Yogeshwar Ram vs The State Of Jharkhand Through ...
2022 Latest Caselaw 3727 Jhar

                               -1-



    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No.74 of 2022
                           ----
     Yogeshwar Ram, aged about 73 years, Son of Bandhan Ram,
     resident of -New Birsa Nagar, Khunti Road, P.O.- Hawai
     Nagar, P.S.-Jagarnathpur, District-Ranchi, Jharkhand
                                          ...        ...   Appellant
                              Versus
1. The State of Jharkhand through Chief Secretary, having its
    office at Project Building, P.O. & P.S.-Dhurwa, District-
    Ranchi, (Jharkhand).
2. The Secretary, Department of Co-operative, having its office
    at Project Building, P.O. & P.S.-Dhurwa, Dist.-Ranchi.
3. The Joint Secretary, Department of Co-operative, having its
    office at Project Building, P.O. & P.S.-Dhurwa, Dist.-
    Ranchi.
4. The Registrar, Co-operative Societies, having its office at
    Project Building, P.O. & P.S.-Dhurwa, Dist.-Ranchi.
                                           ...   ... Respondents
CORAM :          HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                               ------
For the Appellant          : Mrs. Sheela Prasad, Advocate
                           : Mrs. Nirupama, Advocate
                           : Mr. Arun Kumar, Advocate
For Resp.-State            : Mr. Sreenu Garapati, S.C.-III
                              --------
C.A.V. on 01.09.2022             Pronounced on 15/.09/.2022

Per Sujit Narayan Prasad, J.

The instant intra-court appeal preferred under Clause-10

of Letters Patent is directed against the order/judgment dated

07.10.2021 passed by the learned Single Judge of this Court in

W.P.(S) No.4933 of 2014, whereby and whereunder, the order

dated 05.12.2013 passed by the respondent no.2, by which, the

writ petitioner's claim for grant of 2nd ACP in the scale of

Rs.14,300-18,300/- was rejected, has been refused to be

interfered with by dismissing the writ petition.

2. The brief facts of the case which are required to be

enumerated reads as under :-

The writ petitioner was appointed as Assistant Registrar

on 11.08.1978 and retired from service on attaining the age of

superannuation w.e.f. 01.03.2008 from the post of Deputy

Registrar. The writ petitioner claimed that he has completed 12

years of service on 11.08.1990 and 24 years of service on

11.08.2002 and as such, he became entitled for 1st upgradation

in pay scale under the Assured Career Progression (ACP)

Scheme w.e.f. 09.08.1999 in the scale of Rs.12,000-16,500/-

and 2nd ACP w.e.f. 11.08.2002 in the next higher scale of

Rs.14,300-18,300/-.

It is the case of the writ petitioner that he has moved

before the Patna High Court by filing the writ petition being

CWJC No.13339 of 2004 for issuance of direction for promotion

to the post of Senior Selection Grade. The aforesaid writ petition

was disposed of with a direction to the respondent authorities

to decide the issue in accordance with law. Pursuant to the

aforesaid order passed by the Patna High Court, the respondent

authorities vide order dated 14.12.2006, has allowed the

promotion in Senior Selection Grade in the scale of Rs.3700-

5000/- with replacement scale of Rs.12000-16500/- w.e.f.

01.12.1992.

It is the contention of the writ petitioner that scheme of

grant of Selection Grade has been abolished w.e.f. 01.01.1996

vide Finance Department Resolution No.660 dated 08.02.1999

and as per the Scheme pertaining to Assured Career

Progression Scheme dated 14.08.2002 and subsequent

amendment having been notified on 23.03.2006, implemented

w.e.f. 09.08.1999, by which, Rule 3(1) has been added,

whereby, it has been mentioned that any benefit granted under

Selection Grade prior to 01.01.1996 cannot be considered to be

benefit granted under ACP.

The writ petitioner, therefore, has claimed himself entitled

for 1st as well as 2nd ACP w.e.f. 09.08.1999 and 11.08.2002

respectively, in the next higher scale of Rs.14300-18300/-.

