Lajjaram Mahor vs Union Of India And Ors.
2013 Latest Caselaw 5023 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 6408/2013
%                                      Date of decision: 31st October, 2013
      LAJJARAM MAHOR                                     ..... Petitioner
                                Through :    Mr.Subhasish Mohanty and
                                             Mr.Bala Krishna Behura, Advs.

                   Versus

      UNION OF INDIA AND ORS.                            ..... Respondents
                        Through :            Mr.Saqib, Adv. and Mr.Neeraj
                                             Chaudhari, CGSC

      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. 04th January 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. 04th January, 2012.

2. The undisputed facts in the instant case giving rise to the writ petition

as are 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 06th January, 2004 and was offered two

opportunities to undergo PCC pursuant to first offer made on 13.12.2004

and second offer made on 21.03.2005. The petitioner unfortunately failed in

both the attempts in the PCC, but qualified in the supplementary PCC held

on 12.03.2007 in the 3rd Chance vide RTC Barwaha Letter no. (913) dt.

12.04.2007 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. 4th January, 2004. The record

placed before us shows that the petitioner successfully qualified the

promotional cadre course within 3 prescribed chances and the result of the

same was informed on 12.04.2007 by the respondent.

6. It appears that prior thereto the respondents have issued an order No.

SO Pt.I No. 35/2005 dated 01.04.2005 whereby the ACP benefit granted to

the petitioner w.e.f. 04th January 2004 was cancelled due to his failure in the

promotion cadre course which was held w.e.f. 13.12.2004 which the

petitioner had undertaken as his first chance. As a result, the respondents

proceeded to recover the amount paid to the petitioner towards his financial

upgradation from 04th January 2004. The petitioner's representations to

respondents were of no avail. The respondents however, proceeded to re-

grant the ACP upgradation to the petitioner which was made effective only

from 01.07.2007. The petitioner was thus denied the benefit of the financial

upgradation w.e.f. 04th January, 2004 to 30th July, 2007, 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 04th January 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 petitioner w.e.f. 04th January, 2004 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 13.12.2004. It is submitted by the learned counsel for the petitioner

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 7 th 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 15 th 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 3 rd

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 Nos. 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. In this regard,

observations made in para 8 to 14 of the judgment are being relied upon

which reads thus :-

"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 prescribe din 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 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."

11. Before us, it is an admitted position that the petitioner became eligible

for grant of financial upgradation on 04th January, 2004 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 13.12.2004.

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 unable and unwilling 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. 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.

14. So far as the failure of the petitioner to undertake the promotional

cadre course for which he was detailed in December 2004 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".

15. The court thus held that the respondents were in greater default for not

having detailed the petitioner for the PCC till December, 2004. The

petitioner completed twelve years of service on 04th January, 2004 when he

was granted the first financial upgradation. The present petitioner was

detailed for undertaking PCC on 13.12.2004 & on 21.03.2005 for the 1 st and

2nd chances respectively. It is an admitted position that the petitioner

accepted both the offers but was unsuccessful. He was offered his third

chance and has successfully undertaken the PCC vide RTC Barwaha letter

No. (913) dt. 12.04.2007 of the respondents. In this background, the

petitioner cannot be denied of his rightful dues under the financial

upgradation schemes.

16. 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 in the third chance, when he

underwent the same.

17. Looked at from any angle, the acts of the respondents in recovering

the amount and denying the financial upgradation to the petitioner from 4th

January 2004 till 29.07.2007 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).

18. 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".

19. 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.

20. 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 7 th 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 16 th April,

2003, which has been placed before us.

21. 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 and he is given the pay uprgadation for the

said period. 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.

22. 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 04th January 2004. The petitioner is entitled to the amounts

recovered from him which shall be refunded to him within six weeks from

today.

23. 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.

24. 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.

This writ petition is allowed in the above terms.

Dasti to learned counsel for the parties.

GITA MITTAL, J

DEEPA SHARMA, J OCTOBER 31, 2013