Central Administrative Tribunal - Delhi
Antony Mathew vs Commissioner Of Police on 9 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1643 of 2010
New Delhi this the 9th day of February, 2011
Honble Mr. L.K.Joshi, Vice Chairman (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Antony Mathew,
S/o Late Shri V.J.Mathew,
R/o 106, Police Colony,
A3, Paschim Vihar,
New Delhi Applicant
(By Advocate: Shri H.S.Dahiya)
VERSUS
Commissioner of Police,
Delhi Police Headquarters,
I.P.Estate,
MSO Building,
New Delhi
Respondents
(By Advocate: Ms. Renu George)
O R D E R
Dr. Dharam Paul Sharma, Member (J) Vide their Order dated 24/25.02.2009, as at Annexure A-1, the respondents denied to the applicant 2nd Financial Upgradation under the Assured Career Progression Scheme (for short the Scheme). Feeling aggrieved, the applicant has filed this application under Section 19 of the Administrative Tribunals Act,1985 seeking direction to the respondents to grant him 2nd Financial Up-gradation on completion of 20 years of service on 20.04.2000 with all consequential benefits and further direction to the respondent to grant 3rd Financial Up-gradation under the MO ACP Scheme w.e.f. 20.04.2010 on completion of 30 years of service from the date of appointment on 21.04.1980 with all consequential relief of pay and allowances with arrears.
2. The applicant was appointed as Constable in Border Security Force (for short BSF) in 1971. He was promoted as Head Constable in BSF on 2.2.1975. Thereafter, he was appointed as Platoon Commander (Sub-Inspector) on 21.4.1980 in BSF in the pay scale of Rs.380-12-440-15-560 (pre-revised). He was appointed as Sub-Inspector substantively w.e.f. 1.10.1984 in BSF. He was taken on deputation in Delhi Police as Sub-Inspector on 19.11.1985 in the pay scale of Rs.1400-40-1800-EB-2300. He opted for deputation allowance instead of the higher grade of Sub-Inspector in Delhi Police as the same was more beneficial to hi. On 19.6.1987, he was absorbed as Sub-Inspector in Delhi Police in the pay scale of Rs.1640-60-2600-EB-75-2900. Thereafter, he was promoted to the rank of Inspector w.e.f. 18.08.1994 in the pay scale of Rs.2000-60-2300-EB-75-3200 (pre-revised).
3. The applicant came across the Order No.A/9 (3)2004/83114-2132/CB-1 dated 15.12.2005 as at Annexure A-5 whereby the 2nd Financial Up-gradation was granted to certain persons who, according to the applicant, were similarly placed. Thus, one Inspector Thana Ram, whose date of appointment was also 21.4.1980, same as that of the applicant, was granted 2nd Financial Up-gradation. Similarly, Inspectors Rajesh Kumar, Jaibir Singh, Bir Singh Khatana, and Dewan Chand, whose dates of appointment were also later than that of applicant, were granted 2nd Financial Up-gradation. Though these Inspectors had also come on deputation from BSF/CRPF and were subsequently absorbed in Delhi Police yet the applicant was not similarly granted 2nd Financial Up-gradation. The applicant, therefore, gave an application on 19.12.2007 requesting for grant of 2nd Financial Up-gradation. Vide letter dated 09.01.2008 as at Annexure A-6, he was informed that his seniority has been fixed as per Order dated 26.05.1994 taking 01.10.1984 as the date of appointment as Sub-Inspector in BSF on substantive basis. He was also informed that since he was completing 24 years of qualifying service from the date referred to above, he would be eligible for grant of 2nd Financial Up-gradation on 1.10.2008. the then existing scheme provided for two financial upgradation thereunder, first after completion of 12 years of service and second after completion of 24 years of service. Later on the Scheme has been amended providing for three financial upgradations after completion of 10, 20 and 30 years of service respectively. The applicant being aggrieved, made another application on 11.02.2008 submitting that since he was appointed in BSF on 21.4.1980, 24 years qualifying service should, therefore, be counted from 21.4.80 and not from 21.4.1984 when he was confirmed in that post. His juniors, who were appointed as Sub-Inspector in 1981, have already been granted ACP under the Scheme. In the mean time, the respondents granted 2nd Financial Up-gradation to certain more Inspectors of Delhi Police whose dates of appointment were much later than that of the applicant, a copy of which is as at Annexure A-8. The applicant sent reminder on 27.8.2008 to his earlier application for grant of 2nd financial upgradation under the ACP Scheme as referred to above. He also sought information under the Right to Information Act as to the action being taken on his application. He was informed that the matter was under process and would be sent to GNCT of Delhi and due date of ACP would be decided by GNCT of Delhi being the competent authority as per the applicable rules. Feeling dissatisfied with the information so received by the applicant, he filed appeal under the RTI Act which did not find favour with the appellate authority. The applicant then received the impugned Order dated 24.2.2009 whereby he has been informed that he is not entitled for the 2nd Financial Up-gradation as per the Clarification of DoPT Memorandum vide No.F.No.35.34/1/97-Estt (D)/Vol. IV dated 10.02.2000. A copy of the said memorandum dated 10.2.2000 is as at Annexure A-13. Since the applicant had earlier been informed that he was eligible for grant of 2nd Financial Up-gradation under the Scheme on 01.10.2008 as his date of appointment was considered as 1.10.84 instead of 21.04.1980 and now by the impugned Order dated 24/25.2.2009 the respondents have taken a different stand to the extent of holding that the applicant is not entitled for 2nd Financial Up-gradation, he made another representation on 12.8.2009 pointing out this anomaly and also submitting that the ACP was granted to his batch mates in BSF, namely Thana Ram, Kharak Singh and juniors namely Dinesh Chander, Bir Singh Khatana and Dewan Chand, and requesting that he too should be given the 2nd Financial Up-gradation in the same manner from 20.4.2000. Having failed to obtain the relief sought for, the applicant has filed the present applicant claiming the reliefs as referred to above.
