1. MA No. 237/2006: This MA is for condonation of delay of about 4 years in filing this OA. It is stated in the application that a representation dated 21-9-2002 against the penalty order was pending before the Director General of Postal Services which has not so far been disposed. The respondents in their reply has stated that the representation of the applicant was disposed of in the year 2002 and this OA is filed after lapse of 4 years.
2. We have heard Shri B.Venkateshan, learned Counsel for the applicant and Shri K.P.M.Varghese on behalf of Shri S.Prakash Shetty, counsel for the respondents and also perused the averments in the application. We allow the delay condonation application in the interest of justice.
Now coming to the OA, the applicant was promoted as Special Grade Driver on 15-12-2001 after culmination of penalty proceedings. As per the provisions of FR 22(I)(a)(1) and FR 23 the option contemplated thereunder has to be exercised within 30 days from the date of promotion or appointment. The applicant admittedly did not submit any such option stating that his appeal against the penalty order was pending before the higher authority. The applicant submitted the option with a request for condonation of delay on 5-6-2002 (Annexure A6). The said option was rejected as per communication dated 20-8-2002 (Annexure A11). It is specifically stated therein that there is no provision for condonation of delay in exercising the option and therefore it was rejected. The applicant made further representation dated 26-8-2002 (Annexure A12) before the second respondent. The said representation was also rejected for the same reasons evidenced by communication dated 7-9-2002 (Annexure A13) The applicant, it is stated, had made further representation dated 21-9-2002 (Annexure A14) before the Director General (Personnel or member), Department of Posts, New Delhi.
According to the applicant no reply has been received in the matter so far.
2. Shri B.Veerabhadra, learned Counsel for the applicant submits that Annexure A14 is a representation submitted to the first respondent for invoking the powers vested in it under FR 5(A) of the FRSR. Counsel further submits that no reply has been received so far.
3. The respondents have filed a reply in which the same reasons as stated in the impugned communication are mentioned. There is no mentioned in the said reply about averments made in 4.14 of the application regarding submission of the representation (Annexure A14).
In such circumstances, it has to be assumed that the first respondent has received Annexure A14 and that the said representation has not been disposed. Shri K.P.M.Varghese, learned Counsel representing Shri S.Prakash Shetty, counsel for the respondents submits that there is no provision in the rules for condonation of delay in exercising the option. Counsel also submits that no circumstances warranting the invocation of provisions of Rule 5(A) of the FR has been stated.
4. We have considered the rival submissions. The only question involved in this case is with regard to the power of the respondents to condone the delay in exercising the option FR 22(1)(a)(1) in that regard provides that [Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. 'FR 23 states that' the holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay.'The proviso further states that' at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final. 'No power is conferred under these provisions or in the FR for exercising the options after the period of 30 days prescribed therefor. In that view of the matter, we cannot find fault with the respondents when they said that there is no provision for condonation of delay in exercising the option.
However, as already noted, Annexure A14, according to the counsel for the applicant is, a representation for invoking the special powers vested on Government of India under FR 5(A) which reads: F.R.5-A. Where any Ministry or Department of Government is of opinion that the operation of any of these rules may cause undue hardship to any person, that Ministry or Department, as the case may be, may, by order, for reasons to be recorded in writing, relax the requirements or that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner: Guiding principles in that regard is stated in the Government of India, M.H.A., O.M.No.108/54-Ests. (A), dated 25-3-1955 as amended which reads as follows: '(1) Guiding Principles.- The power to relax a rule as and when considered necessary to deal with any particular case in a just and equitable manner is intended, as in the past, to be invoked only in rare and exceptional cases. Such action should only be taken in accordance with the accepted procedure hitherto followed in dealing with such cases. Before an order of relaxation is passed in any case, the Ministry of Finance should be consulted and any existing rules of business or procedure of the Government of India Secretariat having a bearing on the subject should be complied with.
In any case in which it is agreed by the Ministry of Finance that it is a fit case in which the power to relax any rule should be exercised, the reasons for such relaxation should be placed on record on the appropriate file, but these should not form part of the formal order itself to be issued in this behalf.
5. Though the applicant has produced a copy of the covering letter enclosing the representation as Annexure A14, we do not have the benefit of seeing the contents of such representation, for, the copy of the representation is not produced. The reply filed by the respondents is also silent on that. In such circumstances, it is not possible for us to say that this is a fit case for invocation of FR 5.A in the back ground of the Government order extracted above. Now, Shri Venkateshan, learned Counsel for the applicant submits that a detailed representation containing all the required details for invocation of the provisions of Rule 5.A of the FRSR will be submitted by the applicant. In the above circumstances, though, as already observed, we are not inclined to grant the relief sought for in this OA, if the applicant makes a detailed representation containing all the requisite details to enable the respondents to invoke the powers vested under Rule 5.A within a period of one month from today, there will be a direction to the respondents to deal with the said representation in the manner provided under FR 5.A of FRSR and the Government order extracted earlier and to take a decision there on within a period of 4 months thereafter. The decision so taken will also be communicated to the applicant without any delay. The OA is disposed of as above. Issue urgent copies for producing alongwith the representation to the respondents for compliance.