Tarabuddin vs State of Uttarakhand & Others

Sharad Kumar Sharma, J. (Oral)

By virtue of the impugned order under challenge in the Writ Petition i.e. dated 10.10.2017, there happens to be a denial of the payment of the benefit

of the 3rd ACP, which the petitioner contends that he was otherwise entitled to receive in view of the implications as contained in the Government

Order No. 872/XXVII/(7)/2011 dated 08.03.2011, which has been denied by the impugned order, based upon the fact of taking into consideration the

previous adverse entries which already stood expunged.

Briefly put the facts of the petitioner are that the petitioner was appointed as a regular Conductor with the respondent-Transport Corporation, as

back as, on 01.05.1989. Petitioner supports his case for the grant of benefits of 3rd ACP based on the Government order dated 08.03.2011. The

Government Order dated 08.03.2011 was later on awarded by G.O. 589/xxvii(7)40(ix) 2011 dated 11.07.2013, which was ensuring the entitlement of

employee to receive benefits enforced w.e.f. 01.01.2006, to that extent it awarded the G.O. dated 01.07.2013. The Government order dated

01.07.2013 (Annexure No. 1 to the Writ Petition), which in its paragraph-2 sub para-1 provides for the payment of the benefit of the ACPs on

satisfactory completion of 10, 16 & 26 years of continuous service. Relevant part of the Government order dated 01.07.2013 is quoted here under:

“2- ¼1½ jktdh; deZpkfj;ksa dks ,0lh0ih0 dh orZeku O;oLFkk] ftlds vUrxZr lh/kh HkrhZ ds fdlh in ij fu;fer fu;qfDr dh frfFk ls Øeâ€​k% 10] 18

,oa 26 o’kZ dh vuojr ,oa lUrks’ktud lsok ds vk/kkj ij izFke] f}rh; ,oa r`rh; foRrh; LrjksUu;u ds ykHk dfri; izfrcU/kksa ds v/khu vuqeU; fd;s x;s

gSa] ds LFkku ij Øeâ€​k% 10] 16] ,oa 26 o’kZ dh vuojr ,oa lUrks’ktud lsok ds vk/kkj ij izFke] f}rh; ,oa r`rh; foRrh; LrjksUu;u ds ykHk

fuEufyf[kr izfrcU/kksa ds v/khu vuqeU; fd;s tk;saxs vkSj rn~uqlkj mi;qZDr “kkluknsâ€​k fnukad 08-03-2011 dk izLrj&1¼2½1 ,oa

“kkluknsâ€​k la0 313@xxvii(7)40(ix)/2011 fnukad 30 vDVwcj] 2012 dk izLrj&2¼2½ laâ€​kksf/kr le>k tk;sxkAâ€​

It is not disputed by the respondents that the petitioner is already the recipient of the first ACP payable on 10 years of continuous and satisfactory

service and the second ACP which was payable on 16 years of continuous satisfactory service has also been paid to him. Under the same chronology

and parameters as arises from same G.O. dated 8.03.2011 the entitlement for the payment of third ACP would only be accruing on rendering

continuous and satisfactory services for 26 years from date of regular appointment.

The submission of the learned counsel for the petitioner Mrs. Neetu Singh, is that after having been regularly appointed on 01.05.1989, he would be

completing 26 years of satisfactory service in 2015 and, hence, his entitlement for third ACP would accrue and mature for third ACP only in 2015,

under the Government order dated 01.07.2013. The same has not been remitted to him, hence, the petitioner had filed various representations before

the respondent for the grant of benefit of the third ACP and grade pay of Rs. 4200/- because the juniors to the petitioner in the same grade pay has

already been paid grade pay of Rs. 4200/- admissible for third ACP.

The respondent no. 4 on considering the representation of the petitioner had rejected the claim of the petitioner by the impugned order dated

10.10.2017. By virtue of the impugned order under challenge in the Writ Petition rejection is based on the ground of entries in the service which were

recorded prior to grant of second ACP benefit and also based on the entries, which as per petitioner stood expunged. The seven grounds derived for

denial of third ACP related to the following effect:

