IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 16937 of 2008(S) -------------------------- OA.603/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: (RESPONDENTS IN O.A.NO.603 OF 2006) ----------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS WEST BLOCK V, RK PURAM, NEW DELHI 110 066. 3. THE CONTROLLER OF DEFENCE ACCOUNTS 618 ANNA SALAI, TEYNAMPET, CHENNAI 600 018. 4. THE ASST CONTROLLER OF DEFENCE ACCOUNTS INCHARGE PAY & ACCOUNTS OFFICE (OTHER RANKS), DEFENCE SECURITY CORPS, MILL ROAD, KANNUR - 670 013. 5. THE SENIOR ACCOUNTS OFFICER (AN) PAY & ACCOUNTS OFFICE (OTHER RANKS) DEFENCE SECURITY CORPS, MILL ROAD, KANNUR - 670 013. 6. THE ASSISTANT ACCOUNTS OFFICER (AN) PAY & ACCOUNTS OFFICE (OTHER RANKS) DEFENCE SECURITY CORPS, MILL ROAD, KANNUR - 670 013. BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNS WPC.16937/2008 -2- RESPONDENTS: (APPLICANT IN OA NO.603 OF 2006) --------------------------------------------- S.SUBRAMANIAN, SR.AUDITOR, A/C NO.8333422 NOW SERVING IN AAO GE (AF) TRIVANDRUM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 16937 OF 2008 ============================ DATED THIS THE 23rd day of June 2008 JUDGMENT Balakrishnan Nair,J. The respondents in O.A.No.603/2006 are the writ petitioners. The respondent herein is the applicant in the O.A. The brief facts of the case are as follows: 2. The applicant was initially appointed as L.D.Clerk in the scale of pay of Rs.110-180(revised to 260-400) in the National Savings Organization with effect from 15-1-1971. Later he was placed in the higher scale of pay of Rs.1200-1800 as Selection Grade L.D.Clerk with effect from15-2-1985. Thereafter, he was actually promoted as U.D.Clerk in the scale of pay of Rs.1200- 2040 with effect from 17-7-1991. Thereafter, the scale of pay of Rs.1200-1800 of the Selection Grade L.D.Clerk and the scale of Pay of Rs.1200-2040 of the U.D.Clerk were merged with effect WPC.16937/2008 -2- from 1-1-1986. 3. Later, the applicant was declared as a surplus employee in the National Savings Organisation and was absorbed in the Defence Accounts Department as Auditor in the scale of pay of Rs.1200-2040. Still later, he was promoted as Senior Auditor. 4. While so, the Assured Career Progression Scheme was introduced with effect from 9-8-1999. As per the scheme an employee, who has completed 24 years of service and got only one promotion is entitled to get upgradation with effect from the date of completion of 24 years or from 9-8-1999, whichever is later. The applicant claimed that his promotion as U.D.Clerk should be ignored in view of the Office Memorandum issued by the Department of Personnel and Training on 10-2-2000. If that be so, during the 24 years of service, he got only one promotion, i.e. from Auditor to Senior Auditor and so he is entitled to get upgradation as per the A.C.P.scheme. When the said relief was not granted by the writ petitioners, who are the respondents in the O.A., the respondent herein filed Ext.P1 O.A. The respondents resisted the application by filing a reply statement. WPC.16937/2008 -3- 5. After hearing both sides, the O.A. was allowed by Ext.P4 order dated 5-3-2008. The operative portion of the order reads as follows: “We have heard Shri Ajith Narayanan, counsel for the applicant and Shri. C.M.Nazar,ACGSC for respondents. The undisputed fact is that the applicant was initially appointed as an LDC in the scale of Rs.110-180, (revised to Rs.260-400) in the NSO with effect from 15-2-1971 and he was placed in the higher scale of Rs.1200-1800 as Selection Grade LDC with effect from 15-2-1985. Later, he got a promotion as UDC in the scale of Rs.1200-2040 in the same organization with effect from 17-7-1991. Thereafter, the scale of Rs.1200-1800 and the scale of Rs.1200-2040 got merged. It is also a fact that the applicant was declared as surplus employee in the NSO and he was redeployed in the DAD as Auditor in the same scale of Rs.1200-2040 and the regular service rendered by him in NSO was counted along with his regular service in his DAD for the purpose of giving financial upgradation under the Scheme. It is in this context that the clarification of the DOPT made vide OM No.35634/1/97 ESTD (D) dated 10-2-2000 becomes relevant. It says “An employee who got promoted WPC.16937/2008 -4- from lower pay scale to higher pay scale as a result of promotion before merger of pay scales shall be entitled for upgradation under ACPS ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-a-vis the fresh entrant in the merged grade.” The merger of two scales in this case has taken place after the applicant was promoted as UDC in NSO on regular basis. Hence the aforesaid clarification of UDC squarely applies in his case and the promotion given to him as UDC with effect from 17-7-1991 in NSO has to be ignored . Resultantly and in effect applicant was granted only Selection Grade in LDC grade which is not a promotion. Therefore, the only promotion given to him in his entire service career was as Senior auditor in DAD with effect from 17-7—1991. Hence, he is entitled to have his financial upgradation under ACP Scheme after completing 24 years of service from 15- 2-1971 i.e.by 15-2-1995 or with effect from 9-8- 1999, i.e.date from the ACP Scheme came into existence whichever is later. Accordingly, the respondents shall grant him the financial upgradation to the applicant under the ACP Scheme with effect from 9-8-1999 and we order accordingly. Respondents are also directed to issue the necessary WPC.16937/2008 -5- orders in this regard within two months from the date of receipt of this order. The O.A.is allowed in the above terms. There shall be no order as to costs.” 6. The writ petitioners attack the above directions on the ground that the applicant has got promotion as U.D.Clerk while working in the National Savings Organisation. Therefore, during his career, he got two promotions and therefore, he is not entitled to the benefit of upgradation on completion of 24 years of service. But we notice that the Central Administrative Tribunal ignored the promotion from the post of L.D.Clerk to U.D.Clerk relying on O.M. 35634/1/97/Estd.dated 10-2-2000 issued by the Department of personnel & Training. The said O.M. specifically says, if lower scale of pay and higher scale of pay are merged and anybody got promotion before the merger, such promotion should be ignored for the purpose of A.C.P. Otherwise fresh recruits in the upgraded higher scale of pay will be stealing a march over the seniors who came to be in the higher scale of pay by promotion while working in the lower scale of pay. In WPC.16937/2008 -6- view of the said circular, the respondent/applicant can rightly contend that promotion to the post of U.D.Clerk should be ignored. The said promotion has rightly been ignored by the Central Administrative Tribunal. We find no reason to interfere in the said decision of the C.A.T. Accordingly, the writ petition is dismissed. Sd/ K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI JUDGE ks. True copy P.S.TO JUDGE