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Judgment
ORDER
Per: Mr. Umesh Gajankush, Member (J) Applicant before this Tribunal is challenging the order dated 02.07.2021 (received on 11.01.2022) and 04.04.2022 issued by Director General (Personnel), MES, New Delhi i.e. Respondent no. 3 rejecting the claim/representation dated 12.01.2022 of the applicant. By the said representation, the applicant had requested to reconsider his seniority for the purpose of ACP as given to other who were interviewed and initially employed along with the applicant.
It is the case of the applicant that he was initially appointed on 25.06.1985 to the post of Supdt E/M Gde-II, in the Department i.e. Military Engineering Services under the Min. of Def. There was two Grade Structure i.e. Supdt. E/M Gde. I and Gde. II in the cadre at that point of time. On 22.11.1995, he was Central Administrative Tribunalpromoted to the post of Supdt. E/M Gde. I.
On 09.07.1999, the Supdt. E/M Grade-I and Grade-II were merged together and redesignated as Junior Engineer (E/M) (in short JE (E/M)) and accordingly, the applicant was designated as JE (E/M).
On 09.08.1999, the DOPT issued Office Memorandum introducing the ACP Scheme 1999 as per which two Financial Upgradation were granted to the employees on completion of 12 and 24 years of service. As the applicant has completed 12 years of service on 24.11.1995, he was granted 1st Financial Upgradation as per the said scheme.
Thereafter on 30.01.2004, the applicant was promoted to the post of Asst. Engineer (E/M). On 09.12.2019, the applicant submitted a representation for grant of 2nd Financial Upgradation after completion of 24 years of service, as his colleagues who were initially interviewed and selected along with him in the same panel, were given the said benefit. On the basis of representation of the applicant, the Board of Officers was convened to ascertain the facts.
The Board of Officers submitted its report on 04.01.2021 and it was found that there was a delay in issuance of the appointment order to the applicant and the said delay is attributed to the respondents and there is no fault of the applicant for the said delay. Therefore, the Board of Officers recommended the anti-date of appointment at par with his fellow candidates.
However, vide communication dated 02.07.2021, the request of the applicant was rejected. Thereafter, another representation dated 12.01.2022 was submitted, which was also rejected vide communication dated 04.04.2022. Therefore, the present original application has been filed.
After notice, the official respondents have filed the reply and contested the OA by stating that there is a delay of 14 years for the date of claim of 2nd ACP by the applicant for which the applicant made representation on 09.12.2019 to consider his seniority for the purpose of ACP etc, which was decided on 02.07.2022 and on 04.04.2022.
So far as merits is concerned, it is submitted that since applicant has joined the department on 25.06.1985 and completed 24 years of service on 24.06.2009 (ACP was applicable up to 31.08.2008), thus, not eligible for grant of 2nd ACP. Accordingly, his representation was disposed of vide communication dated 02.07.2021.
It is submitted that ACP scheme was applicable up to 31.08.2008 and thereafter, replaced by MACP Scheme w.e.f. 01.09.2008, accordingly, all financial upgradations under MACP scheme have been granted to the applicant. Further, ACP scheme shall be purely personal to employees and shall have no relevance to his seniority. Therefore, contention of the applicant for an amendment to the seniority list and regularize the discrepancy while granting ACP/MACP is denied. The applicant has been granted the financial upgradation under the ACP/MAACP scheme correctly after following the due procedure as per the guidelines issued by the DOP&T.
The respondents have relied on the judgment of Hon'ble Supreme Court in Civil Appeal No. 1625-1627 of 2021 in the case of Union of India & Ors. vs. S Ranjit Samuel & Ors. Therefore, on the basis of reply, the respondents have prayed for dismissal of the OA.
Thereafter, rejoinder was filed by the applicant explaining and elaborating the stand taken in the Original Application.
In respect of limitation, it is submitted that from the date of rejection of representation in the year 2021 and 2022, the present Original Application is within the limitation.
We have heard learned counsel for the parties and perused the record. Both the learned counsel for the parties have raised their arguments based upon the pleadings available in the Original Application and its reply.
At the first stage, the contention of the respondents in respect of limitation is required to be considered. From the records, it is not in dispute that applicant stood retired on 31.05.2022 from the chronology itself, it is an averment of the applicant that he has submitted representation first time on 09.12.2019 seeking benefit of 2nd Financial Upgradation.
Even looking to the Board proceedings dated 04.01.2021 (Annexure-A-14), an RTI application was submitted by the applicant dated 01.10.2019. Therefore, it is clear that even according to the applicant also after completion of 24 years of Central Administrative Tribunalservice from the date of initial appointment, no steps have been taken by the applicant up to 09.12.2019 and just prior to 3 years of retirement, he has started making representation claiming the benefit of 2nd Financial Upgradation.
In spite of taking objection in respect of limitation in the reply, the applicant has not taken care to file any application for condonation of delay. In the case of Ramesh Chand Sharma v. Udham Singh Kamal and Ors. reported in (1999) 8 SCC 304, the Hon'ble Supreme Court in para 7 was pleased to observe as under:
“7.On a perusal of the materials on record and after hearing counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the OA filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled (see Secretary to Government of India v. Shivram Mahadu Gaikwad).”
Although, through rejoinder, the applicant tried to explain the delay on the ground that impugned rejection Central Administrative Tribunalcommunications were of year 2021/2022 and therefore, from the said date, the original application is within the limitation. However, for consideration for cause of action, the initial cause of action is required to be considered.
Thus, in view of the aforesaid discussion, the present original application is liable to be dismissed on the ground of delay itself.
With the aforesaid, the OA is dismissed. Pending MAs, if any, shall stand disposed of. No order as to cost.