The aforesaid grievance having not been redressed,

therefore, the writ petitioner had preferred writ petition being

W.P.(S) No.4933 of 2014 taking the ground that after abolition

of the scheme of Time Bound Promotion/Selection Grade on

acceptance of recommendation of 5th Pay Revision Committee,

the writ petitioner was entitled for grant of upgradation under

the Assured Career Progression Scheme but the same has not

been extended, therefore, a direction has been sought for from

this Court upon the respondents to grant writ petitioner the

benefit of upgradation (both) under the Assured Career

Progression Scheme.

While on the other hand, State has taken the plea by

taking aid of one notification being notification no.3641 dated

14.12.2006 issued by the Co-operative Department, Erstwhile

State of Bihar, in compliance to the order passed in CWJC

No.13339 of 2004, the writ petitioner was granted higher pay

scale of Rs.3700-5000/- for the period from 01.12.1992 to

31.12.1995. Further, ground has been taken by making

reference of order, as contained in memo no.660 dated

08.02.1999 of the Finance Department of the Erstwhile State of

Bihar, whereby, the provision of benefit of higher pay scale of

the post of Senior Selection Grade has been withdrawn.

According to the State, since the benefit of higher pay

scale was granted to the writ petitioner for a limited period from

01.12.1992 to 31.12.1995 to the pay scale of Rs.3700-5000/-

and after the order of the Finance Department, Bihar, Patna,

the said benefit of higher pay scale granted to the writ

petitioner automatically came to an end.

It was the further contention of the respondent State of

Jharkhand that the Finance Department, State of Jharkhand

has taken a decision vide letter no.437 dated 15.02.2006, by

which, the pay scale fixed for the persons employed under the

Co-operative Department, the pay scale of Assistant Registrar,

Co-operative Department was Rs.3,000-4,500/- being

unrevised pay scale and salary under revised pay scale was

Rs.10000-15200/-. Therefore, contention was raised that the

writ petitioner, herein, has already been granted benefit of the

revised pay scale of Rs.10000-15200/- by the notification of the

Co-operative Department, Bihar, Patna vide notification

no.2136 dated 31.07.2002 w.e.f. 01.01.1996 and as such, the

writ petitioner has been granted the benefit of revised scale for

the post which he was holding i.e., Assistant Registrar, Co-

operative w.e.f. 01.01.1996 i.e., much prior to letter no.437

dated 15.02.2006.

Further, contention was raised that after completion of 24

years of service, the writ petitioner vide office order no.178

dated 27.01.2011, was granted benefit of 2nd ACP w.e.f.

11.08.2002 in the revised pay scale of Rs.12000-16500/-.

The State, therefore, in the backdrop of the aforesaid fact

has contested the case of the writ petitioner, since, he was

granted promotion from the post of Assistant Registrar to the

post of Deputy Registrar and as such, he was not entitled for 1st

ACP as also not entitled for 2nd ACP, which was granted to him

in the scale of Joint Registrar (Rs.12000-16500/-) and since,

the writ petitioner did not complete 30 years of service and has

superannuated prior to it, as such, he was not entitled for

upgradation in pay scale under Modified Assured Career

Progression Scheme (MACP).

The learned Single Judge, after appreciating the aforesaid

argument advanced on behalf of the parties, has dismissed the

writ petition on the ground that the writ petitioner was already

promoted as Deputy Registrar from the post of Assistant

Registrar and as such, he was not entitled for upgradation in

the pay scale under the Assured Career Progression Scheme

and further, since he was not completed 30 years of service, he

was not entitled for 3rd upgradation in pay scale under the

Modified Assured Career Progression Scheme, which is the

subject matter of the present intra-court appeal.

3. Mrs. Sheela Prasad, learned counsel appearing for the

appellant writ petitioner, has submitted that the learned Single

Judge has failed to appreciate the difference in between the

replacement scale which was granted in favour of the writ

petitioner by virtue of revision in pay scale vis-à-vis the

principle of grant of upgradation in pay scale either under the

Assured Career Progression Scheme or under the Modified

Assured Career Progression Scheme.

