The imposition of a minor penalty does not preclude entitlement to financial upgradations under the ACP Scheme if the penalty is appropriately applied.

ORDER

Hon’ble Mr. Manish Garg, Member (J) :

In the present OA filed under Section – 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:

“(a) To set aside the impugned order dated 17.02.2017 of Assistant Director (P) as illegal in view of above.

(b) To direct the Respondent to grant 1st ACP from 09.08.1999 and re-structure and re-fix the subsequent ACP/MACPS effective from their due dates in sequel thereafter with all consequential benefits/arrears.

(c) To pass any order/directive/relief as this Hon'ble Tribunal may consider at its discretion just and proper.”

2. Highlighting the facts of the case, learned counsel for the applicant submitted that the applicant, who joined the respondent's services on 06.01.1983, has approached this Tribunal, aggrieved by the arbitrary, perverse, and un- reasoned impugned order dated 17.02.2017. The said impugned order denied him the First Assured Career Progression (ACP) from 09.08.1999 and subsequent MACPs, despite being entitled to the same.

2.1. Learned counsel for the applicant further submitted that a minor penalty was imposed upon the applicant in the year, 2000, which was initially without cumulative effect, was later used to deny him ACP and MACPs, causing significant financial losses and impacting his retiral benefits. Highlighting the unfairness of the impugned order, learned counsel for the applicant submitted that the applicant's juniors and batchmates are receiving significantly higher salaries, with a difference of over Rs 20,000/- per month.

2.2. Learned counsel for the applicant contended that the impugned order suffers from serious infirmities, as the representation of the applicant was not placed before the DPC, and the decision was taken in a mechanical manner without applying mind.

3. Supporting the case of the applicant, learned counsel for the applicant has urged the following grounds:

3.1. The minor penalty imposed in 2000 cannot be used to deny the benefit of ACP, which had accrued prior to the penalty.

3.2. The penalty cannot be stretched to withhold financial upgradation, amounting to triple penalty.

3.3. The impugned order was issued without placing the applicant's representation before the DPC.

3.4. The denial of ACP has resulted in gross discrimination, with a vast difference in pay compared to equivalent officials.

3.5 Further, learned counsel for the applicant has placed strong reliance upon the decision rendered by this Tribunal in OA No. 2245/2017 titled Balraj Singh vs. Delhi Development Authority decided on 12.11.2021. Para Nos. 22 to 28 of the said decision, read as under:

“22. From the aforesaid, it is evident that the applicant has been eligible for grant of benefit of first financial upgradation in view of the ACP Scheme w.e.f. 8.9.1999. However, the same has been delayed by the respondents only on account of minor penalty proceedings initiated against him vide charge sheet dated 31.12.1997 for misconduct pertaining to the year 1988-89. The aforesaid chargesheet and the order of penalty dated 10.4.2000 are not the subject matter of challenge in the present OA, so we refrain ourselves from commenting upon the same. However, it will not be out of place to note that OM dated 15.12.2004, referred to hereinabove, provides that the Government servant, on whom a penalty of withholding of increment etc. has been imposed, should be considered for promotion by the DPC, which meets after imposition of the said penalty and after due consideration of final facts leading to imposition of penalty, if he will consider the Govt. employee fit for promotion, the promotion may be given effect to after the expiry of the currency of penalty. However, in the present case, it has not been brought on record by the respondents that the said Office Memorandum allows minor penalty order to take retrospective effect and/or to permit the respondents to pass any order which will be in fact inflicting the two different and distinct penalties upon the applic