IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15739-CAT of 2003 Date of Decision : July 04, 2011 Union of India and others ….Petitioners Versus Rupa Singh and others …. Respondents CORAM : HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE T.P.S. MANN Present : None for the petitioners. Mr. Jagdeep Jaswal, Advocate with Mr. R.K. Arya, Advocate for respondents No. 1 to 21. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? T.P.S. MANN, J. 1. Respondents No. 1 to 21, working as Tent Menders, Rope Workers, Tailors etc. under the control of Officer Commanding-II, Field Ordnance Depot, filed O.A. No.1286-JK/2001 with a prayer for issuance of a direction to the petitioners to grant them the benefit of ACP in the scale of Chargeman Group-B (Rs.4500-7000). They based their claim on the fact that in the absence of definite hierarchy grade, the financial upgradation had to be given in the next promotional post in the hierarchy and not in the immediate next higher standard common pay scale, which had been given to them. They sought directions to the petitioners to grant them financial upgradation from pay scale of C.W.P.No.15739-CAT of 2003 -2- Rs.2650-4000 to the scale of Chargeman Group-B (Rs.4500-7000) instead of the next higher scale of Rs.2750-4400 sanctioned by the petitioners in their favour. Vide judgment dated 10.10.2002, the Chandigarh Bench of Central Administrative Tribunal held that the respondents were entitled to financial upgradation to the scale of next higher rank in their hierarchy even without the post being available. Since they were having the avenues for promotion to the rank of Chargeman Group-B, they were entitled to be granted the scale of Rs.4500-7000 and not the scale of Rs.2750-4400 as contended by the petitioners. In coming to such a conclusion, the Tribunal relied upon para 7 of Annexure-I, i.e. Conditions For Grant of Benefits under the ACP Scheme appended to Office Memorandum dated 9.8.1999, (Annexure A-2) which laid down that 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 creating new posts for the purpose whereas in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation be given by the Ministries/Departments in the immediately next higher (standard common) pay scales, as indicated in Annexure-II. 2. Aforementioned decision dated 10.10.2002, hereinafter referred to as the decision of Rupa Singh's case, was challenged by the petitioners by filing the present writ petition. Vide order dated 9.10.2003 the writ petition was admitted. C.W.P.No.15739-CAT of 2003 -3- 3. Another batch of 15 Tent Menders/Tailors, headed by Jagar Singh, also wished to take the benefit of judgment dated 10.10.2002 in O.A. No.1286-JK of 2001. They claimed that they were similarly entitled to the pay scale of Rs.4500-7000 of the post of Chargeman Group-B as their next promotion was also to the post of Chargeman Group-B under the statutory rules. They moved a representation followed by legal notice to which the Union of India and its officers replied that next channel of promotion to the Tent Menders/Tailors was regular promotion i.e. Chargeman on all India basis. On getting no positive response from the authorities, they filed O.A. No.931-JK of 2004. On 20.9.2006, a Division Bench of the Chandigarh Bench of the Tribunal discussed a number of factors, including the meaning to be given to the words used in the ACP Scheme and in para 7 of Annexure-1 and the fact that the respondents therein had brought to the notice of the Bench that there have been a policy decision dated 11.5.1985, duly sanctioned by the President of India, which had been enforced since the year 1983 but not taken note of by the Tribunal while dealing with the case of Rupa Singh and others and deciding the same vide aforementioned judgment dated 10.10.2002. The amended recruitment rules titled “Army Ordnance Chargeman Gr.-II Group 'C' Recruitment Rules, 2005” notified on 19.1.2006 were also noticed by the Bench. In view of the same, the Division Bench framed the following questions for placing before a larger Bench so as to reconsider as to whether the judgment dated 10.10.2002 in the case of C.W.P.No.15739-CAT of 2003 -4- Rupa Singh and others laid down a correct law:- “QUESTIONS :- (i) Whether the law laid down in the case of Rupa Singh and Others Vs. Union of India and Others, O.A. No.1286-JK of 2001, decided on 10.10.2002, lays down a correct law, particularly, in view of the new recruitment rules, known as Army Ordnance Chargeman Gr.II, Group 'C' Recruitment Rules, 2005, notified on 19.1.2006 ? (ii) Whether the category of Tent Menders/Tailors is entitled to the scale of pay available to Chargeman Gr.II which is no longer the next promotional post for the category of applicants under the 2005 Rules, above said and in view of the amended SOP dated 22.3.2004 with the modified ACP Scheme for Central Government Civilian employees in the Corps of AOC ? (iii) Whether the SOP at Annexure A.1 dated 22.3.2004 is illegal or arbitrary on any grounds ?” 4. After hearing learned counsel for the parties and examining the material on the file, the Full Bench of Chandigarh Bench of the Central Administrative Tribunal vide order dated 2.2.2007 answered the three questions of reference in the following manner :- (i) The law laid down in the case of Rupa Singh C.W.P.No.15739-CAT of 2003 -5- and others Vs. Union of India and Others in O.A. No.1286-JK of 2001, decided on 10.10.2002 does not lay down correct law. After enforcement of Army Ordnance Chargeman Gr.II (Group 'C') Recruitment Rules, 2005, notified on 19.1.2006, the view expressed in Rupa Singh's case cannot be accepted as correct law at all because it is industrial tradesmen who have requisite length of service as highly skilled who only are eligible for promotion to the post of Chargeman now. Thus, by implication, the post of Chargeman does not remain the next promotional post for the category of Tailors and Tent Menders who are semi-skilled; (ii) The category of Tent Menders/Tailors is also not entitled to the scale of pay available to Chargeman Gr.II. This is so held in view of the 2005 Rules, read with the modified ACP Scheme for Central Civilian Employees in the Corp of AOC; and (iii) We do not find anything in Annexure A1 which could be termed as illegal or arbitrary on any grounds. 