Arun Kumar Shukla vs Union Of India & Ors.

By Mallika Arya, AM.-

The applicant has filed this Original Application and sought for the following reliefs:

Brief facts of the case are that the applicant was appointed as Junior Stenographer Grade-III in the year 1980. In 1989, he was implicated in a criminal case under Sections 451, 376, 506 of the IPC. He was convicted in the said case and sentenced to undergo imprisonment for two years. On account of his conviction, the applicant was terminated from service vide order dated 14.09.1990. The applicant preferred a Criminal Appeal No.464/1990 against his conviction before the Hon’ble High Court of Madhya Pradesh and vide order dated 08.02.2005, the conviction and sentence were set aside by the Hon’ble High Court and the applicant was acquitted of the charges levelled against him.

Respondents have filed their reply, wherein they have stated that the applicant filed this Original Application claiming promotion from 1990 with a direction to prepare the fresh seniority list giving proper placement to him. He is also seeking salary for the suspension period, i.e. 15.03.1989 to 14.09.1990 with interest. As per direction of the Hon’ble High Court in WP No.7680/2012 (supra), the period of dismissal from service till his reinstatement in service, i.e. from 14.09.1980 till 21.05.2005 has been treated as ‘continued in service’ for the purpose of all other service benefits except for payment of actual salary vide orders dated 29.04.2013. The applicant has been allowed and granted all admissible service benefits. The suspension period has also been regularized as per rules. However, he was denied salary as he had already received subsistence allowance during the said period. The applicant did not challenge the said order at that point of time. Further, the seniority of the applicant has been assigned at the proper place from the date of absorption in ICFRE vide order dated 29.01.2007. The applicant did not raise any grievance regarding the date of absorption at any point of time. The persons against whom he is seeking seniority were absorbed in the ICFRE prior to the absorption of the applicant.

In his rejoinder, the applicant has reiterated his submissions made in the Original Application. Besides, the applicant states that since he has been given continuity in service since 1990, his services for the purpose of promotion and seniority ought to have been granted from that date and not from the date of his absorption in ICFRE, i.e. in the year 2007.

We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.

The factual matrix of the case is not in dispute that the applicant, after his conviction, was reinstated in pursuance of the order of the Hon’ble High Court in Criminal Appeal No.464/1990. The continuity of service, except backwages, for the period when the applicant remained out of service, i.e. from 14.09.1990 till his reinstatement, (i.e. 04.05.2006) was allowed by the Hon’ble High Court while passing the order in Writ Petition No.7680/2012 (supra). The Hon’ble High Court had also observed that since the respondents had kept the matter pending for a period of more than a year and three months even after acquittal of the applicant, they were directed to treat the applicant to have been reinstated in service w.e.f.21.05.2005 with backwages and arrears of salary. The applicant has now approached this Tribunal claiming that, had he not been removed from service on account of the criminal case, he would have been considered for promotion along with his juniors. He therefore seeks re-fixation of his seniority and grant of promotion from the date on which his immediate juniors got promoted, together with consequential benefits.

In the present case, the Hon’ble High Court directed reinstatement with continuity of service. Continuity of service ordinarily preserves the service relationship for the purposes for which continuity has been directed, subject to the terms of the judicial order and the applicable service rules. However, continuity of service does not automatically confer promotion. Promotion depends upon fulfillment of the eligibility conditions, availability of vacancy, consideration by the competent DPC and fitness/suitability of the employee. It is a well settled law that in service matters the question of seniority should not be re-opened after a lapse of a reasonable period because this results in disturbing the settled position. Similarly, the applicant cannot straightaway claim promotion retrospectively merely because he was acquitted and has been granted continuity by Hon’ble High Court of Madhya Pradesh. His claim has to be examined by applying the same criteria which has governed the promotion of his juniors at the relevant point of time. Even if we accept that the applicant should be placed at the appropriate place in the seniority vis-à-vis his counterparts or juniors, at this stage it would not be justifiable to issue any direction to the respondents as this will disturb the seniority position of those persons, without there being any fault on their part more particularly when they are Central Administrative Tribunal^{not being arrayed in this case. In any case, on perusal of the reply filed by} the respondents, it is be evident that the respondents have taken care of the promotional aspects of the applicant and compensated him by granting financial upgradations under ACP/MACP scheme. We are of the considered view that no relief can be granted to the applicant at this stage.

Accordingly, this Original Application is dismissed. No order as to costs.