Munnilal Prasad vs Union Of India And Ors.
2013 Latest Caselaw 5061 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6600/2013

%                         Date of Decision : 06th November, 2013

MUNNILAL PRASAD                                             ..... Petitioner
                                 Through : Mr. Subhashish Mohanty,
                          Adv.
                    Versus
UNION OF INDIA AND ORS.                              ..... Respondent
                                 Through : Ms. Barkha Babbar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The petitioner seeks in this case restoration of the first financial upgradation as per the Assured Career Progression Scheme (herein after referred to as "ACP") w.e.f. 22nd March 2003 when he completed 12 years of service with Central Industry Security Force (herein after referred as "CISF") and became entitled for grant of second financial upgradation as per MACP Scheme w.e.f. 22nd March, 2011.

2. The undisputed facts in the instant case giving rise to the writ petition are enumerated that as per the ACP scheme other than

completion of 12 years of continuous service in the post of Constable, an employee of the CISF is required to have completed 12 years from the date of appointment to a post without any promotional financial benefit being made available to him and he should have also successfully undertaken the promotional cadre course (herein after referred to as "PCC").

3. The petitioner has stated that an employee is granted three chances for successful completion of promotional cadre course as per the applicable ACP Scheme which has been placed before us. This is uncontroverted.

4. Learned counsels for the parties submitted that the petitioner had completed 12 years of service on 22nd March 2003 and was given an opportunity to undergo PCC pursuant to an offer made only in September, 2004. The petitioner unfortunately failed in the first attempt in the PCC, but qualified in the supplementary PCC in the 2 nd chance vide Order no. RTC-II Deoli SO P.II No. 127/2005 dated 02.06.2005 of the respondents.

5. It is also an admitted fact before us that the petitioner was granted financial upgradation by the respondents w.e.f. 22 nd March 2003. The record placed before us shows that the petitioner successfully qualified the promotional cadre course and the result of the same was informed on June 2005 by the respondent.

6. It appears that prior thereto the respondents have issued an order SO Pt. I No. 147/2005 dated 22.08.2005 whereby the ACP benefit

granted to the petitioner w.e.f. 22nd March 2003 was cancelled due to his failure in the promotion cadre course commencing w.e.f. September 2004. As a result, the respondents proceeded to recover the amount paid to the petitioner towards his financial upgradation from 22nd March 2003. The petitioner's representations to respondents were of no avail. The respondent however, proceeded to re-grant the ACP upgradation to the petitioner by order SO Part. I no. 182/2005 passed on 06.10.2005 which was made effective only from 24.09.2005. The petitioner was thus denied the benefit of the financial upgradation w.e.f. 22 nd March 2003 to 23rd September 2005, from which date he was granted the first financial upgradation.

7. Learned counsel for the petitioner has submitted that the respondents have done grave injustice to the petitioner inasmuch as the ACP upgradation could not have been withdrawn. It is further contended that a person becomes eligible for consideration for grant of the ACP upon completing the requisite number of years of service which the petitioner had already completed on 22nd March 2003. The manner in which the respondents worked the ACP Scheme is that the effective date for consideration of the person for entitlement of the grant of financial upgradation is the date on which he acquires the requisite number of years of service in a post without any promotional opportunities being made available to him. It is urged that the completion of the actual PCC would have no effect on the effective date of grant of financial benefits inasmuch as all employees undergo the

PCC only after having become eligible for grant of ACP Scheme. It is urged that the same is apparent from the fact that the respondents granted the ACP upgradation to the petitioner w.e.f. 22nd March, 2003 when he completed 12 years of continuous service in the rank of Constable without any opportunity for promotion to the next post of Head Constable being made available to him till 6th September 2004. It is submitted that as per the Scheme of the respondents, every employee is given three opportunities to complete PCC. As such, the inability to successfully complete the PCC in the first or second attempt would render the petitioner eligible for a third opportunity.

