High Court
Case Details
WP(C) 5359/2010 BEFORE THE HON’BLE MR JUSTICE I A ANSARI
Legal Reasoning
THE HON’BLE MR. JUSTICE P. K. MUSAHARY Judgment and Order (ORAL) (Ansari, J) Aggrieved by the order, dated 19.02.2010, passed, in Original Applicatio n (in short, ’OA’) No. 49/2009, by the learned Central Administrative Tribunal, Guwahati Bench, dismissing the OA, the applicant, in the OA, has filed this writ petition, under Article 226 of the Constitution of India, seeking appropriate r elief. 2. ief, be set out as under: The material facts, giving rise to the present writ petition, may, in br (i) The petitioner herein was appointed, in December, 1969, as a Sub -Overseer, in Military Engineering Service, and was promoted to the post of Supe rintendent (B&R), Grade-II, with effect from 10.11.1998, in the pay scale of Rs. 5,000-8,000/-. By Office Memorandum, dated 09.08.1999, issued by the Union of India, Department of P&T, the Post of Superintendent (B&R), Grade-I and Grade-II , were merged and came to be redesignated as Junior Engineer. The Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Per sonnel and Training), introduced, by Office Memorandum, dated 09.08.1999, Assure d Career Progression Scheme (in short, ’ACP scheme’) for financial upgradation o f those employees, who lacked promotional avenues, though they were, otherwise, eligible for promotion. In terms of the Scheme, one has to receive two financia l upgradations, one on completion of 12 years and the other, on completion of 24 years of regular service. As the petitioner was not granted the second financi al upgradation, he made a representation to the respondents/authorities concerne d seeking redressal of his grievance. By a communication, dated 16.10.2001, the petitioner was informed by the respondents/authorities concerned that his claim had been examined by the Headquarters, but his case could not be considered as he had not cleared the departmental examination. Acting upon the communication, dated 16.10.2001, aforementioned, the pet (ii) itioner appeared in the departmental examination and passed the departmental exa mination. Thereafter, by his letter, dated 20.05.2004, the petitioner informed the respondents concerned about the fact that he had completed the requirement o f passing of the departmental examination and he should, therefore, be granted t he second financial upgradation. To the petitioner’s dismay, he received a comm unication, dated 20.04.2004, intimating him that the benefit of second upgradati on, under the ACP scheme, is available to only those junior engineers, who were holding degree or diploma in engineering and as he did not possess the requisite educational qualification, he would not be eligible to receive the second finan cial upgradation under the ACP Scheme. (iii) The petitioner, then, made another representation, dated 17.05.2005, se eking second financial upgradation on the ground that he had completed more than 24 years of service and had also passed the requisite departmental examination. While the representation remained pending, the petitioner superannuated on 31. 01.2006. (iv) Aggrieved by the fact that he had not been granted the second financial upgradation, though, according to the petitioner, he was entitled to receive suc h financial upgradation, the petitioner filed an Original Application (in short, ’OA’), in the Central Administrative Tribunal (hereinafter referred to as the ’ learned Tribunal’), which gave rise to OA No. 162/2006. The said OA was dispose d of by the learned Tribunal by order, dated 28.06.2006, directing the petitione r to make a comprehensive representation, to the respondent concerned, with corr esponding direction to the respondents to dispose of the representation, if made by the petitioner, within the time limit specified by the order aforementioned. (v) Following the order, dated 28.06.2006, aforementioned, the petitioner su bmitted his representation, dated 10.07.2006, whereupon the respondent made a sp eaking order, on 30.09.2006, rejecting the petitioner’s said representation. Ag grieved by the rejection of his representation, the petitioner, again, approache d the learned Tribunal by yet another OA, which gave rise to OA No. 49/2007, and it is the dismissal of his second OA, as already indicated above, which has cau sed the petitioner to file the present writ petition. (vi) The respondents herein contested the OA by contending to the effect, int er alia, that the second financial upgradation could not be granted to the petit ioner due to the fact that the petitioner did not possess the essential educatio nal qualification required for the purpose of his promotion to the next higher p ost. 3. Before proceeding further, it also needs to be noted that with the merge r of the post of Superintendent (B&R) Gr-I and Superintendent (B&R) Gr-II and re designation thereof as Junior Engineer, the qualification, required to be posses sed by a junior engineer, for the purpose of promotion to the next higher post o f Assistant Engineer, was prescribed as either a degree in civil engineering wit h 3 (three) years of service or diploma in civil engineering with 5 (five) years of service. The petitioner did not, admittedly, hold either a degree or diplom a in civil engineering. 4. Merely because of the fact that the petitioner had passed the procedural examination, he was, according to the learned Tribunal, not entitled to the sec ond financial upgradation, when he did not possess the requisite educational qua lification and, with the conclusion, so reached, the learned Tribunal dismissed the OA filed by the petitioner. Aggrieved by the dismissal of his OA, as alread y indicated above, the petitioner is, now, before us with this writ petition mad e under Article 226 of the Constitution of India. We have heard Mr. A. Dasgupta, learned counsel for the writ petitioner, 5. and Mr. T. Islam, learned Central Government counsel, appearing for the responde nts. We have also heard Mr. U. K. Nair, learned counsel, who has appeared as am icus curiae. Appearing on behalf of the petitioner, Mr. Dasgupta, learned counsel, ha 6. s submitted that there is a gulf of difference between ACP Scheme and promotion inasmuch as ACP Scheme is made available to an employee on completion of requisi te period of service irrespective of the fact as to whether he is entitled to pr omotion or not. The learned Tribunal, according to Mr. Dasgupta, learned counse l, has fallen in error in taking the view that the educational qualifications, w hich were required for a person to receive promotion, were also the qualificatio ns required for receiving financial upgradation in terms of the ACP scheme. 7. We find ourselves completely unable to agree to the submissions, so made by Mr. Dasgupta, learned counsel, inasmuch as the ACP scheme is a device to mak e financial upgradation available to a person, who is, otherwise, eligible for p romotion, but cannot be promoted, because of the fact that the promotional post is not vacant. However, a person, who is not fit for promotion either because o f his lack of educational qualifications, or because of adverse remarks in his s ervice report, or any other reason, cannot be treated entitled to receive ACP ev en if he has already completed the length of service, which may stand prescribed for being entitled to receive ACP.
Decision
8. Situated thus, we find ourselves wholly in agreement with the learned Tr ibunal’s conclusion that merely because of the fact that the petitioner had pass ed the procedural departmental examination, or that he had completed the requisi te length of service, he would not be entitled to the second financial upgradati on, when he did not possess the required minimum educational qualification inasm uch as he neither held a degree in civil engineering nor a diploma in civil engi neering, which were the necessary qualifications, required to be possessed by a junior engineer, for becoming eligible to be promoted to the post of Assistant E ngineer, i.e., the next promotional post of junior engineer, which the petitione r herein came to hold by virtue of the merger of the post of Superintendent (B&R ) Grade-I and Grade-II and redesignation of the post as Junior Engineer. 9. Because of what have been discussed and pointed out above, we do not fin d that the petitioner has been able to make out any case calling for interferenc e with the impugned order, passed by the learned Tribunal, in exercise of this C ourt’s extra-ordinary jurisdiction under Article 226 of the Constitution of Indi a. The writ petition, therefore, fails and the same shall accordingly stand dis missed. 10. Before parting with this writ petition, we, however, make it clear that it will remain open to the petitioner to take recourse to appropriate provisions of law for the purpose of redressal of his grievance with which he approached t he learned Tribunal in the two rounds of litigations as mentioned above. 11. 12. ble assistance rendered to the Court. No order as to costs. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valua