Bombay High Court
Union Of India vs Vijay R Sawant on 24 July, 2025
Author: M. S. Karnik
Bench: M. S. Karnik, N. R. Borkar
2025:BHC-AS:31336-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2031 OF 2025
1. Union of India
Through Secretary, Ministry of Home Affairs,
Government of India, North Block,
New Delhi - 110011
2. The Registrar General India
Government of India,
Ministry of Home Affairs,
2A, Man Singh Road,
New Delhi - 11011
3. The Director of Census Operations,
Maharashtra State, Exchange Building,
Sir Shivsagar Ram Gulam Marg,
Ballard Estate, Mumbai - 400032.
4. The Director
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pension,
North Block, New Delhi 110 001. ..Petitioners
vs.
Mr. Vijay R. Sawant
Age:67 years,
Data Entry Operator Grade 'B' (Retd.),
Directorate of Census Operation,
D.D.E. Unit (Maharashtra),
Devidayal Road, T. Ward,
Mulund (W), Mumbai-400 080.
(R/at-37/891, Adarsh Nagar, Worli
Mumbai 400 030. ..Respondent
------------
Adv. Abhijeet A. Joshi, for the Petitioner.
Adv. Annie Nadar a/w Adv. Olivil Nadar, for the Respondent.
------------
PMB 1
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CORAM : M. S. KARNIK &
N. R. BORKAR, JJ.
DATE : 24th JULY, 2025
ORAL JUDGMENT (PER M. S. KARNIK, J.):
1. Not on board. Taken on board.
2. The challenge in this Petition is to the order of the
Central Administrative Tribunal, Mumbai Bench, Mumbai
("the Tribunal", for short) dated 18 th April 2024. The
Respondent had filed the Original Application No.392 of
2020 for the following reliefs :-
"(a) To allow the Original Application,
(b) To be pleased to call for the records and
proceedings/deliberations with the DoPT which led to
the passing of the impugned order dated
01/09.08.2016 passed by the Respondents and after
going through its propriety, legality and constitutional
validity be pleased to quash and set aside the same.
(c) To direct the Respondents to grant the applicant
the 2nd financial upgradation under ACP Scheme on
completion of 24 years of service with effect from
05.03.2006.
(d) To direct the Respondents to grant the Applicant
the enhanced scale of pay in PB - 3 + Grade Pay
Rs.5400/- w.e.f. from the date she completed 24 years
of service under the ACP Scheme and further grant her
the scale of PB - 3 + Rs.6600/- as 3 rd financial
upgradation under the MACP Scheme upon completion
of 30 years of service.
(e) To direct the respondents to re-fix the pay of the
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applicant and to grant full benefits and consequential
benefits of the same, i.e., Pay Fixation, Pension
Fixation, Arrears of pay and allowances, arrears of
pension, etc. along with interest thereon at the rate of
18% p.a. from the date till the actual payment.
(f) To allow the O.A. with exemplary costs.
(g) Pass such other directions/orders as this Hon'ble
Tribunal may deem fit and proper to meet the ends of
justice."
3. The Tribunal by the impugned order allowed the
Original Application and issued the following directions :-
"i. The impugned Memorandum dated
01/09.08.2016 (Annexure A-1) is set aside;
ii. The respondents are directed to consider the
claim of the applicants grant of the 2 nd financial
upgradation under ACP Scheme on completion of 24
years of service by the applicants and also consider
the case of the applicants for enhancement of their
scale of pay in PB-3+ Grade Pay Rs. 5400/- w.e.f. the
date they have completed 24 years of regular service
as per the provisions of the ACP Scheme and also
their claim of grant of pay scale of PB-3 + Grade Pay
Rs.6600/-, as 3rd Financial Upgradation under the
MACP Scheme upon completion of 30 years of
service;
iii. The applicants shall be entitled to all
consequential benefits i.e. Pay Fixation, Pension
Fixation, Arrears of pay and allowance, arrears of
pension, arrears of gratuity, Leave Encashment and
other retiral dues, etc. in accordance with the relevant
rules on the subject;
iv. The applicants shall also be entitled for interest
on arrears of pension and other retiral dues
accordingly at the rate as applicable to the GPF;
v. The respondents shall comply with the aforesaid
directions as expeditiously as possible and preferably
within 10 weeks of receipt of a copy of this Order."
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4. Briefly stated, the Respondent was appointed as a
Data Entry Operator on 22nd February 1982. The Assured
Career Progression Scheme ("ACP Scheme" for short) was
brought in the force in 1999. As the Respondent had
completed 12 years on 22nd February 1994 the first benefit
upon completion of 12 years of the ACP Scheme was
granted to the Respondent on 22nd February 1994. The
Respondent then was given the second benefit of the ACP
Scheme on 22nd February 2006 on completion of 24 years of
service.