The learned Single Judge by not appreciating the

difference in between the two and merely on account of the fact

that the writ petitioner was granted benefit of revision in pay

scale by virtue of adoption of the recommendation of the Pay

Revision Committee, has denied the upgradation in pay scale,

therefore, the impugned order suffers from patent illegality and

as such, the same is not sustainable in the eye of law.

She has further been contended by questioning the order

passed by the learned Single Judge that the writ petitioner,

although, was granted the benefit of upgradation in pay scale

under the Time Bound Promotion Scheme by granting

promotion as Senior Selection Grade but the same having been

recalled by virtue of Government circular as contained in memo

no.660 dated 08.02.1999 on or after 31.12.1995 and thereafter,

the State of Jharkhand has come out with notification in the

year, 2006, notified on 23.03.2006, whereby, it has been

mentioned that any benefit granted under Selection Grade prior

to 01.01.1996, has not been considered under the Assured

Career Progression Scheme and as such, the benefit granted

under the Selection Grade in course of its subsistence period,

the same having been recalled by virtue of circular no.660

dated 08.02.1999 and after coming into effect of benefit of

Assured Career Progression Scheme vide resolution no.5207

dated 14.08.2002, the writ petitioner appellant, become entitled

for grant of upgradation in pay scale after completion of 12

years and 24 years of service, so far as it relates to 1st and 2nd

upgradation in pay scale, respectively as also by virtue of

replacement of Assured Career Progression Scheme which was

notified on 01.09.2009 and implemented w.e.f. 01.09.2008,

whereby and whereunder, the provision of three upgradation

has been provided to be made in favour of the employees

concerned in order to avoid stagnation on completion of

10/20/30 years of service and since the writ petitioner has

completed 30 years of service, as such, he became entitled for

benefit of 3rd upgradation in pay scale. But, the learned Single

Judge without appreciating theses aspects of the matter, since,

has dismissed the claim of the writ petitioner, hence, the same

is not sustainable in the eye of law and as such, the same may

be quashed and set aside.

4. Per contra, Mr. Sreenu Garapati, learned S.C.-III appearing

for the respondent State of Jharkhand has defended the order

passed by the learned Single Judge by making submission that

since the writ petitioner has already been granted benefit of

replacement scale and taking into consideration this aspect of

the matter, the learned Single Judge has refused to interfere

with the impugned order, hence, the same suffers from no

infirmity.

5. We have heard the learned counsel for the parties,

perused the documents available on record as also considered

the finding recorded by the learned Single Judge in the

impugned order.

6. This Court, before entering into the legality and propriety

of the impugned order, deems it fit and proper to refer some

legal issues for adjudication of the lis involved in this case.

7. The concept of grant of promotion as Junior/Senior

Selection Grade, has been notified after adoption of the

recommendation of the 4th Pay Revision Committee.

The aforesaid benefit has been rescinded by virtue of the

recommendation of the 5th Pay Revision Committee vide

Resolution No.660 dated 08.02.1999, whereby and whereunder,

the benefit granted either under Time Bound Promotion

Scheme or by way of granting Junior/Senior Selection Grade,

has been said to be effective upto 31.12.1995 and having made

it ineffective w.e.f. 01.01.1996. However, the order of recovery

has been decided not to be passed and the benefit of pay scale

by way of financial upgradation has been decided not to be paid

after 31.12.1995, meaning thereby, the benefit of upgradation

will be said to lost its force after 31.12.1995 and in

consequence thereof, one or the other employees will be

restored to its pay scale which they were getting prior to grant

of upgradation in pay scale either under the Time Bound

Promotion Scheme or under the Junior/Senior Selection Grade.

The State Government has come out with scheme of the

Assured Career Progression Scheme vide resolution dated

14.08.2002, whereby, the decision to grant upgradation in pay

scale has been taken in case, where the employee has not been

granted regular promotion but completed well after 24 years of

service, holding such employee, entitled for upgradation, first

on completion of 12 years of service and second on completion

of 24 years of service.

