Bhagwan Singh vs Union of India (UOI) and Others

Gita Mittal, J.—By way of this writ petition, the petitioner challenges an order dated 10th September, 2008 issued by the office of Commandant of the Central Industrial Security Force (''CISF'' hereafter), Ministry of Home Affairs whereby the respondents informed the petitioner of the mode of recovery of the amount of Rs. 31,894/- which was advanced to the petitioner as financial upgradation under the Assured Career Progression Scheme (''ACP Scheme'' hereafter) with effect from 10th June, 2000. The petitioner also assails the recovery of the said amount by the order dated 25th September, 2008.

The admitted facts giving rise to the present case are that the petitioner was appointed as Constable with the CISF and in 1995 was promoted as a Head Constable. By an order passed on 10th June, 2000, the petitioner was granted a benefit of ACP Scheme recommended for Central Government Employees on completion of 24 years of service.

It appears that upon the petitioner''s regular positing from CISF Unit SCCL, Singreni on 27th May, 2008, a scrutiny of the service documents of the petitioner was conducted whereupon the respondents realized that petitioner was drawing benefit of the higher rank of Assistant Sub Inspector/Executive under the ACP Scheme.

The respondents have contended that it was observed that the petitioner did not fulfill the conditions for grant of the ACP benefit issued by the Force Headquarters, CISF, New Delhi vide their letter No. 444/10th-16th April, 2003 and letter No. 1353 dated 7th November, 2003. In this background, the benefit of the scheme granted to the petitioner was withdrawn with effect from 10th June, 2000 by an order dated 23rd July, 2008 passed by the CISF Unit, IOC Mathura office.

In view of the challenge to the withdrawal and the recovery, it becomes necessary to notice the salient features of the ACP Scheme which would govern adjudication of the question raised by the petitioner. In this regard, it is necessary to notice the provision governing the eligibility of the serving personnel for grant of the ACP Scheme which reads as follows:

Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group ''D'' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme.

Learned Counsel for the petitioner has placed reliance on Clause 10 of the ACP Scheme which reads as follows:

Grant of higher pay-scale under the ACP Scheme shall be conditional to the fact that an employee, while accepting the said benefit, shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. In case he refuses to accept the higher post on regular promotion subsequently, he shall be subject to normal debarment for regular promotion as prescribed in the general instructions in this regard. However, as and when he accepts regular promotion thereafter, he shall become eligible for the second upgradation under the ACP Scheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a person has got one financial upgradation after rendering 12 years of regular service and after 2 years therefrom if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12 + 12 + 1) of regular service, he shall be eligible for consideration for the second upgradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial upgradation (2 + 10) in that higher grade i.e. after 25 years (12 + 2 + 1 + 10) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade;

It is necessary to point out at this stage that so far as entitlement or eligibility for grant of the scheme is concerned, Clause 6 would guide consideration of the same. The ACP Scheme therein clearly provides that it is essential for any personal to fulfill all normal promotion norms which includes the prescribed benchmarks, departmental examination, seniority-cum-fitness, etc., which is prescribed for the promotion post.

So far as the petitioner was concerned, he was holding a post of Head Constable and admittedly is seeking entitlement to the benefits which are admissible to the Assistant Sub Inspector/Executive. For this reason, in view of Clause 6 of the ACP Scheme, it was essential for the petitioner to fulfill the normal promotion norms for appointment to the post of Assistant Sub Inspector/Executive. It is not disputed before us that amongst the norms prescribed, it was necessary for the person to have undertaken the Promotion Cadre Course (PCC) in order to be eligible and entitled to consideration for promotion.

So far as Clause 10 aforenoticed is concerned, the same merely provides that harmonious construction of the clauses of the ACP Scheme would show that in case a person, who was eligible or entitled for promotion, refuses the same and is found entitled to the benefit of the ACP Scheme, then while accepting the benefit of the ACP Scheme, a candidate is deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy in the higher post subsequently. Clause 10 in fact governs the manner in which the promotion of a person who accepts the benefit under the ACP Scheme is to be governed. The same would not impact the consideration for the question before this Court which relates to an issue as to whether a person is required to be eligible for promotion to the promotion post or not.

Learned Counsel for the petitioner has placed reliance on a clarification dated 10th February, 2000 purportedly issued by the Department of Personnel and Training of the Government of India with regard to the manner in which the ACP Scheme has to be worked. We find that the reliance on the clarification issued by the respondents is not relevant to the present issue. The clarification which has been relied upon by learned Counsel relates to deferment of grant of ACP benefits on account of disciplinary proceedings or refusal of promotion. It has been clarified that the ACP Scheme in the matter has to follow the same pattern as obtained in the case of regular promotion.

