Delhi High Court
Grade-I Dass Officers Assocaition vs The Secretary, Govt. Of India And Ors. on 15 February, 2008
Equivalent citations: 148(2008)DLT342
Author: Aruna Suresh
Bench: Manmohan Sarin, Aruna Suresh
JUDGMENT Aruna Suresh, J.
1. Present writ petition has been filed by the petitioner Association assailing the order dated 8th December, 2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as "CAT") in OA No. 579/2002 and order dated 12th February, 2004 passed in Review Application No. 49.2004 whereby the petitioners were denied the financial upgradation in the next higher scale in the existing hierarchy and the petitioners' claim for Assured Career Progression Scheme (hereinafter referred to as "ACP" Scheme) was restricted to the same scale of 6500-10500 with benefit under Fundamental Rule 22(1)(a)(1) subject to minimum of Rs. 100/- upholding the order of the Deputy Secretary, Ministry of Home Affairs, Government of India dated 10th August, 2001.
2. The matrix of the facts before us are that the petitioners were appointed as Grade-II DASS, Government of India on regular basis in between 1986-1989. The petitioners have put in 24 years of regular service between 1973-2001 and have earned only one promotion in their whole career. Accordingly, they are eligible for the second financial upgradation under the ACP scheme from 9.08.1991 or from the date on which they have completed 24 years of regular service whichever is later. The petitioners were initially placed in the scale of Rs. 1640-2900/- which was revised to 2000-3200 w.e.f. 19.03.1996 vide Government order dated 17.09.1996. The scale of Grade-I DASS was revised w.e.f. 01.01.1996 i.e. corresponding replacement scale as per recommendation of the 5th Pay Commission is 6500-10500/-. The revised scale of Rs. 2000-3200/- was not in existence on 01.01.1996 and therefore the petitioners were put in the revised scale of 6500-10500/- directly. In doing so, the benefit of the increments which the petitioners had earned in the scale of 1640-2900/- were denied on the plea that the petitioners were put in the scale of 2000-3200/- on 01.01.1996 wherein they did not earn any increments and thereafter they have been placed in the replacement scale of 6500-10500/-.
3. Aggrieved of the said action, the petitioners filed OA No. 1916/1999 and 2011/1999 before the CAT which were allowed on 19th May, 2000. Writ petition filed by the respondent before the High Court against the said order of the CAT was dismissed with the observations that the order of the CAT had been implemented as per orders issued by Govt. of India on 25th July, 2001.
4. A clarification dated 10.02.2000 was issued for the implementation of the scheme. Despite this clarification dated 10.02.2000 another clarification was sought on the ground that 5th Pay Commission recommendations regarding grant of pre-revised scale of 2200-4000 (revised scale being 8000-13500) to DANICS/DANIPS was under consideration and therefore it was important to call for clarification if the scale of Rs. 10000-15200 is the next scale of 6500-10500. But no clarification was forthcoming. On 30.10.2000 Government introduced a new scale (non-functional) being a time scale of Rs. 8000-13500/- to be granted on completion of four years of service in the DANICS and Lakshadeep Services. Vide order dated 18.12.2000 the Government raised the presumption that Grade-I DASS will be entitled to scale of Rs. 8000-13500/- under the ACP scheme.
5. On 10.08.2001 Deputy Secretary, Government of India, Ministry of Home Affairs intimated by way of clarification 52 that Grade-I DASS are allowed their next promotion to DANICS in the scale of Rs. 6500-10500/- and as such they are eligible to the scale of Rs. 6500-10500/- under the ACP scheme with benefits of Fundamental Rule 22(1)(a)(1). This order was challenged by the petitioners before the CAT in OA No. 579/2002. The said OA was dismissed vide order dated 8.12.2003. Review against the same was also dismissed on 12.02.2004. Hence, the present writ petition challenging the said two orders of the CAT.
6. The only issue involved in the present writ petition is whether the petitioners are entitled to the next higher grade in accordance with the existing hierarchy or not or their placement in the scale of Rs. 6500-10500/- being the entry grade of the DANICS in which petitioners have been placed on grant of second ACP with benefit under Fundamental Rule 22(1)(a)(1) subject to minimum of Rs. 100/- is correct and also if the petitioners can be placed in the scale of Rs. 8000-13500/-, specially when as per Govt. of India instructions the scale of Rs. 8000-13500/- is only a Group B time scale and not a part of the existing hierarchy of posts in a cadre.
