S.P. Thapliyal vs Secretary General And Anr.
2013 Latest Caselaw 25 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P. (C) No.5990/2002

%                                                           January 03, 2013


S.P. THAPLIYAL                                         ...... Petitioner
                               Through:      Mr. Ashok Gurnani, Advocate.


                               VERSUS


SECRETARY GENERAL AND ANR.                ...... Respondents

Through: Ms. Zubeda Begum, Advocate with Ms. Sana Ansari, Advocate and Ms. Ankita Gupta, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The petitioner, who was an employee of the Rajya Sabha

Secretariat/respondents, through this writ petition under Article 226 of the

Constitution of India, seeks appropriate writs or directions for

implementation of the Assured Career Progression/Financial Upgradation

(ACP/FU) scheme dated 5.10.2001. The reliefs prayed for in the writ

petition are sought on the basis of interpretation sought to be given by the

petitioner to the subject scheme that every employee such as the petitioner

after 12 years of the date of his joining must get the first step financial

package in terms of the scheme and must also get a second step financial

package after another 12 years i.e a total period of 24 years. It is asserted

that though the scheme specifically states that it will come into force w.e.f.

9.8.1999, however, yet every employee such as the petitioner who from the

date of his joining prior to the date of implementation of the scheme has

completed either 12 years or 24 years without any promotion, must get the

requisite financial packages in terms of ACP/FU scheme dated 5.10.2001.

The respondents, however, counter that interpretation which is sought to be

put by the petitioner on the scheme effectively seeks retrospective operation

of the scheme although the scheme specifically states that it has come into

force from 9.8.1999. What the respondents therefore basically contend is

that a period of 12 years have to be seen w.e.f. 9.8.1999 or 12 years from the

last promotion, whichever is later, and not from the date of joining as an

employee with the Rajya Sabha Secretariat.

2. The facts of the case are that the petitioner was appointed as a

Parliamentary Reporter Grade-I in Rajya Sabha Secretariat on 10.5.1977.

Petitioner was promoted to the post of Senior Parliamentary Reporter w.e.f.

15.6.1992. The petitioner superannuated from the service on 30.4.2002.

The ACP/FU scheme came into force w.e.f. 9.8.1999 and therefore the

petitioner contends that the period of 12 years must first end so far as the

petitioner is concerned on 10.5.1989 and then another 12 years should be

counted thereafter for the purpose of pay fixation of the petitioner in terms

of ACP/FU scheme.

3. Since it is the interpretation of the ACP/FU scheme dated

5.10.2001 in question, I would seek to reproduce some relevant paragraphs

of the scheme and which read as under:-

       "             RAJYA SABHA SECRETARIAT
                                        Parliament House Annexe,
                                                New Delhi
                                             th
                                  Dated the 5 October, 2001

     RECRUITMENT AND CONDITIONS OF SERVICE ORDER

Subject: Assured Career Progression/Financial Upgradation (ACP/FU) Scheme

In pursuance of the recommendations contained in para 3.3 of Chapter III of the Second Report (2001) of the Parliamentary Pay Committee the Chairman Rajya Sabha, after consultation with the Ministry of Finance, has been pleased to direct that Assured Career Progression/Financial Upgradation (ACP/FU) Scheme, as indicated below, may be implemented in the Secretariat:-

(i)The ACP/FU Scheme shall come into force with effect from

09.08.1999. The ACP/FU Scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial upgradation) only to the employees concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose.

(ii) This scheme is intended to provide financial relief to employees who have put in the prescribed period of service in a grade/post but cannot be promoted to the next higher grade/post for want of vacancies/posts.

(iii) Under this scheme, every employee appointed in a particular grade/scale of pay shall be allowed two financial upgradations during his entire career span. An employee shall become eligible for the first upgradation after completion of a period of 12 years of regular service in the respective feeder grade/post in respect of posts/grades in all Groups and the second after completion of 24 years of regular service in the Secretariat.

