IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WA.No. 2633 of 2007(D) --------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.39398/2003 DATED 05/12/2006 .................... APPELLANTS/ RESPONDENTS: --------------------------------------------- 1. THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, FACT, UDYOGAMANDAL, ERNAKULAM. 2. DIRECTOR GENERAL OF CISF, CISF HEAD QUARTERS, LODHI ROAD, NEW DELHI. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.S.G. RESPONDENTS/ PETITIONERS: --------------------------------------------- 1. SAM JOSE, NO.874340321, CONSTABLE, PRESENTLY SERVING AT CISF UNIT, FACT/UDYOGAMANDAL, ERNAKULAM DISTRICT, KERALA STATE. 2. V.C.S.NAIR, NO.753460146, HC/GD, PRESENTLY SERVING AT CISF UNIT, TUTUCORIN PORT TRUST, TUTUCORIN. 3. KALYAN AIND, NO.753340116, HC/GD, PRESENTLY SERVING AT CISF UNIT, B.C.C.L., DHANBAD, (JHARKHAND) W.A. NO. 2633/2007-D: 4. P.C.KURUP, NO.723450072, HC/GD, PRESENTLY SERVING AS CISF - AIRPORT SECURITY UNIT, TRIVANDRUM AIRPORT, TRIVANDRUM, KERALA STATE. 5. K.N.RAO, NO.854503524, CONSTABLE, PRESENTLY SERVING AT CISF UNIT, KOLKATTA PORT TRUST, KOLKATTA. (WEST BENGAL). BY ADV. SRI. M. RAJAGOPALAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008 ALONG WITH W.A. NO. 2837/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.Koshy & P.N.Ravindran, JJ. =============================== W.A.Nos.2633,2676,2782,2798,2837,2843/07 & 3,61,264,288,359,392,432,484 & 1180/08 ============================== Dated this the 17th day of June, 2008. JUDGMENT Ravindran,J. These Writ Appeals arise from the common judgment dated 5.12.2006 delivered by the learned Single Judge in W.P.(C)No.39398 of 2003 and connected cases. They were therefore heard together and are being disposed of by this common judgment. 2. The respondents in the Writ Petitions are the appellants in these Writ Appeals. The dispute that arose for adjudication in the Writ Petitions relates to the eligibility of the writ petitioners for the benefit of upgradation under the Assured Career Progression Scheme, hereinafter referred to as the "ACP Scheme" for short. The ACP Scheme was introduced with effect from 9.9.1999 in the light of the recommendations of the Fifth Central Pay Commission, with a view to ameliorate the problem of stagnation and resultant hardship faced by Central Government employees due to lack of adequate avenues for promotion. 3. Ext.R1(a) produced by the appellants along with the counter affidavit filed in W.P.(C)No.39398 of 2003 from which W.A.No.2633 of 2007 arises, is a copy of the ACP Scheme. The ACP Scheme envisages placement in the higher scale of pay through financial upgradation. It is not a functional/regular promotion and does not result in the creation of new posts. WA 2633/07, etc. -: 2 :- The ACP Scheme contemplates the first financial upgradation after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial gradation subject to fulfillment of the prescribed conditions. The financial upgradation under the ACP Scheme will be available only if an employee does not get regular promotion within a period of 12 years and 24 years respectively. If within the period of 12 years of regular service, an employee gets one regular promotion, he will be eligible only for the second financial upgradation on completion of 24 years of regular service. An employee, who gets two promotions on a regular basis, will not get any benefit under the ACP Scheme. One of the conditions subject to which financial upgradation is granted under the ACP Scheme is that the employee while accepting the said benefit shall be deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy in the higher post subsequently. As per paragraph 6 of Ext.R1(a), fulfillment of the norms for promotion like passing of departmental examination is essential for getting the benefit under the ACP Scheme. 4. The writ petitioners in all these cases are employees of the Central Industrial Security Force, hereinafter referred to as the "CISF" for short. All of them were granted financial upgradation under the ACP Scheme subject to the condition that they shall undergo the Promotion Cadre Course, hereinafter referred to as the "PCC" for short, and qualify in the course, failing which the financial upgradation earlier given to them will be stopped from the date on which they express their unwillingness to be detailed for the WA 2633/07, etc. -: 3 :- PCC or failed to qualify in the same. 5. According to the Central Industrial Security Force (Subordinate) Service Recruitment Rules, 1999, which came into force with effect 4.2.2000, the writ petitioners have to pass the PCC for getting promotion to the higher posts. After the rules were introduced, the Directorate of the CISF issued a clarification to the effect that those who have not been detailed for PCC or refuse to undergo or fail to qualify in the PCC will not be entitled to the financial upgradation granted to them from the date of expression of their unwillingness or the date on which they failed to pass the PCC. It was also clarified that the pay and allowances granted to them from the date of upgradation to the date of stoppage of such benefits will be recovered from them. The writ petitioners were either unwilling to be detailed for the PCC or failed to successfully complete the PCC. For that reason, steps were taken to recover the higher pay and allowances granted to them. The Writ Petitions were thereupon filed challenging the recovery proceedings. The learned Single Judge who heard the Writ Petitions, held relying on Circular No.ESTT- 1/37/05 dated 19.10.2005 (marked as Ext.P1 in W.P.(C)No.1407 of 2006) that the writ petitioners are entitled to one more chance to complete the PCC and therefore, the benefits given to them under the ACP Scheme cannot be cancelled or the salary and allowances paid under the ACP Scheme should not be recovered, till each individual case is considered afresh in the light of the said circular. The appellants have in these appeals canvassed the correctness of the decision of the learned Single Judge. WA 2633/07, etc. -: 4 :- 6. We heard Sri. P.Parameswaran Nair, the learned Assistant Solicitor General appearing for the appellants. Ext.P1 circular dated 19.10.2005 reads as follows: "It has been experienced in the recent past that the personnel, irrespective of any rank as and when detailed for PCC, submit their unwillingness to attend the same on one pretext or the other. 