Dhoom Singh Rawat vs State of Uttarakhand & Others

Alok Singh, J.

1) By means of present writ petition, petitioner seeks following prayers, among others:

“(i) Issue a writ, order or direction in the nature of certiorari quashing the communication dated 12th May, 2014 as well as the letter dated 24th

September, 2012 and 25th August, 2012 in so far as the same denied the benefit of 2nd and 3 rd financial upgradation to the petitioner in the Pay

Band- 2 carrying the pay scale of Rs.9300-34800 with grade pay of Rs.4200 (revised Rs.4600) and Rs.4600/ - (revised Rs.4800) respectively, being

contrary to the Govt. Orders issued in respect of sanction of benefit of scheme of Assured Career Progression.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to sanction 2nd financial upgradation to the petitioner in the

Pay Band-2 financial upgradation to the petitioner in the Pay Band-2 carrying the pay scale of Rs.9300-34800 with Grade Pay Rs.4200 w.e.f. 01st

September, 2008.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to sanction 3rd financial upgradtaion to the petitioner in the

Pay Band-2 carrying the Pay Scale of Rs.9300-34800 with Grade Pay Rs.4600 w.e.f. 1st December, 2013.†2) Brief facts of the case are that the

petitioner was appointed on the post of Head Clerk in the Pay Scale of Rs.430- 685 in Bal Ganga Inter College Kemera (Kemer), District Tehri

Garhwal on 28.05.1986. Thereafter, on 22.06.1987, his services were confirmed on the said post w.e.f. 03.05.1987. The school, in which the petitioner

was working, was provincialised on 28.11.1987 and, accordingly, the posts of Junior Clerk and Senior Clerk in the pay scales of Rs.354-550 and

Rs.430-685 respectively were sanctioned. On 02.12.1987, the Regional Deputy Director of Education, Garhwal Mandal, Pauri appointed the petitioner

on the post of Senior Clerk. In the year 1992, the State of Uttar Pradesh, Department of Education on 22.07.1992 notified Uttar Pradesh

Provincialised Educational Institution (Absorption of Employees in Government Service) Rules, 1992. The Regional Joint Director of Education,

Garhwal Mandal, Pauri passed the order granting 1st promotional pay scale of Rs.4500-7000 to the Senior Clerks, who were in the pay scale of

Rs.4000-6000 (revised) and have completed 14 years of continuous and satisfactory service.

3) Vide Government Order dated 01.07.2011, earlier G.O. dated 08.03.2011 was modified to the effect that 3 financial upgradations under the

Assured Career Promotion (ACP) scheme would be admissible after completion of satisfactory service of 10, 18 & 26 years, instead of 10, 16 & 26

years respectively. The petitioner has represented before the respondents for grant of 2nd ACP in the pay band-2 (pay-scale of Rs.9300-34800 with

Grade Pay 4200) on completion of 18 years of service. The Director, Secondary Education, Uttarakhand on 24.09.2012 rejected the claim of the

members of Clerical Cadre for sanction of 3rd ACP in Grade Pay 4600. On the proposal of the Chief Education Officer, Dehradun regarding grant of

2nd ACP to the petitioner, the Additional Director, Elementary Education, Garhwal Mandal, Pauri returned the same mentioning therein that the

petitioner is not entitled to get 2nd ACP in the Grade Pay of Rs.4200.

4) By way of present writ petition, the petitioner is claiming 2nd & 3rd financial up-gradation in terms of ACP scheme. In order to appreciate the

controversy involved in the matter, it needs to be mentioned here the submissions / averments made in the counter affidavit of the State Government.

Para 15 of the counter affidavit reads as under:-

“15. That in reply to the contents of para 12 to 19 of the writ petition, it is submitted that as per the Government order the benefit of 1st ACP is

admissible after completion of 10 years, 2nd ACP after 16 years and after 26 years 3rd ACP is provided, if the post for promotion in direct

recruitment quota is not available. It is submitted that as per the provisions of U.P. Subordinate Education Clerical Cadre Rules, 1985 in the clerical

cadre the first post of recruitment is Junior Assistant next promotional post is Senior Assistant, thereafter, Head Clerk, Administrative Officer and last

post is Senior Administrative Officer.……………………….. …………………….â€​

5) Para 7 of the counter affidavit is extracted hereinunder:-

“That in reply to the contents of para 3 of the writ petition, it is submitted that the petitioner was initially appointed in the Government aided

Intermediate College namely Balganga Inter College, Kemra (Kemar), Tehri Garhwal directly on the post of Head Clerk. It is pertinent to mention

here that in the Government aided schools the services of the teaching staff and non-teaching staff is governed under the provisions of Uttar Pradesh

Intermediate Education Act, 1921. It is submitted that the post of Head Clerk is not the post of direct recruitment despite is the promotional post from

Junior Clerk. Consequently, the appointment of the petitioner is against the provisions of the Chapter 3(2) of the aforesaid Act. The provisions of the

Chapter 3(2) of the aforesaid Act is as follows:

For appointment in the institution for appointment in the clerical and Class IV cadre the minimum qualification would be the same as is prescribed

from time to time for similarly situated employees of the Government Higher Secondary School.