“bl laca/k esa vkidks voxr djkuk gS fd vkidh fu;qfDr ifjogu fuxe esa ifjpkyd ds in ij fnukad 01-05-1989 dks gfj}kj fMiks esa gq;h gS ,oa fu;qfDr ds

mijkUr vkidks fuEufyf[kr n.M ikfjr fd, x;s gSa&

1- {ks=h; izcU/kd nsgjknwu ds dk;kZy; vknsâ€k la[;k 5058 fnukad 11-06-1996 ds vUrxZr nks okf’kZd osru o`f);ka fcuk Hkkoh izHkko ds jksxh

x;h gSA

2- lgk;d {ks=h; izcU/kd vknsâ€​k la[;k 1615 fnukad 17-05-1999 ds ,d okf’kZd o`f) fcuk Hkkoh izHkko ds jksdh x;h gSA

3- {ks=h; izcU/kd ds vknsâ€​k la[;k 1176 fnukad 10-12-2001 ds }kjk nks okf’kZd osru o`f);ka fcuk Hkfo’; izHkko ds jksdh x;h gSA

4- vkidk lsok vfHkys[k LoPN u gksus ds dkj.k lgk;d {ks=h; izcU/kd gfj}kj ds }kjk vius i= la[;k3 013 fnukad 16-08-2001 ds vUrxZr nl o’khZ; mPp

osru eku fnukad 25-09-1999 dks 28-05-2000 ls 28-05-2001 vLohd`r fd;k x;k gSA

5- lgk;d {ks=h; izcU/kd gfj}kj ds dk;kZy; vknsâ€k la[;k 2439 fnukad 28-11-2007 ds vUrxZr lsokvfHkys[k LoPN u gksus ds dkj.k o’kZ0 1-05-

2002] 01-05-2003] 01-05-2004] 01-05-2005] 01-05-2006 esa mPp osrueku vLohd`r fd;k x;k gSA

6- lgk;d egkizcU/kd gfj}kj ds vknsâ€​k la[;k 2856 fnukad 10-12-2009 ds vUrxZr vkidk mPp osrueku ¼nl o’khZ; 3125&75&3950&80&4830½

01-07-2007 ls vLohd`r fd;k x;k gSA

7- lgk;d egkizcU/kd gfj}kj ds }kjk vk0l0 3353 fnukad 07-09-2010 ds }kjk ,d o’kZ dh okf’kZd osruÂ

o`f) fcuk Hkfo’; izHkko ds jksdh x;h gSAâ€​

The contents of the impugned order run self contradictory. What is significant is that in the body of the impugned order reason assigned is that they

have taken into consideration the adverse entries pertaining to 2002-03-04-05 and 2006, which resulted into denial of the upgraded scale. This denial

which was made till 2006 and the entries recorded against the petitioner according to his pleadings raised in paragraph-9 of the Writ Petition, which is

quoted hereunder, had been expunged and they do not exist in the service records any more.

“9. That during petitioner’s service period, the petitioner was awarded some minor penalties of stoppage of increments and other minor

punishments which were sponged and not accepted by the higher officials at the time of making Confidential Reports (ACRs) of the petitioner and

hence petitioner had completed a clean uninterrupted satisfactory service of more than 26 years.â€​

7.The submission of the petitioner is that its only after the expunction of the entries as referred to in the impugned order, he was given the benefit of

the 2nd ACP payable to grade pay of Rs. 2800/- was granted on 01.07.2013.

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Logically once the benefit of 1st and 2nd ACP has already been given to the petitioner in terms of the Government order dated 01.07.2013, which is

based on satisfactory service, it would be inferred conclusively that his entire service records prior to the date of grant of benefit atleast upto 2nd ACP

for the specified period could be treated to be satisfactory, hence, once the 2nd ACP was granted all adverse entries if at all were there, would be

treated to be expunged and non existent because grant of benefits to the level of 2nd ACP based on G.O. dated 01.03.2013 on basis of satisfactory

service would mean that records of petitioner were satisfactory, because for deriving conclusion of satisfactory service the service records are bound

to be scrutinized.

