IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 6324 of 2007(C) ------------------------- PETITIONER: ------------ N.UNNIKRISHNAN NAIR, JUNIR TELECOM OFFICER (CIVIL), PRESENTLY OFFICIATING AS SUB DIVISIONAL ENGINEER (P&D), O/O. THE EXECUTIVE ENGINEER, TELECOM CIVIL DIVISION NO.2, BSNL, TRIVANDRUM-4. BY ADV. SRI.G.D.PANICKER SMT.JEENA JOSEPH RESPONDENTS: ------------- 1. CHAIRMAN AND MANAGING DIRECTOR, BSNL, CORPORATE OFFICE, NEW DELHI. 2. THE DIRECTOR(HRD), BSNL, STATEMAN HOUSE - 148, BHARAKKABAR ROAD, NEW DELHI. 3. SR.DEPUTY DIRECTOR GENERAL (BW-1), BSNL, 10TH FLOOR, CHANDRA LOK BUILDING, 36 JANPATH NEW DELHI - 1. 4. CHIEF GENERAL MANAGER TELECOM, BSNL, TRIVANDRUM. BY ADV. SRI.P.M.M.NAJEEB KHAN, SC, BSNL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.6324/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER NO.3(4) 82/SEPT (B1)/2257 DATED 9/7/82. P2 : COPY OF ORDER NO.6-8/87-CSE DATED 9/5/91 FROM THE MINISTRY OF COMMUNICATION. P3 : COPY OF ORDER DATED 24/11/1999 ALONG WITH OM DATED 9/8/99 FROM THE DEPARTMENT OF PERSONNEL AND TRAINING. P4 : COPY OF EXTRACT OF ORDER DATED 03/05/2001. P5 : COPY OF REPRESENTATION DATED 05/03/2002. P6 : COPY OF ORDER DATED 09/12/2002 FROM R3. P7 : COPY OF REPRESENTATION DATED 27/02/2006. P8 : COPY OF JUDGMENT IN WPC NO.22214/2006 DATED 25/08/2006. P9 : COPY OF LAWYER'S NOTICE DATED 09/07/2007 SERVED ON R2. P10 : COPY OF REPRESENTATION DATED 20/12/2006. P11 : COPY OF ORDER DATED 05/02/2007 SIGNED BY JT.DDG (BW-1) P12 : COPY OF ORDER NO.8(6)/85/SEPT/TVM/4612 DATED 26/11/85. P13 : COPY OF RELEVANT PROVISION OF CLARIFICATION ISSUED BY THE COMPETENT AUTHORITY. RESPONDENT'S EXHIBITS R1 : COPY OF ENTRIES MADE IN THE SERVICE BOOK REGARDING FIXATION OF PAY IN RESPECT OF THE PETITION. R1(a) : COPY OF CIRCULAR NO.2-1/99-CSE DATED 28/11/2002 ISSUED BY R1. R1(b) : COPY OF OFFICE MEMORANDUM NO.400-61/2004-PERS.I DATED 18/01/07 ISSUED BY R1. R1(c) : COPY OF ORDER LETTER NO.400-61/2004-PERS.I/308 DATED 18/01/07 ISSUED BY BSNL HEAD QUARTERS, NEW DELHI. R1(d) : COPY OF ORDER LETTER NO.400-61/2004-PERS.I DATED 24/08/07 ISSUED BY BSNL HEAD QUARTERS, NEW DELHI. R1(e) : COPY OF ORDER NO.8(17)CE(C)/TVM/2007/1487 DATED 09/11/07 ISSUED BY THE RESPONDENT. //TRUE COPY// jg PA TO JUDGE. C.N.RAMACHANDRAN NAIR, J. ------------------------- W.P.(C) No. 6324 of 2007 --------------------------------- Dated, this the 13th day of June, 2008 J U D G M E N T Petitioner is challenging Ext.P11 order, which is issued pursuant to Ext.P8 judgment directing respondents to consider petitioner's claim for financial benefits under the ACP (Assured Career Progression) scheme. 2. I heard learned counsel appearing for petitioner and learned Standing Counsel appearing for BSNL. I have also gone through the impugned order and Ext.P13 clarification for implementation of the ACP scheme. Petitioner joined service as Draftsman Gr.III on 14/12/1978. However, the post of Draftsman Gr.III was abolished and consequently petitioner became Draftsman Gr.II on 19/03/1979 i.e. within three months from the date of joining service. Petitioner was promoted as Junior Engineer (Civil), which though a promotion post from Draftsman Gr.II, carries the same pay of Rs.425-700/- of the Draftsman Gr.II. In the course of time, petitioner got one grade promotion after completion of five years. Even though, petitioner applied for the benefit of ACP scheme, which was introduced in 1999, the same was not considered or granted. However, pursuant to the direction WP(C) No.6324/2007 -2- contained in Ext.P8 judgment, 3rd respondent passed Ext.P11 order declining the benefit to petitioner. The ground for declining promotion, according to Ext.P11 and according to the arguments of the learned counsel for BSNL, is that petitioner was given promotion at two levels i.e. from Draftsman Gr.III to Draftsman Gr.II and from there to Junior Engineer (Civil) and therefore petitioner is not entitle to the benefit of ACP scheme. Consequently, promotion under the pre-existing orders, which was superseded by the ACP Scheme, was also denied to the petitioner because withdrawal of such benefits is the necessary pre-condition for considering grant of ACP benefits, according to Ext.P11. 3. Learned counsel for petitioner has relied on Ext.P13 clarification issued on the implementation of ACP scheme. It is seen from the clarification so issued that promotion to a higher grade post will not disentitle from the benefit of ACP scheme, when the scale of pay in the lower grade and the promoted post remain the same. The clarification, therefore, entitles petitioner the benefit of upgradation under the ACP scheme. Admittedly, petitioner's juniors, i.e., those who joined the service after the petitioner, are drawing higher pay on account of denial of ACP benefit to petitioner. WP(C) No.6324/2007 -3- However, it is sought to be justified in Ext.P11 order by referring to the two promotions the petitioner has got. Petitioner's appointment in the cadre of Draftsman Gr.II is on account of abolition of Draftsman Gr.III and therefore, no promotion is involved in this post. So far as the promotion from Draftsman Gr.II to Junior Engineer (Civil) is concerned, the same does not bar petitioner from getting the benefit of ACP scheme as the pay scale of Draftsman Gr.II and Junior Engineer (Civil) is admittedly one and the same. Going by Ext.P13 clarification, I am of the view that petitioner is entitled to the benefit of ACP scheme. Moreover, I find, no justification in 3rd respondent denying the benefit that already accrued to petitioner, without granting the benefit under ACP scheme. In the circumstances, I allow the writ petition directing respondents to grant financial benefit to petitioner under the ACP scheme on completion of 12 years and 24 years of service without any delay. However, the direction to grant the benefit under ACP scheme will not stand in the way of BSNL to implement their policy for promotion and pay scales subsequently introduced in supersession of ACP scheme, and to implement its own service Rules and terms of promotion, if ACP scheme is no longer in force. WP(C) No.6324/2007 -4- However, ACP scheme should be granted to petitioner, as far as possible, consistent with the promotion Rules of BSNL. (C.N.RAMACHANDRAN NAIR, JUDGE) jg