IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 30808 of 2004(P) -------------------------- PETITIONER(S): --------------- C.PUSUSHOTHAMAN, (RETIRED HC/GD NO.752130017 CISF) ANANDA BHAVAN, CHATHOSH HOUSE P.O.MUNDUR, KANNUR DISTRICT, KERALA. BY ADV. SRI.M.RAJAGOPALAN SRI.RAJIT RESPONDENT(S): --------------- 1. DIRECTOR GENERAL OF CISF CISF HEAD QUARTERS, LODHI ROAD, NEW DELHI-3. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. THE COMMANDANT, CISF UNIT, CIAL, KOCHI. ADV. SRI.V.E.ABDUL GAFOOR, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 30808/2004 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE A.C.P. SCHEME DETAILS. P2. COPY OF THE ORDER DTD.3.7.2002. P3. COPY OF THE ORDER DTD.3.9.2003. P4. COPY OF THE ORDER DTD.19.12.2003. P5. COPY OF THE PETITION DTD.23.3.2004. P6. COPY OF THE LETTER DTD.31.5.2004. P7. COPY OF THE ORDER PASSED IN JUNE 2003. RESPONDENT(S)' EXHIBITS: R3A. COPY OF THE GAZETTE NOTIFICATION DTD.25.1.2000. B. COPY OF THE CIRCULAR DTD.23.09.2005. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.30808 of 2004 ================== Dated this the 2nd day of November, 2010 J U D G M E N T The petitioner was a Head Constable in the Central Industrial Security Force. He availed of voluntary retirement on 1.6.2003. After retirement, by Ext.P3 order, retirement benefits were granted to him. In Ext.P3, the amount of retiring/superannuation pension sanctioned to the petitioner was Rs.2400/-. Other amounts viz., DCRG, commuted value of pension etc. were also fixed on that basis. Subsequently, by Ext.P4, the petitioner's retiring/superannuation pension was reduced to Rs.2297/-. Other retirement benefits were also correspondingly reduced. Against the said reduction, the petitioner filed Ext.P5 representation, which was rejected by Ext.P6 order, holding that the reduction was necessitated because he had availed of the benefits of Assured Career Progression (A.C.P) scheme, whereby, the persons stagnating in a post are entitled to salary as applicable to the next promotion post, without satisfying the conditions for eligibility for the said benefits. In accordance with that scheme, persons who could not get normal promotion during a stipulated period would be entitled to the scale of pay applicable to the next promotion post, provided, they have the qualifications prescribed for that promotion post. The petitioner's next promotion post was that of Assistant Sub Inspector. w.p.c.30808/04 2 For promotion to that post, successful completion of the Promotion Cadre Course (PCC) was mandatory. Although the petitioner was detailed for attending the Promotion Cadre Course, he did not successfully complete the course and therefore, he was held not entitled to the benefits of the A.C.P. Scheme. Consequently, his pay was reduced and consequently, his pension, is the decision in Ext.P6. The petitioner is challenging Exts.P4 and P6 seeking the following reliefs; “(a) Call for the records leading upto Ext.P7 and quash Ext.P6 and P4 orders by a writ of certiorari or any other writ direction or order. (b) Direct the respondents to grant all retirement benefits already sanctioned as per Ext.P3. (c) Declare that the withdrawal of A.C.P. benefits already granted to the petitioner is illegal.” 2. The contention of the petitioner is that it is not because of any fault of the petitioner that he could not complete the Promotion Cadre Course. He was detailed only once for undergoing the course and he attended the course, but finding that he is not medically fit to undergo the Promotion Cadre Course, he was removed from the course. The petitioner further submits that all persons were granted four chances for successfully completing the Promotion Cadre Course. Before the petitioner could avail of four chances, he had retired on 1.6.2003 and, therefore, the A.C.P. benefits already granted to the w.p.c.30808/04 3 petitioner cannot be withdrawn on the ground that he has not successfully completed the Promotion Cadre Course and also the pension reduced based on the same, is the petitioner's contention. 