Delhi High Court
Ram Kumar & Ors vs Union Of India & Ors. on 16 August, 2017
12 (14.08.2017)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8999/2016
Date of decision: 16th August, 2017
RAM KUMAR & ORS ..... Petitioners
Through Mr.Pawan Reley and Mr.Vinod
Sharma, Advs.
versus
UNION OF INDIA & ORS ..... Respondents
Through Ms.Jyoti Dutt Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
The matter has been taken up today as 14th August, 2017 was
declared a holiday on account of 'Janamastmi'.
CM No.28310/2017
Learned counsel for the applicants/petitioners seeks permission to
withdraw the present application.
Application is dismissed as withdrawn.
WP(C) 8999/2016 Page 1
WP(C) 8999/2016
Learned counsels for the parties state that petitioner No.23, Kaule
Ram had filed an independent writ petition before Himachal Pradesh High
Court which was disposed of vide order dated 17.11.2016. Thereafter, the
representation made by Kaule Ram was considered and as he was
matriculate, relief has been granted to him. Kaule Ram is directed to be
deleted from the array of parties.
2. The petitioners, 26 in number after deletion of Kaule Ram, being
non-matriculates have been denied benefit of financial upgradation under
the Assured Career Progression Scheme (in short ACP Scheme) notified
by the Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training ) vide office memorandum dated
09.08.1999.
3. Learned counsel for the petitioners submits that most of the
petitioners have remained at the same post after induction/joining and
therefore are entitled to 1st and 2nd financial upgradation. Reliance is
placed on the decision dated 13.04.2011 in M.N.Raghunatha Kurup &
Ors. v. Union of India & Ors., Civil Appeal No. 3562/2007 to assert that
the ACP Scheme, as interpreted by the Supreme Court, did not require the
WP(C) 8999/2016 Page 2
possession of educational qualification for promotional post. Reliance is
placed on the decision of Ernakulam Bench of Central Administrative
Tribunal in O.A. No.20/2013 in P.K. Mochithan v. Union of India,
decided on 11.09.2015.
4. Learned counsel for the respondents, on the other hand, has drawn
our attention to the paragraph 6 of the ACP Scheme and clarification
No.53 vide office memorandum dated 18.07.2001 issued by Department
of Personnel and Training. Reliance is placed on two judgments of
Division Bench of this Court in WP(C) Nos.4578-79/2006 in Rameshwar
Singh & Ors. v. Union of India & Ors., decided on 25.11.2009 and
WP(C) No.1302/2002 in Shri Kumar Bajaj & Ors. v. UOI & Ors.,
decided on 19.08.2013.
5. Paragraph 6 of the ACP Scheme read as under:
"6. Fulfillment of normal promotion norms (bench mark,
departmental examination, seniority-cum-fitness in the case
of Group 'D' employees, etc. for grant of financial
upgradations, performance of such duties as are entrusted to
the employees together with retention of old designations,
financial upgradation as personal to the incumbent for the
stated purposes and restriction of the ACP Scheme for
financial and certain other benefits (House Building
Advance, allotment of Government accommodation,
advance, etc.) only without conferring any privileges related
to higher status (e.g. invitation to ceremonial functions,
WP(C) 8999/2016 Page 3
deputation to higher post, etc) shall be ensured for grant of
benefits under the ACP Scheme."
Clarification No.53 given vide office memorandum dated 18.07.2001 read
as under:
53 If for promotion on regular In terms of condition No.6
basis, an employee has to of, Annexure-I to DoP&T
possess a higher/additional O.M. dated 9.8.1999, only
qualification, will it be those employees who
necessary to insist on fulfill all promotional
possession of these norms are eligible to be
qualifications even while considered for benefit
considering grant of under ACPS. Therefore,
financial upgradation under various stipulations and
the ACPS conditions specified in the
recruitment rules for
promotion to the next
higher grade, including the
higher/additional
educational qualification,
if prescribed, would need
to be met even for
consideration under
ACPS.
6. Paragraph 6 of the ACP Scheme stipulates that for grant of financial
upgradation under the scheme, the employee must fulfill normal
promotional norms for performance of duties in the promotional post.
