IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15637-CAT of 2009 Date of Decision: January 19, 2010 The Comptroller and Auditor General of India and others …Petitioners Versus Central Administrative Tribunal, Chandigarh Bench, Chandigrah and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. I.S. Sidhu, Advocate, for the petitioners. Mr. R.K. Sharma, Advocate, for respondent No. 2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 19.3.2009 (P-4), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) in O.A. No. 131/CH/2008. The Tribunal has disposed of the O.A. filed by the applicant-respondent No. 2 in terms of its earlier order dated 13.2.2009, passed in the case of Budhi Singh Dhiman and another v. Union of India and others (O.A. No. CWP No. 15637-CAT of 2009 538/HP/2007) and directed the respondent-petitioners to take necessary steps in the case of the applicant-respondent No. 2 in terms of the directions issued in the case of Budhi Singh Dhiman (supra) and to pass a speaking and reasoned order within a period of three months after affording an opportunity of hearing to him. However, instead of considering the case of the applicant-respondent No. 2 and without passing a speaking order, the petitioners chose to file the instant petition. 2. Few facts may first be noticed. The applicant-respondent No. 2 was working as Clerk in the erstwhile Beas Construction Board (for brevity, ‘BCB’) w.e.f. 19.1.1974 and on 19.1.1977 he became quasi-permanent. He was placed in the pay scale of Rs. 510-800 w.e.f. 1.1.1978. In the year 1985, the applicant-respondent No. 2 was declared as surplus in the BCB. Thereafter, upon his re-deployment through the Central Surplus Cell, he joined the petitioners’ department as Clerk w.e.f. 26.2.1985. His pay was fixed in the Central Pay Scale of Rs. 260-400. The pay scale of the post of Clerk was revised to 950-1500 w.e.f. 1.1.1986. On 31.8.1988, the applicant-respondent No. 2 was promoted as Accountant in the pay scale of Rs. 1200-2040. On 1.1.1992, he was further promoted as Senior Accountant in the pay scale of Rs. 1400-2600, which was revised to Rs. 5000-8000 w.e.f. 1.1.1996. 3. On 9.2.2000 the Tribunal passed and order in O.A. No. 253/CH/1991 (Bharat Bhushan and others v. Union of India) deciding the claim of the erstwhile BCB employees including the applicant- respondent No. 2 for grant of Central Pay Scale of pre-revised scale 2 CWP No. 15637-CAT of 2009 of Rs. 510-800. Accordingly, they were granted the revised pay scale of Rs. 1640-2900 w.e.f. 1.1.1986 and Rs. 5500-9000 w.e.f. 1.1.1996. It is also pertinent to mention here that on 9.8.1999, the Assured Career Progression Scheme (for brevity, ‘ACP Scheme’) for Group ‘C’ and ‘D’ employees was introduced. As per the ACP Scheme, on completion of 12 years and 24 years of regular service, the employees were to be placed in the higher pay scales. This is popularly known as ‘Ist ACP’ and ‘IInd ACP’. 4. The applicant-respondent No. 2 claimed grant of benefit of Ist ACP in the pay scale of Rs. 6500-10500 and IInd ACP in the pay scale of Rs. 7450-11500 under the ACP Scheme. His claim was rejected by the petitioners vide order dated 30.11.2007/5.2.2008 (A- 1) on the ground that he had already been granted the revised pay scales w.e.f. 1.1.1986 and 1.1.1996 as also earned two promotions as Accountant and Senior Accountant w.e.f. 31.8.1988 and 1.1.1992 respectively. Feeling aggrieved against the aforementioned order dated 30.11.2007/5.2.2008, the applicant-respondent No. 2 filed O.A. No. 131/CH/2008 before the Tribunal. 5. At this stage it is apposite to mention here that another O.A. No. 538/HP/2007 was filed by Sarvshri Budhi Singh Dhiman and Devinder Kumar before the Tribunal. They were also working as Clerks in the erstwhile BCB. By virtue of their placement as Senior Clerk, they were granted the scale of Rs. 510-800 w.e.f. 1.1.1978. On 1.10.1984, they were declared as surplus in BCB and later on re- deployed as Clerks in the offices of C.G.D.A. and C.D.a. (Pension Disbursement). Their pay was fixed in the central pay scale of Rs. 3 CWP No. 15637-CAT of 2009 260-400. Subsequently, Shri Budhi Singh Dhiman was promoted as Auditor in July 1996 in the pay scale of Rs. 1200-2400, which was revised to Rs. 4000-6000. He was further promoted as Senior Auditor in February 2001 in the pay scale of Rs. 5000-8000. Similarly, Shri Devinder Kumar was promoted as Auditor on 15.6.1995 and as Senior Auditor on 19.3.1999 with the aforementioned pay scales. In pursuance of decision of the Tribunal rendered in the case of Bharat Bhushan (supra), dated 9.2.2000, they were also granted the revised scales of Rs. 1640-2900 w.e.f. 1.1.1986 and Rs. 5500-9000 w.e.f. 1.1.1996. They claimed grant of pay scale of Rs. 6500-10500 as first up-gradation and Rs. 7450-11500 as second up-gradation under the ACP Scheme upon completion of 12 years and 24 years of regular service on 4.8.1990 and 3.4.1996 respectively. On 5.3.2007, their claim was rejected and the aforementioned O.A. was filed by them. On 13.2.2009, the Tribunal allowed their OA. After noticing Rule 5(2)(ii) of the CCS (Redeployment of Surplus Staff) Rules, 1990, and contentions of the parties, the Tribunal has held as under: “11. We have heard learned counsel for the parties and carefully gone through the record. After giving deep consideration to the matter, we find that when the case of the applicant