(iv) In the case of an employee who has been recruited to isolated posts/scales of pay where there are no further promotional avenues in the hierarchy, two financial upgradations shall be given to the next higher scales of pay available in the Secretariat after completion of 12 years and 24 years of service from the date of his induction to the isolated post.

    xxxx                 xxxx                xxxx               xxxx

    (ix)      Where an employee is recruited to a particular grade/post and

subsequently switches over to another cadre/line, his previous service in the original post/grade shall not be counted for the purpose of financial upgradation in the new cadre/line. He will be entitled to the first financial upgradation in the new cadre after completion of the prescribed period of 12 years of service in the new cadre.

(x) On placement in the higher scale of pay, the incumbent shall continue to perform the duties of his original post/grade and will continue to hold the old designation till such time as he is actually

promoted on occurrence of a vacancy. In case of isolated posts/grades, the post/grade held by an individual shall get upgraded to the next higher scale but shall be filled at its original level when vacated.

xxxx xxxx xxxx xxxx

(xiii) On placement to next higher grade/post under the ACP/FU Scheme, the full benefit of pay fixation in the higher scale of pay as in case of promotion to the higher grade/post shall be given. Thus on actual promotion in the normal course on occurrence of the vacancy, no further financial benefit shall accrue.

xxxx xxxx xxxx xxxx (xix) For interpretation of any of the provisions under this Scheme or inadequacies in implementation, if any, the decision of the Chairman, Rajya Sabha shall be final."

4. A reading of the underlined portions of the aforesaid scheme

shows the following salient features:-

(i) The scheme came into force w.e.f. 9.8.1999 i.e. the

retrospective operation of the scheme dated 5.10.2001 only goes upto

9.8.1999 and not earlier.

(ii) The object of the scheme is that after the effective date of

application of the scheme if an employee of the Rajya Sabha Secretariat

does not get promotion for 12 years, such employee will get the financial

package of the next post, of course without various other privileges, perks

and benefits attached to the post, i.e the financial package will be personal to

the employee and will not give actual promotion or any other benefits of the

higher post save and except the financial package in terms of the ACP/FU

scheme. In case, an employee has already got promotion to the next post,

then, in that case the period of 12 years will count not from the date of initial

appointment or a date prior to being appointed at the higher post but the

period of 12 years for granting of the financial package will be from the date

of promotion to the higher post. Putting it in other words, the financial

package benefit of a higher post cannot be available unless the financial

package of a higher post is not given to an employee for a continuous period

of 12 years.

(iii) With regard to isolated posts, separate provisions were made

and which specifically takes the period of 12 years and 24 years from the

date of induction to the isolated post. The petitioner's post is admittedly not

an isolated post.

(iv) In case, an employee switches his cadre/line the period of 12

years which will be required will be after 12 years service in the new cadre

and the earlier period of service in the old cadre would not be considered for

computation of service of the period of 12 years.

5. Learned counsel for the petitioner very vehemently argues that

the whole object of the ACP/FU scheme is to give a total of two financial

packages for 24 years of service of an employee and therefore the petitioner

became entitled to two packages from the date of his appointment to service

i.e 10.5.1977.

6. I cannot agree. If the argument on behalf of the petitioner is

accepted in spite of the fact that scheme specifically states the date of

operation thereof from 9.8.1999, the scheme in fact will operate not from

9.8.1999 but separately qua each employee from the date of his joining

employment with Rajya Sabha Secretariat prior to 9.8.1999. Such an

interpretation, if accepted, would amount to unnecessary financial burden on

the respondents and which is categorically denied by the respondents which

has made the scheme dated 5.10.2001 only applicable from 9.8.1999. Also,

when we look at the provision of 1(xix) of the scheme it is clear that if there

is any doubt as to the interpretation it will be the decision of the Chairman of

the Rajya Sabha which shall be final. In the counter affidavit, the

respondents have taken up a specific stand of their interpretation of the

scheme, and which in any case is not arbitrary that the scheme has

necessarily to operate as per its terms only w.e.f. 9.8.1999. Such an

interpretation is perfectly logical and does not call for interference by the

Court.

7. In view of the above, I do not find any merit in this petition

which is accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J JANUARY 03, 2013 Ne