7. Learned Counsel for the petitioners while referring to condition No. 7 and other provisions of Annexure 1 of ACP scheme has submitted that condition No. 7 has to be interpreted keeping in view the ACP scheme which was brought into existence to give two financial upgradations in the entire Government service career of an employee to be counted against regular promotions availed from the grade in which an employee was appointed as a direct recruit. Therefore, she has impressed upon that ACP scheme shall be available only if no regular promotion due in the prescribed period (12-24 years) have been availed by an employee. Therefore grade/pay scale have the same meaning as given in the condition No. 7 of the scheme. She has further submitted that clarification regarding point of doubt No. 52 vide OM dated 18.07.2001 is supplanting the scheme and not supplementing it. She has narrated the instances of Food Inspectors in Food Prevention and Adulteration Department, Govt. of NCT of Delhi and employees of Directorate of Employment and PWD having been provided the pay scales similar to that of the petitioners by granting them 2nd financial upgradation under the ACP scheme and whereas the petitioners are also entitled to the upgradation to the next scale in the hierarchy as they are already in the pay scale of Rs. 6500-10500/-.
8. Learned Counsel for the respondents while refuting the submissions of the petitioners has averred that whole object of the ACP scheme was to give relief to those who have been stagnating and are being denied promotion due to lack of promotional avenues and to mitigate hardship in case of acute stagnation either in cadre or in an isolated post. With this objective the scheme provided for an upgradation in the next higher financial grade available in the hierarchy after 12 years and another 12 years of the said grant of promotion by upgradation. He has argued that the next higher scale grade for the officers of Grade -I DASS is the entry grade of DANICS which is the same and which the petitioners happened to enjoy in the DASS. According to him the next available scale in the hierarchy has been given to the petitioners i.e. the first entry grade of DANICS though it carries the same emoluments.
9. Learned Counsel for the respondents further submitted that the person who gets selected through the DPC for a promotion would get the entry level at DANICS as against those who are otherwise not able to qualify or get promotion under the DPC but get the benefit of ACP scheme would get a higher grade than available to the officers who comes through regular DPC and earn promotion. Learned Counsel for the respondents also referred to para 7 of the policy and submitted that the mandate is to give a higher grade in the existing hierarchy which may be in the same pay scale. However, there is an exception carved out for isolated posts where the upgradation is especially provided to be granted in the next higher (common) pay scale as per Annexure-II whereas in the case of financial upgradation in the existing hierarchy, it is only the next grade within the existing hierarchy structure which is to be given and since the present case is not one of the isolated posts, the petitioners are entitled only to the next hierarchy grade which is the entry grade of DANICS and which has been provided to them.
10. In short the case of the petitioners is:
(a) The Grade-I DASS are entitled to promotion to Grade-II Group B under the Delhi Andaman and Nicobar Islands and Lakshadweep Civil Services in the same scale. This promotion does not give them any benefit of financial upgradation as intended under the ACP. Therefore keeping in view the spirit and the intention behind the introduction of the ACP Scheme the next logical grade for financial upgradation is 10000-350-15200.
(b) Some Food Inspectors (isolated posts) and some private secretaries in the govt. services were granted their II financial upgradation under the ACP from the scale of 6500-10500 to 10000-15200 from 9.08.1999.
(c) In view of clarification dated 10.02.2000, no further clarification was required, as the said clarification in categorical terms stated and provided for the implementation of the ACP and the benefits of upgradation to be allowed in the hierarchy existing after merger, ignoring the promotion if that is in the same scale. Further it stated that any selection grade/in situ promotion to an employee which is not a part of the hierarchy shall not be counted under the ACP.
(d) Further, OM dated 12.09.2003 was issued by the Govt. of India in respect of Isolated posts, while it considered the scale of 12000-16500 in S-21 and scale 12750-16500 in S-22 and scale 12000-18000 in S-23 does not confer any financial benefit to the employees in the scale of 10000-15200. These being contrary to the scheme, govt. ignored S-22 and S-23 and granted 12000-16500 in S-21 after 12 years and S-24 i.e. 14300-18300 after 24 years ignoring S-22 and 23.
(e) Govt. vide letter dated 24.11.2000 only prescribed the mode of fixation of pay under the Fundamental Rule in cases where the feeder and promotional post both carry the same scale of pay and it is not found feasible to restructure the grade.
