Delhi High Court
Rajbir Singh vs Uoi And Ors on 20 February, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.02.2025
+ W.P.(C) 6171/2017 & CM APPL. 19502/2019
RAJBIR SINGH .....Petitioner
Through: Mr.Vijay Kumar, Mr.Rahul
Kumar Singh, Advs.
versus
UOI AND ORS .....Respondents
Through: Ms.Shubhra Parashar,
Mr.Virender Pratap Singh
Charak, Mr.Pushpender Pratap
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed by the petitioner praying for the
following reliefs:
"a) Issue writ of certiorari,
mandamus or any other similar
nature while directing the
respondents to grant the benefit of
2nd ACP scheme to the petitioner in
accordance with the original ACP
scheme of 1999 on the due date in
the year 2002 when the petitioner
completed 24 years regular service
in BSF w.e.f. the date of enrolment
in BSF in the year 1978;
b) Direct the respondents to
grant the benefit of 3rd MACP
when the petitioner completed 30
years in regular service, when the
Petitioner completed 30 years in
regular services in BSF on 2008
w.e.f. the date of enrolment in the
year 1978.
c) Consequently direct the
respondents to clear all the
arrears arising out of paras (a) to
(c)"
2. Some of the admitted facts of the parties are that the petitioner
was initially appointed as Constable (GD) on 18.10.1978. He
was remustered as Naik (RO) in the Communication Cadre on
01.02.1984. He was later promoted as Head Constable (RO) on
17.09.1990.
3. It is not denied that in implementation of the 5th Central Pay
Commission, the post of Naik (RO) got merged with the post of
Head Constable (RO) with effect from 10.10.1997.
4. The petitioner was then promoted to the rank of Sub-Inspector
(RO) on 01.04.2007, and to the rank of Inspector (Comn) on
19.07.2011.
5. The two issues that arise for consideration of this Court are:
(a) whether the service that was rendered by the petitioner in
the rank of Constable (GD) is to be counted for the benefit of the
ACP and the MACP; and
(b) whether the petitioner's promotion to the rank of Head
Constable (RO) is to be treated as a promotion for the purposes
of denying him the benefit of Second ACP and the third MACP.
6. As far as the first issue is concerned, this Court in Om Prakash
& Ors. v. UOI & Ors., 2015:DHC:2214-DB, has held that the
earlier service rendered by the personnel as a Constable before
being remustered to the rank of Naik has to be counted for the
benefit of ACP/MACP. We may quote from the said judgment
as under:
"14. The only issue which now
arises is what is the effect of some
of the writ petitioners, such as Om
Prakash, the writ petitioner of
W.P.(C) No.388/2015, being re-
mustered to the rank of Naik or in
the cadre of driver trade or in the
cadre of radio operator. As per
learned counsel for the
respondents the 24 year period of
service has to be reckoned from
the date they were re-mustered and
not from the date they joined
service initially.
15. Hitherto fore, between the
rank of a Constable and a Head
Constable there were two posts of
Lance Naik and Naik, which posts
were subsequently abolished and
merged with that of a Head
Constable.
16. Now, the department itself is
not considering, the appointment
given to Constables on re-
mustering as Naik or a Lance Naik
as a case of promotion, and thus
we see no logic to reckon 24 years'
service from the dates noted
hereinabove when some of the
petitioners and the late husbands
of the writ petitioners of W.P.(C)
No.1717/2015 were re-mustered.
17. The ACP Scheme is clear. It
envisages first ACP benefit after
12 years' service was rendered
and the second benefit after 24
years' service was rendered if
within the first twelve years no
promotion could be earned and in
24 years' service a second
promotion could not be earned.
Since all petitioners and late
husbands of the writ petitioners of
W.P.(C) No.1717/2015 had
rendered more than 12 years
service, reckoned whether with
effect from their initial service or
from the date they were re-
mustered, when the ACP Scheme
was introduced in the year 1999
all were granted the benefit of the
first financial upgradation with
effect from the year 1999 (such
who earned a first promotion after
1999 were given anti-dated scales
with effect from the year 1999) and
when their claims for financial
upgradation on completing 24
years service came up, the
department only raised one issue :
of they not having undergone the
pre-promotional course which was
essential to be successfully
undertaken to earn a promotion.
As per all these persons they were
denied an opportunity to undergo
the pre-promotional course
because the department had posted
them at places from where they
could not be relieved; and none of
them had anything to do with their
posting orders. This aspect has
now been taken care of by the two
office orders dated October 27,
2014 and February 16, 2015.