On having the required eligibility, the class IV employees can be promoted on class III post and the clerk can be promoted as Head Clerk, if they

have rendered 5 years of continuous service on the post and their service record would be unblemished. The aforesaid promotions would be granted

upto 50% of the total vacant post. The promotions shall be made on the basis of seniority leaving the ineligible.â€​

From the bare perusal of the above provisions, it is evident that any clerical cadre employee cannot be appointed directly on the post of Head Clerk.

The first appointment in the clerical cadre is Junior Clerk and after completing the years regular and satisfactory service such junior clerk on the basis

of seniority and eligibility can be promoted on the post of Head Clerk. Therefore, the direct appointment of the petitioner on the post of head clerk is

against the provisions of Uttar Pradesh Intermediate Education Act, 1921 and as per rule the service benefit to the petitioner shall only be payable

from the date of his appointment on the post of Junior Clerk.â€​

6) As per the contents made in the counter affidavit, the case of the respondents is that the petitioner was appointed directly on the post of Head

Clerk, which is not a direct recruitment post as per Chapter (3) of the Uttar Pradesh Intermediate Education Act, 1921. Meaning thereby, the post of

Head Clerk is a promotional post to be filled up from amongst the Junior Clerks. The aforesaid provisions of the Act itself provides that any clerical

cadre employee cannot be appointed directly on the post of Head Clerk and the first appointment in the clerical cadre is to be made on the post of

Junior Clerk and after completion of satisfactory service, the Junior Clerk can be promoted to the post of Head Clerk. Be that as it may.

7) The central issue involved in the present petition is whether the petitioner is entitled to get 2nd and 3rd pay up-gradation in terms of ACP scheme or

not.

8) The Sixth Pay Commission introduced the ACP scheme to provide avenues for advancement from stagnation where there is a fewer chances of

promotion. The Government Order dated 08.03.2011 (Annexure-7 to the petition) provides three financial upgradations on completion of 10 years, 18

years and 26 years of satisfactory service. The Government Order dated 01.07.2013 (Annexure-8 to the petition) was issued modifying the earlier

G.O. to the effect that three financial upgradations on completion of 10 year, 16 years (instead of 18 years) and 26 years of satisfactory service shall

be granted to the employees. The grievance of the petitioner is that he has not been sanctioned his 2nd financial up -gradation in Pay Band-2 having

pay scale of Rs.9300-34800 with Grade Pay of Rs.4200 w.e.f. 01st September, 2008 as well as 3rd financial up -gradtaion in Pay Band-2 having Pay

Scale of Rs.9300-34800 with Grade Pay of Rs.4600 w.e.f. 1st December, 2013.

9) It is not disputed that the petitioner joined as Senior Clerk in the pay-scale of Rs.430-658 after provincialisation of the institution in December, 1987

and since he was granted first financial up-gradation in June, 2000, hence, he was given next pay scale of Rs.4500-7000. It is also not in dispute that in

2008 and 2013 respectively, the petitioner had completed more than 16 & 26 years of service. Consequently, he became entitled to second and third

financial upgradations in terms of ACP scheme in the year 2003 and 2018 respectively immediately after the issuance of Government Orders dated

08.03.2011 and 01.07.2013.

10) In the light of above discussion, the impugned orders/communications are liable to be quashed. The same are hereby quashed. The respondents

are directed to sanction 2nd financial upgradation in Pay Band-2 having pay scale of Rs.9300-34800 with Grade Pay of Rs.4200 w.e.f. 01st

September, 2008 as well as 3rd financial upgradtaion in Pay Band-2 having Pay Scale of Rs.9300-34800 with Grade Pay of Rs.4600 w.e.f. 1st

December, 2013 to the petitioner. In this regard, necessary sanctions from the Government be taken within eight weeks and the payment of arrears, if

any, shall be disbursed to the petitioner, positively, within three months from today.

11) In view of above, the writ petition is allowed. No order as to costs.