Union of India and Others vs N. Satheesan

B. Veerappa, J.—This writ petition is filed against the order dated 10.2.2011 passed in O.A. No. 264/2009 on the file of the Central Administrative Tribunal, Bangalore, allowing the application of the respondent herein, thereby granting the benefit of first financial upgradation in the pay scale of Rs. 6,500 - 10,500/- w.e.f. 17.7.2004 and second financial upgradation under Assured Career Progression scheme (Hereinafter referred to as ''the ACP'') in the pay scale of Rs. 8,000/- - Rs. 13,500/- w.e.f. 3.8.2005.

The brief facts of the case are:--

"According to the original applicant (respondent herein), he joined as Skilled Grade I employee in the Small Industries Service Institute (for short ''the SISI'') now known as "Micro, Small and Medium Enterprises Development Institute" Coimbatore in the pay scale of Rs. 380/- - 560/- on 30.6.1977; he was having the requisite qualification of SSLC + ITI (Turner Grade) for the post at the time of recruitment. After completion of three years of service, the applicant was selected for the post of Investigator [Mechanic] in the pay scale of Rs. 425 - 700/- as per the 4th Central Pay Commission (for short ''the CPC) and he reported for duty at SISI, Bangalore, on 3.8.1981. The pay scale of Investigator was revised to Rs. 5,000/- - 8,000/- as per the recommendation of the 5th CPC. The applicant after joining as Investigator in SISI, Bangalore, some of his juniors were promoted as Small Industries Promotion Officer (Mech) (for short ''SIPO''), now re-designated as Assistant Director (Mech) Grade II. However, the applicant remained without any promotion."

The Government of India, as per the 5th Central Pay Commission recommendation introduced a scheme of ACP which provides for financial upgradations for those employees, who do not get any promotions after 12 years and 24 years of regular service respectively. In pursuance of the said scheme, the applicant got the benefit of first financial upgradation w.e.f. 9.8.1999 in terms of the order dated 9.3.2000. Some of the Investigators, who were juniors to the applicant got second financial upgradation benefit on completion of 24 years of service by an order dated 28.3.2002. It is further case of the applicant that the second financial upgradation under ACP have been given to the investigators similarly situated to that of the applicant. However, the applicant has not been given the said benefit even though he has completed 24 years of regular service on 3.8.2005. The applicant was given the only pay scale of first financial upgradation i.e., the scale prescribed for the post of Small Industries Promotion Officer. Subsequently, during the year 2004 the pay scale of Small Industries Promotion Officers'' was revised from Rs. 5,500/- - 9,000/- to Rs. 6,500/- - 10,500/-. The said post of Small Industries Promotion Officer has been re-designated as Asst. Director Grade II on 23.9.2004. In view of the re-designation of Small Industries Promotion Officer as Asst. Director Grade II, some of the juniors to the applicant have been given the said pay scale of second financial upgradation under ACP.

In those circumstances, the applicant made representation to the 2nd petitioner herein on 6.1.2006 requesting to extend the benefit of second financial upgradation under ACP. The representation of the applicant has been forwarded by petitioner No. 2 to petitioner No. 3 on 16.1.2006. Since there was no response, the applicant was forced to file another representation on 25.4.2006 and 6.11.2008 bringing to the notice of the 2nd petitioner, the instances of similarly situated officials, who were granted second financial upgradation under ACP. The same was not considered in view of the impugned clarification dated 12.1.2009. Therefore the applicant was constrained to approach CAT.

The present petitioners, who were respondents before CAT filed reply statement and denied the averments made in the application and contended that the applicant has been working as Investigator (Mech) since 3.8.1981 and his qualification is SSLC + ITI (Turner Grade) - two years course. The qualification prescribed for the post of Small Industries Promotion Officer is degree in Mechanical Engineering from a recognized University w.e.f. 6.7.2004 and the persons who were not having degree/diploma as prescribed in the Recruitment Rules will not be considered for further promotion for the grade of Small Industries Promotion Officer and therefore, the applicant was not entitled to any financial upgradation under ACP; however, the benefit of first financial upgradation was granted to the applicant and other similarly placed Investigators on 9.8.1999 was by mistake; in view of the impugned clarification, if a person does not meet the requirement of the promotional post, he is not eligible for ACPs. According to the petitioners herein, the applicant has not been given the second financial upgradation under ACP etc.

The Central Administrative Tribunal, after hearing both the parties by its impugned order dated 10.2.2011 allowed the application and granted the second financial upgradation to the applicant as sought for in the application. Hence the present writ petition is filed.

We have heard the learned counsel for the parties to the lis.

