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2008 Supreme(HP) 210
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: R.B. Misra and Sanjay Karol, JJ.
Ram Lok and Ors. – Appellants
Vs.
The Director and Ors. – Respondent
Decided On: 16.05.2008
The main legal point established in the judgment is that under the ACP Scheme, employees who have not received any regular promotion are entitled to the second financial upgradation after completion of 24 years of service.
Headnote:
ACP Scheme - Financial Upgradation - 1. The ACP Scheme envisages merely placement in the higher pay scale/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. 2. The highest pay scale upto which the financial upgradation under the scheme shall be available 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 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. 5. 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-tract promotion availed through limited departmental competitive examination availed from the grade in which an employee was appointed as a direct recruit. 6. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without counting new posts for the purpose. 7. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. 8. In cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the Scheme shall be granted directly. The court interpreted the provisions of the ACP Scheme and held that the petitioners were entitled to the second financial upgradation under the Scheme.
Fact of the Case:
The petitioners were denied the benefit of first and second financial upgradations under the Assured Career Progression Scheme (ACP) and all consequential benefits by the Central Administrative Tribunal. The petitioners challenged the denial, claiming that they were entitled to both the upgradations under the ACP Scheme.
Finding of the Court:
The court found that the petitioners were entitled to the second financial upgradation under the ACP Scheme as they had not received any regular promotion and had completed 24 years of service.
Issues: The main issue was whether the petitioners, who had been given a higher pay scale in their career once, were eligible for two financial upgradations under the ACP Scheme after completion of 24 years of service.
Ratio Decidendi: The court interpreted the provisions of the ACP Scheme, specifically Clause 5.1, and held that the petitioners, who had not received any regular promotion, were entitled to the second financial upgradation under the Scheme.
Final Decision: The court set aside the impugned order of the Central Administrative Tribunal and held that the petitioners were entitled to the difference in salary on account of pay fixation in the higher pay scale from the specified date.
R.B. Misra, J.
1. These writ petitions have been preferred by the writ petitioners against the impugned order dated 18.11.2003 passed in O.A. No. 926/HP/2002 along with other O.A. Numbers, namely, O.A. No. 925/ HP/2002, O.A. No. 923/HP/2002, O.A. No. 924/HP/2002, O.A. No. 928/ HP/2002 and O.A. No. 927/HP/2002, whereby their prayer for granting benefit of first and second financial upgradations under the Assured Career Progression Scheme (in short called 'ACP') and all consequential benefits to be extended to them, have been denied by the Central Administrative Tribunal (Circuit Bench) at Shimla.
2. Since the common question of law and facts involved in all the original applications, the same were dealt with and adjudicated upon together by a common impugned order, as such, all these writ petitions are being disposed of by a common order.
3. It appears that the 'ACP' Scheme was introduced by the Government of India, Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel and Training), North Block, New Delhi-66, on 9.8.1999 for giving benefit to such Central Government civilian employees 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 and this 'ACP' Scheme was in reference, to the recommendations of the Fifth Central Pay Commission with certain modifications.
4. The relevant provisions, necessary for the present writ petitions, are indicated as below:
1. The ACP Scheme envisages merely placement in the higher pay scale/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.
2. The highest pay scale upto which the financial upgradation under the scheme shall be available 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 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.
5.1. 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-tract 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 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.
5.2. Presidency 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.
7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without counting new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay scale as
