Sanjay Kumar vs State Of Himachal Pradesh & Others
2023 Latest Caselaw 17292 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                             CWPOA No.5536 of 2020 a/w
                                     CWPOA No.5545, 5553 and 5561 of 2020
                                                             Decided on: 01.11.2023
    1.    CWPOA No.5536 of 2020




                                                                              .

    Sanjay Kumar                                                           .... Petitioner
                                  Versus
    State of Himachal Pradesh & others                                  .... Respondent





    2.    CWPOA No.5545 of 2020
    Shashi Kant                                                            .... Petitioner
                                             Versus
    State of Himachal Pradesh & others                                  .... Respondent





    3.    CWPOA No.5553 of 2020
    Som Dutt                                                               .... Petitioner
                                  Versus

    State of Himachal Pradesh & others                                  .... Respondent

    4.    CWPOA No.5561 of 2020
    Jai Prakash                                                           .... Petitioner

                                             Versus


    State of Himachal Pradesh & others                                  .... Respondent

    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge
    The Hon'ble Mr. Justice Sandeep Sharma, Judge




    Whether approved for reporting1 : Yes.





    For the Petitioner(s):          Mr. Onkar Jairath, Advocate.
    For Respondent(s):              Mr. Anup Rattan, Advocate General with
                                    Mr. Varun Chandel, Additional Advocate





                                    General     .
    Sandeep Sharma , J (oral)

Since all these petitions lay challenge to order dated

3.08.2018, issued by Deputy Director Elementary Education, District

Sirmour, Himachal Pradesh, same were heard together and are now

Whether Reporters of local newspaper are permitted to see the judgment ?

being disposed of by a common judgment. However, for the sake of

clarity, facts of CWPOA No. 5636 of 2020 are being discussed.

2. Petitioners herein being fully eligible to be appointed as JBT,

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submitted their applications for the said posts lying vacant in District

Sirmour, Himachal Pradesh. Pursuant to selection process initiated by the

Education Department, the petitioners were called for interview held on

11.05.1999 and 12.05.1999 being fully qualified. After their being declared

successful, petitioners were offered appointments to the post of JBT

Teacher vide office order dated 22.05.1999 but they joined their duties on

1.06.1999, 31.05.1999 and 29.05.1999, respectively and since then they

had been performing their duties to the satisfaction of the employer. The

Government of Himachal, Finance Department introduced a scheme

namely as Proficiency Step up w.e.f.1.1.1986, whereby incumbents were

held entitled for grant of financial benefits under the scheme on

completion of 8/18 years in the cadre. However, in the year 1998 a new

scheme namely Assured Career Progression Scheme (for short 'ACPS')

came to be introduced in place of old scheme, w.e.f.1.1.996 wherein

government employee became entitled for additional increment on

completion of 8-16-24-32 years regular service in the cadre and in

addition to afore increment, employees were also held entitled for next

higher pay scale on completion of 8 and 32 years. Aforesaid ACPS

remained in operation till 27.8.2009, whereafter vide communication dated

8.8.2012 Principal Secretary (Finance) introduced new ACPS on

completion of 4-9-14 years of service in a cadre and also restored old 8-

16-24-32 for government employees. The new scheme was made

optional (Annexure P-4). As per aforesaid new scheme a government

employee became entitled for the benefit of three financial enhancement

as per Clause 3(b)(c)(d) and (e), which is reproduced as under:-

"(b) An employee who has completed four years service but less than 8 years service in a cadre will be placed in next grade pay in the hierarchy of grade pays and his pay will be fixed at

.

next higher stage in the pay band. If the pay so fixed is less

than minimum of higher pay band than his pay will be fixed at the minimum of higher pay band. The next increment in such cases will be given after qualifying service of 12 months in the higher pay band.

