Orissa High Court
Subhashree Mishra And Three ... vs Registrar General Of India & on 11 June, 2021
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No. 34100 of 2020
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
---------
Subhashree Mishra and three others ...... Petitioners
-Versus-
Registrar General of India &
Census Commissioner and others ...... Opp. Parties
For Petitioners : Mr. Nirmal Ranjan Routray,
Mr. J. Pradhan, Mr. T.K. Choudhury
and Mr. S.K. Mohanty
For Opp. Parties : Mr. Prasanna Ku. Parhi, ASGI and
Mr. Chhayakant Pradhan, CGC.
CORAM:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
Date of Hearing - 17.3.2021 & 11.06.2021
and
Date of Judgment - 11.06.2021
S. K. MISHRA, J. Admit.
2. The petitioners, in this writ application, have challenged the
order dated 12.02.2020 passed in O.A. No.260/698./2017 by the learned
Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter
referred to as "the Tribunal" for brevity) rejecting their prayer to grant 2nd
financial up-gradation under Assured Career Progression (ACP) Scheme and
order dated 24.11.2020 passed in R.A. No.10 of 2020 (arising out of O.A.
No.260/698/2017) refusing to review and recall the order passed in the said
Original Application.
03. The Government of India, Ministry of Home Affairs, Office of
the Registrar General, India issued Circular dated 18.03.1980 regarding
method(s) of recruitment to temporary Group 'B' and Group 'C' posts to be
created for manning Units of the Direct Data Entry System to be installed at
different stations in India, under the Plan Scheme "Computerization of 1981
Census Data". The said Circular stipulated educational qualification for the
post of Operator i.e. "Degree with Statistics or Mathematics or Economic
(with Statistics) as a subject, of a recognized University or equivalent". In
August, 1981, the Government of India, Ministry of Home Affairs, Office of
the Registrar General, India issued another Circular regarding method(s) of
recruitment of temporary Group 'B' and Group 'C' posts created/ to be
created for manning the Units of the Direct Data Entry System installed/ to
be installed at different stations in India under the Plan Scheme
"Computerization of 1981 Census Data". As per the August, 1981 Circular,
the educational qualification for the post of Operator was "degree of a
recognized University or equivalent".
04. To fill up the posts of Direct Data Entry Operators Grade-B
under the Opposite Party No.3- Director, Census Operations of Odisha,
Bhubaneswar, District- Khordha, candidates were called for through Offices
of Employment Exchange of Cuttack and Bhubaneswar. On being selected,
the Petitioners were appointed as Operators of D.D.E. Unit on ad hoc basis
with effect from 01.06.1982/ 07.05.1984/ 11.05.1984 on regular capacity.
Further, vide order dated 22.08.1985, the then Deputy Director of Census,
Office the Director of Census Operations, Orissa, Bhubaneswar, the
Petitioners were appointed on regular basis in temporary capacity with effect
from 01.06.1992/ 07.05.1984/ 11.05.1984.
While the Petitioners were discharging their duties, the Fifth
Central Pay Commission in its Report made certain recommendations
relating to the Assured Career Progression (ACP) Scheme for the Central
Government Civilian Employees in all Ministries/ Departments with a view
to provide 'Safety Net' to deal with the problem of genuine stagnation and
hardship faced by the employees due to lack of adequate promotional
avenues. To that effect Office Memorandum dated 9th August, 1999 was
issued by the Government of India, Ministry of Personnel, Public Grievance
and Pensions (Department of Personnel and Training).
The ACP Scheme provides two financial up-gradations to the
employees on completion of 12 years and 24 years of qualifying service. The
Petitioners and others have been granted 1st financial up-gradation with
effect from 09.08.1999 and placed in the scale of 5,000-8000/- vide order
dated 13.06.2000.
