DELHI TRANSPORT CORPORATION vs SH. SURESH KUMAR
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 20, 2024
+ REVIEW PET. 133/2023 & CM APPL. 6446/2024
IN
W.P.(C) 614/2023
DELHI TRANSPORT CORPORATION
….. Petitioner
Through: Mr. Rikky Gupta, SC with
Ms. Ananya Singh, Adv. for DTC
versus
SH. SURESH KUMAR
….. Respondent
Through: Mr. G.S. Chaturvedi,
Mr. A. K. Choudhary &
Mr. Virat Singh, Advs.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
V. KAMESWAR RAO, J
CM APPL. 6446/2024 (for delay)
This is an application filed by the respondent / applicant seeking condonation of delay in filing the rejoinder.
For the reasons stated in the application, the same is allowed and the rejoinder is taken on record. Application is disposed of.
REVIEW PET. 133/2023
1. This review petition has been filed by the respondent seeking review of the order dated February 16, 2023, whereby this Court had allowed the writ petition filed by the petitioner by holding in paragraphs 9 and 10 as under:
9. So it follows that the petitioner shall not be entitled to recover the benefits granted to the respondent on the basis of grant of 2nd ACP on September 1, 2005, but henceforth, the petitioner shall be within its right to re-fix and grant the 2nd ACP to the respondent w.e.f September 1, 2010 and re-fix the pay accordingly. The said re-fixation shall have a bearing on the pension being received by the respondent. Henceforth the pension shall be paid to the respondent on the basis of refixation of pay of 2nd ACP w.e.f September 1, 2010. The respondent shall not be entitled to the benefit of the 3rd ACP as the same could not have granted to the respondent in 2020, as by the time the respondent had retired.
10. During the course of hearing, Mr. Chaturvedi has stated that recovery of the amount has been made by the petitioner from the Gratuity by claiming interest on the said amount. If that be so, respondent shall be entitled to release of the amount deducted which is ?5,88,980/- with interest @ 4% per annum on the said amount from the date its deduction till repayment.
2. While issuing notice on September 20, 2023, a detailed order was passed by this Court in the following manner:
REVIEW PET. 133/2023
1. This review petition has been filed by the respondent/review petitioner seeking review of order dated February 16, 2023 passed by this Court, wherein in paragraphs 9 & 10, it has been held as under:-
9. So it follows that the petitioner shall not be entitled to recover the benefits granted to the respondent on the basis of grant of 2nd ACP on September 1, 2005, but henceforth, the petitioner shall be within its right to re-fix and grant the 2nd ACP to the respondent w.e.f September 1, 2010 and re-fix the pay accordingly. The said re-fixation shall have a bearing on the pension being received by the respondent. Henceforth the pension shall be paid to the respondent on the basis of re- fixation of pay of 2nd ACP w.e.f September 1, 2010. The respondent shall not be entitled to the benefit of the 3rd ACP as the same could not have granted to the respondent in 2020, as by the time the respondent had retired.
10. During the course of hearing, Mr. Chaturvedi has stated that recovery of the amount has been made by the petitioner from the Gratuity by claiming interest on the said amount. If that be so, respondent shall be entitled to release of the amount deducted which is ?5,88,980/- with interest @ 4% per annum on the said amount from the date its deduction till repayment.
2. The submission of Mr. G.S. Chaturvedi, learned counsel appearing for respondent is primarily that a material error has crept in the order dated February 16, 2023, passed by this Court, wherein it has been held that 1st and 2nd ACPs could not have been granted to the respondent on a single day, i.e., on September 1, 2005.