(c) A employee who has rendered four years of service but less than 09 years of service in the cadre and has availed benefit of placement in the next higher scale in the hierarchy of pay scales after eight years of service shall get nothing as he has already availed benefit of one increment and placement in the

next higher pay scale under the existing Assured Career Progression Scheme of 8,16,24 and 32 years of service.

(d) An employee who has completed 9 years of service but less than 14 years of service in a cadre in the same post and

availed one placement in the next higher scale in the hierarchy of pay scales under the existing Assured Career

Progression Scheme after a service of 08 years shall be placed in the next higher grade pay in the hierarchy of grade pays and his pay shall be fixed at the next higher stage in that pay band.

(g) An employee who has completed 14 years of service in a cadre

but less than 16 years in the same post and availed one placemen tin the next higher scale in the hierarchy of pay scales under the existing Assured Career Progression Scheme after a service of 8 years shall be allowed two

placements in the next higher grade pays in the hierarchy of grade pays i.e. after 9 years and 14 years service and his pay shall be fixed at the next higher state in that each pay band."

3. Since petitioners herein were appointed as JBT Teacher on

regular basis on 1.06.1999, 31.05.1999 and 29.05.1999, respectively they

were considered to have completed eight years regular service as on

1.6.2007 in the cadre of JBT teacher and as such, came to be granted

first financial benefit on completion of eight years of service under old 8-

16-24-32 ACPS w.e.f. 1.06.2007. Since aforesaid scheme subsequently

came to be replaced by new ACPS Scheme, petitioners exercised their

option and opted for new ACPS. Since petitioners had been working in

the same cadre of JBT and had completed 9 years service on 1.6.2008

they claimed to have become entitled for second financial benefit under

ACPS, which was actually made operative w.e.f.27.8.2009. As per new

.

scheme government employee is entitled for benefit under new ACPS on

notional basis w.e.f. 27.8.2009, however actual benefit from the date of

issuance of the scheme w.e.f.9.8.2012. Petitioners stand granted second

financial benefit on notional basis w.e.f.27.8.2009 and on actual basis

from the date of issuance of notification dated 9.8.2012, but since after

completion of 14 years of regular service , petitioners are denied third

financial benefits under the new ACPS scheme, as is evident from

impugned communication dated 3.8.2018, issued under the signature of

Deputy Director Elementary Education, they approached erstwhile H.P.

Administrative Tribunal by way of Original Applications No.6803 of 2018,

6806 of 2018, 6808 of 2018 and 6809 of 2018,which now on account of

abolishment of Tribunal stand transferred to this Court and stand re-

registered as CWPOA No.5536 of 2020, 5545 of 2020, 5553 of 2020 and

5561 of 2020, praying therein for following main reliefs:-

i. That impugned order dated 03.08.2018 (Annexure A-8)

may be quashed and set aside.

ii. That the respondents may be directed to grant third financial enhancement/upgradation under the new ACPS

on the completion of 14 years of service w.e.f.01.06.2013 with all consequential benefits.

iii. That the respondents may be further directed to calculate the arrears on account of grant of their financial upgradation under the new ACPS (4/9/14) alongwith interest @ 12% per annum.

4. Having heard learned counsel representing the parties and

perused the material adduced on record, especially reply filed by the

respondent-State, this Court finds that facts, as have been noticed

hereinabove, are not in dispute. Precisely, the ground raised on behalf of

the respondent to refute the claim put forth by the petitioners, is that they

.

have been already given three financial upgradation under ACPS and as

such, not entitled to third financial benefit under ACPS w.e.f.1.6.2013.

5. Mr. Onkar Jairath, learned counsel representing the

petitioners submitted that the financial upgradation/ enhancement, if any,

on account of the pay revision cannot be counted towards the benefit, if

any, under ACPS, rather for that purpose three clear cut financial up-

gradations are required to be given to an employee in terms of ACPS

opted by him.

6.

