ORDER

By Hon'ble Manish Garg, Member (J)

In the present OA, the applicant is seeking following reliefs:

(i) To quash and set aside the order No. F.2(11)/

2016/ACP/RTI/Services/21 dated 07/01/2022, and order no. 154 dated 29/06/2021 issued by the Services Department of Government of NCT of Delhi in so far as it relates to the applicant along with communication.

(ii) Direct the respondents No 2 and 3 to grant the applicant his due MACP w.e.f. 1.9.2008 along with consequential pay fixation, pay arrears, increments and consequential retirement benefits arising there from.

(iii) Direct the Respondent No.2 to grant the Applicant a token compensation for forcing this unwanted litigation on him.

(iv) Pass any other order/relief/direction(s) as this Hon‟ble Tribunal may deem fit and proper in the interest of justice in favour of the applicant.

2. In terms of the relief sought by the applicant, learned counsel for applicant would contend that he has been denied grant of third MACP contrary to the Office Memorandum issued by DOP&T from time to time which in turn is contrary to law laid down by the Hon‟ble Apex Court as well as various High Courts in a series of judgments. The main contention urged in the present matter is that at the time of consideration of the case of applicant for grant of third MACP to which he was entitled to after completion of three years of service w.e.f. 01.09.2008 neither he was under suspension nor any charge sheet had been issued nor departmental proceedings were pending even no prosecution was contemplated or pending either. He would rely on the decision of Hon‟ble Supreme Court in Union of India vs. K.V.Jankiraman etc. etc., AIR 1991 SC 2010. He would further contend that even though he was issued a minor penalty charge sheet under Rule 16 of CCS (CCA) Rules, 1965 which culminated into a penalty order dated 29.01.2016 resulting in “reduction by one stage in the time scale of pay for the period of two years, or till date of retirement of Charged Officer, whichever is earlier, without cumulative effect, with further direction that he will not earn increments of pay during the period of reduction and that on the expiry of this period, reduction will not have any effect on his pension and other retirement benefits”, which is not challenged even though it related to the alleged period July 2003, i.e. before the eligibility of third MACP. As such, applicant does not fall within the ambit and scope of deferment or denial of benefit under MACP Scheme.

3. Countering the arguments put forth by the learned counsel for applicant, learned counsel for respondents contend that applicant is not entitled to relief sought in the present OA. He relies upon the averments made in the counter affidavit thereby highlighting that the MACP Scheme has been introduced by the DOP&T vide OM dated 19.05.2009 w.e.f. 01.09.2008. As per para 1 of the MACP Scheme, there shall be three financial upgradations under the MACP Scheme counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. Financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay.

3.1 As per the aforesaid OM, it has been provided that in the matter of disciplinary/penalty proceedings, grant of benefit under the MACP Scheme shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of CCS (CCA) Rules, 1965. The DOP&T vide OM dated 02.11.2012 issued guidelines that instructions issued vide OM dated 25.10.2004 and 14.09.1992 (issued on the basis on procedure laid down by Hon‟ble Supreme Court in the case of K.V.Jankiraman (supra) make it clear that vigilance clearance for promotion may be denied only in the following three circumstances:

(i) Government servants under suspension.

(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending;

(iii) Government servants in r