3. It is also the submission of Mr. Chaturvedi that when this Court had disposed of the W.P.(C) 614/2023, against the respondent, the respondent could not bring the following facts before this Court for the reason that he had undergone his Cataract operation on February 4, 2023 and as such, he was not in a position to brief his counsel:-
A. The ACP Scheme was extended to DTC organization w.e.f. August 12, 2002. As per the ACP Scheme, the 1st ACP is granted to an employee, upon completion of 12 years of ones service. The respondent joined DTC on September 1, 1980, therefore, he became entitled to 1st ACP immediately upon introduction of the Scheme in DTC organization, i.e., on August 12, 2002, i.e., by that time, the respondent had completed 22 years of services in DTC. In other words, the respondent had already completed 22 years of service as against 12 years of service which is required for grant of 1st ACP;
B. The respondent had represented DTC against non-grant of 1st ACP on its due date, i.e., on September 1, 2002. Consequently, 1st ACP was granted to the review petitioner on 1st September, 2005 along with the 2nd ACP. The reason being, on September 1, 2005, the respondent had already completed 25 years of service and that is why he was granted both the ACPs on a single date, i.e., on September 1, 2005. On this day itself, the requirement of rendering of 24 years of service for grant of 2nd ACP got completed. Though the respondent got eligible for grant of both the ACPs on September 01, 2004, i.e., after rendering 24 years of service, however, the same were granted to him only on September 01,2005, which could be due to a purported adverse entry in the ACR of the review petitioner for the year 2001. Moreover the respondent was also given arrears on account of late grant of 1st ACP.
C. The MACP Scheme was introduced in DTC organization in terms of circular dated December 17, 2009. As per the Scheme of MACP, 3rd MACP is granted upon completion of 30 years of service. In the present case, the respondent was rightly granted 3rd MACP on September 1, 2010, i.e., after completion of 30 years of service in the DTC organization.
D. Grant of ACPs and MACP does not warrant tinkering, when 14 years have already been lapsed since the grant of 1st and 2nd ACP, and 9 years of 3rd MACP, respectively, as the same is barred by the principle of delay and laches.
E. The fact that the ACP scheme, though introduced by the Government of India, in 1999, was only implemented in DTC organization in 2002 and similarly, the fact of MACP Scheme being implemented in DTC organization
w.e.f. December 17,2009, could not be brought to the knowledge of this Court for the reasons stated above. The Circulars to this effect were also not available with the counsel of the respondent, as, on account of his illness, he could not properly instruct his counsel. Moreover, the W.P.(C) 614/2023, was also disposed of on the 1st date of appearance on behalf of respondent. Under such circumstances, the aforesaid vital facts and documents could not be brought to the knowledge of this Court. Consequently, the error has crept in the order dated February 16, 2023.
4. In effect, the submission of Mr. Chaturvedi is that the respondent has been rightly granted the 1st and 2nd ACPs on September 1, 2005 for the reason that the grant of 1st ACP on September 1, 2002 was deferred due to adverse grading in the ACR of respondent for the year 2001. According to him, 1st ACP having been deferred to September 1, 2005, the second ACP was rightly granted on the said date, as by that date, the respondent had already completed 24 years of service in DTC organization. In other words, according to him, though the 1st ACP got deferred on September 1, 2005, the same shall not have the effect of deferring the 2nd ACP to a future date for the reason that he had already completed 24 years of service on September 01, 2004 and moreover, there was nothing adverse in the ACRs of the respondent between 2002-2004, for deferring the grant of 2nd ACP. It is further his submission that the 3rd MACP was also rightly granted to the respondent on September 1, 2010, as on that date, he had rendered 30 years of service in DTC organization.
5. We have perused the order dated February 16, 2023, and also the grounds on which the review is being sought, which have already been reproduced in paragraph 3 above. The Tribunal in the impugned order dated September 15, 2022, has quashed the impugned orders dated April 10, 2019 and May 13, 2019, passed by the petitioner herein, whereby, recovery was made from the retiral dues of the respondent and his salary, re-fixed. On the aspect of recovery, we agree with the conclusion drawn by the Tribunal, which is based on the Judgment of the Supreme Court in the case of State of Punjab v. Rafiq Masih & ors., (2015) 4 SCC 334. The second aspect of re- fixation of salary has been dealt by us in paragraphs 9 and 10 of the order dated February 16, 2023, which have already been reproduced in paragraph 1 above.
