Delhi High CourtRamesh Rai vs Ministry Of Home Affairs & Anr on 13 December, 2018Equivalent citations: AIRONLINE 2018 DEL 2890Author:Sanjeev NarulaBench:S.Muralidhar,Sanjeev Narula$~5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                   W.P.(C) 648/2017
RAMESH RAI                                                     ..... Petitioner
                           Through:      Mr. Naushad Alam, Advocate with
                                         Mr. Jitendra Bharti, Advocate.

                           versus

MINISTRY OF HOME AFFAIRS & ANR               ..... Respondents
                  Through: Mr. Rajesh Kumar Gogna, CGSC
                           with Mr. Akhilesh Kumar, Mr. Perala
                           Upendra Sai and Ms. Liu Gangambi,
                           Advocates.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE SANJEEV NARULA

                    ORDER%                   13.12.2018

SANJEEV NARULA, J1. By way of the present petition underArticle 226of the Constitution of
India, Petitioner seeks directions for re-fixation of first financial upgradation
granted under the ACP Scheme dated 9th August, 1999 and consequential
benefits arising therefrom.Factual Background2. The Petitioner was appointed as Constable/Radio Operator (CT/RO) with
Border Security Force (BSF) on 5th September, 1980.W.P.(C) 648/2017                                                      Page 1 of 123. After successful completion of BRT and trade course, Petitioner was
promoted to the rank of Naik/Radio Operator (NK/RO) on 16th August,
1982. Later, on 1st September, 1984, after qualifying Limited Departmental
Competitive Examination (LDCE), he was appointed to the rank of Head
Constable/Radio Mechanic (HC/RM). On 19th December, 1999, the
Petitioner was promoted to the rank of Assistant Sub Inspector/Radio
Mechanic (ASI/RM).Financial Upgradation4. The Petitioner's appointment as Constable/RO was at the pay scale of Rs.
210/-. After successful completion of BRT and trade course, and on being
appointed to the rank of NK/RO, he was getting a pay scale of Rs. 225-5-
260-6-290-EB-6-308 + Special Pay Rs. 40/-. On becoming HC/RM
Petitioner was getting pay scale of Rs. 330-8-370-10-400-EB-10-480. His
pay scale was re-fixed to the pay scale of Rs. 1200-30-1440-EB-30-1800
w.e.f. 1st January, 1986. The rank of HC/RM was merged with the rank of
ASI/RM w.e.f. 22nd January, 1998 in the pay scale of 4000-100-6000.5. Government introduced Assured Career Progression Scheme (ACP
Scheme) on 9th August 1999 effective w.e.f. 01.01.1996. As a consequence
(on successful completion of promotional cadre course), Petitioner was
granted first financial upgradation on 3rd February, 2007 in the pay scale of
5500-175-9000 and his pay was fixed at Rs. 5850/- with DNI 01-04-2008,


