Full Text
HIGH COURT OF DELHI
Date of Decision: 02.11.2022
RAJESH SHARMA ..... Petitioner
Through: Mr. A. K. Trivedi and Mr. Naveen Kumar, Advocates.
Through: Mr. Kirtiman Singh, CGSC with Mr.Waize Ali Noor and Mr. Yash Upadhyay, Advocates.
UNION OF INDIA AND ORS. ..... Petitioners
Through:
Through: Ms. Sonika Gill, Advocate.
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SATISH CHANDRA SHARMA, CJ. (ORAL)
JUDGMENT
1. Regard being had to similitude in the controversy involved in the aforesaid two cases, they were heard analogously and a common order is being passed in both the matters.
2. The present writ petitions are premised upon a similar factual matrix, the quintessential controversy being whether certain employees were entitled to grant of benefits of the Assured Career Progression Scheme Digitaaly (hereinafter, “ACP Scheme”) from the due date of their respective date of completion of 12years/ 24 years of service or the date of passing their respective trade tests. The factual matrix of these petitions diverges on certain aspects that will be discussed hereafter. However, while in one petition benefit of the ACP Scheme has been accorded from the date of passing of the test, in the other, it has been accorded from the due date of the completion of 12 years/ 24 years of service.
3. W.P.(C) No. 11525/2015 has been filed by Mr. Rajesh Sharma, the Petitioner, assailing the Order and Judgment dated 16.05.2015 passed by the Ld. Central Administrative Tribunal (hereafter, “CAT”), whereby the CAT dismissed Original Application No. 2786/2012 refusing to grant Petitioner the benefit of non-functional upgradation under the ACP Scheme from 28.03.2000 as sought by the Petitioner and allowing such benefits to be accorded only from the date of passing of the test.
4. W.P.(C) No. 12375/2015 has been filed by Union of India assailing the Order and Judgment dated 24.01.2019 passed by CAT whereby it partly allowed OA No. 1697/2013 filed by the Respondents, granting them benefits of the ACP Scheme from the date of completion of 12/24 years of service irrespective of passing of the trade test.
5. While the matters revolve around similar issues, considering the intervening facts of the matters, it is appropriate to deal with the writ petitions separately. Facts and averments in W.P.(C) No. 11525/2015
6. It is stated that the Petitioner was appointed as a Refg. Mechanic in the office of Respondent No. 3 on 28.03.1998. Digitaaly
7. In 1999, the Govt. of India introduced the ACP Scheme which provided for grant of financial upgradation upon completion of 12 and 24 years. The scheme stipulated that the benefit of ACP would only be applicable to candidates who fulfilled the requisite eligibility criteria and norms for promotion, including the passing of the trade test.
8. On 04.01.2001, the Department of Personnel and Training (hereafter, “DOPT”), issued a clarification by way of an Office Memorandum, interalia, stating that as a special case, employees who qualified the trade test in their first attempt after 09.08.1999 may be allowed benefit of ACP from 09.08.1999 only and not from the date of passing the trade test, whereas, employees who qualified the trade test in subsequent attempts would be given the benefit of ACP from the date of passing the test.
9. The Petitioner completed 12 years of service in 1999-2000. It is stated by the Petitioner that the trade test was, however, conducted in November 2001 and upon appearing for it, the Petitioner passed the test. In furtherance of clarification of the DOPT, the Indian National Defence workers Federation (hereafter, “INTUC”) vide letter dated 07.04.2008 requested the competent authorities to consider the case of 15 persons, including the Petitioner, for grant of the benefit of ACP Scheme from due date of their respective promotion, i.e. from September 1999 onwards as opposed to the date of passing the trade test since they qualified the test in their first attempt as per the clarification. Out of the 15 persons in the list, 8 persons had appeared for the trade test in July 2001 whereas the remaining 7, including the Petitioner, appeared for the trade test in November 2001. The case was referred to the Ministry of Defence, which referred it to DOPT, seeking a Digitaaly special dispensation for relaxation in passing the trade test for granting benefit of the ACP scheme.