6. Suffice to state, it appears that the petitioner DTC had filed the Special Leave Petition, being SLP (Civil) No.6945/2023, before the Supreme Court against the order dated February 16, 2023. Though, the copy of the SLP has not been placed on record, it appears the same was filed against our finding whereby, we upheld the order of the Tribunal on the aspect of recovery of the amount of ?5,88,980/- from the retiral dues of the respondent herein.
7. In the present review petition, the respondent has challenged the order dated February 16, 2023, in respect of our conclusion in paragraphs 9 and 10 of the same.
8. Having considered the grounds urged by Mr. Chaturvedi, the issue which emerges is whether the action, of the petitioner granting 2nd ACP w.e.f. September 1, 2010 and accordingly re-fixing the salary of the respondent from the same date, as was the stand put up by the DTC organization, before this Court, is justified.
9. Though, we have upheld the stand of the petitioner in the order dated February 16, 2023, the submission of Mr. Chaturvedi is that the 2nd ACP was rightly granted to the respondent on September 1, 2005, inasmuch as, by that time, the respondent had already rendered 24 years of service in DTC organization and more so, when there were no adverse remarks in the ACRs of the respondent between 2002-2004, which could have made a bearing on the grant of 2nd ACP w.e.f. September 1, 2005.
10. On the aspect of grant of 3rd MACP, Mr. Chaturvedi has also contested the stand of the petitioner by submitting that the respondent was rightly granted 3rd MACP on September 1, 2010, as on that date, he had completed 30 years of service, in the petitioner organization.
11. Therefore, Mr. Chaturvedi has contested the order of this Court, on both the findings i.e., grant of 2nd ACP w.e.f. September 1, 2010 and as well as the respondent being not entitled to grant of 3rd MACP, as erroneous.
12. We accordingly deem it appropriate to issue notice on this review petition, on the petitioner/ DTC organisation, returnable on October 6, 2023.
3. The petitioner has in paragraph 11 of their counter affidavit to the review petition has stated as under:-
11. I say that the following facts and dates are relevant for considering the entitlement of Respondent for benefit under the ACP/MACP scheme.
The purpose of providing ACP/MACP benefits is to provide financial upgradation to an employee who, though has become entitled to promotion, but has not been promoted due to lack of posts or otherwise. The scheme for financial upgradation was not available simply on completing the years of service but was required to be eligible for promotion and not being promoted. The same is treated as Adverse remark for the purposes of deferment of financial upgradation under ACP scheme.
The scheme of ACP was introduced in the year 2002, the Respondent became entitled to grant of financial upgradation under ACP Scheme on the date of its implementation itself. But, however, the same was subject to fulfillment of Conditions as provided in the scheme and more specifically Condition no. 4 & 6 amongst other conditions.
As the Respondent did not fulfil the Bench-Mark for promotion, he was not deemed entitled to financial upgradation under the ACP scheme. It was only on 01.09.2005 that the Respondent became entitled for grant of financial up gradation under ACP scheme for the first time. Prior to the year 2005 the Respondent did not meet the required benchmark of “GOOD” in his yearly service assessment which was the minimum requirement for promotion.
The Respondent was granted benefit under the ACP scheme in the year 2005 when his performance met the Bench Mark. The initial assessment of the Respondent in his ACR for the year 01.04.2004 to 31.03 .2005 was “Irregular” was modified on appeal and was made “Regular” and the financial upgradation under ACP Scheme was granted to him (1st ACP).
The Respondent was wrongly granted 2°d financial upgradation under the ACP Scheme (2nd ACP) on the same date of grant of financial upgradation under 1st ACP since it was in breach of Condition No. 4 of the ACP scheme as aforestated.
