Central Administrative Tribunal - Delhi
Sh. Lakhwinder Singh vs Commissioner Of Police on 9 April, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2054/2012
Reserved on : 03.04.2013.
Pronounced on :09.04.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Sh. Lakhwinder Singh,
S/o Sh. Jagir singh,
R/o J.No. 72, Gali No. 18,
A-1 Block, Kamal Vihar,
Kamaal Pur Burari,
Delhi-84.
2. Sh. Randhir Singh,
S/o Sh. Nawal Singh,
R/o VPO Mundhela Kalan,
New Delhi-73.
3. Sh. Rajinder Singh,
S/o Sh. Kehar Singh,
R/o Vill. Jonty, PO Jonty,
Delhi-82.
4. Sh. K.S. Mohan,
S/o late Sh. K.K. Nair,
R/o Qtrs. No.10 P.C. Haus Khas,
New Delhi-16.
5. Sh. Rohtas Singh,
S/o Sh. Surat Singh,
R/o Vill. Dhoa P.O. Farman,
Distt. Sonipat, Haryana.
6. Sh. Meer Singh,
S/o Sh. Sheer Singh,
R/o VPO Mundhalya (Bikaner)
Distt. Rewari(Haryana).
7. Sh. Rajender Singh,
S/o Sh. Ram Sawroop,
R/o Vill. & P.O. Khas Marthal,
Distt. Sonipat, Haryana.
8. Sh. Joginder Singh,
S/o late Sh. Sube Singh,
R/o VPO Mundhala kalan,
New Delhi-73.
9. Sh. Sanjeev Kumar,
S/o late Sh. K. Thankappan,
R/o Qr. No. 8 J. Type II Police Colony,
Model Town-II, Delhi-9.
10.Sh. Sukhbir Singh,
S/o late Sh. Rattan Singh,
R/o VPO Puthh Kalan,
Delhi-86.
11.Sh. Pawan Kumar,
S/o Sh. Karan Singh,
R/o VPO Rathdhana Distt.,
Sonepat, Haryana-131030.
12.Sh. Naresh Kumar,
S/o late Sh. Budh Ram,
R/o village Samas Pur Khalsa,
Post Ofice Vjwa, New Delhi-73.
13.Sh. Balraj Singh,
S/o Sh. Rame,
R/o H.No. 137, VPO Sanoth,
Delhi-40. . Applicants
(through Sh. Ajesh Luthra, Advocate)
Versus
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Deputy Commissioner of Police
(Establishment)
PHQ, MSO Building,
IP Estate, New Delhi.
3. Deputy Commissioner of Police
(Security) Headquarter,
Vinay Marg, New Delhi.
4. Deputy Commissioner of Police
(PCR), Model Town-II, Delhi. . Respondents
(through Sh. Amit Anand, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicants, who are 13 in number, have sought the following relief:-
(a) quash and set aside the impugned orders and Direct the respondents to grant the next financial upgradation to the applicants in accordance with MACP scheme by including the length of service rendered by the applicants as Constable (Exe.) with all consequential benefits.
award costs of the proceedings and pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicants and against the respondents in the facts and circumstances of the case.
2. Facts of the case are that the applicants joined Delhi Police as Constable (Exe.) on different dates between 1977 and 1989. They were absorbed as Constables (Drivers) on different dates between 1983 and 1998. Subsequently, all of them earned promotions as Head Constables and some of them were also promoted as Asstt. Sub-Inspectors. While the cases of all the applicants are similar, for the sake of convenience, facts of applicant No. 1 (Lakhwinder Singh) are being discussed below:-
2.1 Applicant joined Delhi Police as Constable (Exe.) on 05.04.1980. He was absorbed as Constable (Dvr.) on 01.03.1984. He earned promotion as Head Constable (Dvr.) on 01.01.1988 and as ASI (Dvr.) on 11.10.2007. W.e.f. 09.08.1999 Government of India had introduced Assured Career Progression (ACP) Scheme on the recommendations of the Vth Central Pay Commission(CPC). The said Scheme was introduced to deal with problem of stagnation and hardship faced by the employees due to lack of adequate promotional avenues. It provided for two financial upgradations on completion of 12 and 24 years of regular service in case no promotion is granted to the employee within the said period. Applicant was granted second financial upgradation under the ACP Scheme in the year 2004 on completion of 24 years of service. Meanwhile, Government of India on the recommendation of VIth CPC introduced Modified Assured Career Progression (MACP) Scheme envisaging three financial upgradations i.e. on completion of 10, 20 and 30 years of regular service. The grievance of the applicant is that on completion of 30 years of service i.e. we.f. 05.04.2010, he should have been granted third financial upgradation under the MACP Scheme. However, when the same was not granted, he made a representation to the respondents, which was rejected vide impugned order dated 01.03.2012. Meanwhile, the respondents issued a circular dated 24.02.2012 whereby personnel from paramilitary forces such as BSF/CRPF/CISF who had earlier been taken on record in Delhi Police on higher grade and were subsequently absorbed were allowed to count their service rendered in their parent departments prior to their deputation/absorption in Delhi Police for the purpose of ACP/MACP Scheme. On the basis of the said circular the applicant again made a representation dated 03.04.2012 specifically pleading therein that since outsiders have been allowed the benefit of past service rendered to their absorption, the applicant who had served Delhi police should not be denied this benefit. However, the respondents rejected the representation of the applicant vide impugned order dated 13.04.2012. Further, vide their impugned order dated 05.06.2012 the respondents also cancelled the ACP Scheme benefits granted to the applicant. Aggrieved by the orders of the respondents, the applicant has preferred this O.A. before us.
