JUDGMENT Markandeya Katju, C.J.
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1. This writ appeal has been filed against the judgment of the learned Single Judge dated 7.11.2005 in WP(C) No. 13210/2004 by which he allowed the writ petition.
2. Heard learned counsel for the parties and perused the record.
3. The facts in detail have been set out in the judgment of the learned single Judge and hence we are not reproducing the same except where necessary.
4. The writ petitioner prayed for a Writ of Mandamus directing the respondent to grant her all the financial upgradation and benefits under the Assured Career Progression Scheme (for short ACP scheme ) with effect from 9.8.1999 and to quash the Memorandum dated 12.10.2001 which purports to withdraw the financial upgradation by the respondent.
5. The writ petitioner (respondent No.1 in the appeal) is employed as a Senior Technical Assistant in the Bureau of Indian Standards, New Delhi (for short the bids ). The writ petitioner has alleged that she has worked for 33 years with the bids with an unblemished record. She is aggrieved by the action of the respondent denying her the promotional benefits and the financial upgradation benefits under the ACP scheme which was notified by the Central Government with effect from August,1999. A true copy of the ACP scheme is Annexure P-1 to the writ petition.
6. In para 6 of the writ petition it is alleged that the Government of India notified the ACP scheme for the Central Government civilian employees on the recommendation of the 5th Central Pay Commission. The said scheme was introduced to deal with the problem of stagnation and hardship faced by the employees due to lack of adequate promotional avenues. It is alleged by the writ petitioner that she was eligible and qualified for regular promotion, but due to high handedness of the senior officers, she was victimised and not Page 0025promoted. She has alleged that she was promoted only on 10.8.1989 whereas more than 100 juniors have been promoted earlier to her.
7. In para 8 of the writ petition it is alleged that the petitioner was granted second financial upgradation under the ACP scheme by the selection committee for Group 'B' posts in its meeting dated 16.3.2001 and she was recommended for second financial upgradation with effect from 9.8.1999 by an order dated 26.3.2001 vide Annexure P-2 to the writ petition.
8. In para 9 of the writ petition it is alleged that the grant of second financial upgradation under the ACP scheme and fixing up the revised pay scale under the said scheme by respondent No.2 was duly communicated to the writ petitioner vide Office Memorandum dated 17.4.2001 vide Annexure P-3 to the writ petition. It is alleged that the writ petitioner was granted second financial upgradation after 31 years of regular service.
9. In para 10 of the writ petition it is alleged that the Director General of bids in an unreasonable and unjustified manner withdrew the second financial upgradation by the Memorandum dated 12.10.2001, vide Annexure P-4 to the writ petition. It is alleged that this action of the Director General was mala fide, arbitrary and totally illegal as the Director General had no reason to withdraw the second financial upgradation granted to the writ petitioner. The writ petitioner made a representation dated 14.1.2002 against this act for withdrawing the second financial upgradation vide Annexure P-5 to the writ petition, but received no reply. Thereafter, also she made representations as stated in para 13 of the writ petition.
10. The Director General of bids by his reply dated 3.1.2003 stated that the reason for denying the benefit of second financial upgradation under the ACP scheme was that the writ petitioner had refused to accept the promotion and hence was not eligible under the ACP scheme. The writ petitioner has alleged that she was never offered promotion and instead she has herself been requesting for promotion which due to her. A true copy of the reply dated 3.1.2003 is Annexure P-14 to the writ petition.
11. A counter affidavit has been filed on behalf of the bids by the Director(Establishment) and we have perused the same.
12. In para B of the counter affidavit it is alleged that the writ petitioner did not fulfilll the eligibility criterion for the grant of second financial upgradation under the ACP scheme and hence the financial upgradation which was granted to her inadvertently was withdrawn. It is alleged in para 3 of the counter affidavit that the grant of financial upgradation under the ACP scheme was on fulfilllment of certain conditions and the petitioner did not fulfilll the conditions. Hence, she was not eligible for financial upgradation under the scheme.