Controversy in the present case6. Though the Petitioner had sought several reliefs in the writ petition,W.P.(C) 648/2017                                                  Page 2 of 12however, during the course of the arguments, learned counsel appearing on
behalf of the Petitioner on instructions stated that he would like to confine
the present petition to seek the relief of re-fixation of the effective date for
grant of first financial upgradation under the ACP Scheme and
consequential orders . According       to him the benefit has been granted
belatedly and should have been instead allowed from the date of
introduction of the ACP Scheme .Analysis7. The Court has heard the learned counsels appearing on behalf of the
parties. The scope of the present petition having been narrowed down as
noted above, the submissions of the parties were heard only on this precise
issue.8. Learned counsel for the Petitioner argued that the subject matter of the
present petition is covered by several decisions of this Court and strongly
relied upon the order dated 6th September, 2013 passed by this court in
W.P. (C) No. 5539/2013 titled asJaipal Singh v. UOI. He also fairly stated
that in order to be eligible for grant of first financial upgradation under the
ACP Scheme, the Petitioner has to fulfil the eligibility conditions that
includes undergoing the promotion cadre course (PCC). He admitted that the
Petitioner had successfully completed the requisite promotional cadre course
in the year 2007. He however asserted that notwithstanding the fact that
Petitioner had undergone the promotional cadre course in the year 2007, he
would be entitled to first financial upgradation, w.e.f 1st August, 1999, the
date of introduction of the ACP Scheme. He submitted that since theW.P.(C) 648/2017                                                     Page 3 of 12Petitioner had completed 12 years of regular service without any promotion
on the date of introduction of ACP scheme, he was fulfilling the eligibility
conditions for grant of the first financial upgradation, the Respondents ought
to have granted the financial upgradation from the aforesaid date.9. Elaborating this contention, learned counsel for the Petitioner referred to
para 15 of the Annexure I to the ACP Scheme that provides as under:-"15.Subject to Condition No. 4 above, in cases where the
            employees have already completed 24 years of regular
            service, with or without a promotion, the second financial
            up gradation under the scheme shall be granted directly.
            Further, in order to rationalise unequal level of stagnation,
            benefit of surplus regular service (not taken into account for
            the first up gradation under the scheme) shall be given at the
            subsequent stage (second) of financial up gradation under
            the ACP Scheme as a one time measure. In other words, in
            respect of employees who have already rendered more than
            12 years but less than 24 years of regular service, while the
            first financial upgradation shall be granted immediately, the
            surplus regular service beyond the first 12 years shall also
            be counted towards the next 12 years of regular service
            required for grant of the second financial upgradation and,
            consequently, they shall be considered for the second
            financial upgradation also as and when they complete 24
            years of regular service without waiting for completion of
            12 more years of regular service after the first financial
            upgradation already granted under the Scheme".10. The learned counsel for the Petitioner also referred to the clarification
order dated 6th March, 2012 issued by the Office of Directorate General,
CRPF which reads as under:-W.P.(C) 648/2017                                                     Page 4 of 12"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. SCO) and allowed E' AGP 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 AGP
            and MACP schemes as under:-S.No. Categories of CTs             Modalities for Grant of
                                          Financial up-gradation
                                          benefits under
                                          ACP/MACP Schemes1)       CTs      who     qualified Since these CTs were
               promotional         course detailed on promotional
               within          maximum course after completion of
               permissible three chances   more than 12 years of
                                           service,     they        may     be
                                           allowed       1st        financial
                                           upgradation under ACP
                                           Scheme (of August 1999)
                                           from       the       date         of
                                           completion of 12 years of
                                           service          subject          to
                                           fulfilment          of      otherW.P.(C) 648/2017                                                          Page 5 of 12eligibility 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 continuous
                                           regular service or spent 10
                                           years continuously in the
                                           same Grade Pay whichever
                                           is earlier."11. Relying on the aforestated clarification, learned counsel for the
Petitioner urged that Constables who were detailed for promotional cadre
course after completion of 12 years are entitled to first financial upgradation
under the ACP Scheme from the date of completion of 12 years of service,
subject to fulfilment of other eligibility conditions. He emphasised that
attending the course is not at the option of the officers and therefore they
cannot be at disadvantage on account of the delay on the part of the
Respondents for detailing them for the course.12. As per the Service Rules, Constables are given three chances for
qualifying the promotional cadre course. It is pertinent to note that the
Petitioner was detailed for URM Grade II, the promotional course in theW.P.(C) 648/2017                                                        Page 6 of 12year 1988, but he could not clear the exam. He was again detailed for URM
Gde-II in the year 1996, but at that stage, he submitted his unwillingness.According to the Respondents since the Petitioner failed to qualify the exam
and later declined to undergo the course, he alone is responsible for not
having acquired the necessary eligibility condition in time and therefore they
are justified in granting him the benefit w.e.f. 3rd February, 2007.13. The stand of the Respondent does not appear to be correct. It is not in
