Central Administrative Tribunal - Jodhpur
Pawan Kumar Singh vs M/O Defence on 13 April, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Applications No. 290/00409/2011 & 290/00410/2011
Reserved on : 11.04.2023
Jodhpur, this the 13th April, 2023
CORAM
Hon'ble Mrs. Jasmine Ahmed, Judicial Member
Hon'ble Dr Nandita Chatterjee, Administrative Member
1. OA No. 290/00409/2011
Pawan Kumar Singh S/o Shri Murlidhar Singh aged about 49
years, r/o Garrison Engineer, Army Suratgarh Cantt. T-1086/3
MES Colony, Suratgarh, Presently working as Highly Skilled
Workman with the MES, Suratgarh.
...................Applicant
By Advocate : Mr Govind Suthar.
Versus
1. The Union of India through the Secretary, Ministry of
Defence, Raksha Bhawan, New Delhi.
2. The Engineering-in-Chief, (Army), DHQ, PO, Kashmiri
House, New Delhi.
3. The Commander Works Engineer (AF), MES Air Force
Camps, Bikaner.
4. The Garrison Engineer (Army), Suratgarh.
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5. The Secretary, Govt. of India, Ministry of Personnel Public
Grievance and Pension, Department of Personnel and
Training, New Delhi.
........Respondents
By Advocate : Mr K.S. Yadav.
2. OA No. 290/00410/2011
Mahaveer Prasad S/o Shri Bal Chandra, aged about 55 years,
R/o Azad Chowk, Baghu Road, Ward No. 12, Suratgarh.
Presently working as Highly Skilled Workman with the MES,
Suragath.
...................Applicant
By Advocate : Mr Govind Suthar.
Versus
1. The Union of India through the Secretary, Ministry of
Defence, Raksha Bhawan, New Delhi.
2. The Engineering-in-Chief, (Army), DHQ, PO, Kashmiri
House, New Delhi.
3. The Commander Works Engineer (AF), MES Air Force
Camps, Bikaner.
4. The Garrison Engineer (Army), Suratgarh.
5. The Secretary, Govt. of India, Ministry of Personnel
Public Grievance and Pension, Department of Personnel
and Training, New Delhi.
........Respondents
By Advocate : Mr K.S. Yadav.
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ORDER
Per Mrs. Jasmine Ahmed The instant Original Applications have been filed under Section 19 of the Administrative Tribunals Act, 1985 in the year 2011 challenging a common order dated 03.05.2008 (Annex. A/1 to both the OAs) issued by the respondents, whereby the second financial upgradation under ACP Scheme to the applicant of both the OAs has been denied on completion of 24 years' service from the date of their initial appointment.
2. Earlier, this Tribunal vide a common order dated 04.07.2013 allowed both the OAs and quashed the order dated 03.05.2008. This Tribunal thereafter directed the respondents to grant 2nd financial upgradation under ACP Scheme to the applicant of both the OAs on completion of 24 years' service from the date of their initial appointment. The respondents challenged the aforesaid order dated 04.07.2013 before the Hon'ble Rajasthan High Court at Jodhpur in D.B.C.W.P. No. 7913/2015. The Hon'ble High Court by judgment dated 03.01.2017 directed this Tribunal to decide the matter afresh 4 on its own merits. Judgment dated 03.01.2017 is quoted as under :
"This petition for writ is preferred to question correctness of the order dated 04.07.2013 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No.410/2011. The learned Tribunal while accepting the original application arrived at the conclusion that the explanation given by the employer for denying Annual Career progression Scheme (ACP) is not correct as the Scheme for grant of ACP nowhere prescribes for deferment of 2nd ACP, if for any reason the 1st ACP would have been deferred for a specific period.
From perusal of the Scheme available on record dated 09.8.1999, we are satisfied that the finding arrived is contrary to the conditions prescribed. As per Clause (iv) of the Scheme, the first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfilment of prescribed conditions. In view of it, we deem it appropriate to remand the matter to the Central Administrative Tribunal to decide the Original Application afresh on its own merits. Expeditious disposal of the Original Application is desirable.
The writ petition stands disposed of accordingly."
Hence, this matter is again before this Tribunal for deciding afresh on its own merits.
3. Before deciding the case on its own merits, it is worthwhile to record necessary undisputed facts.
The applicant in OA No. 409/2011 initially appointed as Mazdoor on 2nd February, 1981 and he passed his trade test for 1st financial upgradation under ACP Scheme in his third 5 attempt on 09.04.2002, hence, granted 1st financial upgradation under ACP Scheme w.e.f. 09.04.2002. Whereas, the applicant in OA No. 410/2011 initially appointed as Mazdoor on 20th January, 1978 and he passed his trade test for 1st financial upgradation under ACP Scheme in his third attempt on 20.05.2003. The claim of the applicants is that they should have been granted 2nd financial upgradation after completion of 24 years' regular service from the date of initial appointment, hence, challenged order dated 03.05.2008 on the ground of discrimination citing that names of some persons claimed to be similarly situated who have been granted the benefit of 2nd financial upgradation on completion of 24 years' service.
