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2013 DIGILAW 317 (GAU)

Ranjit Sankar Das v. Union of India and Others

2013-05-16

I.A.ANSARI, P.K.MUSAHARY

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Iqbal Ahmed Ansari, J.—Aggrieved by the order, dated 19.2.2010, passed, in Original Application (in short, 'OA') No. 49/2009, by the learned Central Administrative Tribunal, Guwahati Bench, dismissing the OA, the applicant, in the OA, has filed this writ petition, under Article 226 of the Constitution of India, seeking appropriate relief. The material facts, giving rise to the present writ petition, may, in brief, be set out as under: (i) The petitioner herein was appointed, in December, 1969, as a Sub-Overseer, in Military Engineering Service, and was promoted to the post of Superintendent (B & R), Grade-II, with effect from 10.11.1998, in the pay scale of Rs. 5,000-8,000/-. By Office Memorandum, dated 09.08.1999, issued by the Union of India, Department of P & T, the Post of Superintendent (B & R), Grade-I and Grade-II, were merged and came to be re-designated as Junior Engineer. The Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), introduced, by Office Memorandum, dated 09.08.1999, Assured Career Progression Scheme (in short, 'ACP scheme') for financial up-gradation of those employees, who lacked promotional avenues, though they were, otherwise, eligible for promotion. In terms of the Scheme, one has to receive two financial up-gradations, one on completion of 12 years and the other, on completion of 24 years of regular service. As the petitioner was not granted the second financial up-gradation, he made a representation to the respondents/authorities concerned seeking redressal of his grievance. By a communication, dated 16.10.2001, the petitioner was informed by the respondents/authorities concerned that his claim had been examined by the Headquarters, but his case could not be considered as he had not cleared the departmental examination. (ii) Acting upon the communication, dated 16.10.2001, aforementioned, the petitioner appeared in the departmental examination and passed the departmental examination. Thereafter, by his letter, dated 20.05.2004, the petitioner informed the respondents concerned about the fact that he had completed the requirement of passing of the departmental examination and he should, therefore, be granted the second financial up-gradation. To the petitioner's dismay, he received a communication, dated 20.04.2004, intimating him that the benefit of second up-gradation, under the ACP scheme, is available to only those junior engineers, who were holding degree or diploma in engineering and as he did not possess the requisite educational qualification, he would not be eligible to receive the second financial up-gradation under the ACP Scheme. (iii) The petitioner, then, made another representation, dated 17.05.2005, seeking second financial up-gradation on the ground that he had completed more than 24 years of service and had also passed the requisite departmental examination. While the representation remained pending, the petitioner superannuated on 31.01.2006. (iv) Aggrieved by the fact that he had not been granted the second financial up-gradation, though, according to the petitioner, he was entitled to receive such financial up-gradation, the petitioner filed an Original Application (in short, 'OA'), in the Central Administrative Tribunal (hereinafter referred to as the 'learned Tribunal'), which gave rise to OA No. 162/2006. The said OA was disposed of by the learned Tribunal by order, dated 28.06.2006, directing the petitioner to make a comprehensive representation, to the respondent concerned, with corresponding direction to the respondents to dispose of the representation, if made by the petitioner, within the time limit specified by the order aforementioned. (v) Following the order, dated 28.06.2006, aforementioned, the petitioner submitted his representation, dated 10.07.2006, whereupon the respondent made a speaking order, on 30.09.2006, rejecting the petitioner's said representation. Aggrieved by the rejection of his representation, the petitioner, again, approached the learned Tribunal by yet another OA, which gave rise to OA No. 49/2007, and it is the dismissal of his second OA, as already indicated above, which has caused the petitioner to file the present writ petition. (vi) The respondents herein contested the OA by contending to the effect, inter alia, that the second financial up-gradation could not be granted to the petitioner due to the fact that the petitioner did not possess the essential educational qualification required for the purpose of his promotion to the next higher post. 2. Before proceeding further, it also needs to be noted that with the merger of the post of Superintendent (B & R) Gr-I and Superintendent (B & R) Gr-II and re-designation thereof as Junior Engineer, the qualification, required to be possessed by a junior engineer, for the purpose of promotion to the next higher post of Assistant Engineer, was prescribed as either a degree in civil engineering with 3(three) years of service or diploma in civil engineering with 5(five) years of service. The petitioner did not, admittedly, hold either a degree or diploma in civil engineering. 3. The petitioner did not, admittedly, hold either a degree or diploma in civil engineering. 3. Merely because of the fact that the petitioner had passed the procedural examination, he was, according to the learned Tribunal, not entitled to the second financial up-gradation, when he did not possess the requisite educational qualification and, with the conclusion, so reached, the learned Tribunal dismissed the OA filed by the petitioner. Aggrieved by the dismissal of his OA, as already indicated above, the petitioner is, now, before us with this writ petition made under Article 226 of the Constitution of India. 4. We have heard Mr. A. Dasgupta, learned counsel for the writ petitioner, and Mr. T. Islam, learned Central Government counsel, appearing for the respondents. We have also heard Mr. U.K. Nair, learned counsel, who has appeared as amicus curiae. 5. Appearing on behalf of the petitioner, Mr. Dasgupta, learned counsel, has submitted that there is a gulf of difference between ACP Scheme and promotion inasmuch as ACP Scheme is made available to an employee on completion of requisite period of service irrespective of the fact as to whether he is entitled to promotion or not. The learned Tribunal, according to Mr. Dasgupta, learned counsel, has fallen in error in taking the view that the educational qualifications, which were required for a person to receive promotion, were also the qualifications required for receiving financial up-gradation in terms of the ACP scheme. 6. We find ourselves completely unable to agree to the submissions, so made by Mr. Dasgupta, learned counsel, inasmuch as the ACP scheme is a device to make financial up-gradation available to a person, who is, otherwise, eligible for promotion, but cannot be promoted, because of the fact that the promotional post is not vacant. However, a person, who is not fit for promotion either because of his lack of educational qualifications, or because of adverse remarks in his service report, or any other reason, cannot be treated entitled to receive ACP even if he has already completed the length of service, which may stand prescribed for being entitled to receive ACP. 7. However, a person, who is not fit for promotion either because of his lack of educational qualifications, or because of adverse remarks in his service report, or any other reason, cannot be treated entitled to receive ACP even if he has already completed the length of service, which may stand prescribed for being entitled to receive ACP. 7. Situated thus, we find ourselves wholly in agreement with the learned Tribunal's conclusion that merely because of the fact that the petitioner had passed the procedural departmental examination, or that he had completed the requisite length of service, he would not be entitled to the second financial up-gradation, when he did not possess the required minimum educational qualification inasmuch as he neither held a degree in civil engineering nor a diploma in civil engineering, which were the necessary qualifications, required to be possessed by a junior engineer, for becoming eligible to be promoted to the post of Assistant Engineer, i.e., the next promotional post of junior engineer, which the petitioner herein came to hold by virtue of the merger of the post of Superintendent (B & R) Grade-I and Grade-II and re-designation of the post as Junior Engineer. 8. Because of what have been discussed and pointed out above, we do not find that the petitioner has been able to make out any case calling for interference with the impugned order, passed by the learned Tribunal, in exercise of this Court's extra-ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition, therefore, fails and the same shall accordingly stand dismissed. 9. Before parting with this writ petition, we, however, make it clear that it will remain open to the petitioner to take recourse to appropriate provisions of law for the purpose of redressal of his grievance with which he approached the learned Tribunal in the two rounds of litigations as mentioned above. 10. No order as to costs. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court.