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Ram Kishan Kataria vs Union Of India & Ors. on 18 July, 2016

Bench: Pradeep Nandrajog, Pratibha Rani

$~53 & 63
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of Decision : July 18, 2016
+                         W.P.(C) 6075/2016
      RAM KISHAN KATARIA                              ..... Petitioner
              Represented by:         Mr.Ankur Chhibber, Advocate

                                      versus

      UNION OF INDIA AND ORS                   ..... Respondents
               Represented by: Dr.Ashwani Bhardwaj, Advocate

                          W.P.(C) 6121/2016
      ABUL HASAN                                      ..... Petitioner
              Represented by:         Mr.Ankur Chhibber, Advocate

                                      versus

      UNION OF INDIA AND ORS                     ..... Respondents
               Represented by: Ms.Bharti Raju, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

CM No.24928/2016 in W.P.(C) No.6075/2016 CM No.25083/2016 in W.P.(C) No.6121/2016 Allowed subject to just exceptions.

W.P.(C) Nos.6075/2016 & 6121/2016

1. Counsel as above appear for the respondents and state that counter affidavits need not be filed because all relevant documents have been filed W.P.(C) No.6075/2016 & conn.matter Page 1 of 8 by the writ petitioners.

2. The present writ petitions are being disposed of noting the dates given by the petitioners of having joined service and when they completed 12 years and 24 years service respectively. We take on record the statement made by learned counsel for the respondents that these dates would be subject to verification by the respondents, to which learned counsel for the petitioners agrees.

3. The issue arising in the captioned writ petitions concern implementation of the Assured Career Progression Scheme (ACP) as per which, those who had rendered twelve years service and had earned no promotion, subject to fitness, would be entitled to the first financial upgradation and upon completion of twenty four years service, if no second promotion was earned, subject to fitness, would be entitled to the second financial upgradation.

4. The facts as averred by the petitioner Ram Kishan Kataria in W.P(C) No.6075/2016 are that he joined service in CRPF as a Constable (GD) on September 06, 1971. He underwent both the ROG III and ROG-II courses in the year 1974 and thereafter, was re-mustered as Naik/RO in the year 1975. He completed 12 years service in the year 1983. He was detailed for ROG-I Promotional Course in the year 1992 and upon completing the same he was promoted to the rank of Head Constable/RO in the year 1993. He completed 24 years service in the year 1995. Thereafter, he was detailed for SUOCC Promotional Course in the year 1999.

5. The facts as averred by the petitioner Abul Hasan in W.P(C) No.6121/2016 are that he joined service in CRPF as a Constable (GD) on October 10, 1971. He underwent the ROG III course in the year 1983 and W.P.(C) No.6075/2016 & conn.matter Page 2 of 8 was remustered as Naik/RO on December 15, 1983. He also completed 12 years service that very year i.e. 1983. He was detailed for PBCC Promotional Course in the year 1991 and upon completing the same he was promoted to the rank of Head Constable/Crypto in the year 1991.He further underwent CUG-II course in the year 1993. He completed 24 years service in the year 1995. He was also detailed for CUG-I course in the year 1996. We also note that the petitioner was given a punishment of reduction of a lower stage in the time scale of pay of Rs.3200-85-4900 for a period of 4 years w.e.f. May 08, 1999 to May 07, 2003 with the effect of postponing future increments. Needless to state, the same would not be an impediment towards granting the 2nd financial upgradation to the petitioner under ACP scheme for the reason that he became eligible for the same upon completion of 24 years of service in the year 1995, and the same would only have the effect of postponing the grant of benefits of 2nd financial upgradation to 2003 instead of 1999, when the scheme came into vogue. Petitioner made a request for grant of 2nd financial upgradation under ACP scheme, but the same was rejected vide order dated May 02, 2015.

6. We would also note that both the petitioners in the captioned writ petitions had sent legal notices to the respondents praying for grant of second financial upgradation benefits under the ACP scheme, but the same remained unanswered.

7. We need to speak a few words.

8. The Assured Career Progression Scheme was introduced in the year 1999. The object was to avoid stagnation in service. The scheme envisaged placement of the incumbent in the next higher grade; akin to an in-situ promotion.

9. The grievance in the writ petition is to non-grant of the benefit of second financial upgradation upon completing twenty four years service.

10. The reason for which ACP benefit pertaining to the second financial upgradation is not being accorded is that the service rules envisage successful completion of a pre-promotional course. The grievance of the writ petitioner on said issue is that the department was at fault inasmuch as the department did not send the petitioner to undertake the pre-promotional course.

11. The said issue at hand is squarely covered by a Division Bench judgment of this Court in a batch of writ petitions decided on September 06, 2013, the lead matter being W.P.(C) No.5539/2013 Jaipal Singh & Ors. vs. Union of India & Ors. The view taken was that if a department has not detailed a person for pre-promotional course the person cannot be prejudiced by the inaction of the department.

12. We note that on October 27, 2014 an office order had been issued which reads as under:-

"No. P-VII-52/2014-ESTT Dated, the 27th /Oct/2014 To The Spl./Addl. DG, JKZ/CZ/NEZ/SZ.

The Inspectors General of Police, 1 BS/CS/CHHG/CoBRA/JMU/JKD/M&N/MP/NES/NS/NW S/ODISHA/RAF/RAJ/SS/SNR/TPA/WS/WB/OPS KMR/ OPS JHT/ISA MT ABU/CRPF ACDY KDR.

The Deputy Director (Accts), PAO, CRPF.

Sub :- REGARDING GRANT OF FINANCIAL BENEFITS UNDER APC/MACP SCHEME - CLARIFICATION.

