Tribhuvan Meshram and Others vs Union of India and Others

Shri Justice Sanjay Yadav

The following order of the Court was delivered by Sanjay Yadav, J : Order dated 7.1.2009 passed by Central Administrative Tribunal, Jabalpur Bench, Jabalpur is being assailed vide this writ petition under Article 227 of the Constitution of India, whereby claim for Second Upgradation under the Assured Career Progression Scheme has been declined. That, in furtherance to the recommendation by Fifth Central Pay Commission and with certain modification, with an object to ameliorate the problem of genuine stagnation and hardship faced by the Central Government employees, Government of India, Ministry of Personnel, Public Grievance and Pension (Department Personnel and Training) introduced Assured Career Progression Scheme vide notification No. 35034/1/97-Estt. (I) dated 9.8.1999. The scheme aimed at granting two financial upgradations on completion of 12 years and 24 years of regular service.

The ACP scheme envisaged merely placement in the higher pay scale/grant of financial benefits through financial upgradation only to the government servant on personal basis; meaning thereby that, this would not mean regular promotion nor would require creation of new post.

Clause 4 of conditions for grant of Benefits under the ACP Scheme, contained in Annexure I appended with the circular stipulated that the first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the Second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions.

Furthermore, clause 5.1 stipulated that two financial upgradations under the ACP Scheme in the entire government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast track promotion availed through limited departmental competitive examination), availed from the grade in which an employee was appointed as a direct recruit. Meaning thereby that, two financial upgradations under the ACP Scheme shall be available only if no regular promotions during prescribed periods (12 and 24 years) have been availed by an employee. Thus if an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP scheme shall accrue to him.

Clause 8 stipulates that the financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance in his seniority position. Thus, under the Scheme there is no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has not higher pay-scale under the ACP Scheme.

That, clarifications were issued from time to time during course of implementation of ACP Scheme to meet out the contingencies arising.

Vide G.I. Department of Personnel and Trading, O.M. No. 35034/1/97-Estt. (D) (Vol. IV) dated the 10.2.2000, query regarding condition No. 8 of the Annexure I of the DOP and T. O.M. dated 9.8.1999 that "it operates very harshly against senior employees. It will give rise to serious anomalies in a situation where junior employee in a grade being direct recruit are given ACP upgradation on completing period of residency, claims of senior employees in the same grade and in the same department are ignored merely on the ground that they have already been promoted twice earlier. It would, as such, be very unfair to ignore the claim of seniors as that would lead to heart burning and demoralising". It was clarified that "The ACPs is to act as ''safetynet'' to provide relief in cases of acute stagnation. The concept of ''senior-junior'' is quite alien to the idea behind the ACPs recommended by the Fifth Central Pay Commission which had also quite specifically recommended against it. Benefits granted under the Scheme are "personal" in nature and in recognition of long hardships faced by stagnating employees. Moreover, it does not grant any status-related benefits nor does it change the seniority position. Senior will continue to be senior even if his junior has earned upgradations under ACPs. Relief granted to government servants facing stagnation/hardships, as visualized by ACPs cannot provide a ground for claiming identical relief by others who are not similarly circumstanced.

Further, vide circular No. PA-263/A/CCC dated 8-5-2000 it was clarified that upgradation of pay scale on account of job classification studies/govt''s executive instructions issued based on Central Pay Commission recommendations and Court directives are not to be treated as promotion. And, if industrial employees who by virtue of the ECC (Expert Classification Committee) upgradation were placed in the skilled grade and who have subsequently get only one promotion in the pay scale of Rs. 4000-6000, they shall, if otherwise eligible, be given the second upgradation in the pay scale of Rs. 4500-7000. And that upgradation/rationalization because ECC, which took place in 23 trades a promotion from Rs. 210-290 to Rs. 260-350 prior to 16-10-81 in such cases, is to be ignored as promotion.