5. The Petitioner - Union of India created certain
temporary posts of Assistant Director (Data Centre) in
2000/2001. The posts were later made permanent.
6. The Respondent approached the Tribunal seeking
benefits of the Circular dated 15th April 2015. The said
Circular reads thus :-
"Sub:- Grant of 2nd ACP to D.E.Os. Gr. 'B' & Senior
Supervisors - reg.
Sir/Madam,
I am directed to refer to DOPT/DOE clarification
No.ID No.1052410/14 CR dated 9.03.2015 & MOF
(Expenditure) No.50129/50(E-III-A)/2015 dated
8.04.2015 on the subject cited above and to say that
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the matter of grant of 2 nd ACP between the period from
01.01.2006 to 31.08.2008 has been considered in
consultation with the nodal authorities concerned, it is
stated that the officials i.e. D.E.Os. Gr.'B' and Senior
Supervisors who were allowed 2nd ACP between the
period from 01.01.2006 to 31.08.2008 in PB-2
Rs.9300-34800/- + GP Rs.4600/- are eligible to draw
the 2nd ACP in their Promotional hierarchy to the post
of AD(DC) in PB-3 Rs.15600-39100+GP Rs.5400/-
w.e.f. their respective dates.
2. You are, therefore, requested to send the
fresh/revised proposals (format enclosed) of such
employees for granting 2nd ACP to them in PB-3
Rs.15600-39100+GP Rs.5400/- w.e.f. their respective
dates."
7. Mr. Joshi, learned counsel for the Petitioner-Union
of India submitted that by virtue of the said circular the
benefits of the 2nd ACP was revised. However, according to
him the said revised benefits of the 2 nd ACP was to be
granted only to those Data Entry Operators Grade 'B' and
Senior Supervisors who are allowed the 2 nd ACP between
the period from 1st January 2006 to 31st August 2008 to the
post of Assistant Director (Data Centre). Mr. Joshi submitted
that the benefits of this revised ACP was to be granted in
view of the G.S.R. 138 dated 15th April 2002 in terms of
schedule to only those Assistant Director (Data Centre) who
possess the necessary educational qualifications. Inviting
our attention to Clause 9 of the schedule it is submitted that
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the Data Entry Operators must possess a degree in
Statistics/Mathematics/ Operation Research / Physics /
Economics/Commerce/ Computer Application of a
recognised University or equivalent if they are to avail of
the benefit of the revised ACP. Mr. Joshi submits that had
the Respondent required the educational qualification in
terms of what is provided in Column 9 of the schedule, the
Respondent could have been granted the benefit of the
revised ACP. However, the Respondent admittedly does not
possess the educational qualification of the post of Assistant
Director (Data Centre) and therefore the benefit of the 2 nd
revised ACP cannot be granted to the Respondent. Mr. Joshi
submits that the Tribunal fell into error in allowing the
Original Application filed by the Respondent on
misconstruction of the circular dated 15 th April 2015. It is
further pointed out by Mr. Joshi that the Patna Bench of the
Tribunal has in similar circumstances in Original Application
No.456 of 2013 by the judgment and order dated 23 rd
February 2017 has taken a view that for availing the benefit
of the ACP Scheme an employee has to fulfill all the norms
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of promotion for getting ACP. He submits that the Patna
Bench of the Tribunal observed that the ACP does away with
the need for having regular posts, but it does not do away
with the requirement of fulfilling the promotion norms. Mr.
Joshi submits that this order of the Tribunal was challenged
by the employees before the High Court of Judicature at
Patna. By the order dated 1st August 2017 the Writ Petition
filed by the employees was dismissed thereby confirming
the order passed by the Tribunal Bench at Patna. In this
view of the matter Mr. Joshi submits that the Respondent is
not entitled to the financial upgradation.
8. In effect, it is the contention of Mr. Joshi that for
availing of the revised 2nd ACP, the Respondent must
possess the necessary educational qualifications required
for promotion to the next higher post as prescribed, which
admittedly the Respondent does not possess.
9. On the other hand, learned counsel for the
Respondent invited our attention to the findings of the
Tribunal in support of her submissions.
