Ashok Kumar Sharma vs Union Of India And Ors. on 31 March, 2016

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Delhi High Court

Ashok Kumar Sharma vs Union Of India And Ors. on 31 March, 2016

1. The present petition has been filed by the petitioner praying inter alia for quashing an order dated 13.8.2015 issued by the DIG, BSF, Sriganganagar, denying him the benefit of the first ACP with effect from 01.1.1998.

2. Ms. Palli, learned Senior Advocate appearing for the petitioner states that the petitioner had joined the BSF on 11.01.1980 on the post of a Constable (Radio Operator) and on 16.11.1981 was promoted to the rank of Naik (Radio Operator). On 01.01.1986, the petitioner had appeared for the departmental conversion test and was appointed as a Head Constable (Radio Operator) and after completing the upgrading Radio Mechanic Course, was promoted as an ASI (Radio Mechanic) on 20.10.1989. Subsequently, upon W.P.(C) 8468/2015 Page 1 of 8 the recommendations made by 5th Central Pay Commission, the basic rank of a Radio Mechanic was declared to be ASI (Radio Mechanic), with effect from 01.1.1996.

3. It is the petitioner‟s stand that he became eligible for grant of the first ACP with effect from 01.01.1998, since he had been appointed as a Radio Mechanic with effect from 01.01.1986, and had completed 12 years of service on 01.01.1998. However, the respondents have granted the benefit of the first ACP to the petitioner with effect from 13.01.2001, upon his completing the pre-promotional course on the ground that only upon completing the said course, would a person be entitled to grant of the first ACP.

4. The grievance of the petitioner is that non-completion of the pre- promotional course is not attributable to him for the reason that it was for the respondents to have arranged the said course for the petitioner, which they had done only between 19.6.2000 to 13.1.2001. The petitioner was granted the second financial upgradation with effect from 01.9.2008 under the MACP Scheme introduced by the DOPT vide O.M. dated 19.5.2009 and he was subsequently, promoted as an Inspector (Communication) on 16.11.2011.

5. Ms. Palli, Senior Advocate states that the issue raised in the present petition relating to the grant of the first ACP being regulated by the pre- promotional course is no longer res integra, having been decided in a catena of judgments of several Division Benches of this Court, including in the following cases : -

(i) Dharamvir vs. Union of India and Ors., WP(C) No.3123/2014 decided on 26.5.2013.

W.P.(C) 8468/2015 Page 2 of 8

(ii) Jaipal Singh and Ors. vs. Union of India and Ors., WP(C) No.5539/2013 decided on 6.9.2013.

(iii) Suraj Bhan and Ors. vs. Union of India and Ors., WP(C) No.6650/2013 decided on 11.10.2013.

(iv) Ram Avtar Sharma vs. Directorate General BSF & Ors. WP(C) 5278/2013 decided on 12.8.2014.

6. It is stated that it was after the judgment dated 12.08.2014 came to be pronounced in the case of Ram Avtar Sharma (supra) that the respondents had issued a Circular dated 22.09.2014, on the issue of grant of the first ACP to Head Constables and second ACP to Constables, wherein a reference was made to the directions issued by the Court in the captioned petition and it was clarified that the requirement of a pre-promotional course will not be enforced to regulate cases of financial upgradation.

7. It is now sought to be urged by the respondents in their counter affidavit that the aforesaid decision was only applicable to Constables (GD) and the petitioner, who belongs to the cadre of communication, would not be extended the said benefit. The aforesaid argument is, to say the least, fallacious. The principles of law having been settled once and for all in the decisions referred to hererinabove, where the point involved for adjudication was the requirement of undergoing a pre-promotional course for qualifying for the grant of the first ACP, the respondents could not have denied the benefit of the said decision to the petitioner herein merely because he belongs to the communication cadre.

8. We may also note that while allowing W.P.(C) 5278/2013 vide order dated 12.08.2014, passed in the case of Ram Avtar Sharma (supra), the W.P.(C) 8468/2015 Page 3 of 8 Division Bench had concluded by noting that if in future, such petitions are filed agitating the relief akin to any of the reliefs granted in the said case or the issues covered in the said case, then responsibility shall be fixed on the concerned officer and such a lapse shall be construed as a contempt of court. In the teeth of the said order, instead of acceding to the relief of the petitioner at the initial stage itself, the respondents have been contesting the present petition and that too on a misconceived and untenable ground that he belongs to a different cadre.

9. The second objection raised by the respondents is that the rank of Head Constable (Radio Mechanic) in the BSF had stood merged with the cadre of ASI (Radio Mechanic) on 10.10.1997 and the petitioner was appointed as a Head Constable (Radio Mechanic) on 01.01.1986 and promoted to the rank of ASI (Radio Mechanic) on 25.10.1989, which was well before the merging of the rank had taken place. Resultantly, he was ineligible for his first financial upgradation under the ACP Scheme, having already received the first regular promotion well before completion of 12 years of regular service counted from the date of his direct entry in the Government employment.

