IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 OP.NO. 12611 OF 2002(S) ----------------------- PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSION, SOUTH BLOCK, NEW DELHI-110 001. 2. THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI-110 001. 3. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, COCHIN COMMISSIONERATE, CENTRAL REVENUE BUILDINGS, I.S. PRESS ROAD, COCHIN - 682 018. 4. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CALICUT COMMISSIONERATE, CENTRAL REVENUE BUILDINGS, MANANCHIRA, CALICUT. BY ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.JOHN VARGHESE, ASSISTANT SG SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX RESPONDENT(S): --------------- 1. V.E. CHANDRAN, SEPOY, SPECIAL CUSTOMS, PREVENTIVE DIVISIONAL OFFICE, KALLAI, KOZHIKODE. 2. KERALA CENTRAL EXCISE AND CUSTOMS GROUP-D, OFFICERS ASSOCIATION, COCHIN & CALICUT COMMISSIONERATYES, REPRESENTED BY ITS GENERAL SSECRETARY, P.X. ANTONY, CENTRAL REVENUE BUILDINGS, I.S. PRESS ROAD, COCHIN-18. OP.NO. 12611 OF 2002 :: 2 :: 3. THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH. ADV. SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.NO. 12611 OF 2002 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF O.A.NO.309/2001 FILED BY THE RESPONDENTS IN THE C.A.T.(E.B) WITH ANNEXURES A1 TO A11. EXT.P2: TRUE COPY OF REPLY STATEMENT FILED BY THE APPLICANTS IN O.A.NO.309/2001. EXT.P3: TRUE COPY OF THE ORDER DATED 07.01.2001 IN O.A.NO.309/2001 PASSED BY THE C.A.T.(EB). EXT.P4: TRUE COPY OF O.M.NO.35034/1/97-ESST.(D)(VOL.IV) DATED 18.07.2001. EXT.P5: TRUE COPY OF LETTER C.NO.II(3) 63-ET/99/2632 DATED 15.3.2010. EXT.P6: TRUE COPY OF LETTER C.NO.II(3) 63-ET/99/11944-56 DATED 26.9.2001. EXT.P7: TRUE COPY OF LETTER C.NO.II(3) 63-ET/86/2003 ESTT.A. DATED 17/19-3-2010. EXT.P8: TRUE COPY OF ORDER NO.175/2004 DATED 18.-10- 2004 ISSUED FROM THE OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE, COCHIN COMMISSIONERATE. EXT.P9: TRUE COPY OF LETTER F.NO.32011/91/2003 AD.III A DATED 12.7.2004. RESPONDENTS' EXHIBITS: EXT.R2(A): TRUE COPY OF THE ORDER F.NO.11013/25/2001 AD.IV. DT. 10.1.2002 ISSUED BY THE 2ND PETITIONER. EXT.R2(B): TRUE COPY OF THE ORDER NO.205/2002 DT. 27.11.2002 ISSUED FROM FILE C.NO.II/3/36/2002 ESTT.IV BY THE 3RD PETITIONER. //true copy// P.S. To Judge SK/- “C.R.” THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- O.P.No.12611 of 2002 --------------------------------------- Dated this the 7th day of June, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The respondents, a Sepoy in the Special Customs Preventive Divisional Office and the Kerala Central Excise and Customs Group D Officers' Association, moved the Central Administrative Tribunal, claiming that on completion of 24 years of service, Group D employees of Central Excise and Customs Department are entitled to a second Assured Career Progression (ACP) benefit. 2. At that point of time, Group D comprised of Sepoys and Havildars. Havildars were eligible for being considered for promotion to the category of Lower Division O.P.No.12611 of 2002 :: 2 :: Clerks, which is in Group C. Their eligibility for being considered for such promotion was matriculation and the promotion was on the basis of seniority-cum-fitness. 3. The case put forward before the Tribunal was that even those Havildars, who did not possess the qualification of matriculation, were entitled to a second ACP benefit. It is the conceded position that they were ineligible for upward movement from Group D to Group C, since they did not possess the qualification of matriculation. 4. Before the Tribunal, the issue mooted was whether the non-matriculate Sepoys would be entitled to a further ACP benefit to the scale of Lower Division Clerks, then perched at Rs.3,050-4590. Taking into consideration paragraph No.6 of the conditions for grant of benefit under ACP scheme, annexed to OM dated 8.9.1999, the Tribunal drew an O.P.No.12611 of 2002 :: 3 :: inference that in the case of Group D employees, the condition precedent for grant of financial upgradation is only seniority-cum- fitness and the possession of educational qualification of matriculation prescribed for appointment as Lower Division Clerk does not appear to be a pre-condition. The Tribunal went further to take the view that it is not easy for a Group D employee to acquire the educational qualification prescribed and therefore, a Sepoy does not have adequate promotional avenues. In that view of the matter, the Tribunal held that Sepoys are entitled to a second ACP benefit, even if they do not possess the qualification of matriculation. This decision is under challenge before us, at the instance of the Department. 5. When this matter was heard at an earlier point of time, it was pointed out on behalf of the employee and the Association O.P.No.12611 of 2002 :: 4 :: that the benefit, as now found by the Ernakulam Bench of Central Administrative Tribunal, has, in fact, been extended to similarly situated Sepoys under the Patna and Bangalore Commissionerates. Taking that submission into consideration, the Department was given an opportunity to verify and explain their stand in that regard. The Department has come on record with additional exhibits P5 to P9, supported by an affidavit, dated 1st April, 2010, stating that the benefits erroneously given by the Patna and Bangalore Commissionerates were later withdrawn. Documentary evidence is on record showing that those Commissionerates have withdrawn their earlier decisions in that regard. 