Sri. Ajay Kumar Patil learned counsel for the petitioners mainly contended that the impugned order passed by the CAT is contrary to law, facts and circumstances of the case and the respondent is not entitled for second financial up-gradation benefit under ACP. He did not fulfill the conditions prescribed to the post of Assistant Director Grade II as he did not possess the requisite qualification for the post of Assistant Director Grade II. He further contended that one Sri Nagaraju, who was junior to the respondent was granted the second financial up-gradation as he possessed the requisite qualification; since the respondent is not having requisite qualification he is not entitled for the same. The learned counsel further contended that the petitioners have not extended the benefit to any employees after 2002, who did not possess the requisite qualification to the said post. The respondent completed 24 years of service in the grade of Investigator in August 2005, therefore, sought to set aside the impugned order passed by the CAT.

Per contra, Sri A.R. Holla, learned counsel for the respondent sought to justify the impugned order and contended that under clause 6 of the ACP scheme normally promotions are to be followed by extending the Financial Upgradation under ACP scheme. The promotional norms refer to "pass in Departmental Examination, Bench-Mark, Seniority-cum-fitness" etc. According to the scheme, once the financial upgradation is given after completion of 12 years, it necessarily follows that the applicant is entitled to second financial upgradation on completion of 24 years of service. The contention that though the applicant was not qualified, by mistake the benefit of first financial upgradation benefit was granted to him cannot be accepted; admittedly the petitioners have not rectified the alleged mistake by withdrawing the benefit from the respondent and other similarly situated persons; the said issue is no more res integra in view of the order dated 22.2.2004 passed by the CAT in OA. No. 539/2003 and the same has been confirmed by this Court in W.P. No. 29493/2004 dated 12.8.2004 in the case of K. Padmanabha etc., on these among other grounds, the original applicant sought for dismissal of the W.P.

We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and scrutinized the entire material on record carefully.

It is an undisputed fact that the respondent-applicant was appointed as Skilled Grade I employee in the Small Industries Service Institute on 30.6.1977 and after completion of three years of service, he was selected for the post of Investigator (Mechanic) in the pay-scales of Rs. 425-700/- and the same was revised to Rs. 5,000 - 8000/- as per the recommendation of 5th CPC. The Central Government has introduced a scheme called ''Assured Career Progression" scheme (for short ''the ACP'') for the Central Government civilian employees. The object of the scheme is that the 5th CPC in its report has made certain recommendations relating to the ACP scheme for the Central Government Civilian Employees in all Ministries/Departments. The ACP scheme needs to be viewed as a ''Safety Net'' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. After careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the 5th CPC with certain modifications. Clause 5 of the said scheme indicates that "Vacancy based regular promotions, are distinct from financial upgradation under the ACP scheme shall continue to be granted after due screening by a regular Departmental Promotion Committee as per relevant rules/guidelines." Annexure-I to the office memorandum No. 35034/1/97-Estt.(D) dated 9.8.1999 refers to conditions for Grant of Benefits Under the ACP Scheme - The 1st condition of the same indicates that

"ACP Scheme envisages merely placement in the higher pay-scales/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose. Condition 4 deals with 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 first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first up-gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc., this would have consequential effect on the second upgradation which would also get deferred accordingly. The 6th condition deals with Fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group ''D'' employees etc.,) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodations, advances, etc.) only without conferring any privileges related to higher status (E.g. Invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP scheme. Condition No. 12 defines that the proposed ACP scheme contemplates merely placement on personal basis in the higher pay-scale/grant of financial benefits only and shall not amount to actual/functional promotion of the employees concerned. Since orders regarding reservation in promotion are applicable only in the case of regular promotion, reservation orders/roster shall not apply to the ACP Scheme which shall extend its benefits uniformly to all eligible SC/ST employees also. However, at the time of regular/functional (actual) promotion, the cadre controlling authorities shall ensure that all reservation orders are applied strictly."

It is an admitted fact that the applicant has been extended the benefit of first financial upgradation under ACP scheme recognizing the fact that the applicant was eligible for it. As he did not get any promotion the denial of second financial upgradation benefit after completion of 24 years of service, is not in accordance with law. Even the so called clarification issued as per Annexure-A9 dated 12.01.2009 does not indicate that the applicant did not satisfy the promotional norms. Without stating clearly as to why and how the original applicant is not meeting promotional norms while similarly situated employees were extended the same benefit, rejecting the claim of the applicant mechanically without application of mind, is bad in the eye of law.