05. After completion of 24 years of regular service, the Petitioners
claimed that they are entitled to 2nd financial up-gradation under the ACP
Scheme. The Opposite Party No.4-Assistant Director, Office of the Registrar
General of India, New Delhi vide letter dated 15.04.2015 requested all the
Directors of Census Operations of different States to send the fresh/ revised
proposals of the officials i.e. D.E.Os. Grade 'B' and Senior Supervisors for
grant of 2nd financial up-gradation under ACP Scheme in PB-III with GP of
Rs.5,400/- with effect from their respective dates. Further, the Opposite
Party No.4- Assistant Director, Office of the Registrar General of India, New
Delhi vide letter dated 29.04.2015 requested all the Directors of Census
Operations of different States to furnish the documents relating to
educational qualification of all the DEOs/ Senior Supervisors who have
completed 24 years of regular service from 01.01.2006 to 31.08.2008. In the
said letter dated 29.04.2015 the educational qualification sought for was
"possessing a degree in Statistics/ Mathematics/ Operation Research/
Physics/ Economics/ Commerce/ Computer Application of a recognized
University or equivalent". The Opposite Party No.4- Assistant Director,
Office of the Registrar General of India, New Delhi also requested all the
Directors of Census Operations to furnish two lists i.e. those who have the
required qualification and lack of required qualification of DEOs Grade 'B'
for consideration of their cases for grant of 2nd financial up-gradation under
ACP Scheme.
06. The further case of the Petitioners is that the Opposite Party
No.2-Under Secretary, Office of the Registrar General of India, New Delhi
vide Office Order date 18.01.2016 granted 2nd up-gradation under ACP
Scheme in favour of 231 Data Entry Operators Grade 'B'/ Senior
Supervisors after completion of 24 years of regular service in the Pay Band 3
with Grade Pay Rs.5,400/-. On being aggrieved by the letter dated
29.04.2015 of the Opposite Party No.4- Assistant Director, Office of the
Registrar General of India, New Delhi, an application was submitted on
dated 13.06.2016 to the Opposite Party No.5- Secretary, Ministry of
Personnel, Public Grievance and Pension, Department of Personnel &
Training, North Block, New Delhi by the President of All India Census EDP
Staff Association (AICEDPSA), C/o- DCO, Odisha, Bhubaneswar
ventilating their grievances regarding imposition of certain qualification
for grant of 2nd financial up-gradation under ACP Scheme in the hierarchal
cadre. It is further pleaded by the Petitioners that due to amendment of
Recruitment Rules in the year 1981, the Petitioners were given appointment
as Direct Data Entry Operators Grade 'B' and the same was very much
within the knowledge of the authority. It was also pleaded that insisting upon
certain qualification meant for direct recruitment to the post of Assistant
Director amounts to denial of actual financial up-gradation under ACP
Scheme.
07. The Opposite Party No.2-Under Secretary, Office of the
Registrar General of India, New Delhi vide letter dated 02.09.2016
communicated the decision taken on the representations submitted by the
President and Secretary General of AICEDPSA to all Controlling Officers
under his/ their control. From the communication dated 02.09.2016 it
appears that the Opposite Parties/ Authorities have insisted upon paragraph-6
of Annexure-1 to the Office Memorandum relating to Assured Career
Progression Scheme for the Central Government Civilian Employees issued
on 9th August, 1999 by the Government of India, Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel and Training) as
well as paragraph-53 of the clarification dated 18.07.2001 regarding
possession of necessary qualification meant for the post of Assistant
Director under direct recruitment quota. It is the case of the Petitioners that
while considering their representation, the Opposite Party No.2-Under
Secretary, Office of the Registrar General of India, New Delhi has neither
taken the latest clarification issued by the Opposite Party No.5- Secretary,
Ministry of Personnel, Public Grievance and Pension, Department of
Personnel & Training, North Block, New Delhi vide Office Memorandum
dated 29.06.2004 wherein it is specifically clarified that 12/24 years of
qualifying service is the only criteria for grant of 1st/ 2nd financial up-
gradation under ACP Scheme.