8. So far as withdrawal of financial upgradation benefits, learned counsel for the respondents has placed reliance on para 4 of the Circular dated 7th November, 2003 which is to the effect that a considered decision was taken to effect the recovery of pay and allowances pertaining to the period from the date of upgradation of scale under ACP Scheme to the date of stoppage of such financial up-gradation. Learned counsel for the petitioner has also drawn our attention to the Circular dated 7th November, 2003 wherein, it is pointed out that the respondents have themselves drawn a distinction between "stoppage" of the financial upgradation and "withdrawal" of the amount given as the benefit thereunder.

9. In support of his contention, learned counsel for the petitioner has placed reliance on the pronouncement of this court dated 15th February, 2011 reported in W.P.(C)6937/2010 Hargovind Singh v. Central

Industrial Security Force. In this case, the petitioner in this case was seeking restoration of his second financial upgradation under the ACP Scheme with effect from 3rd November, 1999 and further grant of 3rd financial upgradation with effect from 1st September, 2008. It is note- worthy that the petitioner was granted the second upgradation under the ACP scheme on 3rd November, 1999 but the same was withdrawn without notice to the petitioner resulting in the claim in the writ petition. The stand of the respondents has been noted in para No. 5 and 6 of the judgment which was to the following effect.

"5. The undisputed position is that the petitioner was granted the benefit of the 2nd upgradation under the ACP Scheme with effect from 3.11.1999 but the same was withdrawn without notice to the petitioner; and thus the claim in the writ petition. 6. As per the counter affidavit filed, the 2nd ACP upgradation benefit was granted to the petitioner on 3.11.1999 in ignorance of the fact that the Mandatory Promotion Course was not successfully undertaken by the petitioner and when this was realized, petitioner was required to attend the Promotion Course commencing on 15.11.2009 for which he expressed his unwillingness to attend the course on 29.10.2004."

10. This very contention is urged before us. Just as the present case in hand, the petitioner Hargovind Singh also did not get the opportunity to undergo the PCC course on the date he became eligible for grant of

further financial upgradation which was withdrawn. On this aspect, in Hargovind Singh's case (supra) the court has ruled on the respondents contention urged before us as well, commented on the responsibility of the department to detail the person for undertaking the promotional course.

11. Before us, it is an admitted position that the petitioner became eligible for grant of financial upgradation on 22nd March, 2003 which was actually granted to him. So far his being given an opportunity to undergo the PCC is concerned, he was detailed for the first time to undergo the course which commenced on September, 2004.

12. Undoubtedly for the reasons recorded in Hargobind Singh's case (supra), an employee cannot be deprived of the financial upgradation for the period for which an employee is able and willing to undergo the PCC Course. It is apparent from the working of the ACP Scheme by the respondents that a person is entitled to the financial benefit on the date he completes the required twelve years of service without a promotional opportunity. The respondents have so worked the scheme in Hargovind Singh's case as well as the present case. The completion of the promotional cadre course is akin to completion of the requisite training upon appointment/promotion. It does not change the date of the appointment or the date of his promotion.

13. The petitioner completed twelve years of service on 22nd March, 2003 when he was granted the first financial upgradation. After March, 2003, the present petitioner was detailed for undertaking PCC only in

September, 2004. It is an admitted position that the petitioner accepted this offer but was unsuccessful. He was offered his second chance and has successfully undertaken the PCC commencing w.e.f. 23.03.2005 to 30.03.2005 vide TRC-II Deoli SO P-II No. 171/2005 dated 02.06.2005 of the respondents. In this background, the petitioner cannot be denied of his rightful dues under the financial upgradation schemes.

14. Reiterating the view taken by us in W.P. (C) No.7758/2011 Jaibir Singh vs. Union of India & Others dated 21.5.2013, we may also note that this aspect of the matter can be examined from yet another angle. As per the Scheme, every employee is entitled to three chances to complete the PCC. In case, the petitioner had undertaken the PCC course when he was first offered the same but had failed to clear the course, the respondents would not have then deprived him of the benefits of the financial upgradation but would have offered him a second, and thereafter, even a third chance to successfully complete the same. This being the position, a person who failed in PCC at the first option cannot be deprived of the benefit of the financial upgradation in this matter. The petitioner has in fact cleared the PCC course at the second chance, when he underwent the same.

