IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 22938 of 2006(E) -------------------------------------- PETITIONER: ------------------- JOHN WICKLIF.V., NO.901407045, CISF UNIT, VSSC, THUMBA, THIRUVANANTHAPURAM, PIN-695 022. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL, ADV. SRI.S.VISHNU. RESPONDENTS: ----------------------- 1. THE COMMANDANT, CISF UNIT, VSSC, THUMBA, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL, CISF HEAD QUARTERS, BLOCK NO.13, CGO COMPLEX, LODHI ROAD, NEW DELHI-3. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. BY SRI.P.PARAMESWARAN NAIR, ASST. S.G ADV. SMT. SOUMINI JAMES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22938/2006-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO.E-24018/CISF/VSSC/DOC 2006/4498 DTD. 07/07/2006 OF THE R.1. EXT.P.2: COPY OF THE JUDGMENT DTD. 18/03/2005 IN W.P.(C). NO. 36168/2004 OF THIS HONOURABLE COURT. EXT.P.3: COPY OF THE O.M. NO.E-42099/30/ADM/MISC/2005/2894 DTD. 25/04/2005 OF THE R.1. EXT.P.4: COPY OF THE LETTER NO. E-38014/CISF/VSSC/PCC/RPP-RFF/05 DTD. 25/12/2005 OF THE R.1. EXT.P.5: COPY OF THE UNWILLINGNESS CERTIFICATE DTD. 02/01/2006 TO THE R.1. EXT.P.6: COPY OF THE EXPLANATION DTD. 03/02/2006 TO THE R.1. EXT.P.7: COPY OF THE CERTIFICATE ISSUED BY THE CHIEF MEDICAL OFFICER, VSSC. EXT.P.8: COPY OF THE MOVEMENT ORDER NO. E-37033/CISF/VSSC/ADM.I/2006/3566 DTD. 02/06/2006 ISSUED BY THE R.1. EXT.P.9: COPY OF THE LETTER DTD. 19/07/2006 OF THE ASSISTANT COMMANDANT OF RTC, ARAKKONAM CONTAINING THE NAMES OF THE PERSONNEL WHO HAD UNDERGONE THE PCC COURSE (RELEVANT PORTION). RESPONDENTS' EXHIBITS: EXT.R1: COPY OF THE O.M. DTD. 09/08/1999 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R2: COPY OF THE LETTER DTD. 07/11/2003 ISSUED BY THE CISF HEAD QUARTERS. //TRUE COPY// prv. P.N.RAVINDRAN, J. ====================================== W.P.(C)No.22938 of 2006 ====================================== Dated this the 23rd day of July 2008 The petitioner, a constable in the Central Industrial Security Force, has filed this writ petition challenging Ext.P1 order dated 7.7.2006, whereby the financial upgradation granted to him under the Assured Career Progression Scheme (hereinafter referred to as the 'ACP Scheme' for short) was cancelled and the benefits given thereunder were directed to be recovered. The brief facts of the case are as follows: 2. The petitioner joined the Central Industrial Security Force as Constable in the year 1990. The ACP Scheme was introduced with effect from 8.9.1999 in the light of the recommendations of the fifth central pay commission with a view to ameliorate the problem of stagnation and resultant hardship faced by central government employees due to lack of adequate avenues WP(C)22938/2006 2 for promotion. Ext.R1 is a true copy of the ACP Scheme. It envisages placement in the higher scale of pay through financial upgradation. The ACP Scheme does not contemplate functional/regular promotion and does not result in the creation of new posts. Under the ACP Scheme the first financial upgradation is granted 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 the prescribed conditions. Paragraph-6 of the ACP Scheme stipulates that fulfillment of the norms for promotion like the passing of departmental examinations and other bench marks is essential for grant of benefits under the ACP Scheme. 3. The petitioner completed 12 years of service in the year 2002 and became eligible to be considered for grant of benefits under the ACP Scheme. For the purpose of placement in the ACP Scheme, the petitioner was subjected to a medical examination and he was placed in SHAPE-I category. However, he was not immediately detailed for the Promotion Cadre Course (hereinafter WP(C)22938/2006 3 referred to as the “PCC” for short), a pass in which is essential for promotion to higher posts as per the Central Industrial Security Force (Subordinate) Service Recruitment Rules, 1999 which came into force with effect from 4.2.2000. Though the petitioner was not detailed for the PCC, he was given the benefit of placement in the ACP Scheme. As per the norms then in force, all central government employees including the employees of the Central Industrial Security Force were entitled to three chances to pass the PCC. The petitioner was first detailed for PCC on 21.3.2005. At that point of time, he could not avail the said opportunity for the reason that on 19.10.2004 he was invalidated out of service on medical grounds. The petitioner challenged the invalidation out of service in W.P.(C)No.36168 of 2004. By Ext.P2 judgment delivered on 18.3.2005, a learned single judge of this Court disposed of the said writ petition with the direction that the petitioner's case shall be examined by a Review Medical Board. As directed in Ext.P2 judgment, a Review Medical Board was constituted and after the review, the WP(C)22938/2006 4 petitioner was reinstated in service on 22.4.2005. Three days thereafter he was detailed for the PCC (second chance) by Ext.P3 memorandum dated 25.4.2005. Since the petitioner had re-joined service only three days earlier, he expressed his unwillingness to be detailed for the PCC. Thereafter the petitioner was again deputed for the PCC by Ext.P4 letter dated 25.12.2005. The petitioner did not avail the said opportunity as well. In the meanwhile the Director General of the Central Industrial Security Force issued a circular dated 19.10.2005 which reads as follows: "It has been experienced in the recent past that the personnel, irrespective of any rank as and when detailed for PCC, submit their unwillingness to attend the same on one pretext or the other. 