08. Being aggrieved by the letter dated 29.04.2015 issued by the
Opposite Party No.4- Assistant Director, Office of the Registrar General of
India, New Delhi and the letter dated 02.09.2016 issued by the Opposite
Party No.2-Under Secretary, Office of the Registrar General of India, New
Delhi, the Petitioners approached the learned Central Administrative
Tribunal, Cuttack Bench, Cuttack by filing O.A. No.260/698/2017. The
Opposite Party Nos.1 to 4 after receiving notices in the said Original
Application entered appearance and filed counter reply supporting the claim
of the Petitioners for grant of 2nd financial up-gradation on the ground that
once relaxation granted at the time of initial appointment to the grade of
Operators were relaxed for ever.
Though it is pleaded by the Petitioners that the Opposite Party
Nos.1 to 4 filed their counter affidavit supporting the claim of the Petitioners
for grant of 2nd financial up-gradation on the ground that once relaxation
granted at the time of initial appointment to the grade of Operators were
relaxed for ever with the quotation of paragraphs-6, 7, 10 and 11 of the
counter affidavit, we find that in reality such facts are not pleaded in the
counter affidavit filed by the Opposite Party Nos.1 to 4 before the learned
Central Administrative Tribunal, Cuttack Bench, Cuttack in the said Original
Application which is annexed as Annexure-10 to the writ petition. So, it
appears that the Petitioners' averments especially at paragraph-12 of the writ
petition is misleading and erroneous one. When the learned Central
Administrative Tribunal, Cuttack Bench, Cuttack dismissed the Original
Application on 12.02.2002, at paragraph 12, has observed that "in the case in
hand, there is no such relaxation in the matter of educational qualification in
the initial entry grade of the applicants as DEOs. The facts of the above
mentioned decision by CAT, Principal Bench being different and distinct
from the facts herein, the decision so relied upon by the applicants is of no
help'. The Petitioners after going through the order dated 12.02.2020 passed
by the learned Tribunal in O.A. No.260/698/2017 filed review application
bearing RA No.10 of 2020 which was also dismissed on 24.11.2020.
09. In assailing the orders dismissing the Original Application and
also the Review Application, the Petitioners put forth the following grounds
in the present writ petition to set aside the orders of the learned Tribunal.
Those are: "(i) As the Opposite Party Nos.1 to 4 have not only admitted that
the Petitioners have been given relaxation for ever at the time of initial
recruitment by amending the Recruitment Rule but also relied upon the
judgment of the Hon'ble Supreme Court passed in the case of Jagdish
Kumar -vrs.- State of HP and Others: reported in 2006 (1) SLJ SC 54, the
learned Tribunal committed error on record by dismissing their Applications;
(ii) the second ground of challenge is that the ratio decided in the judgment
by a High Court cannot be ignored by the Tribunal on the ground that a Full
Bench of the Tribunal has since taken a contrary view. On such grounds, the
Petitioners prayed that the writ petition may be allowed and they may be
granted 2nd financial up-gradation under ACP Scheme.