02. Qualifying Promotion Cadre Course and promotion are two distinct issues and cannot be clubbed together, though both are inter related as mandated in the respective Recruitment Rules. While PCC is intended to improve professional knowledge and skills of an individual thereby ensuring growth and development of the organization, promotion is to ensure selection of suitable personnel to hold higher responsibilities and to provide avenues in career progression. Skill upgradation of the personnel depending on the felt need of the organization is an organizational requirement and therefore not falling in the realm of individual's discretion. Therefore, undergoing PCC is a duty imposed on the personnel. 03. A person will be given three chances to attend the PCC. Non-attendance of PCC on the basis of unwillingness will amount to loss of a chance. For example, if he submits Unwillingness to attend PCC for the first time, he would lose one of the three chances of attending PCC. Thereafter, he will be able to avail only two chances of attending PCC. Unwillingness, if tendered, should be unconditional which shall be examined on case to case basis and would be approved or rejected on merit by the concerned DIG. Exemption from PCC WA 2633/07, etc. -: 5 :- will be granted by the DIG concerned on the ground which are beyond the control of the personnel concerned e.g. deputation to outside India, administrative reasons, etc. 04. In case exemption as envisaged at para (3) above is granted, the personnel will not lose his chance out of the above three chances. 05. Refusal to undergo PCC will entail disciplinary action and also the individual will lose one chance of undergoing PCC. 06. All details regarding detailment on PCC and submission of unwillingness and exemption granted on the aforesaid grounds, if any, will be recorded in the service book of the individual concerned every time. This will keep an account of the number of chances an individual has availed. 07. Those personnel who have already availed three chances and could not qualify PCC as on date should be given the opportunity of availing fourth chance (in case any one is willing) as provided in CISF Circular No.39/1993 dated 23/26.11.1993, as an exceptional case. After giving this last and fourth chance as per Circular No.39/1993 dated 23/26.11.1993 there will be no further fourth chance for anybody in future and the Circular No.39/1993 will cease to exist. 08. These instructions will come into force with immediate effect." (Emphasis supplied). 7. As noticed earlier, the ACP Scheme was implemented with effect from 9.8.1999. The circular dated 19.10.2005 extracted above, clarifies that every employee will be given three chances to attend the PCC, that exemption from PCC will be granted by the DIG concerned on grounds which are beyond the control of the personnel concerned, that if a person expresses WA 2633/07, etc. -: 6 :- unwillingness to attend the PCC for the first time, he will lose one of the three chances and will be able to avail only two more chances of attending the PCC and that in case exemption is granted the personnel will not lose any of the three chances. The circular also clarifies that refusal to undergo PCC will entail disciplinary action and the individual concerned will lose one chance of undergoing the PCC. It is further clarified that those personnel who have already availed three chances and could not qualify in the PCC as on 19.10.2005 should be given the opportunity of availing a fourth chance and that there will be no further fourth chance for anybody in future and the circular will cease to be in force. The appellants contended before the learned Single Judge that the circular is only prospective in operation and has application only to persons who have to undergo the PCC in future. The learned Single Judge repelled the said contention on the ground that the circular is clarificatory in nature and it grants a fourth chance to those personnel who have failed to qualify in the PCC in three chances. In that view of the matter, the learned Single Judge directed the appellants to consider the case of the writ petitioners in the light of the circular dated 19.10.2005. The learned Single Judge also directed that if any one among the writ petitioners have passed the PCC within the permitted four chances, the benefits given to them under the ACP Scheme should not be cancelled or recovery effected. To enable the appellants to undertake that exercise, the orders challenged in the Writ Petitions were quashed reserving liberty with the appellants to pass fresh orders in the light of the circular dated WA 2633/07, etc. -: 7 :- 19.10.2005. 8. We have considered the submissions made at the Bar by the learned Assistant Solicitor General. We agree with the learned Single Judge that by virtue of the circular dated 19.10.2005 the personnel of the CISF are entitled to avail a fourth chance to qualify in the PCC. Necessarily, the appellants have to consider the matter afresh in the light of the circular dated 19.10.2005. The learned Single Judge has only directed the appellants to consider the case of the writ petitioners in the light of the said circular and not to cancel the benefits given to them or to effect recovery in case any one of them successfully completes the PCC within the permitted four chances. In other words, the writ petitioners will continue to avail the benefit of ACP Scheme, only if they clear the PCC within the permitted four chances. 9. In that view of the matter, we are of the opinion that no interference is called for with the judgment of the learned Single Judge. The Writ Appeals accordingly fail and they are dismissed reserving liberty with the appellants to consider the case of the writ petitioners in the light of the circular dated 19.10.2005 and to pass fresh orders as directed by the learned Single Judge. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 1/7 WA 2633/07, etc. -: 8 :- Dated this the 17th day of June, 2008. ORDER Ravindran, J. For the reasons stated in the affidavit, delay is condoned.