The contention of the petitioner is that after the grant of 2nd ACP since on 18 years of service, on 01.07.2013 he was entitled for the 3rd ACP on

completion of 26 years o service that was denied on a frivolous ground for the reason assigned in the impugned order, it has been mentioned as under:

“â€​kkluknsâ€​k la[;k 872 fnukad 08-03-2011 esa fn, x;s izkfo/kkuksa ds vuqlkj izFke ,0lh0ih0 01-07-2007 f}rh; ,0lh0ih0 01-07-2013 esa iznku dh x;h

gSA e.Myh; izcU/kd ¼lapkyu½ nsgjknwu ds i= la[;k 3255 ds }kjk lgk;d egkizcU/kd ¼dkfeZd½ fuxe eq[;ky; dks lacks/ku esa ftldh izfr

v/kksgLrk{kjh dks i`’Bkafdr dh x;h gS esa lacaf/kr dkfeZd dks r`rh; ,0lh0ih0 ls lacaf/kr izLrko desVh ds le{k izLrqr fd;k x;kA desVh ds }kjk

lacaf/kr dkfeZd dks r`rh; ,0lh0ih0 dh ns;rk gsrq mi;qDr ugha ik;k x;k gSA “kkluknsâ€​k la[;k 872 fnukad 08-03-2011 ds vuqlkj f}rh; ,0lh0ih0 iznku

djus ds Ikâ€​pkr~ ;fn LoPN vfHkys[k gksus ij ns; gksxkA bl izdkj vkidks r`rh; ,0lh0ih0 “kkluknsâ€​k la[;k 872 fnukad 08-03-2011 ds vuqlkj fnukaad

01-07-2003 dks ns; gksxhAâ€​

The learned counsel for the respondent submits that in view of the reasons assigned by the Assistant General Manager in the impugned order

under challenge, it has been observed that there stood adverse entries against the petitioner for the periods 11.06.1996, 17.05.1999, 16.08.2001 till 7.

09.2010 but, further she submits that apart from adverse entries as referred in the impugned order there are no other adverse matters which existed in

the service records of the petitioner given to him after grant of 2nd ACP on 01.07.2013, which has been mentioned in the counter affidavit. No such

plea has been pointed out by the respondent referring at any adverse entry awarded to petitioner after grant of ACP on 01.07.2013 till he matured his

right for grant of 3rd ACP in 2015.

This argument of the learned counsel for the respondent may not hold ground for the reason itself assigned in the impugned order for denying 3rd

ACP that for denial of the benefit of the 3rd ACP there had to be entries adverse to the petitioner subsequent to the grant of 2nd ACP. It is not the

case of the respondents at all in the impugned order or in the counter affidavit filed by them that there exists any adverse entry which was ever

recorded against the petitioner after the grant of 2nd ACP, hence, this argument of the learned counsel for the respondent is not accepted and is

turned down, as no such ground of recording of any adverse remark after grant of 2nd ACP exists in service record of the petitioner.

The reason which has been assigned by the Assistant General Manager while rejecting the claim for 3rd ACP by the impugned order dated

10.10.2017 is by reference to the entries which existed prior to the grant of 2nd ACP, as already held above that these entries will become non

existent as soon as 2nd ACP is granted after considering service records of petitioner. Besides this, the reason for rejection and conclusion in the

order for not considering the claim for the grant of 3rd ACP is self contradictory, the reason being, in the operative portion of the order the Authorities

have observed that as per the Government order dated 08.03.2011, it has been observed that the 3rd ACP would be granted after considering the

period of service rendered after the grant of 2nd ACP is satisfactory as per the records. One aspect which was also required to be considered was

the amendment in G.O. dated 08.03.2011, brought into effect by subsequent G.O. dated 1.07.2013, no such consideration has been made by

respondent no. 4 while passing order.

It is not the case of the respondent in the counter affidavit that there has been anything adverse found against him after the grant of 2nd ACP till

he became eligible for the grant of 3rd ACP in 2015 on completion of 26 years of service. Even this fact is pleaded by the petitioner in his Writ

Petition that after the grant of ACP there was nothing adverse found till 2011 for the grant of ACP, which has not been denied by respondent in the

counter affidavit, hence, reasons assigned in the impugned order is non existent and contrary to the records and concocted.

In that view of the matter, the Writ Petition is allowed. The impugned order dated 10.10.2017 (Annexure-7 to the Writ Petition) as passed by the

Assistant Regional Manager, respondent no. 4. is quashed. A writ of mandamus is issued with regards to prayer as made in the Writ Petition directing

the respondent to sanction the benefit of 3rd ACP of grade pay of Rs. 4200 to the petitioner payable to him after completion of 26 years of

uninterrupted satisfactory service from year of his entitlement and further pay all its arrears after fixation of grade pay as Rs. 4200/-.

The respondents are directed to comply the directions given above within six weeks from date of service of certified copy of this order.

However, there would be no order as to cost.