13. In para 5 of the counter affidavit it is denied that the petitioner was promoted to the post of Senior Technical Assistant only after 19 years of service because of mala fide, high handedness and discriminatory action. Page 0026It is alleged that for being considered for promotion to the post of Senior Technical Assistant (Lab), a candidate was required to pass the prescribed Laboratory Test. Since the petitioner did not pass the prescribed Laboratory Test, she was not eligible for promotion. She was appointed to the selection grade w.e.f. 28.11.1984 and was given the benefit of pay fixation as per rules. It is alleged that the petitioner had concealed material facts and the writ petition deserved to be dismissed. It is also denied that the petitioner had been superseded by more than 100 juniors without just cause and reason. It is stated that with the change in status of ISI to bids in the year 1986, new recruitment regulations came into effect from 15.1.1988. These regulations did not stipulate any departmental test as eligibility condition for promotion of Technical Assistants (Lab) to the post of Senior Technical Assistant (Lab). Consequently she was considered for promotion to the post of Senior Technical Assistant (Lab) under the new regulations by the selection committee at its meeting held on 11.5.1988 in the first instance, but she could not be promoted as the selection committee found that the petitioner was not fit for promotion as her grading decided by the selection committee was lower than grading of those who were selected for promotion. As such, there was no question of the petitioner being superseded by juniors without any just cause and reason. The petitioner was again considered by the selection committee at its meeting held in August,1989 and subsequently she was promoted to the post of Senior Technical Assistant (Lab) with effect from 10.8.1989. In any event the petitioner has not complained about her alleged supercession.
14. In para 7 of the counter affidavit it is denied that there was any high handedness on the part of the senior officers or there was any victimisation of the petitioner. It is alleged that the petitioner was required to work at the Central Laboratory, Sahibabad. However, she had requested to post her at headquarters which was outside the normal area of work of a laboratory. Her request was considered by the Director General of bids and she was retained at headquarters vide memo dated 10/14th July,1992 with the condition that since she would be working in an area outside the normal area of work of employees covered under the bids (Laboratory Technical Posts) Regulations,1988, and hence she will not be considered for any further promotion to a post covered in these regulations.
15. In para 8 of the counter affidavit it is alleged that the petitioner was granted the second financial upgradation inadvertently without carefully considering the conditions required for grant of ACP and the condition imposed by the Director General of bids vide memo dated 10/14.7.1992. It is further alleged that after grant of second financial upgradation in March 2001, while reviewing the case, the selection committee for Group B posts at its meeting held on 18.9.2001 found that the second financial upgradation granted to the petitioner was without applying the conditions required for grant of ACP and the condition imposed by the Director General of bids vide memo dated 10/14.7.1992. When the selection committee found that the petitioner was not eligible for any promotion and/or financial upgradation, the Committee recommended to withdraw the financial upgradation granted earlier.
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16. A perusal of the ACP scheme shows that it is mentioned in para 3.1 therein:- Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I.
17. Clause 6 of Annexure-I to the ACP scheme states:-
fulfilllment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group 'D' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc.) only without conferring any privileges related to higher status (e.g., invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme.
18. The memorandum dated 12.10.2001, Annexure P-4 to the writ petition, does not give any reason for withdrawing the financial upgradation granted to the petitioner. It merely states that the said upgradation was granted erroneously. However, the reasons for withdrawal have been given in Annexure P-14 to the writ petition which is a communication dated 3.1.2003 of the bids to counsel for the petitioner. It is stated therein that grant of financial upgradation under the ACP scheme is subject to fulfilllment of normal promotion norms. The petitioner had been informed by memorandum dated 10/14.7.1992 that as she will be working in an area outside the normal area of work of employees covered under the bids (Laboratory Technical Posts) Regulations 1988, she will not be considered for any further promotion to a post covered under these regulations. Hence, it was stated that the petitioner was not eligible for financial upgradation under the ACP scheme. It was also stated following Swamy's Compilation on Seniority and Promotion that:-
Where a promotion has been offered before the employee could be considered for grant of benefit under ACP scheme but he/she refuses to accept such promotion, then he cannot be said to be stagnating as he/she has opted to remain in the existing grade on his/her own volition. As such, there is no case for grant of ACPS in such cases. The official can be considered for promotion again after the necessary debarment period . It was stated that the petitioner was not eligible to a promotion in the next higher post and,therefore, she was not eligible to financial upgradation under the ACP scheme.
19. In our view the stand taken by the respondent in the writ petition (the appellant herein) is not correct. What Clause 6 of Annexure I to the ACP scheme requires is the fulfilllment of the normal promotion norms such as benchmark, departmental examination, seniority-cum-fitness etc. A person may give up his chance of promotion although he fulfillls the normal promotion norms. Merely because the petitioner once gave up her promotional avenue Page 0028does not mean that she did not possess the normal promotion norms. There is no allegation in the counter affidavit to the writ petition that the petitioner did not fulfilll the normal promotion norms. All that is alleged is that she did not choose to avail the promotion to the post of Technical Supervisor. In our opinion, this does not mean that she does not possess the normal promotion norms.
20. In view of the above, we agree with the view taken by the learned Single Judge, but we are assigning our own reasons. The appeal is, therefore, dismissed.