Union Of India And 3 Others vs Om Prakash
2023 Latest Caselaw 25716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183478-DB
 
Court No. - 39
 

 
Case :- WRIT - A No. - 1461 of 2014
 

 
Petitioner :- Union Of India And 3 Others
 
Respondent :- Om Prakash
 
Counsel for Petitioner :- S.K. Misra,Chandra Bhushan Singh
 
Counsel for Respondent :- Basu Dev,Sanjiv Singh
 

 
Hon'ble Saumitra Dayal Singh,J.

Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri S.K. Misra along with Sri Chandra Bhushan Singh, learned counsel for the Union of India and Sri Basu Dev, learned counsel for the private respondent.

2. The present writ petition has been preferred by the Union of India against the order of the Central Administrative Tribunal, Allahabad Bench, Allahabad dated 1.10.2013 arising from O.A. No. 919 of 2010 (Om Prakash vs. Union of India and others). By that order the learned Tribunal has allowed that Original Application and quashed the departmental order dated 27.4.2010 refusing to grant the benefit of Assured Career Progression Scheme (ACP in short) from the date 9.8.1999 i.e. the date from when the ACP Scheme was enforced. Further, a positive direction has been issued to the Union of India to give effect to that order within a period of three months.

3. The facts are not in dispute. The respondent was appointed on the post of Civilian Telecommunication Mechanic in March, 1963 in the Corps of Electrical, Mechanical and Electronics (EME in short). He obtained the age of superannuation on 31.7.2004. He was not granted any promotion during the entire length of his service. In that regard it is also a fact, the respondent had earlier appeared at the trade test to seek promotion on a supervisory post. However, he failed to qualify the same. Later, the ACP Scheme was introduced w.e.f. 9.8.1999. The first trade test was conducted thereafter on 19.7.2001. He cleared that test. Accordingly, in terms of Clause-2 of the DoPT Circular dated 4.1.2002, he claimed entitlement to ACP w.e.f. 9.8.1999 itself. That claim was repelled by the departmental authorities. Upon the matter being carried to the Tribunal, the learned Tribunal allowed the Original Application on the reasoning that the first trade test, held by the petitioner Union of India after promulgation of the ACP Scheme, was on 19.7.2001. The petitioner, having qualified the same, he was entitled to grant of ACP benefits w.e.f. 9.8.1999, in terms of the DoPT Circular.

4. Upon the present petition being filed, it was initially dismissed by the following order dated 10.1.2014:-

"Union of India through Defence Secretary along with other petitioners has filed this writ petition against the order of the Central Administrative Tribunal, Allahabad Bench, Allahabad dated 01.10.2013 made in Original Application No. 919 of 2000 wherein the Tribunal, after examining the provisions of the Assured Career Progression Scheme as notified by the Government of India under Office Memorandum dated 09.08.1999 read with the relaxation provided under the Circular of Ministry of Defence dated 04.01.2002, has gone on to hold that on a reading of the scheme along with the clarificatory circular of the Ministry of Defence, an incumbent who clears the first trade test held subsequent to 09.08.1999, he would become entitled for grant of first up-gradation from 09.08.1999. Meaning thereby all such employees who clear the first trade test held after 09.08.1999 and are successful therein would become entitle to grant of first up-gradation from 09.08.1999 and not from the date of passing of the test. With regard to the employees who are not successful in the first trade test held after 09.08.1999 and are successful in subsequent tests namely second, third tests etc. held after 09.08.1999, they will not be entitled to the grant of first up-gradation from the back date i.e. 09.08.1999.

The Tribunal has proceeded to hold that since the applicant Om Prakash had passed the first trade test held after 09.08.1999, he is entitled to grant of first up-gradation from 09.08.1999 itself in terms of the clarificatory circular of the Ministry of Defence.

We have examined the Scheme as well as the Clarificatory Circular of the Ministry of Defence. We are of the considered opinion that the reading of the clarificatory circular along with the scheme as done by the Tribunal is absolutely correct. No case for interference is made out.

Writ petition is dismissed."

5. The Union of India carried the matter to the Supreme Court in Civil Appeal No. 6441 of 2017, Union of India & Ors.vs. Om Prakash. It was allowed by following order dated 4.5.2017:-

"Heard learned counsel for the parties.

Leave granted.

It is submitted that judgment relied on by the High Court has been set aside by the High Court itself. And special leave petition against that judgment had also been dismissed by this Court.

Learned counsel has referred to the decision in the The Controller General of Defence Accounts vs. K.S. Balyan decided on 20.12.2010 by the High Court of Delhi at New Delhi and the order passed by this court dismissing special leave petition against High Court's judgment in K.S. Balyan vs. Controller General of Defence Accounts decided on 18.07.2011. In the circumstances, we set aside the impugned order passed by the High Court and remit the case to the High Court for decision afresh as the respondent is not present before us.