2. Qualifying Promotion Cadre Course and promotion are two distinct issues and cannot be clubbed together, though both are inter related as mandated in the respective Recruitment Rules. While PCC is intended to improve professional knowledge and skills of an individual thereby ensuring growth and development of the organization, promotion is to ensure selection of suitable personnel to hold higher responsibilities and to provide avenues in career progression. Skill upgradation of the personnel depending on the felt need of the organization is an WP(C)22938/2006 5 organizational requirement and therefore not falling in the realm of individual's discretion. Therefore, undergoing PCC is a duty imposed on the personnel. 3. A person will be given three chances to attend the PCC. Non-attendance of PCC on the basis of unwillingness will amount to loss of a chance. For example, if he submits Unwillingness to attend PCC for the first time, he would lose one of the three chances of attending PCC. Thereafter, he will be able to avail only two chances of attending PCC. Unwillingness, if tendered, should be unconditional which shall be examined on case to case basis and would be approved or rejected on merit by the concerned DIG. Exemption from PCC will be granted by the DIG concerned on the ground which are beyond the control of the personnel concerned e.g. deputation to outside India, administrative reasons, etc. 4. In case exemption as envisaged at para (3) above is granted, the personnel will not lose his chance out of the above three chances. 5. Refusal to undergo PCC will entail disciplinary action and also the individual will lose one chance of undergoing PCC. 6. All details regarding detailment on PCC and submission of unwillingness and exemption granted on the aforesaid grounds, if any, will be recorded in the service book of the individual concerned every time. This will keep an account of the number of chances an individual has availed. 07. Those personnel who have already availed three chances and could not qualify PCC as on date WP(C)22938/2006 6 should be given the opportunity of availing fourth chance (in case any one is willing) as provided in CISF Circular No.39/1993 dated 23/26.11.1993, as an exceptional case. After giving this last and fourth chance as per Circular No.39/1993 dated 23/26.11.1993 there will be no further fourth chance for anybody in future and the Circular No.39/1993 will cease to exist. 08. These instructions will come into force with immediate effect." (Emphasis supplied) 4. In terms of the said circular, the petitioner was again detailed for the PCC (fourth and last chance) as per Ext.P8 movement order dated 2.6.2006. The PCC was from 5.6.2006 to 22.7.2006. It is not in dispute that the petitioner was detailed for and attended the PCC held from 5.6.2006 to 22.7.2006. While the petitioner was undergoing the PCC, Ext.P1 order was issued on 7.7.2006 cancelling the upgradation granted to him under ACP scheme and directing recovery of the payments made to him thereunder. It was at that stage that this writ petition was filed challenging Ext.P1 and seeking consequential benefits. WP(C)22938/2006 7 5. I have heard Sri.Vishnu Chempazhanthiyil, the learned counsel appearing for the petitioner and Sri.P.Parameswaran Nair, the learned counsel appearing for the respondents. The learned counsel for the petitioner contended that by virtue of the circular dated 19.10.2005, he was rightly deputed for the PCC (fourth and last chance) and he underwent the course and therefore the first respondent was not justified in issuing Ext.P1. The learned counsel also contended that though no reasons have been stated in Ext.P1 for cancelling the financial upgradation granted under the ACP scheme, it is stated in the counter affidavit filed on behalf of the respondents that it was issued for the reason that the petitioner did not undergo the PCC. The relevant averments in paragraph-5 of the counter affidavit are as follows: “The petitioner was detailed to undergo promotion cadre course form the rank of Constable to the rank of Head Constable held at RTC-1 Deoli (Rajasthan) w.e.f.9.1.2006 to 25.2.2006 vide Ext.P4. However he had again submitted his unwillingness to undergo the promotion cadre course vide Ext.P5 dated 2.1.2006. Hence the financial benefits granted to the petitioner as per the ACP Scheme had been withdrawn with effect from the date of grant of the same since the WP(C)22938/2006 8 petitioner had expressed his unwillingness to go for the Promotion Cadre Course and on account of the said fact he is ineligible to be granted with the said benefits as per Ext.R1 scheme. Therefore the action taken by the respondents in cancelling the ACP benefits extended to the petitioner and the recovery consequent to the same is perfectly in order, valid and sustainable in the eye of law. 6. The counter affidavit further proceeds to state that as per the provisions in the recruitment rules, a person should be in SHAPE-I medical category and should have successfully completed the PCC before being declared fit for placement in the ACP scheme. In the counter affidavit it is further averred as follows: Therefore in the context since the petitioner had submitted his unwillingness to undergo the Cadre course on his own volition on medical grounds he is not entitled to get financial up-gradation as per ACP scheme. 7. In the counter affidavit in paragraph-6, it is further stated as follows: “It is true that the petitioner was again detailed for Promotion Cadre Course and he had undergone the same as per Ext.P9. It is respectfully submitted that if the petitioner passes the Promotion Cadre Course and is found fit in medical category SHAPE-I the benefits of the ACP scheme will again be granted to the petitioner as per existing norms. It is reiterated that if a person fails to or that he submits his unwillingness to undergo Promotion Cadre Course he WP(C)22938/2006 9 is not eligible to get financial up-gradation as per the ACP Scheme. Further to the same only 3 chances are granted to a member of the Force to qualify the Promotion Cadre Course as per the existing rules on the subject. There is no provision as per the rules for waiting for the results of the PCC for the 4th time. The petitioner was found to be disqualified for 3 consecutive times and cancellation of the benefits as per the scheme was issued. It is respectfully submitted that the said order in terminating the benefits are issued legally and expressly in order. Accordingly the recovery steps now initiated against the petitioner is as per the Scheme and not as alleged by the petitioner”. 8. It is evident from the averments in the counter affidavit that the only ground on which Ext.P1 was issued is that the petitioner did not undergo the PCC within three chances. A Division Bench of this Court, to which I was a party has in Writ Appeal Nos.2633 of 2008 and connected cases, considered the effect of the circular dated 19.10.2005 extracted above and held that the circular contemplates the grant of a fourth chance to those personnel of the CISF who did not qualify in the PCC within three chances. It is not in dispute that the petitioner was detailed for the PCC by Exts.P8 and P9. It is also not in dispute that he has successfully completed the PCC. The WP(C)22938/2006 10 learned counsel for the petitioner also made available to me a copy of the communication dated 22.8.2006 issued by the first respondent to that effect. In view of the fact that the petitioner was entitled to a fourth chance to undergo the PCC and also taking note of the fact that he was in fact given a fourth chance to qualify in the PCC and has successfully completed the PCC, I find merit in the contention of the learned counsel for the petitioner that Ext.P1 is liable to be set aside. 9. The learned counsel for the respondents however contended that since the petitioner is not in SHAPE-I medical category, he is not entitled to the benefit of the ACP scheme. The contention of the learned counsel appearing for the respondents is that besides passing the PCC, the petitioner must also satisfy other bench marks, like being in SHAPE-I medical category. As noticed earlier, the petitioner was initially placed in SHAPE-I medical category and he was granted the benefits under the ACP scheme. Though on medical grounds he was later invalidated out of service, that was set aside by this Court WP(C)22938/2006 11 and a Review Medical Board was directed to be reconstituted. The Review Medical Board examined the petitioner, found him fit and he was reinstated in service on 22.4.2005. The petitioner has not since been invalidated out of service on medical grounds. No cogent material has been placed before me to demonstrate that the petitioner was placed in a different medical category thereafter. Therefore, I am not persuaded to agree with the submission made at the bar by the learned counsel appearing for the respondents that the petitioner is not in SHAPE-I medical category and therefore Ext.P1 is justified. 10. As noticed earlier, the only ground on which Ext.P1 was issued is that the petitioner did not pass the PCC within the available three chances. In the light of the decision of this Court in W.A.Nos.2633 of 2008 and connected cases, the petitioner is entitled to a fourth chance. As a matter of fact he has passed the PCC in the fourth chance. Therefore, the only ground on which Ext.P1 order issued is not sustainable. I therefore quash Ext.P1. The writ petition is accordingly allowed. Ext.P1 is WP(C)22938/2006 12 quashed and the respondents are directed to restore the benefits granted to the petitioner under the ACP scheme. The amounts, if any recovered from the petitioner shall be refunded to him. I make it clear that this judgment will not stand in the way of the respondents from evaluating the medical condition of the petitioner and his right to continue to enjoy the benefits granted under the ACP scheme. P.N.RAVINDRAN, JUDGE css/