K. Sreeramulu v. The Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13..7..2009CORAMTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO andTHE HONOURABLE MR. JUSTICE T.S. SIVAGNANAMWrit Petition No. 5243 of 2009K. Sreeramulu... Petitionervs.1.The Union of IndiaRep. by the SecretaryMinistry of Home AffairsNew Delhi2.The Director GeneralCentral Industrial Security ForceCISF HeadquartersBlock No. 13, CGO ComplexLodhi Road, New Delhi3.The Deputy Inspector GeneralC.I.S.F. Southern ZoneD-Block, Rajaji BhavanBesant Nagar,Chennai4.The Deputy CommandantC.I.S.F. UnitChennai Port TrustChennai... Respondents.Prayer:- Writ petition filed under Article 226 of the Constitutionof India praying for the issuance of the writ of CertiorarifiedMandamus calling for the records relating to the order of the fourthrespondent in No. E-31014/CISC/CHPT/Adm-I/ACPS/2008-6512 dated18.11.2008 and quash the same and direct the respondents to grant thepetitioner the first financial upgradation with effect from11.10.2008 and grant all attendant benefits including arrears of pay.For Petitioner: Mr. T.N. SugeshFor Respondents: Mr. E.R.K. Moorthy, SCGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R(made by ELIPE DHARMA RAO, J.) The petitioner, who was initially appointed as Constable on11.10.1984 and who, on promotion, is now working as Head Constable(General Duty) in the Central Industrial Security Force Unit [forshort, 'CISF Unit'], Chennai Port Trust, Chennai, had qualifiedhimself in the Promotion Cadre Course [for short, 'PCC'] to the nexthigher post of Assistant Sub-Inspector / Executive. The grievanceof the petitioner is that without any promotional opportunities fromthe date of his initial appointment on 11.10.1984 till 2005, he waspromoted to the post of Head Constable only on 19.9.2005 and,therefore, he ought to have been granted financial upgradation underthe Assured Career Progression (ACP) Scheme with effect from the dateof the Scheme, viz., 09.8.1999. It is stated that though he wasnot able to avail the first opportunity of PCC for Constables to thenext promotional post of Head Constable on account of medicalgrounds, he qualified himself for the grant of financial upgradationby coming out successful in the PCC held during 2001 for whichresults were declared on 15.01.2002 and the first financialupgradation under the ACP Scheme was granted only with effect from30.01.2002 and not from 09.8.1999, the date of implementation of thescheme. Since the representation filed by him seeking for grant offinancial upgradation under the ACP scheme was rejected by the fourthrespondent Deputy Commandant, CISF Unit, Chennai Port Trust, he hasfiled the present writ petition.2.Heard the learned counsel appearing for the parties andperused the records and also the ACP Scheme and the Rules.3.Learned counsel appearing for the petitioner contended thatas per the ACP Scheme, financial upgradation will be available incase of person to whom there was no regular promotion during the 12years or if only one regular promotion has been granted during the 24years period and since the petitioner was working without anypromotional opportunities from the date of his initial appointment,ie., 11.10.1984, till 2005 when he was promoted to the post of HeadConstable, he is entitled for the benefit of first financialupgradation with effect from the date of the Scheme, viz., 09.8.1999.He further submitted that since he had only one promotion during hisentire tenure of 24 years, he ought to have been granted the secondfinancial upgradation with effect from 11.10.2008, that is the dateof completion of 24 years with just one promotion. He furthercontended that though the petitioner had not qualified himself byappearing in the PCC, even as per Rules, he is eligible for promotionto the post of Head Constable after completion of 10 years ofservice. Therefore, according to him, denying the first ACP onthe ground that he has not completed the PCC, is contrary to lawsince he had become eligible subsequently by successfully completingthe PCC and the respondents should not have rejected his case. https://hcservices.ecourts.gov.in/hcservices/

4.Learned counsel for the petitioner, in support of hiscontention, relied on a Division Bench judgment of this Court in W.P.Nos. 22111 of 2004, etc. batch, disposed on 04.12.2006, and submittedthat the respondents should not have denied the grant of second ACPon the ground that he is not eligible for promotion as he expressedhis unwillingness to appear for the PCC first time on medical grounds.5.Learned Senior Central Government Standing Counselrepresenting the respondents submitted that since the petitioner, onhis volition, submitted his unwillingness to appear for PCC for thefirst time, his case was not considered and subsequently, when heappeared for PCC during 24.8.2001 and 09.11.2001 and passed the sameon 15.01.2002, he was granted the benefit of first ACP on 30.01.2002.6.Before going into the factual aspects of the case, it isnecessary to deal with the Rules and the conditions prescribed underthe ACP Scheme. 7.The ACP Scheme, which was formulated by the Government ofIndia on 09.8.1999, provides that the same shall become operationalfrom the date of issue of the said order and that the financialupgradation was to be granted from the date of completion of theeligibility period prescribed under the Scheme or from the date ofissue of the said instructions whichever is later. 8.The preamble portion of the Scheme contemplates that theFifth Central Pay Commission in its report has made certainrecommendations relating to the Assured Career Progression Schemefor the Central Government civilian employees in all Ministries /Departments and the ACP Scheme needs to be viewed as a "Safety Net"to deal with the problem of genuine stagnation and hardship faced bythe employees due to lack of adequate promotional avenues. TheScheme was extended to Groups 'A', 'B', 'C' and 'D' categories. 9.Clause 3 of the ACP Scheme deals with Groups 'B', 'C', and'D' services / posts and isolated posts in Groups 'A', 'B', 'C' and'D' categories and Clause 3.1 reads as follows:-"While in respect of these categories also promotionshall continue to be duly earned, it is proposed toadopt the ACP Scheme in a modified form to mitigatehardship in cases of acute stagnation either in a cadreor in an isolated post. Keeping in view all relevantfactors, it has therefore, been decided to grant twofinancial upgradations (as recommended by the FifthCentral Pay Commission and also in accordance with theAgreed Settlement, dated September 11, 1997 (inrelation to Groups 'C' and 'D' employees) entered intowith the Staff Side of the National Council (JCM) underthe ACP Scheme to Groups 'B', 'C' and 'D' employees oncompletion of 12 years and 24 years (subject tocondition No. 4 in Annexure – I) of regular servicerespectively...." https://hcservices.ecourts.gov.in/hcservices/

