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Date of Decision: 31st July, 2013 R.A.S. YADAV ..... Petitioner
Through : Mr. Subhasish Mohanty, Adv.
Through : Mr. Saqib, Adv.
HON'BLE MS. JUSTICE DEEPA SHARMA GITA MITTAL, J. (Oral)
JUDGMENT
1. The petitioner seeks in this case restoration of the first financial upgradation as per the Assured Career Progression Scheme (herein after referred to as “ACP”) w.e.f. 25th April 2004 when he completed 12 years of service with Central Industry Security Force (herein after referred as “CISF”) and became entitled for grant of second financial upgradation as per MACP Scheme w.e.f. 25th April 2012.
2. The undisputed facts in the instant case giving rise to the writ petition are enumerated that as per the ACP scheme other than completion of 12 years of continuous service in the post of Constable, an employee of the CISF is required to have completed 12 years from the date of appointment to a post without any promotional financial benefit being made available to him and he should have also 2013:DHC:3796-DB successfully undertaken the Promotion Cadre Course (herein after referred to as “PCC”).
3. The petitioner has stated that an employee is granted three chances for successful completion of promotion cadre course as per the applicable ACP Scheme which has been placed before us. This is uncontroverted.
4. Learned counsel for the petitioner submitted that the petitioner had completed 12 years of service on 25th April, 2004 and was offered an opportunity to undergo PCC pursuant to an offer made only in June, 2004, which the petitioner could not avail by submitting the unwillingness to the respondents. Although the petitioner was again detailed for the promotion cadre course from 16th August, 2004 to 2nd October, 2004, he unfortunately failed in the same, but qualified in the supplementary PCC conducted from 23rd March 2005 to 30th March 2005.
5. It is also an admitted fact before us that the petitioner was granted financial upgradation by the respondents w.e.f. 25th April
2004. The record placed before us shows that the petitioner successfully qualified the promotional cadre course and the result of the same was informed on 3rd June, 2005 by the respondent.
6. It appears that prior thereto the respondents have issued an order dated 4th May, 2005 whereby the ACP benefit granted to the petitioner w.e.f. 25th April, 2004 was cancelled due to his submission of unwillingness to undergo PCC commencing from 7th June, 2004 to 24th July, 2004 and his failure in the promotion cadre course which was held w.e.f. 16th August, 2004 to 2nd October, 2004 which he has undertaken as his second chance. As a result, the respondents proceeded to recover the amount paid to the petitioner towards his financial upgradation from 25th April, 2004. The petitioner‟s representations to respondents were of no avail. The respondent however, proceeded to re-grant the ACP upgradation to the petitioner by order passed on 9th September 2005 which was made effective only from 6th September, 2005. The petitioner was thus denied the benefit of the financial upgradation w.e.f. 25th April 2004 to 5th September, 2005.
7. Learned counsel for the petitioner has submitted that the respondents have done grave injustice to the petitioner inasmuch as the ACP upgradation could not have been withdrawn. It is further contended that a person becomes eligible for consideration for grant of the ACP upon completing the requisite number of years of service which the petitioner had already completed on 25th April, 2004. The manner in which the respondents worked the ACP Scheme is that the effective date for consideration of the person for entitlement of the grant of financial upgradation is the date on which he acquires the requisite number of years of service in a post without any promotional opportunities being made available to him. It is urged that the completion of the actual PCC would have no effect on the effective date of grant of financial benefits inasmuch as all employees undergo the PCC only after having become eligible for grant of ACP Scheme. It is urged that the same is apparent from the fact that the respondents granted the ACP upgradation to the petitioner w.e.f. 25th April 2004 when he completed 12 years of continuous service in the rank of Constable without any opportunity for promotion to the next post of Head Constable being made available to him till June 2004. It is submitted that as per the Scheme of the respondents, every employee is given three opportunities to complete PCC. As such, the inability to successfully complete the PCC in the first or second attempt would render the petitioner eligible for a third opportunity.
8. So far as withdrawal of financial upgradation benefits, learned counsel for the respondents has placed reliance on para 4 of the Circular dated 7th November, 2003 which is to the effect that a considered decision was taken to effect the recovery of pay and allowances pertaining to the period from the date of upgradation of scale under ACP Scheme to the date of stoppage of such financial upgradation. Learned counsel for the petitioner has also drawn our attention to the Circular dated 7th November, 2003 wherein, it is pointed out that the respondents have themselves drawn a distinction between “stoppage” of the financial upgradation and “withdrawal” of the amount given as the benefit thereunder.
9. In support of his contention, learned counsel for the petitioner has placed reliance on the pronouncement of this court dated 15th February, 2011 reported in W.P.(C)6937/2010 Hargovind Singh v. Central Industrial Security Force. The petitioner in this case was seeking restoration of his second financial upgradation under the ACP Scheme with effect from 3rd November, 1999 and further grant of 3rd financial upgradation with effect from 1st September, 2008. It is noteworthy that the petitioner was granted the second upgradation under the ACP scheme on 3rd 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.