was allowed in pursuance to the directions given in Bharat Bhushan case, they have given the corresponding scale of the scale enjoyed by them when they were working as Senior Clerk in the erstwhile BCB 4 CWP No. 15637-CAT of 2009 to the tune of Rs. 510-800, which was revised to the pay scale of Rs. 1640-2900 w.e.f. 1.1.1986, further revised to Rs. 5500-9000 w.e.f. 1.1.1996 whereas the applicants while promoted to the post of Auditor and Senior Auditor their pay scale was of Rs. 4000-6000 and Rs. 5000-8000 respectively as on 1.1.1996, which is undoubtedly lower than the corresponding pay scale given to them by virtue of aforesaid judgment in Bharat Bhushan case. Therefore, their pay was liable to be protected in view of Annexure A-12 and their promotion to the post of Auditor and Sr. Auditor becomes redundant. In such eventuality Annexure A-6 dated 23.2.2003 will not be applicable in applicants’ case. 12. The contention of the respondents is that they cannot be given this higher pay scale as claimed by them in view of the fact that this scale is applicable to further promoted post of Section Officer and can only be given after qualifying the examination and fulfilling other eligibility criteria. In our considered opinion, the said contention is not tenable keeping in view that the applicants are not claiming their promotion to the post of Section Officer but are asking for grant of two ACPs in view of subsequent development being taken place in their case. The contents of Annexure A-12 are self explanatory wherein it is categorically mentioned that the 5 CWP No. 15637-CAT of 2009 person who is allowed to carry his pay scale as personal to him in the event of redeployment on the lower post, further benefits under ACP scheme are allowed with reference to protected pay scale and not with reference to pay scales of the post to which he has been appointed. Thus benefit under ACPs in such cases is also not linked to actual pay scale of the post held after deployment. 13. Thus, in view of above observations and discussion, keeping in view that the matter relates to the grant of ACP benefits involving grant of pay scales of Rs. 6500-10500 and Rs. 7450-11500, we find it appropriate to refer the matter to Respondents No. 2 and 3 to examine this aspect and pass appropriate orders in the light of Annexure A-12 while considering the case of the applicant to grant them benefits of two ACPs with aforesaid pay scales keeping in view that their promotion to the posts of Auditor and Senior Auditor has virtually become redundant as by virtue of decision in Bharat Bhushan case, they have been put in the higher pay scale as compared to these two posts and their scales are corresponding scales to the post of senior clerk on which they were working in the erstwhile BCB. Needful be done within a period of three months from the date of receipt of copy of this order while passing a speaking and reasoned order on their claim, after affording an 6 CWP No. 15637-CAT of 2009 opportunity of being heard to the applicant. Orders be duly communicated to the applicants.” 6. Adopting the same reasoning, the Tribunal has also disposed of the O.A. filed by the applicant-respondent No. 2 in the present case, vide impugned order dated 19.3.2009, which is subject matter of challenge in the instant petition. 7. Having heard learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that there is no merit in the instant petition and the same is liable to be dismissed. We find no legal infirmity in the order passed by the Tribunal, inasmuch as, the Tribunal has only given a direction to the petitioners for re-considering the case of the applicant-respondent No. 2 in the light of its earlier order dated 13.2.2009 passed in the case of Budhi Singh Dhiman (supra). Even in the case of Budhi Singh Dhiman (supra) the Tribunal has come to a conclusion that the applicants’ therein were not claiming promotion to the post of Section Officer but only seeking grant of two ACPs on account of subsequent development having taken place in view of decision of the Tribunal rendered in the case of Bharat Bhushan (supra). A bare perusal of both the orders dated 13.2.2009 and 19.3.2009 passed by the Tribunal further makes it clear that even it has not set aside the orders impugned by the original applicants rejecting their claims for grant of benefit of ACP Scheme. Therefore, it was imperative for the petitioners to first re-consider the case of the applicant-respondent No. 2 and to pass a speaking order after affording an opportunity of hearing to him. Instead of adopting that 7 CWP No. 15637-CAT of 2009 course, the petitioners have straightway approached this Court. 8. Moreover, on 18.11.2009 when the matter came up for consideration before a Division Bench of this Court, learned counsel for the petitioners sought and was given more time to apprise the Court whether any petition has been filed against the decision of the Tribunal in the case of Budhi Singh Dhiman (supra), which has been relied upon by the Tribunal in the present case. In response thereto learned counsel for the petitioners has apprised the Court that the order passed by the Tribunal in the case of Budhi Singh Dhiman (supra) was assailed before this Court in a writ petition, however, the same has been dismissed. 9. In view of above, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) January 19, 2010 JUDGE Pkapoor 8