N.K. Balakrishnan, Judicial Member.
1. The applicant who retired on superannuation on 30.6.2011 has filed this application claiming the ACP benefits and also for a direction to release to the applicant the balance terminal benefits with interest thereon at 12% per annum.
2. The case of the applicant is briefly stated as follows:-
The applicant was initially appointed as an Information Assistant on 8.10.1974. He was later promoted as Publicity Officer in 1990. The 2nd financial upgradation under the ACP scheme fell due with effect from 9.8.1999. The applicant was to be granted the scale of pay of Senior Publicity Officer with effect from 9.8.1999 but that benefit was not granted to the applicant on the ground that certain departmental proceedings were pending against him. That inquiry ultimately culminated into imposition of a penalty of withholding his annual increments for a period of three years. The period of penalty was over as on 30.6.2010. The MACP scheme was introduced with effect from 1.9.2008. The applicant is entitled for grant of 2nd and 3rd financial upgradations under the MACP scheme with effect from 1.9.2008. The applicant was not granted the financial upgradations as stated above. He was also not granted the benefit of leave encashment though he had 300 days of leave to his credit and also the amount lying in the group insurance account.
3. The respondents resisted the application contending as follows:-
As per Annexure R1(a) order dated 24.4.2013 the applicant was granted 2nd and 3rd financial upgradations under the MACP scheme with effect from 1.7.2009. The amount of leave encashment and UTGEGIES was with held for want of no due certificate and vigilance clearance. One complaint was pending against the applicant. Moreover, the applicant did not return the articles like camera, printer, scanner, handy cam, Sony Tripod etc., which were issued to him for performing his duties. He was given notice to return those articles. An amount of Rs. 2,09,191/- towards leave encashment and Rs. 30,594/- towards UTGEGIES has been subsequently paid to the applicant as per DD No. 158884, dated 30.10.2012, after deducting the cost of the articles lying with the applicant amounting to Rs. 82,533/-. As per the ACP scheme maximum two financial upgradations can be granted to those employees who have completed 12 and 24 years of regular service. The applicant was granted selection grade with effect from 1.10.1983 in the scale of pay of Rs.425-700/-. Thereafter applicant was promoted as Publicity Officer in the pay scale of Rs.1400-2300/- w.e.f. 30.8.1990. The financial upgradation can be granted only to those who fulfill all the eligibility conditions stipulated for the next promotion post in the department as per the Recruitment Rules. For the post of Senior Publicity Officer, graduation was the minimum educational qualification for getting promotion which can be seen from Annexure R1(b). The applicant does not possess the required qualification as per Annexure R1(b) and as such he is not entitled to get financial upgradation under the ACP scheme. Vigilance clearance certificate was not given to the applicant and as such the applicant was not given the MACP benefits. Subsequently after getting the vigilance clearance certificate the department initiated steps to award MACP benefits to the applicant. As per Annexure R1(a) the matter was reviewed and the benefits under the 2 nd and 3rd MACP were granted w.e.f. 1.7.2009. The granting of MACP benefit was delayed due to the pendency of Writ Petition No. 23044 of 2009.
4. The points for consideration are –
(i) whether the applicant is entitled to get release of Rs. 82,533/- which has been withheld by the respondents and
(ii) whether the applicant is entitled to get the 2nd financial upgradation under the ACP scheme?
5. It is vehemently argued by the learned counsel for the respondents that from the leave encashment amount a sum of Rs.82,533/- was retained by the respondents because of the fact that the applicant did not return the camera, printer, scanner, handy cam, Sony Tripod etc. There should be a register maintained by the Department relating to the Government properties/articles like camera, printer, scanner, handy cam, Sony Tripod etc. Whenever those properties are entrusted to a particular officer issue entries should be made in the register and signature of the officer concerned should be obtained thereon. When those properties are returned similar return entries should be made in the register. But surprisingly enough the respondents did not maintain such a register. In the affidavit filed by the respondents it is stated that such practice was not feasible considering the ground situation prevalent in the islands since the articles will be sent to the officers through messengers or authorized representatives. Strange indeed is the contention that can be raised by such officials. It is incomprehensible what prevents the respondents from getting acknowledgments from the officers concerned even if those articles are sent by messengers or otherwise. That shows the total levity and indifference on the part of the officers concerned causing huge loss to the Department/the Government. At the same time no liability can be fixed on the applicant unless the respondents can show some evidence to prove that those articles were entrusted to the applicant for discharge of his official duties. If the UTL/Government has sustained such loss, the amount so lost should have been realized from the officer who is the official custodian of those articles who was responsible for issue/delivery of such properties to other officials. However, we desist from making further comments on the same. No document has been produced by the respondents to show that the articles like camera, printer, scanner, handy cam, Sony Tripod etc. referred to in the reply statement were actually entrusted to the applicant for the discharge of his official duties.