10. 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 for undertaking 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 of W.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:-
11. Before us, it is an admitted position that the petitioner became eligible for grant of financial upgradation on 25th April 2004 which 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 June, 2004.
12. Undoubtedly for the reasons recorded in Hargobind Singh’s case (supra), an employee cannot be deprived of the financial upgradation for the period for which an employee is unable and unwilling to undergo the PCC Course. 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 promotion 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.
13. On this aspect, we may usefully extract the observations of the Division Bench judgment in Hargovind Singh’s case (supra) which are in consonance with the facts of the present case.
14. So far as the failure of the petitioner to undertake the promotional cadre course for which he was detailed in June 2003 is concerned, in Hargovind Singh’s case (supra), this court has deemed the same to be “a technical default”. On this aspect it was held as follows:-
15. The court thus held that the respondents were in greater default for not having detailed the petitioner for the PCC till November, 2004 The petitioner completed twelve years of service on 25th April 2004 when he was granted the first financial upgradation. After June, 2004, the present petitioner was detailed for undertaking PCC in August,
2004. It is an admitted position that the petitioner accepted this offer but was unsuccessful. He was offered his third chance and has successfully undertaken the PCC which was conducted between 23rd March, 2005 to 30th March, 2005. In this background, the petitioner cannot be denied of his rightful dues under the financial upgradation schemes.
16. We may also note that this aspect of the matter can be examined from yet another angle. As per the Scheme, every employee is entitled to three chances to complete the PCC. In this case, although the petitioner submitted his unwillingness for undertaking PCC in the first chance and failed to clear the course in the second chance, the respondents would not have then deprived him of the benefits of the financial upgradation but would have offered him a third chance to successfully complete the same. This being the position, a person who submitted unwillingness to undergo PCC at the first option and failed in PCC at the second option cannot be deprived of the benefit of the financial upgradation. The petitioner has in fact cleared the PCC course at the third chance, when he underwent the same.
17. Looked at from any angle, the acts of the respondents in recovering the amount and denying financial upgradation to the petitioner from 25th April, 2004 till 05th September, 2005 cannot be justified on any ground at all. The view we have taken is supported by the judgment rendered in Hargovind Singh’s case (supra).
18. Before we part with the case, it is necessary to deal with the submissions of the learned counsel for the respondents premised on the decision mentioned in the Circular dated 7th November, 2003. The relevant extracts of this Circular reads as follows:-
19. We may note that the respondents were conscious of the distinction between “stoppage” of the financial benefit and its “withdrawal” which is evident from bare reading of para 2 of the said circular.
20. Para 2 of this circular clearly recognizes that a person would be entitled to financial upgradation from the date he becomes eligible to the same. The “stoppage” of the same is clearly noted to be with effect from the date of result of failure/ submission of medical unfitness certificate or expressing inability to undergo PCC on medical grounds. The recovery which is postulated has to be read in context of the clear stipulation as laid in para 2 and cannot be related to recovery of an amount beyond the period that is noted in para 2. In our view, the para 4 has to be operated in the context of what has been clearly stated in para 2 of the Circular dated 7th November,
2003. Furthermore recovery can only be made if the respondents have given three chances for undergoing the PCC and the employee is unable to do so or is unsuccessful. Such reading and application of this Circular is in consonance with the above discussion. The respondents could not possibly seek recovery of the higher pay and allowances (advanced as benefits under the ACP Scheme) for the entire period from the date of upgradation of the scale under the ACP Scheme to the date of stoppage of benefit unless a person fails to clear the PCC in all three chances. The view we have taken is clearly supported by the respondent‟s directive in the Circulars dated 16th April, 2003 and 7th November, 2003 which has been placed before us.
21. The respondents hold a person entitled to the PCC for several years when the employee is not offered an opportunity to undergo the PCC course after completion of the twelve years of service, even though he may be willing and able to do so. He is given the pay uprgadation for this period (between 25th April 2004 and May 2005 in the case of the petitioner). This amount is then recovered as the employee was unsuccessful in the promotion cadre course in the second chance. The respondents have not waited for the petitioner to avail the three available chances for qualifying in PCC course before proceeding with their recovery action. The restoration has also been effected most arbitrarily.
22. For all the foregoing facts and reasons this writ petition has to be allowed. We hold that the petitioner would be entitled to grant of financial upgradation under the Assured Career Progression Scheme benefit with effect from 25th April 2004. The petitioner is entitled to the amounts recovered from him which shall be refunded to him within six weeks from today.
23. In case the petitioner is entitled to the benefit of the second upgradation as per ACP Scheme as well, the respondent shall consider the claim of the petitioner in accordance with the scheme in the light of the forgoing discussion and pass appropriate orders in regard thereto within a period of three months.
24. The order passed therein shall be conveyed to the petitioner.
25. The amounts falling due and payable in terms of the above shall be released to the petitioner within a period of six weeks thereafter.
26. This writ petition is allowed in the above terms. Dasti to learned counsel for the parties.
(GITA MITTAL) JUDGE (DEEPA SHARMA)
JUDGE JULY 31, 2013