Decided On: 20Th May vs State Of H.P. & Anr
2025 Latest Caselaw 5800 HP

Himachal Pradesh High Court

Decided On: 20Th May vs State Of H.P. & Anr on 20 May, 2025

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

2025:HHC:14630

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.7900 of 2025 Decided on: 20th May, 2025 _________________________________________________________________ Baljeet Kumar ....Petitioner

Versus State of H.P. & Anr ...Respondents _________________________________________________________________

Coram

Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting?

_________________________________________________________________ For the petitioner: Mr. Rocky, Advocate.

For the respondents: Ms. Leena Guleria, Deputy Advocate General.

Jyotsna Rewal Dua, Judge

Following order was passed in the matter on

14.05.2025:-

"Notice. Ms. Leena Guleria, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents.

Petitioner's grievance in this petition is to the order dated 28.11.2024 (Annexure P-6), whereby respondent No.2 has rejected his representation for grant of benefit of the decision rendered in CWPOA No.5536 of 2020 (Sanjay Kumar Versus State of Himachal Pradesh & others), decided alongwith

Whether reporters of Local Papers may be allowed to see the judgment? yes

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connected matters on 01.11.2023. Prima facie, the reasoning assigned in the impugned order for declining the case of the petitioner appears to be in contrast to the decision in Sanjay Kumar's case, supra.

Confronted with above, learned Deputy Advocate General seeks an adjournment by two days to have instructions from the respondents.

List on 16.05.2025."

On the next date of hearing, instructions in terms

of previous order were not produced. Consequently, order

dated 16.05.2025 was passed as under:-

"Despite the order having been passed on 14.05.2025, instructions have still not forth come. At the request of learned Deputy Advocate General, the matter is adjourned to 20.05.2025 to enable her to comply with the previous order."

Today also, at the request of leaned Deputy

Advocate General, matter was adjourned in the forenoon

session to enable the respondents to place on record

instructions. Despite the matter having been passed over,

instructions have not come forth. In these circumstances,

matter is taken up for consideration.

2. Petitioner's grievance is to the office order dated

28.11.2024, whereby the Director Higher Education,

Himachal Pradesh considered the case of the petitioner in

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terms of judgment rendered in Manju Devi and others Vs.

State of H.P. and Others2. Present petitioner was one of the

petitioners in the aforesaid case. In terms of the judgment,

respondents were directed to consider the individual

representations of the petitioners for the redressal of their

grievances in accordance with law.

3. Petitioner had also preferred his representation

seeking grant of progression under the Assured Career

Progression Scheme (ACPS). The Director Higher Education,

rejected petitioner's representation on the ground that

decision rendered in Sanjay Kumar Vs. State of HP and

Ors3 has been assailed before the Hon'ble Apex Court and

also on the ground that benefit under the new ACPS cannot

be allowed to the petitioner by ignoring the benefit of re-

revision 2012 as per the instructions/directions of the

Government. Relevant portion from the impugned order is

as follows:-

"Whereas the Hon'ble High Court of Himachal Pradesh vide judgment dated 10.09.2024 in CWP No. 9509 of 2024 titled as Manju Devi and others Versus State of Himachal Pradesh and others directed that:-

"Having heard learned Counsel for the parties,

CWP No.9509 of 2024 decided on 10.09.2024.

CWPOA No.5536 of 2020, decided alongwith connected matters on 01.11.2023

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this writ petition is disposed of with direction that in the event of the petitioners filing independent representations with regard to the issue raised in the writ petition within a period of four weeks from today, appropriate speaking orders thereupon be passed by the competent Authority, in accordance with low, within a period of eight weeks thereafter. Pending miscellaneous application(s), If any also stand disposed of accordingly".

And Whereas the clarification issued by the Finance Department vide letter Fin (PR)B(7)-59/2010 dated 7.7.2014, directed that once an employee has already got three enhancements/financial up- gradations i.e. grant of progression under new or old Assured Career Progression Scheme, or promotion or any other enhancement in his entire service career, thereafter he will not be entitled for placement in next higher grade pay in the new Assured Career Progression Scheme introduced vide FD's instructions dated 9.8.2012. The Director Elementary Education Himachal Pradesh has agitated the judgment passed by the Hon'ble High Court in CWPOA No. 5536/2020 in OA No. 6803/2012 titled as Sanjay Kumar V/s State of HP and others and filed SLP in the Hon'ble Apex Court.

Now therefore, in view of the facts and circumstances of the case and in compliance to the Hon'ble High Court order in CWP No. 9509 of 2024. The representations of petitioners namely Smt. Manju Devi Lecturer Chemistry, Smt. Veena Devi lecturer English DIET Dharamshala and Sh. Baljeet Kumar the then lecturer Hindi now Principal GSSS Trilokpur District Kangra have been perused and it has been found that the benefit under new Assured Career

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Progression Scheme cannot be allowed by ignoring the benefit of re-revision 2012 as per latest instruction/ direction of Government. Hence the representation is considered and rejected. The representation of remaining petitioners is to be decided by the respondent number 2 as they completed 14 years of service in JBT/TGT cadre."

4. The impugned order passed by the Director Higher

Education is absolutely in breach of the decision rendered in

Sanjay Kumar3. The question for determination before the

Hon'ble Division Bench in Sanjay Kumar3 was as to whether

pay revision or grant of Grade Pay vide order dated

01.10.2012 can be termed to be a financial upgradation so

as to deny the financial upgradation under ACPS. Whether,

benefit of 14 years of service under the new ACPS can be

denied on account of enhancement of Grade Pay under the

Government Order (Pay Revision) effected on 01.10.2012.

Hon'ble Division Bench on the basis of circular dated

07.07.2014 held that annual increment or general pay

revision shall not be considered as financial upgradation for

the purpose of benefit, if any, under the new ACPS.

Consequently, the Court found merit in the claim of the

petitioners that they are entitled to the benefit of 3rd financial

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upgradation on their completing 14 years of service despite

receiving the enhancement of Grade Pay under the

Government Order dated 01.10.2012. Relevant observations

and conclusion drawn in the aforesaid judgment are as

under:-

"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.....

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

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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 upgradations 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

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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."

It is not the case of the respondents that decision

in Sanjay Kumar3 has been stayed by the Hon'ble Apex

Court. Learned Deputy Advocate General fairly states that the

respondents have taken a policy decision to implement the

decision rendered in Sanjay Kumar3 subject to outcome of

the SLP filed by them. That being the position, it is beyond

comprehension as to why respondents have passed the

impugned order, rejecting the case of the petitioner for

reasons, which have already been turned down in Sanjay

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Kumar3. It was not open for the respondent-the Director

Higher Education, H.P. to sit over the decision in Sanjay

Kumar3.

5. In view of above, the impugned order dated

28.11.2024 is quashed and set aside with costs of

Rs.10,000/- to be paid to the petitioner within a period of two

weeks from today. Respondents are directed to consider the

representation of the petitioner afresh in accordance with law

keeping in view the decision rendered in Sanjay Kumar3

within three weeks.

The writ petition stands disposed of in the above

terms, so also the ending miscellaneous application(s), if any.

Jyotsna Rewal Dua Judge May 20, 2025 R.Atal