1N THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. ééFLOF 20M: PETITIONER: K Shyamlal Dewangan, son of Shri Loman Singh Dewangan, aged about 42 years, working as Inspector in the Central Excise, B.S.P., Range IV, Shed No.62, Old Administrative Building, Bhilai Steel Plant, Bhilai, District Durg. VS RESPONDENTS 1. Union of India, through the Secretary, (Revenue), Ministry of Finance— North Block, New Delhi — 110 011. The Chairman, Central Board of Excise & Customs, North Block, New Delhi, 110011. Commissioner, Customs and Central Excise, ‘C’ Scheme, Statue Circle, Jaipur (Rajasthan). The Commissioner, Customs Central Excise, The Chief and Manikbagh Palace, Indore (M.P.) 452001. The Commissioner, Customs and Central Excise, Central Revenue Building, Civil Lines, Raipur — 492001. The Commissioner, Customs and Central Excise, Opp. Maida Mill, Hoshangabad Road, Bhopal (M.P.) Shri Agapit Panba, Inspector of Central Excise, Rajnandgaon. @ WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA. {Q HIGH COURT OF CHHATTISGARH : BILASPUR W. P. N0. 642 of 2005 Petitioner Shyamlal Dewangan ersus Respondents Union of India & others WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA DB: Hon’ble Mr. I. M. Quddusi, 85 Hon’ble Mr. N. K. Agarwal, JJ. ‘1’ \ Shri B. P. Shanna, Advocate for the petitioner. Shri Bhishma Kinger, Senior Standing Counsel for the respondents NO. l to 6. None for the respondent No.7. 0 R D E R [oral] ( Passed on this 3rd day of August, 2010 ) g’er I.M.Quddusi, J. ‘Heard learned counsel appearing for the writ petitioner as well as learned counsel appearing for the Official respondents Noxl to 6. The petitioner has filed the instant writ petition challenging the order dated 19th November, 2003 (Annexure P/6), passed by the Central Administrative Tribunal, Jabalpur Bench, seeking a direction to the official respondents to grant Assured Career Progression (ACP) Scheme benefits to the petitioner w.e.f. 9.8. 1999. Brief facts, in nutshell, as projected by the petitioner, are that the petitioner was appointed on the post of Inspector in Central Excise. His name was placed at serial No. 151 in the Seniority list of Group ‘C’ Executive Staff (inspectors of Central Excise) of Customs 85 Central Excise Indore/Nagpur/Raipur, as on 1.1.1997. During the entire service career, till today, no adverse remark has been communicated to the petitioner. On the basis of the recommendations of the Fifth Central Pay Commission, relating to the Assured Career Progression (ACP) Scheme, on 9.8;1999 (Annexure P/ 1) the Central Government I V M \ laun‘ched the ‘Assured Career Progression Scheme for he Central t Government civilian employees’, with a View to grant first and second financial upgradation after 12 and 24 years, respectively, to the employees who could not get promotion due to‘ lack of adequate promotional avenues. The criteria before the Screening Committee for the above purpose were seniority—cum—fitness. The petitioner was entitled to get the benefit of first financial upgradation. Vide order dated 14th December, 1999 (Annexure P/4) the junior of the petitioner namely Shri Agpit Panna (ST) (at serial No. 96), along with others, was given the benefit of, lst Financial Upgradation to the next higher grade in the pay scale of Rs. 650020040500 w.e.f. 9.8.1999 but the petitioner could not get the same benefit. The apprehension of the petitioner was that his name was not considered by the screening committee. Being aggrieved by the order dated 14th December, 1999 (Annexure . 19/4) the petitioner filed Original Application No. 844/ 1999 before the Central Administrative Tribunal, Jabalpur Bench, seeking a relief to direct the official respondents to hold the review meeting of the screening committee and to consider the name of the applicant for the lSt financial upgradation in the next higher grade, in the pay scale of Rs. 6500—200—10500 w.e.f. 9.8.1999 i.e. the date on which his junior Shri Agapit Panna/Respondent No.7 was granted the benefit. The Division Bench of the Tribunal has considered the matter in detail and examined the minutes of the screening committee. The Tribunal made its observations that since in the year 1999 the benchmark of the petitioner was not goodie. “average—not yet fit”,\th.e screening committee did not find the petitioner fit for grant of the, benefit of lst financial upgradation under the ACP scheme. With a ,‘1 " View that the Tribunal has no authority to assess Whether ths applicant was qualified or not, when according to the minutes of the scree nmg commlttee the pet1t10ner was not qualified for 15‘ financial ‘ upgradation, Vlde order dated 19th November, 2003 (Anncxure P/6) the original application was dismissed by the Tribunal. 7. i Being aggrieved by the dismissal of the Original Application by the ‘31 ‘Tribunal, the petitioner has flled the instant writ petition on 1‘7. 12.2004. 8. L‘earne‘d counsel appearing for the petitioner submits that although the benchmark of the petitioner was not found good in the year, 1999, the same was not communicated to the petitioner. Even otherwise, the meeting of the screening committee was held on 29.11.,1999 for considering the cases in respect of the vacancy/panel for the y’ear 1999—2000, wherein only the ACRs up to the year 1997—98 were to be f ‘i considered, not the ACR of the year 199899. To substantiate his submission, learned counsel invites our attention on the office ‘ memorandum No. 22011/9/98/Estt.