The scheme introduced in Office Memorandum No. 35034/1/97-Estt. (D) dated 9.8.1999, Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) clearly depicts that the ACP scheme needs to be viewed as ''Safety Net'' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues and the scheme is to mitigate hardship in cases of acute stagnation either in the cadre or isolated posts keeping in view all the relevant factors, therefore, it has been decided to grant second financial upgradation as decided by 5th CPC.

The ACP scheme became operational w.e.f. 9.8.1999. Conditions for grant of benefits under the ACP Scheme as found in Annexure-A1 of Office Memorandum No. 35034/1/97-Estt.(D) dated 9.8.1999 (paragraph 6) Reads thus:--

"6. Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of group ''D'' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodations, advances etc.) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme;"

Therefore, the contention of the petitioners that the applicant does not possess the requisite qualification of Degree in Mechanical cannot be accepted. When the applicant was given first ACP, certainly he is entitled for Second ACP, which cannot be denied. If really the first ACP was granted wrongly, there is no reason as to why the petitioners have not taken any action for withdrawing it and as to why no action has been taken against the persons who have granted it wrongly. It is also not denied by the petitioners that one Sri Nagaraju, junior to the applicant/respondent has been given 2nd ACP by an order dated 18.1.2008 and the same is not denied by the petitioners. The said Nagaraju does not possess the prescribed degree for the post of Small Industries Promotion Officer.

A perusal of Annexure-A9 dated 12.1.2009 clearly indicates that clarification is given for the grant of ACP and not for rejection and the enclosure thereto dated 14.9.2004 also does not reflect the rejection of the applicant''s claim. Moreover the very impugned clarification issued by the petitioners dated 14.9.2004 is contrary to the scheme. We do not find any substance in the contention of the learned counsel for the petitioners that the respondent was granted first financial upgradation under ACP w.e.f. 9.3.2000, in the absence of any educational qualification prescribed in the rules. It is not in dispute that the authorities are yet to amend the recruitment rules prescribing minimum education qualification to grant second financial upgradation. In the absence of amended rules prescribing education qualification, the applicant, who is investigator with SSLC and ITI Qualification, and being a recipient of first financial upgradation under ACP, cannot be denied the benefit of second financial upgradation merely based on the impugned clarification in view of the dictum of the Hon''ble Supreme Court in the case of Jagdish Kumar and Others Vs. State of H.P. and Others, . At paragraph 15 it is held as under:--

"15. Further question is whether any relaxation was necessary while giving promotion as Assistant Draftsman. For being eligible to be considered for appointment as Assistant Draftsman, the requirements are indicated in Rule 6(H). Once the requirement of passing diploma of Draftsman Course is relaxed in terms of Rule 6(i) for appointment as Tracer, there is no necessity for again having relaxation for being considered as Assistant Draftsman. That contingency is already taken care of when relaxation is given for appointment as Tracer. Otherwise, a person who has been found eligible to be appointed as a Tracer will not be considered for promotion as Assistant Draftsman, even though there is no illegality attached to the appointment as Tracer. Such a view would go against the logic of relaxation for appointment as Tracer."

It is also not in dispute that one Nagaraju was granted second financial upgradation, who is junior to the applicant and who possess the same qualification and experience on par with the applicant as per Annexure-A10 dated 18.1.2008, has not been denied by the petitioners. The reasons as to why the respondent/applicant has been discriminated are not forthcoming. It is also not in dispute that in an identical circumstance, the Tribunal granted the benefit of second financial upgradation under ACP made in O.A. 539/2003 on 24.6.2003 in the case of K. Padmanabha and the same has been affirmed by this Court in W.P. No. 29493/2004 on 12.8.2004; while dismissing the writ petition filed by the very petitioners it is held as under:--

"10. The learned Members opined that the facts of the case of K. Padmanabha, respondent herein, though identical, did not cover the facts of that case. In addition, it is not in dispute that the respondent has put in more than 24 years of service and he is eligible for grant of Second Financial Up-gradation under the ACP Scheme.

The fact that an official by name Thomas, also a matriculate, was extended the benefit of Second Financial Upgradation, as is noticed by the CAT in the order impugned, is not seriously disputed by producing any record to show and establish that the case of Thomas stood on a different footing than that of respondent, except for making a statement at para-20 to the writ petition. It is well established law that equals must be treated equally, is constitutional creed, and there can be no discrimination as between equals."

The said order passed by this Court is final and conclusive.

In view of the aforesaid reasons, the petitioners have not made out any legal ground, much less, pointed out any legal infirmity in the impugned order passed by the Central Administrative Tribunal calling for interference under Articles 226 and 227 of the Constitution of India. Accordingly writ petition stands dismissed.