10. Heard learned counsel for the parties.
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11. Having considered the entire materials on record,
we are of the opinion that the order passed by the Tribunal
does not call for any interference. Admittedly the
Respondent does not possess the necessary educational
qualifications required for promotion to the next higher
post. The Respondent has however completed the requisite
number of years required for grant of benefits under the
ACP Scheme. By virtue of the circular dated 15th April 2015
the revised benefits were provided for the post of Assistant
Director (Data Centre). The question in the present case is
whether the qualification prescribed for promotion to the
next higher post of Assistant Director (Data Centre) from
that of Data Entry Operators Grade 'B' and Senior
Supervisors is necessary even for the purpose of extending
the revised benefits of ACP. To answer this question we
draw support from the decision of the Hon'ble Supreme
Court in Amresh Kumar Singh and Ors. vs. The State of
Bihar and Ors. It is profitable to reproduce the relevant
observations from paragraph 8 to 19 which read thus :-
"8. Upon hearing the rival contentions of the
parties, the sole question which arises for our
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reconsideration in these appeals is whether the
qualification of graduation prescribed for promotion
to the next higher post of Accounts Officer from that
of Accounts Clerk is necessary even for the purpose
of extending the benefit of ACP.
9. The Bihar Accounts Service Rules, 2000 as
notified on 28th March, 2000 vide Rules 17 and 20
read with Schedule I thereof provides for recruitment
by way of promotion. The aforesaid Rule 17, inter
alia, provides that for promotion on the basis of
grade of service, candidates must possess
qualifications mentioned in Schedule I which, inter
alia, provides that for promotion to Bihar Accounts
Service, the minimum educational qualification shall
be graduation.
10. At the same time Bihar State Employees
Service Condition (Assured Career Progression
Scheme) Rules, 2003 vide sub-Rule (5) of Rule 4 lays
down that if the Rules prescribe passing of the
departmental examination or any qualification for
promotion that shall also be an essential condition
for sanction of benefit under the scheme. In other
words, possession of essential qualification
prescribed under the Rules is necessary for grant of
benefit under the scheme, i.e., ACP.
11. It is in view of the above rules, the contention
of the State is that until and unless the Accountant
Clerks possess the minimum educational
qualifications of graduation, they are not entitled to
promotion in the grade of Bihar Accounts Service
that is the Accounts Officer.
12. It may be worth noting that the ACP
scheme was enforced on the recommendation of the
Fifth Central Pay Commission in context with Group
and D employees and it provided monetary benefit to
the employees on completion of 12 years and 24
years of regular service who were not able to get
promotion. The scheme as such was anti-stagnation
and envisages merely placement of the employees in
the higher pay scale for the grant of financial
upgradation only without grant of actual promotion.
The benefit of the ACP as such is like granting non-
functional in situ promotion.
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13. At the cost of repetition, it must be borne in
mind that the object of ACP is to avoid stagnation
where no promotional avenues are available. The
grant of ACP is not technically a grant of promotion
but increase in the pay scale to the next higher grade
retaining the employee on the post held by him. This
is only to accord monetary benefit without disturbing
any seniority or actually effectuating promotion to
any higher post to avoid stagnation on a particular
post or pay scale for a very long period.
14. The object and purpose of ACP/MACP
Scheme has been reiterated by this Court in Union of
India and Ors. v. C.R. Madhava Murthy and Anr.
MANU/SC/0426/2022 : (2022) 6 SCC 183, as one to
relieve the frustration on account of stagnation and it
does not involve actual grant of promotional post but
merely monetary benefits in the form of next higher
grade subject to fulfilment of qualifications and
eligibility criteria.
15. In sum and substance, both ACP and MACP
Schemes are schemes devised with the object of
ensuring that the employees who are unable to avail
of adequate promotional opportunities, get some
relief in the form of financial benefits. Accordingly,
the schemes provide for regular financial upgradation
on completion of 12-24 years and 10-20-30 years of
service without promotion. They are incentive
schemes for the employees who complete a
particular period of service but without getting
promotion for lack of promotional avenues. The
effect of the schemes must be judged keeping in
view the object and the purport of the scheme.
16. In Union of India and Anr. v. G. Rajanna
and Ors. reported in MANU/SC/8202/2008 : (2008)
14 SCC 721, the three-Judges Bench of this Court
held that in situ promotions are made to remove
stagnation of grade C and grade D employees by
giving them certain monetary benefits.
17. It was further observed that fulfilment of
educational qualifications prescribed under the
recruitment rules for the purposes of promotion are
not necessary for non-functional in situ promotion. In
other words, educational qualification required for
the purposes of promotion is not necessary for the
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grant of in situ promotion, i.e., only for extending the
monetary benefit where there are no promotional
avenues and the employees are likely to be
stagnated.
