Ved Prakash Gera v. Delhi Library Board and Anr.

1. Petitioner by means of this writ petition had sought release of his terminal benefits and certain other monetary emoluments which were withheld on account of a criminal case under Section 498A of the Indian Penal Code, 1860 which was filed against him by his daughter-in-law.

2. It is not disputed that during the pendency of the petition most of the entitlements claimed by the petitioner, taking the criminal case as not been filed, have been paid and the petitioner has received all the terminal 2013:DHC:4432 benefits. Only three reliefs now remain and which are (i) the claim of ACP benefits as claimed by the petitioner, (ii) payment of interest for the delayed period of payment of terminal benefits and (iii) increments due during the suspension period.

3. So far as the first claim of ACP benefits is concerned, the admitted facts are that the petitioner was appointed as Librarian Grade-III on 15.9.1977 as a direct recruit. He was again subsequently recruited as a direct recruit on 5.5.1989 as a Librarian Grade-II. Petitioner states that since both the posts have merged into one post, therefore petitioner’s ACP benefits will be counted from 15.9.1977 and not from 5.5.1989. It may also be noted that petitioner admits that when he was appointed as Librarian Grade-II on 5.5.1989 he got a higher scale of pay than as that payable to a Librarian Grade-III. Petitioner in support of his arguments places reliance upon the clarification which is issued by the respondents dated 10.2.2000 and which is filed alongwith the affidavit of respondents dated 23.11.2011. Reliance is placed upon question No. 5 and its response to contend that benefits of ACP scheme will be granted from the original date of appointment of the petitioner as Librarian Grade-III in the year 1977. The clarifications which are given pertain to queries 4, 5 and 6 and therefore the said queries 4,[5] and 6 and clarifications with respect thereto are reproduced as under:-

4.

5.

6. In a case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit. An employee appointed initially on deputation to a post gets absorbed termed as promotion or direct recruitment. What will be the case if an employee on deputation holds a post in the same pay-scale as that of the post held by him in the present cadre? Also, what will be the situation if he was holding a post in the parent cadre carrying a lower pay-scale? The benefits under ACPS are limited to higher pay scale and do not confer designation, duties and responsibilities of the higher post. Hence, the basis criterion to allow the higher pay scales under ACPS should be whether a person is working in the same pay scale for the prescribed period of 12/24 years. Consequently, so long as a person is in the same pay scale during the period in question, it is immaterial whether he has been holding different posts in the same pay scale. As such, if a Government servant has been appointed to another post in the same pay scale either as a direct recruit or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale. In other words, past promotion as well as past regular service in the same pay scale, even if it was on different posts for which appointment was made by different methods like direct recruitment, absorption (transfer)/deputation, or at different places should be taken into account for computing the prescribed period of service for the purpose of ACPS. Also, in case of absorption (transfer)/ deputation in the aforesaid situations, promotions entered in the previous/ present organizations, together with the past regular service shall also count for the purpose of ACPS. However, if the appointment is made to higher pay-scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS. Needless to say in case of transfer on administrative ground, involving only change of station within the same department, the service rendered in the same grade at two stations may count for ACPS, as such transfers are within the same organization, ordered generally for administrative/personal consideration and the service rendered in the earlier station counts as eligibility service for promotion. (emphasis is added by me)

4. In my opinion, the contention of the petitioner is misconceived because the clarification clearly provides that object of an ACP scheme is to prevent stagnation in a particular scale of pay for over 12 years i.e clarification makes it abundantly clear that if a person gets a higher scale of pay in the period of 12 years, whether on account of promotion or a fresh appointment by direct recruitment, the commencement of the period for ACP benefits will be the date of appointment in the new post at the higher pay scale. Therefore, since in the present case petitioner was appointed as a direct recruit at a higher pay-scale as Librarian-Grade II in the year 1989, the period for grant of ACP benefits will start in the year 1989. Respondent No.1 has already given ACP benefits to the petitioner taking the date of appointment in the year 1989 when the petitioner was appointed as a Librarian Grade-II. Therefore, the petitioner is not entitled to ACP benefits on the ground that his appointment should be taken from the year 1977.

5. So far as the claim for interest is concerned, I agree that petitioner should be compensated for the delayed payment of terminal benefits and other monetary emoluments. As has been held by the Supreme Court in many cases that payment of terminal benefits is not a bounty. Therefore, the petitioner will be paid interest @ 6% per annum simple from the next day of the date of his retirement on 31.7.2004 i.e w.e.f 1.8.2004, and which will be paid till the date when the petitioner was paid terminal benefits by the respondent No.1. It is clarified that by expression ‘terminal benefits’ it is meant all amounts which would have become due to the petitioner on his retirement.

6. Petitioner also rightly contends that on his suspension being revoked, he ought to have been given necessary monetary emoluments including pay increases in the period of suspension which stood revoked, but which were not paid, and were ultimately paid with delay. Therefore, I hold that once the suspension order of the petitioner stood revoked, the petitioner was entitled to higher pay scales or all other monetary benefits payable as if the suspension order was not passed. Accordingly for the period of delay in release of these monetary benefits, petitioner will be entitled to interest @ 6% per annum simple.

7. Amounts which are due to the petitioner in terms of this judgment be now paid to the petitioner within a period of two months from today. If the amounts due to the petitioner are not paid within two months from today, thereafter petitioner will be entitled to interest @ 8% per annum simple.

8. Writ petition is allowed to the extent of grant of interest for the period of delay of making payments to the petitioner as stated above. Parties are left to bear their own costs.

SEPTEMBER 05, 2013 VALMIKI J. MEHTA, J. Ne