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2010 DIGILAW 1055 (JHR)

Vakil Prasad Jaiswal v. State of Jharkhand

2010-12-02

POONAM SRIVASTAV

body2010
Order Heard Mr. Manoj Tandon on behalf of the petitioner and Mr. Amarendra Pradhan on behalf of the respondents. 2. Counter and rejoinder affidavits have been exchanged and since the pleadings are completed, both the counsel have agreed that the writ petition be decided at the stage of 'Admission' itself. 3. The prayer in the instant writ petition is for a direction commanding the respondents to extend the benefits of first Assured Career Progression (ACP) Scheme to the petitioner w.e.f. 9th August, 1999 and second A.C.P. w.e.f. 6th February, 1993 (sic-2003 ?). 4. The admitted facts are that the petitioner joined the Department as an Assistant Engineer on 6th February, 1979 and he completed period of 12 years on 6th February, 1991. The Scheme of ACP was implemented first time on 14th August, 2002 by virtue of which, it was stipulated that an employee who has successfully completed 12 years of service, he shall be given the benefits of ACP Scheme and on completion of 24 years, he shall be given the benefits of second ACP as well. This benefit was granted to the employees with an embargo that in the event the date of completion of 12 years or 24 years fall prior to 9th August, 1999 then the incumbent will not be entitled for ACP prior to the said cut-off date i.e. 9th August, 1999. 5. The claim of the petitioner is that he completed 24 years of service on 6th February, 2003 and therefore, he had perfected his right and claim for second ACP since the period of 24 years of service was fully satisfied. 6. Meanwhile, on account of certain irregularities/illegalities, the petitioner was charge-sheeted on 30th August, 2003 and after facing a departmental proceeding, he was awarded punishment of reversion to the post of Assistant Engineer from the post of Executive Engineer as well as it was directed that he shall not be granted any promotion for a period of ten years. This order was passed by the competent authority vide order dated 24th February, 2009. 7. The claim of the petitioner is that since he had completed 24 years of service prior to initiation of the departmental proceeding on account of an alleged delinquency, he had perfected his right for grant of two A.C.Ps., specially in view of the decision of the Apex Court in the case of Union of India VS. 7. The claim of the petitioner is that since he had completed 24 years of service prior to initiation of the departmental proceeding on account of an alleged delinquency, he had perfected his right for grant of two A.C.Ps., specially in view of the decision of the Apex Court in the case of Union of India VS. K.V. Jankiraman etc. reported in AIR 1991 SC 2010 . Emphasis has been made on paragraph-6, which is quoted herein below:- "6. On the first question viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commended, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/ charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at• the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusion Nos. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusion Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:- "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2)............ (3)............ (4) the sealed cover procedure can be resorted only after a charge-memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;" There is no doubt -that there is a seeming contradiction between the two conclusions. But read harmoniously and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No.1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/ charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal" 8. It is thus emphatically argued that though the petitioner has challenged the order of punishment but that is not the subject matter of the present writ petition and he is entitled for the benefits of two ACPs without any reference to the proceedings regarding delinquency alleged against him. 9. The counsel appearing on behalf of the respondents has argued that the charges levelled against the petitioner relates to the financial year 2002-03 as indicated in the charge-sheet dated 28.8.2003. The due date of second ACP falls within the financial year 2002-03. Hence, the petitioner cannot claim for second ACP w.e.f. the 2nd of February, 2003. A copy of the charge-sheet dated 28.8.2003 has also been brought on record as Annexure-D to the Counter Affidafit. 10. The due date of second ACP falls within the financial year 2002-03. Hence, the petitioner cannot claim for second ACP w.e.f. the 2nd of February, 2003. A copy of the charge-sheet dated 28.8.2003 has also been brought on record as Annexure-D to the Counter Affidafit. 10. The learned counsel, while replying to the arguments and the view of the Apex Court in the case of K. V. Jankiraman (supra), he submits that the said case only lays down that if the promotional benefits has accrued before issuance of charge-memo and if there is some delay in pending preliminary enquiry or investigation then the incumbent should not be deprived of his right of promotion. It is also averred in para 13 that the charges levelled against the petitioner is regarding financial year 2002-03 as indicated in the charge-sheet dated 28th August, 2003 and therefore, delinquency is prior to 6.2.2003 and thus, he cannot be allowed two ACPs. 11. In the present case, the facts are altogether different. The petitioner was not only charge-sheeted but he has been punished and awarded a punishment of reversion and his promotion for a period of ten years is withheld. This promotion will include grant of ACP as well. 12. I have heard learned counsel for the respondents. He has pointed out paragraph 11 of the counter affidavit where he has stated that so far the claim of the petitioner regarding benefits of the two ACPs, it is asserted that the case of the petitioner will be put up before the Departmental Promotion Committee. However, since an unequivocal assurance has been made in the counter affidavit that the matter shall be referred to the Screening Committee with reference to grant of two ACPs, I am not inclined to go into the merits whether the petitioner is entitled to two ACPs or not. The department shall consider all the aspects and examine the matter at the time of screening without being influenced by any observation hereinabove. 13. In the facts and circumstances, the writ petition is finally disposed of with a direction to the respondents that as asserted in paragraphs 11 and 13, the matter shall be looked into and the question of grant of two ACPs to the petitioner shall be decided as soon as possible, preferably within a period of four months from the date the certified copy of the order is produced before him.