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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B.CIVIL WRIT PETITION NO.5194/2012

Duli Chand Gurjar

Vs.

The Nuclear Power Corporation of India Ltd. & Ors.

Date of Order : : 06.01.2015

HON’BLE MS.JUSTICE NIRMALJIT KAUR

Mr.Kuldeep Mathur, counsel for the petitioner.

Mr.Sanjay Nahar, counsel for the respondents.

Reportable

Nirmaljit Kaur, J. (Oral):

The prayer in the present petition is to grant second

Financial Upgradation under the Assured Career Progression

(ACP) Scheme to the petitioner w.e.f. 26.09.2007 with all

consequential benefits including the arrears of salary, fixation etc.

The petitioner was initially appointed on the post of Cashier

in the Departmental Canteen of Nuclear Power Board w.e.f.

26.9.1983. The petitioner was subsequently absorbed w.e.f.

1.10.1991. The petitioner was entitled for grant of the first and

second Financial Upgradation under the ACP Scheme after

completion of 10 years and 24 years respectively. After

introduction of the said Scheme, the respondent Organization

allowed the first Financial Upgradation to the petitioner w.e.f.

25.9.1995 on his completion of 12 years regular service counted

from 26.9.1983. The petitioner completed 24 years of the regular

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service on 26.9.2007 and thus, became eligible for grant of

second Financial Upgradation under the ACP Scheme. The

petitioner was denied the second Financial Upgradation under

the said Scheme. Aggrieved, he filed a representation before the

Department. No response was received by the petitioner but

apprehended that the same has been upheld for the reason that

the charge-sheet dated 10.10.2007 was served upon the

petitioner under Rule 14(3) of the Industrial Employment Standing

Orders (Central) Rules, 1946.

While praying for grant of second Financial Upgradation in

spite of the charge-sheet, learned counsel for the petitioner

submitted that the ACP Scheme was introduced to remove the

problem of stagnation and hardship faced by the employees due

to lack of promotional avenues. The said benefit cannot be

postponed or denied to the petitioner due to disciplinary

proceedings which have been initiated after the date the same

became due to him. In the present case, admittedly, on

26.9.2007, the date on which the petitioner became entitled for

second Financial Upgradation, no disciplinary enquiry was

pending against him. A charge-sheet was served upon the

petitioner on 10.10.2007.

Reliance is placed on the judgment rendered by Apex

Court in the case of Union of India & Ors. Vs. K.V. Jankiraman &

Ors., reported in (1991) 4 Supreme Court Cases 109 and in the

case of of Union of India (UOI) & Ors. Vs. Anil Kumar Sarkar,

reported in AIR 2013 SC 1661 as well as the judgment rendered

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by this Court in the case of Kailash Chand Sharma Vs. State of

Rajasthan & Ors., reported in 2010(3) CDR 1552 (Raj.) and in the

case of Uma Shanker Kiradu Vs. State & Ors. (S.B.Civil Writ

Petition No.926/2011), decided on 11.1.2012.

Reply has been filed by the respondents. It is contended

that as per the office memorandum dated 14.9.1992, at the time

of consideration of the cases of Government servant for

promotion, the details with respect to Government servants under

suspension; against whom charge-sheet has been issued and

disciplinary proceedings are pending; and Government Servants

in respect of whom prosecution for criminal charge is pending,

should be brought to the notice of the Departmental Promotion

Committee and that in such cases, they shall not be promoted

until they are completely exonerated of the charges; and in case,

the same is received before the employees actually promoted,

their case shall be deemed to have been placed in a sealed cover

before the DPC. It is contended by learned counsel for the

respondents that in the present case, on the date when the DPC

w