Court No. - 36
Case :- WRIT - A No. - 47578 of 2017 Petitioner :- Vijay Laxmi Nigam Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kaushal Kishor Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
The petitioner namely Vijay Laxmi Nigam wife of Late Devendra Kumar Nigam is before this Court assailing the order dated 22.6.2017 passed by fourth respondent i.e. District Magistrate, Chitrakoot (so far as it relates to ACP benefit) and for a direction to the respondents to grant the Assured Career Progression (ACP) Scheme benefit to the petitioner.
The record in question reflects that the husband of the petitioner was appointed on the post of stenographer in the office of Addl. District Magistrate, Project, Banda on 10.2.1981 and he continued on the said post till 30.04.1985. On 1.5.1985 he was posted on the post of Stenographer to Executive Engineer, Rural Engineering Services, Hamirpur U.P. and continued upto 8.8.1995. Thereafter, the husband of the petitioner was appointed on deputation basis on the post of Steno to District Magistrate, Mahoba by order dated 9.8.1995. Since then he was continuously working on the post of stenographer in the office of District Magistrate, Chitrakoot till his death on 12.1.2015. He died during his service tenure. It is contended that he had completed 34 years of service from 10.02.1981 to 12.01.2015 out of which he had worked in District Chitrakoot from 9.8.1995 to 12.1.2015 i.e. almost 20 years in revenue department on the post of Stenographer in the office of District Magistrate, earlier Mahoba now Chitrakoot. On the death of her husband, the petitioner being his wife has moved an application for according benefit of post retiral benefits i.e. gratuity, LIC, GPF, ACP etc. It is contended that the husband of the petitioner was entitled to ACP benefits due to satisfied services of about 34 years as per the G.O. dated 5.9.2009.
This much is also reflected from the record that the husband of the petitioner had also preferred Writ-A no.2006 of 2000 (Devendra Kumar Nigam v. State of U.P. & Ors.), which was disposed of on 31.1.2017 with following observations:-
"Heard Sri Siddharth Khare, learned counsel for the petitioner and Ms. Subhash Rathi, learned Standing Counsel representing the State respondents.
This writ petition as initially framed sought the following reliefs:
"(a) a writ order or direction in the nature of mandamus commanding the respondent no. 3 &4 to consider the candidature of the petitioner for promotion of the post of personal assistant in the pay scale of Rs. 6500-10500 in persuance the office order dt. 6.3.2000, (Annexure-8).
(b) a writ order or direction in the nature of certiorari quashing the order dt.
25.10.99 passed by respondent No. 2 with specific direction to the respondent No. 3 & 4 send the name of the petitioner for promotion on the post of personal assistant as stated above (Annexure-6)."
On 1 May 2000, this Court had granted an interim order staying the operation of the order dated 25 October 1999. Pursuant to the said interlocutory order, Sri Khare states that the petitioner continued to work on the post in question and during the pendency of this writ petition, he also died while still in service. In view thereof Sri Khare submits that the only issue which now stands left for consideration is the grant of Assured Career Progression Scheme (ACP) to the deceased petitioner consequent to the completion of satisfactory service. Referring to the counter affidavit filed by the State respondents on 8 January 2016, Sri Khare submits that the statutory committee in its meeting held on 15 December 2011 had taken a decision to deny the grant of ACP benefits. He however, refers to the noting of the District Magistrate dated 28 December 2011 to the effect that the matter was again remitted to the concerned committee for reconsideration. He submits that the committee thereafter does not appear to have taken any final decision and that at least the petitioner has not been informed of any decision that may have been taken by the respondents in the meanwhile.
Bearing in mind the aforesaid submission and considering the fact that nothing further survives in this petition apart from the issue of grant of ACP benefit, this writ petition shall stand disposed of with the following direction.
The petitioner is permitted to submit a detailed representation before the District Magistrate, Chitrakoot, the fourth respondent herein within a period of three weeks from today detailing his claim for grant of ACP benefits. The District Magistrate shall have the same duly scrutinised and apprise the petitioner of the decision if any taken by the committee pursuant to his noting dated 28 December 2011. In case, the District Magistrate finds that no decision has thereafter been taken, he shall endeavour to ensure that the committee concerned duly scrutinise the claim of the deceased petitioner for grant of ACP benefits and communicate his final decision to the petitioner within a period of six weeks from today. All contentions on merits with respect to entitlement or otherwise of the petitioner for grant of ACP benefits is left open for the consideration of the District Magistrate."