4. The facts mentioned in Para 4 of the application as referred to herein above, have been cited as grounds in Para 5 thereof for seeking the reliefs prayed for.
5. The respondents have filed their counter reply wherein they have controverted the claim of the applicant on the ground, inter alia, that the applicant has already got two financial up-gradations i.e. in the pay scale of Rs.1640-60-2600-EB-75-2900 on his absorption in Delhi Police and after promotion in the rank of Inspector in Delhi Police in the pay scale of Rs.2000-60-2300-EB-75-3200 (pre-revised). Since the applicant has already availed two financial up-gradations, he is not entitled for the grant of 2nd Financial Up-gradation under the Scheme as per Clarification Nos.4 to 6 received vide DoPTs Office Memorandum dated 10.2.2000, a copy of which is as at Annexure R-1. The applicants case for the grant of 2nd Financial Up-gradation under the Scheme after completion of 24 years of qualifying service was examined in the headquarters but he was not found eligible for the same as per Office Memorandum dated 10.2.2000 for the reason that he had already availed two financial up-gradations as referred to above.
6. The applicant has filed his rejoinder to the counter reply of the respondent wherein, inter alia, he has stated that at the time of deputation, he was drawing the pay of Sub Inspector in BSF in the pay scale of Rs.380-12-440-15-560 ( Revised to the pay scale of Rs.1400-40-1800-EB-50-2300 on implementation of IVth Pay Commission w.e.f. 1.1.1986). At the time of deputation, the pay scale of Sub Inspector in Delhi Police was Rs.425-600 (Revised to Rs.1640-60-2600-EB-75-2900 on implementation of IVth Pay Commission w.e.f. 1.1.1986). The applicant was drawing the basic pay of Rs.440/- after earning increments and plus 15% of the basic as deputation allowance. While the applicant was serving the Delhi Police on deputation after revision of the pay scale on implementation of IVth Pay Commission w.e.f. 1.1.1986, the pay of the applicant was fixed at Rs.1440 in the revised pay scale Rs.1400-40-1800-EB-50-2300 of Sub-Inspector of BSF after granting one increment of pay as he had completed five years of service. He had earned one more increment of Rs.40 after his fixation of pay for serving one more year before his absorption on 19.7.1987 in Delhi Police in the rank of Sub-Inspector and his basic pay was about Rs.1480/- at the time of absorption in Delhi Police. Besides, the applicant was also getting 15% of the basic pay as deputation allowance i.e. Rs.222 and was drawing basic pay Rs.1702/- subject to correction after reconciliation with the record available with the respondents. Since the applicants actual basic pay at the time of absorption in the pay scale of Sub-Inspector in BSF was more than the minimum of the pay scale of Sub Inspector in Delhi Police, it cannot be said that the applicant on absorption got the financial up-gradation in higher pay scale. At the time of introduction of the ACP Scheme, the pay scales of Sub-Inspector in Delhi Police and the BSF were the same i.e. Rs.5500-175-9000 and the pay scale of Inspector in Delhi Police and the BSF were also the same i.e. Rs.6500-200-10500. Thus, when the applicant became entitled for 2nd Financial Up-gradation on completion of 24 years of service from the date of appointment on 21.04.1980, the pay scales of Sub-Inspectors in Delhi Police and BSF were the same and, therefore, his absorption in Delhi Police cannot be treated as appointment in the higher pay scale so as to treat it financial up-gradation and deprive the applicant of the benefits of the ACP Scheme. The applicant was appointed in the rank of Sub Inspector in BSF and on this very rank he came on deputation to Delhi Police and on the same rank he was absorbed in Delhi Police. In the uniform service, it is the rank which determines the status of the post and the minor difference in the pay scales which are otherwise analogous does not affect the status and theposition of the rank which is that of Sub-Inspector. The applicant has referred to the case of SI Roop Lal & another Vs. Lt. Governor through Chief Secretary, Delhi (1999 (9) SC 597 wherein it has been, inter alia, held that the post of Sub-Inspectors in both BSF and Delhi Police, irrespective of the difference in the pay, were equivalent. It has, therefore, been submitted that the absorption of the applicant in Delhi Police in the same rank of Sub-Insptor in the slightly higher pay scale and that too when the applicant was actually drawing more pay than the starting pay scale of such higher pay scale cannot be treated as financial upgradation and deprive the applicant of the benefits of ACP Scheme.