11. In short the case of the respondents is:
(a) The petitioners are entitled to the financial upgradation under the ACP, but having regard to the peculiarities of their case they are entitled to the financial upgradation in the same scale with benefits under Fundamental Rule 22(1)(a)(1) subject to Rs. 100/- as per order dated 10.08.2001.
(b) There is no provision under the ACP to provide for a pay scale higher than the one applicable on promotion, if the scales of the feeder and the promotional post happen to be the same. In such cases, however the benefits of Fundamental Rule 22(1)(a)(1) apply. Had this not been the case then the promotees would get the same scale and those who though, have not been promoted but only got benefit of financial upgradation under the ACP will get a scale higher than the promotees.
(c) Govt. vide letter dated 24.11.2000 clarified that merely because the feeder and the promotional post happen to carry the same scale of pay, it is not reason enough to justify the promotion post be placed in the higher scale.
12. While dismissing OA No. 579/2002 vide order dated 8.12.2003 the CAT held:
...it is clear that the purpose of the scheme was that where the promotional avenues are not forthcoming to the concerned employees in group 'B', 'C', 'D' and isolated posts, they can be given the benefit of financial upgradation to avoid stagnation. The financial upgradation is a substitute where promotion is not forthcoming.
It is true that more often than once the words used are "financial upgradation" in the next given scale and it has some trappings of promotions because a committee has been formed to consider the cases of those employees. It has only trappings of promotion while in fact it is not so.
To contend that the applicants irrespective of their promotion in the hierarchy in which they are placed should be given the grade in the pay scale which is much higher than the hierarchical promotion in our opinion is the incorrect interpretation. While interpreting the Scheme common sense cannot be left in the cold storage. As one glances through the scheme. It is patent that the financial upgradation is in the next higher grade, but it is with a rider that it is in accordance with the existing hierarchy in a cadre without creating new posts. Para 7 of the Scheme makes it clear that benefit should be granted conforming to the existing hierarchical structure only. If in the hierarchy, the scale happens to be the same which is on promotion, the result would be that the concerned person would only be entitled to the benefit of Fundamental Rule 22(1)(a)(1) rather than seeking a higher pay scale. In the present case in the hierarchical promotion, the applicants would have been promoted to DANICS Grade II Group 'B' which has the same scale as DASS Grade-I, therefore, the applicants were rightly being awarded the benefit of Fundamental Rule 22(1)(a)(1) rather than the pay scale which in any case they were not entitled to. Any other factor would tantamount to mis-reading of the scheme.
Keeping in view the controversy that had arisen, a reference had been made and a clarification was forthcoming which reads:
Points of Doubt Clarification Following the recommendations of the Pay Commission, feeder and promotional posts have been placed in the same scale. Consequently, hierarchy of a post comprises of Grades 'A'. 'A' and 'C' i.e. the entry level and the first promotional grade are in the same scale. What shall be his entitlements under ACPS Normally, it is incorrect to have a feeder grade in the same scale of pay. In such cases, appropriate course of action is to review the cadre structure. If as a restructuring, feeder and promotional posts are merged to constitute one single level in the hierarchy, then in such a case, next financial upgradation will be in the next hierarchical grade above the merged levels and if any promotion has been allowed in the past in grades which stand merged, it will have to be ignored as already clarified in reply to point of doubt No. 1 of O.M. dt.10.02.2000. However if for certain reasons it is inescapable to retain both feeder and promotional grades as two district levels in the hierarchy though in the same scale of pay, thereby making a provision for allowing promotion to a higher post in the same grade, it is inevitable that benefit of financial upgradation under ACPS has also to be allowed in the same scale. This is for the reason that under the ACPS, financial upgradation has to be allowed as per the existing hierarchy. Financial upgradation cannot be allowed in a scale higher than the next promotional grade. However, as specified in condition No. 9 of the ACP Scheme (vide DoP&T O.M. dated 10.02.2000, pay in such cases shall be fixed under the provisions of Fundamental Rule 22(1)(a)(1) subject to a minimum benefit of Rs. 100/-.
