Uoi And Ors. vs Sh. Ramesh Chander Pal
2014 Latest Caselaw 3487 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 04.08.2014

+                         W.P.(C) 13849/2009

       UOI AND ORS.                                ..... Petitioners
                Through : None.

                          Versus

       SH. RAMESH CHANDER PAL                ..... Respondent

Through : Sh. Arpit Maheshwari, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The Union of India (UOI), by this petition under Article 226 of the Constitution, challenges an order of the Central Administrative Tribunal (CAT) dated 21.05.2009 in O.A. No. 685/2008. The CAT had directed the grant of second financial upgradation under the prevailing Assured Career Progression Scheme (ACP) to the respondent. Apparently, such benefit had been granted to the respondent (hereafter referred to as "the employee") but subsequently withdrawn. His unsuccessful representations impelled him to approach the CAT.

2. The brief facts are that the employee was first appointed to the service of the petitioner in the year 1974 as Mazdoor in the pay scale

W.P.(C) 13849/2009 Page 1 of `750-940/-. In accordance with the then existing policy, "in-situ" promotion or upgradation was given to him, with effect from 01.04.1992, in the pay scale of `800-1150/-. This was through an order dated 15.12.1993. The respondent's name was shown at S. No.15 and one Sh. Sahab Singh's name was at S.No.8. He too was granted first in situ promotion in respect of another pay scale. The respondent was subsequently promoted, in accordance with the rules, to the grade of Binding Assistant in the pay scale of `950-1500/- by order dated 08.05.1995. Subsequently, the petitioner interpreted the ACP scheme formulated by it and had recommended the grant of the second financial upgradation to the petitioner in accordance with its provisions. Later, apparently on a rethinking, that recommendation, sought to be made effective from 09.08.1999, was withdrawn.

3. The CAT, after considering the relevant facts, relied upon the clarification no.2 issued by the Department of Personnel and Training (DOPT) dated 10.02.2000 in respect of the ACP scheme and, after considering the other circumstances, held that the in situ promotion or financial upgradation could not be considered as first promotion and that, upon the respondent's completion of 24 years of regular service, the second financial upgradation was due and admissible to him.

4. The UOI in its petition contends that the CAT has committed an error in ignoring the in situ promotion. It also contends that the CAT's reliance upon the previous ruling in Sahab Singh v. UOI and Ors. (O.A. no. 799/2005, decided on 02.05.2006) is wrong. Its interpretation, with respect to the clarification dated 10.02.2000, is that

W.P.(C) 13849/2009 Page 2 the promotion given to the petitioner with effect from 01.04.1992, to the grade of Machine Attendant, is within the hierarchy and not outside it. The UOI also contends that the DoPT had clarified that the post of Labourer in the Government of India Press had to be treated as common category of posts under clarification 56 of the Office Memorandum dated 18.07.2001, and could be allowed two ACPs in the pay scale of `2650-4000/- (S-3) and `3050-4590/- (S-5) only. It is, therefore, contended that the grant of second upgradation at `4000- 6000/- is not permissible in terms of the scheme itself.

5. This Court has considered the submissions. The CAT, in the impugned order - as mentioned in the previous narrative, relied upon a clarification dated 10.02.2000 which is to the following effect:

Some employees have been Mobility under ACPs is allowed Selection grade/in to be allowed in the situ promotions though these existing hierarchy. As grades are not a part of such, if any selection defined hierarchy. Whether grade in situ promotion this is to be considered as has been allowed to promotion for the purpose of employees which is not a ACPs? Also, what will be the part of the hierarchy, it situation if selection grade shall not be considered has been allowed in lieu of promotion for the higher pay scale? purpose of ACPs.

6. Therefore, it is evident that on a plain reading of the clarification itself, in situ promotion which is unsupported by the rules

W.P.(C) 13849/2009 Page 3 and is outside the hierarchy of posts, it is to be ignored for the purposes of grant of ACP benefits which are mere financial upgradations.

7. In the present case, the recruitment rules have been produced before us. These are in the form of Govt. of India Presses (Group 'C' and Group 'D' Industrial Posts) Recruitment Rules, 1993. These rules seek to precede the pre-exising rules of 1987. In the present case, in situ promotion was made with effect from 01.04.1992 by an order dated 15.12.1993. The UOI nowhere spells out as to whether this promotion was in terms of the 1993 rules or otherwise. This aspect is of some importance especially because the promotion was made with effect from 01.04.1992, when the 1993 rules were not in force. Furthermore, the Court also notices that the promotion to the post of Machine Attendant was to be regularly done in terms of the recommendations of the Departmental Promotion Committee (DPC). The order in this case nowhere states that it was pursuant to the DPC's recommendations. In fact, the UOI's stand in the present case appears to be contrary to what was stated before the CAT, where it averred as follows:

"PRELIMINARY SUBMISSIONS:

3. The applicant Sh. Ramesh Chandra Pal was appointed as Labourer in Govt. of India Press, Aligarh on 29-04-1974 in the Scale of Rs.750-940 now revised to 2550-3200 as per 5th CPC. He was granted in situ promotion to the Scale of 800-1150

W.P.(C) 13849/2009 Page 4 (Scale under IV CPC) in the grade of Machine Attendant.................."

8. However, there is no clarification as to what preceded the in situ promotion, which the UOI contends, is within the regular hierarchy of posts.

9. This Court further notices that in case of an employee who had been granted similar in situ promotion but with effect from 01.04.1991, i.e. Sh. Sahab Singh, the matter had reached this Court in W.P.(C) 16598-600/2006 at the behest of the UOI, who had suffered an adverse order. The Court on that occasion had endorsed an identical view of CAT in the following terms:

"We have heard learned counsel for the petitioner and apart from reiterating his submissions which were made before the Tribunal, the petitioner has not been able to satisfy us as to how the in situ promotion granted to the respondent in the year 1991 could be considered for the purpose of ACP scheme in view of the clarification issued by the DOP&T in its O.M. dated 10.2.2000 and the finding arrived at by the Tribunal that the post of 'Counter' is not in the hierarchy of the cadre of Group 'D' posts and that the in situ promotion granted to the respondent in 1993 was not to the post of 'Counter'.

We agree with the Tribunal in its reason that the case of the petitioner is covered by the clarification. We find no merit in this petition and the same is dismissed."

10. This Court is of the opinion that in view of the above material, the UOI has been unable to show that the benefit given to the original respondent, with effect from 01.04.1992, was not an in situ promotion

W.P.(C) 13849/2009 Page 5 and was within the regular hierarchy. Therefore, for the reasons mentioned in W.P.(C) 16598-600/2006 UOI v. Sahab Singh, the present petition too has to fail.

11. This Court was informed during the hearing that the respondent/applicant had retired. The petitioner is directed to refix the pension and terminal benefits during the pendency of these proceedings, of the respondent. Consequently, the petitioner shall take steps to ensure that his pay fixation is done and his pay and terminal benefits and pension are fixed in accordance with what he would be entitled to, if the financial upgradations were to be given effect to from the date claimed by him, i.e. 09.08.1999. Refixation orders as well as the disbursal of pay, terminal benefits and pension shall be released within six weeks from today. The writ petition is dismissed subject to above directions with no order as to costs.

Order dasti.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) AUGUST 04, 2014 'ajk'

W.P.(C) 13849/2009 Page 6