Si.Tele Sh. Anil Bose P & Ors. vs Union Of India & Ors.
2014 Latest Caselaw 6352 Del

$~29
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          Date of hearing and Order: December 01, 2014
+     W.P.(C) 8402/2014
      SI/TELE SH. ANIL BOSE P & Ors.            ..... Petitioners
                     Through: Mr. Yashpal Rangi, Advocate

                          versus

      UNION OF INDIA & ORS.                            ..... Respondents
                    Through:            Mr. Bhagwan Swarup Shukla,
                                        CGSC and Mr. Vinod Kumar
                                        Tiwari, Advocate

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE NAJMI WAZIRI
                       ORDER

% KAILASH GAMBHIR, J. (ORAL)

C.M. Appl. No. 19447/2014 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed off.

W.P. (C) No. 8402/2014

1. The petitioners have filed the present petition under Article

226/227 of the Constitution of India to direct the respondents to grant first

Financial Upgradation w.e.f the date they completed twelve years of

regular service with consequential benefits including arrears etc. and also

to grant the 2nd Financial Upgradation under the MACP Scheme to the

petitioner No.6 herein, w.e.f. 1.8.2009 on his completion of 20 years of

regular service. Furthermore, they seek quashing of the reply dated

13.5.2014 sent by the respondent No. 3, whereby their request for the

grant of first Financial Upgradation was rejected.

2. We have heard learned counsel for the parties at the preliminary

stage.

3. An Assured Career Progression Scheme was introduced as per the

recommendations of the 5th Central Pay Commission. Vide Circular

No.1065 dated 8.10.1999, issued by the Directorate General, ITBP, the

benefits of Financial Upgradation are admissible only to those personnels

who are otherwise eligible for promotion, in all respects, but could not be

promoted due to the non availability of vacancies in higher post despite

the fact that they had rendered 12/24 years of service. These Petitioners

undoubtedly had completed 12 years of regular service in the year 2000-

2001, but by that time, they had not qualified the departmental promotion

courses (D List Test), which was mandatory for promotion to the next

higher rank (SI/RO) and thus, were not entitled for the grant of first

Financial Upgradation under the ACP Scheme. These Petitioners were

granted Financial Upgradations under the first ACP Scheme in the pay

scale of 5500-175-9000 in the year 2005-2006, on the completion of 12

years of service and also after they had qualified the said mandatory test.

4. The contention raised by the learned counsel for the petitioner that

it was not on account of any fault on the part of the Petitioners that they

did not qualify the said promotional test, as it was incumbent upon the

respondents to have detailed these Petitioners for the said test on the

completion of 12 years, is devoid of any merit and substance.

Indisputably, neither did the Petitioners challenge the decision of the

respondents in denying them the first Financial Upgradation on the

completion of 12 years of service nor did they allege any inaction on the

part of the respondents in not detailing them for undertaking the

mandatory promotional courses and now, after a gap of 13-14 years, they

cannot knock on the door of justice belatedly. The cause of action to seek

grant of first Financial Upgradation benefits firstly arose in the year

2000-2001 or at best in the year 2005 when the same was granted to them

after a gap of five years and no challenge at any stage was made by them

to claim their entitlement for the first Financial Upgradation even without

qualifying the said promotional course. The present petition is thus not

maintainable due to inordinate and unexplained delay and laches on their

part in invoking the jurisdiction of this Court and therefore, the present

petition merits outright dismissal on this sole ground.

5. The judgment of the Hon'ble Supreme Court in the case of Union

of India and Ors. v. Tarsem Singh, (2008) 8 SCC 648, reliance on which

was placed by learned counsel for the petitioners will not help the

Petitioners as the cause of action which arose in their favour, to claim the

First Financial Upgradation clearly arose in the year 2000 or at best in the

year 2005 and the same cannot be held to be a continuing wrong.

Therefore, finding no merit in the present petition, the same is

accordingly dismissed. No costs.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J DECEMBER 01, 2014 pkb