The learned Counsel for the applicants contended that the said clarification runs counter to the Scheme and, therefore, the same must be ignored. We do not dispute the proposition that if the clarification is available contrary to the Scheme, it has to be ignored, but it can be supplemented. It can only be ignored, if it is inconsistent.The clarification can, therefore, always be obtained in the peculiar facts and when as noticed above, it is not inconsistent with the Scheme, there can be no ground to accept the argument.
In the present case as we read the scheme, it is obvious that the higher grade in the pay scale draws its color and strength from the hierarchy in the cadre. Therefore the higher grade/scale need not be in the next pay scale because if in the hierarchy it is otherwise, the words can be interpreted to bring the precise meaning. Even at time we can read down. Because the words are used generally in the same sense throughout a scheme, unless there is something repugnant in the context. The presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtue of an orderly and consistent use of language, but it must yield to the requirement of the context. It is perhaps at its weakest when the word in question is of the kind that readily draws it surprise important from the setting of the subject. Lord Mc Dermott in Madras Electric Supply Corporation Ltd. v. Boar Land Inspector of Taxes (1955) All England Reports 753 said Even when the same word is used at different place it may not mean the same. Meaning thus can only be awarded in schemes as intended.
In the fact of the present case we have already held that the higher grade is as is in the hierarchy. The applicants have been rightly denied the next higher grade/scale.
13. The Fifth Central Pay Commission in its report had made certain recommendations relating to the ACP Scheme. It was viewed as a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. The scheme was enforced and it was decided to grant the financial upgradation after completion of 12 years and 24 years of regular service where the employees have no promotional avenues.
14. It provides that the vacancy based regular promotion as distinct from financial upgradation under the ACP Scheme shall continue to be granted after due screening by a regular Departmental Promotion Committee. The Scheme provides conditions for grant of the benefit and provides that the ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits only to the Government servants concerned on personal basis. The highest pay scale up to which the financial upgradation is permissible is Rs. 14300-18300/-. The benefit is only available when no regular promotions had been granted during the period of 12/24 years. In this regard, the Scheme provides:-
This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him.
15. The important aspect is that the financial upgradation shall be given in the next higher grade in accordance with the existing hierarchy in the cadre. The relevant portion of the condition No. 7 of the scheme is:
Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (Standard/common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the first Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated posts, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only.
16. It further provides that the financial upgradation under the Scheme is purely personal and has no relevance to the seniority position. On upgradation under the ACP Scheme the pay of an employee has to be fixed under the provisions of Fundamental Rule 22(1)(a)(1) subject to a minimum financial benefit of Rs. 100/-. it provides:
On upgradation under the ACP Scheme, pay of an employee shall be fixed under the provisions of Fundamental Rule 22(1)(a)(1) subject to a minimum financial benefit of Rs. 100/- as per the Department of Personnel and Training Office Memorandum No. 1/6/97-Pay.1 dated July 5, 1999. The financial benefit shall accrue at the time of regular promotion i.e. posting against a functional post in the higher grade.
17. Letter dated 10.02.2000 as also letter dated 22.06.2000 issued by the Department of Personnel and Training clearly stipulates that the Grade-I DASS, some who are working as adhoc DANICS in scale of 6500-10500 are entitled to scale of 10000-15200 under the ACP after 24 years of regular service with only 1 regular promotion. The said clarification further clearly set out that the benefits of the financial upgradation under ACP shall be allowed after merger of the scales by ignoring the promotion. Relevant portion is:
Points of Doubt Clarification Doubt 1 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. This has resulted into change in the hierarchy in as much as two posts which feeder and promotion grades in the pre-merged scenario have now 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. 1,200-1,800 and Rs. 1,320-2,040 respectively; the latter being promotion post for the former. Both the posts have now been placed in the pay scale of Rs. 4,000-6000. 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 the 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-a-vis the fresh entrant in the merged grade.
Doubt 2:
Some employees have been allowed selection grade/ in situ promotions though these grades are not a part of the defined hierarchy. Whether this is to be considered as promotion for the purpose of ACPS? Also, what will be the situation if selection grade has been allowed in lieu of the higher pay scale?
Clarification :
Mobility under ACPS is to be allowed in the 'existing hierarchy'. As such, if any selection grade/in situ promotion has been allowed to employees which is not a part of the hierarchy, it shall not be counted as promotion for the purposes of ACPS. For illustration sake, junior engineers of CPWD appointed in the grade Rs. 5000-8000/- are allowed the scale of Rs. 5500-9000/- on completion of 5 years of regular service and the scale of Rs. 6500-10500/- on completion of fifteen years of regular service. The scale of 5500-9000/- is not a part of the defined hierarchy for them. In such cases, the pay scale which is not a part of the hierarchy may be treated to have been withdrawn. However, fall in pay resulting out of this shall be protected by granting personal pay in the aforesaid direct entry grade to be adjusted against future increments. Moreover, as per condition No. 13 of the ACPS, such existing (previous) schemes would be discontinued with the adoption of the ACPS. However, in the case of common category of posts, the existing hierarchy in relation to a cadre would mean the prescribed grade recommended by the Fifth Pay Commission.
18. In the present case, clarification 52 was issued vide letter No. G.I., Dept of Per. & Trg., O.M. No. 35034/1/97-Estt.(D) (Vol.IV) dated 10th February, 2000 in connection with the implementation of some provisions under the ACP scheme and therefore this clarification can only supplant and not supplement the basic provisions contained or the rules provided for by the ACP Scheme. (Clarification No. 52 has already been reproduced at page No. 12).
19. Respondents have tried to deny the benefit of the scheme to the petitioners by raising untenable plea that placing the petitioners in the scale higher than what is provided for under the hierarchy would amount to discrimination against the promotees, who have, despite promotion got the same scale, in view of the merger of the two scales of the feeder and promotion post into one scale. This plea is absolutely not maintainable because the ACPS is purely personal.
20. Clarification 52 is contrary to ACP scheme. If clarification 52 is implemented, it would take away the vested right of a Govt. servant in his existing hierarchy, with respect to the scale to be granted by way of financial upgradation under ACP Scheme. The Govt. cannot amend or supersede statutory rules by Administrative Instruction. But if the rules are silent on any particular point, the Govt. can clarify the doubt and issue clarification to supplement the rules, provided the same are not inconsistent with the rules already framed. It is well settled principle of law that clarificatory legislation /notification /orders are alien to the constitutional scheme.
21. In Director General of Posts and Ors. v. B. Ravindran and Anr. , it was observed that Govt. under the guise of a clarificatory order, could not have taken away the right which had accrued to such re-employed pensioners with retrospective effect while declaring that while considering hardship the last pay drawn at the time of retirement was to be compared with initial pay plus pension whether ignorable or not. Supreme Court also observed that clarificatory instructions can not supersede or take away the right itself under the regulation sought to be so clarified. Thus, it is clear that clarificatory instructions can not supersede or take away the right against the regulation sought to be so clarified.
22. In Union of India (UOI) and Ors. v. Kesho Ram and Ors. , issue regarding the implementation of the ACP scheme in view of the subsequent office order issued by the Govt. of India came up for consideration. It was observed:
The position of the present case is similar to the one which was decided in the said case by the Supreme Court. We, therefore, are of the considered view that the aforesaid circular which was subsequently issued by the appellant by way of clarification could have only supplement the provisions of the scheme and could not have supplant the provisions of the Scheme. Since the said circular was intended to supplant, then supplement, the view taken by the learned Tribunal is legal and valid. The aforesaid view that we had taken was also the view which was taken by another Division Bench of this Court in the case of Union of India through Director General v. Shri Bhagwati Prasad in Writ Petition (Civil) No. 297/2005. While disposing of the writ petition, the Division Bench held in the following manner:
We have perused the order passed by the Central Administrative Tribunal. Learned Counsel for the petitioner has contended that in view of the subsequent office order, the Assured Career Scheme could not have been implemented. We are in agreement with the findings of the C.A.T. That when the Assured Career Scheme is clear and unambiguous, any clarification of office order cannot supplant the same. If the petitioner does not want to implement the Assured Career Scheme in letter and spirit, then remedy with them lies in amending the Scheme and not whittling down the Scheme on the ground of exigency of administrative difficulties. We find no merit in the petition Dismissed.
23. This court (Manmohan Sarin, J. and Aruna Suresh, J.) in Union of India v. Prakash Chand and Ors. , where a similar question of implementation of ACP Scheme arose qua the employees of Ministry of Small Scale Industries, observed:
The fact remains that the effect of DOPT Office Memo. dated 18.7.2001 and clarification No. 56 if implemented would take away the vested right of the government servant in his existing hierarchy with respect to the grant of scale to be granted by way of financial upgradation under the ACP Scheme. The Government cannot amend or supersede statutory rules by administrative instructions. But if the rules are silent on any particular point, the Government can fill up the gap and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions shall govern the condition of service.
