R. B. v. Subba Rao, S/o. Late Suryanarayana Murthy VS Registrar (Administration), High Court for the State of Telangana
2023-07-10
NAGESH BHEEMAPAKA, P.NAVEEN RAO
body2023
DigiLaw.ai
ORDER : (P. Naveen Rao, J.) Heard learned senior counsel Sri J. Prabhakar, representing learned counsel Smt. Kanumuri Kalyani for petitioner, and learned standing counsel for High Court for the State of Telangana, Sri Kowturu Pawan Kumar, appearing for sole respondent. 2. On 03.11.1989 petitioner joined service as Reader in the City Small Causes Court, at Hyderabad. With effect from 03.11.1991 he was converted as Examiner and later he was promoted as Lower Division Clerk (for short ‘LDC’) in the month of August, 2003. While working in the capacity of LDC in the District Judiciary his services were transferred to the High Court by order dated 14.10.2009 in the capacity of Assistant. As on date, he is working in the said capacity. 3. The grievance of the petitioner is with reference to grant of benefit of Automatic Advancement Scheme (for short ‘the scheme’) notified by the Government of Telangana vide G.O.Ms.No.65 Finance (HRM.IV) Department dated 17.06.2021. As per the scheme, an employee is entitled for Special Grade Post Scale on completion of six (06) years of service in a particular post without earning any promotion. The grant of this special scale does not require any additional qualifications. Petitioner was granted the said special scale while he was working in the District Judiciary. As per the scheme, an employee is also entitled to Special Promotion Post Scale I-A on completion of 12 years of service and Special Promotion Post Scale I-B on completion of 18 years of service only if during these two periods, he/she does not earn any promotions. However, the G.O., requires possession of qualifications prescribed for the promotion post to acquire their eligibility to secure the Special Promotion Post Scale I-A and I-B, as the case may be. 4. In the High Court service, a person working as Assistant is eligible for promotion as Assistant Section Officer. However, the person must possess graduation certificate to acquire eligibility for such promotion. As petitioner does not possess the qualification of graduation, he was not considered for promotion. On 30.09.2021 petitioner submitted representation to respondent requesting to sanction special grade increment on completion of 12 years and 18 years of service, respectively, as per the scheme noted above. The request of the petitioner was turned down vide official memorandum dated 31.01.2022. 5. Challenging the same, petitioner filed W.P.No.22477 of 2022.
On 30.09.2021 petitioner submitted representation to respondent requesting to sanction special grade increment on completion of 12 years and 18 years of service, respectively, as per the scheme noted above. The request of the petitioner was turned down vide official memorandum dated 31.01.2022. 5. Challenging the same, petitioner filed W.P.No.22477 of 2022. By order dated 28.04.2022 the said W.P., was dismissed as withdrawn with liberty to file a representation to the High Court. Consequently, petitioner submitted representation dated 02.05.2022 reiterating his submissions for consideration of grant of scales on completion of 12 years and 18 years of service, respectively. The said request of petitioner was again rejected vide official memorandum dated 17.05.2022. Aggrieved thereby, this writ petition is filed. 6. In this writ petition, the petitioner is not only challenging the rejection order vide official memorandum dated 17.05.2022 seeking consequential direction for grant of special grade scales on completion of 12 years and 18 years of service, respectively, but also seeks promotion. However, having regard to the qualification required for promotion to the post of Assistant Section Officer, learned senior counsel fairly submits that the petitioner now confines his grievance to the extent of grant of advancement in the scales on completion of 12 years and 18 years respectively. 7. Learned senior counsel further submits that the issue regarding the advancement in scales on completion of prescribed service was considered by the Hon’ble Supreme Court in Amresh Kumar Sinha and Others Vs. State of Bihar and Others : 2023 SCC OnLine SC 496. 8. Learned senior counsel appearing for petitioner submits that the Hon’ble Supreme Court has considered the similar provision and held that since what is granted under the scheme is only the financial upgradation to ensure that the employees do not get stagnated in a particular post for long, the question of insistence of qualification prescribed for promotion is arbitrary. He further submits that having regard to the said judgment of the Hon’ble Supreme Court, the petitioner is entitled to upgradation of scales on completion of 12 years and 18 years of service, respectively. 9. The legal position is not disputed by learned standing counsel appearing for sole respondent. He only contends that the said issue was not agitated before the respondent by the petitioner and that petitioner ought to have submitted the representation enclosing the copy of the judgment for consideration of the competent authority. 10.
