Krishna Nand Baranwal vs Union Of India & Others
2012 Latest Caselaw 188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
COURT NO.35
 

 
CIVIL MISC.WRIT PETITION NO.52687 OF 2008
 
 Krishna Nand Barnwal  
 
VS.
 
 Union of India and others
 
*** 
 
Hon.Rakesh Tiwari,J.

Hon.Ashok Pal Singh,J.

(By Hon. Rakesh Tiwari,J.)

Heard learned counsel for the parties and perused the record.

The petitioner has challenged the order dated 17.12.2004 passed by the Garrison Engineer (N), Binnaguri, District Jalpaiguri, respondent No.3, whereby the claim of the petitioner for second financial upgradation under the Assure Carrier Promotion Scheme (hereinafter referred to as the "ACP Scheme") has been denied on the promise that the promotion of the petitioner from the post of ''Valveman' to the ''Pipe Fitter' has been considered as first financial upgradation for the purpose of "ACP Scheme" and subsequently upgradation granted w.e.f. 9.8.1999 in the pay scale of Rs.4000-6000 as second financial upgradation; that since the petitioner has already availed two promotions or financial upgradation, he is not entitled to any further financial upgradation.

The petitioner has challenged the said order passed by respondent No.3 by filing O.A. No.1948 of 2005 (Krishna Nand Barnwal vs. Union of India and others) praying that in accordance with the clarification issued in this regard, the promotion of the petitioner in a common grade does not constitute promotion/upgradation and as such ignoring the same, the petitioner shall be entitled for the second upgradation in the pay scale of Rs.5000-8000 under the ACP Scheme w.e.f. 1.1.1996. After hearing the parties the said O.A. was dismissed by the Central Administrative Tribunal, Allahabad (in short CAT) vide its order dated 31.7.2008.

The facts of the case are that petitioner was initially appointed a "Valveman" on 30.6.1967 in the pay scale of Rs.75-1-85-2-95 which was revised to Rs.210-4-226-EB-4-250-5-290 on the basis of Third Pay Commission in the year 1993. The petitioner was promoted in the year 1976 to the post of Pipe Fitter but he claims to not have been given any financial upgradation on the basis of the Third Pay Commission report as the pay scale of Valveman was equivalent to the pay scale of Pipe fitter. It was subsequently noticed that revision of the pay scale done in 1973 was incorrect and therefore an expert classification committee was constituted and in view of the report thereof the pay scale was revised to Rs.260-400 in 1991. On 24.2.2003 the petitioner was given first financial upgradation in the pay scale of Rs.4000-6000, however, the respondent has treated the same as second financial upgradation with a view that the promotion of the petitioner from the post of Valveman to Pipe Fitter was the first promotion, hence the upgradation in pay scale Rs.4000-6000/- shall be constituted as second upgradation under ACP Scheme. Being aggrieved the petitioner met the respondents personally and pointed out that it should be First Financial Upgradation and not Second Financial Upgradation. Since there was no response, the petitioner made a representation on 19.10.2004 to the CWE and respondent No.3 requesting that the order dated 24.2.2003 be modified to First Financial Upgradation. The representation of the petitioner has been rejected by the respondents observing that on implementation of three grade structure pay of Pipe Fitter of grade 210-290 to 260-400 has been considered as first financial upgradation. Since there was no response, the petitioner filed the O.A.

Lastly the contention of the petitioner is that the implementation report of classification committee was a revision of pay in pay scale from Rs.210-290 to 260-400 and was for the both post Pipe Fitter and Valveman, hence does not constitute any financial upgradation. In this regard the Government of India Department of Personnel and Training has issued a clarification dated 10.2.200 that if the feeder and promotional posts are on the same pay scale, the benefits under ACP scale to be allowed ignoring the said promotion.

Per contra learned for the respondents has submitted that since the pay scale of ''Valveman' and ''Pipe Fitter' was separated by circular dated 15.10.1984 (Annexure SA 1 to the supplementary affidavit dated 6/7.11.2008) the job of Pipe Fitter has been upgraded and placed in the skilled grade in the pay scale of Rs.260-400 while the job of Valveman is referred in the semi skilled grade in the pay scale of Rs.210-290. Therefore,the petitioner was provided financial upgradation also along with the post of Pipe Fitter prior to introduction of A.C.P. schemes hence the petitioner was entitled for second upgradation only in the pay scale of Rs.4000-6000 and not Rs.5000-8000. He placed reliance of judgment of the Supreme Court in the case of Tarsem Singh and another vs. State of Punjab and others, (1994)5SCC 392, contending that it is well settled principle of law that the promotion is understood under the service law jurisprudence as advancement in rank, grade or both . Therefore in view of this aspect also petitioner was admittedly benefitted with the advancement in the rank being promoted to the post of Pipe Fitter from the Volveman in the upgrade post being different and higher pay scale of skilled grade in comparison to the pay scale of semi skilled grade. Hence his claim of Rs.5000-8000 is highly misconceived and is liable to be rejected by this Court. He further placed reliance of the judgment in the case of Hindustan Lever Limited and the Workan, reported in 1973(2)F.L.R.398, contending that in the present case the respondent department has rightly fixed to the petitioner in the pay scale of Rs.4000-6000 and this was found correct in view of the admitted position on the record of the case by the learned court below, therefore, the writ petition deserved to be dismissed.

After hearing counsel for the parties and on perusal of record, the moot point for consideration before this Court is that in the facts and circumstances of this case, whether the promotion of the petitioner to the upgraded post of Pipe Fitter (Skilled grade) in pay scale 260-400, which prior to its separation and upgradation vide circular dated 15.10.1984 was in the same pay scale as that of Valveman (semi-skilled) in pay scale of Rs.210-290 could be termed as "financial upgradation under the 'ACP Scheme'.

Admittedly both the posts were in same pay scale prior to 15.10.1984, under which two "financial upgradation" were to be granted to the eligible employees. The petitioner having been provided the post of Pipe Fitter prior to to the introduction of ACP Scheme cannot be said to have been provided 'financial upgradation' under the said scheme;From the records it is clear that he has been granted only one 'financial upgradation' after the ACP Scheme was introduced i.e. to say that his pay/salary under the scheme has increased once though he was eligible for two such financial upgradation.

From the clarification issued by the Government of India also, it is evident that if the feeder and the promotional posts are in the same pay scale the benefits under the ACP Scheme has to be allowed ignoring the promotion.

The case laws cited by the respondents are therefore clearly distinguishable.

For all the reasons stated above the writ petition succeeds and is allowed with costs of Rs.20,000/- in view of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India and others, AIR 2005 (SC) 3353

The orders dated 17.12.2004 passed by respondent Nos.1 and dated 31.7.2008 passed by respondent No.2 are quashed.

The respondents are directed to grant second "financial upgradation to the petitioner under the ACP Scheme with all consequential benefits to him after fixing his pay in the pay scales of Rs.5000-8000 from 1.1.1996 with interest @ 6% p.a. till the date of actual payments.

The order to be complied with by the respondents within three months from today.

No orders as to cost.

Dated: 12.4.2012

AKJ