The bracketed portion stipulates that the employees would have to meet
the bench mark, department examination, seniority-cum-fitness, etc. for
grant of financial upgradation in the case of Group D employees. The
WP(C) 8999/2016 Page 4
word 'etc.' indicates that the bracketed portion is not complete for the
promotion norms which are to be fulfilled. If there is any other stipulation
and mandate, that should be complied with. Clarification No.53 vide
office memorandum dated 18.07.2001 states that the condition No.6 must
be fulfilled by the employees who are to be given benefit of the financial
upgradation. Therefore, various stipulations and conditions specified
under the recruitment rules for promotion to the next higher grade,
including higher or additional education, as stipulated, must be fulfilled
before financial upgradation is granted.
7. As per the recruitment rules, non-matriculates are not eligible for
promotion to the post of Head Constable (GD) and Sub-Inspector (GD).
This being the position, we do not think the petitioners were eligible and
entitled to grant of financial upgradation under the ACP Scheme. The
view taken is a consonance view with the ratio of two division bench
decisions of this court in Rameshwar Singh(supra) and Shri Kumar
Bajaj(supra). In Rameshwar Singh(supra) it was held that the ACP
Scheme grants relief to those employees who were eligible for promotion,
but were not granted promotion on account of stagnation and other similar
reasons. Financial upgradation is not granted to the employees who were
WP(C) 8999/2016 Page 5
not promoted on account of not having the requisite qualification. Any
grant of financial upgradation in such cases would be contrary to the
scheme and would contradict its basic object and purpose. Similarly, in
Sri Kumar Bajaj (supra), the Division Bench upheld the order of the
Tribunal observing that the educational qualification of degree from a
recognized university being pre-requisite for promotion, grant of financial
upgradation was rightly denied to an ineligible employee.
8. The decision of Ernakulam Bench in the case of P.K.
Mochithan(supra) does not impress and would not persuade us to refer
the issue to a larger bench. In the said decision Ernakulam Bench had
drawn distinction between higher/additional qualification specified for the
promotional post for next grade and minimum qualification. It was held
that the said requirement in clarification No.53 does not speak of any
minimum qualification regarding the existing post. We do not accept this
plea because it is contrary to the entire object and purpose of the scheme.
Paragraph 6 is clear and categoric. Clarification No. 53 puts it beyond any
pale of doubt.
9. Employee seeking benefit of financial upgradation should be
eligible for promotion and therefore must meet the educational
WP(C) 8999/2016 Page 6
qualification stipulated for promotion. The mandate of higher or
additional education, etc. which is required, must be satisfied. This is the
ratio and mandate of decisions in Rameshwar Singh(supra) and Shri
Kumar Bajaj (supra).
10. We have also examined the decision of Supreme Court in
M.N.Raghunatha Kurup (supra). The said decision is a short one and
refers to an order dated 29.01.2003 passed by the Ernakulam Bench of the
High Court of Kerala. It is not clear from the aforesaid order whether or
not there was a specific stipulation in the recruitment rule regarding
educational qualification for promotion to the higher grade. However, in
the present case, there was specific stipulation regarding educational
requirement for promotion to the next higher grade. It is pointed out by
learned counsel for the respondents that for 'Group D' employees
stipulation regarding educational qualification for further promotion was
absent. The contention of the respondents is that the bracketed portion is
relevant for 'Group D' employees, and as the petitioners were 'Group C'
employees they would not be entitled to any relaxation. The petitioners
being 'Group C' employees, had to fulfill all promotional norms before
WP(C) 8999/2016 Page 7
benefit of financial upgradation under the ACP Scheme could be extended
to them.
11. Recruitment rules stipulate that non-matriculate candidates could
appear in Third Class, Second Class, or First Class Educational
Department Examination, for promotion as Head Constable (GD), Sub-
Inspector (GD), and Inspector (GD), respectively. The petitioners have not
cleared Third, Second, or First Class Educational Department
Examination. Thus the petitioners are not entitled to promotion as Head
Constable (GD) or Sub-Inspector (GD) as the case may be. It is not
pleaded and asserted that the examinations were not held from time to
time, or for any other reasons the petitioners were denied opportunity and
chance to appear and clear the tests.
12. In view of the aforesaid discussion, we are not inclined to accept
the prayer made. The writ petition is dismissed with no order as to cost.
SANJIV KHANNA, J
NAVIN CHAWLA, J
AUGUST 16, 2017/vp
WP(C) 8999/2016 Page 8