dispute that the Petitioner is entitled to three chances for undertaking the
promotion cadre course. No doubt, Petitioner had failed in his first attempt
in the year 1988 and thereafter had expressed his unwillingness, when he
was detailed for the second time in the year 1996, however, that would itself
not disentitle him for the benefit under the scheme. Both the attempts were
made, prior to the introduction of the ACP Scheme on 1st September, 1999.
Therefore, even if the Petitioner did not qualify in the first two attempts ,it
would be of no consequence. He was entitled to a third chance and this
option concededly was not offered to him until the year 2007.14. It is also an admitted position that the candidates do not have any say in
the matter for being detailed for the promotional course. It is for the
Respondent's administration, to take a decision regarding the detailment of
candidates for the promotional course. The Respondents cannot take
advantage of not discharging their obligation, which precedes the obligation
of the employee to clear the promotional cadre course. The chance of
clearing the promotional course was given to the Petitioner in the year 2007.
The question therefore arises as to what should be the effective date forW.P.(C) 648/2017                                                       Page 7 of 12grant of first financial upgradation?15. The ACP Scheme has been introduced for granting financial benefits, to
such persons who complete the requisite number of years of service (12/24.)
without any promotional opportunity. It is the responsibility of the
Respondent to detail the individuals for promotional cadre course. After the
introduction of ACP Scheme, employees without a regular promotion are
entitled to financial benefits of next higher grade in accordance with the
existing hierarchy of posts in a cadre.      It was thus incumbent for the
Respondents to offer a chance to complete the promotional course.
Petitioner was not detailed for promotional cadre course after the
introduction of the Scheme untill 2007. Therefore, we are of the opinion that
the Petitioner is justified in claiming that first financial upgradation should
be have granted w.e.f 1st September, 1999, instead of 3rd February, 2007.16. We also note that a similar question had arisen for consideration before
this Court in W.P.(C) No. 1506/2012 titledR.S. Rathore v. UoI and Ors.and W.P.(c) No.6973/2010 titled Hargovind Singh v. CISF relevant
paragraph of the same has been reproduced as under:"This very contention is urged before us. Just as the present
           case in hand, the petitioner Hargovind Singh also did not
           get the opportunity to undergo the PCC course on the date
           he became eligible for grant of further financial upgradation
           which was withdrawn. On this aspect, in Hargovind Singh‟s
           case (supra) the court has ruled on the respondents
           contention urged before us as well, commented on the
           responsibility of the department to detail the person forW.P.(C) 648/2017                                                    Page 8 of 12undertaking the promotional course. In this regard,
           observations made in para 8 to 14 of the judgment are being
           relied upon which reads thus :"8 Learned counsel for the respondent would urge that
               the issue at hand is squarely covered against the
               petitioner as per the judgment and order dated 30.9.2010
               disposing ofW.P.(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
               upgradation 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
                     promotion subsequently, he shall be subject to
                     normal debarment for regular promotion as
                     prescribe din the general instructions in this
                     regard. However, as and when he accepts
                     regular promotion thereafter, he shall become
                     eligible for the second upgradation 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 hasW.P.(C) 648/2017                                                         Page 9 of 12got one financial upgradation 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
                      upgradation 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 upgradation (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 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.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 cadreW.P.(C) 648/2017                                                          Page 10 of 12course."14. As regards petitioner‟s unwillingness 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."13. Before us, it is an admitted position that the petitioner
           became eligible for grant of financial upgradation on 20th
           June, 2000which was actually granted to him. So far his
           being given an opportunity to undergo the PCC is
           concerned, he was detailed for the first time to undergo the
           course which commenced on 5th May, 2003.14. Undoubtedly for the reasons recorded inHargobind
            Singh's case (supra), the petitioner could not be deprived of
            the financial upgradation 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's case 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."17. In view of the foregoing discussion and the judgments of this court, we
see no legal impediment to grant the petitioner the relief prayed for.
Accordingly we direct as follows:-W.P.(C) 648/2017                                                       Page 11 of 12(i). A writ of certiorari is issued quashing signals/reply dated
       06.01.2015 and 26.10.2016.(ii) The respondents are directed to grant first financial upgradation to
       the Petitioner w.e.f. 1st September, 1999 and re-fix the pay.(iii) As a result of the above Respondnerts shall also consider and
       grant second financial upgradation under the ACP and the third
       financial upgradation under the MACP after 24 years and 30 years of
       service respectively.(iv) The respondents while granting the 2nd financial upgradation
       under the ACP scheme shall also take into consideration the surplus
       service of 4 years and 11 months.18. The Respondents shall pass the necessary consequential orders to give
effect to the aforesaid directions within a period of eight weeks. The order
passed thereon should be conveyed to the Petitioner. The amounts due and
payable in the above terms shall be released to the Petitioner within a period
of four weeks thereafter. The above writ petition is allowed in the above
terms with no order as to costs.SANJEEV NARULA, J



                                                        S.MURALIDHAR, J

DECEMBER 13, 2018
ssW.P.(C) 648/2017                                                       Page 12 of 12