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2015 DIGILAW 391 (CAL)

Rama Kanta Chowdhury v. Union of India

2015-05-04

SAMAPTI CHATTERJEE

body2015
JUDGMENT : Samapti Chatterjee, J. 1. The petitioner filed the instant writ petition to extend financial upgradation benefit both first and second period under ‘ACP Scheme’ and to fix the petitioner’s pay thereafter in the appropriate scale of pay. The extract of the said ‘ACP Scheme’ is quoted below :- “Conditions for grant of benefits under the ACP Scheme 1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Railway Servant concerned on personal basis and shall, therefore, neither amount of functional/regular promotion nor would required creation of new posts for the purpose. 2. The highest pay-scale upto which the financial upgradation under the Scheme shall be available to those falling in the entitled categories will be Rs.14,300-18,300. Beyond this level, there shall be no financial upgradation and higher posts shall be filled strictly on vacancy based promotions. 3. The financial benefits under the ACP Scheme shall be granted from the date f completion of the eligibility period prescribed under the ACP Scheme or from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later. 4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly. 5.1 Two financial upgradations under ACP Scheme in the entire Railway service career of an employee shall be counted against regular promotions (including in-situ promotion and/or any other promotion including fast-track promotion availed through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotions, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. If an employee has already got one regular promotions, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotion on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him. 5.2 Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit. 6. The following shall be ensured while granting benefits under the ACP Scheme. a. Fulfillment of normal promotion norms prescribed, such as bench-mark, trade test, departmental examination, seniority-cum-fitness (in case of Group ‘D’ employees) etc. for grant of financial upgradations. b. Performance of such duties as are entrusted to the employees together with retention of old designations. c. Financial upgradations as personal to the incumbents for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits such as sanction of advances including House Building Advance, allotment of Government accommodation, issue of privilege and other passes etc only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc.) 7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given in the immediately next higher (standard/common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Ministry of Railways’ Notification No.PC-V/97/I/RSRP/1 dated 8.10.1997 (RBE no.133/97, PC-V/1). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-II will be eligible for the proposed two financial upgradations only to the pay scale S-5 and S-6.” 2. On 21st May, 1961, the petitioner was appointed as a Constable in the Railway Protection Force. Thereafter time to time the petitioner was transferred from one division to another. Ultimately in the year 1974 the petitioner was posted in the office of Vigilance, Kolkata on deputation. Pursuant to the recommendation of the pay commission the respondent authorities on 1st October, 1999 introduced a scheme namely “Assured Career Progress Scheme” commonly known as ‘ACP Scheme” to remove stagnation in service. Ultimately in the year 1974 the petitioner was posted in the office of Vigilance, Kolkata on deputation. Pursuant to the recommendation of the pay commission the respondent authorities on 1st October, 1999 introduced a scheme namely “Assured Career Progress Scheme” commonly known as ‘ACP Scheme” to remove stagnation in service. Under the said ‘ACP Scheme” an employee is entitled to have financial upgradation benefit on completion of 12 years service. If during the said period the incumbent has not been provided with any promotion then under the said scheme in second step such benefit of financial upgrdation will be provided after completion of 24 years, if the incumbent has not been provided with any promotion in the meantime. 3. It is submitted by Mr. Asit Kumar Banerjee, learned Advocate appearing for the petitioner that on 31st December, 2000 the petitioner retired from service without having any promotion during his entire tenure of service. Not only that the petitioner even at the time of superannuation the petitioner was not provided with the benefit of ‘ACP Scheme’ by fixing the petitioner’s pay in the appropriate higher scale thus providing the benefit under ‘ACP Scheme’ after completion of 12 years and thereafter the second benefit of the said Scheme after completion of 24 years. 4. Mr. Banerjee also vehemently contended that in the other similar circumstances employees have got the benefits under the said scheme barring the petitioner. 5. Mr. Banerjee also vehemently urged that the petitioner is entitled to enjoy the scale of pay of Rs. 32,000-49,000/- with effect from 01.10.1999 and again after completion of 24 years of regular service the petitioner is entitled to the scale of Rs. 4000-6000/- with effect from 01.09.1996. 