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Judgment
K. Kannan, J.—The petitioner''s claim is for the ACP scales on completion of 10 years and 20 years of service as Junior Engineer (SS), in which post he claimed that he stagnated without gaining any promotion from 09.02.1973. The ACP scales were introduced through a notification dated 27.02.1998. Clause 5 of the Scheme reads as follows: 5. Eligibility for Grant of ACP Scales: (1) Every Board employee who after a regular satisfactory service for a minimum period of 10 years, has not got any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995, on which he was recruited as direct recruited fresh entrant:
(a) either as a consequence of his functional promotion in the hierarchy, or
(b) as a consequence of the revision of pay scale for the same post, or
(c) as a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect of the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the First ACP scale with reference to him.
(2) Every Board employee who, after a regular satisfactory service for a minimum period of 20 years, has not got more than one financial upgradation in terms of grant of pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995 on which he was recruited as a direct recruited fresh entrant:
(a) either as a consequence of his functional promotion in the hierarchy, or
(b) as a consequence of the revision of pay scale for the same post, or
(c) as a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect of the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the Second ACP scale with reference to the functional pay scale applicable to him;
Provided that grant of ACP scale shall also be considered
financial upgradation for the purposes of this para.
The contention of the petitioner is that as on 31.12.1995, the petitioner had not earned promotion next before 10 or 20 years and, therefore, he should be entitled to the ACP scales on completion of 10 and 20 years in the manner set through Clause 5 of the Circular.
The claim is resisted by the counsel appearing for the respondents on the ground that when the ACP circular was issued on 27.02.1998, he had already earned a promotion on 26.09.1997 and since the ACP scheme itself was to operate as an incentive against stagnation, the petitioner shall not be found to be entitled to the ACP scales.
The application of the benefit can be made only on what the provision itself contains and it shall be impermissible to apply a general principle to deny a person the higher scales by the only fact that he had obtained a promotion after the period mentioned in the circular or that before 20 years, he had already earned a promotion. If the circular dated 27.02.1998 prescribed a particular cut-off date as relevant for consideration of whether a person could be said to have stagnated in the post then, the facts elicited it would be clear that on 31.12.1995 (the date which the circular dated 27.02.1998 prescribes) the petitioner had not earned promotion for 20 years. Consequntly, the scales as provided under the circular ought to be applied to him, no matter that he earned promotion subsequent to the 20 years period or before 20 years he had already earned a promotion.
This issue of entitlement to the ACP scales with reference to the very same rule has also been considered by a Division Bench of this Court in Ramesh Dahiya v. UHBVN in its decision dated 04.04.2008. The Division Bench was holding that if a person had not earned promotion within the period specified in the notification then, ACP scales will have to be applied. As an illustration, the Division Bench had also observed that even a person had earned a promotion as a Chief Draftsman and stagnated in that post for 10 or 20 years, would be entitled to the ACP scales. The issue relating to the applicability of the ACP scales cannot be only by a reference to whether the petitioner had during his service obtained any promotion. The very fact that a person had obtained a promotion, cannot disentitle him with reference to the fact that such promotion had come in his way before or after the 10 years or 20 years period. If within the said period of 10 or 20 years, a person had not earned a promotion, the denial of ACP scales to him shall be unjustified. The contention of the respondents, therefore, that the petitioner had earned promotion after his initial entry of service as disentitling him to ACP scales is not correct and is rejected.
The notification makes possible the higher scales to be effective w.e.f. 01.01.1996. The ACP scales shall be notionally worked out from 09.02.1983 on the completion of 10 years for the 1st ACP and from 09.02.1993 on the completion of 20 years upto 01.01.1996. The arrears shall be worked out from 01.01.1996 to the day when he was offered the higher post on 26.09.1997 and the same shall be released to the petitioner within a period of 12 weeks from the date of receipt of copy of the order.
The petitioner states that he has retired from service. The petitioner will be entitled to all consequential benefits, including pensionary benefits and paid to the petitioner within the aforesaid period of 12 weeks from the date of receipt of copy of the order. The writ petition is allowed on the above terms.