Please refer to this Dte letter No.P-VII-52/2012-Estt dated 8/10/2012 and signal No.P-VII-52/2013-Estt dated 3/7/2013.

2. As per guidelines issued vide this Dte letter/signal under reference, Head Constable (GD/Technical/Tradesmen) were allowed 2nd financial up-gradation under ACP scheme (of Aug‟1999) from the date of qualifying promotional course and fulfilment of other eligibility conditions.

3. The issue has been further examined in consultation with MHA & DoPT and following clarifications are issue :-

i) Those Head Constables (GD/Technical/Tradesmen) who were detailed on promotional courses after completion of 24 years of service and successfully qualified the promotional course, they may be allowed 2nd financial up-gradation under ACP scheme (of Aug‟1999) from the date of completion of 24 years of service provided they fulfils other eligibility conditions on the relevant date of completion of 24 years of service.

ii) Since ACP scheme was operative from 9/8/1999 to 31/8/2008. Hence no HC (GD/Technical/Tradesmen) shall be allowed 2nd financial up-gradation under ACP scheme (of Aug‟1999) prior to 9/8/1999 and after 31/8/2008.

iii) The Head Constable (GC/Technical/Tradesmen) who have not qualified promotional courses shall not be eligible for 2nd financial benefit under ACP scheme as they have not fulfilled the promotion norms.

4. The cases of all affected personnel may be reviewed accordingly.

SD/ 27/10/2014"

13. It was also pointed out that the respondents have issued a clarification dated February 16, 2015 issued by Ministry of Home W.P.(C) No.6075/2016 & conn.matter Page 5 of 8 Affairs, wherein it has been clarified as under:--

"CRPF is allowed to grant 2nd Financial Up Gradation under ACP Scheme to all eligible, Constable/Head constable (Executive/Technical/Tradesmen) from the date they have completed 24 years of regular service, overlooking the condition of any prepromotional course criteria in those cases where such personnel could not be sent on pre-promotional course by CRPF, due to administrative reasons and not due to any reason owing to such a person concerned, as clarified by DoP&T."

14. A reading of the above clearly shows that Clause III of the letter dated October 27, 2014 issued by the respondents has already been nullified and superseded by the clarification issued by the respondents on February 16, 2015 and the signal dated February 20, 2015. Thus as of today, the requirement of undergoing the pre-promotional courses for grant of 2nd ACP benefit on completion of 24 years service is not mandatory any more.

15. We note that the petitioner has completed the twenty four years of service though he has not undergone the pre-promotional courses. It is the case of the petitioner that he was never detailed for the said pre-promotional course by the respondents. Thus, he is squarely covered by the clarification issued by the respondents vide its clarification dated February 16, 2015.

16. The issue of reckoning 12 years and 24 years for those who were remustered has already been decided by us on March 05, 2015 while deciding a batch of writ petitions, lead matter being W.P.(C) No.388/2015 in which we have held that the period would reckon from the date of initial appointment to the post of Constable. We also note that the respondents sought review of the judgment dated March 05, 2015 and vide order dated January 29,2016 we declined to interfere with the same for the following W.P.(C) No.6075/2016 & conn.matter Page 6 of 8 reasons:-

"12.We have considered the rival contentions of the parties and on going through the documents and OM relied upon by the parties, it is clear that clarification No. 4,5 and 6 relied upon by the respondents are not applicable in the present case whereas clarification No. 1 squarely covers the case of the petitioners for the reason the petitioners were appointed as Constable (GD) in the CRPF and were thereafter remustered as Naik RO. However, in the year 1997 the post of Naik RO was merged in the rank of Head Constable (RO) and as per clarification No.1 of DOPT‟s OM dated 10.02.2000 it has been clearly spelt out „since the benefit of upgradation under the ACP Scheme are to be allowed in the existing hierarchy, the mobility under the ACP Scheme 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 scale shall be entitled for upgradation under the ACP Scheme ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-a vis the fresh entrant in the merged grade.‟ Thus a bare perusal of the above clarification clearly shows that upgradation under the ACP Scheme are to be allowed in the existing hierarchy. After 1997 the hierarchy prevalent in CRPF is that of Constable (RO) and then Head Constable (RO). As of today there is no post of Naik RO. Not only this, the clarification further clarifies that an employee who got promoted from a lower pay scale to a higher pay scale as a result of promotion before merger of pay scales shall be entitled for upgradation under the ACP Scheme ignoring the said promotion. Meaning thereby that in the present case the petitioner was appointed as Constable (GD) and was thereafter remustered as Naik RO in a higher pay scale but however, in year 1997 the post of Naik RO was merged with that of Head Constable (RO). Therefore, as per the clarification the re- mustering to the rank of Naik RO is required to be ignored for grant of ACP. As far as the judgments relied upon by the respondents is concerned the same do not deal with the issue in hand and therefore are of no consequence to the present case.

13. Accordingly, in light of the observations above the present Review Petitions are without any merit and are accordingly dismissed."

17. Therefore, we need not burden ourselves further. The petition is accordingly disposed of issuing a direction that the verification of the dates of employment and the dates when the petitioner completed 12 and 24 years service as also fitness of the petitioner for grant of ACP benefit shall be completed within 12 weeks from today and the petitioner, if found eligible for grant of ACP benefit would be paid the arrears after refixation of his pay as also pension. In case the arrears are not paid within the stipulated timeline, then the same shall carry simple interest payable @8% per annum. We also issue certiorari to the respondents directing quashing of the order dated May 02, 2015 passed qua the petitioner in W.P.(C) No.6121/2016.

18. No costs.

(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE JULY 18, 2016 mamta W.P.(C) No.6075/2016 & conn.matter Page 8 of 8