7. At the hearing, the applicants counsel, vehemently contended that it is wrong that the applicant has already got two financial upgradations i.e. in the pay scale of Rs.1640-60-2600-EB-75-2900 (pre-revised) on absorption in Delhi Police and another on promotion of Inspector. He has only got one financial up-gradation on his promotion in the rank of Inspector in Delhi Police and, therefore, he is entitled for grant of 2nd financial up-gradation under the ACP Scheme. The Clarification Nos.4 to 6 relied upon by the respondents in support of their stand are misconceived as only Clarification No.6 is relevant and that too , to the extent that if the appointment is made to higher pay scale either as on direct recruitment or on absorption(transfer) basis or first on deputation basis and later on absorbed on transfer basis, such appointment shall be treated as direct recruitment and past service/promotion shall not count for the benefits under the ACP.
8. The learned counsel for the applicant laid much emphasis on the fact that at the time of joining Delhi Police as well as at the time of absorption of the applicant, he was drawing higher pay than the minimum prescribed for Sub-Inspector in Delhi Police and on his absorption, he got the benefit of about Rs.40/- which is less than the minimum stipulated amount of Rs.100/- under the Scheme. This cannot be viewed as First Financial Upgradation within the contemplation of the ACP Scheme.
9. The learned counsel for the respondents reiterated the averments contained in their reply as have been referred to herein above.
10. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
11. The ACP Scheme has been devised as a Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of promotional avenues. As such the Scheme is a welfare measure and needs to be liberally construed so as to further its underlying the object underline the object. At the same time the Scheme clearly involves financial implication consequent upon extension of the financial benefits thereunder. Due care, therefore, needs to be taken to ensure that the benefits under the Scheme are extended to its intended beneficiaries and not to others for whom it is not meant. A balanced approach, therefore, needs to be taken in the matter.
12. The conditions for grant of financial upgradation under the ACP Scheme, inter alia, provide for placement in higher pay scale for grant of financial benefits only to the Government servant on personal basis which is neither functional/ regular promotion nor would require creation of new posts for the purpose. The ACP Scheme envisages two financial upgradations in the entire Government service career of an employee which would be counted against regular promotions availed by an employee from the grade as a direct recruit. This shall mean that these two financial upgradations under the ACP Schme shall be available only if no regular promotions during the prescribed periods have been availed by an employee. If an employee has already got one promotion, he shall qualify for second financial upgradation only on completion of 24 years of regular service under the Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the Scheme shall accrue to him. It is relevant to note in this regard that the financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre without creating new posts for the purpose. However, in the case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given in the immediately next higher (stabdard/common) pay scales as at Annexure II of the Memorandum dated 9.8.1999 in the ACP Scheme of the Central Government employees. It is an admitted fact that the post in the present case is not an isolated post. It has further been provided under the said OM that the residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit.
13. The Recruitment Rules for a number of posts provide for appointment by deputation (including short-term contract) and absorption. There is substantial difference between them. Under absorption, the officer is regularly absorbed in the post/grade. Under deputation (including short-term contract), an officer from outside is appointed for a limited period by the end of which he will have to revert to his parent cadre.
14. The clarifications with regard to point of doubt in the ACP Scheme have been provided from time to time. One such set of clarifications is provided vide Office Memorandum No.35034/1/97-Estt. (D) (Vol. IV) dated 10.2.2000, a copy of which has been annexed to the reply filed by the respondents as at Annexure R-1. The respondents have placed reliance on Clarification at Serial Nos.4 to 6 of the said OM. Interestingly, the applicant too relied upon Clarification No.6 of the said Memorandum.
