Delhi High Court
The Controller General Of Defence ... vs K.S.Balyan on 20 December, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : December 20, 2010
+ W.P.(C) 18774/2004
THE CONTROLLER GENERAL OF
DEFENCE ACCOUNTS ..... Petitioner
Through: Mr.A.K.Bhardwaj, Advocate
versus
K.S.BALYAN ..... Respondent
Through: Respondent in person
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Reason why OA filed by the respondent has been
allowed is to be found in para 5 and 6 of the impugned order
dated 3.6.2004, which reads as under:-
"5. On careful consideration of the rival contentions
we find that the ACP Scheme in Clause-6 prescribes
qualifying the trade test meant for promotion
including any departmental examination in order to
entitle a government servant to be accorded financial
upgradation. Clause-16 of the clarification ibid does
not lay down any condition as to the first or the
second attempt for qualification of the examination
before grant of Scheme. DOP&T clarification of
qualifying the trade test in first attempt for allowing
the benefit of ACP 9.8.1999 and in case of passing the
test subsequently from that date is in conflict with the
provisions of the Scheme.
6. Moreover, SAS examination Part-I was not an
examination subsequent to promulgation of ACP
Scheme on 9.8.1999. The benefit of ACP was denied
to the applicant from 9.8.1999 on the ground that in
first attempt the applicant has failed to qualify the
examination is not justifiable. Assuming the
clarification of the DOP&T is correct the first attempt
would be counted after 9.8.1999. If an examination
has been notified earlier to the promulgation of the
Scheme would not count as first available examination
after promulgation of the Scheme. Accordingly,
undisputedly the next SAS examination was held in
2002 which the applicant had qualified on 29.4.2002
as such would count first attempt and the benefit of
the ACP would relate to 9.8.1999." (Underline
emphasized)
2. As a result it has been held that the respondent
would be entitled to ACP benefit with effect from 9.8.1999.
3. Relevant would it be to note that the respondent had
qualified at the SAS examination on 29.4.2002 and thus with
effect from said date was granted the benefit of the ACP
scheme. His claim that benefit should be granted to him with
retrospective effect i.e. 9.8.1999 was denied by the Department
and has been allowed by the Tribunal vide order dated
3.6.2004.
4. Petitioner‟s attempt to have the order reviewed vide
RA No.235/2004 met with a rejection when RA No.235/2004 was
dismissed vide order dated 26.8.2004.
5. Relevant facts are that on 9.8.1999 an Assured
Career Progression Scheme, ACP Scheme was introduced as per
which persons facing stagnation were entitled to be promoted
(in situ) to the next higher post and in case of no promotional
post being available, were entitled to be placed in the next
above grade.
6. Respondent was working as a Senior Auditor and the
next promotional post available was that of Supervisor
Accounts, Recruitment Rules whereof provided that Senior
Auditors with 5 years regular service in the grade were eligible
to be considered for promotion to the post of Supervisor
Accounts provided they had cleared a departmental
examination for Supervisor Accounts.
7. The ACP Promotion Scheme, vide condition No.6
stipulated as under:-
"6. Fulfillment of normal promotion norms (bench-
mark, 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
states 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."
8. Since ACP Scheme was introduced on 9.8.1999, with
reference to those who would be entitled to the benefit thereof
upon clearing a qualifying exam, the Government issued a
clarification which reads as under:-
"Sub:Clarification regarding grant of ACP after passing
the Trade Test.
A reference was sent to DPO&T for one time
relaxation from passing of Trade Test for granting ACP
from 9.8.1999 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 9.8.1999 may be allowed benefit of ACP from
9.8.1999 only and not from the date of passing of
trade test. However, employees who qualify in the
trade test in subsequent attempt will be allowed
financial upgradation only from the date of passing of
trade test. In no case, the benefit could be given to an
individual wef 9.8.1999, who had earlier appeared in
the Trade Test before 9.8.1999 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 employee complete 12/24 years of service
for grant of financial upgradation under ACPS.
(Based on DOP&T ID No.3683/Estt.(D)/01 dated
6.12.2001)."
9. Relevant would it be to state that as per para 2 of
the clarification, those who cleared/qualified the test in the first
attempt after 9.8.1999 were entitled to the benefit of the ACP
scheme with effect from 9.8.1999 and not from the date of
passing the test. The reason is obvious. If the department
delayed holding the departmental test, it was not the fault of
the employee concerned and thus the employee would
obviously be entitled to the benefit with effect from 9.8.1999.
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.
13. We note that a feeble attempt has been made by the
respondent to urge that the examination held in April 2002 was
not a SAS examination. We do not propose to deal with the
submissions urged whereunder respondent sought to justify his
aforenoted stand for the simple reason the case of the
respondent before the Tribunal was that since after 9.8.1999
the first SAS exam conducted was in April 2002 and he was
entitled to the benefit of para 2 of the office order, contents
noted in para 8 above.
14. The writ petition is allowed. Impugned order dated
3.6.2004 as also the order dated 26.8.2004 are set aside. OA
No.3109/2003 filed by the respondent is dismissed.
15. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SIDDHARTH MRIDUL)
JUDGE
December 20, 2010
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