Deepak Kumar vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2151 Del

JUDGMENT

Manmohan Sarin, J

1. Petitioner has filed this petition assailing the judgment dated 21.4.2002 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in OA No. 1221 of 2001. By the said judgment, the Tribunal dismissed the OA of the petitioner holding that after having been considered by the screening committee and having been declared unfit for grant of financial upgradation under ACP Scheme, the petitioner has no case to claim upgradation as a matter of right.

2. Petitioner had also challenged para 5 of OM dated 9.8.1999 and para 6 of Annexure 1 of the said OM, as being violative of Articles 14, 16 and 21 of the Constitution of India. This challenge also failed before the Tribunal.

3. Facts culminating into filing of the writ petition are noted below:

4. Petitioner was commissioned as an officer in the Indian Army through the Short Service Commission on 11.3.1972. He was released on 22.7.1977. Thereafter he was selected through UPSC in the Army Ordinance Corps as "Ordinance Officer (Civilian) (Stores)" on 10.8.1978.

5. During the course of service in 1997, petitioner suffered a paralytic attack, for which he received treatment at Ram Manohar Lohia Hospital, New Delhi. On partial recovery he resumed his service. He is partially disabled and his treatment still continues.

6. The Fifth Central Pay Commission vide para 22.29 of part II of its report recommended the introduction and formulation of the Assured Career Progression Scheme (ACP Scheme). This was for the purpose of removing stagnation as well as to give financial upgradation to the employees working with the Government of India without any promotion for a long time. Annexure 22.1 of the report gives the basic features of the ACP Scheme. The first salient feature stated as follows:

Every employee, recruited in a particular grade/scale of pay shall be allowed to move to his respective and specified higher scales on completion of specified period of residency in the lower pay scale, subject to the fulfilllment of usual norms of promotion. If this involves passing of a trade or departmental test or acquisition of higher qualifications, that pre-requisite would have to be fulfillled before the benefit of ACP is given.

7. Government of India, through the Department of Personnel and Training, issued OM No. 35034/1/97-Estt(D) dated 9.8.1999 to introduce the ACP Scheme. The said OM provided that after completion of 12 years of regular service, a financial upgradation shall be granted subject to certain conditions. Another upgradation would be granted after another 12 years. Para 5 of the OM dated 9.8.1999 reads as follows:

Vacancy based regular promotions, as distinct from financial upgradation under the ACP Scheme, shall continue to be granted after screening by a regular Departmental Promotion Committee as per relevant rules/guidelines.

It would also be worthwhile to reproduce para 6 of the said OM for facility of reference:

Screening Committee:

6.1 A Departmental Screening Committee shall be constituted for the purpose of processing the case for grant of benefits under the ACP Scheme.

6.2 The Composition of the Screening Committee shall be the same as that of the DPC prescribed under the relevant Recruitment/service Rules for regular promotion to the higher grade to which financial upgradation is to be granted. However in cases where DPC as per the prescribed Rules is headed by Chairman/Member of the UPSC, the screening committee under the ACP Scheme shall, instead, be headed by the Secretary or an officer of equivalent rank of the concerned Ministry/Department. In respect of isolated posts, the composition of the Screening Committee (with modification as noted above, if required) shall be the same as that of the DPC for promotion to analogous grade in that Ministry/Department.

6.3...

8. The conditions for grant of the upgradation as stipulated in Annexure 1 of the OM dated 9.8.1999, included the following:

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5.1 Two financial upgradations under the ACP Scheme in the entire government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast track promotion availed through limited departmental examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by the employees. If the employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him.

5.2 Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit.

6. 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 restrictions 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 (eg. invitation to ceremonial functions, deputation of higher posts etc.) shall be ensured for grant of benefits under the ACP Scheme.

9. In pursuance of the OM dated 9.8.1999, a Departmental Promotion Committee was constituted by the respondents for grant of upgradation of the pay scale on 7.2.2000. Vide order dated 18.4.2000, Director OS (Pers) directed is as follows:

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2. Sh. V.G. Tajnekar OOC (Stores) of COD Mumbai who was appointed on 7.9.1983 as DR OCC (S) and has not been promoted as yet has been approved for upgradation of his pay scale to 10000-15200 i.e. the next pay scale in the AOC hierarchy w.e.f. the date of issue of GOI DOP&T No. 35034/1/97-Estt(D) dt 9.8.1999.