10.Further, Clause 4 of the ACP Scheme reads as follows:"Introduction of the ACP Scheme should, however,in no case affect the normal (regular) promotionalavenues available on the basis of vacancies. Attemptsneeded to improve promotion prospects inorganizations / cadres on functional grounds by way oforganizational study, cadre reviews etc. as perprescribed norms should not be given up on the groundthat the ACP Scheme has been introduced."11.Though the learned counsel appearing for the petitionerrelied on the above said point, we are not concerned with theisolated posts. Clause 4 of the Annexure – I to the ACP Scheme,which deals with conditions for grant of benefits under the Scheme,reads as follows:-"The first financial upgradation under the ACP Schemeshall be allowed after 12 years of regular service andthe second upgradation after 12 years of regularservice from the date of the first financialupgradation subject to fulfilment of prescribedconditions. In other words, if the first upgradationgets postponed on account of the employee not found fitor due to departmental proceedings, etc, this wouldhave consequential effect on the second upgradationwhich would also get deferred accordingly."12.Applying the above said condition to the facts andcircumstance of the case of the petitioner, it would not beapplicable in the case where the employee has become unqualified orunwilling to get the eligibility for promotion and further, if, forany reason, the first upgradation is delayed, consequently, thesecond financial upgradation will have its postponement on account ofemployee not found fit for departmental proceedings. In thepresent case, since the petitioner has not passed the PCC within 12years, the first financial upgradation was delayed.13.Moreover, one interesting factor to be noted here is thatthough the petitioner was appointed on 11.10.1984, he was notpromoted immediately after completion of ten years of service eventhough the Rules prescribe for the same. But he has not moved hisfinger against the same and it is only subsequently when he waspromoted on 19.9.2005, ie., after passing the PCC on 15.01.2002, hehas submitted his representation. Therefore, the Rule isapplicable for normal promotion whereas the Scheme is self-explanatory having its own terms and conditions with regard to itsapplicability.14.The fact remains that the petitioner was appointed on11.10.1984 and though as per Rules, he was entitled for promotion in1994, ie., after completion of ten years, he was promoted as HeadConstable only on 19.9.2005, ie., after he came out successful in https://hcservices.ecourts.gov.in/hcservices/ PCC. It is also not disputed that he expressed his unwillingness toappear for the PCC on 10.7.2001 on medical grounds and within onemonth, during August to November 2001, he appeared for PCC for whichresults were declared on 15.01.2002 and came out successful. Asper condition 3 of Annexure I to the ACP Scheme, the financialbenefits under the ACP Scheme shall be granted from the date ofcompletion of the eligibility period prescribed under the ACP Schemeor from the date of issue of the instructions, whichever is later.Therefore, though the Scheme was implemented with effect from09.8.1999, since the petitioner completed his PCC only on 15.01.2002,the first financial upgradation was extended to him on 30.01.2002 andas such, we do not find anything wrong in grant of first financialupgradation on 30.01.2002. 15.Secondly, the Division Bench judgment referred to by thelearned counsel for the petitioner is with regard to the recoveryproceedings and, therefore, the same is not helpful to the case ofthe petitioner. 16.As regards the second upgradation, it is clear from aperusal of condition No. 4 of the Annexure I to ACP Scheme that thesecond upgradation shall be allowed after 12 years of regular servicefrom the date of the first financial upgradation subject tofulfilment of prescribed conditions. Further, it is also madeclear that if the first upgradation gets postponed on account of theemployee not found fit or due to departmental proceedings etc., itwould have consequential effect on the second upgradation which wouldalso get deferred accordingly. As far as the case of thepetitioner is concerned, since his first upgradation got postponeddue to his unwillingness to appear for PCC, he is not entitled forsecond upgradation as claimed by him and he is eligible forupgradation only after completion of 12 years from the date of grantof first upgradation.17.In view of the above discussion, considering the terms andconditions for application of financial upgradation as per the ACPScheme and also the Services Rules governing the promotion, thepetitioner is not eligible for first financial upgradation witheffect from 09.8.1999 and also the second financial upgradation witheffect from 11.10.2008. This petition is devoid of merits and thesame stands dismissed accordingly. griSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The SecretaryUnion of IndiaMinistry of Home AffairsNew Delhi2.The Director GeneralCentral Industrial Security ForceCISF HeadquartersBlock No. 13, CGO ComplexLodhi Road, New Delhi3.The Deputy Inspector GeneralC.I.S.F. Southern ZoneD-Block, Rajaji BhavanBesant NagarChennai4.The Deputy CommandantC.I.S.F. UnitChennai Port TrustChennai.+ 1 cc to Mr. P. Anand Sr.30641+ 1 cc to Mr. J.M. Sugesh SR.30587.W.P. No. 5243 of 2009 TEJ(CO)EU 30.7.2009.