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2023 DIGILAW 473 (HP)

Saroj Rani v. State of HP

2023-12-01

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. 2. The petitioner has filed the instant writ petition with the following prayers:- “(i) That the writ in the nature of Certiorari or any other appropriate writ, order or directions may kindly be issued, quashing the Impugned action of the respondents, whereby she has been denied the benefit of ACPS on completion of 14 years’ service in the cadre of JBT, being illegal, arbitrary, discriminatory, and unconstitutional and against the settled law of service jurisprudence. (ii) That the writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued, directing the Respondents to grant financial enhancement/ up gradation under the new ACPS on the completion of 14 years of service w.e.f. 09.03.2014 with all consequential benefits in terms of the Notification dated 09.08.2012.” 3. Case of the petitioner is that she was appointed as Junior Basic Teacher (JBT) on ad-hoc basis and she joined as such on 09.03.1990. After having granted special certificate, the petitioner was regularized as JBT with effect from 09.03.2000 in the pay scale of Rs.4550-7220, Annexure P-3. Further case of the petitioner is that the Finance Department of State Government issued a Proficiency Step-up Scheme with effect from 01.01.1986. This Scheme was replaced by the Assured Career Progression Scheme (referred to as Old ACP Scheme) with effect from 01.01.1996, whereby, the Scheme provided for four up-gradation on completion of 08-16-24 and 32 years of service i.e. two up-gradations in the higher pay scale and two increments on completion of 8-16-24 and 32 years of regular service in the cadre. This ACP Scheme remained in force till 27th August, 2009. 4. The Principal Secretary (Finance), Government of Himachal Pradesh, notified the New Assured Career Progression Scheme on 08.08.2012 w.e.f. 27.08.2009, granting up-gradations, in lieu of promotion, on completion of 4-9-14 years of service, in a cadre, with the rider that a Government employee could opt for benefits under the Old ACP Scheme, on completion of 8-16-24 and 32 years of service. 5. 5. In the above backdrop, the case of the petitioner is that on completion of 8 years of regular service, the petitioner was granted “First Up-gradation”, under Old ACP Scheme w.e.f. 09.03.2008 and after coming into force of the New ACP Scheme on 08.08.2012 w.e.f. 27.09.2009; the respondents granted the “Second Up-gradation” to the petitioner, notionally under ACP Scheme on notional w.e.f. 09.03.2009. 6. Now, the grievance of the petitioner is that though the petitioner completed 14 years’ service on 09.03.2014 and became eligible for “Third Financial Up-gradation” w.e.f. 9.03.2014. But this benefit has not been extended to the petitioner, on the ground that State Government revised the pay scales of its employees, by issuing the H.P. Civil Services (Category/Post-Wise Revised Pay) Rules, as per the Notification on 24/27.09.2012, applicable w.e.f. 01.10.2012, revising the pay band/grade pay of the category of JBTs from Rs.5910-20200+Grade Pay of Rs.3,000/- to Rs.10300-34800+Grade Pay of Rs.4200/- w.e.f. 01.10.2012. 7. Consequent upon the revision of pay scales and higher grade pay for various categories, including the category of the Petitioner-JBT w.e.f. 01.10.2012, Learned Counsel submits that the denial of “Third Financial Upgrdation”, which was due on completion of 14 years of service w.e.f. 09.03.2014, on the ground that once the petitioner was granted increased/enhanced grade pay w.e.f. 01.10.2012 due to the general revision of pay scale of all employees as per the Notification dated on 24/27.09.2012 w.e.f. 01.10.2012, as per the HPCS [Category/Post-Wise Revised Pay) Rules and not otherwise, then, the restriction in Clauses 3 (a)] in the New ACPS Scheme dated 08.08.2012 (Annexure P-4) which stands clarified on 07.07.2014 (Annexure P-5) cannot be made the basis for denying the “Third Financial Up-gradation”, due on completion of 14 years of service w.e.f. 09.03.2014 in view of Clause 4(e) of New ACPS Scheme dated 08.08.2012, applicable w.e.f. 27.08.2009 (Annexure P-4). 8. 