18. We note that all the petitioners
have completed the twenty four
years of service though they have
not undergone the pre-promotional
courses. It is the case of the
petitioners that they have never
been detailed for the said pre-
promotional courses by the
respondents. Thus they are
squarely covered by the
clarification issued by the
respondents vide its clarification
dated February 16, 2015.
19. The writ petitions are
accordingly allowed issuing a
direction to the respondents to
grant second ACP benefits to the
petitioners and late husbands of
writ petitioners of W.P.(C)
No.1717/2015 with effect from the
date they completed twenty four
years service reckoned from the
date of initial appointment. The
mandamus would be subject to the
petitioners and late husbands of
writ petitioners of W.P.(C)
No.1717/2015 being otherwise
found fit for promotion."
7. The Special Leave Petition against the said Judgment, being
SLP(C) no.24453-24458/2016, titled UOI v. Om Prakash, stands
dismissed by the Supreme Court vide its order dated 12.12.2024.
8. This Court has also followed the Judgment of Om Prakash
(supra) in its Judgment dated 03.3.2016 in WP(C) No.462/2016
titled Narendra Singh v. UOI & Ors., holding as under:
"5. Having regard to the fact that
as on date, the aforesaid decision
will govern the petitioner in the
present case as well, the present
petition is disposed of on the same
lines as the captioned petitions
with directions issued to the
respondents to grant second ACP
benefits to the petitioner with effect
from the date he had completed 24
years of service, reckoned from the
date of his initial appointment.
Further, while considering the
case of the petitioner, the
respondents are directed to ignore
re-mustering of the petitioner to
the rank of Naik RO, for grant of
ACP."
9. In view of the above, it is held that for the purpose of
ACP/MACP, the service rendered by the petitioner as a
Constable (GD) is therefore, to be counted.
10. As far as the second issue is concerned, the learned counsel for
the petitioner has placed reliance on the clarification issued by
the Ministry of Personnel, Public Grievance and Pension
(Department of Personnel and Training) vide the Office
Memorandum dated 10.02.2000, which records as under:
"S. Point of doubt Clarification
No.
1. Two posts carrying Since the benefits
different pay scales of upgradation
constituting two rungs in under ACP Scheme
a hierarchy have now (ACPS) are to be
been placed in the same allowed in the
pay-scale as a result of existing hierarchy,
rationalisaton of pay- the mobility under
scales. This has resulted ACPS shall be in
into change in the the hierarchy
hierarchy in as much as existing after
two posts which merger of pay-
constituted feeder and scales by ignoring
promotion grades in the the promotion. An
pre-merged scenario employee who got
have become one grade. promoted from
The position may be lower pay-scale to
clarified further by way higher pay-scale
of the following as a result of
illustration; prior to the promotion before
implementation of the merger of
Fifth Central Pay payscales shall be
Commission entitled for
recommendation, two upgradation under
categories of posts were ACPS ignoring the
in the pay-scales of Rs. said promotion as
1200-1800 and Rs. otherwise he would
1320-2040 respectively; be placed in a
the latter being disadvantageous
promotion post for the position vis-à-vis
former. Both the posts the fresh entrant in
have now been placed in the merged
the pay-scale of grade."
Rs.4000-6000. How the
benefits of the ACP
Scheme is to be allowed
in such cases?
11. From the reading of the above, it would be apparent that where
the two posts having different pay-scales and constituting two
rugs thereof in a hierarchy have been placed in the same pay-
scale as a result of rationalization of the pay scales and has
resulted into a change in hierarchy inasmuch as two posts which
constituted feeder and promotion grades in pre-merged scenario
have become one grade, for the purposes of ACP the erstwhile
promotion post is not to be counted as promotion.
12. In the present case, therefore, the promotion of the petitioner
from the rank of Naik (RO) to Head Constable (RO) is not to be
counted as a promotion for the purposes of ACP, the two posts
having merged been together pursuant to the acceptance of the
recommendations of the 5th CPC.
13. In view of the above it is held that the petitioner would be
entitled to the grant of second ACP and third MACP with effect
from 18.10.2002 and 18.10.2008, respectively, subject to the
fulfilment of other conditions thereof.
14. The respondents shall consider the case of the petitioner for grant
of the second ACP and the third MACP in accordance with the
rules and convey its decision to the petitioner within 12 weeks
from today.
15. If the petitioner is found eligible for the grant of the second ACP
and /or the third MACP, the arrears for the same shall be paid to
the petitioner within a period of six weeks of the said decision. In
case, the arrears are not paid within the time so granted, the
respondents shall pay interest @8% per annum to the petitioner
for the period of delay.
16. With the above directions, the present petition is disposed of.
NAVIN CHAWLA, J
SHALINDER KAUR, J
FEBRUARY 20, 2025
RN/VS
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