It was clarified further vide Ministry of Defence No. 11(5)/99-D (IV-I) dated 30-10-2001 that in respect of skilled grade recruitment is made against posts sanctioned in the skilled grade (Rs. 3050-4900) but the incumbents are allowed semi-skilled grade for first two years for direct recruit with ITI/NCTVT Certificate or for 3 years for persons who are promoted from a lower grade after passing the prescribed trade test before their placement in the skilled grade, then the semi skilled grade in such cases may need to be viewed only as a trainee scale and such placement in the skilled grade after putting in the specific length of service in the semi-skilled grades may not be treated as promotion/upgradation and may not be offset against entitlements under ACP Scheme.

Further, vide Ordnance Factory Board letter No. PA/263/A/CCC dated 04-01-2002 it was clarified that " Industrial Employees in various trades are appointed to semi-skilled grade by way of transfer, promotion and direct recruitment. Recently DOP&T has clarified that the placement of IEs from semi-skilled to skilled grade after 2/3 years in the case may be, will not be treated as promotion for the purpose of granting financial upgradation under ACPS, if these personnel are inducted to semi-skilled grade against skilled posts available in each trade. While granting ACP to this category of employees, certain factories have raised queries whether the qualifying period of 12/24 years in their case has to be counted from the date of their holding the semi-skilled post or skilled post. Considering various clarificatory instructions issued by DOP&T it is confirmed that the qualifying period in such cases has to be reckoned from the semi-skilled entry date only.

The petitioners initially appointed as Labour ''B'' in pay scale Rs. 196-232 were first promoted as Junior Examiner (SS) in grade Rs. 210-290. While in grade of Junior Examiner (SS) they were granted ECC grade Rs. 260-400 with effect from 16-10-1981 and were redesignated as Turner skilled. Thereafter were given second promotion to the post of Highly Skilled, Turner in grade Rs. 4000-6000 and were later on given the placement as Master Craftsman in grade of Rs. 4500-7000.

The petitioners since earned two promotions prior to 9-8-99, the date on which the ACP Scheme was brought into vogue, their claim for grant of second upgradation under ACP was turned down.

The claim for grant of second upgradation was on two counts, first, the advancement from the post of Labour ''B'' to the Junior Examiner (SS) was not promotion and secondly, that since similarly placed Juniors, viz., respondents No. 4, 5, 6 and 7 having been granted second upgradation under the ACP Scheme, the petitioners cannot be discriminated.

The Tribunal vide impugned order held :

We have given our anxious consideration to the rival contentions raised by the parties. At the outset we may note that it is not in dispute that all the applicants were promoted twice under the provisions of RRs in vogue. As per DOP&T OM dated 9th August, 1999 officials are entitled to financial upgradation namely first and second on completion of 12/24 years of service respectively when they have not earned their promotion. The main object behind such policy had been to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. It provides that employees who have already secured two promotions during 24 years of regular service would not be entitled to the benefits of ACP scheme. Much emphasis was laid by the applicants on Annexure R-1 appended by the respondents along with the reply and particularly to certain words namely "similarly situated cases ACP granted". When we required learned counsel for the applicants to explain what does it mean and what is its authenticity as it is mere compilation of all the applicants as well as certain respondents, no plausible answer was put forth. On examination of the matter, we find that the term "placement" has been clarified by Ordnance Factory Board, by communication by 4.1.2004 (Annexure R-4). Similarly the Ordnance Factory Board, Kolkata vide communication dated 10th March, 2004 specifically clarified that as far as Ordnance Factory, Khamaria, Jabalpur (OFK) is concerned, there is no semiskilled post in trade except labourer (semiskilled), accordingly posts are existing in Skilled grad only. In this background the earlier clarification dated 4.1.2002 has been watered down only in respect of one trade and not other trades to which the applicants belong. On careful analysis of facts we have also noticed that except respondent No. 4 who was appointed as Labour-B other respondents detail have not been provided and therefore, it is not possible to accept their contention that said respondents were placed similarly to them. Moreover, the concept of equality is a positive concept and not a negative. It is well settled law that even if by mistake certain officials are granted certain benefits, the Courts cannot repeat such mistake by issuing directions to the respondents to perpetuate such mistake.

