Calcutta High Court (Appellete Side)
Solaiyappan Balakrishnan vs Union Of India & Ors on 26 March, 2015
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
3.2015 W.P.18494 (W) of 2014
57
ks
Solaiyappan Balakrishnan
-Vs-
Union of India & Ors.
Mr. Pampa Dey(Dhabal)
... for the Petitioner.
Mr. Chandri Alam
... for the Respondents.
The petitioner complains of the petitioner being discriminated against by the respondents authorities in the second financial upgradation due to the petitioner under the Minimum Assured Career Progression Scheme not being afforded to the petitioner.
Prior to the implementation of the recommendations of the sixth Pay Commission, there was an Assured Career Progression Scheme that was in place from September, 1999. Such scheme envisaged the grant of two financial upgradations in the next higher scale in the existing hierarchy with the first financial upgradation to be granted after completion of 12 years in service and the second financial upgradation after 24 years.
With effect from September 1, 2008, the ACP scheme was replaced by the MACP scheme which provides for three financial upgradations to the immediate next higher grade of pay in the hierarchy of pay band and grade pay. Under the MACP, the first financial upgradation is required to be granted after ten years of service, the second after 20 years and the third after 30 years. The qualifying norms under the ACP have been modified in the MACP and only the fitness of the candidate and the attainment of the bench-mark are the qualifying norms.
The petitioner joined the Central Industrial Security Force in the year 1988. In terms of the ACP scheme that was introduced in 1999, the petitioner ought to have obtained a financial upgradation in the year 2000, but it appears that the petitioner declined to undertake the requisite tests and, as a 2 consequence thereof, the financial upgradation could not be obtained by him. In or about the year 2002, disciplinary proceedings for the award of a major penalty were instituted against the petitioner and the petitioner challenged the same before the Madras High Court. The petition was ultimately dismissed in the year 2006, following which the disciplinary proceedings were conducted and in the year 2008 the petitioner was punished by his pay being reduced by two stages for a period of two years with a further direction that he would not earn any increment of pay during such period of reduction. The reduction was also to have the effect of postponing his future increments of pay. The order was revised by the superior departmental authority on January 30, 2009 by reducing the pay to four stages, but not interfering with the other part of the order as to how the reduction of pay would affect the future increments due to the petitioner.
It appears that during the pendency of the disciplinary proceedings against the petitioner, the petitioner's entitlement to further upgradation was not given effect to and, indeed, the petitioner was found not to be entitled thereto. The first financial upgradation that the petitioner obtained was in or about the year 2013 after the petitioner had served out the punishment pursuant to the order in the year 2008. The respondents rely on the proceedings of the Review Board for considering the financial upgradation of the petitioner held on March 29, 2014. The Review Board saw the records of the petitioner between the years 2003 and 2007 and awarded him a total of 54.5 marks, but reduced five marks from such total on account of the major punishment suffered by the petitioner.
The Review Board concluded that the petitioner was not fit for the financial upgradation since he failed in the service records.
However, no reason was furnished by the Review Board as to why it perceived that the petitioner had failed in the service records. The table appearing as Annexure R-2 to the affidavit-in-opposition does not indicate what was the qualifying mark and in what circumstances the petitioner was found to have failed by reason of his service records.
The petitioner says that the petitioner cannot be jeopardised afresh by virtue of the order of punishment suffered by the petitioner, particularly since the 3 petitioner has served out the duration thereof. Though the petitioner accepts that the petitioner's further increments stood deferred by reason of the order of punishment, the petitioner insists that since he joined in the year 1988, he is entitled to the second financial upgradation by now.
For such purpose, the petitioner relies on the circular issued by the CISF on January 8, 2014 where the ACP and MACP have both been referred to and it has been clarified that in view of the eligibility conditions under the ACP scheme being modified to the benefit of employees under the MACP scheme, the considerations relevant for assessing the candidature of a CISF employee have undergone a sea change.
Since the petitioner served out the enhanced punishment by or about the year 2010 and the petitioner got his first financial upgradation in or about 2013, nearly 25 years after the petitioner joined the service, the petitioner ought to have been considered for his second financial upgradation. The reasons furnished by the Review Board at its meeting dated March 29, 2014 did not disclose any reasons as to why the petitioner was found unfit. It is not clarified on behalf of the respondents as to why five marks were deducted from the petitioner's total based on the annual confidential reports for the years 2003 to 2007 pertaining to the petitioner. Nothing in the relevant minutes indicate the cut-off level for a person being found fit for promotion.
Since the petitioner has served for more than 25 years in the CISF and the petitioner has served out the enhanced sentence imposed on the petitioner in the year 2008, it is necessary for the petitioner's candidature for the second financial upgradation be immediately considered in accordance with law for the petitioner to be offered the same as expeditiously as possible.
Accordingly, W.P.18494(W) of 2014 is disposed of by directing the respondent authorities to take immediate appropriate steps to reconsider the petitioner's candidature for the second financial upgradation in accordance with law and to extend the benefits thereunder to the petitioner, if the petitioner is found eligible therefor. A reasoned decision in such regard should be communicated to the petitioner within eight weeks from date.
4For the purpose of considering the petitioner's case for the second financial upgradation, the respondents authorities will not be bound by the conclusion of the Review Board rendered on March 29, 2014.
There will be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
( Sanjib Banerjee, J.)