4. On the other hand, the respondents denied the claim of the applicants in regard to discrimination and stated that persons similarly situated as claimed by the applicants, have been granted 2nd financial upgradation under ACP Scheme as per para 15 of the ACP Scheme. On merits, the respondents have stated that the applicants would be eligible for 1st financial upgradation under ACP Scheme on completion of 12 6 years' service subject to passing of trade test and after completion of 12 years' service from the date of passing of trade test for 2nd financial upgradation as per the ACP Scheme.
5. We have heard learned counsels for the parties, perused the order dated 04.07.2013 passed by this Tribunal, order dated 03.01.2017 passed by the Hon'ble High Court, as well as material available on record.
6. Learned counsels for the applicant reiterated his stand as was earlier before this Tribunal. On the other hand, learned counsel for the respondents inter-alia states that this Tribunal may examine the issue in light of observations made by the Hon'ble High Court.
7. The first issue which would arise to settle the claim of the applicants is that whether passing of trade test is condition precedent for grant of financial upgradation to the applicants and whether failure in succeeding in the same would affect their next financial upgradation under the Scheme.
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8. The Hon'ble High Court while remanding the matter observed that this Tribunal in order dated 13.07.2013 arrived at contrary finding to the condition prescribed under the Scheme. Hence, it is necessary to examine the claim of the applicant in light of initial OM dated 09.08.1999 (Annex. A/13 to the OA No. 410/2011) whereby the ACP Scheme has been introduced by the Government of India. In this regard, it is worthwhile to examine para 3 of the OM dated 09.08.1999, which reads as under :
"3. GROUP 'B', 'C' AND 'D' SERVICES/POSTS AND ISOLATED POSTS IN GROUP 'A', 'B', 'C' AND 'D' CATEGORIES 3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group 'C' and 'D' employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the 8 aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I. Para 3 of the said OM clearly mentions that grant of financial upgradations under ACP Scheme on completion of 12 and 24 years' service shall be subject to the conditions number 4 mentioned in the Annexure-I to this OM. The condition number 4 of the annexure to the OM reads as under
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4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly;
The conjoint reading of aforequoted paragraphs make it clear that in case the first financial upgradation of an incumbent is get delayed due to him being not found fit, the second financial upgradation would also get deferred accordingly. The ACP Scheme has been introduced to deal with the problem of genuine stagnation and hardship faced by 9 the employees due to lack of adequate promotional avenues. However, it does not confer any right upon an employee to seek automatic upgradation on completion of certain years service as he has to fulfil certain criteria which would otherwise make him eligible for promotion also in case of vacancy. In the present case, applicants in both the OA failed to pass trade test in their earlier attempts and succeeded on 09.04.2002 and 20.05.2003 respectively. Hence, both were granted 1st financial upgradation under ACP Scheme w.e.f. 09.04.2002 and 20.05.2003 respectively. The para 4 of Annexure-I to OM dated 09.08.1999 makes it clear that if an incumbent's first financial upgradation is deferred due to him not found fit, the second upgradation will also get deferred accordingly.
9. In the present case, it is undisputed that 1st financial upgradation of the applicants in both the OAs got deferred due to not passing of trade test, hence, they would be eligible for 2nd financial upgradation under ACP Scheme on completion of 12 years' service from the date of grant of 1st financial upgradation (the date on which they passed their 10 trade test) as provided under the ACP Scheme vide OM dated 09.08.1999. We, therefore, see no reason to interfere with the impugned order dated 03.05.2008 passed by the respondents qua the applicants, referring DG (Pers) E-in-Cs letter no. 85610/47/ACP/IND/Scheme/CSCG dated 10.12.2007 (Annex. A/8 to the OA No. 410/2011).
10. The applicants in both the OAs have also claimed discrimination stating that some similarly situated persons have been granted benefits of 2nd financial upgradation on completion of 24 years service, which the respondents denied stating that the case of these employees is covered under para 15 of the OM dated 09.08.1999. We have examined the claim of the applicant in light of relevant Scheme and found that stand taken by the respondents in issuing order dated 03.05.2008 is just and legal, hence, even if somebody is erroneously granted the benefits by the respondents, the same cannot be allowed to be perpetuated. However, our observation shall not preclude the respondents to re-examine and correct their error, if any.
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11. In view of discussions hereinabove made, we see no reason to interfere with order dated 03.05.2008 passed by the respondents. Accordingly, Original Applications are dismissed with no order as to costs.
[Dr. Nandita Chatterjee] [Jasmine Ahmed] Administrative Member Judicial Member ss