Subhash Chander vs Union Of India & Ors
2016 Latest Caselaw 1075 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   W.P.(C) 2016/2014
                                   Date of decision: 11th February, 2016

SUBHASH CHANDER                                             ..... Petitioner
                                        In person

                         versus

UNION OF INDIA & ORS                             ..... Respondent
              Through             Mr. Vikas Mahajan, Advocate for
                                  UOI.
                                  Mr. Ankur Chibber and Mr. Manu,
                                  Advocates for respondent Nos.2 to 5.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J. (ORAL)

This is the second round of litigation. Subhash Chander, the

petitioner herein, is an officer belonging to Central Civil Accounts

Services having been appointed as a Junior Accountant on 7 th July,

1979. With effect from 6th January, 1987, he worked as the Junior

Accounts Officer. He was promoted to the post of Assistant Accounts

Officer on 5th March, 1992 and then as Accounts Officer on 11th July,

2005.

2. The petitioner had earlier filed OA No.1810/2011 pleading that

he was entitled to second financial upgradation under the Assured

Career Progression Scheme (ACP Scheme) applicable from 9th

September, 1999 as the post of Junior Account Officer, to which he

was appointed on 6th January, 1987 and the post of Assistant Account

Officer, to which he was promoted on 5th March, 1992 had been

merged vide order dated 2nd June, 2009.

3. The aforesaid OA was rejected by the Tribunal by their decision

dated 20th May, 2011. The petitioner thereafter filed W.P.(C)

No.8253/2011 in the High Court, which was initially allowed vide

order dated 24th November, 2011. However, the review application

filed by the Union of India was allowed and the order dated 24 th

November, 2011 was erased. Subsequently, this writ petition was

dismissed by a detailed order dated 10 th January, 2013. This order

dated 10th January, 2013 specifically records that the petitioner on

qualifying the JAO (C) examination conducted by the Controller

General of Accounts, Ministry of Finance had secured his first

promotion on 6th January, 1987. The contention raised by the

petitioner regarding merger of the post of Junior Accounts Officer and

the Assistant Accounts Officer was also dealt with and rejected with

the following reasoning:-

8. By reading the aforesaid OM, it is clear that no benefit under the ACP Scheme is admissible to an employee who has already granted two promotions prior to coming into force of ACP Scheme. It is the own case of the petitioner that he has already earned two promotions before the ACP Scheme became operational w.e.f. August 9, 1999. The date of promotions which he has already earned have been given above. The contention of the petitioner is that second promotion which was granted to him on March 5, 1992 should be ignored as the post of Junior Accounts Officer had merged with the post of Assistant Accounts Officer and after its merger it was re- designated as Assistant Accounts Officer and in a way he has earned only one promotion. However, the interpretation given by the petitioner cannot be accepted. The merger of aforesaid two posts have been done on June 2, 2009 under the 6th Pay Commission having prospective effect whereas the petitioner has already been granted promotion to the post of Assistant Accounts Officer on March 5, 1992 and the petitioner is trying to take the benefit retrospectively which is legally not permissible."

4. The petitioner, thereafter, filed a Special Leave Petition before

the Supreme Court, which was heard and disposed of by a speaking

order dated 25th November, 2013. The said order for the sake of

convenience is also reproduced below:-

"Heard the petitioner, who is appearing in person. Mr.

Agarwal, learned senior counsel, appears for the Union of India.

The petitioner is an officer belonging to the Central Civil Accounts Service. He got two promotions prior to 09.08.1999. It is from that date that the Assured Career Progression Scheme came into force and those who did not get the promotions were granted the Assured Career Progression. Even those who got only one promotion would also get the ACP benefit under that scheme. The contention of the petitioner was that one of his promotions be ignored and he be granted ACP Scheme. The Central Administrative Tribunal went into the aspect and came to the conclusion that inasmuch as the petitioner had got two promotions prior to the date of ACP Scheme coming into force from 9.8.1999, he was not eligible for the ACP benefit.

That finding has been left undisturbed by the High Court. We have not been persuaded to take a different view.

The Special Leave Petitions are dismissed."

A reading of the aforesaid order would indicate and reflect that the

Supreme Court has referred to the contention of the petitioner that he

had got only one promotion under the ACP Scheme, but the

contention was not accepted, observing that the petitioner had got two

promotions after the ACP Scheme had come into force with effect

from 9th August, 1999. The Supreme Court was not persuaded to take

a different view than the one expressed by the High Court affirming

the decision of the Tribunal.

5. The petitioner, who appears in person, submits that the decision

of the High Court and the Supreme Court are incorrect because they

do not take notice of the Office Memorandum dated 10 th February,

2010 and also the factual matrix that the Junior Accounts Officer and

Assistant Accounts Officer were merged. We are afraid that this plea

and contention is not open to the petitioner. This question/issue was

raised in the first round of litigation and has been decided. The

findings have attained finality.

6. The petitioner in the second Original Application No.4653/2011

raised the plea that his appointment as a Junior Accounts Officer on 6th

January, 1987 was as a direct recruit and was not a promotion and,

therefore, the ACP Scheme of 1999 should be worked out differently.

In other words, the appointment to the post of Junior Accounts Officer

with effect from 1st June, 2007 should not be counted as the first

promotion. The petitioner cannot be allowed to raise this plea in the

second round of litigation and the principle of constructive res-

judicata would be clearly applicable. In paragraph 2 of the decision

dated 10th January, 2013, passed by a Division Bench of this Court

while dismissing W.P.(C) 8253/2011, it was specifically recorded that

on account of qualifying the JAO (C) examination conducted by the

Controller General of Accounts, Ministry of Finance, the petitioner

had got his first promotion on 6th January, 1987 and was promoted to

the post of Junior Accounts Officer. Order of the Supreme Court

dated 25th November, 2013 also proceeds on the basis that the

petitioner had got two promotions including the first promotion on 6 th

January, 1987 to the post of Junior Accounts Officer.

7. We do not think that the petitioner is entitled to challenge and

question the said aspect and once again raise the plea and contention

that he was entitled to second financial upgradation under the ACP

Scheme of 1999. We also agree with the Tribunal that the petitioner's

second original application was belated and beyond limitation.

8. During the course of hearing, we had asked the petitioner;

whether he had got benefit of Modified Assured Career Progression

Scheme (MACP Scheme) introduced with effect from 1st September,

2008. The petitioner has stated that he got promotions thereafter. It is

noticeable that merger of the post of Junior Accounts Officer and the

Assistant Accounts Officer had taken place on 2nd June, 2009 after the

MACP Scheme had been introduced with effect from 1st September,

2008.

9. The writ petition has no merit and is accordingly dismissed.

SANJIV KHANNA, J.

ASHUTOSH KUMAR, J.

FEBRUARY 11, 2016 NA