High Court is requested to re-decide the matter in accordance with law.

The appeal is allowed to the aforesaid extent."

6. Since the order of the Supreme Court relies on the reasoning given in the order of the division bench of Delhi High Court in The Controller General of Defence Accounts vs. K.S. Balyan; WP (C) No. 18774 of 2004 decided on 20.12.2010, it would be useful to extract the reasoning of that order of the Delhi High Court. In that case the trade test described as SAS Examination, were disclosed to have been held in November 1999, September 2000, September 2001 and April 2002. It was found that the respondent therein did not take part in any of the examinations except the last, held in April, 2002. Yet, the Tribunal (in that case) granted the benefit of ACP to the respondent w.e.f. 9.8.1999. In those facts the Delhi High Court reasoned as below:-

"10. Undisputably the requisite exam to be cleared i.e. the SAS departmental exam was held by the Department in November 1999, September 2000, September 2001 and thereafter in April 2002. Admittedly, the respondent never took the examination held in November 1999, September 2000 and September 2001.

11. It is apparent that in para 6 of the impugned order dated 3.6.2004 the Tribunal has wrongly held that after 9.8.1999, undisputedly the next SAS examination was held in the year 2002. Thus, the Tribunal has concluded that the first attempt available and taken by the respondent to clear the SAS examination was in April 2002 and for said reason, as clarified vide para 2 of the clarificatory memorandum noted in para 8 above, respondent was entitled to the benefit with effect from 9.8.1999.

12. Since the fact on which the Tribunal has adjudicated the issue has been wrongly noted by the Tribunal the inevitable conclusion has to be the setting aside of the impugned order dated 3.6.2004."

7. It is a fact that the decision of the Delhi High Court in K.S. Balyan (supra) attained finality upon dismissal of the Special Leave Petition on 18.07.2011. At the same time dismissal simpliciter, of that Special Leave Petition did not given rise to any law laid down by the Supreme Court. That principle is far too well settled, to allow for any doubt to arise. It also does not commend any elaboration. It is as clear as daylight.

8. Having heard the learned counsel for the parties and having perused the record, we find that the order of the Delhi High Court is wholly distinguishable on facts. We also find ourselves in complete agreement with the view expressed by the coordinate bench of this Court in the earlier order dated 10.1.2014. However, since the distinction exists in the facts of the present case from those that obtained in the case of K.S. Balyan (supra) and that distinction of facts has remained from being pointed out to the Supreme Court when the present proceedings came to be remitted to this Court, we deem it appropriate to elaborate on the issue. We may note, in K.S. Balyan (supra), at least three consecutive trade tests had been held after the introduction of the ACP Scheme. That petitioner did not qualify any of those tests. He qualified at the fourth trade test held in April 2002. Here, the respondent has qualified in the first trade test held after the enforcement of the ACP Scheme.

9. The ACP Scheme was introduced on 9.8.1999 vide Office Memorandum No. 35034. The introductory clause as also Clause-3 and 3.1 thereof read as below:-

"Subject:- THE ASSURED CAREER PROGRESSION SCHEME FORTHE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES.

The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be 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. Accordingly, after careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder:-

3. GROUP 'B', 'C' AND 'D' SERVICES/POSTS AND ISOLATED

POSTS IN GROUP 'A', 'B', 'C' AND 'D' CATEGORIES

3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group 'C' and 'D' employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I."

10. Prior to the introduction of the ACP Scheme, the EME Record Office Instructions that governed the grant of promotion applied to the respondent. In that, for the purpose of grant of promotion to the post Chargemen, that was a supervisory post, the Tradesmen were required to (i) hold Q.P./Permit in any trade, (ii) have 8 years of service as cadre Tradesmen and (iii) should have passed the supervisory test. Clause-3 of the EME instructions read as below:-

"3. The maximum chances permitted for Supervisory test are three and, therefore, Tradesmen who have already appeared thrice for Supervisory test are not eligible."

11. However, upon introduction of the ACP Scheme, a doubt arose as to the date from which the benefit of ACP was to be granted i.e. whether from 9.8.1999 or from the date when the eligible Tradesmen may clear the trade test, after the introduction of the ACP Scheme. That doubt was cleared by the relevant DoPT Circular. The same has also been referred to by the Delhi High Court in the case of K.S. Balyan (supra). It reads as below:-

"Subject: Clarification regarding grant of ACP after passing the Trade Test

A reference was sent to DOP&T for one time relaxation from passing of Trade Test for granting ACP from 09.8.99 i.e. date of implementation of ACP scheme if the employees are otherwise eligible.