9. The legal position is not disputed by learned standing counsel appearing for sole respondent. He only contends that the said issue was not agitated before the respondent by the petitioner and that petitioner ought to have submitted the representation enclosing the copy of the judgment for consideration of the competent authority. 10. In the representation submitted by the petitioner he has fairly brought out what he was requesting from the competent authority. His claim was that in accordance with the schemes notified by the Government from time to time, he is entitled for financial upgradation on completion of 12 years and 18 years of service, respectively. 11. As noticed above, for grant of Special Promotion Post Scale I-A on completion of 12 years and Special Promotion Post Scale I-B on completion of 18 years, the G.O., requires that the person must possess the qualification required for promotion in regular line. As noticed above, for promotion to the post of Assistant Section Officer a person must have passed graduation and admittedly, the petitioner does not possess the qualification of graduation. Therefore, the only question for consideration is whether petitioner is eligible to be considered for grant of two special scales without insisting for possession of qualification of graduation. 12. In the normal course, petitioner would have earned promotion if he possessed graduation degree. Financial upgradation on completion of 12 years and 18 years is meant to ensure that the employee does not stagnate at a particular level of pay for ever as he could not secure promotion for various reasons, such as non-availability of promotional avenues, vacancies in the posts etc. Therefore, insistence of such qualification is not valid in law. It is anti-thetical to the object of formulating such a scheme. 13. This issue is no more res integra having regard to the law laid down by the Hon’ble Supreme Court in Amresh Kumar Sinha (supra). The relevant paragraphs of the decision of the Hon’ble Supreme Court in Amresh Kumar Sinha (supra) read as under: “9. The Bihar Accounts Service Rules, 2000 as notified on 28th March, 2000 vide Rules 17 and 20 read with Schedule I thereof provides for recruitment by way of promotion.
The relevant paragraphs of the decision of the Hon’ble Supreme Court in Amresh Kumar Sinha (supra) read as under: “9. The Bihar Accounts Service Rules, 2000 as notified on 28th March, 2000 vide Rules 17 and 20 read with Schedule I thereof provides for recruitment by way of promotion. The aforesaid Rule 17, inter alia, provides that for promotion on the basis of grade of service, candidates must possess qualifications mentioned in Schedule I which, inter alia, provides that for promotion to Bihar Accounts Service, the minimum educational qualification shall be graduation. 10. At the same time Bihar State Employees Service Condition (Assured Career Progression Scheme) Rules, 2003 vide sub-Rule (5) of Rule 4 lays down that if the rules prescribe passing of the departmental examination or any qualification for promotion that shall also be an essential condition for sanction of benefit under the scheme. In other words, possession of essential qualification prescribed under the rules is necessary for grant of benefit under the scheme, i.e., ACP. 11. It is in view of the above rules, the contention of the State is that until and unless the Accountant Clerks possess the minimum educational qualifications of graduation, they are not entitled to promotion in the grade of Bihar Accounts Service that is the Accounts Officer. 12. It may be worth noting that the ACP scheme was enforced on the recommendation of the Fifth Central Pay Commission in context with Group C and D employees and it provided monetary benefit to the employees on completion of 12 years and 24 years of regular service who were not able to get promotion. The scheme as such was anti-stagnation and envisages merely placement of the employees in the higher pay scale for the grant of financial upgradation only without grant of actual promotion. The benefit of the ACP as such is like granting non-functional in situ promotion. 13. At the cost of repetition, it must be borne in mind that the object of ACP is to avoid stagnation where no promotional avenues are available. The grant of ACP is not technically a grant of promotion but increase in the pay scale to the next higher grade retaining the employee on the post held by him.
13. At the cost of repetition, it must be borne in mind that the object of ACP is to avoid stagnation where no promotional avenues are available. The grant of ACP is not technically a grant of promotion but increase in the pay scale to the next higher grade retaining the employee on the post held by him. This is only to accord monetary benefit without disturbing any seniority or actually effectuating promotion to any higher post to avoid stagnation on a particular post or pay scale for a very long period. 14. The object and purpose of ACP/MACP Scheme has been reiterated by this Court in Union of India v. C.R. Madhava Murthy, (2022) 6 SCC 183 , as one to relieve the frustration on account of stagnation and it does not involve actual grant of promotional post but merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria. 15. In sum and substance, both ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12-24 years and 10-20-30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues. The effect of the schemes must be judged keeping in view the object and the purport of the scheme”. 14. Having regard to the law laid down by the Hon’ble Supreme Court in Amresh Kumar Sinha (supra) the learned standing counsel appearing for respondent requests time to file additional counter. 15. We do not think that additional counter is necessary to deal with a decision rendered by the Hon’ble Supreme Court. 16. From the reading of two official memorandums dated 31.01.2022 and 17.05.2022 rejecting the request of the petitioner for grant of advancement scales it is seen that the respondent has not assigned any reasons for such rejection and it is a bald non-speaking order. Only in the counter affidavit the issue of petitioner not possessing the requisite qualification is raised for the first time. 17.
Only in the counter affidavit the issue of petitioner not possessing the requisite qualification is raised for the first time. 17. We do not appreciate High Court passing orders in a mechanical manner without assigning reasons while dealing with the grievances of employees and we hope that in future the orders shall contain the reasons in support of the decision. 18. Having regard to the law laid down by the Hon’ble Supreme Court in Amresh Kumar Sinha (supra) the Writ Petition is allowed only to the extent of granting financial upgradation on completion of period of 12 years and 18 years, respectively as per G.O.Ms No. 65 Finance (HRM.IV) Department dated 17.6.2021 without insisting degree qualification. Pending miscellaneous petitions, if any, shall stand closed.