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Judgment
S. K. Mishra, J
Admit.
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 CentralÂ
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.
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 Dataâ€. 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 equivalentâ€. 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
Dataâ€. As per the August, 1981 Circular, the educational qualification for the post of Operator was “degree of a recognized University or
equivalentâ€.
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.
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 equivalentâ€. 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.
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.
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.
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 â€"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.
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.
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 thatâ€. 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.
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.
This issue with the approval of Joint Secretary (DC) in this Department.
Sd/-
Section Officer
Xx xx xx xxâ€
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.
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 â€"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 â€"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.â€
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.
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.
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.
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.
Hence, this writ petition is dismissed.
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.