IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 100 of 2004 with CWP Nos. 102, 103, 104, 105 & 107 of 2004 Date of Decision : 16.5.2008 CWP No. 100 of 2004 Ram Lok …Petitioner. Versus: The Director and others …Respondents. CWP No. 102 of 2004 Amar Singh …Petitioner. Versus: The Director and others …Respondents. CWP No. 103 of 2004 Madan Lal …Petitioner. Versus: The Director and others …Respondents. CWP No. 104 of 2004 Mansa Ram …Petitioner. Versus: The Director and others …Respondents. CWP No. 105 of 2004 Basant Ram …Petitioner. Versus: The Director and others …Respondents. CWP No. 107 of 2004 Kubja Devi …Petitioner. Versus: The Director and others …Respondents. 2 Coram: The Hon’ble Mr.Justice R. B. Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioners: Mr. M. S. Thakur, Advocate with S/Shri Jeevesh Sharma & Inderjeet Singh Narwal, Advocates. For the respondents : Mr. Sandeep Sharma, Assistant Solicitor General of India with Mr. Rabinder Thakur, Central Govt. Counsel. R. B. Misra, J. (Oral). These writ petitions have been preferred by the writ petitioners against the impugned order dated 18.11.2003 passed in O. A. No. 926/HP/2002 along with other O. A. Numbers, namely, O.A. No. 925/HP/2002, O.A. No. 923/HP/2002, O.A. No. 924/HP/2002, O.A. No. 928/HP/2002 & O.A. No. 927/HP/2002, whereby their prayer for granting benefit of first and second financial up-gradations under the Assured Career Progression Scheme (in short called ‘ACP’) and all consequential benefits to be extended to them, have been denied by the Central Administrative Tribunal (Circuit Bench) at Shimla. 2. Since the common question of law and facts involved in all the original applications, the same were dealt with and adjudicated upon together by a common impugned order, as such, all these writ petitions are being disposed of by a common order. 1 Whether reporters of Local Papers may be allowed to see the judgment? 3 3. It appears that the ‘ACP’ Scheme was introduced by the Government of India, Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel and Training), North Block, New Delhi -66, on 9.8.1999 for giving benefit to such Central Government civilian employees 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 and this ‘ACP’ Scheme was in reference to the recommendations of the Fifth Central Pay Commission with certain modifications. 4. The relevant provisions, necessary for the present writ petitions, are indicated as below:- “1. The ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial upgradation only to the Government servant concerned on personal basis and shall therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose. 2. The highest pay scale upto which the financial up- gradation under the scheme shall be available will be Rs.14,300-18-300. Beyond this level, there shall be no financial upgradation and higher posts shall be filled strictly on vacancy based promotions. 3. 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 these instructions whichever is later. 4 4. 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. 5.1 Two financial upgradations under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-tract promotion availed through limited departmental competitive examination availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him. 5.2 Presidency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit. 7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without counting new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the 5 Ministries/Departments concerned in the immediately next higher (standard/common) pay scale as indicated in Annexure-II which is in keeping with part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). 8. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has get higher pay scale under the ACP Scheme. 15. Subject to condition No.4 above, in cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the Scheme shall be granted directly. Further, in order to rationalize unequal level of stagnation, benefit of surplus regular service (not taken into account for the first upgradation under the Scheme) shall be given at the subsequent stage (second) of financial upgradation under the ACP Scheme as a one time measure. In other words, in respect of employees who have already rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of the second financial upgradation and consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular 6 service after the first financial upgradation already granted under the Scheme.” 5. In order to adjudicate the writ petitions, it is necessary to give brief facts that the petitioners were appointed as Constable in their respective establishments in the pay scale of Rs.85-110. At the relevant time they were working as Field Assistant (Fire Fighting) service in SSB Training Centre in the pay scale of Rs.3040-4590. Keeping in view the stagnation due to lack of promotional avenues, the respondents granted financial upgradation in the pay scale of Rs.4000-6000 w.e.f. 9.8.1999 vide orders dated 1.1.2000. Thereafter, vide order dated 7.7.2000, the petitioners were given the second upgradation in the pay scale of Rs.5500-9000. The petitioners along with other Field Assistants represented to the respondents to release the difference of salary on account of financial upgradations. 6. According to the petitioners, they were facing stagnation due to lack of promotional avenues even on completion of 12/24 years of service. It appears that the petitioners were given higher pay scale of Rs.225-308 on completion of 15 years of service treating these petitioners as non-matriculate, as such, the second upgradation of the petitioners was treated as first upgradation and was taken to be as first promotion. It appears that the petitioners have challenged the first upgradation and as such treating the 7 petitioners to be eligible for only one upgradation, their salary was refixed in the pay scale of Rs.3200-4900 vide orders dated 24.8.2002 under the ‘ACP’ Scheme. 