10. The record further reveals that on 29.06.2010, in furtherance of the advice of the DOPT dated 25.01.2010, the Ministry of Defence issued orders conveying the sanction to relax the condition of passing the trade test before granting financial upgradation under the ACP Scheme only in respect of the 8 persons who had appeared for the test in July 2001 and qualified the same in their first attempt. In view of this development, the Petitioner filed an O.A. being O.A. No. 3291/2011. Vide Order dated 13.09.2011, CAT disposed of OA No. 3291/2011 directing the Respondents to treat the same as a representation and consequently decide the matter within a period of 2 months in consultation with DOPT. Pursuant to the Order of the CAT, Respondent No. 2 issued a communication to Respondent No. 3 on 19.01.2012, stating that upon examination of the Petitioner’s case by the Ministry of Defence in consultation with the DOPT, it was observed that the Petitioner did not appear in the trade test conducted on 17.07.2001 as per his own wish and therefore, financial upgradation could only be granted to him from November 2001 onwards, i.e., when he passed the trade test. Thereafter, on 07.02.2012, Respondent No. 3 passed an Order rejecting the Petitioner’s request for grant of relaxation for passing of trade test, in terms of the communication dated 19.01.2012.
11. It is against the decision of Respondent No. 2 and 3, that the Petitioner preferred O.A. No. 2786/2012 before CAT seeking relaxation of the condition of passing the trade test as much as grant of financial Digitaaly upgradation in terms of the ACP Scheme with effect from 28.03.2000. The OA was dismissed by CAT wherein the CAT observed as under: - “9. At Annexure A-1 is a communication of 19.01.2012 sent by Superintendent Engineer (SG)on behalf of DG EME, i.e. respondent No 2, addressed to the respondent No.3 inter alia communicating that since the applicant had not appeared in the supervisory trade test on 17.07.2001 as per his own wish hence, financial upgradation could be granted to him only when he passed the trade test in November 2001. At Annexure A-2 is a speaking order passed by the respondent No. 3 incompliance of the directions of the Tribunal in OA3291/2011. This contains the same facts and contentions that have been incorporated in the counter affidavit filed by the respondents. At Annexure A-3 (page-12 of the paperbook) is a communication conveying sanction by the Ministry to relax the condition of passing trade test before granting ACP as per the DOPT OM dated09.08.1999 in respect of 8 personnel who had qualified in the supervisory trade test in the first attempt, i.e., in July2001. At Annexure A-5 is a clarification issued in consultation with DOPT that as a special case employees who cleared the trade test in the first attempt after09.08.1999 may be allowed benefit of ACP from09.08.1999 only and not from the date of passing the test. In no case was the benefit to be given to any person who had appeared in the trade test before 09.08.1999 who, had failed or had not appeared in the test or had not otherwise passed the trade test. The applicant's claim does not fall within this clarification because it is admitted that he did not qualify in any trade test in first attempt after 09.08,1999 till November
2001.
10. From the aforenoted facts and documents, if appears that the main issue is whether or not the applicant had knowledge of the trade test held on17.07.2001, or whether he did not appear in the trade test then, despite having knowledge, as per his own wish. The respondents have produced the list of 7 tradesmen whose names figured under the nominal roll of 228 tradesmen employed in the unit of respondent No. 3but were eligible to appear tor the trade test for grant of ACP to be conducted in Digitaaly July 2001. The name of 7 tradesmen along with their serial No. has been given in the counter affidavit, in which the name of the applicant's figures and his serial No. indicated against his name is 97. 117tradesmen only appeared for the trade test on that date but the applicant did not appear on that date. There is thus evidence to support the contention of the respondents. On the other hand, there is nothing to corroborate the statement of the applicant that he did not have knowledge of the trade test held in July 2001. In the absence of not having participated in the trade test in July 2001, he did not qualify for grant of financial upgradation on the basis of having qualified the trade test in the first attempt and under which 8 employees were given the benefit of ACP w.e.f the date of their eligibility on completion of 12 years of regular service, based on the relaxation given under the Ministry of Defence letter dated 29.06.2010 (Annexure A-3).
11. We therefore find that it was the applicant who missed the opportunity of appearing in the examination on 17.07.2001 despite his name being included on serial No. 97 of the nominal roll of 228 tradesmen who were eligible to appear in the test.
12. In the aforesaid circumstances, the financial upgradation could be granted to the applicant only w.e.f. November 2001 when he passed the trade test. We also find there has been no discrimination between the applicant and the 8 employees who were granted the benefit of financial upgradation on completion of 12years of regular service under the Ministry of Defence letter dated 29.06.2010.
13. in view of above, we see no reason to interfere with the impugned order dated 19.01.2012 at Annexure A-1 and the speaking order passed by the respondentsdated07.02.2012 (Annexure A-2). The applicant has not been able to make out a case in his favour and hence this OA cannot be allowed.
