Full Judgment Text
$~1, 11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : September 06, 2013
+ W.P.(C) 5539/2013
JAIPAL SINGH AND ORS ..... Petitioners
Through: Mr.Ankur Chibber, Adv.
versus
UOI AND ORS ..... Respondents
Through: Mr.Neeraj Chaudhari, CGSC
for UOI
+ W.P.(C) 4258/2013
GAJRAJ SINGH & ORS ..... Petitioners
Through: Mr.Ankur Chibber, Adv.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Mr.Yogesh Yogi, Adv. for
Mr.Joginder Sukhija, Adv. for
R-1 to R-4
+ W.P.(C) 5059/2013
RAJ KANWAR & ORS ..... Petitioners
Through: Mr.Ankur Chibber, Adv.
versus
UNION OF INDIA & OTHERS .... Respondents
Through: Mr.Jatan Singh, CGSC and
Mr.S.Qureshi, Adv. for UOI
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE V. KAMESWAR RAO
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 1 of 15
GITA MITTAL, J. (Oral)
W.P.(C) 4258/2013
th
It is to be noted that by an error, presence of counsels on the 9
rd
July, 2013 and 3 September, 2013 has been erroneously recorded.
Mr.Ankur Chibber, Advocate represents the petitioner while
Mr.Joginder Sukhija appears for the respondents in this matter.
th rd
The presence of counsels on the 9 July, 2013 and 3
September, 2013 shall stand corrected.
W.P.(C) 5539/2013, W.P.(C) 4258/2013 & W.P.(C) 5059/2013
1. The petitioners in these cases seek quashing of Signals dated
th rd
28 May, 2013 and 3 July, 2013 whereby the respondents have
denied benefit to the petitioners under the ACP Scheme on the
ground that if they have qualified SUOCC Course after completion of
nd
24 years of service then they will be eligible for the 2 financial
upgradation under the ACP Scheme from the completion of said
promotional course and not from completion of 24 years of regular
service. The petitioners have further sought for directions to the
nd
respondents to grant 2 financial upgradation to the petitioners as
provided under the ACP Scheme on completion of 24 years of
regular service.
2. The undisputed facts in the instant case necessary for
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adjudication of the writ petitions are noticed herein after. As per the
nd
ACP Scheme in order to be eligible for grant of 2 financial
upgradation, an employee is required to have completed 24 years
regular service from the date of his appointment to a post without any
promotion in the last 12 years and he should have successfully
undertaken the pre-promotional cadre course.
3. Admittedly all the petitioners had completed their 24 years of
regular service without there being any promotion in the last 12
nd
years. However, the respondents did not grant the 2 financial
upgradation to the petitioners on the ground that under the ACP
Scheme a person was required to fulfill all the norms required for a
normal promotion and unless and until the same were fulfilled the
said financial benefits could not be given to the individual. In the
instant cases, the respondents took the plea that the petitioners had
not undertaken the pre-promotional cadre course despite completion
nd
of 24 years of service and thus, the 2 financial benefit could not be
granted to them. It is worth while mentioning that the said pre-
promotional cadre course could not be undertaken by the petitioners
for no fault of theirs but for the reason that the respondents for their
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 3 of 15
own fault did not detail the petitioners to undergo the said pre-
promotional courses.
4. The petitioners aggrieved by the illegal acts of the respondents
made various representations to the respondents. The respondents
after considering the above representations of the aggrieved persons
th
and after analyzing the said issue, passed an order dated 6 March,
2012 issued by the office of Directorate General, CRPF which reads
as under:
“Sub: Grant of Financial Benefits under ACP/MACP Scheme-
Clarification.