15. Looked at from any angle, the acts of the respondents in recovering the amount and denying the financial upgradation to the petitioner from 22nd March 2003 till 23rd September 2005 cannot be justified on any ground at all. The view we have taken is supported by the judgment rendered in Hargovind Singh's case (supra).

16. Before we part with the case, it is necessary to deal with the submissions of the learned counsel for the respondents premised on the decision mentioned in the Circular dated 7th November, 2003. The relevant extracts of this Circular reads as follows :-

"02 Instructions had been issued to the field formations that the personnel who have been granted ACPs benefits without qualifying PCC, but later on declared failed in PCC express their inability to undergo PCC on the pretext of one reason or other reason and submit medical unfitness certificate when detailed for PCC, the ACP benefits earlier granted to them may be stopped from the date of result of failure/submission of medical unfitness certificate or expressing their inability to undergo PCC on medical ground. 04 In view of the observations of Internal Audit party of MHA, the case has been examined and it has been decided that the recovery of pay and allowances pertaining to the period from the date of upgradation of scale under ACPs to the date of stoppage of such benefits may be made".

17. We may note that the respondents were conscious of the distinction between "stoppage" of the financial benefit and its "withdrawal" which is evident from bare reading of para 2 of the said circular.

18. Para 2 of this circular clearly recognizes that a person would be entitled to financial upgradation from the date he becomes eligible to the same. The "stoppage" of the same is clearly noted to be with effect from the date of result of failure/ submission of medical unfitness certificate or expressing inability to undergo PCC on medical grounds. The recovery which is postulated has to be read in context of the clear stipulation as laid in para 2 and cannot be related to recovery of an amount beyond the period that is noted in para 2. In our view, the para 4 has to be operated in the context of what has been clearly stated in para 2 of the Circular dated 7th November, 2003. Furthermore recovery can only be if the respondents have given three chances for undergoing the PCC and the employee is unable to do so or is unsuccessful. Such reading and application of this Circular is in consonance with the above discussion. The respondents could not possibly seek recovery of the higher pay and allowances (advanced as benefits under the ACP Scheme) for the entire period from the date of upgradation of the scale under the ACP Scheme to the date of stoppage of benefit in case a person fails to clear the PCC in all three chances. The view we have taken is clearly supported by the respondent's directive in the Circular dated 16th April, 2003, which has been placed before us.

19. The respondents hold a person entitled to the PCC for the several years when the employee is not offered an opportunity to undergo the PCC course after completion of the twelve years of service and even though he may be willing and able to do so. He is given the pay

uprgadation for this period (between 22nd March 2003 to 21st August 2005 in the case of the petitioner). This amount is then recovered as the employee was unsuccessful in the promotion cadre course in the first chance. The respondents have not waited for the petitioner to avail the three available chances for qualifying in PCC course before proceeding with their recovery action. The restoration has also been effected most arbitrarily.

20. For all the foregoing facts and reasons this writ petition has to be allowed. We hold that the petitioner would be entitled to grant of financial upgradation under the Assured Career Progression Scheme benefit with effect from 22nd March 2003. The petitioner is entitled to the amounts recovered from him which shall be refunded to him within six weeks from today.

21. In case the petitioner was entitled to the benefit of the second upgradation as per ACP Scheme as well, the respondent shall consider the claim of the petitioner in accordance with the scheme in the light of the forgoing discussion and pass appropriate orders in regard thereto within a period of three months.

22. The order passed therein shall be conveyed to the petitioner.

23. The amounts falling due and payable in terms of the above shall be released to the petitioner within a period of six weeks thereafter.

24. This writ petition is allowed in the above terms.

25. Dasti to learned counsel for the parties.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE NOVEMBER 06, 2013