10. The Opposite Parties have filed their counter affidavit in this
case, inter alia, submitting that on the recommendation of the 5th Central Pay
Commission, the Government introduced Assured Career Progression (ACP)
Scheme for Central Government Civilian Employees vide Department of
Personnel and Training's O.M. dated 09.08.1999 to mitigate hardship in case
of stagnation in promotion. As per the ACP Scheme, two financial
up-gradations in the hierarchy post were to be given to the Central
Government Civilian Employees on completion of 12 and 24 years of
regular service subject to fulfillment of all conditions/ norms for promotion
prescribed in the relevant Recruitment Rules in which the financial up-
gradation is to be given under the above scheme. It is further submitted that
as per the recommendation of the 6th Central Pay Commission, the posts of
Junior Supervisor and Senior Supervisor have been merged due to same
Grade Pay of both the posts. After merger of both the posts, the promotion of
DEOs Grade 'B' has been considered as a single promotion either in the
grade of Junior Supervisor or in the grade of Senior Supervisor. So, the
Department of Personnel and Training approved this office's proposal for
granting 2nd financial up-gradation under the above Scheme to DEOs Grade
'B' of EDP cadre in the grade of Assistant Director (DC) after completion of
24 years of regular service to those have completed 24 years between
01.01.2006 to 31.08.2008. It is also submitted that as per Paragraph-6 of the
Annexure of Department of Personnel and Training O.M. dated 09.08.1999,
in ACP Scheme, an official has to fulfill all the promotional norms for
granting the financial up-gradation under ACP Scheme. In compliance of it,
the 2nd financial up-gradation under ACP Scheme has been granted in the
promotional grade of Assistant Director (DC) to those DEOs Grade 'B'/
Senior Supervisors who have completed all the promotional norms for the
post of Assistant Director (DC). The Petitioners claimed for grant of 2nd
financial up-gradation under ACP Scheme in the Pay Scale of the post of
Assistant Director (DC). However, it is further submitted that as per the
Recruitment Rules (RRs) for promotion to the post of Assistant Director
(DC), an employee has to be a graduate in the subject of Mathematics/
Commerce/ Statistics/ Economics/ Operation Research/ Physics/ Computer
Application. But the Petitioners do not have any graduate degree in any of
the above subjects. It is further submitted that the request for relaxation in
educational qualification in Recruitment Rules for the post of Assistant
Director (DC) was taken up with the Department of Personnel and Training
twice, but in both the occasions Department of Personnel and Training did
not find it fit to grant relaxation in educational qualification. Therefore, the
2nd financial up-gradation in the Grade Pay of Assistant Director (DC) is
denied to those DEOs Grade 'B'/ Senior Supervisors who do not fulfill
educational qualification required for promotion to the post of Assistant
Director (DC). However, such employees have already been granted 2nd and
3rd financial up-gradation under the Modified Assured Career Progression
(MACP) Scheme where fulfilling of the aforesaid promotional norm is not a
pre-requisite. The Opposite Parties further submitted that similar
question arose before the Patna Bench, Patna which was decided against the
employees. The said order of the Central Administrative Tribunal, Patna
Bench, Patna was upheld by a Division Bench of the Patna High Court in
CWJC No.6154 of 2017. Therefore, the Opposite Parties prayed to dismiss
this writ petition.
11. The Petitioners have challenged the impugned orders passed by
the Tribunal on the ground that the Opposite Party Nos.1 to 4 at paragraphs,
6, 7, 10 and 11 of the counter affidavit filed in the Original Application have
admitted the facts of relaxation, this is an erroneous and false statement on
the face of record which has been noted earlier in the preceding paragraph.
We have carefully examined the record and found that at page 54 of the brief
a part of some documents purported to be an Office Memorandum appears in
which at paragraph-4, it has been mentioned "as per Para-6 of Annexure-1,
annexed to DOP & T's O.M. dated 09.08.1999 vide which the ACP scheme
was introduced states that". However, such plea has not been taken in the
counter affidavit by the Opposite Party Nos.1 to 4 in the Original
Application before the Tribunal and as such the submission of the Petitioners
is not only erroneous but also misleading. If at all the Petitioners wanted to
take advantage of any inter office memo or office memorandum, they should
have called for the same or should have produced the complete copy of the
same. The very nature of the part of the document which appears at page 54
of the brief cannot be taken into consideration. Moreover, the same is an
inadmissible piece of document. The other Annexures mentioned at serial
nos.3, 4 and 5 of the Index of the counter affidavit stated to have been filed
by the Opposite Party Nos.1 to 4 in the Original Application under
Annexure-10 at page 40 of the brief have not been annexed to the writ
petition which creates a doubt regarding genuineness of the documents filed.
