IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13..7..2009 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM Writ Petition No. 5243 of 2009 K. Sreeramulu ... Petitioner vs. 1. The Union of India Rep. by the Secretary Ministry of Home Affairs New Delhi 2. The Director General Central Industrial Security Force CISF Headquarters Block No. 13, CGO Complex Lodhi Road, New Delhi 3. The Deputy Inspector General C.I.S.F. Southern Zone D-Block, Rajaji Bhavan Besant Nagar, Chennai 4. The Deputy Commandant C.I.S.F. Unit Chennai Port Trust Chennai ... Respondents. Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorarified Mandamus calling for the records relating to the order of the fourth respondent in No. E-31014/CISC/CHPT/Adm-I/ACPS/2008-6512 dated 18.11.2008 and quash the same and direct the respondents to grant the petitioner the first financial upgradation with effect from 11.10.2008 and grant all attendant benefits including arrears of pay. For Petitioner : Mr. T.N. Sugesh For Respondents : Mr. E.R.K. Moorthy, SCGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R (made by ELIPE DHARMA RAO, J.) The petitioner, who was initially appointed as Constable on 11.10.1984 and who, on promotion, is now working as Head Constable (General Duty) in the Central Industrial Security Force Unit [for short, 'CISF Unit'], Chennai Port Trust, Chennai, had qualified himself in the Promotion Cadre Course [for short, 'PCC'] to the next higher post of Assistant Sub-Inspector / Executive. The grievance of the petitioner is that without any promotional opportunities from the date of his initial appointment on 11.10.1984 till 2005, he was promoted to the post of Head Constable only on 19.9.2005 and, therefore, he ought to have been granted financial upgradation under the Assured Career Progression (ACP) Scheme with effect from the date of the Scheme, viz., 09.8.1999. It is stated that though he was not able to avail the first opportunity of PCC for Constables to the next promotional post of Head Constable on account of medical grounds, he qualified himself for the grant of financial upgradation by coming out successful in the PCC held during 2001 for which results were declared on 15.01.2002 and the first financial upgradation under the ACP Scheme was granted only with effect from 30.01.2002 and not from 09.8.1999, the date of implementation of the scheme. Since the representation filed by him seeking for grant of financial upgradation under the ACP scheme was rejected by the fourth respondent Deputy Commandant, CISF Unit, Chennai Port Trust, he has filed the present writ petition. 2. Heard the learned counsel appearing for the parties and perused the records and also the ACP Scheme and the Rules. 3. Learned counsel appearing for the petitioner contended that as per the ACP Scheme, financial upgradation will be available in case of person to whom there was no regular promotion during the 12 years or if only one regular promotion has been granted during the 24 years period and since the petitioner was working without any promotional opportunities from the date of his initial appointment, ie., 11.10.1984, till 2005 when he was promoted to the post of Head Constable, he is entitled for the benefit of first financial upgradation with effect from the date of the Scheme, viz., 09.8.1999. He further submitted that since he had only one promotion during his entire tenure of 24 years, he ought to have been granted the second financial upgradation with effect from 11.10.2008, that is the date of completion of 24 years with just one promotion. He further contended that though the petitioner had not qualified himself by appearing in the PCC, even as per Rules, he is eligible for promotion to the post of Head Constable after completion of 10 years of service. Therefore, according to him, denying the first ACP on the ground that he has not completed the PCC, is contrary to law since he had become eligible subsequently by successfully completing the PCC and the respondents should not have rejected his case. https://hcservices.ecourts.gov.in/hcservices/ 4. Learned counsel for the petitioner, in support of his contention, relied on a Division Bench judgment of this Court in W.P. Nos. 22111 of 2004, etc. batch, disposed on 04.12.2006, and submitted that the respondents should not have denied the grant of second ACP on the ground that he is not eligible for promotion as he expressed his unwillingness to appear for the PCC first time on medical grounds. 5. Learned Senior Central Government Standing Counsel representing the respondents submitted that since the petitioner, on his volition, submitted his unwillingness to appear for PCC for the first time, his case was not considered and subsequently, when he appeared for PCC during 24.8.2001 and 09.11.2001 and passed the same on 15.01.2002, he was granted the benefit of first ACP on 30.01.2002. 6. Before going into the factual aspects of the case, it is necessary to deal with the Rules and the conditions prescribed under the ACP Scheme. 7. The ACP Scheme, which was formulated by the Government of India on 09.8.1999, provides that the same shall become operational from the date of issue of the said order and that the financial upgradation was to be granted from the date of completion of the eligibility period prescribed under the Scheme or from the date of issue of the said instructions whichever is later. 8. The preamble portion of the Scheme contemplates that the Fifth Central Pay Commission in its report has made certain recommendations relating to the Assured Career Progression Scheme for the Central Government civilian employees in all Ministries / Departments and the ACP Scheme needs to be viewed as a "Safety Net" to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. The Scheme was extended to Groups 'A', 'B', 'C' and 'D' categories. 