24. In the present case as already pointed out above, the clarification 52 was called for and issued to shed light on some provisions under the ACP scheme. Therefore these clarifications cannot supersede the basic provisions contained or conditions provided for implementation of the ACP scheme.
25. Keeping in mind the letter and spirit of the ACP scheme it is crystal clear that the same was introduced to provide relief to those employees who have put in many years of service with no promotion and no increments. The object and intention of the legislature in providing ACP scheme is to provide same financial reprieve to such employees who are stagnating with no promotion. Evidently, the term financial upgradation in the scheme means financial improvement and as is apparent in the present case there cannot be any improvement financially if the petitioners are granted this upgradation in the same scale which is the entry grade of DANICS and is also the scale of Grade-I DASS. In other words, the grant of scale of Rs. 6500-10500/- i.e. entry scale of DANICS means that they are continuing to get the same pay scale though on paper they are said to have been granted benefit of upgradation under the ACP scheme.
26. Therefore, we are of the considered view that the Tribunal erred in holding that the expression 'financial upgradation in accordance with the existing hierarchy without creating new posts...' is a rider to grant of financial upgradation to be granted under the ACP scheme. In fact it is a natural and logical consequence of the scheme, the objective of which truly is to remove stagnation and give benefit under the ACP scheme of financial upgradation in the next higher grade, though in accordance with the existing hierarchy, to those employees who have not earned any regular promotion in the 12/24 years of their regular service. The scheme is a breather for those employees who are stuck in the same scale for 12/24 years. The logical and favorable interpretation of the expression is that the hierarchy in the cadre as is existing is to be followed and no new posts are to be created for the purpose of granting the benefit under the ACP scheme. And if, however, a situation like the present one arises then the apt interpretation is, the one towing the line given by the respondents vide OM dated 21.09.2003, though it is relating to the isolated posts, where department is to ignore the scale that has been merged and grant financial upgradation in the next higher grade/scale which exists after this merged grade.
27. However, if this interpretation is not followed then, the basic purpose of the scheme, which is financial upliftment to avoid stagnation, will be completely lost and the reason will be that by granting financial upgradation in the 'same scale', which the employees is already getting will not in any way amount to any upgradation/leverage for him in financial terms.
28. It is pertinent to mention here that during the pendency of the present writ petition Govt. of NCT of Delhi has given higher time scale (non-functional) to the petitioners Grade-I DASS in the same manner as is given to the DANICS officers i.e. 8,000-13500/- vide order dated 1.02.2007. Relevant para 2 of the order is as under:
2. The Heads of Department may grant the aforesaid pay scales in accordance with the following parameters:
(i) The non-functional pay scale of Rs. 8000-275-13500 is admissible to Grade-I (DASS) & Sr.P.A. and also to those Grade (DASS) and Sr. P.A. who have been appointed to ex-cadre post of DANICS on ad hoc basis, subject to their vigilance clearance.
(ii) The Grade (DASS) and Sr. P.A. who are granted this non-functional pay scale of Rs. 8000-275-13500 will continue to remain in Group-B (Gazetted) and their eligibility for promotion to DANICS will be reckoned0 on the basis of total period of service spent in both the pay scales viz Rs. 6500-200-10500 and Rs. 8000-275-13500, counted together.
(iii) Officers who are placed in the above non-functional pay scale will be entitled to the benefit of pay fixation under Fundamental Rule 22(1)(a)(2).
Therefore, non-functional pay scale which is given after four years of service is to be ignored as it can not be said to be a part of the existing hierarchy.
29. To conclude, the petitioners are entitled to the next scale existing in the hierarchy of Rs. 10000-325-15200/- from the date they become eligible to be placed in the said scale in accordance with the ACP scheme and the procedure laid down in the said scheme. In other words, the petitioners have become eligible for second upgradation on completion of 24 years of service as admittedly they have not earned any promotion in twelve years. The order of the Tribunal, therefore, is unsustainable in law and is hereby set aside.
30. The writ petition is allowed. The respondents are directed to consider the placement of the petitioners in the next scale in the hierarchy i.e. 10000-15200/- as 2nd upgradation in the ACP scheme from the respective dates they completed their 24 years of service within a period of three months.