To the contrary, Mr. Varun Chandel, learned Additional

Advocate General supported the impugned action of the respondent and

claimed that petitioners after being appointed as JBT on regular basis on

1.06.1999, 31.05.1999 and 29.05.1999, respectively were granted benefit

of ACPS on 1.6.2007, 31.5,2007 and 29.5.2007 in old ACPS Scheme. He

submitted that since after implementation of new ACPS Scheme

petitioners opted for new ACPS scheme, therefore, benefit already

granted after completion of eight years was to be adjusted in new ACPS

Scheme. He submitted that after completion of nine years of service

benefit under new ACPS Scheme 4-9-14 already stands granted to the

petitioners as per provision of the scheme, however third benefit as being

claimed after 14 years of service is not admissible on account of the fact

that grade pay of the petitioners has been enhanced by the government

order w.e.f. 1.10.2012. He submitted that vide communication dated

26.2.2013 government has clarified that grant of grade pay vide order

dated 1.10.2012 shall be treated as financial enhancement for the

purpose of granting benefit under 8-16-24-32 and 4-9-14 ACPS Scheme.

He submitted that careful perusal of letters dated 7.7.2014 and 9.9.2014

.

issued by Finance Department, Government of Himachal Pradesh clearly

suggests that maximum three financial up-gradations/ enhancements/

promotions are admissible to a regular employee in entire service career

and as per new ACPS scheme, service in cadre rendered by an employee

in the same post before 27.8.2009 shall count for the purpose of grant of

benefit under this new ACP Scheme.

7. Having heard learned counsel for the parties and perused

the material available on record, this Court finds that as of today, two

benefit of financial upgradation already stands granted to the petitioners

in terms of new ACP scheme and dispute is only with regard to

entitlement, if any, of the petitioner for third benefit after 14 years of

service. Third benefit under new ACP scheme is sought to be denied to

the petitioners on the ground that on account of enhancement of grade

pay vide government order dated 1.10.2012 pay of the petitioners has

been already enhanced and same in terms of order dated 26.2.2013

issued by the Government of Himachal Pradesh is to be treated as

financial enhancement for the purpose of granting benefit under 8-16-24-

32 and 4-9-14 ACP scheme. Much reliance has been placed on

communication dated 26.2.2013 issued by Government of Himachal

Pradesh, whereby it came to be clarified that grade pay granted vide

order 1.10.2012 shall be treated as financial enhancement for the purpose

of granting benefit under 8-16-24-32 and 4-9-14 ACP scheme.

8. There cannot be any quarrel with the stand taken by the

respondents that after implementation of new ACP scheme, benefit

already granted under old scheme after completion of eight years was to

.

be adjusted in new ACP scheme, which came into force w.e.f.27.8.2009.

Similarly, it is also not in dispute that after completion of nine years

service benefit under new ACP scheme i.e.4-9.2014 already stands

granted in favour of the petitioners.

9. Now question which needs to be determined in the instant

proceedings as to "whether pay revision or grant of grade pay vide order

dated 1.10.2012 can be termed to be a financial upgradation so as to

deny the benefit of financial upgradation under ACPS.

10.

Careful perusal of communication dated 7th July 2014

whereby old ACP scheme came to be replaced by new ACPS, clearly

reveals that annul increment or general pay revision shall not be

considered as financial upgradation for the purpose of benefit, if any,

under ACPS. If it is so, there appears to be merit in the claim of the

petitioners that they are entitled to the benefit of third financial

upgradation after their having completed 14 years of service. At this

stage, it would be apt to take note of para-5 of the afore letter, which

reads as under:-

"Moreover, the overriding objective on an assured career progression scheme is to ensure at least three financial up-gradations/ enhancements/ promotions to a regular employee in his entire service career. Therefore, in partial modification of earlier orders on ACP schemes it is directed that, once an employee has already got three enhancements / financial up- gradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, in fourteen years or more his/her entire service., thereafter, he will not be entitled for placement in next

higher grade pay in the ACPS Scheme introduced vide FD's instructions dated 9th August 2012. However, it is clarified that after availing three enhancements / upgradation/ promotion, an employee will be eligible to take the benefit of normal promotions available in his service career."