In response to the aforesaid order, the petitioner moved representation before the District Magistrate on 7.4.2017 for grant of ACP benefits, which was rejected by the order impugned dated 22.6.2017 on the basis of blank entry of the year 2000-2014, bad entry for some of the years and in the year 2006-07 he was physically handicapped (unsound mind).
Learned counsel for the petitioner submits that so far as the blank entries are concerned, the husband of the petitioner cannot be blamed for it. It is the responsibility of the department to keep upto date entry of the employee and moreover for the blank entry it cannot be presumed that it was against the employee. In case no entry was accorded for substantial long time, the onus was on the employer to maintain the record and in such situation the burden cannot be shifted on the employee, who was not only Class-III employee but also sufferring with serious health issues. So far as the bad entry of the year 1999-2000 is concerned, it is submitted that the same is contradictory to the record as the District Magistrate, Chitrakoot has also accorded satisfactory entry on 29.3.2000. So far as the entry of the year 2006-07 is concerned, the husband of the petitioner was physically handicapped and of unsound mind and the same could not be read against him. Once the competent authority clearly proceeded to observe and make endorsement in the service record that for the relevant period he was of unsound mind, therefore, the said entry may not be taken as adverse to the deceased employee for according the benefit of ACP. Learned counsel for the petitioner has placed reliance on the National Trust for Welfare Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, wherein Section 47 (1) and (2) clearly stipulates that physically handicapped persons cannot be deprived of the promotion and other benefits.
On the other hand, learned Standing Counsel has vehemently opposed the writ petition and submitted that the impugned order has been passed strictly in accordance with law and there is no infirmity in it.
Heard rival submissions and perused the record.
For ready reference, it would be appropriate to quote the year wise character roll entries of the petitioner, which is as under:-
"वार्षिषरक गोपनीय प्रविविष्टियो ं का र ् ष िववरण वषर 1995-96 उत्तम, िवशेष प्रविविष्टि, सत्यिनष्ठार्ष प्रवमार्षिणत वषर 1996-97 उत्कृ ष्टि, सत्यिनष्ठार्ष प्रवमार्षिणत वषर 1997-98 उत्कृ ष्टि, सत्यिनष्ठार्ष प्रवमार्षिणत वषर 1998-99 सार्षमार्षन्य, सत्यिनष्ठार्ष प्रवमार्षिणत वषर 1999-2000 ख़रार्षब, सत्यिनष्ठार्ष अप्रवमार्षिणत वषर 2000-2001 अप्रवार्षप वषर 2001-2002 अप्रवार्षप वषर 2002-2003 ख़रार्षब, सत्यिनष्ठार्ष प्रवमार्षिणत वषर 2003-2004 अप्रवार्षप वषर 2004-2005 अप्रवार्षप वषर 2005-2006 अप्रवार्षप वषर 2006-2007 िटिप्पणी - कार्षयर करने मे िवफल है, अधर िविक्षिप हैA वषर 2007-2008 िटिप्पणी - कार्षयर के अयोग्य हो चके है अिधक समय से मेिडिकली अनिफटि है, सहार्षनुभूतित पर कार्षयर कर रहे हAै वषर 2008-2009 अप्रवार्षप वषर 2009-2010 अप्रवार्षप वषर 2010-2011 अप्रवार्षप वषर 2011-2012 अप्रवार्षप वषर 2012-2013 अप्रवार्षप वषर 2013-2014 अप्रवार्षप वषर 2014-2015 अप्रवार्षप"
From the perusal of the record this much is reflected that in most of the years the husband of the petitioner has not been awarded entries and the Court is of the opinion that the employee cannot be blamed for it and from the blank entry it cannot be presumed that it was against the employee. It is the responsibility of the department concerned to keep uptodate entry of the employee. In case no entry is awarded, the onus is on the employer not the employee to maintain the record and in such situation the burden cannot be shifted on the employee. Moreover the integrity of the employee was certified and as such it cannot be presumed that his service was not satisfactory. During service period, in case the husband of the petitioner has sufferred from any mental disease, instead of taking lenient view on the medical condition of the deceased employee, hyper technical objection has been taken just to negate the claim of ACP of the husband of the petitioner. In the present facts and circumstances, the husband of the petitioner is also entitled for sympathetic consideration for according ACP.
In the aforesaid facts and circumstances, the order impugned is set aside. A direction is issued to the respondents to accord ACP benefit to the petitioner (wife of deceased employee). It is made clear that present order has been passed in peculiar facts and circumstances and it cannot be taken as a precedence.
The writ petition stands allowed accordingly.
Order Date :- 27.11.2019 SP/