3. The applicants counsel has argued that the respondents have held that applicants service prior to absorption as Constable (Dvr.) will not be counted for the purpose of granting ACP and MACP Scheme benefits. This action of the respondents is illegal and unjust. The respondents have allowed similar benefits to such staff who were earlier in paramilitary forces and were subsequently absorbed in Delhi Police. When this can be done for those coming from outside Delhi Police, there is no reason why applicant who had been serving in Delhi Police all along having master servant relationship with the same employer should not be granted this benefit. He argued that the applicant had earlier been granted second financial upgradation under the ACP Scheme on the due date after counting his service as Constable (Exe.) also. But this benefit was subsequently withdrawn without any reason and unilaterally. He placed reliance on the judgment dated 09.02.2011 of this Tribunal in OA-1643/2010 (Anthony Mathew Vs. Commissioner of Police) in which it was held as follows:-
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 pa1y 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. He has also relied upon the judgment dated 03.08.2011 of this Tribunal in OA-3812/2010 (Sohan Singh & Ors. Vs. Commr. of Police, Delhi. His claim is that in the aforesaid case the Tribunal had granted benefit to Sohan Singh & Ors. who are absorbees of paramilitary forces whereas in comparison to those applicants the applicant of the present case is better placed since he has been serving under the same employer all along. The applicants counsel disputed the respondents reliance on the term regular service as contained in Clause-9 of MACP Scheme. The applicants counsel also mentioned that the respondents have completely ignored the fact that from IVth CPC onwards all the Constables have been placed in the same pay scale of Rs.950-1400/-. The position has not changed in the Vth & VIth Pay Commissions and pay scales of all Constables has remained same i.e. Rs. 3050-4590 in Vth CPC and Rs.5200-20200 + Grade Pay of Rs.2000 in VIth CPC.
4. The respondents, on the other hand, have denied the claims of the applicant. According to them, the matter was examined in Police Headquarters in consultation with Legal and Financial Advisors who had opined that since the applicant had been appointed as Constable (Dvr.) w.e.f. 01.03.1984 in higher pay scale of Rs.260-400 as compared to the pay scale of Rs. 225-290-EB-6-308, his regular service for the purpose of financial upgradation under the MACP Scheme has to be reckoned w.e.f. 01.03.1984 as per Condition-9 of MACP Scheme which provides that regular service for the purpose of this Scheme has to commence from the date of joining of a post in direct entry grade on regular basis. The respondents have relied on the Office Memorandum of Department of Personnel & Training No. 35.34/1/97-Estt.(D) (Vol.IV) dated 10.02.2000 by which clarifications to ACP Scheme have been issued. This clarification Sl.No. 6 of which is relevant, reads as follows:-
Question 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?
Clarification ..However, 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. According to the respondents, the applicant was appointed as Constable (Dvr.) on the basis of transfer of service and is fully covered by this clarification since his appointment in that capacity was made in higher pay scale.
5. We have heard both sides and perused the material placed on record.
6. We have gone through the judgment in the case of Antony Mathew (supra), which has been relied upon by the applciant. The facts of the case were as follows:-
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). In this case the Tribunal held as follows:-
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. We have also gone through the judgment given by this Tribunal in the case of Sohan Singh (supra). The facts of this case are as follows:-
The request of the applicants which has been rejected vide the Annexure A-1 letter dated 15.06.2010 was to grant them benefits under the ACP/MACP Schemes. The reason given for the rejection in the said letter is that as per the Points 4 to 6 contained in the DOPT OM No. 36043/1/97-Estt (D)/(Vol.IV) dated 18.07.2001 and PHQ Circular No. 13534-75/P.Br./PHQ dated 05.06.2008, if the appointment is made to the post in higher grades, then such appointments, whether by direct recruitment or by transfer or initially on deputation followed by absorption, will be treated as direct recruitment and the past service/promotion (which was in a different scale) will not be counted for the grant of ACP/MACP Scheme. Accordingly, as the service of the applicants rendered in the lower scale prior to the date of their permanent absorption in Delhi Police has not been taken into account for the purpose of grant of ACP/MACP to them, they were held not entitled for grant of second and third MACP at the present stage.