A case was referred to the MHA seeking clarification in connection
with grant of financial up-gradation under MACP scheme to the
Constables and fixation of pay thereupon. The issue was examined in
MHA, DoPT and Department of Expenditure (MoF). After due
examination the Ministries have clarified the position as under:
A) The case of Cts who have qualified promotional course (i.e.
st
SCC) and allowed 1 ACP benefit from the next date of termination
of SCC qualified by them may be reviewed and they may now be
granted financial up-gradation under ACP and MACP schemes as
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under:
Sl. No. Categories of CTs Modalities for Grant of
Financial up-gradation
benefits under
ACP/MACP Schemes
1) CTs who qualified
Since these CTs were
promotional course
detailed on promotional
within maximum
course after completion
permissible three
of more than 12 years of
chances.
service, they may be
st
allowed 1 financial up-
gradation under ACP
Scheme (of August 1999)
from the date of
completion of 12 years of
service subject to
fulfillment of other
eligibility conditions, as
there is no fault on their
part for late detailment
on promotional course.
Financial up-gradation
under MACP will be
admissible to such CTs
wherever they complete
20/30 years of
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 5 of 15
continuous regular
service or spent 10 years
continuously in the same
Grade Pay whichever is
earlier.”
5. That pursuant to the said clarification issued by the Directorate
General office in consultation with Ministry of Home Affairs, the
nd
respondents passed an order dated 1.2.2003 whereby the 2 financial
up-gradation was granted to petitioners from the date they had
completed 24 years regular service from the date of their
appointment. Pursuant to the said order, the respondents had also
nd
issued an order dated 2 May, 2013 showing the actual fixation of
nd
pay to the petitioners after grant of 2 financial up-gradations.
6. Despite having issued the above orders after issuance of
clarification by the Directorate General office as well as the Ministry
of Home Affairs, the respondents issued the impugned Signals dated
th rd
28 May, 2013 and 3 July, 2013 whereby it was informed that a
Head Constable/GD who qualify SUOCC Course before completion
of 24 years regular service will be eligible for financial up-gradation
from the date of completion of 24 years regular service. However, if
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 6 of 15
he has qualified SUOCC after completion of 24 years regular service,
then he is eligible for the financial up-gradation from the date of said
promotional course viz-a-viz other conditions.
7. Learned counsel has also emphasized that pursuant to the order
th nd
dated 6 March, 2012, the respondents had granted the said 2
st
financial upgradation to the petitioners vide its order dated 1
nd
February, 2013 and also fixed their pay as per order dated 2 May,
2013. Having given the said benefit, the respondents cannot
withdraw the said benefit without issuing a show cause notice or
giving an opportunity to the petitioners to be heard.
8. In the above background, the learned counsel for the
petitioners has argued that the impugned signals issued by the
th
respondents is in direct contradiction to the letter dated 6 March,
2012 issued by the Directorate General office in consultation with
Ministry of Home Affairs wherein it has categorically been decided
that since these Constables (Cts) were detailed on promotional course
after completion of more than 12 years of service, they may be
st
allowed 1 financial up-gradation under ACP Scheme (of August
1999) from the date of completion of 12 years of service subject to
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fulfillment of other eligibility conditions, as there is no fault on their
part for late detailment on promotional course. Learned counsel for
the petitioners had argued that once the respondents have taken the
st
said decision for grant of 1 financial up-gradation, there can be no
nd
different yardsticks for grant of 2 financial upgradation.
9. It is also submitted that the respondents cannot be allowed to
take benefit of their own wrong. He has submitted that the reason for
non-completion of pre-promotional cadre course of the petitioners
before completion of 24 years service is due to the reason that the
respondents had not detailed the petitioners for the said course.
Having not done so, the respondents cannot be allowed to withhold a
benefit which the petitioners were otherwise entitled to on
completion of 24 years of service only on the ground that they had
not completed the pre-promotional cadre course.