The Respondent was placed in suspension w.e.f. 21.01.2006 as is reflected in his ACR for the year 01.04.2005 to 31.03.006. The same was not challenged by the Respondent.
As aforestated In terms of Condition no. 4, the financial upgradation under 1st ACP was deferred by a period of 3 years and 19 days. Therefore, the grant of financial upgradation under 2nd ACP also got deferred by the same period i.e. 3 years 19 days in view of the deferment of 1st ACP. The financial upgradation under 2nct ACP and was further delayed by a period of 2 years on account of the Respondent not meeting the Bench Mark for promotion as per his performance appraisal under the ACRs for subsequent years. The Respondent became eligible for financial upgradation under 2nd ACP only on 01.09.2010 (2nd ACP).
The Respondent has claimed that he was entitled to MACP benefits on completion of 30 years of service from the date of his joining is also fallacious and· against the Rules. Under the conditions for MACP (Condition No. 15) regarding deferment of financial upgradation under ACP shall have effect of deferment of subsequent financial upgradation also. The period of 24 years of Service for the purpose of grant of financial upgradation for 2nd ACP were completed only on 01.09.2010.
In this case the Respondent received promotion prior to completion of 30 years of eligible service (by counting 30 years excluding the years in which the Respondent did not meet the Benchmark for promotion in his ACRs). Even prior to completion of 30 years the Respondent was promoted and appointed at the post of Assistant Cashier on 15.09.2011. Thus, the purpose of grating financial upgradation was achieved. In terms of condition no. 1 of MACPS the benefit is available only if an employee has not received promotion.
In terms of the scheme of grant of MACP, the financial upgradation is to be calculated upon completion of 10 years from the date of last promotion. Since the Respondent was promoted on 15.09.2011, he would have become entitled to financial upgradation under MACP Scheme, in the absence of further promotion, only on 15.09.2021. The Respondent admittedly superannuated on 31.03.2019 i.e. much before the completion of the period of 10 years from the date of his last promotion. Needless to state here that on 15.09.2011, the Respondent has not completed 30 years of eligible service as required under the scheme.
Therefore, the Respondent did not become entitled to 3rd financial upgradation under MACP Scheme on account of his promotion. Also in view of deferment of financial upgradation on account of earlier deferment of 1st ACP & 2nd ACP in view of condition no 15 of MACPS as aforestated.
4. Whereas, the stand taken by the respondent in support of the review petition is primarily that the petitioner had rightly granted the 1st and 2nd ACPs on September 1, 2005 for the reason that the grant of 1st ACP on September 1, 2002 was deferred due to adverse grading in the ACR of the respondent for the year 2001.
5. It is the submission of Mr. G.S. Chaturvedi learned counsel appearing for the respondent that 1st ACP having been deferred to September 1, 2005, the 2nd ACP was rightly granted on the said date, as by that date, the respondent had already completed 24 years of service in DTC organization. In other words, the deferment of 1st ACP on September 1, 2005, shall not have the effect of deferring 2nd ACP to a future date for the reason that the respondent had already completed 24 years of service on September 01, 2004. Moreover, there was nothing adverse in the ACRs of the respondent between 2002-2004 justifying the deferment of grant of 2nd ACP.
6. He submitted that the 3rd MACP was also rightly granted to the respondent on September 1, 2010, as on that date, he had rendered 30 years of service in DTC organization.
7. He also submitted that the respondent was entitled to 2nd ACP only on September 01, 2004. However, 1st and 2nd ACPs, both were granted belatedly by a period of three years and one year, respectively. Moreover, the benchmark for promotion during the entire period in question was Average.
8. He further submitted that even as per paragraph 6.1.4 of the Office Memorandum (OM, for short) dated April 10, 1989, the Average performance is not an Adverse remark. Moreover, in none of the ACRs of the respondent the grading is below Average. Also, it is an admitted fact that neither any disciplinary action was initiated against the respondent nor he was found unfit for promotion, still the respondent delayed the 2nd ACP by one year erroneously taking the ACR of the period of January 01, 2001 to January 31, 2001 as Adverse. Moreover, the subsequent ACRs for period January 01, 2002 till March 31, 2005 do not contain any remark. Insofar as ACR of January 01, 2004 to March 31, 2005 is concerned, the remark of Irregular has been overruled by the ruling authority.
