NEW DELHI - 110 001. (BY SRI. B PRAMOD, CGC.,ADVOCATE) v. (BY SRI. N G PHADKE.ADVOCATE)

VANI B Location: HIGH COURT OF KARNATAKA

4. MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSIONS (DEPT OF PERSONNEL AND TRAINING) REP. BY ITS SECRETARY GOVT. OF INDIA, NORTH BLOCK, NEW DELHI - 110 001. (BY SRI. B PRAMOD, CGC.,ADVOCATE) …PETITIONERS - 2 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 AND: J. KAMESHWARA RAO, S/O LATE J.SATHYA RAO, AGED ABOUT 62 YEARS, R/O Q.NO. 554/3, CE(AF) COMPLEX, GORUGUNTEPALYA, YESHWANTHPUR, BENGALURU - 560 022. PRESENT ADDRESS D.NO. 37-10-76, AYYAPPANAGAR, PATABHIREDDY GARDEN, MURALI NAGAR, VISHAKAPATNAM - 530 007. ANDHRA PRADESH. (BY SRI. N G PHADKE.ADVOCATE) …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 2.3.2018 AT ANNEX-A PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.A.NO. 170/01010/ 2016 AS ILLEGAL AND ARBITRARY. THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT HON'BLE MR JUSTICE C M JOSHI ORAL ORDER (PER: HON'BLE MR JUSTICE KRISHNA S DIXIT) Union of India and its officials are knocking at the doors of Writ Court for assailing Central Administrative Tribunal’s order dated 2.3.2018 whereby, respondent’s - 3 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 O.A.No.170/01010/2016 having been favoured, relief is accorded to him as under: therefore allowed. The “21. The OA respondents are directed to restore the benefit of 2nd ACP issued earlier and grant 3rd MACP including fixation of his pension. They shall also terminal sanction his pension and other benefits on the basis of revision of his pay in terms of the above. These shall be done within a period of three(3) months from the date of receipt of a copy of this order. No order as to costs.”

2. Learned CGC appearing for the petitioners in his inimitable style seeks to falter impugned order of the Tribunal arguing that the entitlement of an employee to the benefits accorded by the Tribunal would depend upon the passing of MES Procedure Examination, which the respondent did only on 30.06.2003 and therefore, no relief could have been granted to him. In support of his contention, he drew our attention the extant recruitment rules applicable for promotion to the post of Assistant Engineer, which prescribe the requirement for an aspirant of promotion i.e., inter alia passing of MES Procedure Examination. Learned counsel appearing for the - 4 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 respondent resists the petition making submission in justification of the impugned order and more particularly, relying upon the observations of the Tribunal at paragraphs 13, 14 & 15.

3. Having heard the learned counsel for the parties and having perused the Petition Papers, we decline indulgence in the matter broadly agreeing with the view of the Tribunal that the requirement of passing of the MES Procedure Examination has been dispensed with vide O.M. dated 14.03.2007. Paragraph 15 reads as under: “The ACP scheme had been introduced by the Government of India following the 5th Pay recommendation which was Commission adopted by the respondent department respect of Supdts. B&R/Redesignated as JEs vide order dtd.23.01.2002 in place of existing time bound pay promotion scheme. The condition of grant of benefit under ACP scheme specified that financial upgradation shall be granted subject to fulfillment of prescribed conditions. This according to the respondents stipulates passing of departmental examination and meeting the prescribed bench mark. GRANT OF SECOND FINANCIAL UPGRADATION UNDER ACP SCHEME TO DIPLOMA HOLDER AE/JE(B/R & E/M) - 5 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018

4. to min Further letter no.85610/47/ACP/Supdt/CSCC/524/D(Wor ks) dated 21 Feb.2006. The case for the grant of 2nd ACP to the diploma holder Junior Engineer in MES who have completed 24 years of services between 09 Aug 1999 to 10 Jul 2004 was under consideration of MOD/DPO & T, DOP&T has cleared the case keeping in view of the specific anomalous situation, educational qualification in RRs have been relaxed by them only for ACP purpose, no relaxation in educational qualification in any case should be considered for actual promotion etc. The competent authority has therefor decided to grant 2nd ACP w.e.f. 09 Aug 1999 to all eligible diploma/degree holders who have completed 24 years of eligibility service. In view of above it is requested to forward fresh eligibility list of JEs/AEs for grant of 2nd ACP as already asked vide this HQ letter No:B/41025/ACP/AEs/JEs/2006- 07/E1(DPC-1) dated:20 Dec 2006.”

4. The vehement submission of learned CGC that the term ‘educational qualification’ employed in the Memo dated 14.03.2007 does not mean the departmental examination like the MES Procedure Examination but the qualifications prescribed for appointment to the post in question, is difficult to countenance. It cannot be so becomes apparent from the text of para 2 of the O.M. - 6 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 which specifically makes it clear that the relaxation is not applicable for actual promotion. The Tribunal placing reliance on the text of para 2 of the subject O.M. has rightly come to the conclusion that the requirement of passing the Departmental Examination is not a sine qua non for availing the benefit in question, although that requirement continues if one stakes claim for promotion.

5. Mr.Phadke appearing for the respondent notifies to us that based on the impugned order of the Tribunal herein, the Hyderabad Bench of the Tribunal O.A.No.917/2016 decided on 27.12.2018 had accorded the same relief to another similarly circumstanced pensioner namely Chalasani Rajyasree and that petitioners challenge to the same in W.P.No.26671/2019 came to be dismissed by a Division Bench of High Court of Telangana vide order dated 23.04.2024 on the ground that the benefit is already accorded to the said employee in terms of CAT order. Arguably this can be additional ground for dismissing the petition. Otherwise, there would be a case of - 7 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 discrimination as between the employees of same department of the Central Government. In the above circumstances, this petition being devoid of merits, is liable to be and accordingly dismissed, costs having been made easy. The petitioners are directed to give effect to the Tribunal’s order dated 2.3.2018 within three months and delay if brooked, would carry interest at the rate of one per cent per mensem for the initial one month and at the enhanced rate of two per cent for the period next following. The interest component may be recovered from the erring officials of the department. We shall be failing in our duty if we do not place on record our profuse appreciation for the CGC’s impressive and effective submission made in the case, regardless of its outcome. - 8 - NC: 2024:KHC:45691-DB WP No. 42849 of 2018 Registry shall share a copy of this judgement free of cost with him. Sd/- (KRISHNA S DIXIT) JUDGE Sd/- (C M JOSHI) JUDGE Bsv List No.: 1 Sl No.: 27