It has also been decided to grant such benefits notionally

w.e.f. 09.08.1999 and actual benefit from the date of creation of

the State of Jharkhand, i.e., 15.11.2000.

The benefit of Assured Career Progression Scheme,

subsequently, has been replaced by another scheme to be

known as "Modified Assured Career Progression Scheme",

notified by virtue of notification issued on 01.09.2009, and

implemented w.e.f. 01.09.2008, whereby, the financial

- 10 -

upgradation in pay scale has been decided to be given in favour

of one or the other employees, who have not been granted

regular promotion on completion of 10/20/30 years of service.

8. So far as the fact of the given case is concerned, the writ

petitioner was appointed as Assistant Registrar on 11.08.1978.

He was granted benefit of Senior Selection Grade in the scale of

Rs.12,000-16,500/- w.e.f. 01.12.1992, but, by virtue of Finance

Department Resolution No.660 dated 08.02.1999, the financial

benefit granted by virtue of grant of Senior Selection Grade has

been recalled after 31.12.1995. The State Government, in order

to avoid the confusion with respect to grant of benefit of

upgradation under the Assured Career Progression Scheme to

such employees who have been granted the benefit of

upgradation either by Time Bound Promotion or by granting

Junior/Senior Selection Grade and what would be effect of the

recall of the said benefit after coming into effect of the Assured

Career Progression Scheme by notifying one circular on

23.03.2006, implemented w.e.f. 09.08.1999, whereby and

whereunder, the decision was taken that the benefit of

upgradation either under the Time Bound Promotion Scheme or

under Junior/Senior Selection Grade granted prior to

01.01.1996 will not be treated to be financial upgradation for

the purpose of grant of benefit under the Assured Career

Progression Scheme, the relevant part of the said notification to

that effect is required to be referred as under:-

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"1- laf{kIr uke] foLrkj ,oa vkjEHk% & ¼1½ ;g fu;ekoyh fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUU;u ;kstuk½ ¼la'kks/ku½ fu;ekoyh 2006 dgh tk,xhA ¼2½ ;g fnukad 09-08-1999 ds izHkko ls izo`Ùk gksxhA 2- fcgkj jkT; lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh 2003 ds fu;e&3 ds mifu;e ¼1½ ds ckn fuEufyf[kr mifu;e ¼1d½ tksM+k tk;sxk% & ¼1d½ fnukad 01-01-1996 ls iwoZ ykxw izoj [email protected]) izksUufr ;kstuk ds v/khu izkIr foÙkh; mUu;u dks ,0lh0ih0 ;kstuk ds fufer foÙrh; mUu;u ugha ekuk tk;sxkA 3- fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh 2003 ds fu;e&3 dk Li"Vhdj.k ¼1½ ,rn~ }kjk foyksfir fd;k tkrk gSA 4- fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh 2003 ds fu;e 4 ds mifu;e ¼4½ ds Li"Vhdj.k ¼1½ esa iz;qDr 'kCn ^^dk;ZHkkfjr^^ rFkk Li"Vhdj.k ¼II½ esa iz;qDr 'kCn ^^vFkok dk;ZHkkfjr LFkkiuk^^ ,rn~ }kjk foyksfir fd;s tkrs gSaA 5- fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh&2003 ds fu;e 4 ds mifu;e ¼4½ ds Li"Vhdj.k ¼II½ ds ckn fuEufyf[kr ,d u;k Li"Vhdj.k ¼IId½ tksM+k tk;sxk% ^^Li"Vhdj.k ¼IId½ fu;fer dk;ZHkkfjr deZpkfj;ksa dks ,0lh0ih0 izksUufr ds fy, dk;ZHkkfjr lsokof/k dh x.kuk dh tk;sxhA 6- fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh&2003 ds fu;e 4 ds mifu;e ¼5½ ds ckn fuEufyf[kr ,d u;k mifu;e ¼6½ tksM+k tk;sxk% & ^^¼6½ fdlh [email protected] ds in&lksiku ds mPprj in ij izksUufr nsus ds fy, l{ke izkf/kdkjh gksaxAs 7- fcgkj jkT; deZpkjh lsok 'krZ ¼lqfuf'pr o`fÙk mUu;u ;kstuk½ fu;ekoyh&2003 ds fu;e 8 dk mifu;e ¼1½ dk ijUrqd ,rn~ }kjk foyksfir fd;k tkrk gSA"