8. The, Question as to whether the grant of revised pay scale/grade pay could be made the basis or could be a rider for not granting the financial up-gradation, under New ACPS dated 08.08.2012 application w.e.f. 27.08.2009 on completion of 14 years of regular service [with effect from 09.03.2014 to the petitioner-JBT] has been answered by a Co-ordinate Bench of this Court in CWPOA No.5952 of 2020, titled as Pankjakshi Sharma Versus State of H.P. & Ors., decided on 06.07.2023, Annexure P-8, and then by the judgment passed by the Division Bench of this Court in CWPOA No.5536 of 2020, titled as Sanjay Kumar Versus State of Himachal Pradesh & others alongwith connected matters, decided on 01.11.2023 [taken on record], mandating that in view of Clause-5, of the communication dated 07.07.2014, Annexure P-5 (in CWPOA No.5536 of 2020), the financial up-gradation due on completion of 4-9-14 years of service, in a cadre under the New ACP Scheme dated 28.08.2012 (Annexure P-4) cannot be denied only on the ground that an employee was granted higher grade pay consequent upon, the revision of pay scales by virtue of the HPCS (Category-Wise), Rules, notified on 27.09.2012 with effect from 01.10.2012, as in this case. The operative part of the judgment passed by the Division Bench of this Court, in case of Sanjay Kumar (supra) reads as under:- “9. Now question which needs to be determined in the instant proceedings as to “whether pay revision or grant of grade pay vide order dated 1.10.2012 can be termed to be a financial upgradation so as to deny the benefit of financial upgradation under ACPS. 10. Careful perusal of communication dated 7th July 2014 whereby old ACP scheme came to be replaced by new ACPS, clearly reveals that annul increment or general pay revision shall not be considered as financial upgradation for the purpose of benefit, if any, under ACPS. If it is so, there appears to be merit in the claim of the petitioners that they are entitled to the benefit of third financial upgradation after their having completed 14 years of service. At this stage, it would be apt to take note of para-5 of the afore letter, which reads as under:- “Moreover, the overriding objective on an assured career progression scheme is to ensure at least three financial up-gradations/ enhancements/promotions to a regular employee in his entire service career. At this stage, it would be apt to take note of para-5 of the afore letter, which reads as under:- “Moreover, the overriding objective on an assured career progression scheme is to ensure at least three financial up-gradations/ enhancements/promotions to a regular employee in his entire service career. Therefore, in partial modification of earlier orders on ACP schemes it is directed that, once an employee has already got three enhancements/financial upgradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, in fourteen years or more his/her entire service, thereafter, he will not be entitled for placement in next higher grade pay in the ACPS Scheme introduced vide FD’s instructions dated 9th August 2012. However, it is clarified that after availing three enhancements/upgradation/ promotion, an employee will be eligible to take the benefit of normal promotions available in his service career.” 11. Careful perusal of aforesaid instructions clearly reveals that an employee is granted three enhancements/upgradations/ promotion, he/she shall not be eligible for grant of further benefit, if any, under ACPS, but in the case at hand, petitioners after being appointed as JBT though were given two benefits of financial upgradation under ACPS, first benefit was granted under old ACPS after their having completed eight years service, whereas second benefit was granted in their favour after their having completed nine years service under new ACPS and third benefit in terms of new ACPS, for which petitioners have already opted, is being denied on the ground that vide order dated 26.02.2013 grade pay of the petitioners has been enhanced w.e.f. 1.10.2012. However, as observed hereinabove, financial upgradation, if any, on account of pay revision/revision of grade pay cannot be a ground to deny benefit of financial upgradations under ACPS, which become due after completion of four, nine and fourteen years as per new ACPS. Though, it has been vehemently argued on behalf of the respondents/State that grade pay of the petitioners was enhanced, as a result of which, their pay was enhanced, but as has been taken note above, financial enhancement on account of annual increment or general pay revision, based on pay commission, is not to be considered while considering the case of an employee for grant of benefit of ACPS. Since, in the case at hand pay of the petitioners came to be enhanced on account of grant of grade pay, benefit of financial upgradation in terms of provision contained under ACPS cannot be denied. 