Monday, November 19, 2007

Dept. Of Per & Trg O.K. 11012/6/2008-Estt/A 1.8.07
Sub: - Simultaneous action of prosecution in a court and initiation of departmental proceedings.
The undersigned is directed to refer to this M.H.A O.M.No. 39/30/54-Ests. Dated the 7th June 1955 and No. 39/8/64-Ests. dated the 4th Sept. 1964 on the above subject which state that prosecution should be the general rule in all cases which are found fit to be sent to Court and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds and that such cases departmental action should not precede prosecution. References are being received in this Department seeking the clarification as to whether departmental action can also be taken where the same matter has been taken up in a court of competent jurisdiction for prosecution of the Government servant concerned.
2. What may be deduced from the above instructions is that, in serious cases involving offences such as bribery/corruption, etc action should be launched for prosecution as a matter of course. The Hon’ble Supreme Court had held in their various judgments the important ones being State of Rajasthan v B.K.Meera and others {1996 6 SCC 417} Capt. M. Paul Anthony v Bharat Gold Mines Limited (1993 3 SCC 679), Kendriya Vidyalaya Sangathan and others v T. Srinivas (2004 (6) SCALE 467) and Noida Entrepreneurs’ Association v. Noida (JT 2007 (2) SC 620) that merely because a criminal trial is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. The approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be whereas in the criminal proceedings, the question is whether the offences registered against the Government Servant are established and if, established, what sentence can be imposed on him. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of the serious charges leveled against him may have to be considered by the Competent Authority to proceed with departmental action.
3. However if the charge in the criminal case is of a grave nature which involves complicated questioned of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. This will depend upon the nature of offence and the evidence and material collected against the Government servant during investigation or as reflected in the charge sheet. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings even if they were kept pending on account of the pendency of the criminal case can be resumed and proceeded with so as to conclude them at an early date so that if the employee is found not guilty, the administration may get rid of him at the earliest if the case so warrants.
4. In the case of Hindustan Petroleum Corporation Ltd v. Sarvesh Berry (2004 (10) SCALE Page 340), it has been held in Para 9 that “it is not desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. The Apex Court has referred to the conclusions given in Para 22 of Captain M. Paul Anthony’s case.
5. It is therefore, clarified that stay of disciplinary proceedings is not a must in every case where there is a criminal trial on the very same charges and the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon’ble Supreme Court as mentioned in the preceding paragraphs.
6. All Ministries/Departments are therefore requested to keep in view the above guidelines while dealing with cases of criminal misconduct of Government servants.
Dept. of Per. & Trg. O.M No. 11012/4/2007-Estt. (A) 12.07.2007
Sub: - Amendment to the provisions of Rule 10 of CCS (CCA) Rules, 1965 regarding review of suspension.
The undersigned is directed to refer to the provisions of Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 and to say that the provisions regarding deemed suspension have since been reviewed by this Department.
2. The provisions in Rule 10 of CCS (CCA) Rules have been modified and amendment to the same have been notified in Notification No. GSR 105, dated 06-06-2007 published in the Gazette of India dated 16-06-2007.
3. As per the original provisions of Rule 10 of the CCS (CCA) Rules, 1965, the provisions for review within ninety days was applicable to all types of suspensions. However, in cases of continued detention, the review becomes a mere formality with no consequences, as a Government servant in such a situation has to continue to be under deemed suspension. It has, therefore been decided that a review of suspension shall not be necessary in such cases. Accordingly, a provision has now been added to sub-rule (7) of the said Rule 10 as follows:
“Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under detention at the time of completion of ninety days’ of suspension and the ninety days period for review in such cases will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his Appointing Authority, whichever is later.”
4. In deemed suspension under sub-rule (2), the date of order of suspension may be much later than the deemed date of suspension. With a view to making these provisions explicit, sub rule (6) of the aforesaid Rule 10 has now been amended to substitute the words “ninety days from the date of order of suspension”. Consequent upon this amendment, it would henceforth be necessary to specifically indicate in the orders of suspension the effective date of suspension.
5. Sub-rule (7) of the aforesaid Rule 10 stipulates that” Notwithstanding anything contained in sub-rule (5) (a), an order of suspension made or deemed to have been made under sub –rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.” “Sub-rule (5) (a) of the aforesaid Rule 10 has, therefore, now been amended to read as follows:
“Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.”
Consequently, the words “Notwithstanding anything contained in sub-rule (5) (a)” stated in sub-rule (7) of Rule 10 have become redundant and have therefore been deleted.
6. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these amendments have been made in consultation with the Controller and Auditor General of India.
7. All Ministries/Departments are requested to please bring the aforementioned amendments of Rule 10 of the CCS (CCA) Rules, 1965 to the notice of all Disciplinary Authorities under their control and ensure that review of the orders of suspension is conducted strictly in conformity with the amended provisions thereof.
No. 19-2/2001-ED & Trg. 14.6.07
Sub: - Hon’ble Supreme Court Judgment in Civil Appeal No. 143 of 2001 filed by Shri.Surinder Singh against Union of India and others against the judgment and order dated 27.09-2000 of High Court of Punjab and Haryana at Chandigarh in Civil Write Petition No. 1328—CAT/2000.
I am directed to forward a copy of judgment dated the 30th March 2007 on the above subject delivered by the Apex Court. In this case, the following questions of law have been raised before the Supreme Court:
(i) Whether the selection to post of EDDA (now called GDS Mail Deliverer) can be quashed by the Tribunal when minimum qualification prescribed for a post is middle standard and merit list is prepared on the basis of marks obtained in the preferential qualification, i.e. matriculation, and
(ii) Whether the Tribunal is competent to lay down the procedure for selection of a candidate and further empowered to impose conditions and restricts the exercise of the power of the employer in making the appointment as per prescribed rules.
2. The Hon’ble Supreme Court has taken into consideration the following orders issued by the Department:
(a) Letter No. 17-366/91 – ED & Trg. Dated 12-3-1993.
(b) Letter No. 19-17/97-ED & Trg. Dated 21-11-1997
The Apex Court at P.10 of judgment has observed that “guidelines/norms/instructions clearly stipulate that if the candidates, who have passed matriculation examination, are available for selection to the posts of EDDA, the selection should be made by the Selection Committee on the basis of the marks obtained by the candidates in preferential qualification (i.e matriculation) and in the absence of matriculate candidates, the selection has to be made on the basis of essential qualification, viz., 8th standard. It appears that the CAT as well as the High Court, both have lost sight of the object and import of the Guidelines/Norms/instructions, dated 21.07.1998 laid down by a Competent Authority. The CAT is not competent to lay down criteria for the selection and appointment to the post of EDDA. It is the prerogative and authority of the employer to lay down suitable service conditions to the respective posts.In our view, in service jurisprudence, the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The basic object of prescribing a minimum qualification is to put a cut-off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the other. Sub-Clause (iv) of Clause 3, puts a limit with respect to preferential qualification by way of clear stipulation that no preference should be given to the qualification above matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question.

