The High Court · 2010
Case Details
THE HIGH COURT OF MEGHALAYA WP(C)[SH] 130/2012 Shri Rojenson Roy Kharumnuid S/o (late) Smti. Spirian Kharumnuid Junior Engineer, N.H. Bye Pass Division, Shillong, Meghalaya. …Petitioner -VERSUS- Government of Meghalaya, Represented by the Chief Secretary to the Govt. of Meghalaya. Secretary to the Government of Meghalaya, P.W.D. (R&B) Department, Shillong. Chief Engineer, P.W.D. (R&B) Department, Shillong. Executive Engineer, N.H. Bye Pass Division, Shillong – 1. 1. 2. 3. 4. ….Respondents THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH BEFORE For the petitioner For the respondents Date of hearing Date of Judgment - - - - - - -
Legal Reasoning
Mr. SK Deb Purkayastha, Adv. Mr. SS. Das, Adv Mr. SD Upadhaya, Adv Mr. Suraj Deka,Adv Mr. ND Chullai, Sr. GA 3-7-2013 3-7-2013 JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) Heard Mr. S.K.Deb Purkayastha, assisted by Mr. S.S. Das, learned counsels appearing for the petitioner, as well as Mr. N.D. Chullai, learned Sr. Govt. Advocate appearing for the respondent. The relief sought for in the present writ petition read as follows: “1) Issue Rule 2) issue notice to the Respondents to show cause as to why a Writ of Mandamus and/or a Writ of Certiorari and/or any other appropriate writ or direction should not be issued for grant of promotion to the Petitioner as Assistant Engineer P.W.D. w.e.f. 5/5/2009 as prayed for and on such cause or causes being shown and after hearing the parties make the order absolute. If the grant of promotion immediately is considered as not feasible, Government may be directed to grant the financial upgradation in the next higher scale 1st up- gradation after 12 years of regular service and 2nd upgradation after 24 years of service as admissible under Government of Meghalaya OM dated 22-2-2010 (Annexure X) for relieving the hardship faced by him. The Respondents may also be directed to pay arrears of salary w.e.f. the date of promotion/financial up- gradation as stated above and/or any other relief or reliefs as Your Lordship may deem fit and proper. Cost of Writ Petition.” 3) 4) 5) 2. It is now an admitted fact of both the parties that the petitioner in the present writ petition had retired from service on superannuation on 30-4- 2013. Therefore, the petitioner is not pressing the prayer in the present writ petition for directions to the respondent to promote the petitioner as Assistant Engineer, PWD, w.e.f 5-5-2009. However, it is the case of the petitioner that the petitioner is entitled to receive the second financial up- gradation as admissible under the Govt. of Meghalaya, Office Memorandum No. F(PR)-76/2009/54, dated 22/2/2010. The said Office Memorandum No. F(PR)-76/2009/54, dated 22/2/2010 is available at
Decision
Annexure 10 to the writ petition which reads as follows: “GOVERNMENT OF MEGHALAYA FINANCE (PAY REVISION) DEPARTMENT No. F(PR)–76/2009/54 Dated Shillong, the 22nd February 2010. ****** OFFICE MEMORANDUM Subject: ASSURED CAREER PROGRESSION SCHEME (ACPS) FOR THE STATE GOVERNMENT EMPLOYEES. The Fourth Meghalaya Pay Commission, in Para.10.3.of recommended its Report, has introduction of a new scheme to deal with the problem of genuine stagnation and hardship faced by the State Government employees due to lack of adequate promotional avenues, especially those belonging to services or holding posts generally classified as common categories and isolated recommendations, career posts. As per progression benefit will be available to a government employee who stagnate in service for a continuous and specified period of time in the form of financial up-gradations, to be allowed twice in his service career subject to fulfillment of certain conditions. The Government has considered the recommendations of the Pay Commission vis-à-vis the Government of India’s existing scheme of this nature and has accepted the same. the 2. In pursuance thereof, the undersigned is directed to say that the Governor of Meghalaya is pleased to order introduction of the scheme under the title and guidelines specified below:- 1) The Scheme shall be known as “ASSURED CAREER PROGRESSION SCHEME (ACPS) FOR THE STATE GOVERNMENT EMPLOYEES”. 2) The benefit under the Scheme shall be available to all posts in Group ‘B’,‘C’ and ‘D’ and also to all posts belonging to Group ‘A’ whether isolated or not. However, organized Group ‘A’ services shall not be covered under the scheme. 3) Casual workers (including those with temporary status or those conferred with Regular Casual Worker status) and employees appointed under ad hoc basis, Regulation 3(f) and contract service shall not be eligible for the benefits under the Scheme. 