As noticed hereinabove, in the case of the petitioner, the objection raised by the respondents relates to a more fundamental issue relating to the very eligibility of the petitioner.

The petitioner''s case is not one of having refused being eligible for promotion. On the contrary, respondents have placed before us a copy of a communication dated 10th January, 2007 given by the petitioner while posted at New Delhi whereby the petitioner had clearly given a declaration that he was unwilling to attend the promotion cadre course from Head Constable to Assistant Sub Inspector. The petitioner had further declared that he would forgo promotion on account of this unwillingness and that he would not have any claim whatsoever with regard to his promotion.

In view of the undisputed position that this was a course essential for being promoted, it is clearly evident that the petitioner was not eligible for promotion. Therefore, the reliance on the above clause would have no bearing on the instant case.

The respondents have also stated in the counter affidavit that the petitioner was duly informed about the fact that he was drawing the ACP benefits for the higher rank of ASI without there being any entry with regard to his having been qualified or attended the PCC course in his service book or personal file. It is stated that the CISF Unit at the IOC Mathura addressed a letter dated 21st June, 2008 requesting the petitioner to produce a photocopy of the documents which would evidence his having attended/qualified the PCC course for the post of Head Constable/GD to ASI/Executive if he had attended the same.

The petitioner submitted an application dated 22nd June, 2008 addressed to the Senior Commandant, IOC Mathura vide which he informed that he was not in a position to state as to whether he had attended PCC or not and requested the office to take appropriate action considering the service record as he did not know that documents were available therein.

The respondents have submitted that it was only in this background that re-fixation of the pay in respect of the petitioner on withdrawal of the ACP benefits was made on 30th July, 2008 by the CISF Unit. A sum of Rs. 31,894/- was worked out as over payment which was required to be recovered from him.

The respondents have further stated that the petitioner was called by the Commandant/IOC Mathura on 9th September, 2008 in connection with such recovery of over payment for the reason that the petitioner was retiring from service on superannuation with effect from 31st December, 2008. In this meeting, the petitioner is stated to have clearly agreed for recovery of the amount of over payment by installment at the rate of Rs. 5,000/- per month from his salary with effect from September, 2008 to December, 2008 and the balance amount from arrears of the Sixth Central Pay Commission or from the amount of retrial gratuity with effect from 31st December, 2008.

The respondents have explained that it was in view of this request of the petitioner that a communication dated 10th September, 2008 was sent to the petitioner calling upon him to submit an undertaking for effecting such recovery. Instead of giving the undertaking, the petitioner is stated to have given an application dated 13th September, 2008 requesting the provision of official documents relating to over payment of the said amount.

It is in this background that the respondents have effected recovery of the over payment from the salary of the petitioner from the month of September, 2008 which was informed to the petitioner by the order dated 25th September, 2008.

It is pertinent to note that the cancellation of the financial upgradation was effected by order dated 30th July, 2008 as is also mentioned in the order dated 10th September, 2008 which relates to the discussions of the petitioner with the Commandant and the recovery thereof. This order is also mentioned in the counter affidavit.

The writ petition lays no challenge to the order dated 30th July, 2008. So far as the communication dated 10th September, 2008 and 25th September, 2008 are concerned, they only relate to mode of recovery of the amount which is a subject matter of the order dated 30th July, 2008.

So far as the other communications of June, 2008 are concerned, we find that the petitioner does not dispute the communications and only a grievance is made that these communications have not been placed on record.

Before us, an oral submission was made that the petitioner had never consented to the adjustment of the amount from his monthly dues or otherwise. In this behalf, we find that reliance is placed on a representation dated 8th December, 2008 addressed by the petitioner to the Deputy Commandant of the CISF Unit, IOC Mathura. Perusal of this letter shows that even herein the petitioner does not dispute any of the submissions made by the respondents in their communication dated 10th September, 2008 or 25th September, 2008. There is not a whisper of a challenge to the averred discussions of the petitioner with the Commandant on 9th September, 2008 or the petitioner''s assurance stated therein.

So far as the objections to the grant of the benefit to the petitioner is concerned, the respondents have placed reliance also on the clarification given on the 10th/16th April, 2003 by the Ministry of Home Affairs wherein it has been specifically clarified in Clause 2 as per the terms and conditions of the ACP Scheme issued by the Government of India from time to time "all promotional norms are to be met for grant of the benefits under ACPs. As such persons who have not passed promotion cadre course or are not in the requisite medical category cannot be allowed the benefits of the ACPs in the promotion grade".

The petitioner was disentitled to the grant of the benefit of the ACP Scheme for this reason. The decision of the respondents to effect recoveries of the amount paid to the petitioner under this scheme therefore cannot be faulted on legally tenable grounds.

For all the foregoing reasons, we find no merit in this writ petition which is hereby dismissed.