Allowed

Union of India, rep., by its Secretary, Department of v. Shri D.N.Rajasimha, S/o late D.N.Raju

Telangana HC24 Feb 2014WP/26218/2003

Case brief

AI extract

What is this about?

The Supreme Court allowed multiple writ petitions challenging the Central Administrative Tribunal's order granting upgradation under the Assured Career Progression Scheme (ACP). The Court held that employees who had received two promotions before the scheme's cutoff were not eligible for ACP benefits, even where pay scales were later merged.

What did the court decide?

Impugned order of the Tribunal setting aside illegal letters and D.N. Order No. 99SCS/680 setting aside the quantum of second stage upgradation from Rs. 16,000 to Rs. 15,000 per month.

Union of India, rep., by its Secretary… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION Nos.26159, 26185, 26196, 26345, 26544, 26218 AND 26344 OF 2003

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COMMON ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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These writ petitions are filed seeking to issue writ of Certiorari calling for the records pertaining to order, dated 30.4.2003, in O.A.Nos.1668, 1676, 1693, 1694, 1695 and 1699 of 2001 and 58 of 2002 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, “the Tribunal”) and quash the same.

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2. Respondents herein/applicants were initially appointed as Junior Stenographers (now Grade-III) in Nuclear Fuel Complex. The applicant in O.A.No.1668 of 2001 was appointed to the said post with effect from 10.2.1971. He was promoted to the post of Senior Stenographer (now Grade-II) on 01.01.1982. Subsequently, with effect from 8.8.1995, he was upgraded to Grade-I Stenographer in the scale of Rs.1640-2900/- in implementation of the recommendations of petitioner No.1 issued in the year 1989. Subsequent to the said upgradation, the scale of pay of Rs.1400-2600/- of Grade-II Stenographer was replaced with that of Rs.1640-2900/- vide DPT order, dated 15.5.1997, with effect from 1.1.1986. Thus, Grade-II scale of pay has been merged with Grade-I scale of pay.

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The applicant in O.A.No.1676 of 2001 was appointed as GradeIII Stenographer with effect from 25.2.1974. He was promoted as Grade-II Stenographer on 26.6.1980 and he was upgraded to the post of Grade-I Stenographer with effect from 13.12.1994.

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The applicant in O.A.No.1693 of 2001 was appointed as

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Stenographer Grade-III with effect from 16.5.1970. He was promoted to Grade-II Stenographer with effect from January, 1987 and he was upgraded to the post of Stenographer Grade-I with effect from 8.8.1995.

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The applicant in O.A.No.1694 of 2001 was appointed as Stenographer Grade-III on 22.11.1973. He was promoted as Stenographer Grade-II on 11.8.1989 and he was upgraded to the post of Stenographer Grade-I with effect from 16.10.1995.

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The applicant in O.A.No.1695 of 2001 was appointed as GradeIII Stenographer on 20.1.1976. He was promoted to the post of GradeII Stenographer on 29.1.1987 and later, upgraded to the post of Stenographer Grade-I with effect from 8.8.1995.

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The applicant in O.A.No.1699 of 2001 was appointed as Stenographer Grade-III on 30.7.1970. He was promoted to the post of Grade-II Stenographer on 28.12.1976 and with effect from 13.12.1994, he was upgraded to the post of Stenographer Grade-I.

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The applicant in O.A.No.58 of 2002 was appointed as Grade-III Stenographer on 30.7.1970. He was promoted to the post of Grade-II Stenographer on 28.12.1976 and later, upgraded as Stenographer Grade-I with effect from 13.12.1994.

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As a consequence of merger of Grade-II scale of pay with GradeI scale of pay, many juniors to the applicants became Grade-I Stenographers in the scale of pay of Rs.1640-2900/- and the applicants, who are seniors in Grade-I Stenographers, did not get any additional benefit of fixation by way of increment, since it was not treated as promotion. In the V Pay Commission recommendations, the scale of pay of Rs.1200-2040/- and Rs.1640-2900/- were revised as Rs.4000-6000/- and Rs.5500-9000/- respectively with effect from 1.1.1996. Petitioner No.1 introduced the Assured Career Progression

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(A.C.P.) Scheme, vide OM No.35034/1/97-Estt.(D), dated 9.8.1999, and the same was implemented by petitioner No.2 to the employees of the DAE and its constituent units vide its endorsement No.99SCS/680, dated 13.8.1999. As per the said A.C.P.Scheme, employees, who had completed 12 years of service, are entitled for first stage upgradation to the next higher scale of pay, if they did not get any promotion during the said period of 12 years. Likewise, employees are entitled for second stage upgradation on completion of 24 years of service to the next higher scale, if they did not get second promotion in their career of 24 years.

