Ghansham Singh vs Union Of India And Ors
2013 Latest Caselaw 5062 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6722/2013
%                           Date of Decision : 06th November, 2013

GHANSHAM SINGH                                              ..... 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. 28th February 2004 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. 28th February 2012.

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 28th February 2004 and was offered an opportunity to undergo PCC pursuant to an offer made only in January, 2006. The petitioner was compelled to express his unwillingness to undergo PCC, as he was to proceed to his native place on leave due to some domestic problems of serious nature.

5. Learned counsel for the parties have placed reliance on the proforma Unwillingness Certificate wherein it is stated as follows :- ` "UNWILLINGNES CERTIFICATE I ................................ Rank................Name...............of CISF Unit ..................is not willing to undergo promotion course of Const. to HC/GD commencing w.e.f. ............... at ................. as detailed vide CISF Unit ......................... Further I have no objection if I, am superseded due to my un- willingness."

6. It is also an admitted fact before us that the petitioner was granted financial upgradation by the respondents w.e.f. 28th February 2004. The record placed before us shows that the petitioner successfully qualified the

promotional cadre course in the second chance and the result of the same was informed on June 2006 by the respondent.

7. It appears that prior thereto the respondents could not be granted ACP benefit due to the petitioner w.e.f. 28th February 2004 due to his submission of unwillingness to undergo promotion cadre course which was held w.e.f. 09.01.2006 which he was to undertake as his first chance. The petitioner's representations for grant of 1st financial upgradation w.e.f 28.02.2004 to respondents were of no avail. The respondent however, proceeded to grant the ACP upgradation to the petitioner by order SO Part. no. 13/2007 passed on 26.03.2007 which was made effective only from 22.08.2006. The petitioner was thus denied the benefit of the financial upgradation w.e.f. 28th February 2004 to 21st August 2006, from which date he due for grant of the first financial upgradation.

8. 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 withheld. 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 28th February 2004. 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 other enrolled members of the respondent like that of the petitioner when they 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. 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.

9. So far as withdrawal of financial upgradation benefits, learned counsel for the respondents has placed reliance on para 4 of the Circular dated 7 th 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.

10. 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."

11. 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. In this regard, observations made in para 8 to 14 of the judgment are being relied upon which read as under :-

"8 Learned counsel for the respondent would urge that the issue at hand is squarely covered against the petitioner as per the judgment and order dated 30.9.2010 disposing of W.P.(C) No.8631/2009 Bhagwan Singh Vs. UOI & Ors.

9. A perusal of the decision in Bhagwan Singh‟s case (supra) would reveal that the petitioner therein was working as a Head Constable and was denied the second upgradation under the ACP Scheme on account of the fact he had consciously refused to undergo the mandatory promotional courses which would have made him eligible to be promoted as an Assistant Sub-Inspector and, in writing, had given that he foregoes the right to be promoted.

10. The Division Bench noted paragraph 10 of the ACP Scheme which reads as under :-

"10. Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. However, as and

when he accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a person has got one financial upgradation after rendering 12 years of regular service and after 2 years therefrom if he is refused regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+12+1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial upgradation (2+10) in that higher grade i.e. after 25 years (12+2+1+10) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade.

11. In the instant case, facts noted hereinabove, would show that the respondents offered to detail the petitioner for the mandatory

PCC course to be held with effect from 15.11.2004. We shall deal with the effect of the petitioner not joining the said course, but relevant would it be to note that the petitioner's entitlement to the ACP benefit accrued with effect from the month of November 1999 and it is not the case of the respondents that till they offered petitioner the chance to clear the PCC course commencing with effect from 15.11.2004, any earlier opportunity was granted to the petitioner to attend the course.

12. It is an admitted position that the department has to detail persons for undertaking the promotion cadre course and attending said courses is not at the option of the officers concerned.

13. If that be so, the respondents cannot take advantage of not discharging their obligation which precedes the obligation of the incumbent to clear the promotion cadre course. The prior obligation of the department is to detail the person concerned to undertake the promotion cadre course.

14. As regards petitioner's unwillingness to undergo the promotion cadre course commencing from 15.11.2004, it may be noted that the use of the word "unwilling" would be a misnomer. What has happened is that prior to the petitioner being intimated that he would be detailed to undertake the promotion cadre course commencing with effect from 15.11.2004, on account of the extreme ill medical condition of the wife of the petitioner he had sought for and was granted leave to proceed to his native village."

12. Before us, it is an admitted position that the petitioner became eligible for grant of financial upgradation on 28th February, 2004 which was actually not 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 January, 2006.

13. 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.

14. On this aspect, we may usefully extract the observations of the Division Bench judgment in Hargovind Singh's case (supra) which are in consonance with the facts of the present case.

15. So far as the failure of the petitioner to undertake the promotional cadre course for which he was detailed in January 2006 is concerned, in Hargovind Singh's case (supra), this court has deemed the same to be "a technical default". On this aspect it was held as follows :-

"14 As regards petitioner's unwillingness to undergo the promotion cadre course commencing from 15.11.2004, it may be noted that the

use of the word "unwilling" would be a misnomer. What has happened is that prior to the petitioner being intimated that he would be detailed to undertake the promotion cadre course commencing with effect from 15.11.2004, on account of the extreme ill medical condition of the wife of the petitioner he had sought for and was granted leave to proceed to his native village.

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.

16.As regards the technical default committed by the petitioner in not undertaking a promotion cadre course with effect from 15.1.2004, suffice would it be to state that he has a reason for so doing".

16. The court thus held that the respondents were in greater default for not having detailed the petitioner for the PCC till January, 2006. The petitioner completed twelve years of service on 28th February, 2004 when he completed 12 years of continuous service. After February, 2004, the present petitioner was detailed for undertaking PCC only in January, 2006. It is an admitted position that the petitioner submitted his unwillingness for undergoing the Promotion Cadre Course in the said batch . He was offered his second chance and has successfully undertaken the PCC commencing w.e.f. 05.06.2006 to 22.07.2006 vide SO P-II No. 183/2006 dated 22.08.2006 of the respondents. In this

background, the petitioner cannot be denied of his rightful dues under the financial upgradation schemes.

17. 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.

18. Looked at from any angle, the acts of the respondents in recovering the amount and denying the financial upgradation to the petitioner from 28th February 2004 till 21st August 2006 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).

19. 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".

20. 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.

21. 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.

22. 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. As the petitioner submitted unwillingness for undergoing promotion cadre course in the first chance, grant of 1st financial upgradation due to him w.e.f. 28.02.2004 was withheld.

23. 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 28th February 2004. The petitioner is entitled to the amounts recovered from him which shall be refunded to him within six weeks from today.

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

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

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

27. Dasti to learned counsel for the parties.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE

NOVEMBER 06, 2013