Dismissed

Union of India and Ors. v. Durgaram

Rajasthan HC14 Dec 2019WRW/68/2018

Case brief

AI extract

What is this about?

The Court dismissed multiple review petitions filed by the Union of India against an order granting financial upgradation benefits under the Assured Career Progression (ACP) Scheme to former employees. The Court held that new recruitment rules could not apply retrospectively to deny rights accrued under earlier rules.

What did the court decide?

Review petitions dismissed with no order as to costs.

Union of India and Ors. Vs Durgaram — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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D.B. Review Petition (Writ) No. 68/2018

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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Principal Controller Of Defence Accounts, Southern Command, Pune.

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----Petitioners

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Versus

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Durga Ram (Dead) Through His LRs Smt. Mathura Devi W/o Late Shri Durga Ram, Aged About 69 Years, Resident Of Outside Chandpole, Jodhpur Raj.

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----Respondent

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Connected With

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D.B. Review Petition (Writ) No. 154/2018

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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Principal Controller Of Defence Accounts, Southern Command, Pune.

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---Petitioners

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Versus

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Moti Lal S/o Shri Mohal Lal, Aged about 42 years, at present working as a Tailor under Commandant, 224, Advance Base

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(2 of 10)

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[WRW-68/2018]

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Ordinance Depot C/o 56 A.P.O. resident of Holly Chowk, near Badri Pan Merchant, Sardarpura, Jodhpur (Raj.).

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----Respondent

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D.B. Review Petition (Writ) No. 155/2018

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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Principal Controller Of Defence Accounts, Southern Command, Pune.

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----Petitioners

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Versus

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Umrao Singh S/o Shri Govind Singh G, Aged about 55 years, at present working as a Rop-worker under Commandant, 224, Advance Base Ordinance Depot C/o 56 A.P.O. Ticket No.1756, resident of VPO, Banar District Jodhpur (Raj.).

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----Respondent

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D.B. Review Petition (Writ) No. 156/2018

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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Principal Controller Of Defence Accounts, Southern Command, Pune.

----Petitioners

(3 of 10)

[WRW-68/2018]

Versus

Om Prakash S/o Shri Rana Ram, aged about 41 years, at present working as a tailor under Commandant, 224, Advance Base Ordinance Depot C/o 56 A.P.O., resident of Mohanpura, under Brize Jodhpur (Raj.).

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----Respondent

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D.B. Review Petition (Writ) No. 157/2018

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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Principal Controller Of Defence Accounts, Southern Command, Pune.

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------Petitioners

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Versus

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Ram Narayan S/o Shri Mohan Lal, Aged about 47 years, at present working as a Tailor under Commandant, 224, Advance Base Ordinance Depot C/o 56 A.P.O., resident of Holly Chowk, Near Badri Pan Merchant, Sardarpura, Jodhpur (Raj.).

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----Respondent

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D.B. Review Petition (Writ) No. 196/2019

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Union Of India Through The Secretary, Ministry Of Defence, Raksha Bhawan, New Delhi.

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The Major General, A.O.C, Southern Command C/o 56 A.P.O.

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A.O.C. (Records) Government Of India, Ministry Of Defence, Secunderabad.

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The Commandant, 224, Advance Base Ordinance Depot, C/o 56 A.P.O.

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(4 of 10)

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[WRW-68/2018]

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Principal Controller Of Defence Accounts, Southern Command, Pune.

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------Petitioners

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Versus

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Bal Mukund S/o Shri Bansi Lal, Aged about 57 years at present working as Tent Mender under Commandant, 224, Advance Base Ordinance Depot C/o 56 A.P.O. resident of Mohanpura, under Brize Jodhpur (Raj.).

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----Respondent

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For Petitioner(s) : Mr. Sanjeet Purohit For Respondent(s) : Mr. J.K. Kaushik

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE ARUN BHANSALI

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Order

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Per Hon’ble Mr.Sangeet Lodha, J.

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14th December, 2019

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These petitions are filed by the petitioners seeking review of a common order dated 30.5.16 passed by a Bench of this Court in D.B. Civil Writ Petition No.6338/12 and other connected petitions, whereby the writ petitions preferred by the petitioners against the common order dated 15.4.11 passed by the Central Administrative Tribunal (‘Tribunal’), Jodhpur Bench, Jodhpur, declining the prayer of the respondents for grant of benefits of 1^st financial upgradation under the Assured Career Progression (ACP) Scheme in the pay scale of Rs.5000-8000 and 2^nd up-gradation in higher pay scale were allowed.

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At the outset, learned counsel appearing for the petitioners submitted that aggrieved by the order under review, the

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(5 of 10)

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[WRW-68/2018]

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petitioners had filed a special leave petition before the Supreme

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Court, wherein the petitioners were extended liberty to move to this Court by way of review petition to make submissions in light of a Bench decision of Punjab and Haryana High Court taking a different view in the matter against which the special leave petition preferred was dismissed by the Supreme Court. The order dated 16.2.18 passed by the Supreme Court in SLP No.9828/17, arising out of the order dated 30.5.16 passed by this Court in D.B. Civil Writ Petition No.6338/12 reads as under :

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“Delay condoned.

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It is submitted by Ms. Vibha Datta Makhija, learned senior counsel appearing for the petitioners, that the impugned order is in conflict with the view taken by the Punjab and Haryana High Court in Judgment dated 4^th July, 2011 in CWP No.15739-CAT of 2003 in Union of India v. Rupa Singh against which SLP (C) No(s).28779 of 2011 has been dismissed by this Court on 10^th July, 2017.

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Since we find that this aspect has not been pointed out to the High Court, the petitioners are at liberty to move the High Court in support of this submission. The High Court may consider the mater on merits in accordance with law.

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We make it clear that if the petitioners are aggrieved by the order that may be passed by the High Court, they will be at liberty to take their remedied against the same in accordance with law.

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The special leave petition is accordingly disposed of.”

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Learned counsel appearing for the petitioners submitted that when the writ petitions preferred on behalf of the respondents were argued before this Court on account of inadvertent error, a Bench decision of Punjab and Haryana High Court taking contrary view on the identical issues could not be brought to the notice of the Court. Learned counsel submitted that the view taken by the

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(6 of 10)

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[WRW-68/2018]

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Punjab and Haryana High Court in C.W.P. No.15739-CAT of 2003 : Union of India and others Vs. Rupa Singh and others, stands affirmed by the Supreme Court vide order dated 10.7.17 passed in Special Leave Petition No.28779/2011 : Rupa Singh & Ors. Vs. Union of India & Ors.

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Learned counsel for the petitioners submitted that ACP Scheme provides for giving benefit of higher pay scale and not the scale of the pay admissible to the next higher post available on promotion. Drawing the attention of the Court to the Army Ordnance Corps, Chargeman Grade-II (Group ‘C’) Recruitment Rules, 2005 (‘the Rules of 2005’), which have come into force w.e.f. 19.1.2006, learned counsel submitted that Highly Skilled Tradesman were only eligible for promotion to the post of Chargeman and thus, the Chargeman did not remain the next promotional post for the category of Tailors and Tent Menders, who are semi skilled. Since the respondents were holding semiskilled posts, they were entitled to next promotion to Skilled Tradesman/Highly Skilled Tradesman and not to the post of Chargeman-II. As laid down by the Punjab and Haryana High Court, all Industrial Group ‘C’ and ‘D’ employees would be eligible for financial up-gradation in the hierarchy mentioned i.e. from unskilled to semi-skilled, semi-skilled to skilled and thereafter to the highly skilled scale of pay. Learned counsel would submit that since view taken by the Punjab and Haryana High Court as aforesaid in Rupa Singh’s case stands affirmed by the Supreme Court, the view taken by this Court extending benefit of 1^st and/or 2^nd ACP as the case may be, to the respondents as per their

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(7 of 10)

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entitlement on completion of 12/24 years of service, in the pay scale admissible to the post of Chargeman-II i.e. Rs.5000-8000 is ex facie erroneous and therefore, the order under review deserves to be recalled and the writ petitions preferred by the respondents deserve to be dismissed.

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On the other hand, learned counsel appearing for the respondents submitted that at the relevant time when the respondents became entitle for 1^st and/or 2^nd financial upgradation under the ACP Scheme, their services were governed by Army Ordnance Corps (Technical Supervisory Post) Recruitment Rules, 1980 (‘the Rules of 1980’), whereunder the channel of promotion available from the post of Tailors/Tent Menders/Packers/Fitters was to the post of Chargeman-II. Learned counsel submitted that the respondents were holding the post which falls within the post categorized as Group ‘D’ Tradesman, which is feeder post to the promotion to the post of Chargeman-II under the Rules of 1980, which carries pay scale of Rs.5000-8000. Learned counsel submitted that Skilled and Highly Skilled Tradesman are not the promotional posts in the hierarchy under the Rules of 1980 and thus, the question of said post being considered promotional posts for grant of financial up-gradation under ACP Scheme does not arise. Learned counsel submitted that all the relevant aspects of the matter have been duly considered by this court while deciding the writ petitions. As a matter of fact, by way of these review petitions, the petitioners want rehearing of the matter, which is not permissible under the law.

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(8 of 10)

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We have considered the rival submissions and perused the material on record.

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Indisputably, as per the ACP Scheme, the employees holding the post in Grade B, C and D services and those holding isolated posts in Grade B, C and D categories are entitled for first and second financial upgradation on completion of 12 & 24 years of regular service respectively in the pay scale of next hierarchical promotion in case he has not got first and/or second promotion. It is also not in dispute that at the relevant time, when the petitioners herein become entitled for grant of first and/or second financial upgradation, their services were governed by the Rules of 1980 whereunder the posts which the petitioners were holding fall within Tradesman Gr.-B category, which are the feeder post for promotion to the post of Chargeman-II and thus, the contention sought to be raised by the petitioners on the strength of Rules of 2005, which have come into force w.e.f. 19.1.06, restricting the promotion to the post of Chargeman to the incumbents holding the post of Highly Skilled Tradesman with 8 years regular service and who have passed necessary Trade Test, is absolutely misplaced. Obviously, the new recruitment Rules notified on 19.1.06 and subsequent amendment of ACP Scheme cannot and does not take away the right of the petitioners for first and second selection grade already accrued. Thus, the view taken by the Punjab & Haryana High Court in Rupa Singh’s case holding that in view of Rules of 2005 read with ACP Scheme for Central Civilian Employees in AOC, the category of Tent- Menders/Tailors were not

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(9 of 10)

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entitled to the scale of pay available to Chargeman-II is not applicable to the facts of the present case.

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Suffice it to say that the Rules of 2005 restricting promotional avenues to the post of Chargeman to the candidates holding Highly Skilled Tradesman with 8 years of regular service, cannot be applied retrospectively so as to cover the petitioners herein who had already acquired right for grant of First and/or Second Selection Grade, as the case may be, under the Rules of 1980 read with ACP Scheme in the pay scale admissible to the post of Chargeman-II i.e. Rs.5000-8000.

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There is yet another aspect of the matter. In the instance case, after due consideration of rival submissions, the Tribunal has arrived at a categorical conclusion that the petitioners were entitled for first and/or second financial upgradation in the pay scale admissible to the post of Chargeman-II, the correctness whereof was not even challenged by the petitioners before this court and thus, even otherwise the petitioners cannot be permitted to contend that the petitioners being Semi-Skilled Tradesman are entitled to the financial upgradation in the pay scale admissible to the post of Highly Skilled Tradesman and not that of the promotional post in the hierarchy as provided under the Rules of 1980. As a matter of fact, this aspect has also already been dealt with by this court while allowing the writ petitions by order under review.

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Thus, on the facts and in the circumstances of the case, the attempt of the petitioners in claiming re-hearing of the matter by way of review petitions cannot be countenanced by this court.

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(10 of 10)

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