In any case, the very plea of the Petitioners that it was admitted in the
counter affidavit is erroneous and misleading and on the basis of such plea,
a finding cannot be given in favour of the Petitioners. On further
examination of the record, it appears that the Opposite Party Nos.1 to 4 have
also relied on this document. But, it was brought to our notice that this is an
Office Memorandum prepared by the Census Operations, Odisha,
Bhubaneswar. A note was put up before the Authorities at Bhubaneswar and
the Authorities recommended for grant of 2nd ACP to the DEOs who do not
have requisite educational qualification and their appointments have been
made in pursuance of the relaxation in educational qualification to the DoP
& T for approval. The response of the DoP & T appears at page 192 of the
brief is quoted as follows:
"Department of Personnel & Training
Establishment (D)
Dy. No.1103199/15CR.
F.No.13/9/2013-Ad.IIII (pt) of O/o RGI
Reference notes on pre-pages.
2. The matter has been examined in consultation with
Estt. (RR). As per the provisions of the ACP Scheme, the
financial upgradations are allowed in the promotional
hierarchy on fulfillment of normal promotional norms
prescribed under relevant RRs including educational
qualification, if prescribed in the RRs for the promotional post.
No relaxation clause is available under the Scheme. Further,
Dop & T as a policy do not grant relaxation in educational
qualifications prescribed in the RRs. Therefore, the proposal
of O/o RGI for relaxation in educational qualification for
financial upgradation under ACP Scheme cannot be agreed to.
3. This issue with the approval of Joint Secretary (DC) in
this Department.
Sd/-
Section Officer
Xx xx xx xx"
This being the real facts situation, the plea of the Petitioners that the
Opposite Party Nos.1 to 4 have admitted their claim in their counter affidavit
cannot be acceded to. In fact, they are relying upon some inter office memo
or office memorandum in which the Office of the Director, Census
Operations, Odisha, Bhubaneswar proposed for grant of 2nd financial up-
gradation under ACP Scheme in favour of the Petitioners. But the matter was
referred to the DoP&T and the DoP&T did not accede to such proposal. It,
therefore, cannot be held that by preparing this document the claim of the
Petitioners has been accepted by the Opposite Party Nos.1 to 4.
12. The second contention of the Petitioners is that in a similar case
i.e. in the case of Union of India represented by Secretary, Ministry of
Agriculture, Department of Animal Husbandry and Dairying and
Another -vrs.- K. Vijayabhanu and other batch of cases: reported in
2018 SCC OnLine Ker 16238, the High Court of Kerala at Ernakulam has
taken a view that the Petitioners therein are entitled to get the benefit of ACP
Scheme and they shall not be held ineligible to get the benefit of ACP
Scheme on the ground that they did not possess the qualification for
promotional post. This judgment was pronounced on 30th October, 2018.
Another judgment has been relied upon by the Petitioners that was passed by
a Division Bench of the High Court of Judicature at Patna in the case of
Amrendra Kumar Sinha and others -vrs.- The Union of India and
others (in Civil Review No.343 of 2017 in Civil Writ Jurisdiction Case
No.6154 of 2017) decided on 01.08.2017. The Patna High Court has come to
the conclusion which reads as follows:
"Further, from culling out the facts and provisions, it is
evident that these petitioners are basically looking for
replacement scale, which is available to an Assistant Director,
which was a temporary post, created due to exigency of
service, sometime in the year 2001 with a different pay-scale
as well as eligibility having higher qualification and technical
competence, which were provided for in the Rules.
From a discussion made by the Tribunal, it is evident
that in terms of the financial upgradation due to stagnation,
these petitioners have earned the next grade pay available to
them. But that does not satisfy them, because they
want replacement scale of the next higher post, for which
they do not have eligibility in the very first place.