6. With the aforesaid, we note that there was restructuring of the establishment resulting in the creation of posts of Head Havildars within Group D on 10.1.2002 and from O.P.No.12611 of 2002 :: 5 :: then, the category of Head Havildars was placed in the scale of Rs.3050-4590, which is the same as that of Lower Division Clerks. Therefore, the respondents are enjoying the benefit of ACP with effect from 10.1.2002, taking into consideration the placement of Head Havildars in Group D in the scale of pay of Rs.3050-4590. The respondents claim such benefit from 9.8.1999. 7. The short question arising for resolution is as to whether prior to the creation of category of Head Havildars in the scale of pay of Rs.3050-4590 in Group D, the non-matriculate Sepoys/Havildars could claim placement or ACP benefit on the basis of the fact that they had been stagnating and had completed 24 years of service in Group D posts. 8. The concept of the financial upgradation involving the mere placement in the higher pay scale on personal basis is founded O.P.No.12611 of 2002 :: 6 :: on the fact that the said person, through qualified to be promoted or granted the higher scale of pay is not getting that benefit for lack of space in the higher tier and is therefore, stagnating. Only an employee who could aspire to the higher post/scale can be treated as stagnating in a lower post/scale. One who is ineligible for upward movement in the establishment ladder on account of lack of the qualification prescribed for that higher post/scale cannot be treated as stagnating. The basis of the entitlement for the benefit of ACP scheme is the eligibility to aspire for a placement in the higher pay scale. Therefore, when the non-matriculate Sepoys/Havildars could not have aspired to move to the scale of pay of Rs.3050-4590 without moving up the ladder and entering the Group C posts of Lower Division Clerk, for which they are, admittedly, unqualified, they would be ineligible for being O.P.No.12611 of 2002 :: 7 :: considered for grant of ACP benefit on the basis that they are stagnating without being promoted or considered for promotion to the category of the Lower Division Clerk, that too in Group C, which alone then carried the scale of pay of Rs.3050-4590. 9. As already noted, when a further category of Head Havildars was created within Group D, for which category the non-matriculates could aspire, they became eligible to be given promotion to the category of Head Havildars and were entitled to financial upgradation on the basis of the scale of Head Havildars was perched. That by itself does not mean that before the creation of the category of Head Havildars, the non-matriculate Sepoys/ Havildars could aspire for promotion as Lower Division Clerks, for which posts they were not admittedly unqualified. As a corollary, they were entitled to ACP benefit in the scale of Rs.3050-4590 before 10.1.2002. O.P.No.12611 of 2002 :: 8 :: 10. Resultantly, the view of the Tribunal and the interpretation given by it to Clause (vi) among the conditions of the Assured Career Progression Scheme are contrary to law. The emphasis given by the Tribunal that seniority-cum-fitness in the case of Group D employees is the only bench mark, that was relevant for the application of that condition, is erroneous in law. The content of that condition operates only in relation to those posts which fall within Group D. The category of Lower Division Clerk, being a Group C post, the benefit of condition No.6 would not apply to a person, who is ineligible for being considered for promotion to the post of Lower Division Clerk. 11. With the aforesaid, learned counsel for respondents relied on the decision of the Apex Court in Union of India v G. Rajanna {[2009] 2 SCC (L & S) 174} to argue O.P.No.12611 of 2002 :: 9 :: that the interpretation given by the Tribunal is in conformity with the settled proposition applicable to in situ promotion. In that case, the Apex Court was concerned with the interpretation of the provisions of OMs dated 13.9.1991 and 6.11.1991 which related, among other things, to the grant of promotion in situ and which has effected functional promotion against available vacancies as per the provisions of the recruitment rules. We are clear in our mind that the interpretation given to those provisions by the Karnataka High Court, as affirmed by the Apex Court, does not have any bearing on the interpretation of the 1999 ACP scheme, which has been made after making due reference to 1999 OMs as is discernible from the ACP scheme itself. We are also of the view that Rajanna's case was not one considering the clash between the two categories of posts in different Groups, O.P.No.12611 of 2002 :: 10 :: whereas in the case in hand, we are concerned with the eligibility issue viz., as to whether the Sepoys/Havildars, who were non- matriculates, were entitled for being considered as stagnating owing to non- availability of promotion to Lower Division Clerk, to which category they could not have been promoted for want of matriculation. For the aforesaid reasons, we see no ground to sustain the impugned order. Resultantly, the writ petition is allowed quashing Ext.P3. No costs. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy//