1 D.B. CIVIL WRIT PETITION NO.4750/2005 U.O.I. & Ors. Vs. Shri Jaswant Ram & Ors. Date : 02.03.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE CHATRA RAM JAT Mr. V.K. Mathur for the petitioner. Mr. Vijay Mehta for the respondents. ________ Heard learned counsel for the parties. This petition is directed against the order of the Central Administrative Tribunal dated 15th July, 2004. The chequered history of the case show that the respondents Sarshree Jaswant Ram, Naresh Kumar, Ram Prastap and Nishan Singh were appointed on 31st March, 1987, 28th March, 1987, 24th March, 1987 and 19th October, 1987 respectively. All the respondents completed 12 years of continuous service in 1999 and were not given any promotion during this period of 12 years. Except respondent No.4, Nishan Singh all had completed 12 years of service prior to 9.8.1999 when 2 ACP Scheme came into force. The forth respondent Nishan Singh had completed the 12 years service on 12.10.1999, the date on which 12 years service completed without availing any promotion. The first trade test was held 2000 after the ACP came into force. Those who passed trade test in 2000 were given benefit of selection scale with effect from completion of 12 years. Those who had completed 12 years service prior to 9.8.1999 were given selection scale w.e.f. 9.8.1999. The admitted position is that the respondents named above were not called for trade test in 2000 at all, though they had completed 12 years service prior to that date. Because of their absence from aforesaid trade test they were not given selection scale. But subsequent thereto when they were given first opportunity to appear at trade test, they cleared the same and were given the selection scale but not from the date they completed 12 years w.e.f. 9.8.1999 they who had completed 12 years service prior to that date. 3 Under the Assured Career Progression Scheme (ACP) which came into force prior to 9.8.1999 the incumbent became entitled to selection scale on completion of 12 years of service but had not received any promotion. The only condition was that he should have passed trade test otherwise the date with effect from which selection scale was to be given would be reckoned. The other facts relevant for the controversy are that at the initial stage the pay scale in which the respondent, applicants before the Tribunal, were fixed became subject matter of dispute. The claimants had demanded that they were entitled to higher pay scale which matter was adjudicated before the Tribunal and the applicants were successful. While the matter was pending in the Supreme Court, the Supreme Court directed that the direction for fixing the applicants in the pay scale to which they were held entitled to by the Tribunal may be given effect to. Thus, the respondents were fixed in the pay scale to which they were entitled 4 to. The present petitioners-employer treated this fixation in the higher scale to be a promotion within 12 years. It is not in dispute that trade test which was a condition for securing the benefit of Assured Career Progression Scheme (ACP), the opportunity to appear in such trade test in the first instance was denied to respondents, applicants before the Tribunal, on account of the applicants' own lapse by taking upon themselves that since the matter is pending before the Supreme Court about the correct pay scale applicable to the incumbents on the posts, they were not even entitled to assured career progression in scheme. Therefore, ultimately when the applicants before the Tribunal were allowed to take trade test on 13.5.2001 and passed they were given selection scale from 15.5.2001 on passing the trade test. In the aforesaid circumstances the original 5 application No.237/2003 was made before the Central Administrative Tribunal out of which this petition has arisen. The relief claimed by the applicants before the Tribunal was that they should be granted the benefit of ACP w.e.f. 9th August, 1999 when the ACP became operative. Two fold defence was taken by the Union of India as noticed by us above. The same has not been countenanced by the Tribunal and the application of the incumbents had been allowed directing the petitioners to release the benefit of ACP in favour of those applicants w.e.f. 9.8.1999 who had completed 12 years service on or before 9.8.1999. To those who had completed 12 years service after 9.8.1994 were to be given benefit of selection scale w.e.f. the date he completed 12 years of service. Suffice it to say that fixation in the higher pay scale from the date of initial appointment as per their entitlement adjudicated by the Tribunal cannot be considered a case of release of promotional pay scale as 6 assumed by the present petitioners. The assumption was wholly unfounded and perhaps was used as a tenuous support to withhold the entitlement of applicants to selection pay scale under their own scheme by depriving them even chance to appear at trade test. That fixation was done as an initial pay scale applicable to the post in terms of the Tribunal's order. The fact that the said pay scale was liable to be modified as per the ultimate decision of the Supreme Court does not take away this right to be fixed in the initial pay scale applicable to the post and consequently right of applicants to seek benefit of ACP on completion of 12 years service could not be defeated on account of release of the original pay scale as per entitlement. The second contention that because the respondents have actually passed trade test on 15.5.2001 and are not entitled to ACP benefits from the date earlier than that is also not well founded in the facts and circumstances of the present case. Admittedly, the non-petitioners were not allowed to take trade test 7 because of the fault of the employer. If that is the case then obviously the date on which the incumbents become entitled to ACP benefits cannot be postponed for the lapse of employer. In view thereof, we do not find any merit in the petition. The petition is, therefore, dismissed. [CHATRA RAM JAT], J. [ RAJESH BALIA ], J. babulal/