Full Text
W.P.(C) 7758/2011
Date of Decision: 21st May, 2013 JAIBIR SINGH..... Petitioner
Through : Mr. Subhashish Mohanty, Adv.
Through : Ms. Barkha Babbar, Adv.
HON'BLE MS. JUSTICE DEEPA SHARMA O R D E R 21.05.2013
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. 3rd April, 2001 when he completed 12 years of service with Central Industry Security Force (herein after referred as “CISF”) and became entitled for grant of first financial upgradation in the grade of Head Constable under the ACP Scheme and grant of second financial upgradation as per MACP Scheme w.e.f 3th April, 2009.
2. The undisputed facts in the instant case necessary for adjudication of the writ petition are noticed hereafter. As per the ACP scheme, in order to be eligible the employee of the CISF is required to have completed 12 years from the date of 2013:DHC:2659-DB appointment to a post without any promotional financial benefit being made available to him and he should have also successfully undertaken the promotional cadre course (herein after referred to as “PCC”).
3. The petitioner has stated that an employee is granted three chances for successful completion of promotional cadre course as per the applicable ACP Scheme which has been placed before us. This is uncontroverted.
4. So far as the present petitioner is concerned, he had completed 12 years of service on 3rd April, 2001 and was offered an opportunity to undergo PCC pursuant to an offer made only in April, 2003. The petitioner was compelled to express his unwillingness to undergo this PCC on the ground of his wife being seriously ill.
5. Learned counsel for the parties have placed reliance on the Unwillingness Certificate dated 30th April, 2003 submitted under the signatures of the petitioner wherein he had stated as follows:- “UNWILLINGNES CERTIFICATE I No.891480103 (PSL No.50834) Rank CONST. Name Jaibir Singh of CISF Unit RHSTPP Rihand is not willing to undergo promotion course of Const. to HC/GD commencing w.e.f. 05/5/03 at RTC BSL Bokaro as detailed vide CISF Unit RhSTPP Rihand office letter No. E- 37014(3)/CISF/Rh/AdM/P.CC/2003 Date 29/4/03. Further I have no objection if I, am superceeded due to my unwillingness.”
6. While learned counsel for the respondent would contend that the petitioner had unequivocally expressed his unwillingness to undertake the PCC and that he had also clearly given his no objection to his supersession for the ACP due to his unwillingness. Learned counsel for the petitioner has however urged at some length that the unwillingness was restricted and limited only to the specific offer. It is submitted that the petitioner has expressed his unwillingness only to undergo the PCC which commenced w.e.f. 5th May, 2003 and had not repudiated any other offer made by the respondents.
7. It is also an admitted fact before us that the petitioner was granted financial upgradation by the respondents w.e.f. 3rd April, 2001. The record placed before us shows that the petitioner successfully qualified the promotional cadre course and the result of the same was informed on 14th November, 2003 by the respondent. The petitioner had undergone the course between 11th September, 2003 to 1st November,
2003.
8. It appears that prior thereto the respondents have issued an order dated 21st May, 2003 whereby the ACP benefit granted to the petitioner vide order dated 3rd April, 2001was cancelled due to the submission of his unwillingness to undergo the promotion cadre course which was held w.e.f. 5th May, 2003. As a result, the respondents proceeded to recover the amount paid to the petitioner towards his financial upgradation from 3rd April 2001 to 30th April, 2003. The respondent however, proceeded to re-grant the ACP upgradation to the petitioner by order passed on 17th March, 2004 which was made effective from 12th February, 2004.
9. 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 3rd April, 2001. 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. 3rd April, 2001 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. It is contended that as per the Circular issued by the respondents every employee is given three opportunities to complete PCC.
10. 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. As against 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 up-gradation.
11. 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. In this case, the petitioner 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 note- worthy 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.
12. 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:-
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 3rd April, 2001 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 5th May, 2003.