3. Sh. Deepak Kumar OOC (S) of COD Delhi Cantt. has not been found fit for the financial upgradation under ACP.

10. Petitioner challenged the rejection of grant of financial upgradation to him by filing OA No. 1161 of 2000 before CAT. This was subsequently withdrawn with liberty to file a fresh OA challenging the contents of the ACP Scheme i.e. OM dated 9.8.1999. Accordingly, OA No. 1221 of 2001 was filed before CAT seeking directions to quash para 5 of OM dated 9.8.1999 and para 6 of Annexure 1 of the said OM, in addition to the challenge to order dated 18.4.2000.

11. Vide order dated 23.4.2002, CAT dismissed the challenge holding that the contention of the petitioner that the fifth Central Pay Commission's recommendations do not contain requirement of screening and attainment of usual norms of promotion, benchmark etc is not established. This order of dismissal of OA is challenged before us.

12. Mr. Bisaria for the petitioner urged that the ACP Scheme is to provide a safety net to deal with the problem of stagnation of employees due to the lack of promotional avenues available for them. Therefore, instead of employing any benchmark or screening of their performance for according financial upgradation under the ACP Scheme, once the employees have completed 12/24 years of regular service they should be automatically granted financial upgradation on the basis of the ACP Scheme. He placed reliance upon N.G. Prabhu v. Chief Justice and Anr. 1973 SLJ 879 (Kerala High Court), stating that such upgradation as envisaged in the ACP Scheme is not like promotion and, therefore, promotional norms should not be applied for grant of financial upgradation under aforestated Scheme.

13. The judgment elaborates the distinction between 'promotion' and upgradation as defined in the Kerala High Court Service Rules, 1970. Relevant portion are extracted below:

...If, to better the conditions of service of the incumbents in posts in the same category the scale of pay of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But in such a case it may not be proper to characterize event as promotion to higher posts though a benefit of a higher scale of pay is obtained by all concerned. In other words, if the upgradation relates to all the posts in a category naturally, there is no sense in calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post to another. Parties continue to hold same posts but get a higher scale of pay. It may be that it is not all the posts in a particular category that are so upgraded, but only a part of it. Normally, the benefit of such upgradation would go to the seniors in the category. They would automatically get a higher scale of pay. That is because though their posts continue in the same category a higher scale of pay is fixed for those posts....

14. The Tribunal distinguished the present case from Prabhu's case by holding that in Prabhu's case (supra) upgradation related to all posts in a category and as such incumbents were naturally to get the higher scale of pay without consideration of any merit. In the present case financial upgradation does not relate to all the posts; it relates to persons having served for a specific number of years in a particular scale. Usual norms of screening have to be followed in view of the recommendation of the fifth Central Pay Commission, which has been included as para 6 of Annexure 1 of the OM dated 9.8.1999.

15. Mr. Ashwini Bharadwaj, appearing for the respondent, submitted that normal promotion norms have to be applied for granting benefits under the ACP Scheme as envisaged in the OM dated 9.8.1999 and as petitioner's overall performance was found to be 'average' only, he did not attain the benchmark prescribed for promotion and was found unfit by the screening committee for grant of benefit under the ACP Scheme. Reference is invited to para 6 of OM dated 9.8.1999 making provisions for Screening Committee quoted above.

16. We have heard the parties and perused the documents on record. The issue that arises for determination is whether the Tribunal is correct in upholding the conditions laid down in para 5 of the OM dated 9.8.1999 and para 6 of Annexure 1 of the said OM, for grant of benefit under the ACP Scheme. It may be noticed that para 5 of OM dated 9.8.1999 and 6 of Annexure 1 of the said OM are based on, rather are the manifestation of the recommendation of the Fifth Central Pay Commission itself. The Pay Commission while recommending the ACP Scheme itself suggested that moving to higher scale would be subject to fulfillment of usual norms of promotion and if this involves passing of a trade or departmental test or acquisition of higher qualifications, that pre-requisite would have to be fulfillled before the benefit of ACP Scheme is given.

17. Further, grant of automatic upgradation on completion of 12/24 years of regular service without meeting the usual norms is not the purpose of the Scheme. The ACP Scheme envisages financial upgradation where there are no promotional avenues. The intent is to avoid stagnation and provide a chance for upgradation to those who are meritorious but yet denied the same on account of non availability of promotional avenues. The rationale and intent appears not to grant an automatic financial upgradation to all those who complete 12/24 years of service, irrespective of their performance. The inefficient and indolent are not to be rewarded by automatic financial upgradation. Services below the benchmark and those above cannot be equated. Accordingly, the provision for screening is necessary and essential to serve the purpose of the scheme. Normal promotional norms have to be applied for grant of financial upgradation under the ACP Scheme.

No ground is thus made out for interference with the order of the Tribunal in exercise of writ jurisdiction.

Writ petition is dismissed.