3. A counter affidavit has been filed by the respondents taking the stand that, for becoming eligible for the benefits of the A.C.P. Scheme, an employee should have all the qualifications prescribed for the promotion post, the scale of pay of which is given as A.C.P. benefit. They would submit that as per Ext.R3(a) Rules, for Head Constables, for promotion as Assistant Sub Inspector, the qualifications prescribed are as follows; (ii) Promotion: From amongst the Head Constable (General Duty) and Head Constable (Driver) who have completed 5 years regular service in the rank being in medical category SHAPE-I and have successfully completed promotion cadre course of Asstt. Sub Inspector (Executive) prescribed by Central Govt. from time to time. NOTE-1- Selection will be made on the basis of service records. NOTE-2- Vacancies shall be filled up from among Head Constable (General Duty) and Head Constable (Driver) in the ratio of 5:1 in the absence of suitable Head Constable(Driver) all vacancies shall be filled up from amongst Head Constable (GD). NOTE-3 Personnel who have completed the qualifying service and have been selected on the basis of service record should successfully complete promotion cadre course of Asstt. Sub Inspector (Executive) before being declared fit for Promotion.” Since successful completion of the Promotion Cadre Course is a condition for promotion of Assistant Sub Inspector, that condition is applicable for becoming eligible for the benefits of A.C.P. Scheme also. w.p.c.30808/04 4 According to the respondents, the petitioner was detailed three times on 1.7.2002, 6.1.2003 and 12.5.2003 for undergoing the Promotion Cadre Course, which the petitioner has not undergone, and before undergoing the course, the petitioner opted for voluntary retirement. Therefore, the petitioner is not entitled to the benefits of the A.C.P. Scheme. Consequently, on retirement, his A.C.P. promotion had to be cancelled and resultantly, on reduction of pay, his retirement benefits also had to be reduced accordingly, is the contention raised. 4. I have considered the rival contentions in detail. 5. It has been established that for becoming eligible for the benefits of the A.C.P. Scheme, an employee should have had all qualifications prescribed for the regular promotion to the post, the scale of pay of which is granted under the A.C.P. Scheme, to persons who did not get a chance to get regular promotion. As is clear from Ext.R3(a), for promotion to the post of Assistant Sub Inspector, successful completion of Promotion Cadre Course is a condition. Therefore, automatically that condition should apply to the A.C.P. promotion also. Admittedly, the petitioner has not successfully completed the Promotion Cadre Course. As such, the petitioner is not entitled to A.C.P. Promotion for want of successful competition of Promotion Cadre Course. w.p.c.30808/04 5 6. The next question that arises for consideration is, whether, if non-completion of the Promotion Cadre Course is not because of any fault of the petitioner, the petitioner can be denied the A.C.P. promotion. I am of opinion that for A.C.P. promotion, all conditions for regular promotion are to be satisfied, which includes successful completion of Promotion Cadre Course. It is immaterial as to whether because of whose fault the petitioner could not successfully complete the Promotion Cadre Course. The respondents would further contend that for successful completion of the Promotion Cadre Course, the petitioner should be in SHAPE I Medical category, which medical category is fixed depending on various physical and mental conditions of the persons aspiring for promotion. The petitioner was never in SHAPE I medical condition, is the contention raised by the respondents. Whatever that be, it is an admitted fact that the petitioner has not successfully completed the Promotion Cadre Course, which is a condition precedent for becoming eligible for the benefits of A.C.P. Scheme. Therefore, I do not find any infirmity in the action of the respondents in cancelling the A.C.P. Scheme promotion given to the petitioner on the ground that the petitioner had not successfully completed the Promotion Cadre Course. Consequently, the A.C.P. promotion granted to the petitioner is liable to be cancelled and the w.p.c.30808/04 6 pay of the petitioner has to be reduced as also, retirement benefits correspondingly. As such, there is nothing wrong in Exts.P4 and P6 orders. However, in Ext.P6 it is stated that on refixation, the recovery of excess pay paid to the petitioner has been made. If that is correct, I am of opinion that the pay already given to the petitioner cannot be recovered. To that extent, the petitioner is entitled to relief. Therefore, while upholding Exts.P4 and P6, I direct the respondents not to recover the excess pay granted to the petitioner on account of A.C.P. promotion, which has been cancelled. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge