Back
2015 Supreme(Cal) 541
IN THE HIGH COURT AT CALCUTTA
Samapti Chatterjee, J.
Rama Kanta Chowdhury - Petitioner
Versus
Union of India & Another - Respondents
W.P. No. 18010 (W) of 2007
Decided On : 04-05-2015
For the Petitioner: Mr. Asit Kumar Banerjee, Mr. S.N. Chattopadhyay.
For the Union of India : Mr. Subrata Dasgupta.
Employees who have not received any promotion during their service tenure are entitled to financial upgradation benefits under the ACP Scheme, subject to fulfillment of prescribed conditions. The denial of such benefits without any distinguishing feature amounts to unfair and unjust treatment, violating Articles 14, 16, and 21 of the Constitution of India.
Headnote:
ACP SCHEME - FINANCIAL UPGRADATION - RAILWAY EMPLOYEE - ENTITLEMENT TO FIRST AND SECOND FINANCIAL UPGRADATION UNDER ACP SCHEME - CONDITIONS FOR GRANT OF BENEFITS UNDER ACP SCHEME - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, a former Railway Protection Force (RPF) Constable, filed a writ petition seeking extension of financial upgradation benefit under the 'Assured Career Progress Scheme' (ACP Scheme) for both first and second periods and fixation of his pay in the appropriate scale of pay. The petitioner argued that despite completing 12 and 24 years of regular service without any promotion, he was denied the benefits of the ACP Scheme, while similarly situated employees had received the benefits.
Finding of the Court:
The court found that the petitioner was entitled to the first financial upgradation under the ACP Scheme after completion of 12 years of regular service and the second upgradation after completion of 24 years of regular service, subject to fulfillment of prescribed conditions. The court noted that the petitioner had not received any promotion during his entire service tenure and was in a state of acute financial stagnation.
Issues: 1. Whether the petitioner was entitled to the first and second financial upgradation under the ACP Scheme despite not receiving any promotion during his service tenure? 2. Whether the petitioner was required to make a representation to the authorities before filing the writ petition for extension of ACP Scheme benefits?
Ratio Decidendi: 1. The court held that the petitioner was entitled to the first and second financial upgradation under the ACP Scheme as per the prescribed conditions, even in the absence of any promotion. The court relied on the provisions of the ACP Scheme, which aimed to mitigate hardship in cases of acute stagnation in service. 2. The court held that the petitioner was not required to make a representation to the authorities before filing the writ petition, as the act of the government authority in denying the petitioner the ACP Scheme benefits was unfair, unjust, and contrary to Articles 14, 16, and 21 of the Constitution of India.
Final Decision: The court allowed the writ petition and directed the respondents to fix the petitioner's pay in the scale of Rs. 32,000-49,000/- with effect from 1.10.1999 and thereafter in the scale of Rs. 4000-6000/- as per the ACP Scheme. The court also directed the respondents to enhance the petitioner's pension accordingly and disburse the arrears within two months.
Samapti Chatterjee, J.
1. The petitioner filed the instant writ petition to extend financial upgradation benefit both first and second period under ‘ACP Scheme’ and to fix the petitioner’s pay thereafter in the appropriate scale of pay. The extract of the said ‘ACP Scheme’ is quoted below :-
“Conditions for grant of benefits under the ACP Scheme
1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Railway Servant concerned on personal basis and shall, therefore, neither amount of functional/regular promotion nor would required creation of new posts for the purpose.
2. The highest pay-scale upto which the financial upgradation under the Scheme shall be available to those falling in the entitled categories will be Rs.14,300-18,300. Beyond this level, there shall be no financial upgradation and higher posts shall be filled strictly on vacancy based promotions.
3. The financial benefits under the ACP Scheme shall be granted from the date f completion of the eligibility period prescribed under the ACP Scheme or from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later.
4. 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. In other words, if the first upgradation gets postponed on account of 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.
5.1 Two financial upgradations under ACP Scheme in the entire Railway service career of an employee shall be counted against regular promotions (including in-situ promotion and/or any other promotion including fast-track promotion availed through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotions, 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 promotion on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him.
5.2 Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit.
6. The following shall be ensured while granting benefits under the ACP Scheme.
a. Fulfillment of normal promotion norms prescribed, such as bench-mark, trade test, departmental examination, seniority-cum-fitness (in case of Group ‘D’ employees) etc. for grant of financial upgradations.
b. Performance of such duties as are entrusted to the employees together with retention of old designations.
c. Financial upgradations as personal to the incumbents for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits such as sanction of advances including House Building Advance, allotment of Government accommodation, issue of privilege and other passes etc only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc.)
7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts,