9. It is evident after going through the notification dated

23.03.2006 as contained in notification no.1802 V(2) that

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whatever benefit has been granted either under the Time Bound

Promotion Scheme or under the Junior/Senior Selection Grade

granted prior to 01.01.1996 will not come in the way of grant of

upgradation under the Assured Career Progression Scheme.

10. Admittedly, herein, the writ petitioner has been granted

benefit of upgradation by granting Senior Selection Grade w.e.f.

01.12.1992 i.e., prior to 01.01.1996 but the same, by virtue of

resolution, has been recalled after 31.12.1995, meaning

thereby, from 01.01.1996, the upgradation in pay scale granted

in favour of the writ petitioner by virtue of grant of Senior

Selection Grade has been recalled. Thereafter, the Assured

Career Progression Scheme has been implemented w.e.f.

09.08.1999 by virtue of circular dated 14.08.2002, under

which, the writ petitioner has claimed upgradation in pay scale

on the ground that even in spite of the fact that he was

appointed on 11.08.1978 as Assistant Registrar but no regular

promotion has been granted even after completion of 12/24

years of service.

The said claim has been denied by passing the order dated

05.12.2013, on the ground that the writ petitioner has already

been granted promotion to the post of Deputy Registrar w.e.f.

01.01.1996 and has been granted revised pay scale.

Further, the writ petitioner was not entitled to get 2nd

upgradation on completion of 24 years of service on the ground

that he has already been granted regular promotion to the post

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of Deputy Registrar by virtue of issuance of notification dated

31.07.2002 making it applicable w.e.f. 01.01.1996 and as such,

there is no question of any stagnation. Further, he is also not

entitled to get 3rd upgradation under MACP scheme, since he

has not completed 30 years of service.

11. The position of law is clear, so far as the entitlement

under upgradation in pay scale is concerned under the Assured

Career Progression Scheme, after going through the circular

dated 14.08.2002, wherein, it has been decided to grant

upgradation in pay scale in order to avoid stagnation and on

completion of 12 years of service, so far as 1st upgradation and

2nd upgradation on completion of 24 years of service is

concerned.

12. Admittedly, the writ petitioner was granted upgradation by

virtue of Senior Selection Grade w.e.f. 01.12.1992 but that was

recalled in consequence of the Resolution No.660 dated

08.02.1999 and as such, it cannot be said after taking into

consideration the notification dated 23.03.2006 that he has

never been granted such upgradation, therefore, he became

entitled to be granted 1st upgradation under the Assured Career

Progression Scheme on completion of 12 years of service. Since

the writ petitioner has been granted the benefit of Senior

Selection Grade which was effective upto 31.12.1995 and as

such, during the aforesaid period, he has already been

considered and granted upgradation by granting Senior

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Selection Grade but the same having been recalled w.e.f.

01.01.1996, therefore, after coming into effect of Assured

Career Progression Scheme, he became entitled for grant of 1st

upgradation w.e.f. 09.08.1999 notionally and actually w.e.f.

15.11.2000 on the basis of the decision of the State

Government dated 23.03.2006, wherein, it has been decided

that the grant of upgradation by way of Time Bound Promotion

Scheme or by grant of Selection Grade will not come in the way

of consideration of upgradation under the Assured Career

Progression Scheme.

