The Union of India, The Engineer-in-Chief and The Chief Engineer vs Sri. N. Prabhuswamy

Writ Petition by the Union of India being aggrieved by the order or the Tribunal dated 23rd September, 2011 passed in Application No. 327/2008 where under the Tribunal allowed the application filed by the respondent holding that the respondent is entitled to the benefits of up-gradation as per the Assured Career Progression Scheme (for short ''ACP Scheme'') for the Central Government Civilian Employees put in place after notification No. 35034/1/97-Estt(D) dated 9th August, 1999 (Annexure F to the writ petition). The respondent had contended before the Tribunal that though he was a diploma holder and that he had been discriminated by the respondent for extending the benefit under the Scheme, not only other diploma holders had been given such a benefit, even as per the directions issued by the Tribunal at the instance of similarly situated diploma holders and orders passed in) their cases and therefore, denial of such benefit only to the applicant for the reason that the applicant had not approached the Tribunal earlier and there was no direction in his favour, was not tenable etc.,

The Tribunal which examined his contention and the resistance offered by the Union of India to the effect that the applicant had not passed the Military Engineer Service (for short ''M.E.S.'') Departmental Examination, whereas all other candidates who had been similarly placed had passed such an examination and therefore the applicant''s case was distinct with that of the others, in which case, direction had been issued by the Tribunal and as such prayed for dismissal of the application, rejected this resistance of the Union of India on perusal of the scheme and opined that the case of the applicant stands on the same footing as that of 41 Junior Engineers, who were applicants earlier before the Tribunal in O.A. Nos. 540 and 595 to 634/2002, based on which, the relief had been sought for by the applicant and therefore, issued a direction quashing the endorsement and that the benefit of scheme should be given by fixing the pay-scale of: Rs. 10,000 - Rs. 15,200/- with effect from the date of his completion of 24 years of service as Junior Engineer or the date from which other Junior Engineers were given the benefit which is from 9.8.1999, whichever is later, with all consequential benefits.

It is aggrieved by this order of the Tribunal, the present writ petition by the Union of India. Appearing on behalf of the writ petitioners, Sri H. Jayakara Shetty, learned Standing Counsel submits that the Tribunal has committed an error in overlooking the very conditions stipulated in the scheme; that even for granting the benefits under the scheme, the employee should have passed the Departmental Examination (M.E.S. Examination) and as it was a condition in the very scheme, there was no way overlooking the condition.

It is also submitted that where as all other persons to whom benefit had been extended by the Tribunal earlier had passed the M.E.S. Examination but the respondent had failed in the examination and material for such, is also sought to be placed before this Court.

Sri Ranganatha S. Jois, learned Counsel appearing for the respondent on the other hand submits that infact there is no requirement of passing Departmental Examination., which is necessary only when regular promotion is sought for and not for up-gradation under ACP Scheme; that it is virtually defeating the very purpose of the scheme itself. It is also submitted that even the respondent''s case had in fact been sent for approval earlier by the Superior Officers. It is submitted that the respondent retired from service in the year 2001. Further noticing the order of the Tribunal for issuing directions in contravention of para-6 of the Scheme, we think ends of justice would be met, if the order of the Tribunal is modified and directions are issued to the writ petitioner to extend the benefit, if any, if the respondent is found to be eligible, only for the purpose of fixing of the pay-scale so that his pension can be based on such revised pay scale as per the Assured Career Progression Scheme from the date of retirement. Now that the employee had retired from service way back in the year 2001 and had agitated the matter very belatedly, benefit would be extended only for drawing of pension from the date of retirement. It appears respondent''s case being not on par with that of the others, we think ends of justice would be met if the benefit is extended to the respondent only for the purpose of fixing of pension and not for arrears of salary.

Writ Petition is disposed of accordingly.