UNION OF INDIA v. THE DIRECTOR (AH) & Ors.

ORDER The petitioners questioning the legality and validity of the order dated 11.03.2009 passed in OA No.275/2007 on the file of the Central Administrative Tribunal, Bangalore Bench, Bangalore, wherein the respondent questioned the correctness of the order dated 12.07.2007 issued by the 4th respondent as arbitrary, discriminatory and void directing the petitioners to consider the case of the respondent for 3 grant of 2nd Financial Upgradation under ACP Scheme in pursuance of the DOP & T Office Memorandum No. 35034/1/97-Estt.(D) and grant all consequently benefits, have presented this writ petition.

2. The said original application filed by the respondent is allowed and direction is issued in Paragraph 14 of the order. Being dissatisfied with the said order the petitioners have presented this petition.

3. The brief facts of the case are as under: The respondent was initially appointed to a temporary post of LDC with effect from 13.02.1978 vide Office Order dated 14.06.1978 and she has been regularized as Accounts Clerk with effect

8.1.1980. In pursuance of the instructions issued by the Department of Personnel & Training, in O.M. dated 09.08.1999 (ACP Scheme), the respondent was granted the first financial upgradation with effect from

09.08.1999. The respondent contends that, she became eligible for the 2nd financial upgradation on 4 completion of her 24 years of service with effect from

13.02.2002 or at-least from 08.01.2004 (if only the regular appointment from 08.01.1980 is to be taken into account). When the 2nd ACP was denied to her, she submitted her application dated 22.05.2007. In response to the said application, the 4th petitioner issued a memorandum dated 12.07.2007 stating that the Departmental Screening Committee (which met on

21.02.2004) has not recommended the IInd financial upgradation in her case as she is not in the frame for promotion to the next scale, since she does not possess necessary eligibility training as desired in the matter concerned. It is further case of the respondent that, as per the Recruitment Rules for the post of Accountant in Central Cattle Breeding Farm “UDC/Stenographer Grade-D/Storekeeper/ UDC- cum-Storekeeper with 10 years regular service in the Central Cattle Breeding Farms and having undergone training in Cash and Accounts Work in the ISTM or 5 equivalent would be eligible for promotion as Accountant, etc”. The respondent contends that, the stand taken by the petitioners that, she does not possess the necessary conditions of training untenable as the question of training will arise only at the time of actual promotion to the post of Accountant.

4. In response to the original application filed the respondent, the petitioners represented through their counsel and filed their reply statement. Petitioners have repeated their stand stating that only after the official has undergone training in Cash and Accounts work in ISTM or equivalent institution, she can be promoted to the post of Accountant. As the respondent has not undergone the Cash and Accounts training, she is not eligible for promotion to the next higher post in the existing hierarchy. Therefore, until she undergoes the Cash and Accounts training, her 2nd financially upgradation 6 cannot be considered. Further, the petitioners have stated that, the respondent has completed 24 years of regular service as on 7.1.2004 excluding ad-hoc service rendered by her and otherwise she is eligible for 2nd financial upgradation under ACP with effect from 7.1.2004. After receipt of the objections filed by the petitioners the respondent has filed a rejoinder and contended that ACP Scheme is on completion of 12 years and 24 years is reiterated in rejoinder. In the Cadre and Recruitment rules, transfer on deputation for the post of Accountant is also provided and the training in Cash Accounts work in the ISTM or equivalent institution is not prescribed when the post is filled up by transfer on deputation. This makes it evident that the training in Cash and Accounts is not mandatory for the post of Accountant.

5. The Tribunal after hearing the learned counsel appearing for both the parties and after going through the stand taken by the petitioners in the 7 objections, by assigning valid reasons following the identical matters arising out of the similar circumstances before the Madras Bench, wherein, they extended the benefit of similarly situated persons like respondent and allowed the application filed by the respondent directing the petitioners to consider the same. Being dissatisfied with the order passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore the petitioners have presented this writ petition.

6. The submission of the learned counsel appearing for the petitioners at the outset is that, it is mandatory on the part of the respondent to undergo training in Cash and Accounts work in ISTM or equivalent institution. As a matter of fact since the respondent has not undergone the Cash and Accounts training, she is not eligible for promotion to the next higher grade in the existing hierarchy. Therefore, the benefit could not be extended on par 8 with employees working in other status. Therefore, he submitted that the impugned order passed by the Tribunal is liable to be vitiated.

7. The respondent is served and represented.

8. After careful perusal of the impugned order, it is manifest on the face of the said order, we do not find any error or illegality, as such, committed by the Tribunal. The Tribunal following the judgments of the Central Administrative Tribunal, Madras Bench confirmed by the High Court and later on confirmed by the Supreme Court of India has passed a well considered order, by assigning valid reasons at Paragraph Nos. 10 and 11 directing the petitioners in Paragraph 14 of the order. In the said direction issued by the Tribunal, we do not find any unreasonableness or injustice as such caused to the petitioners for the reason that they have extended benefit in the case of similarly situated persons who were working in Madres State and denying the same 9 benefit to the similar persons working in the State is not justifiable.

9. It is not in dispute that the petitioners had questioned the correctness of the order passed by the Central Administrative Tribunal, Madras before the High Court and the High Court in turn in WP No.5876/2008 dismissed referring to the judgment of the Hon’ble Apex Court in the case of Dwijen Chandra Sarkar Vs. Union of India [(1999) 2 SCC 119) and Union of India Vs. V.N.Bhat (2003) 8 SCC 714], wherein, the Supreme Court had upheld the decisions of the High Court and the Central Administrative Tribunal. If that is the actual position of fact, denying the benefit to the respondent on the ground that as per the Clause 6 of the claim, she has not undergone training in Cash and Accounts and she has not fulfilled the condition is not justifiable. Having regard to the length of service rendered by her, she is equally eligible to seek next promotion in the 10 format that of the other co-employees and the Tribunal has passed the order following the order passed by the CAT, Madras Bench by assigning valid reasons. The Tribunal has observed at Para 12 of the order as follows: “The clarification issued at Point No.11 of O.M. dated 10.2.2000 of Dept. of Personnel & Training, was also referred to by the Hon’ble High Court of Madras and the following observations were made:

12. Even though such clarification issued by the Department prima facie supports the case of the present petition, we do not think that such clarification at all can be given effect to in view of the categorical decision of the Supreme Court, under similar circumstances, which has opined that the period of service rendered as ad hoc service is also to be counted for the purpose of considering grant of benefit of ACP Scheme. In view of the said decision, we do not find any merit in this writ petition.” 11

10. In view of the judgment of the Madras and other High Courts, when the benefit is extended to the similarly situated persons working in the Central Government, the same benefit can be extended to the persons who are working in the play forms at Bangalore also.

11. In view of the said decisions, we do not find any good ground to entertain this writ petition. The said decision of the Central Administrative Tribunal, Madras Bench, which was confirmed by the High Court of Madras as per the ACP scheme. In view of the order passed by the Central Government confirmed by the High Court of Madras and in the preceding paragraphs issued regarding counting of ad hoc service of ACP stand settled. Following the said judgment the CAT Bangalore Bench, Bangalore has directed to extend the benefit on par with other similarly situated persons. The said reasoning given is strictly in accordance with law. Therefore, we do 12 not find any error and illegality as such committed by the Tribunal and it does not call for interference by this Court. For the forgoing reasons, the writ petition is dismissed as devoid of merits. Sd/- JUDGE Sd/- JUDGE Sbs*