10. In support of his contention the learned counsel for the
petitioners has placed reliance on the pronouncement of this Court
th
order dated 15 February, 2011 reported in WP(C) No.6937/2010
Hargovind Singh V. Central Industrial Security Force . The
petitioner in this case also was seeking restoration of his second
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 8 of 15
rd
financial up-gradation under the ACP Scheme with effect from 3
rd
November, 1999 and further grant of 3 financial up-gradation with
st
effect from 1 September, 2008. It is noteworthy that the petitioner
rd
was granted the second up-gradation under the ACP scheme on 3
November, 1999 but the same was withdrawn without notice to the
petitioner resulting in the claim in the writ petition. The stand of the
respondents has been noted in Para Nos. 5 and 6 of the judgment
which was to the following effect:
„5. The undisputed position is that the petitioner was
nd
granted the benefit of the 2 up-gradation under the
ACP scheme with effect from 3.11.1999 but the same
was withdrawn without notice to the petitioner; and thus,
the claim in the writ petition.
nd
6. As per the counter affidavit filed, the 2 ACP
upgradation benefit was granted to the petitioner on
3.11.1999 in ignorance of the fact that the Mandatory
Promotion Course was not successfully undertaken by
the petitioner and when this was realized, petitioner was
required to attend the Promotion Course commencing on
15.11.2009 for which he expressed his willingness to
attend the course on 29.10.2004.‟
11. This very contention is urged before us just as in the present
case the petitioner Hargovind Singh also did not get an opportunity
to undergo the PCC course on the date he became eligible for grant
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 9 of 15
of further financial up-gradation which was withdrawn. On this
aspect in Hargovind Singh (supra) the Court has ruled on the
respondents‟ contention urged before us as well, and commented
upon the responsibility of the department to detail the person for
undertaking the promotional course. In this regard observations made
in Para 8 to 14 of the judgment are being relied upon which reads as
under:
“8. Learned counsel for the respondents would urge
that the issue at hand is squarely covered against the
petitioner as per the judgement and order dated
30.9.2010 disposing of WP(C) No.8631/2009 Bhagwan
Singh Vs. UOI & Ors.
9. A perusal of the decision in Bhagwan Singh‟s
case (supra) would reveal that the petitioner therein was
working as a Head Constable and was denied the second
up-gradation under the ACP scheme on account of the
fact he had consciously refused to undergo the
mandatory promotional courses which would have made
him eligible to be promoted as an Assistant Sub-
Inspector and, in writing, had given that he foregoes the
right to be promoted.
10. The Division Bench noted paragraph 10 of the
ACP Scheme which reads as under:
10. Grant of higher pay scale under the ACP scheme
shall be conditional to the fact that an employee, while
accepting the said benefit, shall be deemed to have
given his unqualified acceptance for regular promotion
on occurrence of vacancy subsequently. In regular
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 10 of 15
promotion subsequently, he shall be subject to normal
debarment for regular promotion as prescribed in the
general instructions in this regard. However, as and
when he accepts regular promotion thereafter, he shall
become eligible for the second up-gradation under the
ACP scheme only after he completes the required
eligibility service/period under the ACP scheme in that
higher grade subject to the condition that the period for
which he was debarred for regular promotion shall not
count for the purpose. For example, if a person has got
one financial up-gradation after rendering 12 years of
regular service and after 2 years therefrom if he refused
regular promotion and is consequently debarred for one
year and subsequently he is promoted to the higher grade
on regular basis after completion of 15 years (12+12+1)
of regular service, he shall be eligible for consideration
for the second up-gradation under the ACP scheme only
after rendering ten more years in addition to two years of
service already rendered by him after the first financial
up-gradation (2+10) in that higher grade i.e. after 25
years (12+2+1+10) of regular service because the
debarment period of one year cannot be taken into
account towards the required 12 years of regular service
in that higher grade.
11. In the instant case, facts noted hereinabove, would
show that the respondents offered to detail the petitioner
for the mandatory PCC course to be held with effect
from 15.11.2004. We shall deal with the effect of the
petitioner not joining the said course, but relevant would
it be to note that the petitioner‟s entitlement to the to the
ACP benefit accrued with effect from the month of
November 1999 and it is not the case of the respondents
that till they offered petitioner the chance to clear the
PCC course commencing with effect from 15.11.2004,
any earlier opportunity was granted to the petitioner to
attend the course.