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It is the contention of the applicants in all the Original Applications that they are entitled for the grant of second stage upgradation to the scale of pay of Rs.6500-10500/- under the said A.C.P. Scheme, inasmuch as, they did not get second promotion in the span of 24 years and they fulfilled the conditions laid down under A.C.P. Scheme for the said second stage upgradation. All the applicants except the applicant in O.A.No.1695 of 2001 claimed that they are entitled to the said upgradation with effect from 9.8.1999 inasmuch as they completed the said period of 24 years’ of service prior to the said date itself. The applicant in O.A.No.1695 of 2001 claimed that he is entitled to the said upgradation with effect from 20.1.2000 i.e., the date by which he completed 24 years of service without securing second promotion. But the petitioners have not granted the said benefit of A.C.P. Scheme to the applicants contending that the applicants secured two promotions from Grade-III to Grade-II and from Grade-II to Grade-I during the period of 24 years of service. The applicants contended that they got only one promotion within 12 years of service and the second one is only upgradation to Grade-I but not promotion. It is also their contention that since the scale of pay of Rs.1400-2600/- of Stenographer Grade-II was merged with Grade-I scale of pay of Rs.1600-2900/- with effect from 1.1.1986 vide orders of

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petitioner No.1 issued on 15.5.1997, the applicants’ upgradation to Grade-I on 13.12.1994 cannot be treated as promotion, as they would have been placed automatically in the said scale of pay with effect from 1.1.1986 consequent on the merger order by petitioner No.1. The applicants contended that they are entitled for the second stage upgradation under the A.C.P. Scheme to the scale of pay of Rs.650010500/-. The applicants submitted representations on 21.6.2000 and 27.9.2000 respectively to petitioner No.3 in this regard furnishing all the necessary information including the clarifications issued by petitioner No.1 vide its order, dated 10.2.2000. In the said clarification, it is made very clear that the benefits of upgradation of A.C.P. Scheme are to be allowed in the existing hierarchy after merger of pay scale by ignoring promotion from lower pay scale to higher pay scale before merger of the pay scales, as otherwise, he would be placed in a disadvantageous position vis-a-vis the fresh entrant in the merged grade. According to them, their position is exactly same and that the said clarification squarely applies to them and they are entitled for the second stage upgradation under A.C.P. Scheme to the scale of pay of Rs.6500-10500 with effect from 9.8.1999. But the said representations were rejected by petitioner No.4 vide its letters, dated 20.7.2000, and 13.12.2000, on the basis of petitioner No.2’s I.D. Note, dated 9.11.2000. The said ID Note has not been communicated to the applicants. Hence, the applicants filed the aforementioned Original Applications before the Tribunal.

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3. The Tribunal, upon considering the material available on record, allowed the Original Applications quashing the letters, dated 20.7.2000 and 13.12.2000, issued by petitioner No.4 and I.D. Note, dated 9.11.2000, of petitioner No.2 holding that they are illegal, arbitrary and contrary to the provisions of the A.C.P. Scheme and further held that all the applicants except applicant in O.A.No.1695 of 2001 are entitled to the benefit of second stage upgradation under

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A.C.P. Scheme to the scale of pay of Rs.6500-10500/- with effect from 9.8.1999 and the applicant in O.A.No.1695 of 2001 is entitled to the benefit of the second stage upgradation under A.C.P. Scheme to the scale of pay of Rs.6500-10500/- with effect from 20.1.2000 with all consequential benefits such as arrears of pay and allowances, seniority etc., and also directed the petitioners herein to implement the orders within a period of three months from the date of receipt of a copy of that order. Challenging the same, the petitioners/respondents filed the present writ petitions.

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4. Heard the learned Assistant Solicitor General appearing for the petitioners/respondents and Sri G.Vidya Sagar, learned Senior Counsel representing Smt K.Udaya Sri appearing for the respondents.

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5. The facts are not in dispute. All the respondents herein/applicants were initially appointed as Grade-III Stenographers in 1970s. The petitioners introduced A.C.P. Scheme for the Central Government Civilian Employees by Proceedings vide OM No.35034/1/97-Estt.(D), dated 9.8.1999. It is not in dispute before this Court that the respondents herein/applicants, who are working as Stenographers, come under Group “C” central services. Clause 3.1 of the said official memorandum reads as follows:

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“While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 ( in relation to Group ‘C’ and ‘D’ employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group ‘B’, ‘C’, and ‘D’ employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group ‘A’, ‘B’, ‘C’ and ‘D’ categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme.”

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The above decision has been taken by the Central Government with a view to dispel the safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Therefore, this A.C.P. Scheme was recommended by Fifth Central Pay Commission and thus, came into existence. The whole purpose of A.C.P. Scheme is to give the benefit of assured career progression to those employees, who did not get promotion and that there was a genuine stagnation.

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6. Learned Assistant Solicitor General of India appearing for the petitioners/respondents contended that since all the applicants were promoted as Stenographers Grade-II and later, to Grade-I on the recommendations made by a Departmental Promotion Committee (for short, “D.P.C.”), it is not a case of stagnation, but by virtue of the IV Pay Commission, the pay scale of Grade-II and Grade-I are made equal, which came into existence from 15.5.1997, but notionally, came into effect from 1.1.1986. Though there was no monetary benefit by virtue of making pay scale of Grade-II and Grade-I made equal in the IV Pay Commission, they actually got the promotion and therefore, it is not a case of stagnation and hence, he prays to set aside the impugned order.

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7. On the other hand, learned counsel for the respondents/applicants contended that in V Pay Commission, the pay scale of Stenographer – Grade – II is made equivalent to Stenographer Grade – I and therefore, the applicants are entitled for the benefit under the A.C.P. Scheme.

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8. We have set out the object of the Assured Career Progression Scheme. When there is a genuine problem of stagnation, then, after completion of 12 years and 24 years, as the case may be, the employees of ‘B’, ‘C’ and ‘D’ groups would get the monetary benefits

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as provided under the Scheme. But admittedly, it is not a case of genuine stagnation and hardship caused to anyone of the applicants. The applicants were promoted from Grade-III to Grade-II and later, from Grade-II to Grade-I, as indicated above. It is not in dispute that they were promoted after empanelment of the D.P.C. So, right from the year 1970 after initial recruitment till they got a promotion in the year 1995, they got two promotions. Admittedly, when they got two promotions, the question of extending the benefits under the A.C.P. Scheme may not be available to the applicants. It may be a fact that the pay scales for Grade-II and Grade-I were made equal by virtue of the IV Pay Commission report order, dated 15.5.1997, in all the units notionally with effect from 1.1.1986 and actually, with effect from 1.4.1993. Similarly, in the V Pay Commission, Grade-II and Grade-I Stenographers’ pay scale has been made equal in the first instance in view of the restructure of all the three grades in the ratio of 40:40:20 and the pay scale of Stenographer Grade – II was fixed at Rs.50008000/- and Grade-I was fixed at Rs.5500-9000/-. However, the personnel working as Stenographers Grade-II whose pay scale was revised under IV Pay Commission had fixed at V Pay Commission at Rs.5500-9000/- and allowed to continue the same as Personal Pay. Therefore, the said scheme is applicable only if a person has got no channel of promotion and could not get the promotion by two stages from the post in which he joined within a period of 12 years or 24 years, as the case may be. The scheme itself is applicable when no promotions were given to the applicants, but in these cases, admittedly, the applicants were promoted from Grade-III to Grade-II and thereafter, from Grade-II to Grade-I by duly constituting a D.P.C. Therefore, they are not entitled for the A.C.P. Scheme. This aspect of the case has not been adverted to by the Tribunal. Therefore, the impugned order is liable to be set aside and is, accordingly, set aside.

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9. Accordingly, these Writ Petitions are allowed setting aside the

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impugned order. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed.

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______________________

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JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS Date: 24.02.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION Nos.26159, 26185, 26196, 26345, 26544, 26218 AND 26344 OF 2003

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DATE: 24.02.2014

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AMD

Union of India, rep., by its Secretary, Department of v. Shri D.N.Rajasimha, S/o late D.N.Raju

Case brief

What is this about?

What did the court decide?

Union of India, rep., by its Secretary, Department of v. Shri D.N.Rajasimha, S/o late D.N.Raju

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