IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 05.02.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice T. RAJA W.P. No.24887 of 2009 S.T. Mani ... Petitioner ..Vs.. 1. The Director of Apprenticeship and Training, Directorate General of Employment and Training, Shram Shakthi Bhavan, Ministry of Labour and Employment, New Delhi – 110 001. 2. The Principal, Central Training Institute for Instructors, Guindy, Chennai – 600 032. 3. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, seeking to issue a writ of certiorarified mandamus, to call for the records pertaining to the impugned order in O.A. No.20/2007 dated 19.11.2007 passed by the Central Administrative Tribunal, Madras Bench and quash the same as null and void, illegal and invalid and consequently, hold that the pay fixed at Rs.10,750/- with effect from 9.8.1999 in Office Order No.CTI/MS/A-19020/29/2003/Estt/219 dated 15.4.2004 consequent on the grant of financial up-gradation under ACP has been done correctly and further direct the respondents to pay all the consequential benefits arising thereto like arrears of pay, pension and other retirement benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. S. Retnaswamy For Respondent : Mr. N. Mariappan, C.G.C. O R D E R (Order of the Court was made by M. CHOCKALINGAM, J.) This writ petition challenges the order of the Central Administrative Tribunal passed in O.A. No.20 of 2007, whereby the request of the petitioner that the recovery of the pay benefits drawn by him upto 9.8.1999 should not be made was denied. 2. The Court heard the learned counsel appearing for the petitioner and the respondents. 3. The writ petition is arisen under the following circumstances:- (i) The petitioner, who was working as a Training Officer in the Central Training Institute for Instructors under the Directorate General of Employment and Training, was given upgradation under the ACP scheme introduced in the year 1999. The same was given by an order dated 15.4.2004 and his pay was fixed at Rs.10,750 with effect from 9.8.1999 in the pay scale of Rs.8000-275-13500. The pay fixation was subsequently revised to Rs.9,650/- as on 9.8.1999, which was sought to be quashed by him before the Administrative Tribunal. (ii) The Tribunal, after giving opportunity to the respondents herein, took the view that it was not a fit case where the relief could be granted. Under such circumstances, this writ petition is arisen before this Court. 4. Admittedly, the petitioner was appointed as Junior Grade Instructor on 13.7.1973 and the same was redesignated as Vocational Instructor in the pay scale of Rs.440-750. Thereafter, on 6.10.1980, the petitioner was awarded selection grade in the post of Vocational Instructor and the pay so fixed was revised to Rs.740-35-880. Thereafter, the petitioner was promoted as Surveyor and was given the benefit available thereto under F.R. 22-C. Following the reversion as Vocation Instructor, he was promoted as Group Instructor on 16.10.1992 in the scale of pay of Rs.2,000-60-2,300-EB-75- 3200. 5. It is an admitted position that ACP was introduced since there was a stagnant in promotion. In the case of the petitioner also, it was adopted. According to the petitioner, he was given second promotion pursuant to the operation of ACP with effect from 1999 and it was fixed at Rs.10,750/-, but the same was subsequently revised on 18.12.2006 as Rs.9650-.. 6. According to the petitioner, he got two promotions one is a regular and time bound and second one is by the operation of ACP scheme. The https://hcservices.ecourts.gov.in/hcservices/ selection grade and ACP were not running concurrently. Under circumstances, he was entitled for pay fixation @ Rs.10,750/- from the year 1999 onwards and the withdrawal now ordered as if there was excess pay should not have been ordered. 7. On the contrary, two contentions were raised by the department before the Tribunal. Firstly, the selection grade and ACP were running concurrently. Secondly, insofar as ACP was concerned, he was not entitled for promotion under that scheme since he got first promotion in the year 1992 as Group Instructor and thereafter, in 1998, he got another promotion as Training Officer, which was a promotional post and he was getting the pay scale of Rs.6500-10500 with effect from 1.1.1996 and thus, he has got two promotions even before the ACP scheme came into operation and hence, what was given now is the second promotion on ACP scheme with effect from 9.8.1999 was not correct. It was a mistake committed by the department. On coming to know about the same, an order of withdrawal of excess payment was ordered. 8. After going through the available materials, the Court is of the considered opinion that the writ petition has got to be ordered, setting aside the order of the Tribunal. It is not in controversy that ACP scheme was introduced in order to give promotion to the employees, who have been stagnating without promotion. It is an admitted position that the petitioner had his promotion as Group Instructor in the year 1992. 9. Insofar as second promotion was concerned, according to the petitioner, he had only under the ACP scheme and the pay fixation from the year 1999 was correct. On the contrary, it is contended by the department that in the year 1998 itself, he had the second promotion from the Group Instructor to the Training Officer, which was the promotional post. When the G.O. regarding this was noted, it would clearly indicate that the Group Instructor was actually re-designated as Training Officer, which would make it clear that it was not a promotional post. 10. Apart from that, another contention put forth by the Department was that both the selection grade and the ACP scheme should run concurrently cannot also be accepted. From the perusal of the ACP scheme, paragraph 13 reads as follows:- " Existing time-bound promotion schemes, including in situ promotion scheme, in various Ministries/Departments may, as per choice, continue to be operational for the concerned categories of employees. However, these schemes, shall not run concurrently with the ACP scheme. The Administrative Ministry/Department – not the employees – shall have the option in the matter to choose between the two schemes i.e., existing time-bound promotion scheme or the ACP Scheme, for various categories of employees. However, in case of switch- over from the existing time-bound promotion scheme to https://hcservices.ecourts.gov.in/hcservices/ the ACP Scheme, all stipulations (viz., for promotion, redistribution of posts, upgradation involving higher functional duties, etc.) made under the former (existing) scheme would cease to be operative. The ACP Scheme shall have to be adopted in its totality." 11. From the very reading, it would be quite clear that both the scheme shall not run concurrently. Under such circumstances, the contention put forth by the department cannot be countenanced. Thus, it is quite clear that the petitioner has got one promotion in the year 1992 and the second promotion in the ACP scheme, which was fixed in his favour from the year 1999, was perfectly correct and the Department was not justified in making withdrawal from the said pay scale as if it was a mistake committed or excess payment. Under such circumstances, the writ petition stands allowed, setting aside the order passed by the Administrative Tribunal. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ssa. To 1. The Director of Apprenticeship and Training, Directorate General of Employment and Training, Shram Shakthi Bhavan, Ministry of Labour and Employment, New Delhi – 110 001. 2. The Principal, Central Training Institute for Instructors, Guindy, Chennai – 600 032. 3. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. + 1 C.C. To Mr. S. Retnaswamy, Advocate SR.NO.7514 + 1 C.C. To Mr. N. Marippan Advocate SR.NO.7618 W.P. No.24887 of 2009 RR[CO] KS 19/02/2010 https://hcservices.ecourts.gov.in/hcservices/