Mr.Vijay Kumar, Mr.Rahul Kumar Singh, Advs v. UOI AND ORS

Mr.Virender Pratap Singh Charak, Mr.Pushpender Pratap Singh, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA HON'BLE MS. JUSTICE SHALINDER KAUR NAVIN CHAWLA, J. (ORAL)

1. This petition has been filed by the petitioner praying for the following reliefs: directing “a) Issue writ of certiorari, mandamus or any other similar nature while respondents to grant the benefit of 2nd ACP scheme to the petitioner in accordance with the original ACP scheme of 1999 on the due date in the year 2002 when the petitioner completed 24 years regular service in BSF w.e.f. the date of enrolment in BSF in the year 1978; Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 b) Direct the respondents to grant the benefit of 3rd MACP when the petitioner completed 30 years in regular service, when the Petitioner completed 30 years in regular services in BSF on 2008 w.e.f. the date of enrolment in the year 1978. c) respondents arrears arising out of paras (a) to (c)” Consequently direct to clear all

2. Some of the admitted facts of the parties are that the petitioner was initially appointed as Constable (GD) on 18.10.1978. He was remustered as Naik (RO) in the Communication Cadre on

01.02.1984. He was later promoted as Head Constable (RO) on

17.09.1990. It is not denied that in implementation of the 5th Central Pay

3. Commission, the post of Naik (RO) got merged with the post of Head Constable (RO) with effect from 10.10.1997.

4. The petitioner was then promoted to the rank of Sub-Inspector (RO) on 01.04.2007, and to the rank of Inspector (Comn) on

19.07.2011.

5. The two issues that arise for consideration of this Court are: (a) whether the service that was rendered by the petitioner in the rank of Constable (GD) is to be counted for the benefit of the ACP and the MACP; and (b) whether the petitioner’s promotion to the rank of Head Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 Constable (RO) is to be treated as a promotion for the purposes of denying him the benefit of Second ACP and the third MACP. 6. As far as the first issue is concerned, this Court in Om Prakash & Ors. v. UOI & Ors., 2015:DHC:2214-DB, has held that the earlier service rendered by the personnel as a Constable before being remustered to the rank of Naik has to be counted for the benefit of ACP/MACP. We may quote from the said judgment as under: counsel “14. The only issue which now arises is what is the effect of some of the writ petitioners, such as Om Prakash, the writ petitioner of W.P.(C) No.388/2015, being re- mustered to the rank of Naik or in the cadre of driver trade or in the cadre of radio operator. As per learned respondents the 24 year period of service has to be reckoned from the date they were re-mustered and not from the date they joined service initially. 15. Hitherto fore, between the rank of a Constable and a Head Constable there were two posts of Lance Naik and Naik, which posts were subsequently abolished and that of a Head merged with Constable. 16. Now, the department itself is not considering, the appointment re- mustering as Naik or a Lance Naik as a case of promotion, and thus to Constables on Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 service a No.1717/2015 we see no logic to reckon 24 years’ service the dates noted hereinabove when some of the petitioners and the late husbands of the writ petitioners of W.P.(C) No.1717/2015 were re-mustered. 17. The ACP Scheme is clear. It envisages first ACP benefit after 12 years’ service was rendered and the second benefit after 24 years’ service was rendered if within the first twelve years no promotion could be earned and in second 24 years’ promotion could not be earned. Since all petitioners and husbands of the writ petitioners of W.P.(C) rendered more than 12 years service, reckoned whether with effect from their initial service or they were re- mustered, when the ACP Scheme was introduced in the year 1999 all were granted the benefit of the first financial upgradation with effect from the year 1999 (such who earned a first promotion after 1999 were given anti-dated scales with effect from the year 1999) and when their claims for financial upgradation on completing 24 department only raised one issue : of they not having undergone the pre-promotional course which was essential successfully undertaken to earn a promotion. came up, the date service Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 pre-promotional As per all these persons they were denied an opportunity to undergo course because the department had posted them at places from where they could not be relieved; and none of them had anything to do with their posting orders. This aspect has now been taken care of by the two office orders dated October 27, 2014 and February 16, 2015. 18. We note that all the petitioners have completed the twenty four years of service though they have not undergone the pre-promotional courses. It is the case of the petitioners that they have never been detailed for the said pre- promotional respondents. squarely clarification respondents vide its clarification dated February 16, 2015. 19. The writ petitions are issuing a accordingly allowed direction to the respondents to grant second ACP benefits to the petitioners and late husbands of of W.P.(C) No.1717/2015 with effect from the date they completed twenty four years service reckoned from the date of initial appointment. The mandamus would be subject to the petitioners and late husbands of of W.P.(C) No.1717/2015 being otherwise courses Thus covered petitioners petitioners issued Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 found fit for promotion.”