6. Mr. Banerjee also strongly urged that the petitioner has not been paid retiral dues in the scale of pay which he became entitled to enjoy pursuant to the ‘ACP Scheme’. Thus, being the position Mr. Banerjee submitted that the petitioner was paid less gratuity money and other retiral benefits as ‘ACP Scheme’ was not extended to the petitioner though it was extended in respect of other similarly circumstanced employees. Thus, being the position Mr. Banerjee submitted that the petitioner was paid less gratuity money and other retiral benefits as ‘ACP Scheme’ was not extended to the petitioner though it was extended in respect of other similarly circumstanced employees. Therefore, the petitioner was denied the higher scale of pay with effect from 1st January, 1996 and till date of retirement which as per the said scheme petitioner was very much entitled to enjoy the same as during his entire service tenure he was not provided any promotion after completion of 12 years in service and also after completion of 24 years in service. Therefore, as per the scheme the incumbents whose service was in stagnation without providing any promotion they should be given benefit of higher pay scale under this ‘ACP Scheme’. 7. Mr. Banerjee also drew my attention to the letter dated 28th August, 2008 issued by the Staff Officer/CESC/RPF for Chief Security Commissioner/RPF, Eastern Railway, Kolkata, appearing at the Annexure R1 Page-6 of the supplementary affidavit-in-opposition where it is stated that process for granting the ACP benefit has already been undertaken and the matter is now under process. The extract of the said letter is quoted below:- “In pursuance of Hon’ble High Court/Kolkata’s order it has been decided to consider your appeal to grant financial up-gradation under ACP scheme in the manner as specified in R.B.E. No. 178/03 dated 09.10.2003.” The process for granting the subject ACP benefit has already been under taken and the matter is now under process”. In support of his contention Mr. Banerjee relied on an unreported decision of the Hon’ble Division Bench of this Court passed in W.P.C.T No. 149 of 2011 (Sri Suphal Chandra Mondal & Ors. vs Union of India & Others) considering various Supreme Court decisions. Some passage from the judgment is quoted below:- “We are however in total agreement with the second grievance made by the petitioner. As observed hereinbefore, ACP benefit is an automatic process and does not require any particular selection process to undergo. The Railway, in our view, was not entitled to ask them to appear at the Trade Test to get such particular scale as and by way of ACP benefit. The Railway also mixed up the issue of promotion with the ACP. One would get the ACP benefit as an automatic process after he completes a particular tenure/required therefore. The Railway, in our view, was not entitled to ask them to appear at the Trade Test to get such particular scale as and by way of ACP benefit. The Railway also mixed up the issue of promotion with the ACP. One would get the ACP benefit as an automatic process after he completes a particular tenure/required therefore. Once the petitioner’s get the next higher scale they would still be obliged to appear at the Trade Test as and when asked for when they would be considered for promotion. In a promotional process particularly when it was on merit basis the authority would be entitled to compel the eligible candidates to under go selection process, if someone refuses he would not be considered for promotion. Since ACP is linked up with promotion, on such refusal to participate in the selection process in the promotional post, the authority would also be entitled to recall the benefit. We however make it clear that participation was enough to continue to get such benefit. It was not important whether the concerned candidate would be successful in such process or not. One may not be successful in selection process that would debar him to get the promotional post. So long he participates in selection process for the promotional post conducted by the employer, he would continue to get the ACP benefit until he is given the promotional post that would be adjusted against such ACP. The petitioners would thus not be required to appear at the Trade Test. If any scheme provides so that would be contrary to the Apex Court decision and/or observation referred to above. The application this succeeds in part. The order of the Tribunal upholding the scale of Rs.4000-6000/- is upheld. The Tribunal’s decision to ask the Railways to conduct a Trade Test for consideration of extension of ACP benefit is quashed and set aside. The Railway is directed to extend the ACP benefit as an automatic process in the next higher scale of Rs.4000-6000/- or any corresponding scale in case any revision is made in between." 8. Therefore, Mr. Banerjee in conclusion submitted that the writ petition should be allowed by directing the respondent authorities to extend the benefit of the first and second track of the ACP Scheme to the petitioner and thereafter to fix the pay of the petitioner in appropriate scale of pay. 9. Per contra, Mr. Therefore, Mr. Banerjee in conclusion submitted that the writ petition should be allowed by directing the respondent authorities to extend the benefit of the first and second track of the ACP Scheme to the petitioner and thereafter to fix the pay of the petitioner in appropriate scale of pay. 9. Per contra, Mr. Sengupta contended that benefit of ACP Scheme could not be extended in favour of the petitioner as ACR for the year 1969, 1971, and 1972 were not satisfactory. Therefore, the Screening Committee did not recommend his case for granting financial upgradation under ACP Scheme. In support of his contention Mr. Sengupta relied on Annexure R1 of the second supplementary affidavit-in-opposition. The extract of the Annexure R1 of the second supplementary affidavit-in-opposition is quoted below :- “Broad Sheet of ACRs of Shri Ramakant Choudhury, Ex-Constable (Watcher under GM/Vig) in connection with grant of ACP benefit grading of 05 preceding years 1969 to 1973. S. No. Name Designation Comm Div DOB DOB ACR grading for preceding 05 years 1. Rama Kant Choudhury Ex-Const (Watch under GM/Vig UR GM/Vig E. Rly 24.12.1940 21.06.1961 1969-Work & Conduct found satisfactory. 