However, the respondent State has disputed this fact on

the ground that by virtue of notification dated 31.07.2002, the

writ petitioner has already been granted promotion to the post

of Deputy Registrar w.e.f. 01.01.1996 and as such, he is not

entitled to get 1st upgradation, but the said ground cannot be

said to be correct, for the reason, that the notification dated

31.07.2002 granting promotion in favour of the writ petitioner

w.e.f. 01.01.1996, although, was issued by promoting the writ

petitioner to the post of Deputy Registrar, Co-operative Society

making it effective w.e.f. 01.01.1996 but the said notification

having been issued on 31.07.2002 while, in pursuant to the

Government circular dated 14.08.2002 as contained in

Resolution No.5207, the writ petitioner became entitled for 1st

upgradation notionally w.e.f. 09.08.1999 and actual benefit

w.e.f. 15.11.2000.

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The writ petitioner became entitled for both upgradation

on completion of 12/24 years of service i.e., counting it from

the date of appointment while appointed as Assistant Registrar

on 11.08.1978, meaning thereby, the writ petitioner became

entitled to get the benefit of upgradation w.e.f. 09.08.1999, but,

the same cannot come in the way of grant of upgradation (both)

under the Assured Career Progression Scheme, for the reason

that the writ petitioner became entitled for grant of upgradation

on completion of 12/24 years of service w.e.f. 09.08.1999 and

even if any promotion has been granted on substantive post by

virtue of issuance of subsequent notification i.e., notification

dated 31.07.2002 that will not come in the way of grant of

upgradation (both) under the Assured Career Progression

Scheme taking into consideration, the due date of grant of such

benefit under the Assured Career Progression Scheme.

13. It requires to refer herein that the benefit of upgradation is

decided to be given in order to avoid stagnancy of promotion. If

one or the other employee completes 12/24 years of service and

eligible to get regular promotion, he became entitled for 1st

upgradation on completion of 12 years of service and 2nd

Upgradation on completion of 24 years of service, under the

Assured Career Progression Scheme.

There might be an occasion for an employee that after

completion of 12/24 years of service, when such employee

became entitled for upgradation in pay scale under the

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aforesaid Scheme, in case of non-grant of regular promotion

due to non-availability of posts, such benefit is to be granted in

favour of such employee in order to avoid stagnation but that

does not mean that such employee will not get regular

promotion in case of availability of vacancies later on and

chance thereof.

In such circumstances, if such employee will be granted

regular promotion by giving him post higher in hierarchy, then,

he will not be entitled to get monetary benefit, since, such

employee has already been granted higher pay scale by virtue of

grant of upgradation on completion of 12/24 years of service,

as the case may be.

Herein, the writ petitioner, although, was granted regular

promotion from the post of Assistant Registrar to that of the

post of Deputy Registrar vide notification dated 31.07.2002

w.e.f. 01.01.1996, but prior to issuance of aforesaid notification

i.e., 31.07.2002, he became entitled for grant of both

upgradation under the Assured Career Progression Scheme on

completion of 12/24 years of service from the date of initial

appointment i.e., w.e.f. 09.08.1999 and 11.08.2002.

The writ petitioner, in such circumstances, will not be

entitled to get any monetary benefit attached to the post of

Deputy Registrar, since, the writ petitioner has already been

granted regular promotion to the post of Deputy Registrar,

which is next higher hierarchy in cadre.

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14. Therefore, the contention raised by the learned counsel for

the State that since the writ petitioner has already been granted

regular promotion to the post of Deputy Registrar and as such,

he is not entitled to get upgradation, which cannot be accepted

by this Court.

15. The matter would have been different if prior to completion

of 24 years of service, the writ petitioner would have been

granted promotion to the higher post i.e., the post of Deputy

Registrar, then in such circumstance, there was no occasion of

consideration of case of the writ petitioner for grant of

upgradation by way of 2nd upgradation on completion of 24

years of service, but, that is not the case herein.

16. We are not in agreement with the plea, merely because the

pay scale of the writ petitioner has been replaced by virtue of

adoption of recommendation of Pay Revision Commission, as

such, he is not entitled to get the benefit of upgradation, for the

reason that the replacement by virtue of revision in pay scale is

quite different to that of upgradation to be granted under the

Assured Career Progression Scheme and Modified Assured

Career Progression Scheme. If an employee has been granted

upgradation either under the Assured Career Progression

Scheme or Modified Assured Career Progression Scheme and

subsequent thereto, there is a revision in the pay scale, such

employee will be granted the benefit of replacement scale by

virtue of effect of revision in pay scale on the basis of the

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replacement of pay scale of the upgraded scale which the

employee has got the same under ACP/MACP Scheme.