(D) dated 16.6.2000 (Annexure P/ 2), issued by the G.I. Department of Personnel and Training, which providesfor “Relevant year up to which ACRs are to be considered”, which reads as under z “The undersigned is directed to invite reference to the 9‘ Department of Personnel and’Training Office Memorandum of even V ‘ l, number, dated September 8, 1998 prescribing a Model Calendar for DPCs in order to ensure that DPCs are convened in advance an‘d' approved select panels are prepared well before commencement of the relevant vacancy years. All Ministries/ Departments ........................ improvement measure 2. In regard to operation of the Model Calendar for DPCS, a doubt has been raised by certaln quarters as to the questlon of the relevant year up to whlch ACRs are requlred to be considered by the,DPCs. In this COnnection, itis once again. clarified that only rm“M . any“... such ACRs should be considere which become available during the year immediately preceding the vacancy/pane] years even if DPCs are held later than the schedule prescribed in the Model Calendar. In other words, for the vacancy/panel year 2000—2001, ACRs up to the year 1998-99 are required to be considered irrespective of the date of convening of DPC. 3‘ Ministries/Departments are requested to give wide circulation to these clarifications for general guidance in the matter and also to ensure strict adherence to the time—schedule prescribed as per the Model Calendar for DPCs.” Learned counsel appearing fo‘r the petitioner further submits that vide order dated 23.9.2002 (Annexure P/7) some of the juniors to the petitioner were promoted to officiate as Superintendent, Central ‘ Excise, Group ‘B’ but the petitioner has been left over, The representation dated 8.3.2004 (Annexure P/8}, filed by the petitioner has also not been considered by the concernedauthority. On perusal of the papers, we find substance in the argument advanced by learned counsel appearing for the petitioner. As per the office memorandum dated 8th September, 1998 it was prescribed that DPCS should convene in advance and prepare approve select panels well before commencement of the relevant vacancy years. By office memorandum dated 16.6.2000 (Annexure P/2) it Was clarified that only such ACRs should be considered which become available during the year immediately preceding the vacancy/panel years even if DPCs are held later than the schedule prescribed in the model calendar. For example, for the vacancy/panel year 2000—2001, ACRs up to the year ‘ 1998—99 were required to be considered, irrespective of the date of convening of DPC. In the instant case the screening committee held its meeting on 29.11.1999 and considered the cases for the vacancy/panel year / x 1 , \a,‘ / «ax d ‘ i titioner for 8 1999—2000. The committee considered the ACRs of the pe years i.e-. 1991—92, 92—93, 93—94, 94~95, 95—96, 96‘97, 97—98 and 98A 099. The ACRs for the year 1997—98 and 1998—99 were ‘just adequate’ which were found to be average, therefore, the petitioner was assigned the benchmark as “Average/ not yet fit”. In paragraph 5.4 of the reply filed by the respondent No.1/Union of k decided by the ‘ Departmental Screening Committee (DSC) has been mentioned, which reads as under : “As regards the benchmark, it was decided by the DSC that those who have obtained :— (1) 02 Just adequate or below just adequate in. their preceding last three years ACR; or 02 Just ‘ adequate and 1 ‘ below just adequate or India .the norms for benchmar (2) combination thereof in preceding O8 years or (3) 03 Just adequate in preceding 08 years. ' l3. V The grievance of the petitioner is that the only one year’s ACR i 13‘ Financial Are to be assigned benchmark as “Average/ not yet fit”. committee has considered l the ACR for the year 1998—1999 also, whereas, according to the norms, as mentioned above, the committee could have considered ‘ " ‘V , ohly the ACRs up to the year 1997—98. Therefore, the committee : exceeded its jurisdiction. In cas‘e the ACR for the year 1998—99 would not have been considered, in that situation there would have been n which remark ‘just adequate’ i.e.‘ average, and the petitioner could not have been considered as “Average/not yet fit” and could not have been denied the benefit of Upgradation. We also feel that when according to the office memorandum dated 16.6.2000 (Annexure P/2), issued in sequence of the office memorandum dated 8th September, 1998, in which the example was I ‘ ‘ also given to the committee, which held its meeting on 29.1 1.1999 fc‘n' Considering the promotion‘/lst financial upgradation, for the panel 9-2000, could not have considered the ACR of 1998—99 and only the ACRS up to the year‘ 1997—98 could havebeen considered. ‘ 1E5. In View of the facts situation, mentioned above, we are of the opinion that the consideration of the name of the petitioner for promotion/grant of lst' financial upgradation, for the vacancy/panel vear 1999 2000 requlres recons1deration Therefore, we quash the dec1s1on of the DPC/screenmg committee dated 29 11 1999 leading, to issue of the order dated 14.12.1999 (Annexure P/4), granting lst financial upgradation to the next higher grade to the Inspectors of the combined cadre of Central Excise Commissionerates. 16; ‘ Accordingly, we direct that the review DPC/screening committee shall, be constituted within a period of three months from the date of production of a copy of this order, which shall consider the promotion/ lst financial upgradation, of the petitionerfor the panel year 1999—2000, considering the instructions contained in. the office memorandum dated 8th September, 1998 and its clarification in the office memorandum dated 16m June, 2000 (Annexure P/2). V 17. ‘ln the result, the petition is allowed to the above extent. No order as /\\ k \ year 199 // to costs.W ‘ \k / Sdl- I / Sd/_ l.M.QudduSI N.K. Agrawal Judge Judge , ’I‘liakur W ’ v