7. The petitioners challenged such order mainly on the ground that the grant of higher pay scale to them after completion of 15 years of service cannot be treated as first upgradation, as such, they are entitled to both the upgradations under the ‘ACP’ Scheme. According to the petitioners, persons working along with them in SSB establishment, even less qualified, were given the pay scale of Rs.5500-9000 on completion of their 24 years of service, as such, they urged that the petitioners should also be granted the same scale of pay. 8. The respondents have chosen to file the written statement before the learned Tribunal taking a stand that the petitioners have since earlier been granted two upgradations and their salary fixation in the scale of Rs.5500-9000 was not correct. Since the petitioners by virtue of their deployment as Constable have already been granted the higher pay scale of Rs.950-1400 after completion of 15 years of service, thereby considered as first upgradation, as such, the petitioners are only eligible for second upgradation under the ‘ACP’ Scheme. A clarificatory letter dated 6.7.2001 was also issued by the respondents to the effect that non-matriculate Constable after 15 years of service, who have been granted matriculation scale under separate orders can be eligible for second upgradation 8 only. In reference to such clarification, a revised order allowing the petitioners only one upgradation in the pay scale of Rs.3200- 4900 w.e.f. 9.8.1999 was issued by the respondents and the pay scale of petitioners was refixed accordingly. 9. The sole question adjudicated by the learned Tribunal was that; whether any employee who has been given higher pay scale in his career even once, is eligible for two financial upgradations envisaged in the ‘ACP’ Scheme, after completion of 24 years of service. 10. Learned Tribunal on the pleadings of the parties and on available documents has interpreted the provisions of the ‘ACP’ Scheme and has observed that there is no doubt that the petitioners did get one higher scale after completion of 15 years of service, therefore, in terms of the conditions and guidelines, the petitioners were entitled to only one upgradation and not the second one, under the ‘ACP’ Scheme. As such, the rectification of the pay scale by the respondents and revision of their earlier order and refixation of their pay in the pay scale of Rs.3200- 4900 w.e.f. 9.8.1999, was correct. 11. It has been submitted for the petitioners, that the learned Tribunal has taken the financial upgradations extended to the petitioners on completion of 15 years of service as the first promotion for the purpose of the Scheme, whereas, the financial upgradation could never be treated to be regular promotion as envisaged under Clause 5.1 of the ‘ACP’ Scheme. 9 According to the petitioners, under the ‘ACP’ Scheme, two financial upgradations in the entire Government service career of an employee, shall be counted against a regular promotion. 12. On the other hand, Shri Sandeep Sharma, learned Assistant Solicitor General of India has controverted the stand of the petitioners by saying that clause 5.1 does not merely indicate the requirement of two financial upgradations in the entire Government service career for counting regular promotions, but also includes in-situ promotion and fast-track promotion. 13. However, from the available documents, the learned Assistant Solicitor General of India could not strengthen his arguments, though has categorically asserted that the financial upgradations extended to the petitioners after completion of 15 years of service has to be treated for all purposes as first promotion and, as such, the petitioners are entitled to be given only one upgradation. 14. According to the learned counsel for the petitioners, undisputedly the petitioners have not been given/issued any promotional order in their entire service career and financial upgradation was in peculiar facts and circumstances and cannot be treated as first promotion and in the absence of any clear written promotional order in favour of the petitioners, the provisions of Clause 5.1 of ‘ACP’ Scheme shall protect the case of the petitioners, accordingly if an employee has already got 10 one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ‘ACP’ Scheme. Clause 15 indicates that where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the Scheme shall be granted directly. 15. We have heard the learned counsel for the parties and have also gone through the different paragraphs of ‘ACP’ Scheme and averments and documents of petitioners. 16. We find that in view of Clause 5.1, two financial upgradations under the ‘ACP’ Scheme in the entire Government service career of an employee shall be granted against a regular promotion. However, this regular promotion shall also include in- situ promotion and fast-tract promotion availed through limited departmental competitive examination availed from the grade in which an employee was appointed as a direct recruit. As indicated in the Concise Oxford Dictionary in-situ means ‘in the original, intended or designated position’, but nothing has been brought to our notice that any financial upgradation given by the Government to overcome the stagnation, would tantamount to promotion. We are conscious that if the petitioners had already got one regular promotion, they can qualify for the second financial upgradation only on completion of 24 years of regular service under the ‘ACP’ Scheme. However, the record does not reveal that any of such first promotion was given to them. 11 Therefore, the petitioners who have completed 24 years of service would be entitled to second financial upgradation under the Scheme and from this point of view the fixation of pay in the pay scale of Rs.5500-9000 was correctly made. 17. In view of the foregoing analysis, we are of the considered view that the verdict of Learned Tribunal is erroneous and legally not sustainable. As such, the impugned order dated 18.11.2003 of the learned Central Administrative Tribunal (Annexure A/3), and the order dated 27.11.2001 (Annexure A/4), are set aside. The petitioners shall be entitled to difference in salary on account of pay fixation in the pay scale of Rs.5500- 9000 w.e.f. 9.8.1999. All the writ petitions are allowed. ( R. B. Misra ), Judge. ( Sanjay Karol ), Judge. May 16, 2008 (rana)