2. DOP&T has clarified that as a special case the employees who qualify the trade test in first attempt after 9.8.99 may be allowed benefit of ACP from 9.8.99 only and not from the date of passing of trade date. However, employees who qualify in the trade test in subsequent attempts will be allowed financial upgradation only from the date of passing of trade test. In no case, the benefit should be given to an individual w.e.f. 09.8.99, who had earlier appeared in the Trade Test before 09.8.99 but failed or has not appeared in trade test at all or has not otherwise passed the trade test.

3. In future, the required trade test should be held well in time as per planned calendar so that it is held before an employees completes 12/24 years of service for grant of financial upgradation under ACPS."

12. Thus even before the introduction of the ACP Scheme there existed a promotional post for which the trade test was prescribed. Qualifying that test was a mandatory condition to avail the promotion. Only three attempts were permitted to an eligible Tradesman. Upon successive failure at all three attempts, the Tradesman was to lose his right to promotion.

13. That such a contingency itself may have created obtuse stagnation or hardship forcing a Trademan - to work the entire length of his service on the same post without promotion and without any financial benefit.

14. Seen in that light, the submission being advanced by Sri S.K. Misra that the ACP Scheme was confined to other hardships where a Tradesman may not have been offered promotional post for reason of absence of vacancy, appears to be too farfetched and unfounded (in law), to accept. There is not a whisper of such hardship perceived by the Union as may have persuaded it to introduce the ACP Scheme. The Scheme does not define the hardships or the conditions where the benefit of the ACP Scheme may be granted or denied, based on the existence or otherwise of vacancies before the ACP Scheme was introduced. The Scheme also does not limit the expression "obtuse stagnation" or "hardship" to be limited only to cases where a duly qualified Tradesman may not have been granted promotion though he was eligible to the same in every sense i.e. where he may have cleared the trade test also.

15. Then, it was also the admitted case of the Union before the Tribunal that the respondent had taken only one attempt at the trade test i.e. the first trade test held after the introduction of the ACP Scheme. Having been allowed to take four attempts at the trade test that was visibly contrary to the preexisting EME Instructions and having been granted the benefit of the success achieved at the fourth attempt, it does not lie with the Union to now contend that the respondent would be granted the benefit of the ACP Scheme only from the date of his clearing the trade test. If the past conduct of the respondent was meant to be relevant and could be examined to test his eligibility to the ACP, he would not have been permitted to appear at the trade test on his fourth attempt. Clearly, the past events that occurred prior to the introduction of the ACP Scheme were never intended to have any relevance to the benefits under the ACP Scheme.

16. Even otherwise, a plain reading of the clarification issued by the DoPT itself makes it clear that the benefit of the ACP Scheme would accrue to a Tradesman from 9.8.1999, subject to the condition that he clears the first trade test conducted after that date. To that there is no dispute between the parties that after the introduction of the ACP Scheme, the trade test relevant to the respondent (who was working on the post of Civilian Telecommunication Mechanic) was first conducted on 19.7.2001. No such test was conducted between 9.8.1999 and 19.7.2001.

17. The Tribunal has categorically found that this was the first trade test conducted by the Union after the introduction of the ACP Scheme. In absence of any challenge to the correctness to that fact finding recorded by the Tribunal, the entire edifice of the case being set up by the Union, falls.

18. That essential fact also distinguishes the present case from the facts obtaining in the case of K.S. Balyan (supra). As noted above, in that case three trade tests had been conducted after the introduction of the ACP Scheme. The respondent therein failed to appear at any of those tests. He appeared and cleared the fourth test. Such a case would clearly fall in the last part of the clarification issued by the DoPT vide paragraph-2 (quoted above). Since K.S. Balyan failed to appear at any of the earlier three trade tests conducted after introduction of the ACP Scheme, for the purpose of granting him the eligibility to ACP, he lost his right to be granted that benefit w.e.f. 9.8.1999.

19. In other words the critical fact that would decide the rights of the present respondent is whether he cleared the first trade test conducted after the introduction of the ACP Scheme. Since there is no dispute to the fact that the first trade test after the introduction of ACP, was held on 19.7.2001 and since it is also not in dispute that the respondent cleared the same, he remained entitled to that benefit w.e.f. 9.8.1999 and not the date of clearing that test.

20. Thus, we find no error in the order of the Tribunal.

21. Accordingly, the writ petition is dismissed. No order as to costs.

Order Date :- 21.9.2023

Vandana

(Arun Kumar Singh Deshwal,J.) (Saumitra Dayal Singh,J.)