14. Undoubtedly for the reasons recorded in Hargobind 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.
15. We may now come to the second aspect of the matter. The respondents have relied upon the Unwillingness Certificate submitted by the petitioner which is dated 30th April, 2003 to urge that the petitioner had submitted his unwillingness to undergo the PCC and stated that he had no objection if he was superseded due to his unwillingness. We have reproduced hereinafter therefore the exact words of the unwillingness expressed by the petitioner. The unwillingness was restricted to petitioner‟s inability to undergo the promotional course which commenced on 5th May, 2003 and non other. Obviously, the petitioner could not have made any legally tenable objection in case he was superseded because of such unwillingness. There is nothing before us to show that the petitioner was detailed to undergo any other PCC for which he had expressed his unwillingness.
16. 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. After April, 2003, the present petitioner was detailed for undertaking PCC only in September, 2003. It is an admitted position that the petitioner accepted this offer and has successfully undertaken the PCC which was conducted between 11th September, 2003 to 1st November, 2003. In this background, the petitioner cannot be denied of his rightful dues till date.
17. So far as the unwillingness of the petitioner to undertake the promotional cadre course for which he was detailed in April, 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:-
18. The court has thus held that the petitioner had a reason for so doing.
19. It cannot be denied that in the case in hand as well the petitioner has given a genuine and reasonable explanation for his inability to undergo the PCC course which has not been doubted by the respondents. 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 case, the petitioner had undertaken the PCC course when he was first offered the same but had failed to clear the course, the respondents would not have then deprived him of the benefits of the financial upgradation but would have offered him a second; and thereafter, even a third chance to successfully complete the same. This being the position, a person who was prevented by just and sufficient cause from undertaking PCC at the first option cannot be deprived of the benefit of the financial upgradation in this matter. The petitioner has in fact cleared the PCC course at the first chance, when he underwent the same.
20. Looked at from any angle, the acts of the respondents in recovering the amount of the first financial upgradation from 3rd April, 2001 till 30thA April, 2004 cannot be justified on any ground at all. It is further urged that the petitioner is entitled to the second financial upgradation as per the modified MACP Scheme w.e.f. 3rd April,
2009. The view we have taken is supported by the judgment rendered in Hargovind Singh’s case (supra). 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:- “02 Instructions had been issued to the field formations that the personnel who have been granted ACPs benefits without qualifying PCC, but later on declared failed in PCC express their inability to undergo PCC on the pretext of one reason or other reason and submit medical unfitness certificate when detailed for PCC, the ACP benefits earlier granted to them may be stopped from the date of result of failure/submission of medical unfitness certificate or expressing their inability to undergo PCC on medical ground.
04 In view of the observations of Internal Audit party of MHA, the case has been examined and it has been decided that the recovery of pay and allowances pertaining to the period from the date of upgradation of scale under ACPs to the date of stoppage of such benefits may be made”.
21. 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.
22. 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 February, 2003. Such reading and application of this Circular is in consonance with the above discussion. The respondents would 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 in case 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 Circular dated 16th April, 2003, which has been placed before us.
23. The respondents have not waited for any employee to take the three available chances for undergoing the PCC course before proceeding with their recovery action. The restoration has also been effected most arbitrarily. The respondents hold a person entitled to the PCC for the several years when the employee is not offered an opportunity to undergo the PCC course even though he may be willing and able to do so. He is given the pay uprgadation for this period (between 3rd April, 2001 and April, 2003 in the case of the petitioner). This amount is then recovered on the ground that the employee though desirous, but is not able (on account of some unavoidable circumstances) to go for the PCC.
24. For all the foregoing facts and reasons this writ petition has to be allowed. We accordingly hold that the petitioner would be entitled to grant of financial upgradation under the Assured Career Progression Scheme benefit with effect from 3rd April, 2001.
25. The petitioner is as a result entitled to the amounts recovered from him which shall be refunded to him within six weeks from today.
26. In case the petitioner was entitled to the benefit of second financial upgradation as per the modified 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. The order passed thereon shall be conveyed to the petitioner. The amounts falling due and payable in terms of the above shall be released to the petitioner within a period of six weeks thereafter.
27. This writ petition is allowed in the above terms.
28. Dasti to learned counsel for the parties. GITA MITTAL, J DEEPA SHARMA, J MAY 21, 2013 j