.

11. Careful perusal of aforesaid instructions clearly reveals that an

employee is granted three enhancements/upgradations/promotion, he/she

shall not be eligible for grant of further benefit, if any, under ACPS, but in

the case at hand, petitioners after being appointed as JBT though were

given two benefits of financial upgradation under ACPS, first benefit was

granted under old ACPS after their having completed eight years service,

whereas second benefit was granted in their favour after their having

completed nine years service under new ACPS and third benefit in terms

of new ACPS, for which petitioners have already opted, is being denied

on the ground that vide order dated 26.02.2013 grade pay of the

petitioners has been enhanced w.e.f. 1.10.2012. However, as observed

hereinabove, financial upgradation, if any, on account of pay

revision/revision of grade pay cannot be a ground to deny benefit of

financial upgradations under ACPS, which become due after completion

of four, nine and fourteen years as per new ACPS. Though, it has been

vehemently argued on behalf of the respondents/State that grade pay of

the petitioners was enhanced, as a result of which, their pay was

enhanced, but as has been taken note above, financial enhancement on

account of annual increment or general pay revision, based on pay

commission, is not to be considered while considering the case of an

employee for grant of benefit of ACPS. Since, in the case at hand pay of

the petitioners came to be enhanced on account of grant of grade pay,

benefit of financial upgradation in terms of provision contained under

ACPS cannot be denied.

12. True, it is that careful perusal of communication 26.02.2023,

.

which has been relied heavily by the respondents, suggests that a

government employee after rendering service of 4,9 and 14 years in a

post or posts without any financial enhancement in the same cadre/post, if

not promoted to higher level on account of non availability of a vacancy

or non- existence of promotional avenue in the cadre, shall be granted

the grade pay, which is next higher in the hierarchy of grade pay given in

the schedule annexed to Revised Pay Rules, 2009 upto maximum grade

pay of Rs.8900/- and on placement in the next higher grade pay in the

hierarchy of grade pays after service of 4, 9 and 14 years, but such

benefit of re-revision of pay shall be treated as financial enhancement for

the purpose of granting benefit under 4-9-14 and 8-16-24-32 but there is

nothing to dispute that vide notification dated 7th July 2014 (Annexure P-

5), it specifically came to be clarified that once an employee has already

got three enhancements/ financial up-gradations i.e. grant of progression

under the new or old ACPS or promotion or any other financial

enhancement, except the annual increment or the general pay revision

based on the pay commission, in fourteen years or more during his/her

entire service will not be entitled for placement in next higher grade pay in

the ACP Scheme introduced vide instructions dated 9th August 2012. It is

quite apparent from perusal of aforesaid letter that financial upgradation,

if any, on account of pay revision cannot be a ground to deny benefit

under ACPS. Since pay of the petitioners came to be enhanced on

account of enhancement in grade pay, benefit of financial upgradation in

terms of ACPS cannot be denied.

13. Consequently, in view of the discussions made

.

hereinabove, this Court finds merit in the instant petitions and accordingly

same are allowed. Office order dated 3.08.2018 (Annexure A-8) is

quashed and set aside and the respondents are directed to consider the

case of the petitioners for grant of financial upgradation under ACPS (4-9-

14) time scale/enhancement after their having completed 14 years of

service at par with their counterparts from the due date. Since petitioners

have been fighting for their rightful claim for years together, this Court

hopes and trusts that needful shall be done in terms of the directions

contained in the instant judgment expeditiously, preferably within a period

of six weeks. Pending applications, if any, also stands disposed of.

                                                      (Vivek Singh Thakur)


                                                             Judge


                                                      (Sandeep Sharma)




    November 01, 2023                                     Judge
     (shankar)