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 11 of 15
12. It is an admitted position that the department has
to detail persons for undertaking the promotion cadre
course and attending said courses is not at the option of
the officers concerned.
13. If that be so, the respondents cannot take
advantage of not discharging their obligation which
precedes the obligation of the incumbent to clear the
promotion cadre course. The prior obligation of the
department is to detail the person concerned to
undertake the promotion cadre course.
14. As regards petitioner‟s willingness to undergo the
promotion cadre course commencing from 15.11.2004, it
may be noted that the use of the word „unwilling‟ would
be a misnomer. What has happened is that prior to the
petitioner being intimated that he would be detailed to
undertake the promotion cadre course commencing with
effect from 15.11.2004, on account of the extreme ill
medical condition of the wife of the petitioner he had
sought for and was granted leave to proceed to his native
village.”
12. Before us, it is an admitted position that the petitioners became
eligible for the financial upgradation on completion of 24 years of
th
regular service and pursuant to the clarification dated 6 March,
2012, the said benefit was indeed granted to the petitioners vide order
st nd
dated 1 February, 2013 and 2 May, 2013. So far as they being
given opportunity for completing the SUOCC course is concerned,
they have been detailed for the said course after completion of 24
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 12 of 15
years of regular service and all of them have successfully completed
the same.
13. Undoubtedly for the reasons recorded in Hargovind Singh
(supra), the petitioner could not be deprived of the financial up-
gradation for this period. It is apparent from the working of the ACP
scheme by the respondents that a person is entitled to the financial
benefit on the date he completes the required twelve years of service
without a promotional opportunity. The respondents have so worked
the scheme in Hargovind Singh (supra) as well as the present case.
The completion of the promotional cadre course is akin to completion
of the requisite training upon appointment/promotion. It does not
change the date of the appointment or the date of his promotion.
14. The observations of the Division Bench in Hargovind Singh
(supra) are in consonance with the facts of the present case. After
May 2003, the present petitioner was detailed for undertaking PCC
only in July 2004. It is an admitted position that the petitioner
accepted this offer and has successfully undertaken the PCC which
th st
was conducted between 5 July, 2004 to 21 August, 2004. In this
background, the petitioner cannot be denied of his rightful dues till
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 13 of 15
date.
15. The respondents hold a person entitled for undergoing SUOCC
course for several years when the employee is not offered an
opportunity to undergo the said course even though he may be
willing and able to do so. Having not allowed them to undergo the
said course the respondents cannot be allowed to take away the
benefit of second financial up gradation to the petitioner under the
ACP scheme.
16. Admittedly it is the responsibility of the respondents to detail
the individual for the pre promotional cadre course. Having not done
so the respondents cannot be allowed to with hold the benefits
entitled to an individual for their own faults.
17. The said issue has also been adjudicated by various
pronouncements of this Court which are as follows- R.S Rathore Vs
UOI and others being W.P.(C)1506/2012, Tulsi Das Vs UOI and
others being W.P.(C) 1881/2012 and others.
18. In view of the forgoing, we direct as follows:-
th
(i) a writ of certiorari is issued quashing signals dated 28 May,
rd
2013 and 3 July, 2013
W P (C) 5539/13, WP(C) 4258/13 & WP(C) 5059/13 14 of 15
nd
(ii) the respondents are directed to grant the 2 financial
upgradation to the petitioners from the date they had completed 24
years of regular service
(iii) the respondents are directed to fix the pay of the petitioners
and pension of the petitioners who may have retired pursuant to the
nd
grant of 2 financial upgradation within a period of six weeks from
today. The order passed by the respondents shall be communicated
to the petitioners. The arrears in terms of this order shall be released
to the petitioners within a period of four weeks thereafter.
19. These writ petitions are allowed in the above terms.
GITA MITTAL, J
V. KAMESWAR RAO, J
SEPTEMBER 06, 2013
mm
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