M. Kundu vs Union Of India And Ors
2013 Latest Caselaw 1313 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                DECIDED ON: 18.03.2013
+                         W.P. (C) 5712/2012
       SH.M. KUNDU                                               ..... Petitioner
                          Through: Ms. Rekha Palli with
                          Mr. Rajiv Ranjan Mishra, Advocates.

                          versus

       UNION OF INDIA AND ORS                      ..... Respondents

Through: Mr. Himanshu Bajaj, CGSC.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. The petitioner claims directions to the respondents to grant him Assured Career Progression (ACP) scheme benefit in accordance with the prevailing instructions, especially, Circular No.16/2000 dated 18.03.2000. It is contended that the petitioner, who joined the Central Industrial Security Force (CISF) on 26.03.1987 as Sub-Inspector, successfully completed 12 years regular service in the same grade without any promotion. He was deputed to the CBI and was, therefore, drawing pay in the higher grade. Upon his repatriation from the CBI on 30.11.2004, he became aware that he had been overlooked for the ACP benefits. The petitioner relies upon several representations made to the respondents demanding release of the

W.P. (C) 5712/2012 Page 1 ACP benefit from the time he became entitled to them. The respondents, however, did not grant the relief. He has, therefore, approached the Court.

2. It is contended by the respondents in their counter affidavit that the relevant records pertaining to the petitioner's entitlement or otherwise to the financial upgradation under the ACP Scheme are not available. It is also contended that the petitioner's inaction in approaching the Court makes it impossible for the respondents to verify whether, in fact, he was deployed to undergo Promotional Cadre Course (PCC) and if so whether he went or declined to do so. Counsel highlighted the fact that in case the petitioner declined to attend the course, there was no question of his being entitled to the benefit of ACP scheme. It is also stated that the petitioner's representation was disposed of on 22.02.2008 and that this Court should, in the circumstances, decline the relief.

3. So far as the respondents' submission is concerned, the Court is of the opinion that having regard to the pleadings, the same is unfounded. The petitioner relies upon the nominal roll, apparently drawn sometime in 2005 indicating that he was not detailed for PCC.

4. This document is the record of the Screening Committee and clearly notes the relevant dates and mentions that the petitioner was "not detailed" for PCC. Furthermore, this Court notices that even in the counter affidavit filed, the averment in paragraph-4 is that the Screening Committee at Eastern Sector, HQRS Patna on 13.09.2005 had found the petitioner ineligible for the benefit as he was a "left out" case. In this view of the matter, this Court is of the opinion that there is no merit in the respondents' argument that the petitioner cannot be given the benefit of ACP prior to the date it was actually given, i.e. from 26.11.2005 since that is when he

W.P. (C) 5712/2012 Page 2 qualified the PCC. Consequently, the respondents' arguments that the petitioner cannot now be considered for the ACP benefit are without any substance. It is also mentioned that the relevant documents pertaining to the petitioner are not available. That the respondents do not possess the relevant documents in the case of a serving employee speaks volume about the management of its own affairs.

5. As far as the respondents' argument with regard to delay is concerned, this Court is of the opinion that the same has no force. The petitioner was admittedly on deputation for the period 1999-2004. He was apparently extended the ACP benefit in 2005 even though according to the terms of the scheme he was entitled to be considered in 1999. At that juncture, perhaps, he was overlooked on account of his being on deputation. The plea of the respondents to deny the petitioner the benefit is based on two arguments; first that the petitioner had approached the Court belatedly. On this aspect, the Court has no doubt in its mind that the petitioner, being a serving official, was obliged to exhaust all alternative channels to redress his grievance. Consequently, his application and representation was finally rejected in 2008. The Court is mindful of the fact that the pension and such monetary benefits accrue on month to month basis and constitute a continuing cause of action. Seeing from this perspective, the objection as to delay is without merit. Secondly, the submission in support of the denial of the respondents is that the petitioner did not complete PCC course; here again, the petitioner points out that the nominal roll drawn sometimes in 2005 itself indicates that he was not detailed for PCC. Even the counter affidavit in paragraph 4 clearly mentions that the petitioner's case was a "left out" one, i.e., that he was not deployed for PCC. This Court also

W.P. (C) 5712/2012 Page 3 recollects its earlier decision in Hargovind Singh v. Central Industrial Security Force (W.P.(C) 6973/2010) decided on 15.02.2011 where it was held that the deployment or otherwise to the PCC course cannot be the basis for denial of the ACP benefit. In that case, the official or employee had in fact expressed its unwillingness to join the course. The Court nevertheless went on to discuss the merits of the reason for his refusal to join the course, i.e., illness of his wife and directed that he nevertheless be granted the benefit. The Court further held as follows: -

"15. Suffice would it be to state that the position therefore would be that the respondent is in greater default by not detailing the petitioner to undertake the promotion cadre course till an offer to this effect was made somewhere a few days prior to 15.11.2004. Surely, petitioner cannot be denied his rights till said date.

XXX XXX XXX

21. Noting the peculiar facts of the instant case; the equities in favour of the petitioner; and the fact that the greater fault lies with the respondents in not detailing the petitioner to undertake the PCC course till the offer to this effect was made in the month of November 2004, we dispose of the writ petition declaring that the petitioner would be entitled to the 2nd ACP benefit with effect from 3.11.1999. We note that there is no dispute pertaining to the 3rd ACP benefit which, consistent with the claim of the petitioner, has been sanctioned by the respondents with effect from 1.9.2006."

6. In the present case, by all accounts, the respondents did not take any step to detail the petitioner to undergo the appropriate PCC course. It was not as if the joining or refusal to join was the basis for denial. The petitioner's non-deployment in that course was entirely involuntary. The respondents cannot penalise him on this score. As a result, the petition has to succeed. A direction is accordingly issued to the respondents to consider

W.P. (C) 5712/2012 Page 4 and grant the petitioner ACP benefits which he claims in the present case with effect from the date he became eligible, i.e., after expiry of 12 years of service or from the date the ACP scheme became operational, whichever is later . The necessary consequential orders in this regard shall be issued within eight weeks from today.

7. W.P. (C) 5712/2012 is allowed in these terms.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE)

MARCH 18, 2013 /vks/

W.P. (C) 5712/2012 Page 5