15. We have carefully perused the said Memorandum dated 10.2.2000. Clarification at Serial No.1 clarified the manner in which the benefits of upgradation under the ACP Scheme are to be allowed in the existing hierarchy where two posts carrying different pay scales constituting two rungs in a hierarchy have now been placed in the same pay scale as a result of rationalization of pay scales. Accordingly, it has been clarified that the mobility under the ACP Scheme shall be in the hierarchy existing after merger of pay scales by ignoring the promotion. The reason for this is that benefits of upgradation under the Scheme are to be allowed in the exiting hierarchy. Thus, an employee who got promoted from lower pay scale to higher pay scale as a result of promotion before merger of pay scale shall be entitled for upgradation under the Scheme ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-`-vis the fresh entrant in the merged grade. Similarly, it has been clarified at Serial No.2 of the OM that if any selection grade/in-situ promotion has been allowed to an employee which is not in the hierarchy, the same shall not be counted as promotion for the purpose of ACPs and the ACP is to be allowed in the existing hierarchy.
16. It would be expedient to refer Clarification at Serial Nos.4 to 6 in the said Memorandum in their entirety as follows :-
S. No Point of doubt Clarification
4. In a case where a person is appointed to a post on transfer (absorption) basis from another post, whether 12 years and 24 years of service for the purpose of ACPS will count from the initial appointment or otherwise.
5. Whether a Government servant, who is direct recruit in one grade and subsequently joins another post again as direct recruit, is eligible for first financial upgradation under ACPS after completion of 12 years of service counted from the first appointment or from the subsequent second appointment as direct recruit?
6. An employee appointed initially on deputation to a post gets absorbed subsequently, whether absorption may be termed as promotion or direct recruitment. What will be the case if an employee on deputation holds a post in the same pay-scale as that of the post held by him in the present cadre? Also, what will be the situation if he was holding a post in the parent cadre carrying a lower pay-scale?
Both the parties relied on the aforesaid clarification. The respondents have taken the stand that the applicant was appointed in Delhi Police first in the pay scale of Rs.1400-2300/- as Sub Inspector and was subsequently absorbed in the higher pay scale of Rs.1640-2900/- as Sub Inspector and, therefore, he is not entitled for the second financial upgradation under the ACP Scheme. It is not clear whether the applicants pay has been fixed under FR-22(1) subject to minimum financial benefits of Rs.100/- under the ACP Scheme as referred to above. On the other hand, the applicant has denied it. His contention is that clarification at Serial No.6 is relevant. This clarification provides that if the appointment is made to higher pay scale either as on direct recruitment or on absorption (transfer) basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS. We find force in the applicants contention. The applicant was appointed as a Direct Recruit only on absorption which was in the rank of sub Inspector in the revised pay scale of Rs.1640-2900 (pre-revised 1400-2300).Until then the service of the applicant on deputation was for a limited period on the expiry of which he was liable to be reverted to his parent office.
17. It is relevant to note that the pay scales of Sub-Inspector in BSF were subsequently revised to bring them at par with the pay scales of the Sub-Inspector in Delhi Police. At the time of introduction of the ACP Scheme vide Memo dated 9.8.1999, the pay scale of Sub-Inspector in Delhi Police on one hand and the pay scales of Sub Inspector in BSF were the same i.e. Rs.5500-9000/-. Similarly, the pay scales of Inspector in BSF and Delhi Police were the same i.e. Rs.6500-10500/-. In view of the revision in the pay scale of Sub-Inspector being the same as aforesaid from Rs.1400-2300/- to Rs.1640-2900/- , the same has to be ignored after revision of the pay scale whereupon the pay scales of Sub Inspector in BSF and of Sub Inspector in Delhi Police were at par. Having regard to spirit and intent to Clarification No.1, referred to have, the pay scale of Sub-Inspector Rs.1400-2300/- was not in the existing hierarchy of the Delhi Police to which the financial upgradation under the ACP could have been provided. Therefore, the same has to be ignored as such.
18. Viewing it from any angle, the respondents have erred in their view that the applicant initially joined in Delhi Police on deputation in the pay scale of Rs.1400-2300 with deputation allowance and was absorbed in higher pay scale of Rs.1640-2900 which amounts to financial upgradation. The applicants absorption in Delhi police in a higher pay scale cannot be counted financial upgradation under the ACP Scheme for three reasons; i) he joined the Delhi Police as Direct recruit in the rank of Sub Inspector in the scale of Rs.1640-2900/-; ii) low pay scale of Sub Inspector in BSF and higher pay scale in Delhi Police were revised subsequently so as to bring them at par with each other; and iii) Sub Inspector in the pay scale of Rs.1400-2300 in BSF was not in the existing hierarchy of Delhi Police whereas the Scheme provide for mobility in the existing hierarchy.
19. In the facts and circumstances of the case and for the reasons stated above, we quash the impugned order qua the applicant. The respondents may refix the applicants pay under the ACP Scheme in the light of the observations made above in accordance with the provisions of the said Scheme. No order as to costs.
(Dr. Dharam Paul Sharma) ( L.K.Joshi) Member(J) Vice Chairman (A) /usha/