Even for grant of upgradation under the A.C.P.
scheme, promotional norms of the next higher post has to be
ingrained into such claimants. They cannot claim benefit of the
next higher post as a replacement scale as a matter of right.
This fact is evident from the reading of the scheme itself. Some
of which has been extracted and reproduced by the Tribunal
and quoted by us in the earlier part of the order.
Xx xx xx xx xx
But these are the persons, who do not fulfill the requirements
to hold the next higher post, but they surely have wish and
aspirations to beget, if not, try to demand the pay-scale, which
is available to the next higher post of Assistant Director."
13. In that view of the matter, we are in agreement with the views
of the Patna High Court and also the view taken by the Central
Administrative Tribunal, Cuttack Bench, Cuttack in its orders i.e. the orders
impugned before us. Accordingly, the second ground is also not accepted by
us in view of the judgment rendered earlier to the judgment rendered by the
High Court of Kerala at Ernakulam. Both the said judgments were delivered
by the Division Bench of their respective High Court. However, the ratio
arrived at by Patna High Court has not been taken into consideration or
distinguished in the later judgment rendered by the High Court of Kerala at
Ernakulam. Moreover, the facts are also similar to that of the case of Patna
High Court, as it was also a case of D.E.Os. of Registrar General of India
and Census Commissioner. Whereas in the reported judgment passed by the
High Court of Kerala at Ernakulam, the employees of the National Institute
of Fisheries Post Harvest Technology and Training (NIFPHT & T)
have challenged the authorities' decision denying grant of benefit of ACP
Scheme on the ground that they do not possess the qualification for
promotional post concerned. The reported case of the High Court of Kerala
at Ernakulam is distinguishable in this case. The applicants therein were not
given employment in relaxation of educational qualification for the based
post. Secondly, the Additional Director post is a temporary post in the
establishment of the Registrar General of India and Census Commissioner.
In that case, no such plea has been raised regarding temporary nature of the
post and the promotional post.
14. In all fitness of the things, the judgment referred by us i.e. the
judgment rendered by the Patna High Court is more befitting to the present
case. So we rely on it. In addition, it being at an earlier point of time.
15. A writ of certiorari is generally issued to correct the error of
jurisdiction. If the Tribunal under the supervision of the High Court
exercises jurisdiction not conferred on it, fails to exercise jurisdiction
conferred on it or exercises jurisdiction in a patently illegal and irregular
way, then the High Court should exercise its jurisdiction under Section 226
read with Section 227 of the Constitution of India to correct the error of
jurisdiction. Moreover, a writ of certiorari should not be allowed, unless it is
shown to the Court that such conclusion regarding factual aspect
of the case is based on inadmissible evidence or is based on clear ignorance
of admissible and relevant materials on record. A writ of certiorari should
not also be issued or exercised in a case of erroneous judgment on the
question of law unless it is shown that such error of law is patent on the face
of the record, an error which has been demonstrated before the Court without
any lengthy and complicated argument. But, by simply perusing the
judgment, and that such error of law has caused a grave miscarriage of
justice.
16. In this case, the learned counsel appearing for the Petitioners
could not establish before the Court that finding of fact arrived at by the
Tribunal is in ignorance of admissible materials available on record or that it
is based on materials which are not existence or admissible. Similarly, the
learned counsel for the Petitioners could not establish a patent error of law,
apparent on the face of the record, which has caused a grave miscarriage of
justice. This being so, we are not inclined to allow this writ petition.
17. Hence, this writ petition is dismissed.
18. As the restrictions due to resurgence of Covid-19 are
continuing, learned counsel for the parties may utilize a printout of the order
available in the High Court's website, at par with certified copy, subject to
attestation by Mr. Nirmal Ranjan Routray, learned Advocate, in the
manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as
modified by Court's Notice No.4798 dated 15th April, 2021.
........................
(S. K. Mishra)
Judge
Savitri Ratho, J. I agree.
........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack,
Dated the 11th June, 2021/B. Jhankar