4) The Scheme envisages merely placement in the next higher pay scale/grant of financial benefits (through financial up-gradation) to the government employee purely on personal basis and shall, to his seniority therefore, have no relevance position. to shall Neither functional/regular promotion nor require creation of new posts for the purpose. As such, there shall be no stepping up of pay for the senior employees on the ground that the junior employee in the cadre has got higher pay under the ACP Scheme. amount it 5) The Scheme shall, in no case, affect the normal to regular promotional avenues available or employees on the basis of vacancies. Attempts needed to improve promotion prospects in cadres on functional grounds by way of organizational study, cadre review, etc. as per prescribed norms should not however, be given up on the ground that the ACP Scheme has been introduced. 6) Each Department shall constitute a Screening Committee, both at the levels of Administrative Departments and Heads of Departments with a Chairperson and two Members each. The members of the Committee shall comprise of officers holding the post which are at least one level above the grade in which the ACP is to be considered and not below the rank of Under Secretary of Administrative level Departments and Assistant Director at the level of the Chairperson Heads of Departments, with generally from a grade above the Members of the Screening Committee. the at recommendations of 7) The the Screening Committee shall be placed before the Principal Secretary/Commissioner & Secretary in case the where Administrative Department level and before the Head of Department for in approval. is constituted at the other cases the Committee 8) The Screening Committee shall follow a time- schedule and meet twice in a financial year – preferably in the first week of January and the first week of July of a year for advance processing of the cases maturing in that half. Accordingly, cases maturing during the first-half (April to September) of a particular financial year shall be taken up for consideration by the Screening Committee in the first week of January. Similarly, the Screening Committee shall process cases that would be maturing during the second-half (October to March) in the first week of July of the same financial year. To make the Scheme operational, the 3. Administrative Department(s) and/or the Head(s) of Department(s), as the case may be, shall constitute the first Screening Committee within a month from the date of issue of these orders to consider the cases of employees that have already matured or would be maturing up-to 31st March, 2010 for grant financial up-gradation. The next Screening of Committee shall be constituted as per the time- schedule indicated above. 4. The Assured Career Progression Scheme (ACPS) shall become operational from the date of issue of this Office Memorandum. If any question arises as to the scope and 5. meaning of the provisions of the Scheme, it shall be referred to the Government in the Finance Department whose decision thereon shall be final. 6. The details of the ACP scheme and the conditions for grant of the financial up-gradations under the Scheme are given in the Annexure. Sd/- B.K.DEV VARMA, Principal Secretary to the Government of Meghalaya, Finance Department.” 3. It is nobody’s dispute that the petitioner was promoted to the post of Sub-Engineer Grade I (Civil) alongwith the others under the Office Order No.PW/CE/ESTT/17/83/Pt II/2-A, dated 15-6-1988. In that office order, the name of the petitioner appeared at Sl. No.26. 4. The State respondents filed a joint affidavit-in-opposition wherein vide para No.12 stated that the petitioner joined the regular service under the State Government as Sectional Assistant in 1974. He was without break in the service and appointed to the post of Subordinate Engineer Grade I (now re- designated as Junior Engineer) through the Meghalaya Public Service Commission in the year 1988. His subsequent appointment in the regular post of Subordinate Engineer Grade I which carries higher duties and responsibilities as well as higher scale of pay is deemed as career progression for the purpose of ACP Scheme, and thus, he cannot claim to have stagnated in service. In view therefore, he is entitled only to the second financial up- gradation under ACP scheme on completion of 24 years regular service, which he did in the year 20.2.2010, the date the Scheme came into to operation. 5. In the above factual backdrop, this writ petition is disposed of by directing the State respondents to allow the petitioner to enjoy the second financial up-gradation under the said Office Memorandum No. F(PR)- 76/2009/54, dated 22/2/2010 of the Govt. of Meghalaya, w.e.f. 22-2-2010. The necessary steps for allowing the petitioner to enjoy the second financial up- gradation should be completed by the State respondents within a period of two months from the date of receipt of the certified copy of this judgment and order. 6. Up to the extent indicated above, the writ petition is allowed. S.Rynjah JUDGE