6. It is also pointed out by the learned counsel for the applicant that the value of the articles was shown as it stood at the time when those articles were alleged to have been purchased. The applicant retired on superannuation on 30.6.2011. Steps should have been taken immediately before the retirement or at any rate within a reasonable time after retirement. The officers concerned slept over the matter for years together without taking action for getting return of those Government properties. If the applicant was liable to pay the amount as the value of those articles, it could be directed to be paid only after deducting the admissible depreciation. That also was not done. Be that as it may, as there is no evidence of entrustment of the articles to the applicant, the order withholding release of Rs. 82,533/- cannot be sustained.
7. The other claim is regarding the refusal of grant of the financial upgradation under the ACP scheme. It is not disputed that the applicant was appointed as Information Assistant on 8.10.1974. The applicant would be entitled to get the 2nd financial upgradation on completion of 24 years of service which would be on 8.10.1998. It was denied on the ground that the applicant had not acquired the educational qualification for promotion. The learned counsel for the applicant would rely upon the decision of the Hon'ble Supreme Court in M.N. Raghunatha Kurup v. Union of India (Civil Appeal No. 3562/2007, dated 13.4.2011) where it has been held:
'In the ACP scheme which is Annexure P1 to this appeal, no where it is mentioned that for getting the benefit of ACP, the applicant must possess the qualification of promotional post'.
8. The respondents rely upon the OM dated 18.7.2001 of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) in support of the contention that the DOP&T which is the nodal Department, which issued the ACP scheme, has clarified the position that the employees have to fulfill all promotional norms to be considered for benefits under the ACP scheme. The question/query put to the Department was; if for promotion on regular basis an employee has to possess a higher/additional qualification; will it be necessary to insist on possession of these qualifications even while grant of financial upgradation under the ACPS? The clarification issued pertaining to that question is:
'In terms of condition No.6 of, Annexure-I to DOP&T OM dated 9.8.1999 only those employees who fulfill all promotional norms are eligible to be considered for benefit under ACPS. Therefore, various stipulations and conditions specified in the recruitment rules for promotion to the next higher grade, including the higher/additional educational qualification, if prescribed, would need to be met even for consideration under ACPS.'
9. The learned counsel for the respondents would submit that the Hon'ble Supreme Court while disposing of the Civil Appeal No.3562/2007 in M.N. Raghunatha Kurup's case did not consider the clarification issued by the Department. Hence, according to the learned counsel for the respondents since the Hon'ble Supreme Court had no occasion to consider the effect of the clarification issued by the DOP&T cited supra the decision rendered in Raghunatha Kurup's case mentioned above cannot have any precedential value. It is further argued that in Raghunatha Kurup's case no law has been declared by the Hon'ble Supreme Court and as such it has no binding effect, or at any rate, it can be distinguished on facts. Therefore, according to the learned counsel since this clarification which was not considered by the Hon'ble Supreme Court in that case has to be taken note of by this Tribunal to distinguish the judgment rendered by the Hon'ble Supreme Court in Raghunatha Kurup.
10. Learned counsel for the applicant would submit that the clarification issued by the DOP&T cannot have an overriding effect when the Hon'ble Supreme Court after going through the ACP scheme, has held that it is not mentioned that for getting the benefit of ACP the applicant must posses the qualification of the promotion post. This judgment was rendered by the Hon'ble Supreme Court on 13.4.2011. The clarification was issued by the DOP&T in 2001. But however, the clarification issued by the DOP&T was not brought to the notice of the Hon'ble Supreme Court. A simple reading of the ACP scheme would make it clear that it was not mentioned that for getting the benefit of ACP, the applicant must possess the qualification of promotional post. We are not persuaded by the submission made by the learned counsel for the applicant, though attractive, to hold that the judgment of the Hon'ble Supreme Court in Raghunatha Kurup's (supra) can be distinguished. It is pointed out by the learned counsel for the
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applicant that following the decision in Raghunatha Kurup's case this Tribunal has decided many cases holding that for getting the benefit of ACP it is not necessary that the employee should possess the qualification of the promotion post. It may be true that this clarification issued by the DOP&T in 2001 was not brought to the notice of the Tribunal in those cases. However, we are not inclined to hold that the decision rendered by the Hon'ble Supreme Court in Raghunatha Kurup's is inapplicable to the facts of this case. In short, the respondents are bound to grant the applicant the 2nd ACP since admittedly he has completed 24 years of service by 8.10.1998. 11. In the light of what is stated above the applicant is entitled to get release of Rs.82,533/- which was withheld by the respondents. The respondents will disburse that amount within one month from this date. If not it will carry interest at 9% per annum from that date till the date of payment/disbursement. The respondents will also grant the benefit of 2nd ACP to the applicant. The applicant shall be granted the consequential benefits within two months from the date of receipt of a copy of this order. No order as to costs.