18. In the aforesaid case, the employees were
working as malis (Gardeners) and had claimed
promotion in the higher pay scale. The Central
Administrative Tribunal seized of the original
applications observed that the employees cannot
claim the scale of the next higher post by way of in
situ promotion. On the matter being taken to the
High Court by way of a writ petition, the contention
of the employees was accepted and it was observed
that the object of in situ promotion on non-functional
posts, is to ensure that the group C and D employees
are not stagnated in the same cadre/pay scale and
that they should be provided with certain monetary
benefits. Therefore, the rejection of the claim for
such non- functional in situ promotion on the ground
that the employees do not possess the necessary
minimum qualification of matriculation as per the
Rules is not justified and renders the order erroneous
in law. The view so taken by the Division Bench of
the High Court was affirmed by this Court in the
above referred Civil Appeals holding that the High
Court has correctly analysed the object of the in situ
promotion and fixation of pay scales to Group C and
D employees to avoid stagnation.
19. In view of the aforesaid legal position coupled
with the fact that the qualification of graduation
prescribed is for the promotion to the post of
Accounts Officer rather than for the grant of in situ
promotion on the non-functional post or for
extending the benefit of ACP which is purely and
simply in the nature of grant of monetary benefit
without actually effectuating any promotion to any
higher post, we are of the opinion that the judgment
and order of the Division Bench of the High Court
impugned in the appeals cannot be sustained. It is
accordingly hereby set aside and that the judgment
of the writ court dated 28.11.2017 is restored. The
appellants are extended the benefit of ACP, as
directed by the writ court."
12. Mr. Joshi, learned counsel made an attempt to
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distinguish the decision of the Hon'ble Supreme Court in
Amresh Kumar Singh and Ors. (supra). It is his submission
that the said decision is not applicable in the present facts
because the Respondent was already granted the benefit of
the 2nd ACP. He submits that the issue as regards the grant
of the revised 2nd ACP was not the question before the
Hon'ble Supreme Court. This according to Mr. Joshi is the
distinguishing feature and hence the decision relied upon by
the learned counsel for the Respondent has no application
in the present facts.
13. We are not in agreement with the submission of Mr.
Joshi. In our opinion the decision of the Hon'ble Supreme
Court in Amresh Kumar Singh and Ors. (supra) will apply
even to a case where the question is of grant of benefit of
the 2nd revised ACP. It is just that the benefits have been
revised and once the Respondent is held entitled to the
benefit of 2nd ACP benefit, there is no justification to deprive
him the benefits of revised ACP. The observations in Amresh
Kumar Singh and Ors. (supra) squarely apply in the present
case.
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14. Learned counsel for the Respondent has relied upon
the decision of the High Court of Delhi in Union of India
and Ors. vs. Dharampal Singh and Ors. decided on 28th
February 2024 in W.P.(C) 2925 of 2024. The Delhi High
Court was also considering the case of an employee who
was not fulfilling the qualification for promotional post of
Assistant Director (Data Centre) as in the present case. The
Delhi High Court after relying on the observations of the
Hon'ble Supreme Court in Amresh Kumar Singh and Ors.
(supra) held thus :-
"7. From a perusal of the aforesaid, what emerges
is that the Apex Court has in Amresh Kumar Singh &
Ors. (supra) categorically held that for the purposes
of grant of financial upgradation under the ACP
scheme, an employee is not mandatorily required to
possess the qualification prescribed for the
promotional post. Learned counsel for the petitioner
has vehemently contended that since the
respondents do not possess the requisite
qualifications as per the Recruitment Rules for
promotion to the post of Assistant Director (Data
Science), the post vis-a-vis the benefit of second
ACP was to be extended to them, the petitioners
were justified in not extending benefits of the same
to them.
8. In our view, once the Apex Court categorically
held in Amresh Kumar Singh & Ors. (Supra) that
financial upgradation under the ACP scheme can be
granted even to an employee, who does not possess
the qualifications prescribed for the promotional
post, we have no option but to dismiss the present
petition.
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9. The petition is, accordingly, dismissed with no
orders as to costs."
15. We are in respectful agreement with the view taken
by Their Lordships of the Delhi High Court in Union of India
and Ors. vs. Dharampal Singh and Ors. (supra). Once we
are of the view that the decision in Amresh Kumar Singh
and Ors. (supra) covers the present controversy, we are not
persuaded to accept the view of the Patna High Court which
decision was rendered prior to Amresh Kumar Singh and
Ors. (supra).
16. We therefore do not find any merit in this Writ
Petition. The Writ Petition is dismissed.
(N. R. BORKAR, J.) (M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 28/07/2025 12:15:20
