Delhi High Court
Bhagwan Dubey vs Union Of India & Ors. on 28 August, 2017
33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 536/2017
Date of decision: 28th August, 2017
BHAGWAN DUBEY ..... Petitioner
Through: Mr. Ankur Chhibber, Adv. with
Ms. Shruti Munjal, Adv.
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Mr. Rakesh Kumar, CGSC
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
Bhagwan Dubey was appointed as a Constable on 07.06.1981
and promoted as Head Constable on 10.10.1997.
2. The petitioner was denied second financial upgradation under
the Assured Career Progression (ACP) Scheme as he had not
undergone the requisite pre-promotional course, before completion
of 24 years of service.
3. Delhi High Court vide decision dated 06.09.2013 in WP(C)
5539/2013, Jaipal Singh and Others vs. Union of India and Others,
has held that those not short-listed for pre-promotional course,
would not be denied financial upgradation. Ministry of Home
WP(C) 536/2017 Page 1
Affairs on 16.02.2015 issued clarification that Constables/Head
Constables who had completed 24 years of regular service would be
eligible for second financial upgradation notwithstanding the
condition of pre-promotional course criteria, where such personnel
could not be sent for pre-promotional course due to administrative
reasons and not due to any reason owing to the person concerned.
4. Pursuant to the aforesaid clarification, the petitioner was
granted second financial upgradation with effect from 07.06.2005
vide order dated 29.09.2015. The same order had also granted third
financial upgradation under the Modified Assured Carrier
Progression (MACP) Scheme with effect from 06.06.2011.
5. The petitioner thereafter retired from service on 30.04.2016.
6. While processing the case for payment of retirement benefits,
it was felt that the petitioner was not entitled to second financial
upgradation under the ACP Scheme and the third financial
upgradation under the MACP Scheme. By the order dated
12.04.2016, the two financial upgradations were withdrawn and the
amount paid on account of financial upgradations was sought to be
deducted from the retirement dues.
7. The petitioner has filed the present writ petition challenging
the letter dated 21st November, 2016 for adjustment of amount paid
on account of financial upgradation from retirement dues, which
was written in pursuance of the order issued by the respondents
dated 12th April, 2016 withdrawing the second and third financial
upgradation.
WP(C) 536/2017 Page 2
8. The respondents have given two reasons for withdrawal of
the two upgradations. Firstly, the petitioner had suffered a heart
attack in the year 2011 and his medical category was downgraded
from Shape-1. The second reason was that the petitioner had
expressed unwillingness to undertake the pre-promotional course at
serial Nos. 117 and 118, from 18.07.2005 to 10.10.2005, as
recorded in the service book.
9. It is an accepted and admitted position that the medical
category of the petitioner was downgraded after he had suffered the
heart attack in September, 2011. The petitioner was entitled to third
financial upgradation with effect from 06.06.2011, which is prior in
point of time. Counsel for the respondents has also obtained
instructions, and has stated that for financial upgradation under the
MACP Scheme, medical category is irrelevant. The first reason
given by the respondents, therefore, fails.
10. We also do not find any merit in the contention that the
petitioner should have been denied second financial upgradation
with effect from 06.06.2005 under the ACP Scheme as he had
failed to or had expressed unwillingness to undergo pre-
promotional course in July, 2005. The reason is obvious.
11. The petitioner had completed 24 years of service on
07.06.2005. It is not the case of the respondents that the petitioner
had expressed unwillingness to undergo pre-promotional course
prior to 07.06.2005. No such assertion, document or paper has been
placed on record. Refusal post 07.06.2005, cannot be a ground to
WP(C) 536/2017 Page 3
deny the right and entitlement which had accrued and was acquired
earlier in point of time. The respondents have not been able to show
any entry in the service book regarding unwillingness on or before
07.06.2005.
12. Learned counsel for the petitioner, on instructions, has stated
that the petitioner had never expressed unwillingness to undergo
pre-promotional course beginning from 18.07.2005. We need not
examine the said contention in view of the aforesaid discussion.
We have, however, referred to the contention of the respondents
and on the basis of legal position rejected the submission without
accepting the factual assertion.
13. In these circumstances, the petitioner would be entitled to the
benefit of second financial upgradation in terms of the clarification
dated 16.02.2015 issued by the Ministry of Home Affairs, that the
requirement or condition of pre-promotional course criteria would
be overlooked if due to administrative reasons a person has not
been sent for the pre-promotional course.
14. Resultantly, the writ petition has to be allowed and the
impugned order dated 12.04.2016 passed by the respondents
withdrawing benefits of the second and the third financial
upgradations under the ACP and MACP Schemes, respectively, are
set aside.
15. It appears that the respondents have made recoveries from
the retiral benefits of the petitioner. The said recoveries are wrong
and contrary to law. The payments withheld or recovered would be
WP(C) 536/2017 Page 4
paid/ refunded to the petitioner within a period of three months
from the date a copy of this order is received by the respondents. In
case payments are not made within three months, the respondents
should pay interest @ 8% from the date of recovery till payment is
made. Fresh PPO would be issued to the petitioner within a period
of three months. There shall be no order as to costs.
SANJIV KHANNA, J
NAVIN CHAWLA, J
AUGUST 28, 2017
SRwt
WP(C) 536/2017 Page 5
