Delhi High Court

A.K. Paswan vs Union Of India And Ors on 17 February, 2016

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) 949/2016
                                Date of decision: 17th February, 2016
      A.K. PASWAN                                         ..... Petitioner
                          Through      Mr. U. Srivastava, Advocate.

                    versus
      UNION OF INDIA AND ORS               ..... Respondent
                    Through  Mr. Rajesh Gogna, CGSC for R-1
                    to 4.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J. (ORAL)

1. A.K. Paswan impugns order dated 28th April, 2015, passed by the

Central Administrative Tribunal, Principal Bench, New Delhi, whereby

his Original Application No.1128/2012 has been dismissed. The

petitioner by the aforesaid original application challenged the propriety

and validity of the communication dated 16th February, 2012, rejecting

the petitioner's claim for antedating his promotion to the rank of

Assistant Central Intelligence Officer-I/WT. The petitioner also

questioned letter dated 7th March, 2012, rejecting his representation for a

copy of the reply dated 4th July, 2007. The said letter dated 7th March,

2012, records that the document was confidential in nature and,

therefore, cannot be furnished.

2. Assured Career Progression Scheme (ACP Scheme) introduced

and implemented from 9th August, 1999, directs grant of financial

upgradations to the next promotional post on completion of 12th and 24th

year of service, where no promotion has been granted to the said

employee in the regular course.

3. The petitioner was recruited as Assistant Central Intelligence

Officer-II/WT on 29th July, 1991 and as he had not been promoted,

became eligible for the first ACP in the year 2003. However, he was

then facing disciplinary proceedings and the Screening Committee in its

meeting held on 4th December, 2003, had followed the sealed cover

procedure in terms of the OM dated 14th September, 1992.

4. In the departmental enquiry, vide order dated 5th December,

1994, the petitioner suffered a penalty of withholding of two increments

for a period of two years without cumulative effect.

5. Consequently, the sealed cover recommendations were not acted

upon in terms of the OM dated 14th September, 1992.

6. The petitioner was subsequently granted first ACP with effect

from 18th July, 2007, on the recommendations of the Screening

Committee meeting held on 18th July, 2007.

7. The petitioner got regular promotion as Assistant Central

Intelligence Officer-I/WT (ACIO-I/WT) on 5th May, 2008.

8. The grievance of the petitioner is that his batch mates and juniors

were promoted to the next higher post of Deputy Central Intelligence

Officer (Tech)/WT vide order dated 28th June, 2011 while the

petitioner's request for antedating promotion was not granted. Instead,

second financial upgradation under MACP was granted to the petitioner

vide order dated 16th August 2011.

9. The petitioner was undoubtedly considered for promotion to the

post of Assistant Central Intelligence Officer (Tech)/WT by the

Departmental Promotion Committee for the years 2005-06, 2006-07 and

2007-08, but was not recommended on the ground of unsuitability.

Respondent Nos.5 to 12, who were found suitable and fit, were

promoted superseding the petitioner. Resultantly, respondent Nos.5 to

12 became senior to the petitioner in the rank of Assistant Central

Intelligence Officer-I/WT, which is the feeder post to the post of Deputy

Central Intelligence Officer (Tech)/WT.

10. The petitioner was promoted as Assistant Central Intelligence

Officer-I/WT pursuant to the recommendations of the Departmental

Promotion Committee for the year 2008-09 with effect from 5th May,

2008. The petitioner was granted second financial upgradation with

effect from 29th July, 2011 vide order dated 16th August, 2011.

11. The petitioner did not question and challenge recommendations of

the Departmental Promotion Committee for the years 2005-06, 2006-07

and 2007-08, for a long time. It is only after the petitioner was granted

second ACP vide order dated 16th August, 2011, that he, for the first

time, raised the question of his seniority viz. respondent Nos.5 to 12 in

the post of Assistant Central Intelligence Officer-I/WT.

12. The challenge, it is apparent to us, was highly belated and was

after a considerable delay.

13. The Tribunal in the impugned order has examined the factual

matrix in detail and has noted and highlighted that the petitioner has

been punished twice. The first punishment suffered by the petitioner

was vide order dated 5th December, 1994, when he was awarded penalty

of withholding of two increments for a period of two years without

cumulative effect. The second penalty was imposed by order dated 17th

February, 2004, directing reduction of pay by one stage for a period of

one year with cumulative effect, which was modified by the appellate

authority by order dated 22.03.2005 to the penalty of reduction of pay by

two stages for a period of one year with a further direction that the

petitioner would not earn increments of pay during the period of

reduction and on expiry of the same, reduction will have effect of

postponing future increments of his pay. The allegation against the

petitioner in the second charge sheet was that he had extorted $ 100 from

a passenger for giving immigration clearance.

14. The Tribunal has also referred to the ACRs considered by the

Screening Committee and the Departmental Promotion Committee for

the years 1998-99 to 2006-07 and have quoted the same in paragraph 11

of the impugned order.The contention of the petitioner that he was

declared fit for grant of ACP by the Screening Committee with effect

from 18th July, 2007, and therefore he should not have been declared

unfit or unsuitable for promotion by the Departmental Promotion

Committee for the years 2005-06, 2006-07 and 2007-08, has been

specifically rejected after examining the facts and in terms of the

reasoning given in paragraph 12 of the impugned order. Annual gradings

of the petitioner have been noticed and adverted to. The impugned order

records that a seniority list was circulated on 6th May, 2009, and as the

petitioner was promoted to the post of ACIO-I/WT vide order dated 5th

May, 2008, his seniority had dipped to Sr. No.182 while respondent

Nos.5 to 12 had been placed at Sr. Nos.82 to 89.

15. The factual position is that the procedure prescribed in circular

dated 14th October, 2010 with respect to the uncommunicated, below the

benchmark ACRs was complied with. Noticing the aforesaid facts, the

Tribunal in paragraph 14 of the impugned order has recorded as under:-

14. .................It is to be noted that the applicant has also been found fit w.e.f. 2011. However, the applicant having rendered junior to respondent nos. 5 to 12, as shown in the above Table, he has not been considered for promotion by the DPC. For the time being, we have to rest content that the assertions of the respondents that his turn will come in order of seniority either in his category where he figures at sl. No.21 or in the general list where he figures at sl. No.73. We are confident that when a DPC is convened, the applicant along with others would be considered by the respondents. We are also to hold in this regard that the seniority list on the basis of recruitment is not sacrosanct but it is the seniority with which persons enter the service. However, it does not prevail for all times to come. It is subject to certain changes depending upon the performance of the applicant in service. A person, who is promoted earlier, even though he may be junior to the applicant in recruitment, shall supersede him and take precedence over him in the matter of seniority, thereby making him eligible for promotion earlier. Therefore, we find nothing unusual in it nor we find that any rights of the applicant have been infringed."

16. The aforesaid reasoning and details given by the Tribunal in the

impugned order takes an extensive and across view of the career and

service records of the petitioner, narrates the factual position that the

Screening Committee had granted benefit of the first ACP to the

petitioner by giving financial upgradation, whereas the Departmental

Promotion Committee had gone on other aspects relating to suitability.

The indulgence by awarding and granting financial upgradation, it is

observed, would not be a sound ground and reason to hold that the

Departmental Promotion Committee should have also held that the

petitioner was fit and suitable for promotion. On consideration of

various facets and aspects, the petitioner was not declared fit for

promotion in the Departmental Promotion Committee meetings for the