IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 WP(C).No. 35307 of 2004(S) -------------------------------------- PETITIONER: ------------------- 1. P.P. VARGHESE, AGED 55 YEARS, S/O. PHILIP SIMON, SUB DIVISIONAL ENGINEER EXTERNAL, GANDHI NAGAR, RESIDING AT PULIYANKEEZHE HOUSE, MANJANAM P.O, KOTTAYAM-18. 2. T.A. GPINATHA RAO, AGED 53 YEARS, S/O. T.K. ANANTHA NAIK, SUB DIVISIONAL ENGINEER, OCB, KOTTAYAM, RESIDING AT 'TRICOVIL', MANNANAM P.O., KOTTAYAM. BY ADV. SRI.P.V.MOHANAN RESPONDENTS: ----------------------- 1. THE UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, (DEPARTMENT OF PERSONNEL AND TRAINING) NORTH BLCOK, NEW DELHI. 2. THE CHAIRMAN, BHARAT SANCHAR NIGAM LIMITED, DIRECTORATE, 20, ASOKHA ROAD, SANCHAR BHAVAN, NEW DELHI. 3. A.R. KRISHNA KURUP, AGED 55 YEARS, S/O. C.N. RAGHAVAN PILLAI, SUB DIVISIONAL ENGINEER PHONES, EARATTUPETTAH, RESIDING AT `ARACKAL', POONJAR P.O. BY ADV. SRI.S.K.BALACHANDRAN, SC, BSNL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON 31/01/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.35307/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE MEMO NO.ES-174/20 DT. 9.8.90. EXT.P2:- COPY OF THE OFFICE MEMORANDUM NO.35034/1/97-ESTT (D) DT. 9.8.99. EXT.P3:- COPY OF THE ACP SCHEME DT. 24.11.99. EXT.P4:- COPY OF THE REPRESENTATION DT. 4.8.2000. EXT.P5:- COPY OF THE ORDER NO.Q-4083/47 DT. 5.9.2000. EXT.P6:- COPY OF THE OA. NO.766/01 DT. 14.8.01. EXT.P7:- COPY OF THE REPLY STATEMENT DT. 31.1.02. EXT.P8:- COPY OF THE PROCEEDINGS DT. 12.11.2001. EXT.P9:- COPY OF THE ORDER IN OA. NO.766/2001 DT. 3.3.04. EXT.P10:- COPY OF THE M.A. NO.1002/2003 DT. 3.12.03 FILED BY THE PETITIONERS BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P11:- COPY OF THE PROCEEDINGS NO.31-26/83-PE.1 DT. 17.12.83. EXT.P12:- COPY OF THE PROCEEDINGS NO.ET/23-1/83/R1GS DT. 30.10.91 ALONG WITH LETTER NO.22-1/89-PE I DT. 11.10.91. /TRUE COPY/ P.S. TO JUDGE tss C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.35307 of 2004-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2008. JUDGMENT T.R. Ramachandran Nair, J. The writ petition is filed challenging the order passed by the Central Administrative Tribunal in O.A. No.766/2001, in which the petitioners herein were the applicants. Having failed to get a favourable order from the Tribunal, the petitioners have come up in this writ petition. 2. The matter in issue relates to the denial of the benefit of Assured Career Progression Scheme (ACP Scheme) framed by the Government of India which is produced as Ext.P2. Under clause 4 of Ext.P2, 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. In fact, the Scheme was implemented by the second respondent as per Ext.P3 proceedings. The petitioners are working in the cadre of Junior Telecom Officer/Sub Divisional Engineer. In Ext.P3, the said cadre has been excluded from the Scheme and the challenge in the O.A. was made against such exclusion clause in Ext.P3. 3. The respondents supported the action stating that they had decided WPC 35307/2004 -2- to implement the ACP Scheme in respect of those Group 'C' and 'D' cadres/posts which are not covered by one Time Bound Promotion (OTBP) Scheme which was already in force and the said benefit was being enjoyed by the officers in the cadre of JTO/SDE. Thus, it was submitted that there is no discrimination as far as the petitioners are concerned. As per the impugned order, Ext.P9, the Tribunal was of the view that the ACP Scheme gave the right of choice between the Schemes to the Department and not to the employees. The Department had already implemented the Time Bound Promotion Scheme for JTO/SDE. Hence, the ACP Scheme was implemented in respect of officers who are not beneficiaries of the Time Bound Promotion Scheme. 4. Learned counsel for the petitioners submitted that the approach made by the Tribunal is not correct, in that Ext.P2 is binding on the respondents and the petitioners are really affected by the non granting of the benefit. We have examined Ext.P2 Scheme. Clause 13 of the Scheme provides that “existing time-bound promotion scheme, including in-situ promotion scheme, in various Ministries/Departments may, as per choice, continue to be operational for the concerned categories of employees. However, this scheme 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 scheme, i.e. WPC 35307/2004 -3- existing time bound promotion scheme or the ACP scheme, for various categories of employees.” In the light of the relevant clause in Ext.P2, it is clear that it is not the option of the employees, but it is the option of the department, to choose between the two schemes, viz. time bound promotion scheme or the ACP Scheme. Therefore, the petitioners who are beneficiaries of the time bound promotion scheme and are covered by it, cannot have the option to switch over to the ACP scheme. There is no such right conferred by Ext.P2 and definitely, therefore, nothing flows out of Ext.P2 in favour of the petitioners. Admittedly, Ext.P3 has been implemented in respect of persons who are not covered by the time bound promotion scheme, and the respondents being empowered to do so, cannot be said to be in error in choosing so. There is no discrimination as far as the petitioners are concerned. Therefore, the view taken by the Tribunal is not perverse, warranting any interference under Article 227 of the Constitution of India and hence the writ petition is dismissed. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) WPC 35307/2004 -4- kav/ C.N. Ramachandran Nair & & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - . No. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT WPC 35307/2004 -5- 10th January, 2008.