10. The aforesaid submission made by learned counsel for the respondents is found to be devoid of merits in the light of the judgment dated 03.03.2015 in W.P.(C) 1371/2007 entitled UOI and Ors. vs. K.T. Akhtar and Ors., wherein the Division Bench had observed as follows:-

"10. The respondents, as shown in Annexure - 1 above are having one single pay scale i.e. Rs. 3050-4590 w.e.f. 1.1.1996. There is no plea that the respondent availed the benefit of promotion under the ACP Scheme after availing the Fifth Pay Commission. It is apparent that the ACP scheme was introduced after Fifth Pay Commission to W.P.(C) 8468/2015 Page 4 of 8 mitigate the hardships faced by the employees due to lack of adequate promotional avenues and to provide an incentive for personnel development and to achieve progress of the organisation/institution. Later, the DOP&T vide OM dated 10.02.2000 issued a clarification for implementation of the ACP Scheme in its right perspective to achieve the intended goals. The point of doubt under serial No. 1 and its clarification in the said OM is reproduced hereinunder:

"Point of Doubt - 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 rationalisation of pay-scales. This has resulted into change in the hierarchy in as much as two posts which constituted feeder and promotion grades in the pre-merged scenario have become one grade. The position may be clarified further by way of the following illustration: prior to the implementation of the Fifth Central Pay Commission recommendation, two categories of posts were in the pay-scales of Rs.1200-1800 and Rs.1320-2040 respectively; the latter being promotion post for the former. Both the posts have now been placed in the pay-scale of Rs.4000-6000. How the benefits of the ACP Scheme is to be allowed in such cases?

Clarification - Since the benefits of upgradation under ACP Scheme (ACPS) are to be allowed in the existing hierarchy, the mobility under ACPS shall be in the hierarchy existing after merger of pay-scales by ignoring the promotion. An employee who got promoted from lower pay-scale to higher pay-scale as a result of promotion before merger of pay-scales shall be entitled for upgradation under ACPS ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-à-vis the fresh entrant in the merged grade." (emphasis supplied)

11. The aforesaid clarification made in O.M. dated 10.02.2000 (Supra) makes it crystal clear that the respondents‟ case is squarely covered by the ACP Scheme and the judgment of this Court in the case of Ramashish Prasad and others vs CAT (PB) New Delhi and other, WP (C) No. 7150/2006 is distinguishable from the facts of the present case. The aforesaid judgment is not applicable in the present facts and circumstances. The basis of the claim of the respondents in W.P.(C) 8468/2015 Page 5 of 8 the present petition is the merger of two pay scales i.e. pay scale of Assistant Grade - III and Assistant Grade - II, whereas Ramashish Prasad's case (Supra) pertained to two different posts i.e. Assistant Grade - I and Junior Technician.

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15. The claim of the respondents for the next higher pay scale is further clarified by DOP&T‟s clarification appearing under Serial No. 1 in OM dated 10.02.2000 which shows that - "An employee who got promoted from lower pay-scale to higher pay-scale as a result of promotion before merger of pay-scales shall be entitled for upgradation under ACPS ignoring the said promotion" Under the terms of the above-mentioned DOP&T‟s OM, the first promotion of the respondents from Assistant Grade - III to Assistant Grade - II has to be ignored, consequently entitling the respondents to the next higher pay scale of Rs. 4000-6000." (emphasis added)

11. We are informed that the aforesaid judgment has attained finality and therefore, the respondents cannot be permitted to take such a plea as has been noted above to oppose the present petition for the reason that the clarification issued by the DOPT vide O.M. dated 10.02.2000, has settled the position that an employee, who has got promoted from a lower pay scale to a higher pay scale as a result of promotion before merger of the pay scales, shall be entitled for upgradation under the ACPS, while ignoring the said promotion. In fact the respondents had correctly understood the said position in terms of the letter dated 11.02.2011 issued by the Directorate General, BSF and addressed to its officers clarifying inter alia that promotions earned/upgradations granted under the ACP Scheme in the past to those grades, which now carry the same Grade Pay due to merger of pay scales/upgradations of post recommended by the Sixth Central Pay W.P.(C) 8468/2015 Page 6 of 8 Commission, shall be ignored for the purpose of granting upgradations under the modified ACPS. Accordingly, the second objection raised by the respondents is also turned down as being devoid of merits.

12. In the given facts and circumstances, we are inclined to pass adverse orders against the respondents, particularly, the Legal Department under whose advice, the counter affidavit has been drafted and filed.

13. At this stage, learned counsel for the respondents states that this may be treated as a last opportunity to the respondents to put their house in order and they shall ensure that the principles of law enunciated in the earlier decisions are given effect to in letter and spirit and applied to all similarly placed petitioners, irrespective of the cadre to which they may belong.

14. In view of the assurance given by learned counsel for the respondents, it is deemed appropriate to direct the deponent of the counter affidavit and the Deputy Inspector General (Confidential), who had issued the letter dated 11.02.2011, to file their respective affidavits undertaking inter alia that in the event any similar case is filed in the Court by a petitioner belonging to any cadre in the BSF seeking similar relief predicated on the decisions referred to above, responsibility shall be affixed by the respondents on the defaulting officer(s) and if necessary, an adverse entry made in his/their APAR. The said affidavits shall be filed within four weeks with a copy furnished to the counsel for the petitioner.

15. The present petition is disposed of with directions issued to the respondents to extend the benefit of the first ACP to the petitioner w.e.f. 09.08.1999, within a period of six weeks from today.

W.P.(C) 8468/2015 Page 7 of 8

16. List in the category of „Directions‟ on 12th May, 2016, to await the affidavits to be filed by the respondents.

HIMA KOHLI, J SUNIL GAUR, J MARCH 31, 2016 rkb/ap W.P.(C) 8468/2015 Page 8 of 8

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