9. He also submitted that the promotion policy which has been annexed by the petitioner mentions above Good benchmark only for selection method and not promotion based on seniority. Moreover, the OMs of 2016 and 2018, by virtue of which benchmark has been enhanced from Good to Very Good, shall not be applicable to the respondent.
10. He submitted that the respondent was promoted as Assistant Cashier on September 1, 2011. The post of Assistant Cashier has same grade pay though the designation is different and as such, the same does not disentitle the respondent from grant of 3rd MACP.
11. He further submitted that it is evident from the contradistinction in the counter affidavit that the respondent is entitled for 3rd MACP. This is in view of the simple fact that MACP is granted to an employee, if he is not promoted. While at one place, the petitioner is contending that the benchmark grading for the grant of 3rd MACP is Good, on the other hand, it is stating that the respondent was promoted. The promotion cannot be granted on a rating below benchmark for promotion.
12. Mr. Chaturvedi has relied upon the guidelines annexed by the petitioner, specifically on paragraph 11 of the same, to contend that the same states that no past cases would be re-opened. The paragraph 11 of the aforesaid guidelines is reproduced as under:
11. It is clarified that no past cases would be reopened. Further, while implementing the MACP Scheme, the difference in pay scales on account of grant of financial upgradation under the old ASP Scheme (of August, 1999) and under the MACP Scheme within the same cadre shall not construed as an anomaly.
13. He submitted that as per the counter affidavit, it is a fact that the respondent had attained the benchmark Good in the year 2010 and it is in the same year, i.e., on September 1, 2010, the 3rd MACP was given.
14. He also submitted that suspension is not a punishment. The petitioner has not clarified as to what action was taken consequent to suspension of the petitioner. Moreover, it has not been clarified by the petitioner as to how the respondent became eligible for 2nd ACP on September 1, 2010, particularly when his entire ACRs for the period under consideration was Average. The gradings in all the ACRs of the respondent has been Average till March 31, 2010. The term Irregular is not the grading of the respondent.
15. Per contra, it is the submission of Mr. Rikky Gupta, learned standing counsel for the petitioner / DTC that the respondent was rightly granted the 1st ACP on September 1, 2005, as prior to it, the respondent did not meet the required benchmark of Good which was the minimum requirement for promotion. As such, in terms of Condition no. 4 of the ACP Scheme, the financial upgradation under 1st ACP was deferred by a period of 3 years and 19 days. Therefore, the grant of financial upgradation under 2nd ACP also got deferred by the same period i.e. 3 years 19 days in view of the deferment of 1st ACP. The financial upgradation under 2nd ACP was further delayed by a period of 2 years on account of the respondent not meeting the benchmark for promotion as per his performance appraisal under the ACRs for subsequent years. Hence, the petitioner became eligible for 2nd ACP only on September 1, 2010.
16. Insofar as the grant of 3rd MACP on completion of 30 years of service is concerned, it is the case of Mr. Gupta that the respondent received promotion prior to completion of 30 years of eligible service. The respondent was promoted and appointed at the post of Assistant Cashier on September 15, 2011. Thus, the purpose of granting financial upgradation was achieved. In terms of Condition No.1 of MACP Scheme, the benefit is available only if an employee has not received promotion.
17. Having heard the learned counsel for the parties, it is now to be seen whether the impugned order which is sought to be reviewed by the respondent needs any interference.
18. At the outset, we may state here that the case of the respondent / review petitioner, as urged by Mr. Chaturvedi is that the 1st and the 2nd ACPs have been belatedly given, as the respondent was entitled to both the ACPs w.e.f. September 01, 2004 and not from September 01, 2005 from which date, he has been granted the 1st ACP. He is also contesting the grant of 2nd ACP w.e.f. September 01, 2010.