1970-A Shrews type, needs watch 1971-He should be kept under watch otherwise bad worker. 1972-Nothing adverse against his work and conduct heard or reported. 1973-Proved to be very helpful detecting cases to theft. He is dependable + hard working. 10. Mr. Sengupta also relied on the Serial No. 3, 3.1 and 6.3 which are quoted below:- “3. GROUP ‘B’ ‘C’ AND ‘D’ SERVICES/POSTS AND ISOLATED POSTS IN GROUP ‘A’ ‘B’ ‘C’ AND ‘D’ CATEGORIES. 3.1. While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt also the ACP Scheme in a modified from to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations (as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group ‘C’ and ‘D’ employees) entered into with the Staff Side of the National Council (JCM) under the ACP Scheme to Group ‘B’ ‘C’ and ‘D’ employees on completion of 12 years and 24 years of regular service respectively years (subject to condition No.4 in Annexure-I). Isolated posts in Group ‘A’, ‘B’, ‘C’ and ‘D’ categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above Certain categories of employees such as casual employees (including those with temporary statues). Substitutes ad-hoc and contract employees shall not qualify for benefits under the aforesaid scheme. Grant of financial upgradations under the ACP Scheme shall however, be subject to the conditions mentioned in Annexure-I. 6.3. In order to prevent operation of ACP Scheme from resulting into undue strain on the administrative machinery, the Screening Committee shall follow time-schedule and meet twice in a financial year-preferably in the first week of January and July for advance processing of the cases. Accordingly, cases maturing during the first-half (April-September) of a particular financial year for grant of benefits under the ACP Scheme shall be taken up for consideration by the Screening Committees meeting in the first week of January of the previous financial year. Similarly, the Screeni9ng committees meeting n the first week of July of any financial year shall process the cases that would be maturing during the second-half (October-March) of the same financial year. For example, the Screening Committees in the first week of January, 1999 would process the cases that would attain maturity during the period April 1, 1999 to September 30, 1999 and the Screening Committees meeting in the first week of July, 1999 would process the cases that would mature during the period October 1, 1999 to March 31, 2000.” 11. Mr. Sengupta further contended that since the petitioner before filing the present writ petition failed to make any representation before the authority for extending first and second benefit under ACP Scheme as he has already completed 12 years and 24 years in service without providing any promotion during his entire service tenure, therefore, the petitioner is not entitled to get any relief from this Hon’ble Court. In support of his contention Mr. In support of his contention Mr. Sengupta relied on one Ssupreme Court decision reported in AIR 1976 SC Page 1654 (State of Haryana & Another vs Chanan Mal etc) which is quoted below:- “Para 42 Sub Para-3 Any petitioner who applies for a writ or order in the nature of a Mandamus should in compliance with the well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established.” 12. Before parting with his submission Mr. Sengupta contended that the petitioner is not at all entitled to enjoy the benefit of financial upgradation under ACP Scheme as he was found not fit for that benefit. Not only that before filing this writ petition the petitioner did not approach the authorities with his prayer for grant of benefit of 12 years and 24 years under ACP Scheme as he was not provided with any promotion during his entire service tenure. Therefore, the writ petition should be dismissed. 13. Having heard the submissions advanced by the learned Advocates of the respective parties and after perusing the records it is evident that during the entire service tenure of the petitioner he was not provided with any promotion as a result of which the petitioner was in a acute financial stagnant position in the same post. Therefore, the petitioner claimed to extend the benefit of 12 years and 24 years financial upgradation as prescribed under ACP Scheme due to his stagnation in same post. Since the petitioner has already completed more than 20 years of service therefore, under Clause 4 of the Conditions for grant of benefits under ACP Scheme petitioner was very much entitled to enjoy the first financial upgradation under the ACP Scheme after completion of 12 years of regular service and also he was entitled to enjoy the second financial upgradation after completion of 24 years of regular service in the same post. 14. 14. It is also evident from the records annexed to the affidavit-in-opposition affirmed in the year 2008 by the Chief Security Commissioner, RPF Eastern Railway Kolkata that on 28th August, 2008 the Chief Security Commissioner RPF, Eastern Railway, Kolkata communicated the petitioner that the process for granting the subject ACP benefit in favour of the petitioner has already been undertaken and the matter is now under process. 