12. True, it is that careful perusal of communication 26.02.2023, which has been relied heavily by the respondents, suggests that a government employee after rendering service of 4,9 and 14 years in a post or posts without any financial enhancement in the same cadre/post, if not promoted to higher level on account of non availability of a vacancy or non-existence of promotional avenue in the cadre, shall be granted the grade pay, which is next higher in the hierarchy of grade pay given in the schedule annexed to Revised Pay Rules, 2009 upto maximum grade pay of Rs.8900/- and on placement in the next higher grade pay in the hierarchy of grade pays after service of 4, 9 and 14 years, but such benefit of re-revision of pay shall be treated as financial enhancement for the purpose of granting benefit under 4-9-14 and 8-16-24-32 but there is nothing to dispute that vide notification dated 7th July 2014 (Annexure P5), it specifically came to be clarified that once an employee has already got three enhancements/financial up-gradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement, except the annual increment or the general pay revision based on the pay commission, in fourteen years or more during his/her entire service will not be entitled for placement in next higher grade pay in the ACP Scheme introduced vide instructions dated 9th August 2012. It is quite apparent from perusal of aforesaid letter that financial upgradation, if any, on account of pay revision cannot be a ground to deny benefit under ACPS. Since pay of the petitioners came to be enhanced on account of enhancement in grade pay, benefit of financial upgradation in terms of ACPS cannot be denied. 13. Consequently, in view of the discussions made hereinabove, this Court finds merit in the instant petitions and accordingly same are allowed. Office order dated 3.08.2018 (Annexure A-8) is quashed and set aside and the respondents are directed to consider the case of the petitioners for grant of financial upgradation under ACPS (4-9-14) time scale/ enhancement after their having completed 14 years of service at par with their counterparts from the due date. Office order dated 3.08.2018 (Annexure A-8) is quashed and set aside and the respondents are directed to consider the case of the petitioners for grant of financial upgradation under ACPS (4-9-14) time scale/ enhancement after their having completed 14 years of service at par with their counterparts from the due date. Since petitioners have been fighting for their rightful claim for years together, this Court hopes and trusts that needful shall be done in terms of the directions contained in the instant judgment expeditiously, preferably within a period of six weeks. Pending applications, if any, also stands disposed of." 9. Faced with this situation, Mr. Onkar Jairath, learned counsel for the petitioner, submits that the petitioner has made a representation (undated) i.e. Annexure P-7 to respondent No.2-Director, Elementary Education, Himachal Pradesh, which is still pending and he may be permitted to make a fresh representation, highlighting all these aspects. 10. Per contra, Mr. Vishal Panwar, learned Additional Advocate General, submits that the judgment passed by the Division Bench of this Court in Sanjay Kumar (supra), has recently been decided on 01.11.2023. The factum as to whether the aforesaid judgment, is being implemented or not, needs to be looked into. He further submits that the petitioner has not laid any foundation, on the basis of the HPCS (Category Wise) Pay Rules, dated 24/27.09.2012 and the recent judgment, in case of Sanjay Kumar (supra) and the same cannot be looked into, in these proceedings. 11. Be that as it may, in the peculiar facts and circumstances learned counsel for the petitioner prays that petitioner may permitted to make a representation to respondent No.2-Director, Elementary Education, Himachal Pradesh. The prayer being innocuous, is not opposed by the learned State Counsel also, which is granted accordingly. 12. Accordingly, this Court permits the petitioner to make a representation to respondent No.2-Director, Elementary Education, Himachal Pradesh, within six weeks from today; with further directions to the aforesaid respondent to examine/ consider the case of the petitioner and pass appropriate orders, that too, after giving a personal hearing to the petitioner. 13. Needless to say that, this Court has not adverted to the rival contentions and merits of the matter and all Questions of facts and law are left open. In the aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.