7. The Special Leave Petition against the said Judgment, being SLP(C) no.24453-24458/2016, titled UOI v. Om Prakash, stands dismissed by the Supreme Court vide its order dated 12.12.2024. 8. This Court has also followed the Judgment of Om Prakash (supra) in its Judgment dated 03.3.2016 in WP(C) No.462/2016 titled Narendra Singh v. UOI & Ors., holding as under: issued “5. Having regard to the fact that as on date, the aforesaid decision will govern the petitioner in the present case as well, the present petition is disposed of on the same lines as the captioned petitions with directions respondents to grant second ACP benefits to the petitioner with effect from the date he had completed 24 years of service, reckoned from the date of his initial appointment. Further, while considering the petitioner, respondents are directed to ignore re-mustering of the petitioner to the rank of Naik RO, for grant of ACP.”

9. In view of the above, it is held that for the purpose of ACP/MACP, the service rendered by the petitioner as a Constable (GD) is therefore, to be counted.

10. As far as the second issue is concerned, the learned counsel for the petitioner has placed reliance on the clarification issued by the Ministry of Personnel, Public Grievance and Pension Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 (Department of Personnel and Training) vide the Office Memorandum dated 10.02.2000, which records as under: “S. No. 1. Point of doubt Clarification change carrying Two different scales constituting two rungs in a hierarchy have now been placed in the same pay-scale as a result of rationalisaton of pay- scales. This has resulted hierarchy in as much as constituted feeder and promotion grades in the scenario pre-merged have become one grade. The position may be clarified further by way following illustration; prior to the implementation of Fifth Pay Commission recommendation, categories of posts were in the pay-scales of Rs. and Rs. 1200-1800 1320-2040 respectively; latter promotion post for the former. Both the posts have now been placed in pay-scale Central Since the benefits upgradation under ACP Scheme (ACPS) are to be allowed existing hierarchy, the mobility under ACPS shall be in hierarchy existing merger of pay- scales by ignoring the promotion. An employee who got promoted lower pay-scale to pay-scale higher as a result of promotion before merger payscales shall be entitled upgradation under ACPS ignoring the said promotion as otherwise he would be placed in a disadvantageous vis-à-vis position the fresh entrant in merged grade.” Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12 Rs.4000-6000. How the benefits of the ACP Scheme is to be allowed in such cases?

11. From the reading of the above, it would be apparent that where the two posts having different pay-scales and constituting two rugs thereof in a hierarchy have been placed in the same pay- scale as a result of rationalization of the pay scales and has resulted into a change in hierarchy inasmuch as two posts which constituted feeder and promotion grades in pre-merged scenario have become one grade, for the purposes of ACP the erstwhile promotion post is not to be counted as promotion.

12. In the present case, therefore, the promotion of the petitioner from the rank of Naik (RO) to Head Constable (RO) is not to be counted as a promotion for the purposes of ACP, the two posts having merged been together pursuant to the acceptance of the recommendations of the 5th CPC.

13. In view of the above it is held that the petitioner would be entitled to the grant of second ACP and third MACP with effect from 18.10.2002 and 18.10.2008, respectively, subject to the fulfilment of other conditions thereof.

14. The respondents shall consider the case of the petitioner for grant of the second ACP and the third MACP in accordance with the rules and convey its decision to the petitioner within 12 weeks from today. Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12

15. If the petitioner is found eligible for the grant of the second ACP and /or the third MACP, the arrears for the same shall be paid to the petitioner within a period of six weeks of the said decision. In case, the arrears are not paid within the time so granted, the respondents shall pay interest @8% per annum to the petitioner for the period of delay.

16. With the above directions, the present petition is disposed of. NAVIN CHAWLA, J SHALINDER KAUR, J FEBRUARY 20, 2025 RN/VS Click here to check corrigendum, if any Signature Not Verified W.P.(C) 6171/2017 Digitally Signed By:SUNIL Signing Date:25.02.2025 11:08:12