19. Having noted this aspect, we find that there is justification for the petitioner organization to defer the grant of 2nd ACP till September 1, 2010, for the reason that the grant of 1st ACP was delayed by 3 years 19 days and such, the appropriate effect would be the deferment in grant of 2nd ACP. Moreover, the financial upgradation under 2nd ACP was further delayed by a period of 2 years on account of the respondent not meeting the benchmark for promotion as per his performance appraisal under the ACRs for subsequent years.
20. In this regard, the chart showing the Gradings received by the respondent for the period 1999-2011, is reproduced as under:-
Years
Regular/Irregular
Performance
01.01.1999 to 31.12.1999
Average
Average worker
01.01.2000 to 31.12.2000
Irregular
No, Irregular
01.01.2001 to 31.12.2001
Irregular
Irregular
01.01.2002 to 31.12.2002
Average
Average worker
01.01.2003 to 31.03.2004
Average
Average worker
01.04.2004 to 31.03.2005
Average
Average
01.04.2005 to 3.03.2006
Irregular
An Irregular
(He was placed
under suspension
w.e.f. 21.01.2006
for issuing Old
tickets after collecting due fare)
01.04.2006 to 31.03.2007
Irregular
An Irregular
01.04.2007 to 31.03.2008
Average
Average
01.04.2008 to 31.03.2009
Average
Average
01.04.2009 to 31.03.2010
Average
Average
01.04.2010 to 31.03.2011
Good
Good
21. According to the petitioner / DTC, an ACR of an employee is considered negative for the purpose of promotion unless performance of that employee is considered very good or at least good. In this regard, reliance has been placed on the OM dated April 10, 1989, wherein, paragraph 6.1.4 reads as under:-
6.1.4. Government also desires to clear the misconception about Average performance. While Average may not be taken as adverse remark in respect of an officer, at the same time, it cannot be regarded as complimentary to the officer, as Average performance should be regarded as routine and undistinguished. It is only performance that is above average and performance that is really note-worthy which should entitle an officer to recognition and suitable rewards in the matter of promotion.
22. Having noted the effect of OM dated April 10, 1989, it is clear that an Average performance, though may not be an adverse remark, the same cannot be treated as a performance that is really noteworthy and which shall entitle an officer promotion.
23. Suffice to state, the respondent having been granted 1st ACP on September 1, 2005, though with an Average grading, which also enured to his benefit, the service record of the respondent thereafter reveals that he was placed under suspension between the period April 1, 2005 and March 31, 2006. Even after that, as can be seen from the table provided in paragraph 20 above, the gradings are either Irregular / Average till March 31, 2010. It is only for the period between April 1, 2010 to March 31, 2011, he was given Good grading, which also resulted in his promotion to the post of Assistant Cashier w.e.f. September 15, 2011. It goes without saying that Irregular / Average gradings between 2005-2010, resulted in shifting of the grant of 2nd ACP till September 1, 2010. Therefore, in that sense, Irregular / Average gradings affected the grant of 2nd ACP to the respondent.
24. Moreover, the respondent having been granted promotion on September 15, 2011, could not have received the benefit of 3rd MACP as he got the promotion only in the last ten years of his service, i.e., 2011-2020, and by the time, he already stood retired in 2019. This we say so, as it is only in the eventuality when a government servant does not get promotion, he becomes entitled to financial upgradation under the MACP Scheme.
25. Hence, for the reasons stated above, the conclusion drawn by us in the impugned order is justified though for different reasons. The review petition being without any merit, the same is dismissed. No Costs.
V. KAMESWAR RAO, J
MINI PUSHKARNA, J.
MARCH 20, 2024/aky
REVIEW PET. 133/2023 in W.P.(C) 614/2023 Page 1 of 16