14. In effect, OA is dismissed. There shall be no order as to costs.”
12. It has been argued by Mr. A.K. Trivedi, ld. Counsel for the Petitioner, that he was called to appear for the trade test only in November, 2001 and Digitaaly not July 2001. He states that he passed the trade test in his first attempt in November 2001 and, therefore, INTUC made a representation for relaxation of the condition for the grant of benefit from date of passing of trade test in respect of 15 persons including the Petitioner. He states that the relaxation of the condition only with respect to 8 persons is arbitrary as he is similarly situated and ought to have been granted the relaxation as well.
13. Per contra, Mr.Kirtiman Singh, Ld. CGSC submits that under the ACP Scheme, the financial upgradation is only available to the next promotional hierarchy and not the higher placement. Therefore, the Petitioner is required to mandatorily undergo the trade test under the ACP Scheme. It is because of his deliberate non-appearance in the trade test that the Petitioner along with six others has suffered such benefit under the ACP Scheme. The same is evident from the fact that his name appeared in the rolls for the test conducted in July 2001.
14. The Assured Career Progression Scheme was introduced by the Government of India with the aim and objective of granting of upgradation to employees after completion of 12 years/ 24 years of service in case they were not granted regular promotion and in case they were stagnating in the same pay scale. It is an undisputed fact that the ACP Scheme provides that an employee shall be entitled for grant of 1st upgradation and 2nd upgradation only if they fulfill requisite qualification/ criteria for promotion under the relevant recruitment rules.
15. In the present case for promotion to the next higher post, the trade test was mandatory and, again, it is an undisputed fact that the Petitioner in the present case, Rajesh Sharma, was not able to qualify the trade test in his first Digitaaly attempt in July 2001. He was able to qualify the trade test only in the month of November 2001. Therefore, the Respondent Union of India was justified in granting him the financial upgradation under the ACP Scheme the moment he qualified the trade test. In the considered opinion of this Court, the question of interference with the Order passed by the CAT in the peculiar facts and circumstances of the case does not arise. Facts and averments in W.P(C) No. 12375/2015
16. The Respondents were appointed as Telecom Mechanics in the offices of Respondent No. 3 on 26.10.1987 (for first Respondent) and 28.04.1988 (for remaining Respondents). They cleared their trade test on 06.07.2000 and were therefore granted benefit of the ACP Scheme from the said date. The intervening facts being the same as in the W.P(C) No. 11525/2015, the employer declined to grant benefit of financial upgradation to the Respondent employees vide its letter dated 21.08.2012. The Respondents filed OA No. 1697/2013 claiming financial upgradation under the ACP Scheme with effect from April 2000/Oct 1999 by extending the relaxation of the condition of passing the supervisory trade test prior to grant of ACP benefits.
17. In terms of its Judgment and Order dated 24.01.2019, CAT partly allowed the OA of the Respondents holding as follows: -
18. Mr. Amit Anand, ld. Counsel for the Union, states that the Respondents had appeared for trade tests conducted before 09.08.1999, but failed to clear the same. The test was only cleared when it was conducted on 06.07.2000. He has vehemently argued that it is undisputed that benefits of ACP Scheme can only be given where the person was eligible for promotion Digitaaly but could not be promoted due to administrative exigencies. The trade test is a requisite to be promoted to the next grade and, therefore, passing it is imperative to be eligible to seek benefit of the ACP scheme. That being the intent of the ACP Scheme, the fact that Respondents failed their attempts prior to passing the attempt on 06.07.2000 cannot imply that they get the benefit of the clarification dated 04.01.2001.
19. Mr. A.K. Trivedi, ld. Counsel for the Respondents has opposed the Petitioners arguments contending that the Respondents have cleared the first attempt after the introduction of the ACP Scheme. When the scheme was not in place before 09.08.1999, the question of previous attempts being considered does not arise. Issues for consideration
20. Heard the counsel for the parties and perused the material on record. The core issue in both the petitions is essentially the same. In WP(C) 11525/2015, the Petitioner was eligible to take the trade test in July 2001, but failed to appear for the same and cleared the test in November 2001. In WP(C) No. 12375/2022, the Respondents appeared for the trade test prior to introduction of the Scheme, but cleared it only on 06.07.2000.