……………in Government of Andhra Pradesh v P.Dilip Kumar and another (}1993)2 SCC 310}, this court in paragraph 13 held as under:-,
“13………………There is nothing arbitrary of unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catena of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiently is permissible under our constitutional scheme.”
Further in Paragraph 15, it is observed as under:
“15……….it is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidate with higher qualifications to enter the zone of consideration.”

In view of above stated factual situation and settled position of law, the orders of CAT as well as High Court cannot be sustained.”
You are requested to bring the contents of this important judgment to the notice of all concerned for information, guidance and necessary action. If any such case is presently pending before CAT/High Court, the contents of this judgment may be brought to the notice of the concerned CAT/High Court, through CGSC.

Govt. Orders

Min.of Finance & Dep. Of Expenditure O.M.No. 2 (6)/2007-E-II (B) dated 21.09/07
Sub: - Upgradation of Bangalore as A-1 class city for the purpose of House Rent Allowance/Compensatory (City) Allowance – reg
The undersigned is directed to invite attention to this Ministry’s O.M.No. 2 (21)/E (B)/2004 dated 18.11.2004 regarding reclassification/upgradation of cities on the basis of the population figures of 2001 census for the purpose of House Rent Allowance/Compensatory (City) Allowance to the Central Government employees and to say that consequent upon reconstitut9on of the area of Bangalore Mahanagara Palika and re-naming it as Bruhat Bangalore Mahanagara Palika with the addition of certain areas within its Municipal limits vide notification No. UDD 92 MNY 2006 dated 16.01.2007 of the Government of Karnataka the population of Brukat Bangalore Mahanagara Palika’ has increased and therefore, qualified for classification as “A-1” class city for the purpose of House Rent Allowance/Compensatory (City) Allowance to the Central Government employees.2. The President is, accordingly, pleased to decide that the city of Bangalore (including existing Urban Agglomeration) shall stand classified as ‘A-1’ class city for the purpose of grant of House Rent Allowance/Compensatory (city) Allowance to the Central Government employees posted there.
3. These orders shall be effective from 1st April 2007.
4. These orders will apply to all civilian employees of the Central Government. The orders will also be applicable to the civilian employees paid from the Defence Services Estimates. In respect of Armed Forces personnel and Railway employees, separate orders will be issued by the Ministry of Defence and the Ministry of Railways, respectively
5. In so far as the persons serving in the India Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller & Auditor General of India.

Govt. Orders

No. 51 – 1/ 2004 – SPB – II 13.2.2004
Sub: - Non invalidation of a Govt. servant who has been permanently incapacitated from Govt. Service on account of mental or physical disability – Information regarding.
I am directed to forward herewith a copy of Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training O.M.No. 13015/3/2002-Estt. (L) dated 19.01.2004 on the above subject for information and necessary action.
OFFICE MEMORANDUM
1) The Ministry of Social Justice & Empowerment (Disabilities Div.) has amended Section 47 of the Persons with Disabilities Act 1995 and under the amended provisions:
No establishment shall dispense with or reduce in rank an employee who acquires a disability during his service and the employee who has acquired disability if is not suitable for the post he was holding, could be shifted to some other post with the same pay scale & service benefits. In case it is not possible to adjust him against any post, he may be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
2) No promotion shall be denied to a person merely on the ground of his disability.
Provided that the appropriate govt. may having regard to the type of work carried on in any establishment, by Notification and subject to such conditions, if any as may be specified in such Notification, exempt any establishment from the provision of this section.
In view of the aforesaid position, the position of Rule 20 (2) of CCS (Leave) Rules, 1972 shall be as under:
a) If he is on duty, shall not be invalidated from service during his service period.
b) If he is already on leave, the period of leave or an extension thereafter to the extent permissible under sub-rule (1) of this rule and even beyond that may be granted as per relevant rule(s).
3., Amendment in Rule 20 (2) is being carried out on the above lines.
4. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller & Auditor General of India.
(sd) R. Chattopadhyaya Under Secretary to the Govt. of India.

Review of the Franchise Scheme

Dept.of Posts Letter No.40-36/2006-Plg dated 13 11.2007

This is in continuation of this office letter dated 2.11.2007 regarding review of the Franchise Scheme. It is proposed to have further discussion with the representatives of the Unions/Associations who could not participate on 12.11.2007.

2. It has accofdidngly been decided to share the results of the review of the Frnchise Scheme with the Unions/Associations on 19.11.2007 at 11.45 a.m in the Committee Room, Dak Bhavan, New Delhi.

3. It is reuested to kindly make it convenient to participarte in the discussion on19.11.2007 at 11.45 a,m, as aforesaid.

Franchise Of Post Offices

The dept opened hundred post offices in India in private sector during 1996. There was an agreement in April 2007 to review the continuance of these post offices. The crucial meeting is scheduled to be held on 19th November 2007.The results of the meeting will be placed in the website tomorrow.

General Secretary.NUPE G-C.