IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.08.2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR. JUSTICE K.KANNAN Writ Petition No. 18494 to 18500 of 2008 and M.P.Nos.1+1+1+1+1 of 2008 1.Director, Vector Control Research Centre, Medical Complex, Indira Nagar, Puducherry-605 006. 2.Indian Council of Medical Research, rep. by the Director General, Ansari Nagar, New Delhi-110 029. ... Petitioners in all the W.Ps. Vs 1.The Central Administrative Tribunal rep. by its Registrar, City Civil Court Buildings, Chennai-600 104. ... Respondent No.1 in all the W.Ps. 2.Mr.V.Ramu ... Respondent No.2 in W.P.No.18494/2008. 2a.Mr.Raja Packrisamy ... Respondent No.2 in W.P.No.18495/2008. 3.Mr.V.Padmanaban ... Respondent No.2 in W.P.No.18496/2008. 4.Mr.P.S.Boopathi Doss ... Respondent No.2 in W.P.No.18497/2008. 5.Mr.K.Mathivanan ... Respondent No.2 in W.P.No.18498/2008. 6.Mr.R.Natarajan ... Respondent No.2 in W.P.No.18499/2008. 7.Mr.K.Vaidyanathan ... Respondent No.2 in W.P.No.18500/2008. Prayer:-Writ Petitions under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari to call for the records of the 1st respondent in O.A.Nos.99,61,62,100,101,98 and 63 of 2007 dated 10.12.2007 and to quash the same. For Petitioners : Mr.V.K.Rao, for Mr.M.T.Arunan For Respondents : R1 Tribunal. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by P.K.MISRA, J.) Heard Mr.V.K.Rao, learned Counsel appearing for the petitioners. 2. The 2nd respondent in each of the above writ petitions had filed original applications before the Central Administrative Tribunal, Chennai, for a direction to petitioners herein to quash the order dated 21.12.2006. The question relates to the grant of benefits under the second Assured Career Progression Scheme (in short, 'ACPS'). Subsequently, however, under the order impugned in the original applications, the Department observed that since the concerned employees had been upgraded on account of cadre revision during the year 1991 and subsequently promoted as Technical Assistants, although on the same scale of pay, such employees were not entitled to the benefit of second ACPS. The Tribunal has referred to Clarification No.35 given by the Government of India, which was to the following effect:- 35. Whether placement/ appointment in higher scales of pay based on the recommendations of the Pay Commissions or Committees set up to rationalise the cadres is to be reckoned as promotion/financial upgradation and offset against the two financial upgradations applicable under the ACP Scheme? Where all the posts are placed in a higher scale of pay, with or without a change in the designation, without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rules for the existing post, and without involving any change in responsibilities and duties, then placement of all the incumbents against such upgraded posts is not to be treated as promotion/ upgradation. Where however, rationalisation/ restructuring involves creation of a number of new hierarchial grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level taking into consideration their length of service in existing pre-structured/pre- rationalised grade promotion/upgradation." 3. The learned counsel for the petitioners contended that in fact, the Tribunal had not considered the fact of Clarification No.52, which is to the following effect:- https://hcservices.ecourts.gov.in/hcservices/ 2.Following the recommendations of the Pay Commission, feeder and promotional posts have been placed in the same scale. Consequently, hierarchy of a post comprises of Grades 'A', 'A' and 'C' i.e., the entry level and the first promotional grade are in the same scale. What shall be his entitlements under ACPS. Normally, it is incorrect to have a feeder grade and a promotional grade in the same scale of pay. In such cases, appropriate course of action is to review the cadre structure. If as a restructuring, feeder and promotional posts are merged to constitute one single level in the hierarchy then in such a case next financial upgradation will be in the next hierarchical grade above the merged levels and if any promotion has been allowed in the past in grades which stand merged, it will have to be ignored as already clarified in reply to point of doubt No.1 of O.M. Dated 10.02.2000. However, if for certain reasons, it is inescapable to retain both feeder and promotional grades as two distinct levels in the hierarchy though in the same scale of pay, thereby making a provision for allowing promotion to a higher post in the same grade, it is inevitable that benefit of financial upgradation under ACPS, financial upgradation has to be allowed in the same scale. This is for the reason that under the ACPS, financial upgradation has to be allowed as per the 'existing hierarchy'. Financial upgradation cannot be allowed in a scale higher than the next promotional grade. However, as specified in condition No.9 of the ACP Scheme 9videDoP&T O.M. Dated 10.02.2000, pay in such cases shall be fixed under the provisions of FR 22(l) (a)(l) subject to a minimum benefit of Rs.100. 4. The learned counsel for the petitioners has placed particular reliance upon the clarification to the effect that since the feeder and promotional grades had been retained in the same scale of pay, it was inevitable that the benefit of financial upgradation under ACPS was to be allowed only in the same scale, as the financial upgradation has to be allowed as per the existing hierarchy and financial upgradation cannot be allowed in a scale than the next promotional scale. 5. In the present case, it is not disputed that on account of cadre revision, the concerned employees were given the benefit of pre-revised scale of pay of Rs.1400-2300. A few years thereafter, such employees were promoted as Technical Assistants from the post of Lab Technicians. However, the scale of pay applicable to the Technical Assistants was the same scale, viz., 1400-2300. If the contention of the present petitioners would be accepted, it would only mean that the initial upgradation and the subsequent promotion, even though in the same scale of pay, would be construed as if there had been two promotions and normal entitlement of getting second ACPS, on completion of 24 years of service, would be deprived. In our considered opinion, this would give rise to an anomalous post and would ultimately mean whatever was given in one hand was taken away through the other hand. The interpretation which has been adopted by the Tribunal more particularly on the basis of specific clarification as per the Clarification No.35 appears to be more proper. In such view of the matter, we do not think this is a fit case where the https://hcservices.ecourts.gov.in/hcservices/ order of the Tribunal is required to be interfered with in exercise of jurisdiction under Article 226 of the Constitution. The writ petitions are accordingly dismissed. Connected M.Ps. are closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. bs/ To The Registrar, Central Administrative Tribunal, Chennai. + 1 CC To Mr.M.T.Arunan, Advocate SR NO.47216 Writ Petition Nos. 18494 to 18500 of 2008 MRD(CO) SRA(11/09/2008) https://hcservices.ecourts.gov.in/hcservices/