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2016 DIGILAW 1472 (HP)

Union of India v. P. K. Sarin

2016-07-26

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. This petition is directed against the order passed by the learned Central Administrative Tribunal (for short ‘Tribunal’) whereby the Original Application as filed by the respondent herein came to be allowed and the petitioners were directed to grant to the respondent the benefit of ACP with effect from the due date. 2. The case has a chequered history. The respondent joined services of the petitioners as Junior Engineer on 02.08.1976 and in 1984 was promoted as Assistant Engineer. On 13.03.1991, he was implicated in a trap case along with Junior Engineer S.K. Awasthi and was placed under suspension on 29.04.1991. Vide order dated 16.11.2000, the respondent was allowed cross efficiency bar with effect from 01.10.1990. The prosecution launched against the respondent resulted in his acquittal vide order dated 20.08.2002 and thereafter the suspension of the respondent also came to be revoked on 27.01.2003 and this period of suspension vide order dated 12.03.2004 was ordered to be treated on duty for all purposes. 3. On 01.03.2007, the respondent approached the learned Tribunal for grant of ACP and vide order dated 20.08.2009, the petitioners were directed to conduct review DPC to consider the claim of the respondent with effect from 01.08.2000 by ignoring the adverse ACRs. The petitioners assailed this order by approaching the Hon’ble Delhi High Court and vide order dated 02.11.2010, the petition was disposed of by directing the petitioners to constitute a review DPC to consider the grant of second ACP and it was observed as under:- “15. But, with reference to ACP benefit it has to be noted that the respondent has been granted the benefit of crossing the efficiency bar and thus the law laid down in Brij Nath Pandey’s case (supra) would have to be considered and in all probability the petitioner must get the ACP benefit, but we leave it without expressing any conclusive opinion for the reason this would be the job of the Review Committee. 16. We are informed that in compliance of the decision dated 25.2.2009 disposing of WP (C) No. 802/2006 representation against the below benchmark ACR grading has been considered and rejected. 17. Thus, there is no requirement for us to direct that for purposes of ACP benefit the ritual of again receiving a representation against the below benchmark ACR grading and considering the same be completed. 18. 17. Thus, there is no requirement for us to direct that for purposes of ACP benefit the ritual of again receiving a representation against the below benchmark ACR grading and considering the same be completed. 18. However, the effect of the respondent having been granted benefit of crossing the efficiency bar with reference to the decision of the Supreme Court in Brij Nath Pandey’s (supra) has to be considered and thus we direct that a Review Committee be constituted to decide the grant of ACP benefit to the respondent having regard to the fact that the respondent has been cleared for crossing the efficiency bar. Needful would be done within a period of 3 months from today and if ACP benefit is accorded arrears would be paid to the respondent within further 2 months thereof failing which the amount payable would carry interest @ 8% per annum reckoned after 5 months from today.” 4. The petitioners vide order dated 08.02.2011 rejected the claim of the respondent constraining him to approach the Hon’ble Delhi High Court by way of contempt petition which was, however, dismissed granting liberty to the respondent to take recourse to such action as may be available to him. This led to the filing of the Original Application No. 71/HP/2012 before the learned Tribunal, who vide their order dated 04.10.2012 allowed the application by observing as under:- “2. It is beyond the pale of controversy that the period for which the applicant herein was under suspension had been ordered to “be treated as a period spent on duty for all purposes under sub-rule (4)”. It is also no longer a matter of controversy that the applicant was allowed to cross the efficiency bar as well, vide order dated 16.11.2000 (Annexure A-3). 3. The view obtained by the competent authority in allowing the applicant to cross the efficiency bar notwithstanding, the grant of ACP benefit was denied to him on the premise that he does not make the bench-mark. 4. 3. The view obtained by the competent authority in allowing the applicant to cross the efficiency bar notwithstanding, the grant of ACP benefit was denied to him on the premise that he does not make the bench-mark. 4. In fact, the applicant raised the relevant plea before the Delhi High Court as well which (plea) was dealt with by the High Court with the observations which are extracted hereunder:- “But with reference to ACP benefit it has to be noted that the respondent has been granted the benefit of crossing the efficiency bar and thus the law laid down in Brij Nath Pandey’s case (supra) would have to be considered and in all probability the petitioner must get the ACP benefit, but we leave it without expressing any conclusive opinion for the reason this would be the job of the Review Committee.” 5. In view of the apparent and also conceded commonality of the period which had to be taken into consideration for the allowance of EB-crossing and also the grant of ACP benefit, the competent authority cannot deny a favourable consideration to the applicant for the latter facet of the relief; while reiterating the validity of its view in having allowed the applicant to cross the efficiency bar under the former facet, particularly when the period under suspension had been ordered to be treated as the period spent on duty. Obviously, no ACR for that period could have been recorded. The available record was taken into consideration by the competent authority in allowing the applicant to cross the efficiency bar.” 5. It is against this order of the learned Tribunal that the present petition has been filed on the ground that the learned Tribunal had granted relief only on the ground that the respondent had crossed the efficiency bar, whereas, it was not so because the petitioners had thereafter served a show-cause notice why the notification allowing him to cross the efficiency bar despite he having average confidential report be not withdrawn. The recommendations of the Reviewing Efficiency Bar Committee had been accepted by the competent authority and it was decided to cancel the order dated 16.11.2000 through which permission crossing efficiency bar had been granted in respect of the respondent. The recommendations of the Reviewing Efficiency Bar Committee had been accepted by the competent authority and it was decided to cancel the order dated 16.11.2000 through which permission crossing efficiency bar had been granted in respect of the respondent. We have heard the learned Assistant Solicitor General of India for the petitioners and respondent, who has appeared in person and also gone through the records of the case. 6. It is not in dispute that the respondent was due for crossing of the efficiency bar with effect from 01.10.1990 and in fact had been allowed to cross the same vide order dated 16.11.2000 and, therefore, it was unfair on the part of the petitioners to have sought review of the same after more than 11 years vide meeting dated 01.02.2011. 7. In addition to this, we may note that even in the earlier litigation which had reached the Hon’ble Delhi High Court, the respondent was tentatively held entitled to get ACP. 8. Apart from above, it is not in dispute that the period which had been taken into consideration for the allowance of EB crossing and that of grant of ACP is virtually the same and, therefore, as rightly held by the learned Tribunal, the competent authority could not have denied the favourable consideration to the latter facet of the relief when admittedly they had permitted the respondent to cross the efficiency bar under the former facet. This assumes importance because admittedly the period of suspension of the respondent has already been ordered to be treated the period spent on duty and, therefore, obviously no ACR for the said period could have been recorded. 9. It is not only to late in the day, but would be too harsh upon the respondent, who is a retiree, to hold at this stage that he was erroneously permitted to cross the efficiency bar or that he is not entitled to the ACP in question. 10. Having said so, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.