In respect of the claim that the advancement from labour ''B'' to Junior Examiner (SS) cannot be treated as promotion, though it is contended that the grade of Rs. 210-290 of Junior Examiner (SS) was granted by virtue of ECC; however, in fact, as the record reveals that after being promoted from labour ''B'' in grade Rs. 196-232 to Junior Examiner (SS) in grade Rs. 210-290, the petitioners were granted ECC grade of Rs. 260-400. In other words the ECC grade was granted in promoted post of Junior Examiner. The promotion whereto cannot be termed as placement. The respondents are, therefore, justified in taking the same as first promotion.

In regard to allegation of discrimination qua respondent the service particulars of respondents No. 4 to 7 in paragraph 5 of return would reveal that during the span of 24 years they did not get any promotion.

Service particulars of respondents No. 4 to 7;

It is thus clear that the respondent Nos. 4 to 7 did not earn any promotion till 9.8.1999 and were, therefore, granted two financial upgradations in furtherance to ACP Scheme 1999. In view whereof, no case of discrimination could be made out as would warrant an interference.

The petitioners have also raised the contention that being senior they are drawing lesser pay then the juniors and therefore, are entitled for stepping up. Though an inspiration is drawn from circular MODI. D. No. 6(5)/2005/D (Civ-I) Dated 4.2.08 and the decision by the Division Bench of this Court in Union of India and others v. Shri Subodh Kumar Karmakar: WP (s) No. 6049/2005 decided on 6.7.06, to substantiate the claim for stepping up. Close look at the circular dated 4.2.08 and the decision would, however, reveal that, while the circular is in respect of departmental employees appointed prior to 1989 and the direct recruitees appointed after 1989 and to treat the two at par for the purpose of ACP in order to remove serious anomalous situations; whereas, in the case at hand the petitioners and respondents No. 4 to 7 are pre 1989 entrants and while the petitioners before 9.8.99 (the day when ACP Scheme has been brought into vague) hath earned two promotions which dis-entitle them for grant of upgradation (First and Second) under ACP Scheme. Whereas, the respondents 4 to 7 stagnated for 24 years which entitled them for the benefit. Similarly, the decision in Karmakar (supra) will be of no assistant to the petitioners for the reason that Clause 8 of Annexure I appended with ACP Scheme 9.8.99 and the clarification issued thereon which provided for that the financial upgradation being purely personnel having no bearing upon the seniority cannot provide ground for setting up on identical relief by others who are not similarly situated was not taken into consideration.

True, as observed in Union of India (UOI) and Others Vs. P. Jagdish and Others, that, "under the provisions of Fundamental Rules to remove the anomaly of a Government servant promoted or appointed to a higher post earlier drawing a lower rate of pay in that post then another Government servant junior to him in the lower grade and promoted or appointed subsequently to the higher post, the principle of stepping up of the pay is applied. In such cases the pay of the senior officer in the higher post is required to be stepped up to a figure equal to the pay as fixed the junior officer in that higher post. The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer. On refixation of the pay of the senior officer would be drawn on completion of the requisite qualifying service with effect from the date of the refixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay." The said observation will not be of any assistance to the petitioner in the case at hand because the ACP Scheme where-under second financial upgradation is sought, categorically provides for that the employee who has earned two promotions in span of 24 years would not be entitled for financial upgradation and that the financial upgradation is to ameliorate the difficulties faced by the employees due to stagnation. Furthermore scheme provides for the fixation which being individual in nature will not adversely effect the seniority nor the senior would be entitled to seek upgradation on the basis that the junior on being upgraded are drawing higher pay. The principle of stepping up of pay in the case at hand, in our considered opinion in the given facts of present case will not apply. Because if applied the same would tantamount to giving benefit not envisaged in the ACP Scheme.

In view whereof we find no error in the decision by the Central Administrative Tribunal as would warrant an interference. In the result petition fails and is hereby dismissed.