DEPUTY SECRETARY (SERVICES) & ORS Vs. SAROJ KUMARI

JUDGEMENT

(1.) By this writ petition the petitioners have assailed the order dated 25.11.2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short "the Tribunal"), whereby the Tribunal has allowed the OA No. 1166/2008 filed by the respondent and has been pleased to set aside the order dated 19.05.2008.

(2.) Some of the relevant facts, which are not in dispute, are that the respondent was appointed as a Lower Division Clerk on 24.12.1975, was promoted as Upper Division Clerk on 15.9.1987 & was eligible for promotion to the post of Head Clerk w.e.f. 3.10.1997. She was, however, not given promotion to the post of Head Clerk, but on completion of requisite number of years in service, she was given second financial upgradation under ACP scheme w.e.f. 24.12.1999. It is not in dispute that ACP benefit was given to the respondent only because she was not promoted to the next higher post of Head Clerk w.e.f. 3.10.1997. Realizing their mistake in not promoting the respondent, the petitioners passed an order on 7.2.2007 promoting her notionally w.e.f. 3.10.1997. She was not to be given any salary of the promotional post. By the same order, the second financial upgradation granted to the respondent w.e.f. 24.12.1999 was withdrawn and recovery was sought to be made from her. Aggrieved of the order aforesaid, the respondent filed OA No. 2133/2007, which was disposed of by the Tribunal on 21.4.2008. Operative part of the said order reads as under:- 4. At this stage, while setting aside the order dated 30.12.1997, we direct the respondents to deal with the case of the applicant afresh and find out as to what relief can be given to her. We are not making any final decision in the matter and only observing prima facie that it is not permissible for the respondents to withdraw the ACP and make recovery by promoting the applicant as Head Clerk only notionally. We, however, leave this matter open for debate and direct the respondents to take conscious decision on the matter by applying their mind, and if the applicant may not be entitled to any of the relief in view of the respondents, proper reasons would be assigned for the same. It goes without saying that if the applicant does not get any relief, it will be open to her to file a fresh application.

(3.) Pursuant to the aforesaid direction given by the Tribunal the petitioners passed the impugned order dated 19.5.2008. While dealing with non-promotion of the respondent at the relevant time, in paragraph 2 of the order aforesaid, it has been observed that her case could not be placed before the DPC for consideration for promotion to the post of Grade-II (DASS) along with her juniors, as she was not assigned seniority in Grade-III (DASS)/UDC, and that seniority No.5565A was inserted vide letter dated 29.9.2004 under physically handicapped category, and further that on assigning seniority in Grade-III (DASS) her case was taken up for promotion to the post of Grade-II (DASS). It has been further observed that on receipt of requisite information/documents, the case of the respondent was placed before review DPC, which recommended her 'fit' for promotion notionally w.e.f. 3.10.1997 i.e. the date of promotion of her juniors in Grade-III (DASS) to the post of Grade-II (DASS) and orders to that effect were issued on 7.2.2007. However, the respondent was not given the arrears for the period from 3.10.1997 to 7.2.2007 on the ground that she did not work physically as Grade-II (DASS) Head Clerk w.e.f. 3.10.1997.