5. Order dated 2.2.2007 passed by a Full Bench of the Chandigarh Bench of the Tribunal has been challenged by Jagar Singh and others by filing C.W.P. No.19476-CAT of 2007. The same was admitted on 21.12.2007 and ordered to be heard alongwith the present C.W.P.No.15739-CAT of 2003 -6- petition. Hence, both the aforementioned writ petitions are being disposed of by a common judgment. 6. As is apparent from the impugned order passed in CWP No.19476-CAT of 2007, ACP scheme, as circulated and enforced by the Central Government through DOP&T, envisaged mere placement in the higher pay scale/grant of financial benefits through financial upgradation on personal basis. It neither amounted to functional/regular promotion, nor required the creation of new posts. Emphasis had been laid upon granting of financial upgradation. Though normal promotion norms available for consideration of an employee for promotion, would be attracted under the ACP scheme, yet only financial upgradation could be given, even though the duties of the employee, the designation etc. remain the same, as enjoyed by him before grant of financial upgradation. Such upgradation did not confer any privilege relating to the higher status and was meant to be purely personal to the employee. Though in para-7 of the scheme, financial upgradation had to be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose, but in case of isolated posts not having promotional avenues, it has been clarified that the pay scales, as indicated in Annexure-II would have to be given. An employee already in S-4 would be eligible for the proposed two financial upgradations to the pay scales of S-5 and S-6. C.W.P.No.15739-CAT of 2003 -7- 7. In Rupa Singh's case, the opening lines of para-7 of Annexure-1, i.e. “the next higher grade in the existing hierarchy in a cadre” were interpreted to mean that under financial upgradation the scale of pay to be given had to be that of next higher post available on promotion. However, the opening lines of para-7 cannot be considered in isolation, rather they have to be read in context to the entire ACP scheme which provided for giving the benefit of higher pay scale and not of higher post. 8. It may be worthwhile to mention here that for the industrial employees of AOC, on the basis of recommendations of the Expert Classification Committee appointed in terms of the report of 3rd Pay Commission and of the Committee of Common Category Jobs, sanction of the President was conveyed through letter dated 11.5.1983 vide which five scales of pay were set out in Annexure-I to the letter and the categories created and recognized were un-skilled, semi-skilled, skilled, highly skilled Grade-II and highly skilled Grade-I. The posts of tailors and Tent Menders fall in the category of semi-skilled. The guidelines provide for fitment by way of upgradation of posts in all these categories on the basis of strength of workers to the different scales of pay, including the category of the original applicants. The scales of pay have been revised on the basis of two subsequent Pay Commission Reports. The aforementioned decision was not brought to the notice of the Tribunal earlier when it decided the case of Rupa Singh. At that C.W.P.No.15739-CAT of 2003 -8- time, it was taken that the category of original applicants with eight years of service was eligible to be promoted to the post of Chargeman Group 'B' on passing of a trade test and there was no other available grades/scales of pay in between. 9. In terms of ACP scheme which stood adopted by the department for its employes, the method of grant of benefit and the category to be benefitted, had been clearly mentioned. In case of Group 'D' civilian employees, the first upgradation became due on completion of 12 years of regular service in the pay scale of Rs.2610- 4000 and after 24 years of service of Rs.2700-4400. While dealing with word 'hierarchy', it had been mentioned that all industrial Group 'C' and 'D' employees would be eligible for financial upgradation in the hierarchy mentioned, i.e. from un-skilled to semi-skilled, semi-skilled to skilled and thereafter, to the highly skilled scale of pay. The two categories of the highly skilled Grade-II and highly skilled Grade-I have been abolished and under the new recruitment rules, persons, who have rendered service of the number of years mentioned in the recruitment rules, as highly skilled, are eligible for promotion to the post of Chargeman. 10. In view of the above, the Full Bench of the Tribunal rightly held that the case of Rupa Singh did not lay down correct law, as industrial tradesmen, who have requisite length of service as highly skilled only were eligible for the post of Chargeman. The post of C.W.P.No.15739-CAT of 2003 -9- Chargeman did not remain the next promotional post for the category of Tailors and Tent Menders, who are semi-skilled. In view of the 2005 Rules, read with ACP scheme for central civilian employees in AOC, the category of Tend-Menders/Tailors was also not entitled to the scale of pay available to Chargeman Group 'B'. 11. Resultantly, the present petition filed by Union of India and others is accepted and the order dated 10.10.2002 passed by the Tribunal is set aside. As a natural corollary thereof, CWP No.19476- CAT of 2007 is dismissed by up-holding the decision of Full Bench of the Tribunal. ( M.M.KUMAR ) ( T.P.S.MANN ) JUDGE JUDGE July 04, 2011 Satish