9. Clause 3 of the ACP Scheme deals with Groups 'B', 'C', and 'D' services / posts and isolated posts in Groups 'A', 'B', 'C' and 'D' categories and Clause 3.1 reads as follows:- "While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has therefore, been decided to grant two financial upgradations (as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement, dated September 11, 1997 (in relation to Groups 'C' and 'D' employees) entered into with the Staff Side of the National Council (JCM) under the ACP Scheme to Groups 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition No. 4 in Annexure – I) of regular service respectively...." https://hcservices.ecourts.gov.in/hcservices/ 10. Further, Clause 4 of the ACP Scheme reads as follows: "Introduction of the ACP Scheme should, however, in no case affect the normal (regular) promotional avenues available on the basis of vacancies. Attempts needed to improve promotion prospects in organizations / cadres on functional grounds by way of organizational study, cadre reviews etc. as per prescribed norms should not be given up on the ground that the ACP Scheme has been introduced." 11. Though the learned counsel appearing for the petitioner relied on the above said point, we are not concerned with the isolated posts. Clause 4 of the Annexure – I to the ACP Scheme, which deals with conditions for grant of benefits under the Scheme, reads as follows:- "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 fulfilment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc, this would have consequential effect on the second upgradation which would also get deferred accordingly." 12. Applying the above said condition to the facts and circumstance of the case of the petitioner, it would not be applicable in the case where the employee has become unqualified or unwilling to get the eligibility for promotion and further, if, for any reason, the first upgradation is delayed, consequently, the second financial upgradation will have its postponement on account of employee not found fit for departmental proceedings. In the present case, since the petitioner has not passed the PCC within 12 years, the first financial upgradation was delayed. 13. Moreover, one interesting factor to be noted here is that though the petitioner was appointed on 11.10.1984, he was not promoted immediately after completion of ten years of service even though the Rules prescribe for the same. But he has not moved his finger against the same and it is only subsequently when he was promoted on 19.9.2005, ie., after passing the PCC on 15.01.2002, he has submitted his representation. Therefore, the Rule is applicable for normal promotion whereas the Scheme is self- explanatory having its own terms and conditions with regard to its applicability. 14. The fact remains that the petitioner was appointed on 11.10.1984 and though as per Rules, he was entitled for promotion in 1994, ie., after completion of ten years, he was promoted as Head Constable only on 19.9.2005, ie., after he came out successful in https://hcservices.ecourts.gov.in/hcservices/ PCC. It is also not disputed that he expressed his unwillingness to appear for the PCC on 10.7.2001 on medical grounds and within one month, during August to November 2001, he appeared for PCC for which results were declared on 15.01.2002 and came out successful. As per condition 3 of Annexure I to the ACP Scheme, the financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of the instructions, whichever is later. Therefore, though the Scheme was implemented with effect from 09.8.1999, since the petitioner completed his PCC only on 15.01.2002, the first financial upgradation was extended to him on 30.01.2002 and as such, we do not find anything wrong in grant of first financial upgradation on 30.01.2002. 15. Secondly, the Division Bench judgment referred to by the learned counsel for the petitioner is with regard to the recovery proceedings and, therefore, the same is not helpful to the case of the petitioner. 16. As regards the second upgradation, it is clear from a perusal of condition No. 4 of the Annexure I to ACP Scheme that the second upgradation shall be allowed after 12 years of regular service from the date of the first financial upgradation subject to fulfilment of prescribed conditions. Further, it is also made clear that if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings etc., it would have consequential effect on the second upgradation which would also get deferred accordingly. As far as the case of the petitioner is concerned, since his first upgradation got postponed due to his unwillingness to appear for PCC, he is not entitled for second upgradation as claimed by him and he is eligible for upgradation only after completion of 12 years from the date of grant of first upgradation. 17. In view of the above discussion, considering the terms and conditions for application of financial upgradation as per the ACP Scheme and also the Services Rules governing the promotion, the petitioner is not eligible for first financial upgradation with effect from 09.8.1999 and also the second financial upgradation with effect from 11.10.2008. This petition is devoid of merits and the same stands dismissed accordingly. gri Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Union of India Ministry of Home Affairs New Delhi 2. The Director General Central Industrial Security Force CISF Headquarters Block No. 13, CGO Complex Lodhi Road, New Delhi 3. The Deputy Inspector General C.I.S.F. Southern Zone D-Block, Rajaji Bhavan Besant Nagar Chennai 4. The Deputy Commandant C.I.S.F. Unit Chennai Port Trust Chennai. + 1 cc to Mr. P. Anand Sr.30641 + 1 cc to Mr. J.M. Sugesh SR.30587. W.P. No. 5243 of 2009 TEJ(CO) EU 30.7.2009. https://hcservices.ecourts.gov.in/hcservices/