Union Of India And Ors vs R L Sethi
2010 Latest Caselaw 1870 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C.) No. 2361/2010

%                        Date of Decision:   09.04.2010

UNION OF INDIA & ORS.                             .... Petitioners
                  Through Mr. Amit Anand, Advocate

                                   Versus
R.L. SETHI                                                      .... Respondent
                 Through None
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                    Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                       No
3.     Whether the judgment should be reported in                   No
       the Digest?

MOOL CHAND GARG, J.

* CM No. 4732/2010

Exemptions allowed subject to just exceptions.

W.P. (C.) No. 2361/2010

1. The petitioners have assailed the order dated 31.07.2009 passed

in OA No. 733/2008 by the Central Administrative Tribunal (hereinafter

referred to as the Tribunal) whereby the Tribunal while dismissing the

original application filed on behalf of the respondent, Shri R.L. Sethi

and holding that neither the petitioner was entitled to ACP nor to the

grade promotion except with effect from 2002 and 2005 respectively and

held that the benefits granted to the respondent who stands retired in

the peculiar facts of the case may not be withdrawn from him. It is

against the direction given in Para 7 of the order, the petitioners have

filed the present writ petition. Those directions for the sake of reference

are reproduced hereunder:

7.We find that the applicant's case has been dispassionately considered in the light of the earlier observations made by this Tribunal. He may not entitled to any prior dates then those have been assigned to him in the matters of promotion. We also make it clear that in view of the renewed exercises, which led to the impugned orders, the applicant should not be mulcted with any recovery proceedings. In other words, monetary benefits which have been granted to him should be permitted to be kept back by him, especially since we have to take notice of the special facts of the case. O.A., however, is dismissed. No costs.

2. The only submission made on behalf of the petitioners is that the

respondent as per his own case was not entitled to ACP, which fact has

also been admitted by him in the petition filed before the Tribunal and

as per his service record he was also not entitled to Grade promotion.

He was, however, granted benefit of ACP with effect from 01.05.2002

and 05.09.2005 respectively erroneously and by inadvertence with

effect from 09.08.1999 and second upgradation from 31.08.1999. The

same was withdrawn as per the order passed by the petitioners vide

order dated 26.08.2008 and, thus, the petitioners are entitled to seek

recovery of the access amount paid to the respondent. Since there was

no relief sought for by the petitioner regarding stay of such recovery, the

order passed by the Tribunal is unjustified.

3. It would be appropriate to take notice of some of the facts in this

case. Admittedly, the respondent was appointed by the petitioners with

effect from 24.01.1975 as driver. He retired at the age of 60 years i.e.

with effect from 30.11.2006. In 1999, the Government of India

prepared a scheme for Staff Car Drivers with three graded structure of

pay in which it was decided to place Staff Car Drivers in three scales

viz. 3050-4590, 4000-6000 and 4500-7000 in the ratio of 55:25:20.

Minimum eligibility criteria with effect from 01.08.1993 was as follows:

        Grade                         Eligibility Period

        Ordinary Grade (950-1500)     Basic Grade
        Grade-II (1200-1800)          9 years Regular Service in OG.
        Grade-I (1320-2040)           6 Years of Regular Service in
                                      Grade-II

4. The respondent, admittedly, was the senior most person in the

cadre of drivers and as per the scheme became entitled for promotion in

Grade-I with effect from 01.08.1993, as the respondent had completed

15 years of service as on 01.08.1993 but he was not granted such

promotion. On 06.09.2000, instead of considering the respondent for

his promotion in accordance with the Staff Car Drivers promotion

scheme, the petitioners vide order dated 06.09.2000 granted the benefit

of upgradation under the ACP scheme to the grade of 4000-6000 with

effect from 09.08.1999 and the second upgradation in the pay scale of

4500-7000 with effect from 31.08.1999 i.e. the date of completion of 24

years of service. Even though the respondent objected for granting him

the benefits under the ACP scheme, because the respondent was

entitled for regular promotion as per the time bound promotion scheme

with effect from 1993, however no action was taken on the aforesaid

representation.

5. In fact, vide order dated 20.12.2004 i.e. after a period of 11 years

since the respondent had become eligible as per Staff Car Drivers

promotion scheme who had already completed around 18 years in

1993, the Chief Post Master General, vide his order dated 20.12.2004

rejected the request of the respondent for granting the promotion to

respondent under time bound promotion scheme mainly on the ground

that DPC held on 10.12.2004 did not consider him fit for such

promotion on account of minor penalty charge-sheet pending against

the respondent, even though penalty of reduction by three stages was

awarded to the respondent only on 31.08.1997 for a period of three

years. It was the case of the respondent that since as on 01.09.1993

when the benefit of Staff Car Drivers promotion scheme became

available to him, there was no charge-sheet pending against him. It is

also a matter of record that the DPC constituted in 2004 again did not

consider him for the grant of promotion under the aforesaid scheme

even though there were no requirements under the scheme with the

post of Grade-II and Grade-I were not to be given by way of seniority as

it was not a selection post.

6. It was in these circumstances, the respondent had been making

representations to the petitioners but of no consequence. On

31.05.2007 again a DPC was constituted by the petitioners which found

the applicant fit for granting the ACP but for granting regular promotion

declared him unfit. It is against this order, the respondent approached

the Tribunal. The Tribunal vide order dated 31.05.2007 gave the

following directions to the petitioners:

"5.There appears to be some gray areas, which have to be appropriately explained and not withstanding retirement of the applicant, some follow up directions require to be issued. We direct that the respondents are to examine themselves as to whether in the case of the applicant what was admissible as ACP benefits or the Time Bound Grade promotions. If necessary, appropriate reworking might have to be carried out thereafter. Of course, it appears that a vacancy of Special Grade had arisen only w.e.f. 5.9.2005. the right of the applicant for earlier promotion/upgradation, and consequential benefits requires to be examined with some amount of expedition. If ultimately the applicant is adjudged as entitled to any fixation to his advantage, it has to be to enhance his pension."

7. After the aforesaid directions were given, the petitioners passed

the order dated 26.02.2008 whereby they decided to withdrew the

benefit of grant of ACP from the respondent which was granted with

effect from 09.08.1999 and 31.08.1999 respectively after the completion

of 15 years/ 24 years respectively.

8. The Tribunal has taken note of all the aforesaid facts and while

observing that the petitioner was not entitled to ACP at the relevant

time on account of his bad record and he was also not entitled to Grade

promotion but in the peculiar facts of the case and taking into

consideration the conduct of the petitioners, passed the directions as

contained in Para 7 referred to above.

9. We are also of the considered view that the manner in which the

petitioners have treated the case of the respondent inasmuch even after

completion of 18 years, the respondent having become eligible for the

Staff Car Driver promotion scheme as framed in 1993 no action was

taken for conferring such benefits upon the respondent at the relevant

time, rather the petitioners on their own conferred ACP scheme upon

the respondent which even as per the respondent was not available to

him and in fact he had been objecting to it. In such circumstances, the

directions given to the petitioners and to ask for not to refund of the

benefits conferred upon the respondents voluntarily without settling his

claim for which he was entitled at the relevant time does not appear to

suffer from any such infirmity which may call for any interference by

this Court under Article 226 of the Constitution of India. Accordingly,

the writ petition is dismissed.

CM No. 4732/2010

Dismissed as having become infructuous in view of the orders

passed above.

MOOL CHAND GARG, J.

APRIL 09, 2010                                ANIL KUMAR, J.
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