15. It is the settled principle in the service jurisprudence that no employee can be allowed to render his/her entire service tenure in one post or one scale without providing any promotion or financial upliftment. Therefore, to mitigate the financial hardship of the incumbent who has not been provided with any promotion or any financial upliftment this ACP Scheme was introduced by the authority to remove stagnation in service. 16. I also cannot ignore the contention that the other employees who were similarly circumstanced as the petitioner, had been extended the first benefit after completion of 12 years in service and thereafter the second benefit after completion of 24 years of service in the same post without granting any promotion. Thus, the petitioner was deprived of his legitimate entitlement of enjoying the first and second financial benefit under ACP Scheme as the petitioner since his appointment in the year 1961 till his retirement in the year 2000 was in the same post without offering any promotion or any financial upliftment by the authority till his retirement. 17. It is well settled that the government authority should not act unfairly, unjustly, irregularly. But in the present case it is crystal clear that act of the government authority is unfair, unjust and very much contrary to Articles 14, 16 and 21 of the Constitution of India. The Hon’ble Apex Court in G.C. Ghosh and Others Vs Union of India and Others reported in 1991 Supplementary Volume-II SCC Page-497 observed while extending such benefit that unless there was any distinguishing feature there could not be any different treatment. It is established from the contention of Mr. Banerjee that there was no such procedure to hold any test for granting ACP Scheme benefit as submitted my Mr. Sengupta. 18. It is established from the contention of Mr. Banerjee that there was no such procedure to hold any test for granting ACP Scheme benefit as submitted my Mr. Sengupta. 18. It is also established from the decision reported in 1999 Volume-II SCC Page-119 (Chandrasekhar & Another vs Union of India and Others) that the petitioner would automatically be entitled to the higher scale of pay on completion of 12 years requirement of service rendered in the feeder post for first financial upliftment then after completion of continuous 24 years of service in the same post the second financial upliftment under this scheme would be automatically extended to employees who are stagnant in the same post without availing any promotion. Therefore, it is established that the petitioner after completion of 12 years in service in the same post was entitled under the ACP Scheme to enjoy the immediate next higher scale of pay and after completion of continuous 24 years in service the petitioner was entitled to enjoy immediate next higher scale of pay by virtue of the ACP Scheme which was not granted in favour of the petitioner by the authority. 19. It is pertinent to note that the petitioner along with others were declared surplus in RPF in the year 1999. From time to time they became entitled to the first ACP Scheme benefit in lieu of promotion as they could not have been provided any promotion for want of vacancies or could not be considered for promotion in absence of appropriate promotional avenue. Hence, they became automatically entitled to the first and second ACP benefit after completion of 12 and 24 years of the service respectively. The decision in State of Haryana and another vs Chanan Mal (Supra) relied on by Mr. Sengupta has no manner of application in the present case as it is apparent on the acts of the respondent authorities that the petitioner was illegally, arbitrarily and unfairly deprived of his entitlement to enjoy the benefit of first ACP Scheme after completion of 12 years in service and after completion of 24 years of continuous service in the same post he was entitled to enjoy the second financial benefit under the said scheme. 20. 20. In as much as it is crystal clear that the petitioner was illegally, arbitrarily deprived to enjoy legitimate benefit as indicated in the ACP Scheme the question of lodging any representation before the authority for extension of the benefits under ACP Scheme in his favour before filling this writ petition cannot and should not be arise. 21. In the circumstances I direct the respondents to take steps to fix the pay of the petitioner in the scale of Rs. 32,000-49,000/- (or any correspondence scale in case any revision is made in between) with effect from 1.10.1999 and thereafter in the scale of pay of Rs. 4000-6000/- to the financial upgrdation benefits as indicated in the Assured Career Progressive Scheme (ACP Scheme) and to enhance the pension of the petitioner in appropriate scale of pay, thereafter revise the pension of the petitioner accordingly. 22. The Railway Authority is also directed to disburse the arrears after computation of the same accordingly. 23. Since a considerable period has elapsed therefore, the Railway Authority is directed to complete the entire exercise as indicated above within two months from the date of communication of this order. 24. The writ petition is allowed without any order as to costs. Urgent photostat certified copy, if applied for be supplied to the parties after fulfilling all the formalities.