21. The focal aspect for determination before this Court is whether in the peculiar facts and circumstances of their respective cases, the employees in the present writ petitions ought to be given benefit of the ACP Scheme from the date of passing of their trade tests. Analysis and Conclusion Digitaaly
22. The right to be granted financial upgradation from due date upon passing of the trade test on first attempt arises from the policy framed by the DOPT in terms of the clarification dated 04.01.2001. The relevant excerpt of the clarification is reproduced hereunder: - “A reference was sent to DOPT for one time relaxation from passing of Trade Test for granting ACP from 08.8.99 i.e. date of implementation of ACP Scheme if the employees are otherwise eligible.
2. DOPT has clarified that as a special case the employees who qualify the trade test in first attempt after[9].8.99 may be allowed benefit of ACP from 9.8.99 only and not from the date of passing of trade test. However, employees who qualify in the trade test in subsequent attempts will be allowed financial upgradation only from the date of passing of trade test. In no case, the benefit should be given to an individual w.e.f. 09.8.99, who had earlier appeared in the Trade Test before 09.8.99 but failed or has not appeared in trade test at all or has not otherwise passed the trade test.”
23. It flows from this clarification that financial upgradation is to be accorded to an employee who clears the trade test from 09.08.1999 in case they pass it in the first attempt. It is also clarified that in case of nonappearance or failure in attempts taken before 09.08.1999, benefit cannot be given from 09.08.1999. In the considered opinion of this Court, insofar the implication of the clarification read with the Order of Ministry of Defence dated 29.06.2010 on the case of the present employees is concerned, the policy makes it clear that: - (a) non-appearance in the first attempt trade test renders an employee ineligible to claim benefit from 09.08.1999 or alternately, due date of promotion, and Digitaaly (b) employees failing in trade tests held before 09.08.1999 cannot be given benefit of the policy from 09.08.1999 or alternately the due date of promotion. It is with this understanding that this Court must examine the orders of the CAT in both matters.
24. It is amply clear that from Paras 10 and 11 of the Order of the CAT under challenge in WP(C) No. 11525/2015 that that the name of the Petitioner was on the rolls for the trade test conducted on 17.07.2001 and that he did not appear for it. Having missed the first attempt, it is further clear that he appeared and passed in the second attempt. The Petitioner has failed to discharge before this Court the onus upon him to show that he was in fact unaware of the test being conducted in July 2001. He has, therefore, been granted benefit of the Scheme from the date of passing of the trade test.
25. On the other hand, in the Order of the CAT that is under challenge in WP(C) No. 12375/2015, the CAT has come to a perverse finding. While acknowledging the intent behind the ACP and the contents of the clarification dated 04.01.2001, the CAT proceeds to allow benefit of the ACP to the Respondents merely because in its opinion the differential time period is negligible. In our opinion, this does not serve as a ground to contravene the clear directions made in the clarification and is, therefore, untenable.
26. It is trite law that an employee cannot be granted financial upgradation without fulfilling the requisite qualification prescribed by the executive policy. In Bhakra Beas Management Board vs. Krishan Kumar Digitaaly Vij & Anr., (2010) 8 SCC 701 the Hon’ble Supreme Court considered the following issue: -
In the facts and circumstances of the said case, the Hon’ble Supreme Court proceeded to hold the following: -
27. The aforesaid judgment makes it evident that an employee claiming the benefit under a scheme for financial upgradation, such as the ACP Scheme in the present case, has to fulfill the requirement/ terms and conditions required for promotion to the next higher post and, in both the present cases, the requirement for promotion was passing the respective trade test and the employees were given the benefit of higher pay-scale in Digitaaly W.P.(C.) No. 11525/2015 from November, 2001 i.e. from the date he has qualified the trade test.
28. In the other connected matter i.e. W.P.(C.) No. 12375/2014, the Respondents have cleared their trade test of on 06.07.2000, and they were granted benefit from the aforesaid date only.
29. However, the Tribunal has allowed the application holding that they are entitled for grant of ACP on completion of 12 years of service even from the date prior to passing of their trade test, and, therefore, the finding arrived at by the Tribunal in W.P.(C.) No. 12375/2015 is erroneous in the light of the judgment delivered by the Hon’ble Supreme Court in Bhakra Beas Management Board (supra). Hence, W.P.(C.) No. 11525/2015 filed by Mr. Rajesh Sharma is dismissed, and the other connected matter filed by the Union of India, i.e. W.P.(C.) No. 12375/2015 is allowed.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J. NOVEMBER 02, 2022 Digitaaly