2. All the applicants were initially appointed as Constables in Border Security Force (BSF for short) and they came to Delhi Police and got themselves absorbed there. Their service particulars are as under:
Applicant No.1 Applicant No.2 Applicant No.3 Applicant No.4 Applicant No.5
1. Date of enlistment in BSF as Constable 05.01.1979 02.02.1971 24.08.1976 25.07.1974 01.08.1975
2. Date of joining Delhi Police on deputation 13.02.1986 21.02.1986 01.04.1986 01.04.1988 28.04.1988
3. Date of absorption in Delhi Police 05.12.1988 10.04.1989 05.12.1988 1991 26.08.1988
4. Date of Promotion as Head Constable 1993 24.09.1994 24.09.1994 13.11.2001 13.11.2001
5. Date of Promotion as ASI 02.06.2010 - - - In this case the Tribunal had placed reliance on the judgment of Apex Court in the case of S.I. Rooplal and anr. Vs. Lt. Governor through Chief Secretary, Delhi and Ors., JT 1999 (9) SC 597. The relevant part of the aforesaid judgment is as follows:-
15. We will now take up the question whether the appellants are entitled to count their service rendered by them as Sub-Inspector in the BSF for the purpose of their seniority after absorption as Sub-Inspector (Executive) in Delhi Police or not. We have already noticed the fact that it is pursuant to the needs of Delhi Police that these officials were deputed to Delhi Police from the BSF following the procedure laid down in Rule 5(h) of the Rules and subsequently absorbed as contemplated under the said Rules. It is also not in dispute that at some point of time in the BSF, the appellants' services were regularised in the post of Sub-Inspector and they were transferred as regularly appointed Sub-Inspectors to Delhi Police Force. Therefore, on being absorbed in an equivalent cadre in the transferred post, we find no reason why these transferred officials should not be permitted to count their service in the parent department. The operative part of the Tribunals order reads as follows:-
8. Accordingly, we allow this OA. We also quash and set aside the impugned Annexure A-1 letter dated 15.06.2010 and the Annexure A-2 circular dated 05.06.2008 based on which the said letter dated 15.06.2010 was issued. The respondents are, therefore, directed to consider the request of the applicants for grant of benefits under the MACP Scheme in the light of the judgment of the Apex Court in the case of S.I Roop Lal (supra) and the Order of the co-ordinate Bench of this Tribunal in the case of Antony Mathew (supra). The Respondents shall pass necessary orders in this regard within a period of two months from the date of receipt of a copy of this order, under intimation to the Applicants. There shall be no order as to costs.
7. Having perused the aforesaid judgments, we feel that the case of the applicant is fully covered by them since the facts and circumstances of the case are identical to those of the applicants in the other cases. In fact, the applicants of the present case are better placed since they have been serving the same employer all through.
8. We have also noticed that the pay scales of all Constables had become same from IVth CPC onwards. Thus, the pay scale of Constable (Exe.) which was Rs.225-290 and pay scale of Constable (Dvr.) which was Rs. 260400 prior to IV CPC got merged into pay scale of Rs.950-1400 for all Constables. In subsequent Pay Commissions also this position has continued. In this connection, we have seen Clause-5 of the MACP Scheme which reads as follows:-
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 posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS. The rationale behind this provision is obvious. If such promotions/upgradations are not ignored then seniors who have earned these promotions/upgradations before refixation of pay scales will be at disadvantage as compared to their juniors who could not earn these promotions/upgradations because they were juniors. Consequently juniors will first get the higher pay scale by merger of the grade and subsequently by upgradation under the MACP will move to a next higher scale as compared to their seniors who earned the promotion/upgradation before merger of scales and therefore will not be entitled to any further upgradation under MACP.
9. In the instant case, if the service of the applicant rendered prior to his absorption has Constable (Drv.) is not counted; he will remain at a disadvantageous position as compared to his batch-mates or juniors who joined service at the same time as he. Since those persons will move to the merged scale of Rs.950-1400 as a consequence of IVth CPC recommendation and will earn financial upgradations under the ACP/MACP Scheme counting their service from the date of joining. This will be grossly unfair to the applicant. The applicant admittedly had been selected as Constable (Dvr.), who were at that time in higher scale and therefore is better placed as compare to his colleagues who were not selected. His selection as Constable (Dvr.) should not put him in disadvantageous position.
10. On the basis of above, we come to the conclusion that the respondents have erred by not counting the service rendered as Constable (Exe.) by the applicant prior to his absorption as Constable (Dvr.) while considering his case for grant of ACP and MACP benefit. Accordingly, this O.A. is allowed. The impugned orders dated 01.03.2012, 13.04.2012 and 05.06.2012 are quashed. The benefit of ACP granted to the applicant w.e.f. 06.04.2004 will be restored. Any recovery made as a consequence of withdrawal of this benefit will be refunded to the applicant. The applicant will also be considered for grant of third financial upgradation under the ACP Scheme after completion of 30 years of service counting his service rendered as Constable (Exe.) for this purpose. This will be done within a period of two months from the date of receipt of a certified copy of this order. Similar benefit will be extended to all other applicants of this case from their respective dates of eligibility. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/