1. Heard Ms.Tejal Vashi, learned counsel for the petitioner.
2. As such, there is mis-joinder of causes in present petition inasmuch as the petitioner has preferred present petition essentially against the communication / order dated 17.7.1985 according to which, as and by way of penalty, the respondent authority has decided not to release yearly increments in favour of petitioner until substantive improvement is not demonstrated in performance, the petitioner has, however, along with said challenge also clubbed his grievance with regard to the failure of granting the pay scale as per the recommendations of 6th Pay Commission. Not only there is mis-joinder of causes, but basic premise required to be established by the petitioner for the said relief i.e pay scale as per the recommendations of 6th Pay Commission has not been established.
3. In this view of the matter, learned counsel for the petitioner requested that the said relief may be permitted to be deleted and the petitioner will, if so advised, take out appropriate separate proceedings to place for consideration said claim. Request prayed for is granted. The relief prayed for as regards the benefit of higher pay scale as per the recommendations of 6th Pay Commission is taken out of the scope of present petition.
4. So far as the substantive relief prayed for by the petitioner with regard to the communication dated 17.7.1985 is concerned, Mr.Niraj Ashar, learned AGP appearing on behalf of respondents submitted that he has not been served with advance copy of the petition. Therefore, he does not have any instructions with reference to the said communication dated 17.7.1985.
5. Ms.Vashi, learned counsel for petitioner has submitted that the petitioner has made several representations with reference to the said penalty, however, the said representations have remained unattended by the respondent - competent authority.
6. Upon consideration of the submissions made by learned counsel for the petitioner, it appears that the said order of penalty was passed in July,1985 and thereafter, any review does not appear to have been undertaken by the respondent - competent authority. Though, it emerges from the record that subsequently the petitioner was assigned duties of Principal Caretaker, any review with regard to the penalty imposed vide communication dated 17.7.1985 has not been undertaken by the respondent - competent authority.
7. Ms.Vashi, learned counsel appearing for the petitioner submitted that the fact that the additional responsibility of Principal Caretaker came to be assigned to the petitioner and thereafter, it is only in view of her continuous improvement, the petitioner has been continued in employment all throughout, it is evident from the fact that petitioner has demonstrated improvement in the performance and yet the decision to release the increments which the petitioner is otherwise entitled to, has not been taken.
8. In the circumstances and having regard to the grievance made by the petitioner and also from the fact that since the date of said communication increments in favour of petitioner have not been released, it appears that the respondent authority has not undertaken the process of review, which the authority is obliged to undertake, particularly in view of the nature of the penalty imposed on the petitioner, it appears that the present petition can be disposed of with below mentioned directions :
The respondent - competent authority shall take up for consideration the representations made by the petitioner, including the representations dated 25.3.2006, 14.11.2011 as well as 15.12.2011, at the earliest, but not later than 31.5.2012. The respondent - competent authority shall, while considering the representations made by petitioner, review the impugned decision dated 17.7.1985 and take appropriate decision with regard to the yearly increments which have not been released in the interregnum in favour of the petitioner. The respondent authority shall, while taking appropriate decision, also take into consideration the communication dated 20.5.1995 wherein it is mentioned that the decision was to stop only one yearly increment and not for all time.
The aforesaid time limit mentioned in light of the fact that petitioner is to retire in June,2012 and therefore, it would be imperative for the respondent - competent authority to immediately take appropriate decision and inform the same to the petitioner. If the decision is against the petitioner, it would be open to the petitioner to take out appropriate proceedings against the said decision. It is only with a view to not to preempt the decision of the respondent - competent authority and/or in view of the fact that it would be for the respondent - competent authority to take decision as regards the performance of the petitioner that the Court has, at this stage, not examined on merits the legality of the impugned decision and as to whether such penalty can be sustained in law or not. However, only because of the fact that the Court has not entered into the said issue at this stage, it should not stand in way of the respondent authority to take proper decision.
9. With the aforesaid directions, present petition is disposed of. The petitioner is permitted to effect the direct service of this order.
(K.
M. THAKER, J.) (vipul) Top