The revision in pay scale is nothing to do with upgradation

in pay scale, rather, it is the consequence of adoption of the

recommendation of the Pay Revision Committee which is

automatic, if the State has adopted the report of the Central

Pay Commission through its Fitment Committee.

17. Therefore, the reason of denial of the claim of upgradation

either under ACP/MACP Scheme on the ground of revision in

pay scale, cannot be construed to be correct interpretation and

therefore, the same is held to be improper.

18. This Court, on the basis of discussion made hereinabove,

is of the considered view that order impugned requires

interference due to the following reasons:-

(i) The learned Single Judge has failed to appreciate the

effect of Resolution No.660 dated 08.02.1999, whereby, one or

the other employee has been held entitled for upgradation in

pay scale under Assured Career Progression Scheme w.e.f.

09.08.1999 notionally and w.e.f. 15.11.2000 actually.

(ii) The learned Single Judge has failed to appreciate the

effect of Resolution dated 23.03.2006, as contained in

notification no.1802 V(2), whereby, the State Government has

taken decision to the effect that the benefit granted either

under Time Bound Promotion Scheme or Junior/Senior

Selection Grade granted prior to 01.01.1996 will not come in

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the way of grant of upgradation under Assured Career

Progression Scheme.

(iii) The learned Single Judge has further failed to

appreciate the difference in between the effect of revision in pay

scale and upgradation in pay scale, since, the revision in pay

scale is quite different to that of upgradation in pay scale,

reason being that, the upgradation is to depend upon the

Government policy decision for grant of upgradation in pay

scale either under the ACP or MACP Scheme, while on the other

hand, the replacement in pay scale depends upon the adoption

of recommendation of the Central Pay Commission by the State

Government. If an employee has been granted upgradation in

pay scale and thereafter, the pay revision has been effected,

such employee will automatically come to replacement scale of

the scale which was granted in his favour by virtue of

upgradation in pay scale.

19. So far as the claim of the writ petitioner that he is also

entitled to get the 3rd upgradation on completion of 30 years of

service on the basis of Modified Assured Career Progression

Scheme. The Assured Career Progression Scheme has been

replaced by the Modified Assured Career Progression Scheme

by virtue of resolution dated 01.09.2009, whereby and

whereunder, it has been provided that an employee will be

granted three upgradation on completion of 10/20/30 years of

service. The aforesaid resolution dated 01.09.2009 has made

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effective from 01.09.2008.

Admittedly herein, the writ petitioner has superannuated

from service w.e.f. 01.03.2008, which is prior to the

implementation of the Modified Assured Career Progression

Scheme, which has been made applicable w.e.f. 01.09.2008,

therefore, the writ petitioner cannot be held entitled for 3rd

upgradation under the Modified Assured Career Progression

Scheme.

20. Accordingly, the order passed by the learned Single

Judge, is quashed and set aside, so far as grant of Assured

Career Progression Scheme is concerned, for the reasons

aforesaid.

21. However, so far as grant of Modified Assured Career

Progression Scheme is concerned, the same requires no

interference, for the reason, as reflected hereinabove.

22. Accordingly, the instant appeal is allowed partly and the

order passed by the learned Single Judge, to the extent of

rejecting the claim of the writ petitioner for grant of upgradation

under Assured Career Progression Scheme (both), is hereby

quashed and set aside.

23. The respondent State is directed to take consequential

steps for disbursement of difference of arrears of salary and the

other consequential benefits within the period of three months'

from the date of receipt of copy of the order.

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24. Pending interlocutory application(s), if any, also stands

disposed of.

(Dr. Ravi Ranjan, C.J.) I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)

A.F.R.

Rohit/