ascertain the overall conduct of petitioner, the record reveals that the petitioner acquired “very good†grading during the year

2008, “very good†during the year 2009, “very good†during the year 2010, “good†during the year 2011, “very good†during the year

2012 and “very goodâ€​ during the year 2013. Thus, the record reveals that during the period the petitioner remained in active service till filing of the

writ petition in the year 2013, the overall service record of petitioner remained very good.

As regards the second reasoning given by the respondents that the petitioner had been awarded two minor penalties, i.e., 07 days pay fine vide

dated 17.08.2005 and 03 days pay fine vide dated 12.10.2005, as such he was found not eligible by the Screening Committee in its meeting held on

28.02.2007 and 01.03.2007. The annexure attached with the objections reveals that the same ground was taken by the respondents in denying financial

up-gradation to the petitioner when the meeting of Screening Committee was held on 30.08.2006. Once the petitioner had already been penalized for

the said act by the Screening Committee held on 30.08.2006 and he was not accorded financial up-gradation with effect from 21.06.2006 holding him

ineligible, the same ground cannot be taken by the respondents or by the Screening Committee in its next meeting held on 28.02.2007 and 01.03.2007

because no one can be tried or punished more than once for the same offence/wrongdoing and put in double jeopardy. To the same effect is the

ancient maxim ""Nimo Bis Debet Puniri pro Uno Delicto"", that is to say that no one ought to be twice punished for one offence or as it is sometimes

written ""Pro Eadem Causa"", that is, for the same cause.

Now I come to the third reasoning given by the respondents that the petitioner had been dismissed from service with effect from 22.05.2000 to

23.02.2005 and this entire period had yet not been regularized in the earlier ACP and he had been declared not eligible vide GHG SO P.1 No.162806

dated 02.09.2006, it is to be seen here that the dismissal order of petitioner came to be quashed vide judgment dated 25.05.2004 delivered in SWP

No.1953/2000 allowing all the consequential benefits to the petitioner. The judgment came to be delivered on 25.04.2004 and the respondents vide

order dated 07.10.2010 regularized the intervening period of petitioner with effect from 23.05.2000 to 14.02.2005, i.e., dismissal from service to

reinstatement in service as on duty with all consequential benefits. If there was delay in regularizing the intervening period of petitioner, the same was

on the part of respondents and the petitioner cannot be penalized for the same by not according him financial up-gradation when the meeting of

Screening Committee was held on 28.02.2007 and 01.03.2007. Further, the respondents cannot take the plea that since the petitioner had been

declared not eligible for financial upgradation in the earlier meeting held on 30.08.2006, as such he cannot be held eligible in the next meeting too held

on 28.02.2007 and 01.03.2007.

Further, the respondents have themselves admitted in annexure R-3 to the objections that when the meeting of Screening Committee was held on

28.02.2007 and 01.03.2007, the petitioner had already qualified the Promotion Cadre Course (PCC) vide No. RTC(A) SO Pt. No.231/06. Not only

this, the Screening Committee held the petitioner in medical classification of Shape-1; meaning thereby the petitioner was fit in all physical respects.

Not only this, even the Deputy Commandant, CISF, Unit DMRC, Delhi vide communication dated 24.09.2012 (annexure “H†to the writ petition)

had recommended for grant of ACP benefits in favour of petitioner from the year 2006.

Thus, from every angle, it reveals the petitioner was fully eligible for financial up-gradation under Modified Assured Career Progression Scheme

when the meeting of Screening Committee was held on 28.02.2007 and 01.03.2007. However, it seems the respondents were not fair enough, either in

releasing all the consequential benefits in favour of petitioner for the intervening period of dismissal from service to reinstatement in service, or,

granting him financial up-gradation with effect from 03.11.2006 when communication to this effect was issued vide No. RTC(A) SO Pt. No.231/06.

Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and

Office Memorandum dated 17.08.2013 (annexure “J†to the writ petition) is hereby quashed. Respondents are directed to consider the case of

petitioner for accord of 1st Financial Up-gradation under Modified Assured Career Progression Scheme with effect from 03.11.2006, i.e., when

communication to this effect was issued vide No. RTC(A) SO Pt. No.231/06. Respondents are further direction to release all the consequential

benefits in favour of petitioner in terms of judgment dated 25.05.2004 delivered in SWP No.1953/2000. Let this exercise be completed within a period

of eight weeks from the date a copy of this judgment is delivered by the petitioner to respondent No.6 against proper receipt. Connected miscellaneous

application(s), if any, accordingly stands disposed of.

Registry is directed to return the record to Mr. Moza against proper receipt.